Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") made effective as of the 11th
day of April, 2005(the "Effective Date"), by and between Advanced Life Sciences,
Inc., an Illinois corporation (the "Company"), and R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ (the
"Executive").
WHEREAS, the Company and the Executive previously entered into an
employment contract (the "Existing Employment Contract"); and
WHEREAS, the Company and the Executive desire to enter into this Agreement,
effective as of the Effective Date, to replace the Existing Employment Contract;
and
WHEREAS, the Company desires to employ the Executive in accordance with the
terms and conditions hereinafter set forth and the Executive desires to be so
employed; and
WHEREAS, the Company has agreed with the Executive that this Agreement
shall set forth the terms and conditions of the Executive's employment with the
Company;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the Company and the Executive agree as follows:
1. TERM. The employment of the Executive by the Company pursuant to this
Agreement shall begin as of the Effective Date and shall expire on the third
anniversary of the Effective Date (the "Term"), unless extended, as set forth
below, or otherwise terminated pursuant to the provisions of this Agreement;
PROVIDED, HOWEVER, that commencing on the third anniversary of the Effective
Date and on each anniversary thereafter, the Term of this Agreement shall
automatically be extended for one additional year unless, not later than 90 days
prior to such anniversary, the Executive or the Company shall have given notice
in writing that he or it does not wish to extend this Agreement.
2. POSITION AND DUTIES. The Executive shall serve as the Executive Vice
President and Chief Financial Officer of the Company, and shall have such
responsibilities, duties and authority as are assigned by the Chief Executive
Officer of the Company and are customarily associated with such position,
including but not limited to, those he may have as of the Effective Date. The
Executive shall report to the Chief Executive Officer of the Company. The
Executive shall devote such time to the performance of his duties as is
necessary to satisfactorily perform his responsibilities and duties.
3. PLACE OF PERFORMANCE. In connection with the Executive's employment by
the Company, the Executive shall be based at the principal executive offices of
the Company currently in Woodridge, Illinois, except for required travel on the
Company's business.
4. COMPENSATION AND RELATED MATTERS. During the Term of the Executive's
employment, as compensation and consideration for the performance by the
Executive of the Executive's duties, responsibilities and covenants pursuant to
this Agreement, the Company shall pay the Executive and the Executive agrees to
accept in full payment for such performance the amounts and benefits set forth
below.
(a) SALARY. The Company shall pay to the Executive an annual base
salary of $140,000 ("Base Salary"), payable in substantially equal
installments no less frequently than monthly in accordance with the
Company's applicable payroll practices. The amount of Base Salary shall be
reviewed annually by the Chief Executive Officer (with the first review to
occur prior to the first anniversary of the Effective Date) to determine
whether to increase the Base Salary on a prospective basis. The Executive's
Base Salary shall not be reduced after any increase, without the
Executive's consent.
(b) BONUS. The Executive shall be eligible to participate throughout
the Term in the Company's annual bonus plan or any similar or successor
bonus plan ("BONUS PLAN") in accordance with the Company's compensation
practices and the terms and provisions of the Bonus Plan. During the 2005
fiscal year of the Company, if the Executive achieves a financing milestone
event as may be established in the Bonus Plan, the Executive's Base Salary
shall increase up to a maximum annual Base Salary of $180,000 and the
Severance Period (as defined in Section 6(d) of this Agreement) shall
increase to twelve (12) months concurrent with the achievement of such a
financing milestone event. Further and in addition to any increase in Base
Salary, during the 2005 fiscal year of the Company, the Executive is
eligible for up to a maximum bonus that the Executive may receive under the
Bonus Plan is $175,000.
(c) STOCK INCENTIVE PLAN. As of the Effective Date, the Executive
shall be shall be eligible to receive additional awards of the Company's
common stock under the Stock Incentive Plan or under any other equity plan
of the Company as determined by the Board of Directors of the Company (the
"Board") in its discretion.
(d) OTHER BENEFITS AND PERQUISITES. During the Term of the
Executive's employment hereunder:
(i) BENEFIT PLANS. The Executive shall be entitled to
participate in or receive benefits under any employee pension or
welfare benefit plan or arrangement made available by the Company at
any time during his employment hereunder to its employees
(collectively the "Benefit Plans"), including without limitation each
qualified retirement plan, life insurance and accident plan, medical,
dental insurance plans, and disability plan, subject to and on a basis
consistent with the terms, conditions and overall administration of
such plans and arrangements, as they may be amended from time to time.
