EXHIBIT D
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of [ INSERT DATE ] (the "Effective Date"),
between ENHANCE BIOTECH, INC., a corporation organized under the laws of the
State of Delaware ("Employer"), and Kwen-Xxx Xxxxx ("Executive").
WHEREAS, Executive desires to provide services to Employer and Employer
desires to retain the services of Executive;
WHEREAS, Employer and Executive desire to formalize the terms and
conditions of Executive's employment with Employer.
NOW, THEREFORE, Employer and Executive hereby agree as follows:
1. Employment.
1.1. General.
1.1.1 Effective as of the Effective Date, Employer hereby
employs Executive in the capacity of Chief Science Officer. Executive hereby
accepts such employment upon the terms and subject to the conditions herein
contained. Commencing on the Effective Date, Executive shall have the duties set
forth on Schedule 1 attached hereto. Executive agrees to perform the foregoing
duties and responsibilities as well as such other duties as may be requested by
the Board of Directors of Employer (the "Board of Directors") and the President
and Chief Executive Officer of Employer.
1.1.2 During Executive's employment with Employer, Executive
will report directly to, and take direction from, the Board of Directors and the
President and Chief Executive Officer of Employer.
1.2. Board of Directors. For so long as Executive is serving as
Chief Science Officer of Employer, Executive agrees, if so requested by
Employer, to serve as a member of Board of Directors without additional
compensation.
1.3. Exclusive Full-Time Position. Executive, during Executive's
employment with Employer, will devote Executive's best efforts and all of
Executive's business time, attention and skills to the business and affairs of
Employer, it being understood that Executive shall not be employed by or provide
services to any other person or entity during Executive's employment with
Employer. Notwithstanding the foregoing, Executive shall be permitted to (i)
serve as a member of the board of unaffiliated companies but only if such
service is with the prior written consent of the Board of Directors, which
consent may be withheld in the sole discretion of the Board of Directors; (ii)
serve on civic, professional or charitable boards or committees, and (iii)
manage personal investments; provided, however, that Executive may not engage in
any of the activities described in this sentence to the extent such activities
(x) prevent Executive from devoting substantially all of Executive's business
time to Employer, (y) adversely affect the performance of Executive's duties and
responsibilities to Employer or (z) violate any other provision of this
Agreement.
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1.4. Location of Employment. Executive's principal place of
employment during Executive's employment with Employer shall be in Durham, North
Carolina or such other location as Employer and Executive shall agree. Executive
acknowledges that the proper performance of Executive's duties may require
travel and Executive agrees to engage in such travel as may be required during
Executive's employment.
2. Compensation and Benefits.
2.1. Salary. During the period of Executive's employment pursuant to
this Agreement, Employer will pay to Executive a base salary ("Base Salary") at
an annual rate of Two Hundred Twenty Two Thousand Eight Hundred Twenty Dollars
($222,820), payable in accordance with the customary payroll practices of
Employer. Executive's Base Salary shall be reviewed in accordance with the
policy of Employer from time to time, but in any event no less than annually,
and may be subject to upward adjustment based upon, among other factors,
Executive's performance, as determined in the sole discretion of the Board of
Directors. In no event shall Executive's Base Salary in effect at a particular
time be reduced without Executive's prior written consent.
2.2. Additional Compensation. The compensation set forth in this
Section is in addition to the Base Salary and other benefits set forth in
Section 2.
2.2.1 Annual Bonus. Executive shall be eligible for and the
Board of Directors may, in its sole discretion, award Executive a
bonus (the "Annual Bonus") based upon the attainment of performance targets and
other reasonable criteria established by the Board of Directors. The Annual
Bonus shall be paid to Executive at the same time it is paid to other eligible
employees. Except as specifically set forth in this Agreement, Executive must be
employed on the date the bonus is paid in order to earn the Annual Bonus.
2.2.2 Stock Options. As additional consideration for
Executive's performance of services hereunder, upon the Effective Date, Employer
shall issue to Executive, pursuant to Employer's 2004 Incentive Plan, options
(the "Options") to purchase 1 Million shares of Employer's common stock, $0.001
par value per share. It is intended that the maximum amount of these Options as
permitted under law qualify as an "incentive stock option" under Section 422 of
the Code, and to the extent that all or any portion of the Options do not so
qualify, the Options shall be treated as non-qualified options. The Options
shall have a per share exercise price equal to not less than the fair market
value on the date of grant and shall expire on a date to be established by the
Board of Directors or the applicable committee administering the Employer's 2004
Incentive Plan, but no later than the tenth anniversary of the Effective Date.
The Options are subject to the following vesting schedule; provided, however,
that Executive must be an employee of Employer on the applicable vesting date in
order for such Options to vest: 25% of the Options shall vest on the date of
grant and 25% of the Options shall vest on each of the first, second and third
anniversaries of the date of grant.
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2.3. Executive Benefits. In addition to the Base Salary and
additional compensation set forth in Section 2, Executive shall also be entitled
to the following benefits during Executive's employment hereunder:
2.3.1. Expenses. Employer shall, subject to Employer's expense
reimbursement policies as established or amended from time to time, promptly
reimburse Executive for expenses Executive reasonably incurs in connection with
the performance of Executive's duties (including, without limitation,
reimbursement for professional society membership fees and fees to attend
meetings of such professional societies, business travel and entertainment
expenses); provided, that Executive has provided Employer with documentation of
such expenses in accordance with Employer's expense reimbursement policies and
applicable tax requirements.
2.3.2. Employer Plans. Executive will be entitled to
participate in the employee benefit plans and programs generally provided to
employees by Employer from time to time, including, but not limited to,
participation in any 401(k), life insurance, health and accident, medical and
dental, disability and retirement plans and programs, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans
and programs. Employer retains the unilateral right to amend, modify or
terminate any of its employee benefit plans and programs at any time.
2.3.3. Vacation. Executive shall be entitled to twenty (20)
working days of paid vacation leave per year. Vacation must be scheduled at
those times most convenient to Employer's business as reasonably determined by
the Board of Directors and the President and Chief Executive Officer.
2.3.4. Coverage. Nothing in this Agreement shall prevent
Executive from participating in any other compensation plan or benefit plan made
available to Executive by Employer.
2.3.5. Life/Key Man Insurance. Providing Executive is
insurable at commercially reasonable rates, Employer shall obtain term life
insurance on the life of Executive in the amount of at least $500,000, at
Employer's expense, and Executive may name the beneficiary of the policy.
Employer shall have the right, but not the obligation, to obtain key man life
insurance on the life of employee at Employer's expense, in reasonable amounts,
but not less than the amounts set forth in the preceding sentence.
