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Exhibit 10.33
Myco Pharmaceuticals Inc.
0 Xxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000
December 16, 1992
Dr. Xxxx X'Xxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx X
Xxxxxxxxxx, 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 anti-fungals and commercial use of
fungis 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
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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.
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 or future parent or
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 light of the
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Company's need to market its services and sell its products in a large
geographic area in 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 hereon as
Annex A.
3. Continuing Obligations. Your obligations under this Agreement
other than the provisions of 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, an 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, Xxxx,
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Xxxxxx, Xxxxxxx and Xxxxx, P.C., Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000 and if
to you 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 this
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 this 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.
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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.
16. Parties Benefitted. 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
____________________
Accepted and Approved
/s/ Xxxx X'Xxxxxx
_________________
Xxxx X'Xxxxxx
Dated: 12/28/92
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