FORM 10-K405/A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the year ended December 31, 1995
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission file number: 0-15070
Alpha 1 Biomedicals, Inc.
(Exact name of registrant as specified in its charter)
Delaware 52-1253406
(State or other jurisdiction of (I.R.S.Employer Identification Number)
incorporation or organization)
6707 Democracy Blvd., Suite 111
Bethesda, Maryland 20817
(Address of principal executive offices including zip code)
Registrant's telephone number, including area code:
(301) 564-4400
Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange on
Title of each class which registered
None N/A
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $.001 par value (Title of Class)
Class C Warrants (Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days.
Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be
contained, to the best of the registrant's knowledge, in definitive
proxy or information statements incorporated by reference in Part III of
this Form 10-K or any amendment to this Form 10-K. [x]
The approximate aggregate market value of voting stock held by
nonaffiliates of the registrant is $3,780,000 as of March 26,
1996. *
The number of shares of registrant's Common Stock outstanding as of
March 26, 1996: 8,977,429
Documents Incorporated by Reference
Document Form 10-K Part(s)
None
*The number of shares held by nonaffiliates was determined by
excluding from the number of shares outstanding 336,724 shares of
Common Stock held by directors and officers outstanding at March
26, 1996. Exclusion of shares held by any person should not be
construed to indicate that such person possesses the power,
directly or indirectly, to direct or cause the direction of
management and policies of the registrant, or that such person
controls, is controlled by or is under common control with the
registrant.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Registrant has duly caused
this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
ALPHA 1 BIOMEDICALS, INC.
(Registrant)
By: /s/ Michael L. Berman
Michael L. Berman
President and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of
the registrant and in the capacities and on the dates indicated:
Signature Title Date
/s/ Michael L. Berman President and Chief Executive
Michael L. Berman Officer
(Principal Executive Officer)
June 4, 1996
EXHIBIT 10.23
EMPLOYMENT AGREEMENT
This Agreement, dated as of this 1st day of February,
1995, is entered into by and between Alpha 1 Biomedicals, Inc., a
Delaware corporation having offices at 6903 Rockledge Drive,
Suite 1200, Bethesda, Maryland 20817 ("Alpha") and Robert J.
Lanham, an individual residing at 2014 Gunnell Farms Drive,
Vienna, Virginia 22181 ("Mr. Lanham").
WHEREAS, Mr. Lanham has experience in the operation and
administration of businesses and in financial matters related
thereto;
WHEREAS, Alpha wishes to continue to employ Mr. Lanham
as Vice President and Chief Finance Officer, and Mr. Lanham
wishes to continue in this capacity.
NOW, THEREFORE, The parties hereto, intending to be
legally bound, agree as follows:
1. Engagement. Alpha hereby employs Mr. Lanham as
Vice President and Chief Finance Officer, and Mr. Lanham hereby
accepts such employment, pursuant to the terms and conditions
hereinafter set forth.
2. Term. This Agreement is for a one year term
commencing on the date hereof.
3. Duties. During the term of this Agreement and in
accordance with the Bylaws of Alpha, the services to be performed
by Mr. Lanham shall be as Vice President and Chief Finance
Officer of Alpha. Mr. Lanham shall use his best efforts and
shall act in good faith in performing all duties required to be
rendered under this Agreement.
4. Availability. Mr. Lanham shall devote his entire
working time, attention and energies to the affairs of Alpha, and
shall not during the term of this Agreement be engaged in any
other business activities whether or not such business activity
is pursued for gain, profit or other pecuniary advantage, without
the express written concurrence of Alpha.
5. Expenses. Alpha shall reimburse Mr. Lanham
promptly upon the presentation of itemized vouchers for all
ordinary and necessary business expenses incurred by him in the
performance of his duties hereunder.
6. Compensation. As compensation for the services to
be rendered by Mr. Lanham, Alpha agrees to pay him at the annual
salary of $115,000, payable in bi-weekly installments as well as
such other compensation, including bonuses, that Alpha may
approve from time to time. Salary and any other payments shall
be subject to withholding and other applicable taxes. Mr. Lanham
shall be entitled to participate in all employee benefits and
insurance programs as are made available to employees of Alpha
generally, however, as an exception to the general vacation
policy, he will receive four weeks vacation with pay per year.