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2.4. Taxes and Withholding. Employer shall have the right to deduct
and withhold from all compensation payable to Executive all Medicare, social
security, and other federal, state and local taxes and charges which currently
are or hereafter may be required by law to be so deducted or withheld.
2.5. Employment Term. Executive's employment by Employer pursuant to
this Agreement shall commence as of the Effective Date and, except as provided
in Section 3.1 hereof, will continue at-will until the third anniversary of the
Effective Date. On the third anniversary of the Effective Date this Agreement
shall terminate and, unless Executive and the Employer enter into a new
employment agreement, Executive shall thereafter be an employee at-will subject
to the general employment policies and practices of the Employer.
3. Termination of Employment.
3.1. Events of Termination. Executive's employment with Employer
will terminate upon the occurrence of any one or more of the following events:
3.1.1. Death. In the event of Executive's death, Executive's
employment will terminate on the date of death.
3.1.2. Disability. In the event of Executive's Disability (as
hereinafter defined), Employer will have the option to terminate Executive's
employment by giving a written notice of such termination to Executive. For
purposes of this Agreement, "Disability" means Executive's inability as a result
of a physical or mental illness to perform Executive's duties which has
continued or is expected to continue for an aggregate of 90 days (not including
permitted vacation days and holidays) during any consecutive 365 day period, as
determined in good faith by the Board of Directors upon the advice of an
independent physician.
3.1.3. Termination by Employer for Cause. Employer may, at
it's option, terminate Executive's employment for "Cause" upon giving written
notice of such termination to Executive. As used in this Agreement, the term
"Cause" shall include but not necessarily be limited to (i) conviction of, or
plea of nolo contendere to, a felony or a crime involving moral turpitude; (ii)
engagement in conduct which has the effect of bringing disrepute to the
Employer's reputation or hold the Employer or the Executive up to public
ridicule; (iii) fraud on or misappropriation of any funds or property of the
Employer, any affiliate, customer or vendor; (iv) willful violation of any law,
rule or regulation (other than minor traffic violations or similar offenses);
(v) personal dishonesty, willful misconduct, or breach of fiduciary duty which
involves personal profit; (vi) gross incompetence in the performance of the
Executive's duties under this Agreement; (vii) willful misconduct in connection
with the Executive's duties or willful failure to perform the Executive's
responsibilities in the best interests of the Employer; (vii) habitual
absenteeism or inattention to the Executive's duties; (ix) chronic use of
alcohol, drugs or other similar substances (other than pursuant to medical
prescriptions and under doctors' supervision for treatment of legitimate
illnesses or conditions) which affects the Executive's work performance; (x)
violation of any Employer rule, regulation, procedure or policy which has, or
may reasonably be expected to have, a material adverse effect on the Employer;
(xi) engaging in behavior that would constitute grounds for liability for
harassment (as proscribed by the U.S. Equal Employment Opportunity Commission
Guidelines or any other applicable state or local regulatory body) or other
egregious conduct that violates laws governing the workplace; or (xii) material
breach of any material provision of any employment, non-disclosure,
non-competition, non-solicitation or other similar agreement executed by the
Executive for the benefit of the Employer (including, without limitation, such
provisions within this Agreement) or of any material Employer policy, all as
determined by the Board of Directors, which determination will be conclusive.
Notwithstanding anything to the contrary, employment may not be terminated for
Cause in the event that the Executive becomes permanently disabled as set forth
in this Agreement or dies. Anything herein to the contrary notwithstanding, the
Employer shall give the Executive written notice prior to terminating the
Executive's employment for Cause under any circumstance in which the conduct
constituting Cause is reasonably open to cure (for instance, by way of
illustration only, where the Cause does not involve a violation of trust or
otherwise adversely affect the relationship between the Executive and the
Employer on a going-forward basis or involve commission of an act, such as a
felony, or an unauthorized disclosure of confidential material, or an act which
may constitute illegal harassment under laws governing the workplace, which
can't be undone), setting forth in reasonable detail the nature of any alleged
breach and the conduct required to cure such breach. If, and only if, the nature
of the breach is such that the breach is reasonably open to cure, then the
Executive shall have fourteen (14) days from the giving of such notice within
which to cure such breach.
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3.1.4. Without Cause By Employer. Employer may, at its option,
terminate Executive's employment for any reason whatsoever (other than for the
other reasons set forth above in this Section 3.1) by giving written notice of
such termination to Executive, and Executive's employment shall terminate on the
later of the date the written notice of such termination is given or the date
set forth in such written notice.
3.1.5. For Good Reason by Executive. Executive may, at
Executive's option, terminate Executive's employment for "Good Reason" by giving
written notice of termination to Employer in the event that there is a failure
of Employer (or successor employer) to promptly pay Executive's salary or
additional compensation or benefits hereunder in accordance with this Agreement
in any material respect. It shall also be considered Good Reason for termination
by Executive if, in the event of a Change of Control (as defined below), any
successor employer fails to fully assume Employer's obligations under this
Agreement. For purposes, of this Agreement, a "Change of Control", shall mean
(i) the dissolution or liquidation of Employer, or (ii) the consummation of any
merger or consolidation of Employer other than in a transaction in which
Employer is the surviving corporation or a majority of the board of directors of
the surviving corporation were directors of Employer before such transaction or
are designated by the former shareholders of Employer, or (iii) a sale or other
disposition of all or substantially all of the then-outstanding capital stock of
Employer or a sale or other disposition of all or substantially all of
Employer's assets. Good Reason shall also include any requirement that Executive
move his principal office to a location outside the Research Triangle area of
North Carolina.
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3.1.6. Without Good Reason By Executive. Executive may
terminate Executive's employment for any reason (other than for Good Reason) by
giving written notice of such termination to Employer. Executive's employment
shall terminate on the earlier of (i) the date, following the date of the notice
of termination, upon which a suitable replacement for Executive is found by
Employer or upon which Employer makes a determination, in its sole discretion,
that Executive's duties shall be undertaken by other employees of Employer, or
(ii) sixty (60) days after the date of receipt by Employer of the written
notice.
