**Exhibit10.9**

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**EMPLOYMENT AGREEMENT**

 

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

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**RECITALS**

 

A.            WHEREAS, Executive iscurrently employed by the Company; and

 

B.            WHEREAS, the Companydesires to secure the continued services of Executive as an employee of theCompany, and to provide for certain compensation and benefit arrangements forExecutive in the event of Executive’s termination of employment under certaincircumstances, and Executive is willing to enter into this Agreement andperform such services.

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**TERMS AND CONDITIONS**

 

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

 

1.             **Employment Services.** The Company herebyagrees to engage Executive, and Executive hereby agrees to perform services forthe Company, on the terms and conditions set forth in this Agreement. TheCompany and Executive agree that Executive will serve as an executive officerof the Company in the position of Senior Vice President, Chief OperatingOfficer, or will have such other executive title and such other executiveduties, responsibilities and authority as Executive and the Company may agreeupon from time to time.  Executive willperform such services of an executive and administrative character to theCompany and its present or future Subsidiaries consistent with the duties ofthe Company’s other executive officers, as the Company’s Board of Directors(the “Board”) may from time to time direct (the “Employment Services”) or theBylaws of the Company may provide.

 

2.             **At-WillEmployment.**  **The Companyhereby agrees that it shall not terminate or alter Executive’s employment statussuch that Executive is no longer eligible to receive Company benefits without Causeprior to April 15, 2006.  After April 15,2006, i****t is understood and agreedby the Company and Executive that this Agreement does not contain any promiseor representation concerning the duration of Executive’s employment with theCompany. Executive specifically acknowledges that his employment with theCompany is at-will and may be altered or terminated by either Executive or theCompany at any time, with or without cause and/or with or without notice.  The nature, terms or conditions of Executive’semployment 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, anybonuses, paid time off, other compensation, or vesting schedules are stated inunits of years or months or weeks does not alter the at-will nature of theemployment, and does not mean and should not be interpreted to mean thatExecutive is guaranteed employment to the end of any period of time or for anyperiod of time**. **In the event of**

 

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

 

3.             **Performance.**

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**(a)**           Executiveshall report to the Chief Executive Officer (or person acting in a similarcapacity if the Company has no Chief Executive Officer), and Executive shalldevote his best efforts and his full business time and attention to thebusiness of the Company and its Subsidiaries; provided, however, that uponprior agreement by the Chief Executive Officer, and subject to the terms ofthis Agreement, Executive may engage in independent activities in areasunrelated to the Company’s business or the Company’s actual or demonstrablyanticipated business; and provided, further, that no such independentactivities shall materially detract from the essentially full time commitmentof Executive to the business and affairs of the Company. Executive shallperform his duties and responsibilities to the best of his abilities in adiligent, trustworthy, businesslike and professional manner.

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**(b)**           Unlessthe Company and Executive otherwise agree, Executive shall perform theEmployment Services at the Company’s executive offices and traveling onbusiness as Executive and the Company shall reasonably deem necessary.

 

4.             **Compensation.**

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**(a)****          **TheCompany will pay Executive for the Employment Services a base salary (the “BaseSalary”) 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 noCompensation Committee at the time, then the Board), in its discretion, mayaward to Executive.  Payment of the BaseSalary shall be subject to the customary withholding tax and other employmenttaxes as required with respect to compensation paid by a corporation to anemployee, and such salary to be paid at such periods as salary is paid to otherexecutive officers of the Company.

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

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**(c)**           TheExecutive may receive such stock options (if any) during his employment asdetermined from time to time by the Compensation Committee (or if the Board hasno Compensation Committee at the time, then the Board).

 

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

 

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6.             **Benefits.** Executive shall be entitledto those fringe benefits offered by the Company to all employees and toparticipate in the Company’s employee benefit programs available to otheremployees of the Company.  During the Executive’semployment, Executive shall be entitled to eight weeks of paid vacation inaccordance with the Company’s policies.

