EXHIBIT 10.30
NONCOMPETITION AND NONSOLICITATION AGREEMENT
THIS NONCOMPETITION AND NONSOLICITATION AGREEMENT (this "Agreement") is
entered into as of November 29, 2001 by and among Endorex Corporation, a
Delaware corporation located at 00000 Xxxxxxx Xxxxx, Xxxxx X, Xxxx Xxxxxx, XX
00000 (the "Company"), and Xxxxx X. Xxxxxx, an individual with an address at 000
Xxxxx Xxxxx Xxxxx Xxxxx Drive, Apartment 3501, Xxxxx Xxxxx, Xxxxxxx 00000
("Officer") and, for purposes of Section 1.4 of this Agreement only, Corporate
Technology Development, Inc. ("CTD"). In consideration of the mutual covenants
contained herein, the parties hereto agree as follows:
RECITALS
A. The Company, Roadrunner Acquisition, Inc., a Delaware corporation
and a wholly-owned subsidiary of the Company ("Merger Sub"), and CTD, have
entered into an Agreement and Plan of Merger and Reorganization, dated as of
July 31, 2001 (the "Merger Agreement"), which provides for, upon the terms and
subject to the conditions set forth therein, a business combination between the
Company and CTD by means of a merger of Merger Sub with and into CTD (the
"Merger"), with CTD thereby becoming a wholly-owned subsidiary of the Company.
B. Officer is an officer, director and security holder of CTD and
will receive substantial consideration in the Merger, including receipt of
shares of, and options exercisable for, common stock of the Company in exchange
for shares of, and options exercisable for, capital stock of CTD.
C. Officer's employment by, or other association with, a competitor
to the Company would substantially benefit that competitor and would
correspondingly harm the Company and reduce the value received by the Company in
the Merger.
D. Parent and Merger Sub are willing to enter into the Merger
Agreement only upon the condition that the Officer enter into this Agreement.
E. In order to induce Parent and Merger Sub to enter into the Merger
Agreement, Officer is willing to enter into this agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
1. CONFIDENTIALITY AND INVENTIONS
1.1. Officer agrees that Officer will not, directly or indirectly, use or
disclose to any person, firm or corporation, any confidential
information, trade secrets, technical data and know-how of the
Company, including but not limited to information relating to customer
lists, customer contact information, marketing materials,
pricing information, financial information, employee information,
business practices, any other information of the Company not generally
known to the public, or the products, research, development,
processes, methods and equipment of the Company and its subsidiaries,
including CTD and its subsidiaries ("Proprietary Information"),
without the prior written consent of the Company. Proprietary
Information does not, however, include information that is or becomes
generally available in the pharmaceuticals industry other than by
breach of this Agreement by Officer.
1.2. Officer agrees that any and all inventions, discoveries, improvements,
processes, compounds, or formulae (collectively "Inventions"), whether
or not patentable or registerable under patent, copyright, or similar
statutes, that were made, conceived, discovered or acquired by
Officer, solely or jointly with others, in the course of performing
services for or acting as an employee or officer of the Company, CTD
or any of their subsidiaries, or which result from the use of premises
owned, leased, or contracted by CTD, the Company or any of their
subsidiaries and which may be used or useful in or relate to the
business of the Company and its subsidiaries, including CTD and its
subsidiaries, shall be the property of the Company. Officer hereby
assigns to the Company all of Officer's right, title and interest in
and to any such inventions, including, without limitation, all
Inventions discovered or acquired by Officer during or in connection
with his employment by CTD or any of its subsidiaries. Without
limiting the foregoing, Officer further acknowledges that all original
works of authorship by Officer, whether created alone or jointly with
others, which are protectable by copyright, are "works made for hire"
within the meaning of the United States Copyright Act, 17 U.S.C.