3.2. Certain Obligations of Employer Following Termination of
Executive's Employment. Following the termination of Executive's employment
under the circumstances described below, Employer will pay to Executive in
accordance with its regular payroll practices the following compensation and
provide the following benefits:
3.2.1. Death; Disability. In the event that Executive's
employment is terminated by reason of Executive's death or Disability, Executive
or Executive's estate, as the case may be, shall be entitled to the following:
(i) that portion of any unpaid Base Salary up to and including
the date of such termination and any accrued but unused vacation up to and
including the date of such termination (the "Accrued Amount");
(ii) any accrued but unpaid Annual Bonus for any year prior to
the year in which such termination occurred ("Prior Annual Bonuses");
(iii) any unreimbursed business expenses incurred prior to the
date of such termination ("Expense Reimbursement");
(iv) all benefits generally available under the employee
benefit plans, and the policies and practices of Employer, determined in
accordance with the applicable terms and provisions of such plans, policies and
practices, in each case, as accrued to the date of termination ("Accrued
Benefits") or otherwise payable as a consequence of Executive's death or
Disability; and
(v) the right to exercise all options that are fully vested as
of the date of such termination for the remainder of the term of such options as
fully set forth in the applicable grant agreement.
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3.2.2. Without Cause by Employer; For Good Reason by
Executive. In the event that Executive's employment is terminated by Employer
pursuant to Section 3.1.4 hereof or by Executive pursuant to Section 3.1.5
hereof, Executive shall be entitled to the following:
(i) continuing payments of then current Base Salary for the
following period (each such period as applicable, the "Severance Period"):
(a) if such termination occurs
prior to the first anniversary of
the Effective Date, for the period
beginning on the date of such
termination and ending on the
second anniversary of the Effective
Date, or
(b) if such termination occurs on
or after the first anniversary of
the Effective Date, for the twelve
(12) month period following such
termination;
and
(ii) continuing coverage under Employer's employee benefit
plans during the Severance Period or if earlier, until Executive is covered
under the employee benefit plans of another employer;
(iii) the Accrued Amount, Prior Annual Bonuses, Expense
Reimbursement and Accrued Benefits; and
(iv) any unvested portion of any options previously granted to
Executive that is scheduled to vest during the Severance Period shall vest
immediately as of the date of such termination and Executive shall have the
right to exercise all options that are fully vested as of the date of such
termination (including, those vested by acceleration on the date of such
termination) for the remainder of the term of such options as fully set forth in
the applicable grant agreement.
3.2.3. Termination by Executive Without Good Reason or by
Employer for Cause. In the event Executive's employment is terminated by
Executive pursuant to Section 3.1.6 or Section 3.1.7 hereof or by Employer
pursuant to Section 3.1.3 hereof, Executive shall be entitled to the Accrued
Amount, Expense Reimbursement and Accrued Benefits.
3.2.4. Termination on the Third Anniversary of the Effective
Date. In the event Executive's employment is terminated upon the expiration of
this Agreement on the third anniversary of the Effective Date, Executive shall
not be entitled to any compensation, benefits or severance of any kind, except
as required by law.
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3.3. Nature of Payments. All amounts to be paid by Employer to
Executive pursuant to this Section 3 are considered by the parties to be
severance payments. In the event such payments are treated as damages, it is
expressly acknowledged by the parties that damages to Executive for termination
of employment would be difficult to ascertain and the above amounts are
reasonable estimates thereof.
3.4. Release. Notwithstanding anything to the contrary, neither the
Executive nor the Executive's estate shall be entitled to receive any
compensation, reimbursement or benefits upon termination of employment (other
than as required by law) unless the Executive or the Executive's estate, as the
case may be, executes and delivers to the Employer promptly after termination a
written release, in form and substance reasonably satisfactory to the Employer,
by which the Executive and the Executive's estate, as the case may be, releases
the Employer from any obligations and liabilities of any type whatsoever related
to Executive's employment under this Agreement, except for the Employer's
obligations with respect to Section 3.2 of this Agreement, which release shall
not affect the Executive's estate's right, if any, to indemnification with
respect to, or insurance in respect of, any actions taken within the scope of
the Executive's employment, or the Executive's or the Executive's estate's
rights in respect of the Executive's vested securities. The parties hereto
acknowledge that the compensation, reimbursement and benefits to be provided
under Section 3.2 are to be provided in consideration for the above-specified
release, as well as for Executive's agreement to be bound by the provisions of
Section 3.5 and Section 4.
3.5. Other Provisions Applicable to Termination of Employment.
(1) At any time after notice to terminate this
Agreement has been served or received by the Employer, the Employer,
without being deemed in breach of this Agreement or being deemed to be
taken steps which would constitute grounds for a different kind of
termination under this Agreement, may require the Executive to do the
following during the applicable notice period concluding on the
effective date of termination of employment under this Agreement:
(i) work in a capacity consistent with the
Executive's then applicable position and status other than
that in which the Executive is employed under this Agreement
but without affecting the Executive's fixed salary, including
benefits; and
(ii) remain away from work and, although the
Executive will continue to receive the Executive's salary and
benefits provided for under this Agreement during such period,
and the Employer will not be obliged to provide the Executive
with any work although the Employer may, in its absolute
discretion, assign to the Executive during this period, from
time to time, such appropriate tasks or projects as may be
carried out by the Executive away from the Employer's offices.
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(2) Upon termination of the Executive's employment under this
Agreement, the Executive shall do the following:
(i) forthwith surrender to the Employer, in
good condition and working order (ordinary wear and tear
excepted), all Employer property in the Executive's possession
including, without limitation, all books, papers and other
documents (of whatever nature and in whatever media) belonging
to the Employer or its subsidiary or associated company or
relating to the business of the Employer or its subsidiary or
associated companies;
(ii) if the Executive is a director of the
Employer or of any subsidiary or associated company, or if the
Executive is an officer of any subsidiary or any associated
company, and is so requested by the Employer, resign as an
officer or director, as the case may be, within forty-eight
(48) hours of being so requested and, should the Executive
fail to do so within forty-eight (48) hours of being so
requested, the Executive irrevocably authorizes the Employer
to appoint an agent in the Executive's name and on the
Executive's behalf to execute and deliver any documents and to
take any and all actions reasonably deemed by the Employer to
be necessary or appropriate to give effect to such
resignation(s) by the Executive; and
(iii) immediately repay all outstanding
debts or loans due to the Employer and/or any subsidiary or
associated company, the Employer being expressly authorized,
for purposes of clarity, to deduct the same from any wages of
the Executive a sum in repayment of all or any part of any
such debts or loans.
4. Confidentiality; Nonsolicitation; Non-Compete.
4.1. Confidential and Proprietary Information; Non-Solicitation.
Executive's employment by Employer is subject to Executive executing the
Proprietary Rights and Confidentiality Agreement annexed hereto as Schedule 2.
Such agreement shall be deemed, upon execution, to be incorporated in and a part
of this Agreement.