(ii) VACATION. The Executive shall be entitled to not less than
25 days of paid vacation in each calendar year, in accordance with the
Company's vacation policy.
(iii) EXPENSE REIMBURSEMENT. The Executive shall be entitled to
receive reimbursement for all reasonable business, travel or other
out-of-pocket expenses incurred by the Executive in fulfilling the
Executive's duties and responsibilities hereunder, provided that such
expenses are incurred and accounted for in accordance with the
policies and procedures established by the Company. Additionally, the
Company will reimburse the Executive upon expense receipt submission,
the annual expenses of membership in two (2)
financial groups and the annual costs of a health club membership and
physical examination up to an amount of $2,000 of total expenses per
year.
5. TERMINATION.
(a) The Executive's employment hereunder may be terminated under the
following circumstances:
(i) The death of the Executive;
(ii) By the Company for "Cause", which shall mean any of the
following:, as determined by the Board in its discretion: (A)
conviction of or plea of guilty or NOLO CONTENDERE to any criminal
violation involving dishonesty or fraud; (B) engagement in conduct
that is injurious to the Company; (C) engagement in any act of
dishonesty or misconduct that results in damage to the Company or its
business or reputation or that the Board determines to adversely
affect the value, reliability or performance of the Executive to the
Company; (D) refusal or failure to substantially comply with the
Company's human resources rules, policies, directions and/or
restrictions relating to harassment and/or discrimination, or with
compliance or risk management rules, policies, directions and/or
restrictions; (E) unauthorized use or disclosure of Confidential
Information (as defined below) or other trade secrets of the Company;
(F) loss of any license or registration that is necessary for the
Executive to perform his duties to the Company, or commission of any
act that could result in the legal disqualification of the Executive
from being employed by the Company or any of its affiliates; (G)
failure to cooperate with the Company or any of its affiliates in any
internal investigation or administrative, regulatory or judicial
proceeding; or (H) continuous failure by the Executive to perform his
duties to the Company (which may include any sustained and unexcused
absence of the Executive from the performance of such duties, which
absence has not been certified in writing as due to physical or mental
illness or disability), after a written demand for performance has
been delivered to the Executive identifying the manner in which the
Executive has failed to substantially perform such duties. The
application of any part of the definition of Cause set forth in
clauses (A) through (H) above to the Executive shall not preclude or
prevent the reliance by the Company or the Board on any other part of
the definition that also may be applicable. In addition, the
Executive's employment shall be deemed to have terminated for Cause
if, after the Executive's employment has terminated, facts and
circumstances are discovered that would have justified a termination
for Cause.
(iii) By mutual agreement between the Company and the Executive;
or
(iv) By the Executive or the Company for any reason other than
as stated in Sections 5(a)(i) through 5(a)(iii) above, upon providing
a Notice of Termination (as defined in Section 5(b)).
(b) NOTICE OF TERMINATION. Any termination of the Executive's
employment by the Company or by the Executive (other than a termination
pursuant to Section 5(a)(i) above) shall be communicated by written Notice
of Termination to the other party hereto in accordance with Section 10. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice
that shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated.
(c) "Date of Termination" shall mean (i) if the Executive's
employment is terminated pursuant to Section 5(a)(i) above, the date of his
death; (ii) if the Executive's employment is terminated pursuant to Section
5(a)(ii) or 5(a)(iv) above, the date such Notice of Termination is given
(or such later date as provided therein); (iii) if the Executive's
employment is terminated pursuant to Section 5(a)(iii) above, the date
mutually agreed to by the parties; (iv) the date the Term of this Agreement
expires, if either the Company or the Executive provides notice in
accordance with Section 1; or (v) if the Executive terminates his
employment and fails to provide written notice to the Company of such
termination, the date of such termination.
6. COMPENSATION UPON TERMINATION.
(a) The following payments shall be made upon the Executive's
termination of employment for any reason: (i) earned but unpaid Base Salary
through the Executive's Date of Termination; (ii) any accrued but unpaid
vacation; (iii) unreimbursed business expenses owed pursuant to Section
4(d)(iii); and (iv) any amounts payable under any of the Company's Benefit
Plans in accordance with the terms of those plans. All amounts under
clauses (i) through (iii) shall be paid in a lump sum on the Executive's
Date of Termination or as soon as administratively practicable thereafter.
