Exhibit
10.9


 


EMPLOYMENT AGREEMENT


 


THIS AGREEMENT (the “Agreement”) is entered into effective as of this 28th
day of October, 2005 (the “Effective Date”), by and between Tapestry
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and Martin Batt
(“Executive”). Certain capitalized terms used in this Agreement have the
meaning set forth in Paragraph 17 of this Agreement.


 


RECITALS


 


A.            WHEREAS, Executive is
currently employed by the Company; and


 


B.            WHEREAS, the Company
desires to secure the continued services of Executive as an employee of the
Company, and to provide for certain compensation and benefit arrangements for
Executive in the event of Executive’s termination of employment under certain
circumstances, and Executive is willing to enter into this Agreement and
perform such services.


 


TERMS AND CONDITIONS


 


In consideration of the respective covenants and agreements of the
parties contained in this Agreement, the parties agree as follows:


 


1.             Employment Services. The Company hereby
agrees to engage Executive, and Executive hereby agrees to perform services for
the Company, on the terms and conditions set forth in this Agreement. The
Company and Executive agree that Executive will serve as an executive officer
of the Company in the position of Senior Vice President, Chief Operating
Officer, or will have such other executive title and such other executive
duties, responsibilities and authority as Executive and the Company may agree
upon from time to time.  Executive will
perform such services of an executive and administrative character to the
Company and its present or future Subsidiaries consistent with the duties of
the Company’s other executive officers, as the Company’s Board of Directors
(the “Board”) may from time to time direct (the “Employment Services”) or the
Bylaws of the Company may provide.


 


2.             At-Will
Employment.  The Company
hereby agrees that it shall not terminate or alter Executive’s employment status
such that Executive is no longer eligible to receive Company benefits without Cause
prior to April 15, 2006.  After April 15,
2006, it is understood and agreed
by the Company and Executive that this Agreement does not contain any promise
or representation concerning the duration of Executive’s employment with the
Company. Executive specifically acknowledges that his employment with the
Company is at-will and may be altered or terminated by either Executive or the
Company at any time, with or without cause and/or with or without notice.  The nature, terms or conditions of Executive’s
employment with the Company cannot be changed by any oral representation,
custom, habit or practice, or any other writing.  In addition, that the rate of salary, any
bonuses, paid time off, other compensation, or vesting schedules are stated in
units of years or months or weeks does not alter the at-will nature of the
employment, and does not mean and should not be interpreted to mean that
Executive is guaranteed employment to the end of any period of time or for any
period of time. In the event of 


 

















 


conflict between this disclaimer and any other statement, oral or
written, present or future, concerning terms and conditions of employment, the
at-will relationship confirmed by this disclaimer shall control.  This at-will status cannot be altered except
in a writing signed by Executive and approved by the Board of Directors of the
Company (the “Board of Directors”).


 


3.             Performance.


 


(a)           Executive
shall report to the Chief Executive Officer (or person acting in a similar
capacity if the Company has no Chief Executive Officer), and Executive shall
devote his best efforts and his full business time and attention to the
business of the Company and its Subsidiaries; provided, however, that upon
prior agreement by the Chief Executive Officer, and subject to the terms of
this Agreement, Executive may engage in independent activities in areas
unrelated to the Company’s business or the Company’s actual or demonstrably
anticipated business; and provided, further, that no such independent
activities shall materially detract from the essentially full time commitment
of Executive to the business and affairs of the Company. Executive shall
perform his duties and responsibilities to the best of his abilities in a
diligent, trustworthy, businesslike and professional manner.


 


(b)           Unless
the Company and Executive otherwise agree, Executive shall perform the
Employment Services at the Company’s executive offices and traveling on
business as Executive and the Company shall reasonably deem necessary.


 


4.             Compensation.


 


(a)           The
Company will pay Executive for the Employment Services a base salary (the “Base
Salary”) at the annual rate of two hundred seventy thousand dollars ($270,000)
or such larger amount as the Compensation Committee (or if the Board has no
Compensation Committee at the time, then the Board), in its discretion, may
award to Executive.  Payment of the Base
Salary shall be subject to the customary withholding tax and other employment
taxes as required with respect to compensation paid by a corporation to an
employee, and such salary to be paid at such periods as salary is paid to other
executive officers of the Company.


 


(b)           Executive
may receive an annual bonus in such amount, if any, as the Compensation
Committee (or if the Board has no Compensation Committee at the time, then the
Board), in its discretion, may award to Executive, based upon Executive’s and
the Company’s performance during each year of employment.


