EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into effective as between
PharmaFrontiers, Corp., a corporation formed pursuant to the laws of the State
of Texas, (the "Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇, an individual residing at ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Executive").
RECITALS
WHEREAS, the Company is engaged in the business of acquiring, developing and
commercializing biomedical technologies (the Company's Business); and
WHEREAS, Executive possess substantial knowledge and experience with respect to
the Company's Business; and
WHEREAS, the Company desires to employ the Executive to have the
benefits
of (his/his/her) expertise and knowledge. The Executive, in turn, desires
employment with the Company. The parties, therefore, enter into this Agreement
to establish the terms and conditions of the Executive's employment with the
Company.
In consideration of the mutual covenants and representations contained in this
Agreement, the Company and the Executive agree as follows:
1. EMPLOYMENT OF EXECUTIVE; DUTIES. The Company agrees to employ the Executive
and the Executive agrees to be employed by the Company, as President and Chief
Operating Officer of the Company and as a member of its Board of Directors when
elected as such, will have general supervision over the operations of the
Company and will have such other duties and responsibilities, consistent with
his position as President and Chief Operating Officer, as may reasonably be
assigned to him by the Board of Directors of the Company. The Executive will
report to the Board of Directors of the Company., for the period specified in
Section 3 (the "Employment Period"), subject to the terms and conditions of this
Agreement. During the Employment Period, the Executive shall have such duties
and responsibilities generally consistent with his/his/her
position and such other duties not inconsistent with his/her title and position
as may be properly assigned to him/her by the Company in connection therewith,
Executive shall expend such time as is reasonably necessary to fully perform
his/her duties hereunder, shall devote his/her best efforts, experience and
judgement to fully discharge his/her duties and responsibilities under this
Employment Agreement and as reasonably contemplated hereby, and shall act in
conformity with the written and oral policies of the Company and within the
limits, budgets, business plans and instructions as set by the Company's Board
of Directors. Executive shall be subject to the authority of the Company's Board
of Directors.
2. PLACE OF EMPLOYMENT AND RELOCATION ALLOWANCE. Executive acknowledges that
the Company's offices and headquarters are currently located in Tomball, Texas,
which shall be the initial site of Executives employment. Executive further
acknowledges that the Company may open additional offices in other countries
and, in connection therewith; Executive may be required to temporarily reside in
such other locations. Executive as a condition for his/her employment here under
agrees, to maintain permanent residence in Tomball, Texas and to travel to such
other locations as necessary to conduct the Company's Business. In connection
therewith, Executive will, in good faith, undertake to apply for all required
work permits and other documents, licenses and permits as required to affect the
purposes hereunder. The Company shall reimburse Executive for all cost of living
expenses including room and board while conducting the Company's Business
outside of Tomball, Texas.
3. EMPLOYMENT PERIOD, The Employment Period shall begin on the date first
written above and shall continue for three years, and shall be automatically
extended for another three year period under the same terms and conditions,
unless a written notice of discontinuation has been received by a party hereto
at least 60 days in advance of the expiration date of this Agreement.
4. BASE SALARY. During the Employment Period, the Company shall pay
the Executive a minimum annual base salary of Ninety-Eight Thousand Dollars
($98,000.00). The base salary shall be payable in equal periodic installments
which are not less frequent than the periodic installments in effect for
salaries of other senior executives of the Company. The base salary shall be
subject to annual review by the Board of Directors ("Board") (or a committee
appointed by
2
the Board) for upward adjustments based on the policies of the Company and the
Executive's contributions to the Company's Business.
ANNUAL BONUS.
--------------
4.1 The Executive shall be entitled to an annual bonus (the "Annual
Bonus") determined from time to time by the Board of Directors of the Company
(without the active participation of the Executive). In determining the amount
of any Annual Bonus, the Board of Directors may take into consideration such
factors as they deem appropriate, including, but not limited to, the success of
the Company in achieving profitable operations, in attracting investors, and in
accomplishing other goals related to the business of the Company. Bonuses in
addition to the Annual Bonus may be awarded by the Board of Directors (without
the active participation of the Executive) from time to time for reaching other
goals established by the Board of Directors.