(b) In the event the Executive's employment is terminated pursuant to
Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant
to Section 5(a)(iv), above, the Company shall have no further obligation to
the Executive under this Agreement, other than the payments in Section
6(a).
(c) If the Executive's employment is terminated by the parties
pursuant to Section 5(a)(iii) above, the Executive shall be entitled to
receive the compensation the parties specify in any written agreement that
the Company and the Executive execute regarding the Executive's
termination.
(d) In addition to the payments made under Section 6(a), if the
Executive's employment is terminated by the Company without Cause pursuant
to Section 5(a)(iv) above, the Company shall, for a period of nine (9)
months (the "Severance Period") following the Date of Termination, (i)
provide to Executive salary continuation, at Executive's Base Salary rate
then in effect, and (ii) continue the Executive's coverage under the
Benefit Plans in which the Executive participated immediately prior to the
Date of Termination, provided, however, that if the Company cannot continue
such coverage, the Company shall provide or arrange to provide, at its
expense, similar coverage to the
Executive. Notwithstanding the forgoing, vacation days shall not accrue
during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any
payment provided for in this Section 6 by seeking other employment or
otherwise, nor shall the amount of any payment or benefit provided for in
this Section 6 be reduced by any compensation earned by the Executive as
the result of employment by another employer, by retirement benefits, by
offset against any amount claimed to be owed by the Executive to the
Company, or otherwise.
(f) The obligations of the Company to make payments and provide
benefits under this Section 6 shall survive the termination of this
Agreement.
7. Change in Control.
(a) Payments and Benefits Upon Employment Termination Upon a Change
in Control. If the Executive's employment is terminated other than for
Cause within 24 months after a Change in Control (as defined below), the
Company shall provide the following payments and benefits to the Executive,
in lieu of those payments and benefits provided under Sections 6(d), but in
addition to the amounts payable under Section 6(a):
(i) The Company shall pay the Executive a lump sum cash amount
equal to two (2) times the sum of (A) the Executive's Base Salary as
in effect on the date of the Executive's termination of employment and
(B) the Executive's target bonus amount for the fiscal year in which
the Executive's employment is terminated OR an amount equal to the
annual bonus paid to the Executive during the fiscal year immediately
preceding the Executive's termination of employment.
(ii) The Company shall continue the Executive's coverage under
the Benefit Plans in which the Executive participated immediately
prior to the Executive's termination of employment for a period of 24
months, provided, however, that if the Company cannot continue such
coverage, the Company shall provide or arrange to provide, at its
expense, similar coverage to the Executive.
(b) Timing of Payment. All payments under Section 7(a) shall be made
in a lump sum cash payment as soon as practicable, but in no event more
than 10 days after the Executive's termination of employment.
(c) Definitions. For purposes of this Agreement, the following terms
shall have the following definitions:
(i) "Change in Control" means the occurrence of any one or
more of the following:
(A) Any "person" (as such term is defined in Section
3(a)(9) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and as used in Sections 13(d)(3) and 14(d)(2) of
the Exchange Act), including a "group" (as defined in Section
13(d)(3) of the Exchange Act),
other than (I) the Company, (II) any wholly-owned subsidiary of
the Company, (III) any employee benefit plan (or related trust)
sponsored or maintained by the Company or any of its affiliates,
or (IV) a "Permitted Holder" (as defined below), becomes a
"beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company having
fifty percent (50%) or more of the combined voting power of the
then-outstanding securities of the Company that may be cast for
the election of directors of the Company (other than as a result
of an issuance of securities initiated by the Company in the
ordinary course of business) (the "Company Voting Securities");
provided, however, that the event described in this Section
7(c)(i) shall not be deemed to be a Change in Control by virtue
of any underwriter temporarily holding securities pursuant to an
offering of such securities;
(B) During any period of two consecutive years,
individuals who at the beginning of any such period constitute
the Board (the "Incumbent Directors") cease for any reason to
constitute at least a majority of the Board, unless the election,
or the nomination for election by the stockholders of the
Company, of each new director of the Company during such period
was approved by a vote of at least two-thirds of the Incumbent
Directors then still in office;
(C) As the result of, or in connection with, any cash
tender or exchange offer, merger or other business combination,
sale of all or substantially all of the Company's assets or
contested election, or any combination of the foregoing
transactions, less than a majority of the combined voting power
of the then-outstanding securities of the Company or any
successor corporation or entity entitled to vote generally in the
election of the directors of the Company or such other
corporation or entity after such transaction is held in the
aggregate by the holders of the securities of the Company
entitled to vote generally in the election of directors of the
Company immediately prior to such transaction; or
(D) The stockholders of the Company approve a plan of
complete liquidation or dissolution of the Company.