 


(c)           The
Executive may receive such stock options (if any) during his employment as
determined from time to time by the Compensation Committee (or if the Board has
no Compensation Committee at the time, then the Board).


 


5.             Reimbursement for Expenses. The Company
shall promptly reimburse Executive for all reasonable out-of-pocket expenses
incurred by him in the course of performing his duties under this Agreement,
subject to the Company’s reasonable requirements with respect to reporting and
documentation of such expenses.


 


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6.             Benefits. Executive shall be entitled
to those fringe benefits offered by the Company to all employees and to
participate in the Company’s employee benefit programs available to other
employees of the Company.  During the Executive’s
employment, Executive shall be entitled to eight weeks of paid vacation in
accordance with the Company’s policies.


 


7.             Termination.  Executive has the right to terminate
Executive’s employment with the Company at any time for any reason or no reason
whatsoever, with or with out cause or advance notice.  Company has the right to terminate Executive’s
employment with cause at any time without advance notice.  The
Company hereby agrees that it shall not terminate or alter Executive’s
employment status such that Executive is no longer eligible to receive Company
benefits without Cause prior to April 15, 2006. 
Company has the right to terminate Executive’s employment without
cause or reason at any time after April 15, 2006.  Any termination by either party shall be pursuant
to the following:


 


(a)           Termination
by Death or Disability.  Subject to
applicable state or federal law, in the event that Executive shall die during
his employment hereunder or become permanently disabled, as evidenced by notice
to the Company and Executive’s inability to carry out his job responsibilities
for a continuous period of more than six months, Executive’s employment and the
Company’s obligation to make payments hereunder shall terminate on the date of
his death, or the date upon which, in the sole determination of the Board of
Directors, Executive has become permanently disabled, except the the Company
shall pay Executive any salary earned but unpaid prior to termination, any
benefits accrued prior to termination, all accrued but unused personal time,
and any business expenses that were incurred but not reimbursed as of the date
of termination. Vesting of any stock options granted to Executive shall cease
on the date of such termination.


 


(b)           Voluntary
Resignation by Executive.  In the
event that Executive voluntarily terminates his employment with the Company,
the Company’s obligation to make payments hereunder shall cease upon such
termination, except the Company shall pay Executive any salary earned but
unpaid prior to termination, any benefits accrued prior to termination, all
accrued but unused personal time, and any business expenses that were incurred
but not reimbursed as of the date of termination.  Vesting of any stock options granted to
Executive shall cease on the date of such termination.


 


(c)           Termination
for Cause.  In the event that
Executive is terminated by the Company for Cause (as defined below), the
Company’s obligation to make payments hereunder shall cease upon the date of
receipt by Executive of written notice of such termination (the “Termination Date”), except the Company
shall pay Executive any salary earned but unpaid prior to the Termination Date,
any benefits accrued prior to termination, all accrued but unused personal time
and any business expenses that were incurred but not reimbursed as of the date
of termination.  Vesting of any stock options
granted to Executive shall cease on the Termination Date.


 


(d)           Termination
by the Company Without Cause or Resignation by Executive for Good Reason.  In the event Executive is terminated without
Cause or Resigns for Good Reason (as defined herein) and upon the execution of
a release by Executive in the form attached hereto as Exhibit A (“Release”) and
written acknowledgment of Executive’s continuing 


 


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obligations under the Proprietary Information
Agreement, then the Company shall make the following payments to Executive 195
days after such termination (or such longer period as may be required by law),
subject in each case to any applicable payroll or other taxes required to be
withheld: (i) 100% of Executive’s then effective Base Salary;  and (ii) a lump sum amount in cash equal to
any accrued but unpaid salary through the date of termination and unpaid salary
with respect to any vacation days accrued but not taken as of termination. The
Company shall reimburse Executive for payments made by Executive under
C.O.B.R.A. for extension of health insurance coverage until the first to occur
of (x) the date of Executive’s re-employment and subsequent opportunity to
participate in any health insurance program, (y) eighteen months after such
termination date, or (z) Executive becomes eligible to participate in
Medicare/Medicaid.  Any stock options or
other equity awards which are not vested as of the date of termination shall
vest immediately upon the Termination Date.