7. Ownership of Material Information. All rights,
title and interest of every kind and nature whatsoever in and to
discoveries, inventions, improvements, patents (and applications
therefor), copyrights, ideas, know-how, laboratory notebooks,
creations, properties and all other proprietary rights arising
from or, in any way related to, Mr. Lanham's services hereunder
shall become and remain the exclusive property of the Company,
and he shall have no interest therein.
8. Trade Secrets. Mr. Lanham covenants and agrees
with Alpha that he will not during the term of this Agreement or
thereafter disclose to anyone (except to the extent reasonably
necessary for him to perform his duties hereunder) any
confidential information, including but not limited to list of
customers, financial or cost information, and confidential
scientific and clinical information concerning the business or
affairs of Alpha or any of its affiliates or subsidiaries, which
he may have acquired in the course of, or incident to, the
performance of his duties pursuant to the terms of this Agreement
or pursuant to any prior dealings with Alpha or with any of
Alpha's affiliates or subsidiaries. In the event of a breach of
threatened breach by Mr. Lanham of the provisions of this
paragraph, Alpha shall be entitled to an injunction restraining
him from disclosing, in whole or in part, such information of
from rendering any services to any person, firm, corporation,
association or other entity to whom such information has been
disclosed or is threatened to be disclosed. Nothing herein shall
be construed as prohibiting Alpha from pursuing any other
remedies available to it for such breach or threatened breach,
including the recovery of damages from Mr. Lanham.
9. Termination for Cause. Mr. Lanham's employment
hereunder may be terminated by Alpha in the event of any willful
or unlawful act or course of action by him during the term of
this Agreement which materially injures Alpha or any act which is
criminal in nature or affects adversely the reputation of Alpha
or its employees, unless such act is performed at the direction
of the Board. If Mr. Lanham's employment hereunder is so
terminated, it shall terminate immediately upon receipt of notice
of termination, and he shall be entitled to compensation only
through the date of such termination. Termination of him under
this Section 9 shall not terminate his obligations under Sections
7, 8, and 13 of this Agreement.
10. Termination Without Cause. Alpha may terminate
this Agreement without any cause at any time upon two (2) week's
written notice to Mr. Lanham. In that event, Mr. Lanham, if
requested by Alpha, may continue to perform his duties under this
Agreement and shall be paid his regular compensation up to the
date of termination. Termination of Mr. Lanham under this
Section 10 shall not terminate this obligations under Section 7
and 8 of this Agreement.
11. Resignation. Mr. Lanham may resign his employment
under this Agreement at any time. Such resignation by Mr. Lanham
shall not terminate his obligations under Section 7, 8 and 13 of
this Agreement.
12. Death or Disability. In the event of the death or
disability of Mr. Lanham during the term of this Agreement or any
renewal term thereto, Alpha shall continue to pay him or his
legal representative, as the case may be, compensation provided
hereunder for a period, from his death or a determination by
Alpha that his disability is such that he no longer can carry out
his duties under this Agreement, equal to one month's salary.
Disability for purpose of this Section 12 shall mean disability
as defined in the long term disability insurance policy in effect
at the time provided such policy exists, or inability to perform
duties for greater than a six (6) period.
13. Non-Competition. Following termination of
employment, other than without cause, Mr. Lanham will not for a
period of one year, without the consent of Alpha, directly or
indirectly, own manage, operate, control, be employed by,
participate in, or be connected in any manner with the ownership,
management, operation, or control of any business engaged in
research and development, production or sale of a thymic hormone
product, or any other specific product being developed, produced
or sold by Alpha at the time of such termination of employment.
In the event of his actual or threatened breach of the provisions
of this paragraph, Alpha shall be entitled to, and he hereby
consents to an injunction restraining him therefrom. However,
nothing herein shall be construed as prohibiting Alpha from
pursuing any other available remedies for such breach or
threatened breach, including the recovery of damages from him.
Mr. Lanham agrees that the provision of this Section 13 are
necessary and reasonable to protect Alpha in the conduct of its
business. If any restriction contained in this Section 13 shall
be deemed to be invalid or unenforceable by reason of the extent,
duration or geographic scope thereof, then Alpha shall have the
right to reduce such extent, duration, geographic scope or other
provisions thereof; and in their reduced form such restrictions
shall then be enforceable in the manner contemplated hereby.
14. Insurance. Alpha will obtain and maintain for the
benefit of Mr. Lanham, while he is employed under this Agreement,
an insurance policy with a value of $350,000 payable to the
estate of Mr. Lanham, provided that Alpha shall be bound by this
provision only to the extent that Alpha's annual cost of such
policy does not exceed $3,000. Mr. Lanham acknowledges that the
cost of this premium will be defined as income for the purpose of
reporting income as required by law.