Notwithstanding the foregoing, a Change in Control shall
not be deemed to occur solely because any person acquires
beneficial ownership of more than fifty percent (50%) of the
Company Voting Securities as a result of the acquisition of
Company Voting Securities by the Company which reduces the number
of Company Voting Securities outstanding; provided, however, that
if after such acquisition by the Company such person becomes the
beneficial owner of additional Company Voting Securities that
increases the percentage of outstanding Company Voting Securities
beneficially owned by such person, a Change in Control
transaction shall then occur.
Further notwithstanding the foregoing, unless a majority
of the Incumbent Directors determines otherwise, no Change in
Control shall be deemed to have occurred with respect to the
Executive if the Change in Control results from actions or events
in which the Executive is a participant in a capacity other than
solely as an officer, employee or director of the Company or any
of its affiliates.
(ii) "Permitted Holders" means (A) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the
"Principal"), (B) the spouse or any immediate family member of the
Principal and any child or spouse of any spouse or immediate family
member of the Principal, (C) a trust, corporation, partnership or
other entity, the beneficiaries, stockholders, partners, owners or
persons beneficially holding, directly or indirectly, a controlling
interest of which consists of the Principal and/or such other persons
referred to in the immediately preceding clause (B), or (D) the
trustees of any trust referred to in clause (D).
(d) Treatment of Parachute Payments.
(i) Notwithstanding any other provisions of this Agreement,
and except as set forth below, in the event that any payment or
benefit received or to be received by the Executive in connection with
a Change in Control or the termination of the Executive's employment
(whether pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, any person whose actions
result in a Change in Control or any person affiliated with the
Company or such person) (all such payments and benefits, including
payments under Section 7(a) above, being hereinafter called "Total
Payments") is determined to be an "excess parachute payment" pursuant
to Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code"), or any successor or substitute provision of the Code, with
the effect that the Executive is liable for the payment of the excise
tax described in Code Section 4999 or any successor or substitute
provision of the Code (the "Excise Tax"), then, after taking into
account any reduction in the Total Payments provided by reason of Code
Section 280G in such other plan, arrangement or agreement, the cash
payments provided in Section 7(a)(i) of this Agreement shall first be
reduced, and the noncash payments and benefits shall thereafter be
reduced, to the extent necessary so that no portion of the Total
Payments is subject to the Excise Tax; provided, however, that the
Executive may elect (at any time prior to the payment of any Total
Payment under this Agreement) to have the noncash payments and
benefits reduced (or eliminated) prior to any reduction of the cash
payments under this Agreement.
(b) All determinations required to be made under this Section
7(d), and the assumptions to be utilized in arriving at such
determination, shall be made by the certified public accounting firm
used for auditing purposes by the Company immediately prior to the
date of the Executive's termination of employment or, if the parties
determine that such certified public accounting firm cannot make such
determination because of legal restrictions, the parties shall agree
on a different certified public accounting firm (such certified public
accounting firm is hereinafter referred to as the "Accounting Firm"),
which shall provide detailed supporting calculations both to the
Company and the Executive not later than 5 days prior to the date of
the Executive's termination of employment. The Company shall pay all
fees and expenses of the Accounting Firm. Any determination by the
Accounting Firm shall be binding upon the Company and the Executive,
except as provided in paragraph (c) below.