4.2. Executive acknowledges and agrees that (a) Employer will be
irreparably injured in the event of a breach by Executive of any of Executive's
obligations under Section 4.1; (b) monetary damages will not be an adequate
remedy for any such breach; (c) in the event of any such breach Employer will be
entitled to injunctive relief as a matter of right and without posting a bond or
other security, in addition to any other remedy which it may have, and Executive
shall not oppose such injunctive relief based upon the extent of the harm or the
adequacy of monetary damages.
4.3. Non-competition and Non-solicitation.
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(a) The Executive agrees and acknowledges that, in connection with
the Executive's employment with the Employer, the Executive will be provided
with access to and become familiar with confidential and proprietary information
and trade secrets belonging to the Employer. Executive further acknowledges and
agrees that, given the nature of this information and trade secrets, it is
likely that such information and trade secrets would inevitably be used or
revealed, either directly or indirectly, in any subsequent employment with a
competitor of the Employer in any position comparable to the position the
Executive holds with the Employer under this Agreement. Accordingly, in
consideration of the Executive's employment with the Employer pursuant to this
Agreement, and other good and valuable consideration, the receipt of which is
hereby acknowledged, Executive agrees that, while the Executive is in the employ
of the Employer and for a period equal to the greater of the period during which
the Executive receives any severance pursuant to this Agreement, if any, and
Twelve (12) months after the termination of the Executive's employment, the
Executive shall not, either on the Executive's own behalf or on behalf of any
third party, except on behalf of the Employer or, with the prior written
agreement of the Employer (not to be unreasonably withheld) or any affiliate of
the Employer, directly or indirectly:
(1) Other than through the Executive's ownership of stock of the
Employer, directly or indirectly, own, manage, operate, join, control, finance
or participate in the ownership, management, operation, control, or financing
of, or be connected as a proprietor, partner, stockholder, officer, director,
principal, agent, representative, joint venturer, investor, lender, consultant
or otherwise with, or use or permit the Executive's name to be used in
connection with, any business or enterprise engaged directly or indirectly in
competition with the Business Conducted by the Employer (as hereinafter defined)
at any time during such period, and any other business ("Other Business")
engaged in by the Employer that Executive is or has been directly involved with
during the Twelve (12) month period immediately preceding termination of the
Executive's employment. As used in this Agreement, the term "Business Conducted
by the Employer" shall mean the discovery, clinical or pre-clinical development,
sale and/or manufacture of drugs or drug candidates that are known to be
pharmacologically active at the delta and/or mu cell receptor(s), and the
acquisition, licensing, development, manufacturing, marketing and distribution
of drugs and treatments for such other conditions as the Employer is engaged in
addressing during the Twelve (12) month period immediately preceding termination
of the Executive's employment. The foregoing, however, shall not prevent
Executive from performing services for a business engaged in the biotechnology
or biopharmaceutical businesses generally which is not competitive with the
Employer, or for a competitive business if such competitive business is also
engaged in lines of business which do not compete with the Employer and if
Executive's services are restricted to employment in such other lines of
business. It is recognized by the Executive and the Employer that the Business
Conducted by the Employer is and is expected to continue to be conducted
throughout the United States and the world, and that more narrow geographical
limitations of any nature on this non-competition covenant (and the
non-solicitation provisions set forth in clauses (2) and (3) below) are
therefore not appropriate. The foregoing restriction shall not be construed to
prohibit the ownership by Executive as a passive investment of not more than one
percent (1%) percent of any class of securities of any corporation which is
engaged in any of the foregoing businesses having a class of securities
registered pursuant to the Securities Exchange Act of 1934, as amended.
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(2) Attempt in any manner to solicit from a current client or
customer of the Employer at the time of the Executive's termination, business of
the type performed by the Employer or to persuade any client of the Employer to
cease to do business or change the nature of the business or to reduce the
amount of business which any such client has customarily done or actively
contemplates doing with the Employer; or
(3) Recruit, solicit or induce, or attempt to induce, any person or
entity which, at the time of the termination of the Executive's employment or at
any time during the Twelve (12) month period prior to such termination was an
employee of the Employer or its affiliates, to terminate such employee's
employment with, or otherwise cease such employee's relationship with the
Employer or its affiliates. As used in this Agreement, an affiliate of the
Employer is any person or entity that, directly or indirectly, through one or
more intermediaries, controls, or is controlled by, or is under common control
with, the Employer.
(b) The parties agree that the relevant public policy aspects of
covenants not to compete have been discussed, and that every effort has been
made to limit the restrictions placed upon the Executive to those that are
reasonable and necessary to protect the Employer's legitimate interests.
Executive acknowledges that, based upon the Executive's education, experience,
and training, this non-compete provision will not prevent the Executive from
earning a livelihood and supporting himself and the Executive's family during
the relevant time period.
(c) If any restriction set forth in Section 4.3 is found by any
court of competent jurisdiction to be unenforceable because it extends for too
long a period of time or over too great a range of activities or geographic
area, it shall be interpreted to extend over the maximum period of time, range
of activities or geographic areas as to which it may be enforceable.
(d) The restrictions contained in 4.3 are necessary for the
protection of the business and goodwill of the Employer and/or its affiliates
and are considered by the Executive to be reasonable for such purposes. The
Executive agrees that any material breach of Section 4.3 will cause the Employer
and/or its affiliates substantial and irrevocable damage and therefore, in the
event of any such breach, in addition to such other remedies which may be
available, the Employer shall have the right to seek specific performance and
injunctive relief.
(e) The provisions of Section 4.3 shall survive termination or
expiration of this Agreement.
(f) EXECUTIVE HAS READ AND CAREFULLY CONSIDERED THE TERMS OF THIS
AGREEMENT, HAS HAD THE OPPORTUNITY TO CONTACT EXECUTIVE'S OWN LEGAL COUNSEL TO
ADVISE EXECUTIVE REGARDING THE TERMS OF THIS AGREEMENT, AND EXECUTIVE NOW AGREES
THAT THE TERMS OF THIS AGREEMENT ARE FAIR AND REASONABLE AND ARE REASONABLY
REQUIRED FOR THE PROTECTION OF THE INTEREST OF THE EMPLOYER. EXECUTIVE FURTHER
AGREES THAT THE RESTRICTIONS AND COVENANTS OF THIS AGREEMENT WILL NOT IMPAIR THE
ABILITY OF EXECUTIVE TO SECURE EMPLOYMENT SO AS TO BE ABLE TO MAKE A REASONABLE
LIVING. The provisions of this Agreement shall be enforceable notwithstanding
the existence of any claim or cause of action of Executive against the Employer
whether predicated on this Agreement or otherwise. Failure of the Employer to
enforce at any time or for any period of time any of the conditions or covenants
of this Agreement shall not be construed as a waiver of such provisions or of
the right of the Employer to enforce subsequent breaches of the same or other
conditions and covenants, unless such permanent waiver is provided to Executive
in writing and signed by the President of the Employer or, if Executive is the
President of the Employer, such writing is to be signed by the officer of the
Employer designated for such purpose by the Board of Directors.