15. Arbitration. Except as provided otherwise in this
Agreement, at the request of either party to this Agreement, all
disputes arising under or in connection with this Agreement may
be submitted to arbitration in Washington, D.C. under the rules
of the American Arbitration Association, and the decision of the
arbitrator shall be final and binding. Judgment upon the award
rendered may be entered and enforced in any court having
jurisdiction.
16. Construction. This Agreement shall be governed by
and construed in accordance with the laws of the State of
Maryland.
17. Completeness. This Agreement sets for all, and is
intended by all parties to be an integration of all, of the
promises, agreements and understandings among the parties hereto
with respect to the subject matter hereof, and there are no
promised, agreements or understandings, oral or written,
expressed or implied, among them other than set for or
incorporated by references herein.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement the day and year first above written.
ALPHA 1 BIOMEDICALS, INC.
/s/ Robert J. Lanham /s/ Michael L.Berman
Robert J. Lanham Michael L. Berman,
Ph.D.
President & CEO
EXHIBIT 10.24
ASSIGNMENT OF LEASE
This ASSIGNMENT OF LEASE (hereinafter "Assignment") is made on
March 22, 1995, between ALPHA 1 BIOMEDICALS, INC. (hereinafter
"Assignor"), whose address is Two Democracy Center, 6903
Rockledge Drive, Suite 1200, Bethesda, Maryland 20817, and SCIOS
NOVA INC. (hereinafter "Assignee"), whose address is 2450
Bayshore Parkway, Mountain View, California 94043, who agree as
follows:
1. Recitals. This Assignment is made with reference to the
following facts and objectives:
1.1 Assignor, as Tenant, entered into a written lease dated
January 22, 1993, and subsequent Amendment Nos. 1, 2 and 3
(collectively the "Master Lease," attached hereto as Exhibit A),
in which Landlord (John Arrillaga. Trustee, or his Successor
Trustee, UTA dated 7/20/77 [John Arrillaga Separate Property
Trust] as amended, and Richard T. Peery, Trustee, or his
Successor Trustee, UTA dated 7/20/77 [Richard T. Peery Separate
Property Trust] as amended, collectively the "Landlord") leased
to Assignor and Assignor leased from Landlord premises located in
the City of Sunnyvale, County of Santa Clara, State of California
("Premises"), described as follows:
a portion of that certain 51,680 square foot, one-story building
located at 820 West Maude Avenue, Suite 101, Sunnyvale,
California 94086, consisting of approximately 26,920 square feet
of space;
1.2 Assignor desires to assign all its right, title, and
interest in the Master Lease to Assignee.
2. Effective Date of Assignment. This Assignment shall take
effect on March 22, 1995, and Assignor shall give possession of
the Premises to Assignee on that date.
3. Assignment and assumption. Subject to the terms hereof and
to obtaining the consent of Landlord to this Assignment in the
form attached as Exhibit B. (the "Landlord's Consent"), Assignor
assigns and transfers to Assignee all its right, title, and
interest in the Master Lease, and Assignee accepts the assignment
and assumes and agrees to perform, from the date this Assignment
becomes effective, as a direct obligation to Landlord, all the
provisions of the Master Lease as modified by the Landlord's
Consent or this Assignment.
4. Hazardous Materials. Assignor represents and warrants that, to
the best of its knowledge and during the term of its occupancy:
(i) no hazardous waste or substance was stored, treated or
disposed of on the Premises, and that no underground tanks were
placed on the Premises; (ii) the Premises is in complete
compliance with all applicable statutes and regulations,
including environmental, health and safety requirements; (iii)
Assignor's business on the Premises disposed of its waste in
accordance with all applicable statutes, ordinances and
regulations; (iv) Assignor has had no notice of any pending or
threatened action or proceeding arising out of the condition of
the Premises or alleged violation of environmental, health or
safety statutes, ordinances or regulations; (v) no condition
exists which might threaten the ability of Assignee to acquire
all governmental permits required to operate a business similar
to the business of Assignor on the Premises. Assignor and
Assignee agree that in terms of allocating their responsibility
for Hazardous Materials under the Master Lease (including Section
48), Assignor shall remain responsible for all Hazardous
Materials conditions relating to the Premises existing as of the
Effective Date, and that Assignee shall be responsible only for
changes in the hazardous materials condition of the Premises
which result from the operations of Assignee after the Effective
Date of this Assignment.
