Exhibit 99.1
SECOND AMENDED EMPLOYMENT AGREEMENT
This Amended Employment Agreement (this "Agreement") is made and
effective as of the 1st day of July, 2004, (the "Effective Date"), by and
between C. W. Bill Rouse (hereinafter referred to as "Employee") and
PharmaFrontiers Corporation (hereinafter referred to as "PharmaFrontiers").
W I T N E S S E T H:
WHEREAS, Employee desires employment with PharmaFrontiers on the terms
and conditions below; and
WHEREAS, PharmaFrontiers' success requires the protection of its
intellectual property, proprietary information and goodwill and PharmaFrontiers
is willing to employ Employee, subject to the terms and conditions below; and
WHEREAS, the parties wish to amend the terms of the employment
relationship, with such amendments to supercede and replace their prior
agreement as of the Effective Date; and
NOW, THEREFORE, for and in consideration of the employment by
PharmaFrontiers, the compensation and other remuneration paid and to be paid by
PharmaFrontiers and received by the Employee for such employment, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by Employee, it is agreed by and between the parties hereto as
follows:
1. Employment
PharmaFrontiers agrees to employ the Employee, and Employee agrees that
Employee will devote Employee's full productive time, skill, and best efforts
during the period of Employee's employment to such duties as may be reasonably
assigned to Employee. Employee will faithfully and diligently endeavor to
further the best interests of PharmaFrontiers during the period of Employee's
employment.
2. Term
Unless earlier terminated in accordance with this Agreement, the term
of the Employee's employment shall continue from the Effective Date for a period
of one (1) year. Either PharmaFrontiers or Employee may terminate this Agreement
on two (2) weeks' prior written notice in the event of a material breach of this
Agreement by the other party.
3. Duties and Title
During the term of this Agreement, Employee shall have the title of and
shall act as the Vice President, Operations and Administration, and Chief
Financial Officer of PharmaFrontiers. Employee shall have the following
responsibilities and duties: Employee shall report to PharmaFrontiers' President
and the Company's Audit Committee, shall handle corporate administration
matters, including the administration of finance and accounting, interface with
the Company's accountants and attorneys to ensure timely securities regulatory
filings, administration of contracts, and/or have such other responsibilities
and duties as may be assigned to Employee by PharmaFrontiers' President and/or
Board of Directors from time to time.
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4. Compensation
As compensation, PharmaFrontiers shall, upon the complete execution and
delivery of this Agreement to PharmaFrontiers, grant Employee a salary of
$180,000 per year, paid monthly. In addition, PharmaFrontiers grants to Employee
one (1) option to purchase, at $3.00 per share One Hundred Thousand (100,000)
shares of the common stock of PharmaFrontiers. This option will vest in three
parts: 33,333 on April 29, 2005, 33,333 on April 29, 2006 and finally 33,333 on
April 29, 2007. Any unexercised options will expire on April 29, 2009.
Employee's exercise of such options shall be pursuant to the execution of a
stock purchase agreement with terms acceptable to PharmaFrontiers. Any
compensation, salary and/or bonuses paid Employee shall be subject to such
payroll and withholding deductions as may be required by law or the policies of
PharmaFrontiers.
5. Benefits
PharmaFrontiers will provide Employee with the benefits and insurance
coverage as generally provided by PharmaFrontiers to its management employees,
but only if and when such benefits and/or coverage are provided. As of the
Effective Date, no such benefits or coverage are provided. If provided, such
benefits and insurance coverages may be changed by PharmaFrontiers from time to
time.
6. Confidential and Proprietary Information; Documents
6.1 PharmaFrontiers shall provide Employee 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 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 Employee's tenure of
employment, which are not generally available to the public or which are
maintained as confidential by PharmaFrontiers.
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6.2 Employee recognizes and acknowledges that Employee will have access
to certain information of PharmaFrontiers that is confidential and proprietary
and constitutes valuable and unique property of PharmaFrontiers. Employee agrees
that Employee will not at any time, either during or subsequent to Employee's
employment, disclose to others, use, copy or permit to be copied, except in
pursuance of Employee's duties on behalf of PharmaFrontiers, its successors,
assigns or nominees, any Confidential Information or know-how of PharmaFrontiers
(whether or not developed by the Employee) without PharmaFrontiers' prior
written consent. Employee further agrees to maintain in confidence any
confidential information of third parties received as a result of Employee's
employment with PharmaFrontiers.
