Exhibit 10.1
SUPERGEN, INC.
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AND CONFIDENTIAL INFORMATION AND INVENTION
ASSIGNMENT AGREEMENT
This Amended and Restated Executive Employment and Confidential Information and
Invention Assignment Agreement (the "Agreement") is made and entered into as of
October 28, 2008 (the "Effective Date") by and between SuperGen, Inc., a
Delaware corporation (the "Company"), and James S. Manuso ("Executive").
RECITALS
WHEREAS, the Company and Executive previously entered into an Executive
Employment and Confidential Information and Invention Assignment Agreement (the
"Original Agreement") dated January 1, 2007 (the "Original Effective Date")
establishing the terms on which the Company will employ Executive as its
President and Chief Executive Officer; and
WHEREAS, the Company and Executive desire to amend and restate the Original
Agreement to bring it into compliance with Section 409A of the Internal Revenue
Code of 1986, as amended, and any regulations or other guidance promulgated
thereunder ("Section 409A").
NOW, THEREFORE, in consideration of the premises and mutual promises, covenants,
and conditions contained herein, the Company and Executive agree on the terms
and conditions set forth herein as follows:
AGREEMENT
1.
TERM.
THE COMPANY HEREBY AGREES TO CONTINUE TO EMPLOY EXECUTIVE AND
EXECUTIVE HEREBY ACCEPTS CONTINUED EMPLOYMENT, ON THE TERMS AND CONDITIONS SET
FORTH HEREIN.
THE TERM OF THIS AGREEMENT SHALL COMMENCE UPON THE EFFECTIVE DATE
AND SHALL CONTINUE UNTIL AND INCLUDING DECEMBER 31, 2009.
2.
POSITIONS AND DUTIES.
EXECUTIVE AGREES TO CONTINUE TO SERVE THE COMPANY
AS ITS PRESIDENT AND CHIEF EXECUTIVE OFFICER OR IN SUCH OTHER EXECUTIVE CAPACITY
AS THE BOARD MAY FROM TIME TO TIME REQUEST.
DURING THE TERM OF THIS AGREEMENT,
EXECUTIVE WILL HAVE ALL DUTIES AND RESPONSIBILITIES THAT ARE REASONABLY
CONSISTENT WITH THESE TITLES AND POSITIONS AND WILL DEVOTE ALL OF HIS NORMAL
BUSINESS TIME AND ATTENTION TO, AND USE HIS BEST EFFORTS TO ADVANCE, THE
BUSINESS OF THE COMPANY.
EXECUTIVE AGREES NOT TO ACTIVELY ENGAGE IN ANY OTHER
EMPLOYMENT, OCCUPATION OR CONSULTING ACTIVITY FOR ANY DIRECT OR INDIRECT
REMUNERATION WITHOUT THE PRIOR APPROVAL OF THE BOARD OF DIRECTORS (THE "BOARD"),
EXCEPT THAT WITHOUT THE PRIOR APPROVAL, EXECUTIVE MAY SERVE ON THE BOARD OF
DIRECTORS OF OTHER COMPANIES IF IN SO DOING EXECUTIVE DOES NOT VIOLATE THE TERMS
OF THIS AGREEMENT.
3.
CONFIDENTIAL INFORMATION.
3.1
COMPANY INFORMATION.
EXECUTIVE AGREES AT ALL TIMES DURING THE TERM OF HIS
EMPLOYMENT AND THEREAFTER, TO HOLD IN THE STRICTEST CONFIDENCE, AND NOT TO USE,
EXCEPT FOR THE BENEFIT OF THE COMPANY, OR TO DISCLOSE TO ANY PERSON, FIRM OR
CORPORATION WITHOUT WRITTEN AUTHORIZATION OF THE BOARD, ANY CONFIDENTIAL
INFORMATION OF THE COMPANY, EXCEPT UNDER A NON-DISCLOSURE AGREEMENT DULY
AUTHORIZED AND EXECUTED BY THE COMPANY.
EXECUTIVE UNDERSTANDS THAT
"CONFIDENTIAL INFORMATION" MEANS ANY NON-PUBLIC INFORMATION THAT RELATES TO THE
ACTUAL OR ANTICIPATED BUSINESS OR RESEARCH AND DEVELOPMENT OF THE COMPANY,
TECHNICAL DATA, TRADE SECRETS OR KNOW-HOW, INCLUDING, BUT NOT LIMITED TO,
RESEARCH, PRODUCT PLANS OR OTHER INFORMATION REGARDING COMPANY'S PRODUCTS OR
SERVICES AND MARKETS THEREFORE, CUSTOMER LISTS AND CUSTOMERS (INCLUDING, BUT NOT
LIMITED TO, CUSTOMERS OF THE COMPANY ON WHOM EXECUTIVE CALLED