5. Tenant Improvements; Furniture, Fixtures and Equipment. In
exchange for
$100,000.00 consideration to be paid to Assignor by Assignee upon
commencement of and as a precondition to the assignment term,
Assignor assigns and transfers to Assignee all its right, title
and interest in all existing tenant improvements in the Premises,
in their as-is condition, plus the list of existing furniture,
fixtures and equipment listed on attached Exhibit C.
6. Assignee to Hold Assignor Harmless. Subject to Sections 3
and 4, if Assignee defaults in its obligations under the Master
Lease as modified by this Assignment or the Landlord's Consent
and Assignor in its sole discretion pays rent to Landlord or
fulfills any of Assignee's other obligations in order to prevent
Assignee from being in default, Assignee immediately shall
reimburse Assignor for the amount of rent or costs incurred by
Assignor in fulfilling Assignee's obligations under this
Assignment, together with interest on those sums at the rate of
10% per annum. Assignor and Assignee shall each indemnify and
hold harmless the other and its employees, representatives,
directors, officers and agents (collectively "Agents"), against
and from any and all losses, claims, liabilities, judgments,
costs, demands, causes of action, and expenses (including,
without limitation, reasonable attorneys' fees and consultants'
fees) (collectively "Claims") arising from or related to the
following: (a) each such party's use of the Premises or from any
activity done, permitted or suffered by such party in, on or
about the Premises, the Building, or the Property; (b) any act or
omission by such party and/or their respective Agents in
connection with or related to this Assignment, the Building, or
the Property; (c) any breach or default of such party in the
terms of this Assignment; and (d) any action or proceeding
brought by Landlord pursuant to the parties' joint and several
indemnification of Landlord pursuant to Section 5 of the
Landlord's Consent arising as a result of the foregoing. If any
action or proceeding is brought against a party for which it is
entitled to be indemnified hereunder, (the "Indemnified Party"),
upon notice from the other party (the "Indemnifying Party"), the
Indemnifying Party shall defend the same at such party's expense
with counsel reasonably satisfactory to the Indemnified Party.
The obligations of Assignor and Assignee under this Section 6
shall survive any termination of the Assignment or the Master
Lease.
7. Default of Lease; Notice to Assignor
7.1 Notice to Assignor. If Assignee or Assignor receives a
notice of default
from Landlord, each shall promptly send a copy to the other.
7.2 Assignor's Remedies Against Assignee. If Assignee defaults
under the Master Lease as modified by this Assignment or the
Landlord's Consent, Assignor shall have the rights against
Assignee that are available by law and those contained in the
Master Lease, including, without limitation, Assignor's right to
reenter and retake possession of the Premises from Assignee.
8. Prepaid Rent: Security Deposit; Brokers: Prorations;
Removal.
8.1 Prepaid Rent: Security Deposit. The parties acknowledge
that Landlord now holds the sum of $67,300.00 as a Security
Deposit, to be applied subject to the provisions of the Master
Lease. Upon commencement of and as a precondition to the
assignment term, Assignee shall reimburse Assignor in said amount
of $67,300.00 for the existing Security Deposit paid under the
terms of the Master Lease. Assignor releases all claims to that
sum currently held by Landlord, and the sum shall be held by
Landlord for the benefit of Assignee, subject to the provisions
of the Master Lease.
8.2 Brokers. Assignor shall be responsible for all compensation
of all brokers relating to this Assignment transaction,
specifically including Comish & Carey, Catalyst Group and
Northbridge Group.
8.3 Prorations. Property taxes, property insurance and any
other expenses billed by Landlord under the Master Lease shall be
prorated between Assignor and Assignee as of the Effective Date.
8.4 Removal of Property. Not later than March 21, 1995,
Assignor shall remove from the Premises the items of personal
property listed on Exhibit D.
9. Insurance. Assignee shall carry insurance per the Master
Lease and name Assignor as an additional insured. Assignee shall,
within 10 days of the execution hereof, provide Landlord with a
certificate of insurance from its insurer which confirms that the
insurance coverage required to be carried by Tenant under the
Master Lease is in full force and effect.
10. Miscellaneous.
10.1 Attorneys' Fees. If either party commences an action
against the other party arising out of or in connection with this
Assignment, the prevailing party shall be entitled to recover
from the losing party reasonable attorneys' fees and costs of
suit.