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(g) Notwithstanding anything herein which may be construed to the
contrary, Executive shall be free to use and employ Executive's general skills,
know-how and expertise, and to use, disclose and employ any generalized ideas,
concepts, know-how, methods, techniques or skills gained or learned during the
course of providing the services hereunder, so long as Executive acquires and
applies this information without violating the terms of this Paragraph 4.3 or
the Proprietary Rights and Confidentiality Agreement executed and delivered by
the Executive to the Employer in connection herewith.
(h) The term of this non-competition covenant shall be tolled during
any period of actual competition or breach of this Section 4.3 by the Executive
and/or any period of litigation to enforce Executive's obligations under this
Agreement.
5. Indemnification. Executive shall be covered by the Employer's
directors and officers liability insurance policy, and errors and omissions
coverage, to the same extent such coverage is generally provided by the Employer
to its directors and officers and to the fullest extent permitted by such
insurance policies. In addition, the Employer shall indemnify and hold Executive
harmless from all liability to the fullest extent permitted by the Employer's
bylaws and applicable law.
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6. Miscellaneous Provisions.
6.1. Severability. If in any jurisdiction any term or provision
hereof is determined to be invalid or unenforceable, (a) the remaining terms and
provisions hereof shall be unimpaired, (b) any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction, and (c) the invalid or
unenforceable term or provision shall, for purposes of such jurisdiction, 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.
6.2. Execution in Counterparts. This Agreement may be executed in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement (and all signatures
need not appear on any one counterpart), and this Agreement shall become
effective when one or more counterparts has been signed by each of the parties
hereto and delivered to each of the other parties hereto.
6.3. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed duly given when
delivered by hand, or when delivered if mailed by registered or certified mail,
postage prepaid, return receipt requested, or private courier service or via
facsimile (with written confirmation of receipt) as follows:
If to Employer, to:
Enhance Biotech, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxxxx Every,
President and Chairman
Copy to:
Xxxxxx X. Xxxxxxxxx
Enhance Biotech, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
If to Executive, to:
Kwen-Xxx Xxxxx
000 Xxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
13
or to such other address(es) as a party hereto shall have designated by like
notice to the other parties hereto.
6.4. Amendment. No provision of this Agreement may be modified,
amended, waived or discharged in any manner except by a written instrument
executed by Employer and Executive. No course of dealing between the parties to
this Agreement shall be deemed to affect or to modify, amend or discharge any
provision or term of this Agreement.
6.5. Entire Agreement. This Agreement and the Proprietary Rights and
Confidentiality Agreement executed and delivered by the Executive to the
Employer in connection herewith constitute the entire agreement of the parties
hereto with respect to the subject matter hereof, and supersede all prior
agreements and understandings of the parties hereto, oral or written, with
respect to the subject matter hereof. No representation, promise or inducement
has been made by either party that is not embodied in this Agreement or the
Proprietary Rights and Confidentiality Agreement, and neither party shall be
bound by or liable for any alleged representation, promise or inducement not so
set forth.
6.6. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be wholly performed therein without regard to its
conflicts or choice of law provisions.
6.7. Headings. The headings contained herein are for the sole
purpose of convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of this
Agreement.
6.8. Binding Effect; Successors and Assigns. Executive may not
delegate Executive's duties or assign Executive's rights hereunder. This
Agreement will inure to the benefit of, and be binding upon, the parties hereto
and their respective heirs, legal representatives, and successors. Employer may
assign this Agreement to any entity purchasing all or substantially all of the
assets of Employer.
6.9. Waiver, etc. The failure of either of the parties hereto to at
any time enforce any of the provisions of this Agreement shall not be deemed or
construed to be a waiver of any such provision, nor to in any way affect the
validity of this Agreement or any provision hereof or the right of either of the
parties hereto to thereafter enforce each and every provision of this Agreement.
No waiver of any breach of any of the provisions of this Agreement shall be
effective unless set forth in a written instrument executed by the party against
whom or which enforcement of such waiver is sought, and no waiver of any such
breach shall be construed or deemed to be a waiver of any other or subsequent
breach.
14
6.10. Continuing Effect. Where the context of this Agreement
requires, the respective rights and obligations of the parties shall survive any
termination or expiration of the term of this Agreement, and more specifically,
including, without limitation, Section 4.
6.11. Representations and Warranties of Executive. Executive hereby
represents and warrants to Employer that to the knowledge of Executive,
Executive is not bound by any non-competition, confidentiality or other
agreement which would prevent Executive's execution, delivery and performance of
this Agreement. The Executive agrees to indemnify and hold harmless the Employer
for any liability the Employer may incur as the result of the existence of any
such obligation.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
parties hereto as of the date first above written.
ENHANCE BIOTECH, INC.
By:
--------------------------------------
Name:
Title:
--------------------------------------
Kwen-Xxx Xxxxx
15
SCHEDULE 1
EXECUTIVE'S DUTIES
Executive will be responsible for the thought leadership and expertise in the
discovery and development of new indications for the Employer's compound
library, with special focus upon the delta receptor compounds as well as the
following key tasks reporting to the Chief Executive Officer:
1. To direct the implementation of a company Strategic Science and Drug
Development Plan with the objective to achieve effective commercialisation
and to increase value in the product pipeline and compound library, for
Board of Directors approval;
2. To provide consultancy and support to the President & Chief Executive
Officer and Chief Financial Officer in optimising the commercial
development of the Delta Receptor science and product library;
3. To Chair the Scientific Advisory Board thereby directing and contributing
to existing and new product development programs and direction;
4. To direct the implementation of research and discovery programs within the
parameters agreed in the Strategic Science & Drug Development Plan (1
above), and to oversee drug development in the short term until such time
as the VP Development is recruited, as requested by the Board of Directors
and Chief Executive Officer;
5. To provide scientific supports for Chief Executive Officer and Chief
Financial Officer for in and out licensing activities;
6. To oversee the publication and presentation of scientific data at
appropriate times as the Employer requires; and
16
7. To direct and oversee the drug development programs in Asia:
7.1. Responsible for overseeing the effective achievement of research
objectives and science relationships in the Asian based product
development and licensing relationships;
7.2. To encourage and develop similar opportunities in additional East Asian
markets relevant to the Employer's strategic objectives and pipeline
capabilities;
7.3. To ensure that budget allocations agreed to by the Board of Directors for
development of research and projects in Asian areas are strictly adhered
to;
7.4. To maintain information flow on a regular basis and interface the
relationships and development programs of the Asian area to the Employer
through reporting to the Board of Directors; and
7.5. To maintain a market watch and pre-selection program for opportunities to
license in well founded new products in the Employer's strategic portfolio
for Science and main Board of Directors presentation and evaluation.