(c) As a result of the uncertainty in the application of Code
Sections 280G and 4999 at the time of the initial determination by the
Accounting Firm hereunder, it is possible that the Internal Revenue
Service (the "IRS") or other agency will claim that an Excise Tax, or
a greater Excise Tax, is due. If the Executive is required to make a
payment of any such Excise Tax, the Company will promptly pay the
Executive an additional amount equal to the amount, or greater amount,
of Excise Tax the Executive is required to pay (plus a gross up
payment for any income taxes, interest, penalties or additional Excise
Tax payable by Executive with respect to such Excise Tax or additional
payment), as determined by the Accounting Firm. The Executive will
notify the Company in writing of any claim by the IRS or other agency
that, if successful, would require payment by the Company of the
additional payments under this paragraph. The Executive and the
Company shall each reasonably cooperate with the other in connection
with any administrative or judicial proceedings concerning the
existence or amount of liability for Excise Tax with respect to the
Total Payments. The Company shall pay all fees and expenses of the
Executive relating to a claim by the IRS or other agency.
8. Restrictive Covenants.
(a) Trade Secrets. The Executive acknowledges that he has had and
shall have access to confidential information of the Company, whether or
not reduced to writing and whether in paper, electronic, digital, analog or
other format (including, but not limited to, trade secrets, know-how,
Inventions (as defined below), new product and product development
information, research results, marketing and sales programs, customer and
supplier information, financial data, employee records, cost information,
pricing information, sales and marketing strategies, the identity of
customers, information received by the Company under an obligation of
confidentiality to customers, and all information generated by the Company
for customers) relating to the past, present or planned business,
customers, clients, contacts, prospects and assets of the Company that is
unique, valuable and has not purposefully been made generally known to the
public by the Company ("Confidential Information"). Confidential
Information shall not include any information that: (i) is now, or
hereafter becomes, through no act or failure to act on the part of the
Executive that constitutes a breach of this Section 8, generally known or
available to the public; (ii) is hereafter furnished without restriction on
disclosure to the Executive by a third party, other than an employee or
agent of the Company, who is not under any obligation of confidentiality to
the Company; (iii) is disclosed with the written approval of the Company;
or (iv) is required to be disclosed or provided by law, court order, or
similar compulsion, including pursuant to or in connection with any legal
proceeding involving the parties hereto; provided, however, that such
disclosure shall be
limited to the extent so required or compelled; and provided further,
however, that if the Executive is required to disclose such Confidential
Information, the Executive shall give the Company notice of such disclosure
and cooperate in seeking suitable protections. The Executive acknowledges
that all Confidential Information, and all documents, files, reports,
drawings, designs, specifications, formulae, samples, data, writings,
tools, equipment, memory devices or any other tangible objects that
incorporate, contain, refer to or embody any Confidential Information
("Items"), acquired by the Executive in connection with the Executive's
employment with the Company are the property of the Company. Other than in
the course of performing services for the Company or otherwise authorized
in writing by the Company, the Executive shall not, at any time, directly
or indirectly use, divulge, furnish or make accessible to any person any
Confidential Information, but instead shall keep all Confidential
Information strictly and absolutely confidential. The Executive shall
deliver promptly to the Company, at the termination of his employment or at
any other time at the request of the Company, without retaining any copies,
all Items and any other documents or materials in the Executive's
possession relating, directly or indirectly, to any Confidential
Information.
(b) Non-competition. Beginning on the Effective Date and for a period
of twelve (12) months following Executive's Date of Termination (the
"Restricted Period"), Executive shall not directly or indirectly, alone or
in conjunction with any other party, own any interest in, operate, control,
engage in or participate as a partner, director, principal, officer,
employee, independent contractor or agent of, act as a consultant to,
perform any services for, or assist in any way any company, person, or
entity in the United States that is engaged in "Competing Services" (as
defined herein). Competing Services shall mean chemistry and biology
research and development relating to, arising from, connected with, or
competitive with or intended to be competitive with, any product or
research project as to which the Executive performed services for the
Company, or about which the Executive received access to Confidential
Information while employed by the Company. If the Executive obtains other
employment during the twelve-month period after the Executive's Date of
Termination, the Executive agrees to notify the Company in writing of the
name and address of such employer. The Executive understands, and the
Company agrees, that the Company shall pay to the Executive a monthly
amount equal to one month of the Executive's final Base Salary if the
Executive is unable to secure other employment as a direct result of this
Section 8(b). The Executive agrees and acknowledges that (i) the Company
shall be obligated to make such payment only upon a written request by the
Executive containing sufficient information for the Company to make a
determination that this Section 8(b) caused the Executive's inability to
secure other employment, and (ii) the Company shall be released from the
obligation to make such payment if the Company provides the Executive a
written release from this Section 8(b). The Company's obligation to make
payments under this Section 8(b) shall be made only for the period
beginning with the Executive's inability to secure other employment as a
result of this Section 8(b) and ending no later than the expiration of the
twelve-month period following the Executive's Date of Termination.