10.2 Notice. Any notice, demand, request, consent, approval, or
communication that either party desires or is required to give to
the other party shall be in writing and either be served
personally or sent by registered or certified prepaid, first-
class mail. Any notice, demand, request, consent, approval, or
communication that either party desires or is required to give to
the other party shall be addressed to the other party at the
address set forth in the introductory paragraph of this
Agreement. Either party may change its address by notifying the
other party of the change of address. Notice shall be deemed
communicated upon receipt if mailed as provided in this
paragraph.
10.3 Successors. This Assignment shall be binding on and inure
to the benefit of the parties and their successors.
10.4 Governing Laws. This Assignment shall be interpreted and
governed by the laws of the state of California as applied to
contracts between residents of California that is to be performed
in California.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Agreement as of the day and year first hereinabove set forth.
ASSIGNOR: ASSIGNEE:
ALPHA 1 BIOMEDICALS. INC. SCIOS NOVA INC..
a Delaware corporation a Delaware corporation
By /s/ Robert J. Lanham By /s/ Richard L. Casey
Robert J. Lanham Richard L. Casey
Vice President Chairman, President &
Finance & Administration Chief Executive Officer
Exhibits:
A: Master Lease
B: Landlord's Consent to Assignment
C: Personal Property Sold to Assignee
D: Personal Property to be Removed
EXHIBIT 10.25
AGREEMENT
RECITALS
1. SciClone Pharmaceuticals, Inc. ("SciClone") and Alpha 1
Biomedicals. Inc. ("Alpha") are parties to a Thymosin Alpha 1
License Agreement, dated as of August 19, 1994, pursuant to which
Alpha has licensed to SciClone the worldwide rights (except for
several countries) to Thymosin alpha 1 (as defined in Schedule
A).
2. Dr. Allan L. Goldstein ("Goldstein"), the chief. scientific
advisor of Alpha has significant knowledge regarding the
composition, activity, laboratory and clinical experience of
Thymosin alpha 1.
3. SciClone wishes to employ Goldstein to serve as a consultant
to SciClone in connection with SciClone's development of Thymosin
alpha 1, and Alpha wishes to make Goldstein's services available
to SciClone.
AGREEMENT
In consideration of the foregoing and of the promises herein
contained, the parties hereto agree as follows:
1. Scope of Service. The services performed by Goldstein for
SciClone pursuant to this Agreement are described in Schedule A
hereto (the "Services").
2. Compensation. SciClone shall pay to Alpha for the Services
performed by Goldstein the consideration specified in Schedule B
hereto. Goldstein shall have no recourse against SciClone for any
payments due or made hereunder.
3. Term. This Agreement is for an initial term beginning on
October 15, 1995 and ending on October 14, 1996, and shall be
automatically renewable thereafter for successive one-year terms,
unless terminated in accordance with paragraph 14 hereunder.
4. Proprietary Information. (a) Goldstein agrees to maintain
in confidence and not disclose or use, either during or after the
term of this Agreement, without the prior express written consent
of SciClone, any proprietary or confidential information or know-
how disclosed to Goldstein by SciClone in Goldstein's capacity as
consultant to SciClone hereunder (the "Proprietary Information"),
whether or not such Proprietary Information is the property of
SciClone or the property of a SciClone licensor or other third
party that disclosed the same to SciClone, and whether or not it
is in written form, except (i) to the extent required to perform
duties on behalf of SciClone in Goldstein's capacity as a
consultant hereunder and only if agreed to in advance by the
SciClone officer designated on Schedule C hereto (the "Designated
Officer") and (ii) to the extent that disclosure may be required
by law or legal process. Such Proprietary Information includes,
but is not limited to, technical and business information
relating to SciClone's inventions or products, licensing
agreements, patent applications relating to SciClone's inventions
or licensed to SciClone, research and development, production
processes, manufacturing and engineering processes, machines and
equipment, finances, customers, marketing, production and
business plans. Upon termination of this Agreement or at the
request of SciClone before termination, Goldstein will deliver to
SciClone all written and tangible material in his possession
incorporating the Proprietary Information. These obligations with
respect to Proprietary Information extend to information
belonging to customers and suppliers of SciClone, who may have
disclosed such information to Goldstein as a result of
Goldstein's status as a consultant to SciClone hereunder. (b)
Goldstein and Alpha acknowledge and understood that the foregoing
provision prohibits Goldstein from disclosing Proprietary
Information to Alpha or any of its officers, directors, employees
or agents, or using Proprietary Information on behalf of or in
connection with work performed for Alpha.