REIMBURSEMENT FOR EXPENSES.
-----------------------------
4.2 Company shall reimburse Executive for all reasonable out-of-pocket expenses
paid or incurred by him in the course of his employment, upon presentation by
Executive of valid receipts or invoices therefor, utilizing procedures and forms
for that purpose as established by Company from time to time.
VACATIONS.
----------
4.3 Executive shall be entitled to reasonable vacations (which shall
aggregate no less than three (3) weeks vacation with pay) during each
consecutive 12 month period commencing on the date hereof. Executive may not
accumulate any vacation days which remain unused at the end of any year during
the term hereof without the prior consent of Company.
3
5. BENEFITS. In addition to and except for the matters governed by this
Agreement, the Executive shall be entitled to: (i) employee benefits and
perquisites, including but not limited to pension, deferred compensation plans,
stock options, group life insurance, disability, sickness and accident insurance
and health benefits under such plans and programs as provided to other
executives of the Company from time to time; and (ii) paid vacation as well as
holidays, leave of absence and leave for illness and temporary disability in
accordance with the policies of the Company.
5.1 Without limiting the generality of Section 5, above, the Company
shall reimburse the Executive by means of a cash allowance for expenses incurred
by the Executive in the use if his automobile in the performance of Executive's
duties, along with the cost of garage, insurance, fuel, fluids and maintenance,
upon such terms and conditions as are approved by Company. The Company shall pay
or reimburse the Executive for the costs of a cellular telephone.
7.2 Subject to the approval of the Board of Directors of the
Company, the Executive shall be provided with disability insurance providing for
disability payments to the Executive following a termination of Executive's
employment hereunder as a result of Disability (as defined in Section 8.2
below). In the event such policy is not obtained, Executive shall be entitled to
participate in such disability plan(s) as are available to Company executives
generally.
7.3 Subject to the Executive's meeting the eligibility requirements of
each respective plan, Executive shall be offered the opportunity participate in
and be covered by each pension, life insurance, accident insurance, health
insurance, hospitalization and any other employee benefit plan adopted by the
Company, as the case may be, made available generally from
4
and after the date hereof to its respective executives, on the same basis as
shall be available to such other executives without restriction or limitation by
reason of this Agreement; provided, however, that Executive shall not
-------------------
participate in two or more plans providing duplicative benefits or coverage. The
Company shall use its reasonable efforts to waive any qualifying period for
participation in any such
plan by the Executive.
7.4 Nothing herein contained shall prevent the Company from at any time
increasing the compensation herein provided to be paid to Executive, either
permanently or for a limited period, or from paying bonuses and other additional
compensation to Executive, whether or not based upon the earnings of the
business of Company, or from increasing or expanding any employee benefit
program applicable to the Executive, in the event the Company, in its sole
discretion, shall deem it advisable so to do in order to recognize and
compensate Executive fairly for the value of his services.
8. DEATH OR DISABILITY.
----------------------
8.1 If Executive shall die during the term hereof, this Agreement
shall immediately terminate, except that Executive's legal representatives or
designated beneficiaries shall be entitled to receive (i) the Base Salary due to
Executive hereunder to the last day of the third month following the month in
which his death occurs, payable in accordance with the Company's regular payroll
practices, (ii) a portion of the Annual Bonus payable under Section 4
(determined as provided under Section 8.4), based on the Company's Adjusted Net
Income through the month of the bonus year preceding the month in which death
occurs; and (iii) all other payments and entitlements available upon death under
any employee benefit program covering the Executive as of the date of death.
Except for the payments required pursuant to this Section 8.1, no payments shall
be made for any period after Executive's death.
