EXHIBIT 10.17
NON-COMPETITION AGREEMENT
This Non-Competition Agreement (the "Agreement") is dated as
of November 20, 2001, and is entered into between Pharmion Corporation and
Xxxxxxx X. Xxxxxxx (the "Employee").
WHEREAS, the Employee is currently employed by the Company;
and
WHEREAS, the Employee and the Company desire to embody in this
Agreement the terms, conditions and benefits to be provided to the Employee in
the event of the Employee's termination of employment with the Company;
NOW, THEREFORE, the parties hereby agree:
Section 1. RESTRICTIVE COVENANT. The Employee acknowledges and
agrees that the agreements and covenants contained in this Section 1 are (i)
reasonable and valid in geographical and temporal scope and in all other
respects, and (ii) essential to protect the value of the Company's business and
assets, and by his employment with the Company, the Employee will obtain
knowledge, contacts, know-how, training and experience and there is a
substantial probability that such knowledge, know-how, contacts, training and
experience could be used to the substantial advantage of a competitor of the
Company and to the Company's substantial detriment. For purposes of this
Section 1, references to the Company shall be deemed to include its
subsidiaries.
(a) Non-Competition. The Employee covenants and agrees
that during the Employee's employment with the Company (the "Employment Period")
and for a period extending to the first anniversary of the Employee's
termination of employment for any reason (the "Restricted Period"), with respect
to any State or foreign country in which the Company is engaged in business at
the time of such termination, the Employee shall not, directly or indirectly,
individually or jointly, own any interest in, operate, join, control or
participate as a partner, director, principal, officer, or agent of, enter into
the employment of, act as a consultant to, or perform any services for any
entity which competes to a material extent with the business activities in which
the Company is engaged at the time of such termination or in which business
activities the Company has documented plans to become engaged in and as to which
Employee has knowledge at the time of Employee's termination of employment, or
any entity in which any such relationship with the Employee would result in the
inevitable use or disclosure of Confidential Information. Notwithstanding
anything herein to the contrary, this Section 1(a) shall not prevent the
Employee from acquiring as an investment securities representing not more than
one percent (1%) of the outstanding voting securities of any publicly-held
corporation.
(b) Extension. If the Employee violates the provisions of
Section 1(a) above, the Employee shall continue to be bound by the restrictions
set forth in Section 1(a) until a period of one year has expired without any
violation of such provisions.
(c) Blue Pencil. If any court of competent jurisdiction
shall at any time deem the duration or the geographic scope of any of the
provisions of this Section 1 unenforceable, the other provisions of this
Section 1 shall nevertheless stand and the duration and/or geographic scope set
forth herein shall be deemed to be the longest period and/or greatest size
permissible by
law under the circumstances, and the parties hereto agree that such court shall
reduce the time period and/or geographic scope to permissible duration or size.
Section 2. INJUNCTIVE RELIEF. Without intending to limit the
remedies available to the Company, the Employee acknowledges that a breach of
the covenant contained in Section 1 hereof may result in material irreparable
injury to the Company or its subsidiaries or affiliates for which there is no
adequate remedy at law, that it will not be possible to measure damages for such
injuries precisely and that, in the event of such a breach or threat thereof,
the Company shall be entitled to obtain a temporary restraining order and/or a
preliminary or permanent injunction, without the necessity of proving
irreparable harm or injury as a result of such breach or threatened breach of
Section 1 hereof, restraining the Employee from engaging in activities
prohibited by Section 1 hereof or such other relief as may be required
specifically to enforce the covenant in Section 1 hereof. Notwithstanding any
other provision to the contrary, the Restricted Period shall be tolled during
any period of violation of the covenant in Section 1(a) hereof and during any
other period required for litigation during which the Company seeks to enforce
this covenant against the Employee if it is ultimately determined that Employee
was in breach of such covenants.
Section 3. SUCCESSORS AND ASSIGNS; NO THIRD-PARTY
BENEFICIARIES.
(a) The Company. This Agreement shall inure to the
benefit of and be enforceable by, and may be assigned by the Company to, any
purchaser of all or substantially all of the Company's business or assets, any
successor to the Company or any assignee thereof (whether direct or indirect, by
purchase, merger, consolidation or otherwise).
(b) The Employee. The Employee's rights and obligations
under this Agreement shall not be transferable by the Employee.
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Section 4. WAIVER AND AMENDMENTS. Any waiver, alteration,
amendment or modification of any of the terms of this Agreement shall be valid
only if made in writing and signed by the parties hereto. No waiver by either of
the parties hereto of their rights hereunder shall be deemed to constitute a
waiver with respect to any subsequent occurrences or transactions hereunder
unless such waiver specifically states that it is to be construed as a
continuing waiver.
Section 5. SEVERABILITY AND GOVERNING LAW. If any covenants or
other provisions of this Agreement are found to be invalid or unenforceable by a
final determination of a court of competent jurisdiction (a) the remaining terms
and provisions hereof shall be unimpaired and (b) the invalid or unenforceable
term or provision hereof shall be deemed replaced by a term or provision that is
valid and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision hereof. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO
(WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF) APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
Section 6. NOTICES.
(a) Every notice or other communication relating to this
Agreement shall be in writing, and shall be mailed to or delivered to the party
for whom it is intended at such address as may from time to time be designated
by it in a notice mailed or delivered to the other party as herein provided,
provided that, unless and until some other address be so designated, all notices
or communications by the Employee to the Company shall be mailed or delivered to
the Company at its principal executive office, and all notices or communications
by the Company to the Employee may be given to the Employee personally or may be
mailed to Employee at the Employee's last known address, as reflected in the
Company's records.
(b) Any notice so addressed shall be deemed to be given:
(i) if delivered by hand, on the date of such delivery; (ii) if mailed by
courier, on the first business day following the date of such mailing; and (iii)
if mailed by registered or certified mail, on the third business day after the
date of such mailing.
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Section 7. EFFECT OF AGREEMENT. This Agreement shall not be
construed as creating any contract of employment between the Company and the
Employee and nothing in this Agreement shall be construed to alter the
Employee's status as an "at-will" employee. The Employee shall not have any
right to be retained in the employ or service of the Company for any length of
time by reason of this Agreement, and this Agreement shall not affect the right
of the Company to deal with the Employee in all respects relating to the
Employee's employment, including the Employee's discharge, compensation, and
conditions of employment.
Section 8. SECTION HEADINGS. The headings of the sections and
subsections of this Agreement are inserted for convenience only and shall not be
deemed to constitute a part thereof, affect the meaning or interpretation of
this Agreement or of any term or provision hereof.
Section 9. ENTIRE AGREEMENT. This Agreement constitutes the
entire understanding and agreement of the parties hereto regarding the
employment of the Employee. This Agreement supersedes all prior negotiations,
discussions, correspondence, communications, understandings and agreements
between the parties relating to the subject matter of this Agreement.
Section 10. COUNTERPARTS. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original and all of
which together shall be considered one and the same agreement.
[Signatures appear on next page]
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date and year first above written.
PHARMION CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
EMPLOYEE
/s/ Xxxxxxx X. Xxxxxxx
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