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

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**(a)****           Terminationby Death or Disability.**  Subject toapplicable state or federal law, in the event that Executive shall die duringhis employment hereunder or become permanently disabled, as evidenced by noticeto the Company and Executive’s inability to carry out his job responsibilitiesfor a continuous period of more than six months, Executive’s employment and theCompany’s obligation to make payments hereunder shall terminate on the date ofhis death, or the date upon which, in the sole determination of the Board ofDirectors, Executive has become permanently disabled, except the the Companyshall pay Executive any salary earned but unpaid prior to termination, anybenefits accrued prior to termination, all accrued but unused personal time,and any business expenses that were incurred but not reimbursed as of the dateof termination. Vesting of any stock options granted to Executive shall ceaseon the date of such termination.

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**(b)****           VoluntaryResignation by Executive.**  In theevent that Executive voluntarily terminates his employment with the Company,the Company’s obligation to make payments hereunder shall cease upon suchtermination, except the Company shall pay Executive any salary earned butunpaid prior to termination, any benefits accrued prior to termination, allaccrued but unused personal time, and any business expenses that were incurredbut not reimbursed as of the date of termination.  Vesting of any stock options granted toExecutive shall cease on the date of such termination.

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

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

 

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obligations under the Proprietary InformationAgreement, then the Company shall make the following payments to Executive 195days 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 bewithheld: (i) 100% of Executive’s then effective Base Salary;  and (ii) a lump sum amount in cash equal toany accrued but unpaid salary through the date of termination and unpaid salarywith respect to any vacation days accrued but not taken as of termination. TheCompany shall reimburse Executive for payments made by Executive underC.O.B.R.A. for extension of health insurance coverage until the first to occurof (x) the date of Executive’s re-employment and subsequent opportunity toparticipate in any health insurance program, (y) eighteen months after suchtermination date, or (z) Executive becomes eligible to participate inMedicare/Medicaid.  Any stock options orother equity awards which are not vested as of the date of termination shallvest immediately upon the Termination Date.

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**(e)****           Definition of “Cause.” **For purposes of this Agreement, “Cause”shall mean (i) the conviction (or plea of nolo contendere) of a felony or acrime involving moral turpitude or the commission of any other act which has anadverse effect on the Company and which involves dishonesty, disloyalty orfraud with respect to the Company or any of its Subsidiaries, or (ii) conductbringing the Company or any of its Subsidiaries into substantial publicdisgrace or disrepute, including, without limitation, such conduct resultingfrom repeated acts of alcohol or drug abuse, or (iii) continued failure byExecutive to substantially perform his duties as reasonably directed by theBoard after the Board has made a written demand for substantial performancewhich specifically identifies the manner in which the Board believes thatExecutive has not substantially performed his duties, or (iv) gross negligenceor misconduct not in good faith with respect to the Company or any of itsSubsidiaries that materially and adversely affects the Company, or (v) anyother material breach of this Agreement which, if in the sole determination ofthe Board is curable,  is not curedwithin 15 days after Executive’s receipt of written notice thereof.

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**(f)****            Definitionof “Good Reason.” **For purposes ofthis Agreement, “Good Reason” shall mean termination by Executive (i) within 90days after Executive has been assigned, without Executive’s consent, to anyduties substantially inconsistent with Executive’s position, duties,responsibilities or status with the Company as contemplated in Paragraph 1 ofthis Agreement; (ii) if Executive is required to regularly perform the dutiesof 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 curedwithin 30 days after the Company’s receipt of written notice thereof. Executiveshall provide written notice to the Company of any and all grounds thatExecutive alleges constitute “Good Reason” and the Company shall have 30 daysafter receipt of such written notice to cure any such alleged grounds for “GoodReason”..