8.2 In the event of the Disability (as hereinafter defined) of the
Executive, the Executive shall be entitled to continue to receive from the
5
Company and its several benefit plans an amount equal to his Base Salary
(prorated as may be necessary) in accordance with the terms of Section 3 hereof
through the last day of the third month following the month in which Executive's
employment hereunder is terminated as a result of such Disability. At any time
after the date of the Notice (as hereinafter defined) and during the continuance
of the Executive's Disability, the Company may at any time thereafter terminate
Executive's employment hereunder by written notice to the Executive. The term
"Disability" shall mean physical or mental illness or injury which prevents the
Executive from performing his customary duties for the Company for a period of
twenty-five (25) consecutive business days or an aggregate period of ninety (90)
days out of any consecutive twelve (12) months. The date of commencement of
Disability shall be the date set forth in the notice of a determination of
Disability (the "Notice") given by Company to the Executive at any time
following a determination of Disability, which date shall not be earlier than
the date the Notice is given by Company. A determination of Disability by
Company shall be solely for the purposes of this Section 8.2 and shall in no way
affect the Executive's status under any benefit plan applicable to the
Executive.
8.3 Upon the occurrence of a Disability, and unless the Executive's
employment shall have been terminated AS provided in Section 8.2, the Executive
shall continue to perform such services for Company, consistent with his duties
under Section 1 hereof, as he is reasonably capable of performing in light of
the condition giving rise to a Disability. All payments due under Section 8.2
shall be payable in accordance with Company's regular payroll practices. Those
payments, together with the aggregate amount of all periodic payments which the
Executive is entitled to receive under all workers compensation plans,
disability plans and accident, health or other insurance plans or programs
maintained for the Executive by Company (or by any company controlling,
6
controlled by or under common control with the Company), shall be not less than
Executive's Base Salary for the month or period in question.
8.4 If the Executive's employment is terminated due to Disability, the
Executive shall be entitled, in addition to the payments described in Section
8.2, to a pro-rated portion of the Annual Bonus otherwise payable for the fiscal
year in which such Disability occurs, determined by multiplying the Annual Bonus
that would otherwise be payable by a fraction, the numerator of which is the
number of days the Executive was employed during such fiscal year and the
denominator of which is 360.
6. NON-DISCLOSURES; NON-COMPETITION. As a condition to the employment
arrangement, Executive agrees to execute and comply with the terms and
conditions of the "Employee Non-Disclosure, Non-Competition and Assignment of
Inventions Agreement" attached hereto as Exhibit 1.
7. TERMINATION. 7.1 TERMINATION BY THE COMPANY.
(a) The Company, by action of its Board, may terminate the Executive's
employment under this Agreement without Cause (as defined in herein) at any time
by giving notice thereof to the Executive at least ninety (90) days before the
effective date of such termination. The Employment Period shall terminate AS of
the date of such termination of employment.
(b) The Company, by action of its Board, may terminate the Executive's
employment under this Agreement for Cause at any time by notifying the Executive
of such termination. For all purposes of this Agreement, the Employment Period
shall end as of the date of such termination of employment. "Cause" means the
Executive's: (i) persistent and repeated refusal, failure or neglect to perform
the material duties of his/her employment under this Agreement (other than by
reason of the Executive's physical or mental illness or impairment), provided
that such Cause shall be deemed to occur only after the Company has given notice
thereof to the Executive specifying in reasonable detail the conduct
constituting Cause, and the Executive has failed to cure and correct his/her
conduct within thirty (30) days after such notice; (ii) committing any act of
fraud or embezzlement, provided that such Cause shall be deemed to occur only
after the Company has given notice thereof to the Executive
7
specifying in reasonable detail the instances of such conduct, and the Executive
has had the opportunity to be heard at a meeting of the Board; (iii) breach of
the Employee Non-Disclosure, Non-Competition and Assignment of Inventions
Agreement or of such other subsequent agreements entered into during the
Employment Period that results in a material detriment to the Company; (iv)
conviction of a felony (including pleading guilty to a felony); or (v) habitual
abuse of alcohol or drugs.