Section. 101, as amended, and the copyright of which shall be owned
solely, completely and exclusively by the Company. If any Invention is
considered to be work not included in the categories of work covered
by the United States Copyright Act, 17 U.S.C. Section. 101, as
amended, such work is hereby assigned or transferred completely and
exclusively to the Company. Any assignment of copyright hereunder
includes all rights of paternity, integrity, disclosure and withdrawal
and any other rights that may be known as or referred to as "moral
rights" (collectively "Moral Rights"). To the extent such Moral Rights
cannot be assigned under applicable law and to the extent the
following is allowed by the laws in the various countries where Moral
Rights exist, Officer hereby waives such Moral Rights and consents to
any action of the Company that would violate such Moral Rights in the
absence of such consent. Officer agrees to confirm any such waivers
and consents from time to time as may be reasonably requested by the
Company.
1.3. Officer shall, as requested by the Company at any time and from time
to time, execute and deliver to the Company any instruments deemed
necessary by the Company to effect disclosure and assignment of the
Inventions to it or to persons designated by it and shall cooperate
with the Company as may be reasonably required with regard to, and
shall execute and deliver to the Company, any patent, copyright or
trademark applications (United States or foreign) and renewals with
respect thereto, including any other instruments deemed necessary by
the Company for the prosecution of such patent, copyright or trademark
application or the acquisition of letters patent. Officer's obligation
to assist the Company in obtaining and enforcing patents, copyrights
or trademarks for such Inventions in any and all countries shall
continue beyond the termination of this Agreement, but the Company
shall compensate Officer at a rate of two hundred and fifty dollars
($250) per hour after such termination for time actually spent at the
Company's request on such assistance. In the event the Company is
unable, after reasonable effort, to secure the signature of Officer on
any document or documents needed to apply for or prosecute any patent,
copyright or to other right or protection relating to an Invention,
whether
because of physical or mental incapacity or for any other reason
whatsoever, Officer hereby irrevocably designates and appoints the
Company and its duly authorized agents as agent and attorney-in-fact,
to act for and on behalf of Officer to execute and file any such
application or applications and to do all other lawfully permitted
acts to further prosecution and issuance of patents, copyrights or
other similar protection thereon with the same legal force and effect
as if executed by Officer
1.4. The parties hereto hereby agree and acknowledge that the Employment
Agreement by and among Officer and CTD, dated as of December 14, 1998
(the "CTD Employment Agreement") is terminated as of the date hereof
and Officer hereby specifically waives the provisions and the rights
set forth in Sections 3 and 7 of the CTD Employment Agreement,
including, but not limited to, any payments related to termination of
Officer's employment with CTD, bonuses, milestone payments or carried
interest in licenses, technologies or acquisitions by CTD or any
subsidiaries of CTD. Officer hereby resigns from any and all positions
held by Officer within CTD or any subsidiaries of CTD and acknowledges
and agrees that other than as provided in Section 1.6(h) of the Merger
Agreement, no obligations or amounts are owed to Officer (whether in
cash, equity or otherwise) under the CTD Employment Agreement or
pursuant to any other agreement, understanding or arrangement under
which CTD or any subsidiaries of CTD would be so obligated.
2. RESTRICTIVE COVENANTS
2.1. For a period of one (1) year from the date hereof, Officer will not,
directly or indirectly, (i) engage in; (ii) have any interest in any
person, firm, or corporation (except an interest that is less than
five percent (5%) of the outstanding stock of a publicly traded
corporation) that engages in; or (iii) perform any services for any
person, firm, or corporation that engages in the development, research
relating to, manufacture, processing, marketing, distribution, or sale
of (a) orally delivered corticosteroids for the treatment of Graft
Versus Host Disease, Crohns Disease, ulcerative colitis, or any other
related gastrointestinal disorder(s), (b) orally delivered solutions
of Azathioprine, or analogs thereof for the supression of the immune
system or any part thereof, including the uses that as of the date
hereof are approved by the U.S. Food and Drug Administration, (c)
imidazole-like compounds or analogs thereof for the treatment of dry
eye syndrome or blepharitis, (d) the Allergan BoTox(R) program, (e)
polymer based drug delivery technologies for the rapid dissolution
into suspension of normal and controlled release drugs in tablet form,
including the UM Technology, (f) oral and nasal delivery of proteins,
or peptides utilizing lipid-based, liposomal-based or polymer-based
technologies, (g) delivery of iron chelating compound(s) via an
ambulatory, subcutaneous, micro-injection pump device, or (h) muramyl
dipeptide immunomodulators for treatment of cancers or infectious
diseases.