(c) Non-Solicitation of Employees. During the Restricted Period, the
Executive shall not, directly or indirectly solicit or induce, or attempt
to solicit or induce, any current employee of the Company, or any
individual who becomes an employee
during the Restricted Period, to leave his or her employment with the
Company or join or become affiliated with any other business or entity,
hire any employee of the Company or in any way interfere with the
relationship between any employee and the Company.
(d) Non-Solicitation of Customers. During the Restricted Period, the
Executive shall not, directly or indirectly, solicit or induce, or attempt
to solicit or induce, any customer, supplier, licensee, licensor or other
business relation of the Company to terminate its relationship or contract
with the Company, to cease doing business with the Company, or in any way
interfere with the relationship between any such customer, supplier,
licensee or business relation and the Company (including making any
negative statements or communications concerning the Company or their
employees).
(e) Inventions. The Executive acknowledges all inventions of the
Company (including, but not limited to, procedures, systems, machines,
methods, processes, uses, apparatuses, compositions of matter, designs, or
configurations of any kind, discovered, conceived, reduced to practice,
developed, made or produced) ("Inventions") that (i) relate to the present
or planned business of the Company or the work performed by the Company for
its customers, and (ii) are conceived or reduced to practice by the
Executive, either alone or with others, during the Executive's employment
with the Company or during a period of 120 days after the Executive's Date
of Termination, whether or not done during the Executive's regular working
hours, are the sole property of the Company, including, without limitation,
all domestic and foreign patent rights, rights of registration or other
protection under the copyright laws, or other rights pertaining to the
Inventions. For purposes of this Agreement, Inventions shall include any
improvements to an Invention and shall not be limited to the definition of
a patentable invention or copyrightable work of authorship as contained in
the United States patent or copyright laws. The Executive shall disclose
promptly and fully in writing to the Company each Invention, whether or not
reduced to practice, that the Executive conceives or learns (either alone
or jointly with others) during the Term of Employment. The Executive hereby
assigns to the Company, or its nominee, all of the Executive's right, title
and interest, including international priority rights, in and to all
Inventions (other than any Invention that was developed entirely on the
Executive's own time and for which no equipment, supplies, facilities or
trade secret information of the Company was used, unless such Invention
relates directly to the Company's business or to the Company's actual or
demonstrably anticipated research or development), and in and to all United
States or foreign patents, copyrights and other proprietary rights granted
thereon or resulting therefrom, and in and to all applications for United
States or foreign copyrights, patents and other proprietary rights. The
Executive shall execute all papers, perform all lawful acts or assist the
Company in any way the Company deems necessary or advisable (at the
Company's expense) for the preparation, filing, prosecution, issuance,
procurement, maintenance or enforcement of patents applications and patents
of the United States and foreign countries, and for obtaining and enforcing
copyright protection and registration, of any Invention. To that end, the
Executive shall at the Company's request and without limitation, testify in
any suit or other proceeding involving any of the Inventions, execute all
documents that the Company reasonably determines to be necessary or
convenient for use in applying for and obtaining patent or copyright
protection and registration on any of the Inventions and enforcement of
that protection
and registration, and execute all necessary documents and papers required
to vest title in and assign to the Company (or its nominee) patent or
copyright protection and registration. The Executive's obligation to assist
the Company in obtaining and enforcing patent or copyright protection and
registration for the Inventions shall continue following termination of
this Agreement, but Company shall compensate the Executive following the
expiration or termination of this Agreement at a rate of $10 for the
execution of each document and $150 per day for each day or portion thereof
spent at the Company's request in rendering assistance, plus reimbursement
for the reasonable out-of-pocket expenses incurred by the Executive for
such assistance. The Executive hereby irrevocably appoints the Company and
its duly authorized officers and agents as his agent and attorney-in-fact
to act for and on behalf of the Executive in filing all patent
applications, applications for copyright protection and registration
amendments, renewals and all other appropriate documents in any way related
to the Inventions.