7.2 TERMINATION BY THE EXECUTIVE. The Executive may terminate this
Agreement at any time, for any reason or for no reason at all, by giving notice
thereof to the Company at least ninety (90) days before the effective date of
such termination. The Employment Period shall terminate as of the date of such
termination of employment.
10. TERMINATION UPON CHANQE OF CONTROL OR BY COMPANY WITHOUT CAUSE.
--------------------------------------------------------------- ------
10.1 A "Change in Control" shall occur: (A) if any Person, or combination
of Persons, (as hereinafter defined), or any affiliate of any Person, is or
becomes the "beneficial owner" (AS defined in Rule 13d-3 promulgated under the
Securities Exchange Act of 1934) directly or indirectly, of securities of the
Company representing twenty- five percent (25%) or more of the total number of
outstanding shares of common stock of the Company; or (B) if individuals who, at
the date of this Agreement, constitute the Board (the "Incumbent Directors")
cease, for any reason, to constitute at least a majority thereof, provided that
any new director whose election wa$ approved by the favorable vote of at least
75% of the Incumbent Directors shall be treated as an Incumbent Director. For
purposes hereof, "Person" shall mean any individual, partnership, joint venture,
association, trust, or other entity, including a "group" as referred to in
section 13(d)(3) of the Securities Exchange Act of 1934. 10.2 If a Change in
Control occurs, and if there subsequently occurs a material adverse change,
without the Executive's written consent, in the Executive's working conditions
or status, including but not limited to a significant change in the nature or
scope of the Executive's authority, powers, duties or
8
responsibilities, or a reduction in the level of support services or staff,
then, whether or not such change would otherwise constitute a breach of this
Agreement by the Company, this Agreement may be terminated by notice given by
the Executive, specifying the Change of Control and significant adverse change
or changes.
10.3 Upon the termination of this Agreement in accordance with Section 10.2
above, the Executive will be entitled, without any duty to mitigate damages, to:
(a) All unpaid Base Salary pro-rated up to the date of termination;
and
(b) The greatest of (i) the full Annual Bonus for the entire year in
which the termination referred to in Section 10.2 takes place, or (ii) the
portion of the Annual Bonus earned from the first day of the fiscal year in
which such termination occurred until the date of the Change of Control, or
(iii) the portion of the Annual Bonus earned from the first day of the
fiscal year in which such termination occurred until the effective date of
such termination; and
(c) A severance payment equal to the sum of (i) the Base Salary in
effect for the prior fiscal year and (ii) the Annual Bonus paid (or
payable) on account of such prior fiscal year; and
(d) All benefits available under the Company's employee benefit
programs, to the extent applicable to senior executives voluntarily and
amicably retiring from employment with the Company.
10.4 In the event that the Company shall actually or constructively
terminate this Agreement without cause (and with or without a Change of
Control), the Executive shall be entitled to the same payments, compensation and
rights as provided in the case of a termination by the Executive under Section
10.3.
9
10.5 The payments, and other compensation and benefits to which the
Executive is entitled under this Section 10 shall be made available to the
Executive no later than ten (10) days after the date of any termination referred
to in Section 10.2, 10.3 or 10.4.
10.6 In the event that Executive receives the payments, and other
compensation and benefits referred to in this Section 10, he will be bound by
the restrictive provisions of Section 12 for the period therein provided.
7.3 SEVERANCE BENEFITS.
(a) If the Executive's employment under this Agreement is terminated by the
Company for Cause, by the Executive without Good Reason , the Company shall
only pay the Executive a lump sum cash payment within thirty (30) days of
the date of such termination, equal to the sum of: Executive's unpaid Base
Salary earned to the termination date.
(b) "Good Reason" means: any material failure by the Company to pay or
provide the compensation and benefits under this Agreement; provided that,
in each such event, the Executive shall give the Company notice thereof
which shall specify in reasonable detail the circumstances constituting
Good Reason, and there shall be no Good Reason with respect to any such
circumstances cured by the Company within thirty (30) days after such
notice.