[THE DUTIES AND RESPONSIBILITIES OF XX. XXXXX SET FORTH IN THIS SCHEDULE
WILL BE REVIEWED AND FINALIZED (WITH THE AGREEMENT OF ENHANCE) DURING THE
WEEK OF AUGUST 16, 2004, WITH A VIEW PARTICULARLY TOWARDS FURTHER DETAILING
XX. XXXXX'X DUTIES AND RESPONSIBILITIES AS PRESIDENT OF ASIA-PACIFIC
OPERATIONS, IT BEING UNDERSTOOD AND AGREED THAT, IN ANY EVENT, AS
PREVIOUSLY DISCUSSED FOR PURPOSES OF STREAMLINING MANAGEMENT AND FINANCIAL
CONTROLS IN ACCORDANCE WITH FINANCIAL MARKET EXPECTATIONS FOR PUBLIC
COMPANIES, XX. XXXXX WILL PERFORM SUCH DUTIES AND RESPONSIBILITIES AS MAY
BE REQUESTED BY THE CHIEF EXECUTIVE OFFICER OF ENHANCE AND THE BOARD OF
DIRECTORS OF ENHANCE, WILL REPORT DIRECTLY TO, AND TAKE DIRECTION FROM, THE
CHIEF EXECUTIVE OFFICER OF ENHANCE, AND WILL MAKE EXPENDITURES, OR INCUR
OBLIGATIONS ONLY AS APPROVED BY THE CHIEF EXECUTIVE OFFICER OF ENHANCE IN
ACCORDANCE WITH BUDGETS ADOPTED BY THE BOARD OF DIRECTORS OF ENHANCE.]
17
SCHEDULE 2
ATTACHED PROPRIETARY RIGHTS AND CONFIDENTIALITY AGREEMENT
See Following Pages.
18
PROPRIETARY RIGHTS AND CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is made this [___ day of ____], 2004, between Enhance Biotech,
Inc., a Delaware corporation, with its offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000 (the "Company"), and Kwen-Xxx Xxxxx, an individual residing at 000 Xxxxxx
Xxxxx, Xxxxxx Xxxx, XX 00000 ("Employee"). This Agreement is based on the
following understandings:
A. Employee is a valued employee and officer of the Company and has an
interest as an employee and officer in the continued success of the
Company; and
B. The Company and Employee wish to set forth certain agreements
regarding the terms of Employee's employment; and
C. Employee is entering into an agreement simultaneously with this
Agreement concerning his duties and compensation as an officer of
Company.
THEREFORE, in consideration of the premises, the employment of Employee by
the Company, the disclosure by the Company of confidential and trade secret
information, and the mutual promises and agreements in this document, the
parties to this Agreement contract as follows:
1. Confidential Information. Employee may gain access to or knowledge of
information about Company and/or Company clients and customers that is not
generally known or available to the public ("Confidential Information").
Confidential Information may include, but is not limited to: Inventions (as
defined below), research results, specifications, models, diagrams, data,
flowcharts, spreadsheets, marketing and development plans, chemical compound
structures, synthesis methods, pre-clinical and clinical data, regulatory
filings, content of negotiations with potential licensees and/or partners,
financial investors or affiliates, client names and other information related to
current and potential clients (including without limitation names, addresses,
phone and fax numbers, and services requested and provided and client
information acquired in the course of providing services to clients),
prospective client lists, price lists, pricing policies, supplier lists,
financial information and employee files. It shall also include, without
limitation, data, notes, records, files, memoranda, reports, designs, drawings,
plans, sketches, documents, print-outs, and the like, in any way or in any
medium incorporating or reflecting any of the Confidential Information, or
relating to the Company's Business (as defined below) or to any client, vendor,
licensor, licensee or other party transacting business with the Company and any
information which Employee made or makes, conceived or conceives, developed or
develops or obtained or obtains knowledge or access through or as a result of
Employee's relationship with the Company (including information received,
originated, discovered or developed in whole or in part by Employee) from the
initial date of Employee's employment with the Company. As used in this
Agreement, the term "Company's Business" shall mean the discovery, clinical or
pre-clinical development, sale and/or manufacture of drugs or drug candidates
that are known to be pharmacologically active at the delta and/or mu cell
receptor(s), and the acquisition, licensing, development, manufacturing,
marketing and distribution of drugs and treatments for such other conditions as
the Company is engaged in addressing during the Employee's employment by the
Company. Confidential Information also includes any information described above
which the Company obtains from another party and which the Company treats as
proprietary or designates as Confidential Information, whether or not owned or
developed by the Company, including without limitation, information of or
concerning the Company's clients, partners, financial investors or business
collaborators. The failure of the Company to xxxx any of the above-described
information as proprietary, confidential, or secret shall not affect its status
as part of the Confidential Information protected by this Agreement.
19
For the purposes of this Agreement, "Inventions" shall mean ideas,
designs, creations, concepts, techniques, inventions, improvements, discoveries,
and works of authorship, whether or not patentable or protectable by copyright
or patent, whether or not fixed in a tangible medium of expression and whether
or not reduced to practice, including but not limited to the nature and results
of research and development activities, processes, formulae, devices, designs,
processes, computer programs, and methods, together with any improvements
thereon or thereto, derivative works or applications derived therefrom, and
know-how related thereto.
Information publicly known that is generally employed by the trade
at or after the time Employee first learns of such information (other than as a
result of a breach by Employee of any duty owed to, or agreement with, the
Company), or generic information or knowledge which Employee would have learned
in the course of similar employment or work elsewhere in the trade shall not be
deemed part of the Confidential Information.
2. Non-Disclosure of Confidential Information. Employee agrees that
Employee has a fiduciary duty to the Company and that Employee shall hold in
confidence and shall not, except in the course of performing Employee's
employment obligations or pursuant to written authorization from the Company, at
any time during or for ten (10) years after termination of Employee's
relationship with the Company (a) directly or indirectly reveal, report,
publish, disclose or transfer the Confidential Information or any part thereof
to any person or entity; (b) directly or indirectly use, or permit the use of
any of the Confidential Information or any part thereof for any purpose other
than for the benefit of the Company; (c) assist any person or entity other than
the Company to secure any benefit from the Confidential Information or any part
thereof or (d) solicit (on Employee's behalf or on behalf of any third party)
any employee of the Company for the purpose of providing services or products
which Employee is prohibited from providing hereunder.