 


(e)           Definition of “Cause.”  For purposes of this Agreement, “Cause”
shall mean (i) the conviction (or plea of nolo contendere) of a felony or a
crime involving moral turpitude or the commission of any other act which has an
adverse effect on the Company and which involves dishonesty, disloyalty or
fraud with respect to the Company or any of its Subsidiaries, or (ii) conduct
bringing the Company or any of its Subsidiaries into substantial public
disgrace or disrepute, including, without limitation, such conduct resulting
from repeated acts of alcohol or drug abuse, or (iii) continued failure by
Executive to substantially perform his duties as reasonably directed by the
Board after the Board has made a written demand for substantial performance
which specifically identifies the manner in which the Board believes that
Executive has not substantially performed his duties, or (iv) gross negligence
or misconduct not in good faith with respect to the Company or any of its
Subsidiaries that materially and adversely affects the Company, or (v) any
other material breach of this Agreement which, if in the sole determination of
the Board is curable,  is not cured
within 15 days after Executive’s receipt of written notice thereof.


 


(f)            Definition
of “Good Reason.”  For purposes of
this Agreement, “Good Reason” shall mean termination by Executive (i) within 90
days after Executive has been assigned, without Executive’s consent, to any
duties substantially inconsistent with Executive’s position, duties,
responsibilities or status with the Company as contemplated in Paragraph 1 of
this Agreement; (ii) if Executive is required to regularly perform the duties
of Executive’s employment more than 50 miles from Boulder, Colorado; or (iii)
upon a material breach of this Agreement by the Company which is not cured
within 30 days after the Company’s receipt of written notice thereof. Executive
shall provide written notice to the Company of any and all grounds that
Executive alleges constitute “Good Reason” and the Company shall have 30 days
after receipt of such written notice to cure any such alleged grounds for “Good
Reason”..


 


(g)
          Within
seven months following any termination of the Employment Period, and as of that
date, the Company will notify Executive of the itemized and aggregate cash
value of the payments and benefits, as determined under Section 280G of the
Internal Revenue Code (the “Code”), received or to be received by Executive in
connection with the termination of Executive’s employment (whether payable
pursuant to the terms of this Agreement or otherwise). At the same time, the
Company shall advise Executive of the portion of such payments or benefits
which constitute parachute payments within the meaning of the Code and which
may subject Executive to the payment of excise taxes pursuant to Section 4999 


 


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and the expected amount of such taxes (such payments
or benefits being hereinafter referred to as “Parachute Payments”).


 


(h)           
If all or any portion of the payments or benefits provided under this Agreement
either alone or together with other payments or benefits which Executive has
received or is then entitled to receive from the Company and any of its
Subsidiaries would constitute Parachute Payments, such payments or benefits
provided to Executive pursuant to this Agreement shall be reduced to the extent
necessary so that no portion thereof shall be subject to the excise tax imposed
by Section 4999 of the Code; but only if, by reason of such reduction,
Executive’s net after tax benefit shall exceed the net after tax benefit if
such reduction were not made. “Net after tax benefit” shall mean the sum of (i)
the total amount payable to Executive pursuant to this Agreement, plus (ii) all
other payments and benefits which Executive has received or is then entitled to
receive from the Company and any of its subsidiaries that would constitute a
Parachute Payment, less (iii) the amount of federal income taxes payable with
respect to the payment and benefits described in (i) and (ii) above calculated
at the maximum marginal income tax rate for each year in which such payments
and benefits shall be paid to Executive (based upon the rate in effect for such
year as set forth in the Code at the Termination Date), less (iv) the amount of
excise taxes imposed with respect to the payments and benefits described in (j)
and (ii) above by Section 4999 of the Code.


 


For purposes of this Agreement, Executive’s
base amount, the present value of the Parachute Payments, the amount of the
excise tax and all other appropriate matters shall be determined by the Company’s
independent auditors in accordance with the principles of Section 280G of the
Code and based upon the advice of tax counsel selected by the Company, which
tax counsel shall be reasonably satisfactory to Executive, provided, however,
that the applicable federal rate used for the purposes of calculating the
present value of the Parachute Payments shall be the federal rate in effect on
the date of this Agreement.


 


8.             Insurance. The Company may, at its
election and for its benefit, insure Executive against accidental death, and
Executive shall submit to such physical examination and supply such information
as may be required in connection therewith.


 


9.             Non-disclosure of Confidential Information.


 


(a)           Unless
Executive first secures written consent from the Company pursuant to procedures
implemented by Company after the date hereof, Executive shall not disclose or
use at any time, any Confidential Information (as defined in Paragraph 17)
except to the extent Executive reasonably believes is necessary to disclose or
use such Confidential Information in performing the Employment Services.
Executive further agrees that Executive will use Executive’s commercial best
efforts to safeguard the Confidential Information and protect it against
disclosure, misuse, espionage, loss and theft, including, without limitation,
causing recipients of Confidential Information to enter into non-disclosure
agreements with the Company. Subject to the provisions of Paragraphs 10 and 13,
nothing herein shall be construed to prevent Executive from using Executive’s
general knowledge and skill after termination of this agreement, whether
Executive acquired such knowledge or skill before or during the his employment.