(c) If the Executive is entitled to receive payments or other benefits
under this Agreement upon the termination of his/her employment with the
Company, the Executive hereby irrevocably waives the right to receive any
payments or other benefits under any other severance or similar plan
maintained by the Company ("Other Severance Plan").
8. REPRESENTATION BY EXECUTIVE. The Executive represents and warrants
to the Company that his/her employment hereunder will not conflict with or
result in a violation or breach of, or constitute a default under any contract,
agreement or understanding to which he/she is or was a party.(except as noted in
Appendix 1)
9. NOTICES. Any notices, requests, demands and other communications provided
for by this Agreement shall be sufficient if in writing and if sent by
registered or certified mail to the Executive at the last address he has filed
in writing with the
10
Company or, in the case of the Company, to the Company's principal executive
offices.
10. WITHHOLDING TAXES. The Company shall have the right, but not the duty,
to the extent permitted by law, to withhold from any payment of any kind due to
the Executive under this Agreement to satisfy the tax withholding obligations of
the Company under applicable law.
11. VALIDITY; COMPLETE AGREEMENT. The validity and enforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision hereof. This Agreement sets forth the entire understanding and
embodies the entire Agreement of the parties with respect to the subject matter
covered hereby and supersedes all prior or contemporaneous oral or written
agreements, understandings, arrangements, negotiations or communications, .
among the parties hereto.
12. AMENDMENT. This Agreement shall not be modified or amended except by
written agreement of the parties hereto.
13. CHOICE OF LAW; JURISDICTION AND VENUE. This Agreement shall be governed
by and construed in accordance with the law of the State of Texas.
14. COUNTERPART. This Agreement may be executed in any number of
counterparts, all of which shall be considered one and the same agreement.
15. DELAY; PARTIAL EXERCISE. No failure or delay by any party in exercising
any right, power or privilege under this Agreement shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
16. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of and
be binding upon the Company and its successors and assigns.
The Company shall have the right to assign this Agreement to any of its
respective affiliates. The rights and obligations of Executive under this
Agreement are personal to him/her and no such right or obligation shall be
subject to voluntary or involuntary alienation, assignment, or transfer.
17. MANDATORY ARBITRATION. DISPUTES REGARDING THE EXECUTIVE'S ENGAGEMENT BY
THE COMPANY, INCLUDING, WITHOUT LIMITATION, ANY DISPUTE UNDER THIS AGREEMENT
WHICH CANNOT BE RESOLVED BY NEGOTIATIONS BETWEEN THE COMPANY AND THE EXECUTIVE,
BUT EXCLUDING ANY DISPUTES REGARDING THE EXECUTIVES COMPLIANCE WITH THE
RESTRICTIONS CONTAINED IN THIS AGREEMENT, SHALL BE SUBMITTED TO, AND SOLELY
DETERMINED BY, FINAL AND BINDING ARBITRATION CONDUCTED UNDER THE RULES OF
ARBITRATION OF THE STATE OF TEXAS APPLICABLE TO EMPLOYMENT DISPUTES, AND THE
11
PARTIES AGREE TO BE BOUND BY THE FINAL AWARD OF THE ARBITRATOR IN ANY SUCH
PROCEEDING. THE ARBITRATOR SHALL APPLY THE LAWS OF THE STATE OF TEXAS WITH
RESPECT TO THE INTERPRETATION OR ENFORCEMENT OF ANY MATTER RELATING TO THIS
AGREEMENT. ARBITRATION MAY BE HELD IN ▇▇▇▇▇▇ COUNTY, TEXAS, OR SUCH OTHER PLACE
AS THE PARTIES HERETO MAY MUTUALLY AGREE, AND SHALL BE CONDUCTED BY A QUALIFIED
ARITRATOR APPOINTED UNDER THE LAWS OF THE STATE OF TEXAS. JUDGMENT UPON THE
AWARD BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first written above.
