EXHIBIT 10.1
DIRECTOR'S AGREEMENT
This Director's Agreement (this "Agreement") is made and entered
into as of the 23rd day of August, 2004, (the "Effective Date"), by and
between Xxxxx XxXxxxxxxx (hereinafter referred to as "Director") and
PharmaFrontiers Corp. ("PharmaFrontiers").
WITNESSETH:
WHEREAS, the shareholders of PharmaFrontiers wish to elect Director
to serve on the Board of Directors (the "Board") of PharmaFrontiers, and
Director has agreed to serve at the pleasure of the shareholders and on
the terms and conditions below; and
WHEREAS, PharmaFrontiers' success requires the protection of its
intellectual property, proprietary information and goodwill;
NOW, THEREFORE, the parties hereto, intending to be legally bound.
agree as follows:
1. Appointment as Director
PharmaFrontiers shall appoint Director to the Board of
PharmaFrontiers at the next meeting of the Board, and, upon such
appointment, Director agrees that Director will devote the amount of time,
skill, and efforts during the term of this Agreement to the affairs of
PharmaFrontiers as may be reasonably requested and required of Director
and in accordance with the dudes and obligations imposed upon directors of
corporations by applicable law.
2. Compensation
PharmaFrontiers shall compensate Director for his expenses in
attending and participating in meetings of the Board. All compensation
paid Director shall be subject to such payroll and withholding deductions
as may be required by law or the policies of PharmaFrontiers.
3. Confidential and Proprietary Information; Documents
3.1 PharmaFrontiers shall provide Director with information deemed
secret and confidential by PharmaFrontiers. Such secret or confidential
information or know-how of PharmaFrontiers (referred to collectively as
"Confidential Information") shall include, without limitation, the
following: the status and plans for research and development; materials,
cells, tissues, and other biological samples and specimens; cell banking
methods, apparatus, and services; pending and planned patent applications
(until published by the Patent Office); invention disclosures; research
and technical data and information; methods of creating, preparing, and
using stem cells and other biological materials; license, sublicense, and
other information; contributor information; strategies, costs, prices,
uses, applications of products and services; results of and data from
investigations or experiments; all apparatus, products, processes,
compositions, samples, formulas, computer programs, pricing policy,
financial information, and methods of doing business; policy and/or
procedure manuals, training and recruiting procedures; accounting
procedures; the status and content of PharmaFrontiers' contracts with its
contributors, clients, and customers; PharmaFrontiers' business
philosophy, and servicing methods and techniques; all at any time used,
developed, or investigated by PharmaFrontiers, before or during the term
of this Agreement, which are not generally available to the public or
which are maintained as confidential by PharmaFronteirs.
3.2 Director recognizes and acknowledges that Director will have
access to certain information of PharmaFrontiers that is confidential and
proprietary and constitutes valuable and unique property of
PharmaFrontiers. Director agrees that Director will not at any time,
either during or subsequent to the term of this Agreement, disclose to
others, use, copy or permit to be copied, except in pursuance of
Director's duties on behalf of PharmaFrontiers, its successors, assigns or
nominees, or as required by the order of any tribunal having jurisdiction
or by mandatory provisions of applicable law, any Confidential Information
or know-how of PharmaFrontiers without the prior written consent of the
Board of PharmaFrontiers. Director further agrees to maintain in
confidence any confidential information of third parties received as a
result of Director's relationship with PharmaFrontiers.
3.3 Director further agrees to deliver to PharmaFrontiers promptly
after his resignation, removal or failure to be nominated or elected as a
member of the Board, all biological materials correspondence, memoranda,
notes, records, drawings, sketches, plans, customer, client and/or
contributor lists, product compositions, or other documents and all copies
thereof (all of which are hereafter referred to as the "Documents"), made,
composed or received by Director, solely or jointly with others, and which
are in Director's possession, custody, or control at such date and which
are related in any manner to the past, present, or anticipated business of
PharmaFrontiers.
3.4 Director further agrees that Director will not, during the term
of this Agreement, and on behalf of PharmaFrontiers accept or agree to
receive from persons not employed by PharmaFrontiers, any confidential
information not belonging to PharmaFrontiers, unless prior to such receipt
or acceptance a valid agreement has been executed between PharmaFrontiers
and the disclosing party that states that PharmaFrontiers will not be in a
confidential relationship with the disclosing party. Director further
agrees that Director will not use in violation of any confidentiality
obligation binding upon Director any confidential information belonging to
Director's employer or any former employer, or any other third parties.