(f) Survival. The provisions set forth in this Section 8 shall
survive termination of this Agreement.
(g) Scope Limitations. If the scope, period of time or area of
restriction specified in this Section 8 are or would be judged to be
unreasonable in any court proceeding, then the period of time, scope or
area of restriction shall be reduced or limited in the manner and to the
extent necessary to make the restriction reasonable, so that the
restriction may be enforced in those areas, during the period of time and
in the scope that are or would be judged to be reasonable.
9. Binding Agreement; Successors. This Agreement and all rights of the
Executive hereunder shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive should
die while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the Executive's devisee,
legatee, or other designee or, if there be no such designee, to the Executive's
estate. This Agreement shall be binding upon, and inure to the benefit of, any
successors or assigns of the Company. This Agreement is not intended to confer
upon any person other than the parties hereto (and the Executives' Spouse and
dependents) any rights or remedies, except as specifically provided in this
Section 9.
10. NOTICE. Notices, demands and all other communications provided for in
this Agreement shall be in writing and shall be deemed to have been duly given
when delivered, if delivered personally, or (unless otherwise specified) when
received, if mailed by United States certified or registered mail, return
receipt requested, postage prepaid, by Federal Express or other reputable
overnight courier service or by facsimile, addressed as follows:
If to the Executive:
R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
10Ambrose Lane
Barrington, IL 60010
If to the Company:
Advanced Life Sciences, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
11. GENERAL PROVISIONS. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and such officer of the Company as may be
specifically designated by the Company's Board. No waiver by either party hereto
at any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party that are not set forth expressly in this
Agreement.
12. VALIDITY. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect. If any provision of this Agreement is found to be invalid or
unenforceable, in whole or in part, then it shall be deemed to be modified or
restricted to the extent and in the manner necessary to render it valid and
enforceable, or shall be deemed excised from this Agreement, as the case may
require, and this Agreement shall be construed and enforced to the maximum
extent permitted by law, as if the provision had been originally incorporated
herein as so modified or restricted, or as if it had not originally been
incorporated herein, as the case may be.
13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
14. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto; and any prior agreement
of the parties hereto in respect of the subject matter contained herein is
hereby terminated and canceled. For the avoidance of doubt, the Company and the
Executive hereby agree that this Agreement shall replace and supercede the
Existing Employment Contract and govern the relationship of the parties.
15. IRREPARABLE HARM. The Executive acknowledges that: (i) the Executive's
compliance with this Agreement is necessary to preserve and protect the
proprietary rights, Confidential Information and the goodwill of the Company and
its subsidiaries as going concerns; (ii) any failure by the Executive to comply
with the provisions of this Agreement shall
result in irreparable and continuing injury for which there will be no adequate
remedy at law; and (iii) in the event that the Executive should fail to comply
with the terms and conditions of this Agreement, the Company shall be entitled,
in addition to such other relief as may be proper, to all types of equitable
relief (including, but not limited to, the issuance of an injunction and/or
temporary restraining order) as may be necessary to cause the Executive to
comply with this Agreement, to restore to the Company its property, and to make
the Company whole.
16. CONSENT TO JURISDICTION AND FORUM; LEGAL FEES AND COSTS. The Company
and the Executive hereby expressly and irrevocably agree that any action,
whether at law or in equity, arising out of or based upon this Agreement or the
Executive's employment by the Company shall only be brought in a federal or
state court located in ▇▇▇▇ County, Illinois. The Executive hereby irrevocably
consents to personal jurisdiction in such court and to accept service of process
in accordance with the provisions of such court. In connection with any dispute
arising out of or based upon this Agreement or the Executive's employment by the
Company, each party shall be responsible for its or his own legal fees and
expenses and all court costs shall be shared equally by the Company and the
Executive unless the court apportions such legal fees or court costs in a
different manner.
17. WITHHOLDING. All payments made to the Executive pursuant to this
Agreement shall be subject to applicable withholding taxes, if any, and any
amount so withheld shall be deemed to have been paid to the Executive for
purposes of amounts due to the Executive under this Agreement.
18. GOVERNING LAW. This Agreement is governed by and is to be construed
and enforced in accordance with the laws of the State of Illinois, without
regard to its conflict of law provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
EXECUTIVE ADVANCED LIFE SCIENCES, INC.
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------- ------------------------------
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer