FORM OF NONCOMPETITION AND NONSOLICITATION AGREEMENT
Exhibit 10.22
This Noncompetition and Nonsolicitation Agreement (this “Agreement”) is made and
entered into as of July 5, 2006 by and between Sirion Therapeutics, Inc., a North Carolina
corporation (“Sirion”), and [ ] (the “Stockholder”). Capitalized terms used and not
otherwise defined in this Agreement shall have the meanings given to them in the Merger Agreement
(as defined below).
RECITALS
Whereas, simultaneously with the execution and delivery of this Agreement, Sytera,
Inc., a Delaware corporation (“Sytera”), Sytera II, Inc., a Delaware corporation, Sirion, the
Sytera Stockholders’ Representative and the Sirion Shareholders’ Representative are entering into
that certain Agreement and Plan of Merger and Reorganization (the “Merger Agreement”), dated as of
even date herewith, pursuant to which Sytera will be merged with and into Sirion, with Sirion
continuing as the surviving corporation (the “Merger”);
Whereas, as a major stockholder and employee of Sytera, Stockholder has obtained
extensive and valuable knowledge and confidential information concerning the business of Sytera;
Whereas, in connection with the Merger, Stockholder will become an employee of or
consultant to Sirion, in which capacity Stockholder will obtain extensive and valuable knowledge
and confidential information concerning the business of Sirion; and
Whereas, in connection with and as a condition to the consummation of the Merger, and
to enable Sirion to secure more fully the benefits of the Merger, Sirion has required that
Stockholder enter into this Agreement, and Stockholder desires to enter into this Agreement in
order to induce Sirion to consummate the Merger.
Now, Therefore, in consideration of the foregoing premises and the mutual covenants
and agreements set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Definitions. As used in this Agreement, the following terms shall have the following
respective meanings:
1.1 “Competing Product” means any pharmaceutical product intended for use in the Field.
1.2 “Competing Service” means any service relating to the discovery, development, manufacture,
commercialization, promotion, sale, supply, licensing, sublicensing, distribution or resale of any
Competing Product.
1.3 A Person shall be deemed to be engaged in “Competition” if: (i) such Person is engaged
directly or indirectly in the discovery, development, manufacture, commercialization, promotion,
sale, supply, licensing, sublicensing, distribution or resale of any Competing Product
for or on behalf of any commercial or for-profit business enterprise; or (ii) such Person is
engaged directly or indirectly in providing, performing or offering any Competing Service for or on
behalf of any commercial or for-profit business enterprise.
1.4 “Confidential Information” means any non-public information relating to Sirion or to its
business, operations, financial affairs, performance, assets, technology, processes, products,
contracts, customers, licensees, sublicensees, suppliers, personnel, consultants or plans,
including, without limitation, any such information consisting of or otherwise relating to trade
secrets, know-how, technology, inventions, prototypes, designs, drawings, sketches, processes,
license or sublicense arrangements, formulae, proposals, research and development activities,
customer lists or preferences, pricing lists, referral sources, marketing or sales techniques or
plans, operations manuals, service manuals, financial information, projections, lists of
consultants, lists of suppliers or lists of distributors; provided, however, that
“Confidential Information” shall not be deemed to include information of Sirion that was already
publicly known and in the public domain prior to the time of its initial disclosure to Stockholder.
1.5 “Fenretinide” means 4-hydroxyphenyl retinamide and its active metabolite, 4-methoxyphenyl
retinamide.
1.6 “Field” shall mean: (i) as applied to all pharmaceutical products other than Syt101, for
the treatment or prevention of all ophthalmology diseases; and (ii) as applied to Syt101, for the
treatment or prevention of all diseases other than diabetes.
1.7 “Indemnitees” shall include: (i) Sirion; (ii) each Person who is or becomes an Affiliate
of Sirion; and (iii) the successors and assigns of each of the Persons referred to in the foregoing
clauses “(i)” and “(ii)”.