3.5 In the event of a breach or threatened breach of any of the
provisions of Section 4, or an breach by Director of his fiduciary
obligation to PharmaFrontiers and its shareholders, PharmaFrontiers shall
be entitled to an injunction ordering the return of such Documents and any
and all copies thereof and restraining Director from using or disclosing,
for Director's benefit or the benefit of others, in whole or in part, any
Confidential Information, including but not limited to the Confidential
Information which such Documents contain, constitute, or embody. Director
further agrees that any breach or threatened breach of any of the
provisions of Section 4 would cause irreparable injury to PharmaFrontiers
for which it would have no adequate remedy at law. Nothing herein shall be
construed as prohibiting PharmaFrontiers from pursuing any other remedies
available to it for any such breach or threatened breach, including the
recovery of damages.
4. Noncompetition/No-Hire Agreement
4.1 Director agrees that, from the Effective Date until a period of
one (l) year following the date of his resignation removal or failure to
be nominated or elected as a member of the Board, (the "Noncompetition
Period"), Director will not directly or indirectly, either as an employee,
employer, consultant, agent, principal, partner, corporate officer,
director, or in any other individual or representative capacity, engage or
participate in any "Competitive Business" anywhere in the United States of
America, Canada or the European Union (the "Noncompetition Territory"). As
used herein, a "Competitive Business" is defined as any business,
including those relating to xxxxx cells or cell banking, which provides
the same or substantially the same products, services or licenses to
intellectual property rights, in whole or in part, as are provided by
PharmaFrontiers during the term of this Agreement.
4.2 Director further agrees that during the Noncompetition Period
and within the Noncompetition Territory Director will not, directly or
indirectly, either as an employee, employer, consultant, agent, principal,
partner, corporate officer, director, or in any other individual or
representative capacity, call on, solicit, recruit, or attempt to call on,
solicit, or recruit, or attempt to hire any of the employees of
PharmaFrontiers, regardless of whether for the benefit of the Director or
for any other person, firm, or corporation.
4.3 Director shall not during the Noncompetition Period and within
the Noncompetition Territory, either directly or indirectly (i) make known
to any Competitive Business the names and addresses of any of
PharmaFrontiers' customers or contacts or any other information pertaining
to such persons or businesses or (ii) call on, solicit, or take away, or
attempt to call on, solicit or take away any of the customers of
PharmaFrontiers with whom Director became acquainted during Director's
service as a member of PharmaFrontiers' Board, regardless of whether for
the benefit of the Director or for any other person, firm or corporation.
4.4 Director agrees that this Section is ancillary to this
Agreement, and Director acknowledges that the consideration given by
PharmaFrontiers for this Agreement includes PharmaFrontiers' agreement to
provide to the Director access to the Confidential Information. Further,
the existence of any claim or cause of action of Director against
PharmaFrontiers or any officer, director, or employee of PharmaFrontiers,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by PharmaFrontiers of Director's covenants
contained in this Agreement. In addition, this Agreement shall continue to
be binding upon Director in accordance with its terms, notwithstanding the
termination of this Agreement.
4.5 Director agrees that Director's breach or violation, or threat
thereof, of this covenant not to compete shall entitle PharmaFrontiers, as
a matter of right, to an injunction without the necessity of posting bond,
issued by any court of competent jurisdiction, restraining any further or
continued breach or violation of this covenant. Such right to an
injunction shall be cumulative and in addition to, and not in lieu of, any
other remedies to which PharmaFrontiers may show itself justly entitled.
Further, during any period in which Director is in breach of this covenant
not to compete, the time period of this covenant shall be extended for an
amount of time that Director is in breach.
5. Inventions and Other Intellectual Property
5.1 Director agrees to hold in complete trust for the benefit of
PharmaFrontiers, and to disclose and fully to PharmaFrontiers in writing,
and hereby assigns, and binds Director's heirs, executors, administrators,
and all legal representatives to assign, to PharmaFrontiers any and all
inventions, discoveries, ideas, concepts, improvements, copyrightable
works, biological materials, and other developments (all of the above are
collectively referred to as the "Developments") conceived, made,
discovered or developed by him, solely or jointly with others, during the
term of this Agreement, whether during or outside of usual wet-king hours
and whether on PharmaFrontiers' premises or not, which relate in any
manner to the past, present or anticipated business of PharmaFrontiers.