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**(g)**          Withinseven months following any termination of the Employment Period, and as of thatdate, the Company will notify Executive of the itemized and aggregate cashvalue of the payments and benefits, as determined under Section 280G of theInternal Revenue Code (the “Code”), received or to be received by Executive inconnection with the termination of Executive’s employment (whether payablepursuant to the terms of this Agreement or otherwise). At the same time, theCompany shall advise Executive of the portion of such payments or benefitswhich constitute parachute payments within the meaning of the Code and whichmay subject Executive to the payment of excise taxes pursuant to Section 4999 

 

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

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**(h)**           If all or any portion of the payments or benefits provided under this Agreementeither alone or together with other payments or benefits which Executive hasreceived or is then entitled to receive from the Company and any of itsSubsidiaries would constitute Parachute Payments, such payments or benefitsprovided to Executive pursuant to this Agreement shall be reduced to the extentnecessary so that no portion thereof shall be subject to the excise tax imposedby 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 ifsuch 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) allother payments and benefits which Executive has received or is then entitled toreceive from the Company and any of its subsidiaries that would constitute aParachute Payment, less (iii) the amount of federal income taxes payable withrespect to the payment and benefits described in (i) and (ii) above calculatedat the maximum marginal income tax rate for each year in which such paymentsand benefits shall be paid to Executive (based upon the rate in effect for suchyear as set forth in the Code at the Termination Date), less (iv) the amount ofexcise 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’sbase amount, the present value of the Parachute Payments, the amount of theexcise tax and all other appropriate matters shall be determined by the Company’sindependent auditors in accordance with the principles of Section 280G of theCode and based upon the advice of tax counsel selected by the Company, whichtax counsel shall be reasonably satisfactory to Executive, provided, however,that the applicable federal rate used for the purposes of calculating thepresent value of the Parachute Payments shall be the federal rate in effect onthe date of this Agreement.

 

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

 

9.             **Non-disclosure of Confidential Information.**

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

 

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

 

10.           **Company Ownership of Intellectual Property.** Executive hereby assigns to the Companyall right, title and interest in and to all Intellectual Property (as definedin Paragraph 17) contributed to or conceived or made by Executive during theEmployment Period and prior to the Employment Period during the periodExecutive was employed by or engaged in research or development activities foror with the Company or its predecessors and affiliates (whether alone orjointly with others) to the extent such Intellectual Property is not owned bythe Company as a matter of law. Executive shall promptly and fully communicateto the Company all Intellectual Property conceived, contributed to or made byExecutive and shall cooperate with the Company to protect the Company’sinterests in such Intellectual Property including, without limitation,providing assistance in securing patent protection and copyright registrationsand signing all documents reasonably requested by the Company, even if suchrequest occurs after Executive’s employment has terminated. The Company shallpay Executive’s reasonable expenses of cooperating with the Company inprotecting the Company’s interests in such Intellectual Property unless thesubject matter of the requested cooperation is related to actions taken orfailed to be taken by Executive wrongfully or otherwise not in good faith.

 

11.           **Executive’s Rights.** Paragraph 10 ofthis Agreement does not apply to an invention for which no equipment, supplies,facilities or trade secret information of the Company was used and which wasdeveloped 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 ordemonstrably anticipated material research or development, or (b) the inventionresults from any work performed by Executive for the Company.

 

12.           **Return of Materials.** Upon terminationof Executive’s employment, regardless of reason,, or at any time reasonablerequested by the Company, Executive shall promptly deliver to the Company allcopies of Confidential Information in Executive’s possession and control,including written records, manuals, lab notebooks, customer and supplier listsand all other materials containing any Confidential Information. If the Companyrequests, Executive shall provide written confirmation that Executive hasreturned all such materials. Subject to the provisions of this Agreement,including, without limitation, Paragraph 11, notwithstanding anything in thisAgreement to the contrary, upon termination of employment, the Company, atExecutive’s request, shall promptly return to Executive any equipment or othermaterials owned by Executive then being used by or then in the possession ofthe Company.

