EXHIBIT 10.12
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NONCOMPETITION AGREEMENT
To: MacroChem Corporation Date: June 5, 2001
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
The undersigned, in consideration of and as a condition of my employment or
continued employment by you and/or by companies that you own, control, or are
affiliated with or their successors in business (collectively, the "Company"),
and for other good and valuable consideration, hereby agrees as follows:
1. CONFLICTING EMPLOYMENT. I agree that during my employment with the
Company I will not engage in any other employment, occupation, consulting or
other activity relating to the business in which the Company is now or may
hereafter become engaged, or which would otherwise conflict with my obligations
to the Company.
2. OTHER ACTIVITIES DURING EMPLOYMENT.
2.1 Except for any outside employments and directorships currently held
by me as listed on Schedule A hereto, and except with the prior written consent
of a majority of the Company's Board of Directors, which consent will not be
unreasonably withheld, I will not, during my employment by the Company,
undertake or engage in any other employment, occupation or business enterprise,
other than one in which I am an inactive investor, that would interfere with my
obligations to the Company.
2.2 I hereby agree, that except as disclosed on Schedule A hereto,
during my employment by the Company, I will not, directly or indirectly, engage
(a) individually, (b) as an officer, (c) as a director, (d) as an employee, (e)
as a consultant, (f) as an advisor, (g) as an agent (whether a salesperson or
otherwise), (h) as a broker, or (i) as a partner, coventurer, stockholder or
other proprietor owning directly or indirectly more than five percent (5%)
interest in any firm, corporation, partnership, trust, association, or other
organization which is engaged in the development and licensing of transdermal
delivery products or any other line of business in competition with, or engaged
in or under demonstrable development by the Company (such firm, corporation,
partnership, trust, association, or other organization being hereinafter
referred to as a "Prohibited Enterprise"), without the consent of the Company,
which consent will not be unreasonably withheld. Except as may be shown on
Schedule A hereto, I hereby represent that I am not engaged in any of the
foregoing capacities (a) through (i) in any Prohibited Enterprise.
3. POST-EMPLOYMENT ACTIVITIES.
3.1 For a period of one (1) year after the voluntary termination of my
employment with the Company, absent the Company's prior written approval I will
not directly or indirectly engage in activities similar or reasonably related to
those in which I shall have engaged for the Company during the two years
immediately preceding termination, nor render services similar or reasonably
related to those which I shall have rendered during such time to, any person or
entity whether existing or hereafter established that directly competes with (or
proposes or plans to directly compete with) the Company, or in other areas where
the Company carries on a substantial amount of business ("Direct Competitor").
In addition, I shall not entice, induce or encourage any of the Company's other
employees to engage in any activity that, were it done by me, would violate any
provision of this Agreement.
3.2 No provision of this Agreement shall be construed to preclude me
from performing the same services that the Company retains me to perform for any
person or entity that is not a Direct Competitor of the Company upon the
termination of my employment (or any post-employment consultation) so long as I
do not thereby violate any term of this Agreement.
4. REMEDIES. My obligations under this Agreement shall survive the
termination of my employment with the Company. I acknowledge that a remedy at
law for any breach or threatened breach by me of the provisions of this
Agreement would be inadequate and I therefore agree that the Company shall be
entitled to injunctive relief in case of any such breach or threatened breach.
5. MODIFICATION. I agree that any subsequent change or changes in my
employment duties, salary or compensation or, if applicable, in any Employment
Agreement between the Company and me, shall not affect the validity or scope of
this Agreement.
6. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon my heirs,
executors, administrators or other legal representatives and is for the benefit
of the Company, its successors and assigns.
7. INTERPRETATION. IT IS THE INTENT OF THE PARTIES THAT in case any one or
more of the provisions contained in this Agreement shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect the other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein. MOREOVER, IT IS THE
INTENT OF THE PARTIES THAT if any provision of this Agreement is or becomes or
is deemed invalid, illegal or unenforceable or in case any one or more of the
provisions contained in this Agreement shall for any reason be held to be
excessively broad as to duration, geographical scope, activity or subject, such
provision shall be construed by amending, limiting and/or reducing it to conform
to applicable laws so as to be valid and enforceable or, if it cannot be so
amended without materially altering the intention of the parties, it shall be
stricken and the remainder of this Agreement shall remain in full force and
effect.
8. WAIVERS. No waiver of any right under this Agreement shall be deemed
effective unless contained in a writing signed by the party charged with such
waiver, and no waiver of any right arising from any breach or failure to perform
shall be deemed to be a waiver of any future such right or of any other right
arising under this Agreement. If either party should waive any breach of any
provision of this Agreement, he or it shall not thereby be deemed to have waived
any preceding or succeeding breach of the same or any other provision of this
Agreement.
9. COMPLETE AGREEMENT, AMENDMENTS. The foregoing including Schedule A
attached hereto is the entire agreement of the parties with respect to the
subject matter hereof, superseding any previous oral or written communications,
representations, understandings, or agreements with the Company or any officer
or representative thereof. Any amendment to this Agreement or waiver by either
party of any right hereunder shall be effective only if evidenced by a written
instrument executed by the parties hereto, and, in the case of the Company, upon
written authorization of the Company's Board of Directors.
10. HEADINGS. The headings of the Sections contained in this Agreement are
inserted for convenience and reference only and in no way define, limit, extend
or describe the scope of this Agreement, or the intent of any provision hereof,
and shall not be deemed to constitute a part hereof nor to affect the meaning of
this Agreement in any way.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Massachusetts,
excluding its conflict of law principles.
Very truly yours,
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Director, Legal Affairs
Agreed:
MacroChem Corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
President & C.E.O.
SCHEDULE A
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OUTSIDE EMPLOYMENTS AND DIRECTORSHIPS