The parties agree that, if Director is an inventor as determined by U.S.
patent law for any invention, Director shall be named as an inventor in
connection with any patent application therefore. Any and all such
Developments shall be the sole and exclusive property of PharmaFrontiers,
whether patentable, copyrightable, or neither, and Director agrees that
Director will assist and fully cooperate in every way, at PharmaFrontiers'
expense, in securing, maintaining, and enforcing, for the benefit of
PharmaFrontiers or its designee, patents, copyrights or other types of
proprietary or intellectual property protection for such Developments in
any and all countries. Director acknowledges and agrees that any and all
such Developments conceived, created, or authored by him is a "work made
for hire," as defined by the federal copyright laws, and therefore all
copyrights in and to such works are and will be owned by PharmaFrontiers.
To the extent that Director authors any copyrightable work in any medium
during the term of this Agreement which relates or pertains in any way to
PharmaFrontiers or any of the operations or activities of either and which
was is held not a work made for hire. Director hereby assigns all right.
title, and interest, including but not limited to all rights of copyright,
in and to such works to PharmaFrontiers. Within six months following the
termination of this Agreement, and without limiting the generality of the
foregoing, any Development of the Director relating to any PharmaFrontiers
subject matter on which Director worked or was informed during the term of
this Agreement shall be conclusively presumed to have been conceived and
made prior to the termination of this Agreement (unless the Director
clearly proves that such Development was conceived and made following the
termination of this Agreement), and shall accordingly belong, and be
assigned to PharmaFrontiers and shall be subject to this Agreement.
5.2 Without limiting the foregoing, Director agrees at the request
of PharmaFrontiers (but without additional compensation from
PharmaFrontiers during Director's employment by PharmaFrontiers) to
execute any and all papers and perform all lawful acts which
PharmaFrontiers deems necessary for the preparation, filing, prosecution,
and maintenance of applications for United States and foreign letters
patent or for United States and foreign copyrights, on the Developments,
and to execute such instruments as are necessary or convenient to assign
to PharmaFrontiers, its successors, assigns or nominees, all of the
Director's right, title, and interest in the Developments and the like, so
as to establish, maintain or perfect, in PharmaFrontiers, its successors,
assigns or nominees, the entire right, title, and interest to the
Developments, and also to execute any instruments necessary or which
PharmaFrontiers may deem desirable it connection with any continuation,
renewal or reissue thereof, or in the conduct of any proceedings or
litigation in regard thereto.
5.3 All expenses incurred by the Director by reason of the
performance of any of the obligations set forth in this Section on
Inventions shall be borne by PharmaFrontiers. Should the Director's
assistance be requested by PharmaFrontiers after termination of this
Agreement, PharmaFrontiers would compensate the Director at a reasonable
rate.
6. Conflicts of Interest
6.1 In keeping with Director's fiduciary duties to PharmaFrontiers,
Director agrees that Director shall not, directly or indirectly, become
involved in any conflict of interest, or upon discovery thereof, allow
such a conflict to continue. Moreover, Director agrees that Director shall
promptly disclose to the Board of PharmaFrontiers any facts which might
involve any reasonable possibility of a conflict of interest as
PharmaFrontiers is currently and in the future configured and practicing
business. Director shall maintain the highest standards of conduct, and
shall not do anything likely to injure the reputation or goodwill of
PharmaFrontiers, or embarrass or otherwise generate adverse publicity for
or bring unwanted attention to PharmaFrontiers.
6.2 It is agreed that any direct or indirect interest in, connection
with, or benefit from any outside activities, particularly commercial
activities, which interest might in any way adversely affect
PharmaFrontiers or any of its subsidiaries or affiliates, involves a
possible conflict of interest. Circumstances in which a conflict of
interest on the part of Director would or might arise, and which should be
reported immediately by Director to an officer of PharmaFrontiers,
include, without limitation, the following: (a) ownership of a material
interest in, acting in any capacity for, or accepting directly or
indirectly any payments, services or loans from a supplier, contractor,
subcontractor, customer or other entity with which PharmaFrontiers does
business; (b) misuse of information or facilities to which Director has
access in a manner which will be detrimental to PharmaFrontiers' interest;
(c) disclosure or other misuse of information of any kind obtained through
the Director's connection with PharmaFrontiers; (d) acquiring or trading
in, directly or indirectly, other properties or interests connected with
the design, manufacture or marketing of products designed. manufactured or
marketed by PharmaFrontiers; (e) the appropriation to the Director or the
diversion to others, directly or indirectly, of any opportunity in which
it is known or could reasonably be anticipated that PharmaFrontiers would
be interested; and (f) the ownership, directly or indirectly, of a
material interest in an enterprise in competition with PharmaFrontiers or
its dealers and distributors or acting as a director, officer, partner,
consultant, Director or agent of any enterprise which is in competition
with PharmaFrontiers or its dealers or distributors.