 


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(b)           In
the event the Company has entered into confidentiality agreements with third
parties (not including Company employees) which contain provisions different
from those set forth in this Agreement, Executive agrees, in addition to the
provisions of Paragraph 9(a), to comply with any such different provisions of
which Executive is notified by the Company.


 


10.           Company Ownership of Intellectual Property. Executive hereby assigns to the Company
all right, title and interest in and to all Intellectual Property (as defined
in Paragraph 17) contributed to or conceived or made by Executive during the
Employment Period and prior to the Employment Period during the period
Executive was employed by or engaged in research or development activities for
or with the Company or its predecessors and affiliates (whether alone or
jointly with others) to the extent such Intellectual Property is not owned by
the Company as a matter of law. Executive shall promptly and fully communicate
to the Company all Intellectual Property conceived, contributed to or made by
Executive and shall cooperate with the Company to protect the Company’s
interests in such Intellectual Property including, without limitation,
providing assistance in securing patent protection and copyright registrations
and signing all documents reasonably requested by the Company, even if such
request occurs after Executive’s employment has terminated. The Company shall
pay Executive’s reasonable expenses of cooperating with the Company in
protecting the Company’s interests in such Intellectual Property unless the
subject matter of the requested cooperation is related to actions taken or
failed to be taken by Executive wrongfully or otherwise not in good faith.


 


11.           Executive’s Rights. Paragraph 10 of
this Agreement does not apply to an invention for which no equipment, supplies,
facilities or trade secret information of the Company was used and which was
developed entirely on Executive’s own time, unless (a) the invention relates
(i) to the business of the Company, or (ii) to the Company’s actual or
demonstrably anticipated material research or development, or (b) the invention
results from any work performed by Executive for the Company.


 


12.           Return of Materials. Upon termination
of Executive’s employment, regardless of reason,, or at any time reasonable
requested by the Company, Executive shall promptly deliver to the Company all
copies of Confidential Information in Executive’s possession and control,
including written records, manuals, lab notebooks, customer and supplier lists
and all other materials containing any Confidential Information. If the Company
requests, Executive shall provide written confirmation that Executive has
returned all such materials. Subject to the provisions of this Agreement,
including, without limitation, Paragraph 11, notwithstanding anything in this
Agreement to the contrary, upon termination of employment, the Company, at
Executive’s request, shall promptly return to Executive any equipment or other
materials owned by Executive then being used by or then in the possession of
the Company.


 


13.           Non-Competition. Executive acknowledges
and agrees that Executive is considered to be part of the professional, managerial
and executive staff of the Company whose duties include the formulation and
execution of management policy, and that in the course of Executive’s duties,
Executive is permitted access to Intellectual Property, which includes, among
other things, trade secrets of the Company that the Company seeks to protect
from dissemination and disclosure. Executive acknowledges and agrees that
during Executive’s employment and for a period of one year thereafter (the “Non-compete
Period”), Executive will not, without the prior 


 


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written consent of the Company, directly or indirectly, provide
products or services substantially similar to the Employment Services to any
business or entity that provides or offers or demonstrably plans to provide or
offer, products or services that (i) are the same as or substantially similar
to the products or services provided by the Company at any time during his
employment with the Company, (ii) relate to the Company’s Intellectual Property
(whether the Company acquired such Intellectual Property pursuant to this
Agreement or otherwise), or (iii) relate to any subject matter of the Company’s
actual or demonstrably anticipated material research and development during Executive’s
employment with the Company, including without limitation, paclitaxel, taxanes
and any other compounds, within any geographical area in which the Company or
any of its subsidiaries provide or plan to provide such products or services.


 


14.           
Non-Solicitation. Executive
acknowledges and agrees that during the Non-compete Period, Executive will not
(a) solicit, induce or attempt to induce, directly or indirectly, any employee
of the Company to leave the employment of the Company to work for Executive or
for any other person, firm or corporation or (b) hire any employee of the
Company.


 


15.           Acknowledgment of Reasonableness.
Executive acknowledges and agrees that the limitations set forth in Paragraphs
13 and 14 are reasonable with respect to scope, duration and geographic area
and are properly required for the protection of the legitimate business
interest of the Company.


 


16.           Further Assistance. During the
Non-compete Period, Executive will not make any disclosure or other
communication to any person, issue any public statements or otherwise cause to
be disclosed any information which is designed, intended or might reasonably be
anticipated to discourage any persons from doing business with the Company or
otherwise have a negative impact or adverse effect on the Company, except to
the extent such disclosure is required by law. During the Non-compete Period,
Executive will provide assistance reasonably requested by the Company in
connection with actions taken by Executive during the his employment with the
Company, including but not limited to assistance in connection with any
lawsuits or other claims against the Company arising from events during the Executive’s
employment with the Company, provided that the Company shall reimburse all
reasonable expenses (including without limitation, reasonable loss of
compensation from other sources resulting from such assistance during normal
business hours).


 


17.           Certain Definitions.


 


“Affiliate” and “Associate”
have the respective meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in effect
on the date of this Agreement (the “Exchange Act Rules”), and “Beneficial
Ownership” has the meaning ascribed to such term in Rule 13d-3 of the Exchange
Act Rules.


 


“Confidential Information” means all
information (whether or not specifically labeled or identified as
confidential), in any form or medium, that is disclosed to, or developed or
learned by Executive during the Employment Period and prior to the Employment
Period during the period Executive was employed by or engaged in research or
development activities for or with the Company or its predecessors and
affiliates or that relates to the business, products, 


 


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services, customers, research or development of the Company, its
Subsidiaries, its Affiliates, or third parties with whom the Company, its
Subsidiaries or its Affiliates does business or from whom the Company or its
Affiliates receives information. Confidential Information shall not include any
information that (i) has become publicly known through no wrongful act or
breach of any obligation of confidentiality, as evidenced by written records or
documents; or (ii) was rightfully received by Executive on a non-confidential
basis from a third party (provided that such third party is not known to
Executive to be bound by a confidentiality agreement with the Company or
another party), as evidenced by written records or documents.


 


“Intellectual Property” means any idea,
invention, design, development, device, method or process (whether or not
patentable or reduced to practice or including Confidential Information) and
all related patents and patent applications, any copyrightable work or mask
work (whether or not including Confidential Information) and all related
registrations and applications for registration, and all other proprietary
rights.


 


“Subsidiaries” means any corporation
of which the securities having a majority of the voting power in electing
directors are, at the time of determination, owned by the Company, directly or
through one of more Subsidiaries.


 


18.          Executive
Representations. Executive hereby represents and warrants to the
Company that (a) the execution, delivery and performance of this Agreement by Executive
does not and will not conflict with, breach, violate or cause a default under
any contract, agreement, instrument, order, judgment or decree to which
Executive is a party or by which he is bound, and (b) upon the execution and
delivery of this Agreement by the Company, this Agreement shall be the valid
and binding obligation of Executive, enforceable in accordance with its terms.


 


19.          Company
Representations. The Company hereby represents and warrants to
Executive that (a) the execution, delivery and performance of this Agreement by
the Company does not and will not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to
which Company is a party or by which it is bound, and (b) upon the execution
and delivery of this Agreement by Executive, this Agreement shall be the valid
and binding obligation of the Company, enforceable in accordance with its
terms.


 


20.          Severability
and Modification. If any provision of this Agreement shall be held or
declared to be illegal, invalid or unenforceable, such illegal, invalid or
unenforceable provision shall not affect any other provision of this Agreement,
and the remainder of this Agreement shall continue in full force and effect as
though such provision had not been contained in this Agreement. If the scope of
any provision in this Agreement is found to be broad to permit enforcement of
such provision to its full extent, Executive consents to judicial modification
of such provision and enforcement to the maximum extent permitted by law.


 


21.          Notices.
Except as otherwise expressly set forth in this Agreement, all notices,
requests and other communications to be given or delivered under or by reason
of the provisions of this Agreement shall be in writing and shall be given
(and, except as otherwise provided in this Agreement, shall be deemed to have
been duly given if so given) when delivered if given in 


 


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person or by telegram, three days after being mailed by first class
registered or certified mail, return receipt requested, postage prepaid, or one
day after being sent prepaid via reputable overnight courier to the parties at
the following addresses (or such other address as shall be furnished in writing
by like notice; provided, however, that notice of change of
address shall be effective only upon receipt):


 


Notices to Executive


 


Martin Batt


c/o Tapestry Pharmaceuticals, Inc.