2.2. For a period of one (1) year from the date hereof, Officer will not,
directly or indirectly, solicit business from any of the clients or
customers of the Company or any of its subsidiaries, including CTD and
its subsidiaries.
2.3. For a period of one (1) year from the date hereof, Officer will not,
directly or indirectly, employ, solicit for employment, or advise or
recommend to any other person that they employ or solicit for
employment, any employee of the Company
or any of its subsidiaries.
2.4. Officer represents that his experience and capabilities are such that
the provisions of this Section 2 will not prevent him from earning a
livelihood.
2.5. On condition that he otherwise complies with the terms of this
Agreement, including without limitation the restrictive covenants
contained within this Section 2, the Officer may at any time contact
and do business with any person or entity that the Officer had
dealings with in his capacity as an employee of CTD.
3. NO CONFLICT WITH OR BREACH OF OTHER AGREEMENTS.
3.1. Officer hereby represents, warrants and covenants that (a) Officer is
not party to any agreement, contract, arrangement or understanding
that prohibits or purports to prohibit Officer from entering into this
Agreement and performing duties hereunder, and (b) the execution,
delivery and performance by Officer of this Agreement will not
constitute a breach of or default under any agreement, contract,
arrangement or understanding to which Officer is a party or which is
or purports to be binding upon Officer.
4. MISCELLANEOUS
4.1. This Agreement shall be binding upon and for the benefit of the
parties hereto and their respective heirs, executors, administrators,
successors, devisees and assigns; provided, however, that Officer may
not assign rights or delegate duties under this Agreement without the
prior written consent of the Company and that any attempt by Officer
to do so without such consent shall be void.
4.2. This Agreement contains the entire understanding and agreement of the
parties with respect to the relationship between the Company and
Officer (other than as a security holder and board member of the
Company), and it may not be altered, amended, modified or otherwise
changed in any respect whatsoever except by a writing duly executed by
the parties hereto.
4.3. This document may be executed in any number of counterparts, each of
which shall be deemed to be an original and shall fully bind each
party who has executed it, but all such counterparts together shall
constitute one and the same agreement.
4.4. No failure or delay on the part of any party hereto in exercising any
right, power or remedy hereunder shall operate as a waiver thereof.
The Company shall have the right to enforce this Agreement and any of
its provisions by injunction, specific performance or other equitable
relief, without bond and without prejudice to any other rights and
remedies that the Company may have for the breach of this Agreement.
4.5. The parties agree that it is not their intention for this Agreement to
violate any public policy or statutory or common law. The parties
intend that the provisions of this Agreement be enforced to the
fullest extent permissible under the laws and public policies in the
jurisdiction in which enforcement is sought. The parties intend that
the noncompetition and nonsolicitation provisions contained in Section
2 be construed as a series of separate covenants by Officer.
Accordingly, to the extent that any provisions hereunder shall be
adjudicated to be invalid or unenforceable in any jurisdiction in
which they apply, such provisions and such provisions only shall be
deemed amended or reformed to the minimum extent necessary in order
for the provisions to be valid and enforceable.
4.6. This Agreement shall be construed and enforced pursuant to the laws of
the State of Illinois, without giving effect to conflict of law
principals.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
Endorex Corporation:
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Name: Xxxxxxx X. Xxxxx
Title: President
Officer: ------------------------------
Xxxxx X. Xxxxxx
IN WITNESS WHEREOF, CTD has executed this Agreement for the purposes of
Section 1.4 hereof as of the day and year first above written.
Corporate Technology
Development, Inc.:
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Name:
Title:
