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Exhibit 10.39
MYCO PHARMACEUTICALS INC.
XXX XXXXXXX XXXXXX
XXXXXXXX 000
XXXXXXXXX, XX 00000
June 21, 0000
Xxxx Xxxxx
000 Xxxxxx Xxxx
Xxxxx, XX 00000
Dear Xxxx:
This letter is to confirm our understanding with respect to (i) your
agreement not to compete with the Company and (ii) your agreement to protect
and preserve information and property which is confidential and proprietary to
the Company or other third parties with whom the Company does business (the
terms and conditions agreed to in this letter shall hereinafter be referred to
as the "Agreement"). In consideration of the mutual promises and covenants
contained in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, we have agreed as
follows:
1. Prohibited Competition. We have discussed, and you recognize and
acknowledge the competitive and proprietary nature of the Company's business
operations.
You acknowledge and agree that a business will be deemed competitive
with the Company if it performs any of the services, manufactures or sells any
of the products provided or offered by the Company or is involved in the
research, or development of processes, products or techniques in the Company's
Field of Interest (such business to be referred to as a "competitive
business"). The term Company's "Field of Interest" currently means the
development of products or processes as anti-infective therapeutics or
diagnostics with an initial emphasis on antifungals and commercial use of fungi
or yeasts in drug screening, production, development or testing. The Company
may modify the definition of its Field of Interest by written notice to you
based on the activities in which the Company is then engaged or in which the
Company then proposes to be engaged.
You further acknowledge and agree that during the course of performing
services for the Company as an employee, the Company will furnish, disclose or
make available to you confidential and proprietary information related to the
Company's business and that the Company may provide you with unique and
specialized training. You also acknowledge that such confidential information
and the training to be provided by the Company have been developed and will be
developed by the Company and others with whom the Company has a relationship
through the expenditure by the Company and others of substantial time, effort
and money and that all such confidential information and training could be used
by you to compete with the Company.
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Accordingly, you hereby agree in consideration of the Company's
agreement to engage you as an employee and your compensation thereof and in
view of the confidential position to be held by you, the unique and specialized
training which the Company may provide you and the confidential nature and
proprietary value of the information which the Company may share with you, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, as follows:
During the period during which you perform services for or at the
request of the Company (the "Term") and for a period of one year following the
expiration or termination of the Term (the "Restricted Term"), whether such
termination is voluntary or involuntary, you shall not, without the prior
written consent of the Company:
(i) For yourself or on behalf of any other, directly or indirectly,
either as principal, agent, stockholder, employee, consultant,
representative or in any other capacity, own, manage, operate or
control, or be concerned, connected or employed by, or otherwise
associate in any manner with, engage in or have a financial interest
in any business which is directly or indirectly competitive with the
business of the Company within the World (the "Restricted Territory"),
except that nothing contained herein shall preclude you from purchasing
or owning stock in any such business if such stock is publicly traded,
and provided that your holdings do not exceed three (3%) percent of the
issued and outstanding capital stock of such business.
(ii) Either individually or on behalf of or through any third party,
solicit, divert or appropriate or attempt to solicit, divert or
appropriate, for the purpose of competing with the Company or any
present or future parent, subsidiary or other affiliate of the Company
which is engaged in a similar business as the Company, any customers
or patrons of the Company, or any prospective customers or patrons with
respect to which the Company has developed or made a sales
presentation (or similar offering of services), located within the
Restricted Territory.
(iii) Either individually or on behalf of or through any third party,
directly or indirectly, solicit, entice or persuade or attempt to
solicit, entice or persuade any other employees of or consultants to
the Company or any parent or future parent or affiliate of the Company
to leave the services of the Company or any parent of future parent of
affiliate for any reason.
You further recognize and acknowledge that (i) the types of employment
which are prohibited by this paragraph are narrow and reasonable in relation to
the skills which represent your principal salable asset both to the Company and
to your other prospective employers, and (ii) the specific but broad
geographical scope of the provisions of this paragraph is reasonable,
legitimate and fair to you in the light of the Company's need to market its
services and sell its products in a large geographic area in
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order to have a sufficient customer base to make the Company's business
profitable and in light of the limited restrictions on the type of employment
prohibited herein compared to the types of employment for which you are
qualified to earn your livelihood.
If any part of this section should be determined by a court of
competent jurisdiction to be unreasonable in duration, geographic area, or
scope, then this section is intended to and shall extend only for such period
of time, in such area and with respect to such activity as is determined to be
reasonable.
2. Protected Information. Upon execution of this Agreement, you shall
execute and deliver a Confidentiality Agreement in the form attached hereto as
Annex A.