1.8 “Noncompetition Period” shall mean the period commencing on the Closing Date and ending on
the third (3rd) anniversary of the Closing Date; provided, however, that in the
event of any breach by Stockholder of any provision of this Agreement, the Noncompetition Period
shall be automatically extended by a number of days equal to the total number of days in the period
from the date on which such breach shall have first occurred through the date as of which such
breach shall have been fully cured.
1.9 “Restricted Territory” means and includes the United States, each member country of the
European Union and Japan.
1.10 “Syt101” means Fenretinide, including any active metabolite or prodrug of Fenretinide or
any hydrate, conjugate, salt, ester, amide, solvate, cocrystal, isomer, polymorph, analogue or
other derivative of any of the foregoing.
2. Restriction on Competition. Stockholder agrees that, during the Noncompetition Period,
Stockholder shall not: (i) engage in Competition in any Restricted Territory; or (ii) be or become
an officer, director, stockholder, partner, member, owner, investor, lender, employee, agent,
consultant, advisor, manager, for or to, or otherwise be or become associated with or acquire or
hold any direct or indirect interest in, any Person that engages in Competition in any Restricted
Territory; provided, however, that Stockholder’s ownership , directly or indirectly, of not more
than one percent (1%) of the issue and outstanding stock of a corporation, the shares of which are
regularly traded on a national securities exchange shall not violate this provision. The
2.
parties agree that for purposes of this Section 2, and Section 3 below, if any portion of the
covenants set forth in either such section are held to be invalid, unreasonable, arbitrary, or
against public policy, then such portion of such covenants shall be considered divisible as to
scope, time and geographical area, and the parties hereby expressly acknowledge their desire and
agreement that such provisions be “blue-penciled” or rewritten by the court to the extend necessary
to render them enforceable.
3. Restriction on Solicitation of Employees. Stockholder agrees that, during the
Noncompetition Period, Stockholder shall not, directly or indirectly, personally or through others,
encourage, induce, attempt to induce, solicit or attempt to solicit (on Stockholder’s own behalf or
on behalf of any other Person) any employee, customer, vendor or supplier to terminate his or her
employment or commercial relationship with Sirion.
4. Confidentiality. Stockholder agrees that, unless otherwise authorized in writing by
Sirion or required by any Governmental Body, he shall hold all Confidential Information in strict
confidence and shall not at any time, whether during the Noncompetition Period or thereafter: (i)
disclose any Confidential Information to any Person (other than Sirion or its Affiliates), except
in connection with the performance of his obligations as an employee of or consultant to Sirion; or
(ii) use any Confidential Information for any purpose, except in connection with the performance of
his obligations as an employee of or consultant to Sirion.
5. Indemnification. Without in any way limiting any of the rights or remedies otherwise
available to any of the Indemnitees, Stockholder shall indemnify and hold harmless each Indemnitee
against and from any Damages that are directly or indirectly suffered or incurred at any time by
such Indemnitee, or to which such Indemnitee otherwise becomes subject at any time, and that arises
directly or indirectly out of or by virtue of, or relates directly or indirectly to, any breach by
Stockholder of any covenant or obligation of Stockholder contained in this Agreement.
6. Miscellaneous.
6.1 Specific Performance. Stockholder agrees that, in the event of any breach or
threatened breach by Stockholder of any covenant or obligation of Stockholder contained in this
Agreement, Sirion will suffer an irreparable injury such that no remedy at law would adequately
protect or appropriately compensate Sirion for such injury. Accordingly, each of Sirion and the
other Indemnitees shall be entitled to obtain, in addition to any other remedy that may be
available to it, a decree or order of specific performance to enforce the observance and
performance of such covenant or obligation and/or an injunction restraining such breach or
threatened breach. Stockholder further agrees that no Indemnitee shall be required to obtain,
furnish or post any bond or similar instrument in connection with or as a condition to obtaining
any remedy referred to in this Section 6.1, and Stockholder irrevocably waives any right it may
have to require any Indemnitee to obtain, furnish or post any such bond or similar instrument.
