EXHIBIT 10.9
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 1 (the "AMENDMENT"), dated as of March 5, 2003,
is made by and between INTERLEUKIN GENETICS, INC., a Delaware corporation
("EMPLOYER"), and XXXXXX X. XXXXXX, an individual ("EMPLOYEE"). Employer and
Employee are parties to an Employment Agreement, dated April 1, 2000 (the
"EMPLOYMENT AGREEMENT"). Terms not otherwise defined in this Amendment shall
have the meanings given to them in the Employment Agreement.
The parties agree as follows:
1. This Amendment shall be effective upon the "Closing," as defined in the
Stock Purchase Agreement, dated as of the date of this Amendment, between
Employer and Pyxis Innovations Inc., a Delaware corporation.
2. In Section 1 of the Employment Agreement, the Term is extended to
continue until three (3) years following the date of the Closing.
3. In addition to any bonuses that may be received under Section 4 of the
Employment Agreement, Employee shall receive a bonus of $50,000 to be paid in
the following manner, provided that Employee is still employed by Employer at
the time of each payment:
a) $25,000 on the six (6) month anniversary of the date of the
Closing;
b) $25,000 on the twelve (12) month anniversary of the date of the
Closing.
4. In consideration of the bonus set forth in Section 3 above and the
severance and other benefits provided in the Employment Agreement and below,
Employee agrees as follows:
(a) Non-Competition. In consideration of the benefits of the
Employment Agreement, including Employee's access to and limited use of
proprietary and confidential information of the Company, as well as
training, education and experience provided to Employee by the Company
directly and/or as a result of work projects assigned by the Company with
respect thereto, Employee hereby covenants and agrees that during the term
of the Employment Agreement and for a period of twelve (12) months
following termination of the Employment Agreement, regardless of how such
termination may be brought about, Employee shall not, directly or
indirectly, as proprietor, partner, stockholder, director, officer,
employee, consultant, joint venturer, investor or in any other capacity,
engage in, or own, manage, operate or control, or participate in the
ownership, management, operation or control, of any entity which engages
anywhere in the world in any business activity which is competitive to
current business activities in which the Company participates during
Employee's employment with the Company; provided however, the foregoing
shall not, in any event, (i) prohibit Employee from purchasing and holding
as an investment not more than 1% of any class of publicly traded
securities of any entity which conducts a business in competition with the
business of the Company, so long as Employee does not participate in any
way in the management, operation or control of such entity, or (ii)
prohibit Employee from continuing to own an equity interest of less than
20% in GeneSage, Inc. It is further recognized and agreed that, even
thought an activity may not be restricted under the foregoing provision,
Employee shall not during the term of the Employment Agreement and for a
period of twelve (12) months following termination of the Employment
Agreement, regardless of how such termination may be brought about,
provided any services to any person or entity which may be used against,
or in conflict with the interests of, the Company or its customers or
clients.
(b) Judicial Reformation. Employee acknowledges that, given the
nature of the Company's business, the covenants contained in Section (a)
above establish reasonable
limitations as to time, geographic area and scope of activity to be
restrained and do not impose a greater restraint than is reasonably
necessary to protect and preserve the goodwill of the Company's business
and to protect its legitimate business interests. If, however, Section (a)
above is determined by any court of competent jurisdiction to be
unenforceable by reason of its extending for too long a period of time or
over too large a geographic area or by reason of it being too extensive in
any other respect or for any other reason, it will be interpreted to
extend only over the longest period of time for which it may be
enforceable and/or over the largest geographic area as to which it may be
enforceable and/or to the maximum extent in all other aspects as to which
it may be enforceable, all as determined by such court.
(c) Customer Lists; Non-Solicitation. In consideration of the
benefits of the Employment Agreement, including Employee's access to and
limited use of proprietary and confidential information of the Company, as
well a training, education and experience provided to Employee by the
Company directly and/or as a result of work projects assigned by the
Company with respect thereto, Employee hereby further covenants and agrees
that for a period of twelve (12) months following the termination of the
Employment Agreement, regardless of how such termination may be brought
about, Employee shall not, directly or indirectly, (i) use or make known
to any person or entity the names or addresses of any clients or customers
of the Company or any other information pertaining to them, (ii) call on
for the purpose of competing, solicit, take away or attempt to call on,
solicit or take away any clients or customers of the Company on whom
Employee called or with whom he became acquainted during his employment
with the Company, nor (iii) recruit or attempt to recruit any employees of
the Company.
(d) Affiliates. When used in Sections (a), (b) and (c) above, the
term "Company" includes Interleukin Genetics, Inc. and all affiliates and
subsidiaries of Interleukin Genetics, Inc.
5. Section 6(f) is added to the Employment Agreement:
Upon the expiration of the term of this Agreement, Employee shall be
entitled to receive from Employer all of the compensation and
benefits provided for in Section 7(e). In addition, if Employee is
terminated pursuant to Section 7(b)(ii) or Section 7(e) or if
Employee's employment terminates as a result of the expiration of
the term of this Agreement, then the period during which Employee
may exercise all stock options granted to him by the Company shall
be extended until two years after the date Employee is terminated.
6. Section 7(e) is amended by deleting the words "the earlier of occur of
(A) the expiration of the remaining portion of the term or (B)" in the seventh
and eighth lines thereof.
7. Except as amended, hereby, all of the terms and conditions of the
Employment Agreement shall remain in full force and effect. This Amendment shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
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This Amendment No. 1 to the Employment Agreement has been executed
and delivered by the parties hereto as of the date first above written.
INTERLEUKIN GENETICS, INC.
By /s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxxx XXXXXX X. XXXXXX
Its President
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