 

13.           **Non-Competition.** Executive acknowledgesand agrees that Executive is considered to be part of the professional, managerialand executive staff of the Company whose duties include the formulation andexecution of management policy, and that in the course of Executive’s duties,Executive is permitted access to Intellectual Property, which includes, amongother things, trade secrets of the Company that the Company seeks to protectfrom dissemination and disclosure. Executive acknowledges and agrees thatduring Executive’s employment and for a period of one year thereafter (the “Non-competePeriod”), Executive will not, without the prior 

 

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written consent of the Company, directly or indirectly, provideproducts or services substantially similar to the Employment Services to anybusiness or entity that provides or offers or demonstrably plans to provide oroffer, products or services that (i) are the same as or substantially similarto the products or services provided by the Company at any time during hisemployment with the Company, (ii) relate to the Company’s Intellectual Property(whether the Company acquired such Intellectual Property pursuant to thisAgreement or otherwise), or (iii) relate to any subject matter of the Company’sactual or demonstrably anticipated material research and development during Executive’semployment with the Company, including without limitation, paclitaxel, taxanesand any other compounds, within any geographical area in which the Company orany of its subsidiaries provide or plan to provide such products or services.

 

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

 

15.           **Acknowledgment of Reasonableness.**Executive acknowledges and agrees that the limitations set forth in Paragraphs13 and 14 are reasonable with respect to scope, duration and geographic areaand are properly required for the protection of the legitimate businessinterest of the Company.

 

16.           **Further Assistance.** During theNon-compete Period, Executive will not make any disclosure or othercommunication to any person, issue any public statements or otherwise cause tobe disclosed any information which is designed, intended or might reasonably beanticipated to discourage any persons from doing business with the Company orotherwise have a negative impact or adverse effect on the Company, except tothe extent such disclosure is required by law. During the Non-compete Period,Executive will provide assistance reasonably requested by the Company inconnection with actions taken by Executive during the his employment with theCompany, including but not limited to assistance in connection with anylawsuits or other claims against the Company arising from events during the Executive’semployment with the Company, provided that the Company shall reimburse allreasonable expenses (including without limitation, reasonable loss ofcompensation from other sources resulting from such assistance during normalbusiness hours).

 

17.           **Certain Definitions.**

 

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

 

“Confidential Information” means allinformation (whether or not specifically labeled or identified asconfidential), in any form or medium, that is disclosed to, or developed orlearned by Executive during the Employment Period and prior to the EmploymentPeriod during the period Executive was employed by or engaged in research ordevelopment activities for or with the Company or its predecessors andaffiliates or that relates to the business, products, 

 

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

 

“Intellectual Property” means any idea,invention, design, development, device, method or process (whether or notpatentable or reduced to practice or including Confidential Information) andall related patents and patent applications, any copyrightable work or maskwork (whether or not including Confidential Information) and all relatedregistrations and applications for registration, and all other proprietaryrights.

 

“Subsidiaries” means any corporationof which the securities having a majority of the voting power in electingdirectors are, at the time of determination, owned by the Company, directly orthrough one of more Subsidiaries.

 

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

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**19.****          CompanyRepresentations.** The Company hereby represents and warrants toExecutive that (a) the execution, delivery and performance of this Agreement bythe Company does not and will not conflict with, breach, violate or cause adefault under any contract, agreement, instrument, order, judgment or decree towhich Company is a party or by which it is bound, and (b) upon the executionand delivery of this Agreement by Executive, this Agreement shall be the validand binding obligation of the Company, enforceable in accordance with itsterms.

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**20.****          Severabilityand Modification**. If any provision of this Agreement shall be held ordeclared to be illegal, invalid or unenforceable, such illegal, invalid orunenforceable provision shall not affect any other provision of this Agreement,and the remainder of this Agreement shall continue in full force and effect asthough such provision had not been contained in this Agreement. If the scope ofany provision in this Agreement is found to be broad to permit enforcement ofsuch provision to its full extent, Executive consents to judicial modificationof 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 reasonof 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 havebeen 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 classregistered or certified mail, return receipt requested, postage prepaid, or oneday after being sent prepaid via reputable overnight courier to the parties atthe following addresses (or such other address as shall be furnished in writingby like notice; provided, however, that notice of change ofaddress 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 Agreementcontains the entire agreement between parties with respect to the subjectmatter hereof and supersedes any previous understandings or agreements, whetherwritten or oral, regarding such subject matter.

 

23.           **Governing Law.** All questions concerningthe construction, validity and interpretations of this Agreement will begoverned by the internal law, and not the law of conflicts, of the State ofColorado.

 

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

 

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

 

26.           **Successors and Assigns.** This Agreementis intended to bind and inure to the benefit of and be enforceable byExecutive, the Company and their respective successors and assigns; providedthat in no event shall Executive’s obligations under this Agreement bedelegated or transferred by Executive, nor shall Executive’s rights be subjectto encumbrance or to the claims of Executive’s creditors. This Agreement is forthe sole benefit of the parties hereto and shall not create any rights in thirdparties other than Executive’s spouse or beneficiary as expressly set forthherein.

 

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27.           **Remedies.** Except as otherwise providedin this Agreement, (i) each of the parties to this Agreement will be entitledto enforce its rights under this Agreement specifically, to recover damages byreason of any breach of any provision of this Agreement and to exercise allother rights to which it may be entitled and (ii) disputes under this Agreementnot finally resolved in writing by the parties within sixty days after oneparty gives notice in good faith to the other party that a bona fide disputeexists 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 itscosts and expenses (including reasonable attorney’s fees and expenses) relatingto such arbitration paid by the other party if the arbitrator(s) conductingsuch arbitration so determine. Notwithstanding the foregoing, the parties agreeand acknowledge that money damages may not be an adequate remedy for breach ofthe provisions of this Agreement and that any party may in its sole discretionapply to any court of law or equity of competent jurisdiction for specificperformance and/or injunctive relief in order to enforce or prevent anyviolations of the provisions of this Agreement. The prevailing party in anysuit shall be entitled to recover reasonable attorneys fees and costs from theother party.

 

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

 

29.           **Headings.** The headings contained hereinare solely for the purpose of reference, are not part of this Agreement andshall 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 anythird party.

 

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31.           **UNDERSTAND AGREEMENT.** EXECUTIVEREPRESENTS AND WARRANTS THAT (a) EXECUTIVE HAS READ AND UNDERSTOOD EACH ANDEVERY PROVISION OF THIS AGREEMENT, (b) EXECUTIVE HAS HAD THE OPPORTUNITY TOOBTAIN ADVICE FROM LEGAL COUNSEL OF EXECUTIVE’S CHOICE, OTHER THAN COUNSEL TOTHE COMPANY (WHO IS NOT REPRESENTING THE EXECUTIVE), IN ORDER TO INTERPRET ANYAND ALL PROVISIONS OF THIS AGREEMENT, (c) EXECUTIVE HAS HAD THE OPPORTUNITY TOASK THE COMPANY QUESTIONS ABOUT THIS AGREEMENT AND ANY OF SUCH QUESTIONSEXECUTIVE 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 havecaused this Agreement to be duly executed on the day and year first abovewritten.

 
|   | EXECUTIVE                      |                            |
|--------|--------------------------------|---------------------------------|
|   |                           |                            |
|   |                           |                            |
|   |                           |                            |
|   | Martin Batt                    |
|   |                           |
|   | TAPESTRY PHARMACEUTICALS, INC. |
|   |                           |
|   |                           |
|   | By:                            |                            |   |
|   |                           | Kai P. Larson                   |
|   |                           | Vice President, General Counsel |
|        |                                |                                 |  |

 

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