DIRECTOR'S AGREEMENT
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This Director's Agreement (this "Agreement") is made and entered into as of
the 28 day of April, 2004, (the "Effective Date"), by and between Xxxxxx X. Xxx
(hereinafter referred to as "Director") and PharmaFrontiers Corporation
(together with any successor to the business of PharmaFrontiers Corporation by
merger, consolidation or other form of business combination hereinafter referred
to collectively as "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. Nomination as Director
PharmaFrontiers agrees to nominate Director for election by the
shareholders of PharmaFrontiers as a director of PharmaFrontiers, and, upon such
election, 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 duties and obligations imposed upon directors of corporations by applicable
lawCompensation
As compensation for serving as a member of the Board of PharmaFrontiers,
PharmaFrontiers agrees upon the execution and delivery of this Agreement to
PharmaFrontiers, to issue to Director Twenty Thousand (20,000) shares of the
common stock of PharmaFrontiers. In addition, PharmaFrontiers will pay Director
the sum of $5,000.00 annually for each year Director serves as a Director of
PharmaFrontiers, which 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.
2. 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
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agreements relating to intellectual property rights; PharmaFrontiers' plans;
customer or contact 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 PharmaFrontiers.
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 PhalniaFrontiers 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 any 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
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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.
3. Noncompetition/No-Hire Agreement
4.1 Director agrees that, from the Effective Date until a period of one (1)
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 stem 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
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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.
4. Inventions and Other Intellectual Property
5.1 Director agrees to hold in complete trust for the benefit of
PharmaFrontiers, and to disclose promptly 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 working 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
therefor. 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,
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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.
5. 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.
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6. 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.
7. 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.
8. 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 PharmaFrontiers (including
assignment by operation of law to any successor to the business of
PharmaFrontiers 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 if it 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
PharmaFrolitiers.
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 PharmaFrontiers 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
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interpretation, validity and effect of this Agreement without regard to the
place of execution or the place for performance thereof, and PharmaFrontiers 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 been given when mailed by registered mail or certified mail,
return receipt requested, as follows:
If to PharmaFrontiers, to:
Xx. Xxxxxx X. Xxx
Pha, maFrontiers Corporation
00000 Xxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxx 00000
If to Director, to:
Xx. Xxxxxx X. Xxx
00000 Xxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxx 00000
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 uniess 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, nor be deemed to be, a change, termination or waiver of this Agreement or of
any of the provisions herein contained.
By /s/ Xxxxxx X. Xxx By /s/ Xxxxxx X. Xxx
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Xxxxxx X. Xxx Xxxxxx X. Xxx
Printed Name Printed Name
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