3. Ownership of Confidential Information and Work Product. Except as
limited by this Paragraph, Employee agrees that all Confidential Information and
all other work product of any type or nature created by Employee or resulting
from work performed by Employee for the Company, or using the Company's
facilities, equipment, supplies or other property, or related to the Company's
Business, even if not Confidential Information (such Confidential Information
and work product being defined as "Work Product"), shall belong to the Company
exclusively and without any additional compensation to Employee. Employee agrees
that any original copyrightable Work Product shall be considered as "works made
for hire," and that the Company shall be deemed the author thereof, provided
that to the extent such Work Product is determined not to constitute "works made
for hire" as a matter of law, Employee hereby irrevocably assigns and transfers
to the Company all rights in and to such Work Product.
20
The Company's ownership right to such Work Product shall extend
regardless of the hours during which or facilities at which the Work Product is
made or the resources or ownership of resources used in making it; provided
however that the assignment of rights shall not apply to creations developed
entirely on Employee's own time without using the Company's facilities,
equipment, supplies or other property, Confidential Information or Work Product,
provided that the creations do not (a) relate to the Company's Business or
actual or demonstrably anticipated research or development, or (b) result from
any work performed by Employee for the Company.
Upon request Employee will execute any instrument required to vest
in the Company complete title and ownership to all Work Product, and will, at
the request and expense of the Company, execute any instruments necessary to
obtain legal protection in the United States and foreign countries for all Work
Product and for the purpose of vesting title thereto in the Company, or its
nominee, all without any additional compensation of any kind to Employee. Only
if the Company executes a written statement that it does not desire to obtain
protection for a particular Invention or copyrightable creation is Employee free
to obtain protection in Employee's own name and at Employee's own expense;
provided, however, that the Company shall have a royalty-free nonexclusive
irrevocable license under any patent or copyright so obtained by Employee.
4. Disclosure to the Company. Upon the conception of any Work Product by
Employee (either solely or in conjunction with others) and without waiting to
perfect or complete it, Employee promises and agrees immediately to fully
disclose to the President and Chief Executive Officer or other applicable
officer of the Company designated by the Board of Directors of the Company, and
to no one else, and thereafter to treat the Work Product as the property and
secret of the Company. This shall include Work Product made, conceived or
reduced to practice after the term of Employee's employment but which belong to
the Company pursuant to Paragraphs 3 and 9. Upon request Employee will reduce
any concept in the Work Product to writing and deliver all copies of the writing
to the President of the Company, or if Employee is the President of the Company,
such copies shall be delivered to such other officer of the Company as may be
designated by the Board of Directors of the Company. These obligations shall
continue beyond the termination of employment with respect to Work Product
conceived or made during the period of employment.
5. Collaboration. Employee warrants that Employee will disclose the
participation of any other person in any of Employee's work for the Company.
Absent such disclosure, Employee warrants that all work performed by Employee
will be Employee's own and that no other person shall have any right, title, or
interest in any work submitted to the Company.
21
6. Records. Employee agrees that Employee will keep and maintain adequate
and current written records of all Work Product created by Employee. All written
records relating to any Work Product, whether in the form of notes, data,
reference materials, sketches, drawings, memoranda, correspondence, blueprints,
manuals, letters, notebooks, reports, flowcharts, programs, proposals, or any
other form, and whether in written, electronic or other media, concerning the
Company's Business or incorporating or reflecting any of the Work Product, shall
be and remain the property of and available to the Company at all times, and
shall be delivered to the Company on demand or upon Employee leaving the
Company's service. The Company may, at any time and without notice to Employee,
take possession of such records regardless of their location, including
Employee's files, desk, computer or other areas under the control of the
Company.
7. Assistance After Employment. Employee agrees that if, subsequent to
Employee's employment by the Company, his assistance is needed in regard to
securing, defending, or enforcing any patent or copyright of which Employee is
an inventor, co-inventor, author or co-author Employee shall provide requested
assistance and the Company shall pay reasonable compensation for his time at a
rate to be agreed upon but not higher than 150% of the last salary rate paid to
Employee by the Company during his employment, together with full reimbursement
of reasonable and necessary directly-related expenses.
8. Third-Party Obligations. Employee acknowledges that the Company from
time to time may have agreements with other person or entities or with
government or other agencies that impose obligations or restrictions on the
Company regarding Inventions, Confidential Information or Work Product created
by Employee or the Company during the course of work thereunder, or regarding
the confidential nature of the work or confidential information of the third
party disclosed during or used as part of such work. Employee agrees to be bound
by all such obligations and restrictions and to take all action necessary to
discharge the obligations of the Company thereunder.
9. Warranty by Employee. Employee represents and warrants that his
performance of all terms under this Agreement does not result in a breach of any
duty owed by Employee to another, under contract or otherwise, or violate any
confidence of another. Employee agrees not to disclose to the Company or induce
the Company to use any confidential or proprietary information belonging to any
of the Employee's previous employers or others. Employee warrants that Employee
has executed no prior noncompetition, nondisclosure or confidentiality
agreements that would in any way interfere with his work for or employment by
the Company. Employee represents and warrants that Exhibit A attached hereto,
entitled "List of Work Product," is a true and complete list of all creations,
if any, whether or not patented or copyrighted and whether or not reduced to
practice, made by Employee prior to his employment with the Company, and which
therefore are not subject to the provisions of Paragraph 3; provided, however,
that any improvements, whether or not patentable or reduced to practice, made to
or on, or any derivative work made from, any of the listed confidential and
propriety information after Employee's commencement of employment by the Company
are subject to the terms of Paragraph 3.
22
Employee agrees to notify the Company in writing before Employee
makes any disclosure to or performs any work on behalf of the Company which
appears to threaten or conflict with any proprietary right Employee claims in
any Work Product and in the event of Employee's failure to give such notice,
Employee shall make no claim against the Company with respect to any such Work
Product.
10. Exit Interview. Employee agrees that upon termination of Employee's
employment for any reason, Employee shall participate in an exit interview with
Company personnel. At or prior to the time of this interview Employee shall
deliver to the Company all notes, data, reference materials, sketches, drawings,
memoranda, correspondence, manuals, letters, notebooks, reports, programs,
proposals, or any other documents, whether in written, electronic or other
media, concerning the Company's Business or incorporating or reflecting any of
the Confidential Information or Work Product. Employee agrees that, upon
request, Employee will execute a sworn statement that Employee has complied with
the terms of this Paragraph, and that should Employee fail to execute such a
statement the Company may withhold any and all amounts due to Employee for any
reason, except minimum compensation required by law.