5. Inventions.
(a) Disclosure and Assignment. (i) Goldstein and Alpha each
acknowledge and agree that, subject to the terms of any sponsored
research agreement entered into between SciClone and The George
Washington University or the Research Agreement (Moody),
effective May 1 1990, entered into between Alpha and The George
Washington University and assigned to SciClone, or the Research
Agreement. effective May 1, 1990 entered into between Alpha and
The George Washington University (Badamchian), any and all
inventions, improvements, discoveries, technical developments and
copyrighted works with respect to Thymosin alpha 1 (as defined on
Schedule A hereto), whether or not patentable, which Goldstein
conceives, develops or reduces to practice, solely or jointly
with others and which result from any work Goldstein performs for
SciClone hereunder ("Inventions") will become the sole and
exclusive property of SciClone and will not be made available to
others during or following the term of the Agreement without the
advance written permission of the Designated Officer. (ii)
Goldstein agrees to disclose promptly to the Designated Officer
all matters which come to Goldstein's attention during the
performance of Goldstein's activities pertaining to any and all
Inventions.
(b) Representations. Goldstein represents and warrants that his
activities on behalf of SciClone will not conflict with the
Faculty Guidelines or Patent Policy with The George Washington
University. Both Alpha and Goldstein agree that Goldstein is
acting under this Agreement in Goldstein's capacity as a
consultant to SciClone. Goldstein further agrees that the
ownership of Inventions and patent rights as set forth in
Sections 5(a) and (c) herein are in accordance with Section VII
B(3) and VII E of the Patent Policy of The George Washington
University.
(c) Assignment of Inventions. Subject to the terms of any
sponsored research agreement entered into between SciClone and
The George Washington University or the Research Agreement
(Moody), effective May 1, 1990, entered into between Alpha and
The George Washington University and assigned to SciClone, or the
Research Agreement, effective May 1, 1990 entered into between
Alpha and The George Washington University (Badamchian),
Goldstein hereby assigns to SciClone his entire right to all the
Inventions. Goldstein further agrees to cooperate with SciClone
or its designee(s), both during and after the term of this
Agreement, in the procurement and maintenance of SciClone's
intellectual property rights as a result of Goldstein's work for
SciClone with respect to Thymosin alpha i hereunder, and to sign
all papers which SciClone may deem necessary and desirable for
vesting SciClone or its designee(s) with such rights. Goldstein
agrees to use his best efforts to keep and maintain adequate and
current written records of any Inventions in the form of notes,
sketches, drawings or reports relating to said Inventions, which
records shall be and remain the property of SciClone. Goldstein
agrees to execute, upon request by SciClone, signed transfer of
copyright to SciClone when any copyrighted work is created by
Goldstein in his capacity as a consultant to SciClone hereunder.
(d) Royalties. Goldstein understands and acknowledges that he
shall not be entitled to any royalty, commission or other payment
or license or right with respect to the Inventions.
(e) Future Patent Application or Copyright Registrations. If a
patent application or copyright registration is filed by or on
behalf of Goldstein within one (1) year after the termination of
this Agreement describing an Invention within the scope of
Goldstein's work for SciClone under this Agreement, Goldstein and
Alpha agree that it is to be presumed that the Invention was
conceived by Goldstein during the term of this Agreement.
6. Publications. Goldstein and Alpha agree not to, and Alpha
agrees not to cause Goldstein to, publish on the results of any
work Goldstein performs for SciClone with respect to Thymosin
alpha 1 under this Agreement without the prior written approval
of the Designated Officer.
7. Conflicting Obligations. (a) Goldstein and Alpha represent
that each of them has advised SciClone in writing prior to the
date of signing this Agreement of any relationship with third
parties, including competitors of SciClone, which would present a
conflict of interest with the rendering of the Services, or which
would prevent Goldstein from carrying out the terms of the
Agreement. Goldstein and Alpha agree to advise SciClone of any
such relationships that arise during the term of this Agreement.
SciClone will then have the option to terminate this Agreement
without further obligation to Goldstein or Alpha, except to pay
to Alpha the compensation earned through the date of termination.
(b) Alpha consents and agrees to the performance of Services by
Goldstein for SciClone hereunder. Alpha further acknowledges and
agrees that the Services to be performed by Goldstein hereunder
are of a unique and intellectual character and are capable of
being performed only by Goldstein, and that no other officer,
director, employee or agent of Alpha may be substituted for
Goldstein hereunder.
8. Confidential Information of Others. Goldstein agrees not to
disclose to SciClone, or use in connection with his work for
SciClone under this Agreement, any confidential or proprietary
information or materials belonging to any third party, including
without limitation that of Alpha, George Washington University or
any prior employer.
9. Written Materials. All records, reports, notes,
compilations, or other recorded matter, and copies or
reproduction thereof, relating to SciClone's operations,
activities or business, made or received by Goldstein in his
capacity as a consultant hereunder during the term of this
Agreement (the "Written Materials") are and shall be SciClone's
exclusive property. Goldstein agrees to keep the Written
Materials subject to SciClone's control, and to surrender the
Written Materials upon the termination of this Agreement or at
the request of SciClone before termination.
10. Prior Inventions. Goldstein agrees to notify SciClone and
Alpha in writing before he makes any disclosure or performs any
work on behalf of SciClone which appears to threaten or conflict
with proprietary rights he or Alpha may claim in any invention or
idea. The parties will endeavor to resolve any such conflict
before any such work commences. Should the parties be unable to
resolve such conflict amicably, SciClone reserves its right to
resolve any such conflict with Goldstein or Alpha, as the case
may be, in accordance with paragraph 15 herein.
11. Irreparable Harm. Goldstein and Alpha acknowledge that
Goldstein's obligations under this Agreement are of a unique and
intellectual character which gives them particular value, that a
breach of any such obligations will result in irreparable and
continuing damage to SciClone for which there may be no adequate
remedy at law, and that in the event of a breach by Goldstein or
Alpha of their obligations under this Agreement, SciClone shall
be entitled to injunctive relief and/or a decree for specific
performance and such other relief as may be deemed
proper(including monetary damages, if appropriate) by a court of
competent jurisdiction.
12. Independent Contractor. Goldstein acknowledges that he is
an independent contractor, not an employee or agent of SciClone.
Nothing in this Agreement shall render Goldstein an employee or
agent of SciClone, nor authorize or empower him to speak for,
represent or obligate SciClone in any way.
13. Limited Liability of Alpha. Except for its obligation to
make Goldstein available to perform the Services contemplated by
this Agreement and except for such other obligations as are
specifically provided for herein, Alpha shall have no liability
or obligation to SciClone or any other person under this
Agreement in connection with or arising out of the Services to be
provided hereunder, including without limitation any liability
for any negligence or willful misconduct of Goldstein, and
SciClone hereby waives and releases Alpha from any and all claims
that it might otherwise have against Alpha with respect to the
performance by Goldstein of the Services.
14. Termination. SciClone and Alpha each shall have the right
to terminate this Agreement at any time upon thirty (30) days
prior written notice. Termination shall not affect SciClone's
rights or Goldstein's obligations under paragraphs 4, 5, 6 and 9
or the obligations of Alpha under Sections 5(a) and (e) and 6
above. Upon termination, no further payment shall be due from
SciClone, except (a) payment for services of Goldstein already
rendered and (b) to the extent not paid. payment of a pro rata
portion of the minimum annual consulting fee through the
effective date of termination.
15. Arbitration. In the event of any dispute, difference or
question arising between the parties in connection with this
Agreement, that dispute shall be resolved by arbitration between
the parties before a single arbitrator jointly designated by the
parties. The parties shall determine the place or places where
the meetings are to be held in the counties of San Francisco or
San Mateo, California, or the District of Columbia, or another
mutually convenient location. The arbitrator must base his
decision with respect to the difference before him on the content
of this Agreement, and will be governed by the rules of the
American Arbitration Association. His decision shall be binding
on both parties. The fees of the arbitrator and any fees of the
American Arbitration Association shall be paid by the party that
does not prevail in the arbitration.
16. Miscellaneous.
(a) This Agreement represents the entire understanding of the
parties as to the subject matter contained in it. This Agreement
may not be modified except by a writing signed by each of the
parties.
(b) This Agreement may not be assigned by Goldstein or Alpha,
without prior written consent of SciClone, or by SciClone without
the prior written consent of Alpha; provided, however, that
without any prior consent SciClone may assign the Agreement to
(i) to any United States subsidiary or affiliate; (ii) in
connection with the transfer of sale of all or substantially all
of its business to a third party domiciled in the United States;
(iii) in the event of its merger or consolidations with another
company domiciled in the United States. In no case shall consent
to assignment be unreasonably withheld. This Agreement shall be
binding upon and inure to the benefits of the heirs, successors
and assigns of the parties hereto.
(c) No amendment of or waiver of any obligation under this
Agreement will be enforceable unless set forth in a writing
signed by the party against whom enforcement is sought. The
waiver of any provision shall not be construed as a waiver of any
other provision of this Agreement.
(d) If any provision of this Agreement is held to be invalid,
void or unenforceable for any reason, the remaining provisions
shall nevertheless continue in full force and effect to the
fullest extent permitted by law.
(e) No party may disclose the contents or terms of this Agreement
to third parties at any time, provided, however, that any party
may disclose such contents or terms to employees, attorneys, or
advisors, to the extent necessary to carry out its obligations
herein and to the extent required to comply with applicable law.
(f) This Agreement shall be construed in accordance with, and
governed by, the laws of the State of California.
SciClone: Goldstein:
/s/ David S. Horwitz /s/ Allan L. Goldstein
signature signature
Vice President Allan L. Goldstein
title name
10/23/95 Oct 9, 1995
date date
###-##-####
social security number
Alpha:
/s/ R.J. Lanham
signature
Vice President & CFO
title
10/26/95
date
Schedule A
Description of Services:
1. Thymosin alpha 1 is defined herein as that 28 amino-acid
polypeptide commonly referred to as Thymosin alpha 1 in the
existing scientific literature. any and all galenic improvements
and/or enhancements thereto. and all modifications, fragments.
analogs and synthetic derivatives thereof.
2. Consultation regarding Thymosin alpha 1. including basic.
preclinical: and clinical studies. Also consultation regarding
prior work with Thymosin alpha 1 to the extent permitted by
prior. existing or future arrangements with Alpha 1 Biomedicals,
Inc. Assistance in arranging collaboration with other Thymosin
alpha 1 investigators.
- -----------------------------------------------------------------
Schedule B
Fee Arrangements:
(1) A $25.000 retainer. payable upon execution of this Agreement
and additional $25,000 retainer payable on the commencement date
of each successive one-year term.
(2) A consulting fee of $250/hour, with a guaranteed minimum
annual consulting fee of . $25.000, payable whether or not the
corresponding consulting services are utilized. Compensable time
shall include all travel time.
(3) Reimbursement for all out-of-pocket travel and related
expenses, including business class air travel.
- ---------------------------------------------------------------------
Schedule C
SciClone Designated Officer:
Dr. David Horwitz. Vice-President
EXHIBIT 10.28
Supplement to
EMPLOYMENT AGREEMENT
Allan L. Goldstein
The Compensation section of the Employment Agreement,
between Allan L. Goldstein and Alpha 1 Biomedicals, Inc. dated
December 1, 1991, is hereby amended to reflect a change in the
compensation for the remaining term of the Agreement to an amount
equal to a rate of $36,000 per annum for the remaining term of
the Employment Agreement.
Accepted and agreed and to become effective the first payroll
date in March 1996.
February 27,1996
/s/ Michael L. Berman
Michael L. Berman,
President and
Chief Executive Officer
/s/ Allan L. Goldstein
Allan L. Goldstein
Exhibit 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectus constituting part of the Registration Statement on
Form S-3 (No. 33-57016) and in the Registration Statements on
Form S-8 (Nos. 33-50332 and 33-60550) of Alpha 1 Biomedicals,
Inc. of our report dated March 29, 1996 appearing on page 19 of
this Form 10-K.
PRICE WATERHOUSE LLP
Washington, DC
March 29, 1996
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from SEC Form 10K
and is qualified in its entirety by reference to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> DEC-31-1995
<CASH> 546,797
<SECURITIES> 284,538
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 978,039
<PP&E> 212,083
<DEPRECIATION> (152,553)
<TOTAL-ASSETS> 1,197,447
<CURRENT-LIABILITIES> 1,234,651
<BONDS> 0
<COMMON> 35,587,266
0
0
<OTHER-SE> (35,624,470)
<TOTAL-LIABILITY-AND-EQUITY> 1,197,447
<SALES> 105,591
<TOTAL-REVENUES> 105,591
<CGS> 0
<TOTAL-COSTS> 4,812,635
<OTHER-EXPENSES> (614,847)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (4,092,197)
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (4,092,197)
<EPS-PRIMARY> (.46)
<EPS-DILUTED> 0<F1>
<FN>
<F1>Loss per share on a fully diluted basis not calculated since the effect is
antidilutive.
</FN>
</TABLE>