Witness
R
J
Witness
rr' FT./ 41,0
12
Exhibit 1
EMPLOYEE NON-DISCLOSURE, NON-COMPETITION AND
ASSIGNMENT OF INVENTIONS AGREEMENT
The Undersigned ▇▇▇▇▇▇ ▇. ▇▇▇, for and in consideration of his/her employment
with PharmaFrontiers Corporation plus other good and valuable consideration, the
receipt and sufficiently of which is hereby acknowledge, intending to be legally
bound by the terms and conditions of this Agreement, hereby agrees as follows:
1. RESPECTIVE PERSONS OR ENTITIES COVERED. UNDERSIGNED ACKNOWLEDGES that,
as an employee of PharmaFrontiers, Corp., a Texas corporation, he/she may also
be working closely with its respective subsidiaries and or parents
(PharmaFrontiers, Corp and its respective parents and subsidiaries shall
collectively hereinafter be referred to herein as the "Companies")
2. INVENTIONS. Undersigned agrees as follows:
A. DISCLOSURE. He/She will promptly disclose to the Companies and each of
them, any invention, discovery, know-how, improvement, design, device,
apparatus, composition, process, plans, programs, or use made, conceived or
discovered by Employee, either solely or in collaboration with others,
during the term of this Agreement which (i) relates in any way to the
products, services processes or systems relating to any of the Companies
respective businesses (ii) results from or is suggested by any work
performed by Employee for any of the Companies (all the foregoing
hereinafter referred collectively as "Inventions");
B. OWNERSHIP OF INVENTIONS. Each Invention shall be and remain the sole and
exclusive property of the Companies, whether patented or not, and any
Invention conceived within six months after termination of this Agreement
shall be presumed to be the property of the Companies subject to proof of
the Companies' satisfaction that such Invention was first conceived after
the termination of this Agreement. In furtherance of the foregoing,
Employee agrees to execute, acknowledge and deliver any and all documents
and instruments as may be requested by the Companies (but without any
additional compensation from the Companies) for the purpose of vesting
title to any Invention in the Companies.
C. PRIOR INVENTIONS. Employee attaches as Schedule A hereto, concurrently
with the execution hereof, a list and brief description of all unpatented
Inventions or proprietary information, if any, made or
13
conceived by him/her prior to the date of this Agreement and which are to
be excluded from the provisions of this Section. If no such list is
attached at the time of the execution of this Agreement, it shall be
conclusively presumed that Employee has waived any right he may have to any
such Invention that relates to any of the Companies businesses.
D. REPRESENTATION. Employee represents and warrants to the Companies that
except as set. forth on Schedule B, attached hereto, neither he/she nor
his/her Associates or Affiliates have any agreements with or obligations to
any person or entity in conflict with any of the provisions of this
Agreement.
3. CONFIDENTIALITY. Employee, covenants and agrees that he/she will not, at
any time either during the term of this Agreement of thereafter, for a period of
one year after the receipt by Employee of the last disclosure of proprietary
information, reveal (or permit to be revealed where such is within his/her
control) to a third party or use for his/her own benefit, without prior written
consent of the Companies, any information pertaining to the Inventions, or any
of the Companies' respective businesses including but not limited to information
relating to research results, formulations, computer code, suppliers, employees,
customers financial condition, procedures, tests, know-how, production,
distribution, work and organizational methods, experimental results or trade
secrets.
4. NON-COMPETITION. During the term of this Agreement and for a period of
one year thereafter, Employee agrees that, except as contemplated by this
Agreement, he/she shall not, without the prior written consent of the Companies,
either individually or with others, directly or indirectly, as an employee,
representative, partner, principal, agent, independent contractor, consultant,
stockholder, or in any other capacity, participate in, engage in or have a
financial interest in any activity, business or entity relating to or involved
in the development, testing or marketing of products, services, systems or
processes related to the Companies' respective businesses, except as provided in
Schedule B.
