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EXHIBIT 10.3
NON-SOLICITATION AGREEMENT
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AGREEMENT dated as of April 5, 1995, by and among ▇▇▇▇▇▇
Healthcare Corporation, a Delaware corporation ("Baxter"), and Free
Radical Sciences, Inc., a Delaware corporation ("FRS").
WHEREAS, FRS and Clintec Nutrition Company ("Clintec"), an
Illinois general partnership, have entered into a Contribution
Agreement dated as of the date hereof (the "Contribution Agreement")
whereby Clintec is contributing certain assets to FRS; and
WHEREAS, Baxter is a General Partner of Clintec; and
WHEREAS, in order to protect the assets to be contributed to FRS
under the terms of the Contribution Agreement, FRS and Clintec have
agreed that the obligations of FRS to consummate the transactions
contemplated by the Contribution Agreement are subject to the
condition, among others, that FRS and Baxter shall have entered into
this Agreement; and
WHEREAS, in order to induce FRS to consummate the transactions
contemplated by the Contribution Agreement, Baxter is willing to enter
into this Agreement;
NOW THEREFORE, in consideration of the promises and the covenants
set forth herein, the parties agree as follows:
1. NO SOLICITATION. Baxter and FRS hereby agree that for a period
of five (5) years from the date hereof, Baxter and its subsidiaries
will not, directly or indirectly, recruit, solicit or otherwise induce
any technical, professional or managerial employee of FRS to
discontinue such employment with FRS. Baxter and FRS further agree that
for a period of five (5) years from the date of this Agreement, Baxter
and its subsidiaries and divisions will not hire any employee of FRS.
Notwithstanding the foregoing, nothing herein shall prevent Baxter and
its subsidiaries from (i) hiring any employee of FRS who was discharged
by FRS, or (ii) hiring any employee of FRS who quit that employment
without inducement by Baxter and its subsidiaries.
2. REMEDIES. The parties to this Agreement agree that (i) if
Baxter breaches any provision of this Agreement, the damage to FRS will
be substantial, although difficult to ascertain, and money damages will
not afford FRS an adequate remedy, and (ii) if Baxter is in breach of
this Agreement, or threatens a breach of this Agreement, FRS shall be
entitled, in addition to all other rights and remedies as may be
provided by law, to specific
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performance, injunctive and other equitable relief to prevent, restrain
or remedy a breach of this Agreement.
3. WAIVERS. FRS shall not be deemed, as a consequence of any act,
delay, failure, omission, forbearance or other indulgences granted from
time to time or for any other reason: (i) to have waived, or to be
estopped from exercising, any of its rights or remedies under this
Agreement provided that such rights or remedies are enforced by legal
action within two (2) years after the act, delay, failure, omission,
forbearance or other indulgence, or (ii) to have modified, changed,
amended, terminated, rescinded, or superseded any of the terms of this
Agreement or any of the other similar agreements with Baxter, unless
such waiver, modification, amendment, change, termination, rescission,
or supersession is expressed in writing and signed by a duly authorized
officer of FRS. No single or partial exercise by FRS of any right or
remedy under this Agreement will preclude other or further exercise
thereof or preclude the exercise of any other right or remedy, and a
waiver expressly made in writing on one occasion will be effective only
in that specific instance and only for the precise purpose for which it
is given, and will not be construed as a consent to or a waiver of any
right or remedy on any future occasion or a waiver of any right or
remedy against Baxter under similar agreements with FRS. No notice to
or demand on Baxter in any instance will entitle Baxter to any other or
future notice or demand in similar or other circumstances.
4. SUCCESSORS & ASSIGNS. This Agreement, shall be binding upon
Baxter and its subsidiaries and FRS and their respective successors
and assigns. This Agreement shall inure to the benefit of the parties
hereto and their respective successors and assigns.
5. NOTICES. Notices or demands relating to this Agreement
shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed as follows, or telexed, telecopied or
delivered by overnight or other courier:
If to Baxter: ▇▇▇▇▇▇ Healthcare Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇
Three First National Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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If to FRS: Free Radical Sciences, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ & Dodge
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
6. COUNTERPARTS. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall
together constitute one and the same instrument. Each counterpart may
consist of a number of copies hereof, each signed by less than all, but
together singed by all of the parties hereto.
7. HEADINGS. The headings in this Agreement are for reference
only, and shall not affect the interpretation of this Agreement.
8. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts, without regard to the conflicts of law rules of the
Commonwealth of Massachusetts of any other jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
▇▇▇▇▇▇ HEALTHCARE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Strategic
Initiatives
FREE RADICAL SCIENCES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title:
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