11. Extraordinary Relief. Nothing in this Agreement shall be construed as
prohibiting the Company from pursuing all remedies available to the Company for
breach of this Agreement. Employee recognizes and agrees that because of the
unique nature of the Confidential Information and the competitive position of
the Company his breach of this Agreement will irreparably injure the Company,
for which the Company could not adequately be compensated by remedies at law.
Should Employee at any time reveal or use for the benefit of other than the
Company or threaten to so reveal or use any Confidential Information in
violation of Paragraph 2, the Company shall be entitled to an injunction
restraining Employee from doing or continuing to do or performing any such acts,
and Employee hereby consents to the issuance of such injunction against
Employee. Employee further agrees to waive any bond or proof of damages
requirement that may arise if the Company is forced to seek injunctive relief to
enforce the terms of this Agreement.
12. Accounting for Profits; Indemnification. Employee covenants and agrees
that if Employee shall violate any of Employee's covenants or agreements under
this Agreement, the Company shall be entitled to an accounting and repayment of
all profits, compensation, royalties, commissions, remunerations or benefits
which Employee directly or indirectly shall have realized or may realize
relating to, growing out of or in connection with any such violation; such
remedy shall be in addition to and not in limitation of any injunctive relief or
other rights or remedies to which the Company is or may be entitled at law or in
equity or otherwise under this Agreement. Employee hereby agrees to defend,
indemnify and hold harmless the Company against and in respect of: (i) any and
all losses and damages resulting from, relating or incident to, or arising out
of any misrepresentation or breach by Employee of any warranty, covenant or
agreement made or contained in this Agreement; and (ii) any and all actions,
suits, proceedings, claims, demands, judgments, payments, costs and expenses
(including reasonable attorneys' fees) incident to the foregoing.
23
13. Successor Employers. Employee hereby authorizes the Company to provide
a copy of this Agreement, including any Exhibits, to any and all future
employers, and to notify any and all future employers that the Company intends
to exercise its legal rights arising out of or in conjunction with the Agreement
and/or any breach or any inducement of breach of it.
14. Reasonableness and Enforceability. EMPLOYEE HAS READ AND CAREFULLY
CONSIDERED THE TERMS OF THIS AGREEMENT, HAS HAD THE OPPORTUNITY TO CONTACT
EMPLOYEE'S OWN LEGAL COUNSEL TO ADVISE EMPLOYEE REGARDING THE TERMS OF THIS
AGREEMENT, AND EMPLOYEE NOW AGREES THAT THE TERMS OF THIS AGREEMENT ARE FAIR AND
REASONABLE AND ARE REASONABLY REQUIRED FOR THE PROTECTION OF THE INTEREST OF THE
COMPANY. EMPLOYEE FURTHER AGREES THAT THE RESTRICTIONS AND COVENANTS OF THIS
AGREEMENT WILL NOT IMPAIR THE ABILITY OF EMPLOYEE TO SECURE EMPLOYMENT SO AS TO
BE ABLE TO MAKE A REASONABLE LIVING. The provisions of this Agreement shall be
enforceable notwithstanding the existence of any claim or cause of action of
Employee against the Company whether predicated on this Agreement or otherwise.
Failure of the Company to enforce at any time or for any period of time any of
the conditions or covenants of this Agreement shall not be construed as a waiver
of such provisions or of the right of the Company to enforce subsequent breaches
of the same or other conditions and covenants, unless such permanent waiver is
provided to Employee in writing and signed by the President of the Company or,
if Employee is the President of the Company, such writing is to be signed by the
Board of Directors of the Company.
15. Reformation/Severability of Agreement. If any provision of this
Agreement shall for any reason be adjudged by any court of competent
jurisdiction or arbiter to be illegal, invalid or otherwise unenforceable, such
judgment shall not affect, impair or invalidate the remainder of this Agreement
but shall be confined in its operation to the provision of this Agreement
directly involved in the controversy in which such judgment shall have been
rendered. The invalid or unenforceable provision shall be reformed so that each
party shall have the obligation to perform reasonably alternatively to give the
other party the benefit of its bargain. In the event the invalid or
unenforceable provision cannot be reformed, the other provisions or applications
of this Agreement shall be given full effect, and the invalid or unenforceable
provision shall be deemed struck.
24
16. Construction of Terms. Any reference herein to the masculine shall
include the feminine or neuter, and any reference herein to the singular or
plural may be construed as plural or singular wherever the context requires.
17. Successor and Assigns. This Agreement shall inure to the benefit of
and be binding upon the Company, its successors and assigns, including without
limitation any entity which may acquire all or substantially all of the
Company's assets and business or into which the Company may be consolidated or
merged, and the Employee, his heirs, executors, administrators and legal
representatives. Employee may not assign any of his obligations under this
Agreement.
18. Governing Law and Venue. This Agreement shall be governed by and
construed in accordance with the laws of New York applicable to contracts
between residents of New York which are wholly executed and performed in New
York. Any lawsuit brought under the terms of this Agreement shall have exclusive
venue in the state and federal courts of New York County, New York; provided,
however, that with respect to any proceeding for injunctive relief the Company
may, at its option, bring the proceeding before a court where Employee resides
at the time of such proceeding.
19. Merger. This Agreement constitutes the entire Agreement between the
parties with respect to the subject matter hereof; and supersedes and replaces
any oral or written communications and any undertakings otherwise made between
the parties relating to the subject matter. Except as specified in Paragraph 15,
no changes, modifications, or amendments of any terms and conditions of this
Agreement are valid or binding unless agreed to in a writing signed by Employee
and the President of the Company or, if Employee is the President, the Board of
Directors of the Company.
This Agreement is effective as of the date first above written and is
executed in duplicate originals.
Enhance Biotech, Inc.
--------------------------------------
Employee
By:
-------------------------------------- ----------------------------
Witness Its:
25
EXHIBIT A
LIST OF WORK PRODUCT
NOT SUBJECT TO OWNERSHIP BY THE COMPANY
The following is a complete list of all confidential or proprietary
information, relevant to the subject matter of my employment by the Company that
have been made or conceived or first reduced to practice by me alone or jointly
with others prior to my employment by the Company that I desire to remove from
the operation of my Proprietary Rights and Confidentiality Agreement with the
Company, to which this is attached as Exhibit A.
______ No creations, inventions, improvements or other Work Product.
______ Any and all such creations, inventions, improvements or other Work
Product as are described below:
______ Additional sheets attached.
Employee _____