Employee acknowledges that the claim for or the payment of any damages for
breach of the provisions contained in this paragraph 4 shall not preclude the
Companies from seeking injunctive or such other forms of relief as may be
obtained in a court of law or equity. Employee acknowledges that he/she will be
fully able to earn an adequate livelihood for himself/herself and his/her
dependents if the provisions of this paragraph 4 shall be specifically enforced
against him/her. In the event that any court of competent jurisdiction shall
determine that any term, covenant, or condition of this paragraph 4 is void or
unenforceable, such court shall have the powers and authority to modify this
paragraph 4 in accordance with the original intent of the parties so as to make
14
such term, covenant or condition and the remainder of this Agreement valid and
binding upon the parties hereto.
5. NON-SOLICITATION, During the term of this Agreement and for a period of
one year thereafter, Employee agrees that he/she shall not, without the prior
written consent of the Companies, either individually or with others, directly
or indirectly solicit or hire any of the Companies' employees or key employees
of the Companies' customers for employment with a person or entity involved in
marketing products or services competitive with any of the Companies' respective
businesses. Key employees include supervisory personnel, executives, personnel
in charge of any department, section or subdivision, and project managers (or
directors) and senior personnel on any individual project or projects. Employee
further agrees that all customers of the Companies, and all prospective
customers from whom Employee may have solicited business while engaged as an
employee by the Companies hereunder, shall be solely the customers of the
Companies. Employee therefore agrees that he/she will not, for a period of one
year immediately following the termination of this Agreement, either directly or
indirectly, solicit business, as to products or services competitive with those
of the Companies respective businesses, from any of the Companies" customers
within one year prior the termination of this Agreement.
The term "Employee" shall, for purposes of paragraphs 1 through 5 includes
Employee along with any of Employee's Affiliates, Associates, or entities of
which he/she is a Beneficial Owner. The term "Affiliate" shall means a person
controlling, controlled by or under common control with Employee and the term
"control" (including the terms "controlling," "controlled by," and "under common
control with") means the power to direct or cause the direction of the
management and policies of a person or entity, whether through the ownership of
voting securities, by contract or otherwise. The term "Associate," shall mean a
relationship with: i) any corporation, or organization (other than the
Companies) of which Employee or any of his/her Affiliates or Associates is a
director, officer or partner, ii) any corporation, or organization (other than
the Companies) of which Employee or any of Employee's Affiliates or Associates,
directly or indirectly, are the beneficial owner of five percent (5%) or more of
any class of equity securities; iii) any trust or other estate in which Employee
or any of his/her Affiliates or Associates have a substantial beneficial
interest or with respect to which Employee or any of his/her Affiliates or
Associates serve as a trustee or in any other fiduciary capacity; or iv)
Employee's spouse, or any blood relative of Employee, or any blood relative of
Employee's spouse, or who is an officer or director, or partner of any Affiliate
or Associate of Employee. The term "beneficial ownership" shall mean interests
which Employee or his/her or Affiliates or Associates may possess which are
substantially equivalent to those of ownership and are enjoyed by reason of any
contract, understanding, relationship, agreement or other arrangement, whether
or not such are set forth in a legally binding contract or document.
15
IN WITNESS WHEREOF, the Undersigned a/ ' ~- intending
---------------------
to
be legay.bound, hereby executes and delivers this Agreement this ZQ',t-
------ ----
day ofd A~ 2004.
------
Witness
/s/ ▇▇▇▇▇▇ ▇▇▇
------------------------------
▇▇▇▇▇▇ ▇▇▇
L 1. Tt~~~I
Appendix 1
▇▇. ▇▇▇ agrees not to compete in the fields of (1) Alkylating or Platinating
agents for the Treatment of Cancer, (2) Biomodulating Agents for the treatment
of Cancer, (3) Non-nucleoside Reverse Transcriptase Inhibitors for the treatment
of HIV Infection/AIDS, (4) Cell Mediated Immunity Inducing Vaccines for the
treatment/prevention of HIV infection/AIDS, (5) Viral Entry Inhibitors for the
treatment of HIV infection/AIDS.
16