7. Prior Discoveries
Director has no unpatented inventions and discoveries made or
conceived by Director prior to the Effective Date that relate to stem cell
isolation, identification and/or expansion and/or cell banking.
8. Remedies
Director and PharmaFrontiers agree that, because damages at law for
any breach or nonperformance of this Agreement by Director, while
recoverable, are and will be inadequate, this Agreement may be enforced in
equity by specific performance, injunction, accounting or otherwise.
9. Miscellaneous
9.1 This Agreement is made and entered into as of the Effective Date
and the rights and obligations of the parties hereto shall be binding upon
the heirs and legal representatives of the Director and the successors and
assigns of PharmaFrontiers. This Agreement may be assigned by
PharmaFronteirs (including assignment by operation of law to any successor
to the business of PharmaFronteirs by merger, consolidation or other
business combination) without the consent of Director but is personal to
the Director and no rights, duties, and obligations of Director hereunder
may be assigned without the consent of PharmaFrontiers or its assigns,
which may be granted or withheld in its sole discretion.
9.2 No waiver or non-action with respect to any breach by the other
party of any provision of this Agreement, nor the waiver or non-action
with respect to any breach of the provisions of similar agreements with
other Directors shall be construed to be a waiver of any succeeding breach
of such provision, or as a waiver of the provision itself.
9.3 Should any portions hereof be held to be invalid or wholly or
partially unenforceable, such holding shall not invalidate or void the
remainder of this Agreement. The portions held to be invalid or
unenforceable shall be revised and reduced in scope so as to be valid and
enforceable, or, if such is not possible, then such portions shall be
deemed to have been wholly excluded with the same force and effect as it
if had never been included herein.
9.4 Director's obligations under this Agreement to PharmaFrontiers
shall survive Director's resignation, removal or failure to be nominated
or elected as a member of the Board of PharmaFronteirs.
9.5 This Agreement supersedes, replaces and merges any and all prior
and contemporaneous understandings, representations, agreements and
discussions relating to the same or similar subject matter as that of this
Agreement between Director and PharmaFronteirs and constitutes the sole
and entire agreement between the Director and PharmaFrontiers with respect
to the subject matter of this Agreement.
9.6 The laws of the State of Texas, excluding any conflicts of law
rule or principle that might otherwise refer to the substantive law of
another jurisdiction, will govern the interpretation, validity and effect
of this Agreement without regard to the place of execution or the place
for performance thereof, and PharmaFronteirs and Director agree that the
state and federal courts in Xxxxxx county, Texas, shall have personal
jurisdiction and venue over PharmaFrontiers and Director to hear all
disputes arising under this Agreement. This Agreement is to be at least
partially performed in Xxxxxx County, Texas.
9.7 All notices and other communications required or permitted
hereunder or necessary or convenient in connection herewith shall be in
writing and shall be deemed to have given when mailed by registered mail
or certified mail, return receipt requested, as follows:
If to PharmaFronteirs, to:
Xx. Xxxxxx X. Xxx PharmaFrontiers Corporation 00000 Xxxxxxxxx
Xxxx Xxxxxxx, Xxxxx 00000
If to Director, to:
Xxxxx XxXxxxxxxx
or to such other addresses as either party may designate by notice to the other
party hereto in the manner specified in this section.
9.8 This Agreement may not be changed or terminated orally, and no
change, termination or waiver of this Agreement or of any of the
provisions herein contained shall be binding unless made in writing and
signed by both parties, and in the case of PharmaFrontiers, by an
authorized officer of PharmaFrontiers. Any change or changes, from time to
time, in Director's compensation shall not be deemed to be, a change,
termination or waiver of this Agreement or of any of the provisions herein
contained.
IN WITNESS WHEREOF, the undersigned have hereby caused this Agreement to
be effective as of the date first written above.
PharmaFronteirs Corp., a Texas Corporation
By: /s/ Xxxxxx Xxx
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Xxxxxx Xxx, President
By: /s/Xxxxx XxXxxxxxxx
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Xxxxx XxXxxxxxxx