4840 Pearl East Circle, Suite 300W


Boulder, Colorado 80301


 


Notices to Company


 


Tapestry Pharmaceuticals, Inc.


4840 Pearl East Circle, Suite 300W


Boulder, Colorado 80301


Attn VP, General Counsel


 


22.           Entire Agreement. This Agreement
contains the entire agreement between parties with respect to the subject
matter hereof and supersedes any previous understandings or agreements, whether
written or oral, regarding such subject matter.


 


23.           Governing Law. All questions concerning
the construction, validity and interpretations of this Agreement will be
governed by the internal law, and not the law of conflicts, of the State of
Colorado.


 


24.           Survival. Paragraphs 6, 9, 10, 11, 12,
13, 14 and 16 and any other provision of this Agreement which by its terms
could survive termination of Executive’s employment shall survive and continue
in full force in accordance with their terms notwithstanding any termination of
employment of the Executive.


 


25.           Counterparts. This Agreement may be
executed in separate counterparts, each of which is deemed to be an original
and all of which taken together constitute one and the same agreement.


 


26.           Successors and Assigns. This Agreement
is intended to bind and inure to the benefit of and be enforceable by
Executive, the Company and their respective successors and assigns; provided
that in no event shall Executive’s obligations under this Agreement be
delegated or transferred by Executive, nor shall Executive’s rights be subject
to encumbrance or to the claims of Executive’s creditors. This Agreement is for
the sole benefit of the parties hereto and shall not create any rights in third
parties other than Executive’s spouse or beneficiary as expressly set forth
herein.


 


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27.           Remedies. Except as otherwise provided
in this Agreement, (i) each of the parties to this Agreement will be entitled
to enforce its rights under this Agreement specifically, to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights to which it may be entitled and (ii) disputes under this Agreement
not finally resolved in writing by the parties within sixty days after one
party gives notice in good faith to the other party that a bona fide dispute
exists shall be resolved pursuant to binding arbitration conducted in Denver,
Colorado in accordance with the rules of the American Arbitration Association.
The prevailing party in any such arbitration shall be entitled to have its
costs and expenses (including reasonable attorney’s fees and expenses) relating
to such arbitration paid by the other party if the arbitrator(s) conducting
such arbitration so determine. Notwithstanding the foregoing, the parties agree
and acknowledge that money damages may not be an adequate remedy for breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction for specific
performance and/or injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement. The prevailing party in any
suit shall be entitled to recover reasonable attorneys fees and costs from the
other party.


 


28.           Modifications and Waivers. No provision
of this Agreement may be modified, altered or amended except by an instrument
in writing executed by the parties hereto. No waiver by either party hereto of
any breach by the other party hereto of any term or provision of this Agreement
to be performed by such other party shall be deemed a waiver of similar or
dissimilar terms or provisions at the time or at any prior or subsequent time.


 


29.           Headings. The headings contained herein
are solely for the purpose of reference, are not part of this Agreement and
shall not in any way affect the meaning or interpretation of this Agreement.


 


30.           Notification of Subsequent Employer.
Executive agrees that the Company may present a copy of this Agreement to any
third party.


 


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31.           UNDERSTAND AGREEMENT. EXECUTIVE
REPRESENTS AND WARRANTS THAT (a) EXECUTIVE HAS READ AND UNDERSTOOD EACH AND
EVERY PROVISION OF THIS AGREEMENT, (b) EXECUTIVE HAS HAD THE OPPORTUNITY TO
OBTAIN ADVICE FROM LEGAL COUNSEL OF EXECUTIVE’S CHOICE, OTHER THAN COUNSEL TO
THE COMPANY (WHO IS NOT REPRESENTING THE EXECUTIVE), IN ORDER TO INTERPRET ANY
AND ALL PROVISIONS OF THIS AGREEMENT, (c) EXECUTIVE HAS HAD THE OPPORTUNITY TO
ASK THE COMPANY QUESTIONS ABOUT THIS AGREEMENT AND ANY OF SUCH QUESTIONS
EXECUTIVE HAS ASKED HAVE BEEN ANSWERED TO EXECUTIVE’S SATISFACTION, AND (d)
EXECUTIVE HAS BEEN GIVEN A COPY OF THIS AGREEMENT.


 


IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed on the day and year first above
written.


 


	
   

  	
  EXECUTIVE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Martin Batt

  
	
   

  	
   

  
	
   

  	
  TAPESTRY PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Kai P. Larson

  
	
   

  	
   

  	
  Vice President, General Counsel

  
				



 


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