6.2 Notices. Any notices or other communications required or permitted hereunder shall be
given to the appropriate party at the address of such party set forth on the signature page(s)
hereto or at such other address as such party shall specify by ten (10) days advance written notice
to the other party hereto. Such notice shall be in writing and shall be deemed given: (i) upon
personal delivery; (ii) upon delivery by facsimile transmission with receipt
3.
confirmed if received during normal business hours; if not, then on the next business day;
(iii) if sent by certified or registered mail, postage prepaid, three (3) days after the date of
mailing; or (iv) one (1) day after deposit with a nationally-recognized overnight courier,
specifying next day delivery, with verification of receipt.
6.3 Governing Law and Venue. This Agreement shall be construed in accordance with, and
governed in all respects by, the laws of the State of Florida as applied to contracts to be
performed entirely within such state. Each party hereto hereby irrevocably submits to the
exclusive jurisdiction of the state and U.S. federal courts sitting in Tampa, Florida for the
adjudication of any dispute hereunder or in connection herewith (including with respect to the
enforcement of any of this Agreement), and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, or that such suit, action or proceeding is improper. Stockholder
acknowledges that the State of Florida is the situs of Sirion’s headquarters and operations and
that Stockholder will be performing services for Sirion pursuant to a separate written agreement
and, accordingly, the foregoing provisions are reasonable in application.
6.4 Successors and Assigns. The rights and liabilities of the parties hereto shall bind and
inure to the benefit of their respective successors, heirs, executors and administrators, as the
case may be; provided, however, Stockholder may not assign or delegate his
obligations under this Agreement either in whole or in part to any party without the prior written
consent of Sirion. Sirion may assign its rights and obligations hereunder to any person or entity
who succeeds to all or substantially all of Sirion’s business.
6.5 Waiver. No failure on the part of any party to exercise any power, right, privilege or
remedy under this Agreement, and no delay on the part of any party in exercising any power, right,
privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege
or remedy and no single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
No party shall be deemed to have waived any claim arising out of this Agreement, or any power,
right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right,
privilege or remedy is expressly set forth in a written instrument duly executed and delivered on
behalf of such party, and any such waiver shall not be applicable or have any effect except in the
specific instance in which it is given.
6.6 Amendments. This Agreement may not be amended, modified, altered or supplemented other
than by means of a written instrument duly executed and delivered on behalf of all of the parties
hereto.
6.7 Severability. Except as otherwise set forth in this Agreement, if one or more provisions
of this Agreement are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement in writing for such provision, then: (i) such provision shall
be excluded from this Agreement; (ii) the balance of the Agreement shall be interpreted as if such
provision were so excluded; and (iii) the balance of the Agreement shall be enforceable in
accordance with its terms.
4.
6.8 Entire Agreement. This Agreement sets forth the entire understanding of the parties
hereto relating to the subject matter hereof and supersedes all prior agreements and understandings
between the parties relating to the subject matter hereof.
6.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same instrument.
6.10 Other Agreements. Nothing in this Agreement shall terminate, revoke or diminish
Stockholder’s obligations or Sirion’s rights and remedies under law or any agreements relating to
trade secrets, confidential information, non-competition and intellectual property which the
Stockholder has executed in the past or may execute in the future or contemporaneously herewith.
6.11 Attorneys’ Fees. If any action or proceeding relating to this Agreement or the
enforcement of any provision of this Agreement is brought against any party hereto, the prevailing
party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements in addition
to any other relief to which the prevailing party may be entitled.
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5.
In Witness Whereof, the parties hereto have executed this Noncompetition and
Nonsolicitation Agreement as of the date first written above.
| SIRION: | ||||
| Sirion Therapeutics, Inc. | ||||
| Xxxxx Xxxxxx | ||||
| President | ||||
| Address: | ||||
| Fax No.: | ||||
| STOCKHOLDER: | ||||
| [Name] | ||||
| Address: | ||||
| Fax. No.: | ||||