3. Continuing Obligations. Your obligations under this Agreement shall
not be affected: (i) by any termination of your consulting or employment
arrangement, including termination upon the Company's initiative; nor (ii) by
any change in your position, title or function with the Company; nor (iii) by
any interruption in the consulting or employment arrangement during which you
leave and rejoin the Company.
4. Records. Upon termination of your relationship with the Company, you
shall deliver to the Company any property of the Company which may be in your
possession including products, materials, memoranda, notes, records, reports,
or other documents or photocopies of the same.
5. No Conflicting Agreements. You hereby represent and warrant that you
have no commitments or obligations inconsistent with this Agreement and you
hereby agree to indemnify and hold the Company harmless against any claim based
upon circumstances alleged to be inconsistent with such representation and
warranty.
6. No Employment Created. This Agreement does not constitute, and shall
not be construed as constituting, and undertaking by the Company to hire you as
an employee or consultant of the Company.
7. Waiver of Provisions. Failure of any party to insist, in one or more
instances, on performance by the other in strict accordance with the terms and
conditions of this Agreement shall not be deemed a waiver or relinquishment of
any right granted hereunder or of the future performance of any such term or
condition or of any other term or condition of this Agreement, unless such
waiver is contained in a writing signed by or on behalf of the waiving party.
8. Notices. Any notice or other communication required or permitted
hereunder shall be deemed sufficiently given if sent by registered or certified
mail, postage and fees prepaid, addressed to the party to be notified as
follows: if to the Company to its address set forth above, with a copy to Xxxxx
X. Xxxxxx, Esquire, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Xxx
Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000, and if to you
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to your address set forth above, or in each case to such other address as
either party may from time to time designate in writing to the other. Such
notice or communication shall be deemed to have been given as of the date
deposited with the United States Postal Service.
9. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the Commonwealth of Massachusetts,
without application of the conflicts of law provisions thereof.
10. Entire Agreement. This Agreement, together with Annex A hereto,
embodies the entire agreement and understanding between the parties hereto and
supersedes all prior oral or written agreements and understandings relating to
the subject matter hereof. No statement, representation, warranty, covenant or
agreement of any kind not set forth in this Agreement shall affect, or be used
to interpret, change or restrict, the express terms and provisions of the
Agreement.
11. Invalidity. This Agreement is intended to be performed in
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules and regulations. If any provision of the Agreement, or the
application thereof to any person or circumstance, shall, for any reason and to
any extent, be invalid or unenforceable, the remainder of this Agreement and
the application of such provisions to other persons or circumstances shall not
be affected thereby, but rather shall be construed, reformed and enforced to
the greatest extent permitted by law.
12. Injunctive Relief. You hereby expressly acknowledge that any breach
or threatened breach of any of the terms and/or conditions set forth in this
Agreement will result in substantial, continuing and irreparable injury to the
Company. Therefore, you hereby agree that, in addition to any other remedy that
may be available to the Company, the Company shall be entitled to injunctive or
other equitable relief by a court of appropriate jurisdiction in the event of
any breach or threatened breach of the terms of this Agreement.
13. Assignment. The Company may assign its rights and obligations
hereunder to any person or entity who succeeds to all or substantially all of
the Company's business or that aspect of the Company's business in which you are
principally involved. Your rights and obligations under this Agreement may not
be assigned without the prior written consent of the Company.
14. Expenses. Should any party breach this Agreement, in addition to
all other remedies available at law or in equity, such party shall pay all of
any other party's costs and expenses resulting therefrom and/or incurred in
enforcing this Agreement, including legal fees and expenses.
15. Modification and Amendment. This Agreement shall not be modified or
amended except by an instrument in writing signed by or on behalf of the
parties hereto.
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16. Parties Benefited. Subject to the foregoing, this Agreement shall
be binding upon and inure to the benefit of the Company and any parent,
subsidiary or other affiliate of the Company, and their respective successors
and assigns, and shall be binding upon and inure to the benefit of you and your
heirs, executors and administrators.
17. Headings. Section and other headings contained in this Agreement
are for reference purposes only and are in no way intended to define,
interpret, describe or otherwise limit the scope, extent or intent of this
Agreement or any of its provisions each of which shall be deemed an original,
but all of which together shall constitute one and the same document.
18. Counterparts. This Agreement may be executed in one or more
counterparts each of which will be deemed an original, but all of which
together shall constitute one and the same instrument.
If the foregoing accurately sets forth our agreement, please so
indicate by signing and returning to us the enclosed copy of this letter.
Very truly yours,
Myco Pharmaceuticals Inc.
/s/ Xxxxx Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, Ph.D.
President and CEO
Accepted and Approved
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
Dated: 7/05/95
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104368