6.3 Employee further agrees to deliver to PharmaFrontiers at the
termination of Employee's employment 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 Employee, solely or jointly with others, and which are
in Employee's possession, custody, or control at such date and which are related
in any manner to the past, present, or anticipated business of PharmaFrontiers.
In this regard, Employee hereby grants and conveys to PharmaFrontiers all right,
title and interest in and to, including without limitation, the right to
possess, print, copy, and sell or otherwise dispose of, any biological
materials, reports, records, papers summaries, photographs, drawings or other
documents, and writings, copies, abstracts or summaries thereof, or any other
works of authorship, which may be prepared by Employee or under Employee's
direction or which may come into Employee's possession in any way during the
term of Employee's employment with PharmaFrontiers which relate in any manner to
the past, present or anticipated business of PharmaFrontiers.
6.4 Employee further agrees that Employee will not, during Employee's
employment, receive from persons not employed by PharmaFrontiers, any
confidential information not belonging to PharmaFrontiers, unless a valid
agreement is signed by both an officer of PharmaFrontiers and by the disclosing
party that states that PharmaFrontiers will not be in a confidential
relationship with the disclosing party. Employee further agrees that Employee
will not use or disclose to other employees of PharmaFrontiers, during
Employee's employment with PharmaFrontiers, confidential information belonging
to Employee's former employers, or any other third parties unless written
permission has been given by such persons to PharmaFrontiers to use and/or
disclose such information.
6.5 In the event of a breach or threatened breach of any of the
provisions of Section 6, PharmaFrontiers shall be entitled to an injunction
ordering the return of such Documents and any and all copies thereof and
restraining Employee from using or disclosing, for Employee'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. Employee further agrees that any breach or threatened
breach of any of the provisions of Section 6 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.
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7. Noncompetition/No-Hire Agreement
7.1 Employee agrees that, from the Effective Date until a period of
[two (2) years] following the date of the termination of Employee's employment
(the "Noncompetition Period"), Employee 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 services or licenses to intellectual property rights, in whole or in
part, as are provided by PharmaFrontiers during the term of this Agreement.
7.2 Employee further agrees that during the Noncompetition Period and
within the Noncompetition Territory Employee 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 Employee or for any other person, firm, or
corporation.
7.3 Employee 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 Employee
became acquainted during Employee's association with PharmaFrontiers, regardless
of whether for the benefit of the Employee or for any other person, firm or
corporation.
7.4 Employee agrees that the restraints created by the covenants in
Section 7 are no greater than necessary to protect PharmaFrontiers' legitimate
interests. Furthermore, Employee agrees that such covenants of Section 7 do not
hinder, or otherwise cause hardship to Employee in finding and performing
employment elsewhere upon termination of this Agreement. Similarly, Employee
agrees that PharmaFrontiers' need for the protection afforded by the covenants
of Section 7 is not outweighed by either the hardship to Employee or any injury
likely to the public.
7.5 Employee agrees that this Section is ancillary to this Agreement,
and independent of any other agreement related to Employee's employment with
PharmaFrontiers, and Employee acknowledges that the consideration given by
PharmaFrontiers for this Agreement includes PharmaFrontiers' agreement to
provide to the Employee access to the Confidential Information, as well as
employment. Further, the existence of any claim or cause of action of Employee
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 Employee's
covenants contained in this Agreement. In addition, this Agreement shall
continue to be binding upon Employee in accordance with its terms,
notwithstanding the termination of Employee's employment.
7.5 Employee agrees that Employee'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 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 Employee is in breach of this covenant not to compete, the time period of
this covenant shall be extended for an amount of time that Employee is in
breach.
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8. Inventions and Other Intellectual Property
8.1 Employee 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 Employee'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 Employee's
employment by PharmaFrontiers, 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. Any and all such
Developments shall be the sole and exclusive property of PharmaFrontiers,
whether patentable, copyrightable, or neither, and Employee agrees that Employee
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. Employee
acknowledges and agrees that any and all such Developments conceived, created,
or authored by him within the scope of Employee's employment 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
Employee 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 not prepared within the scope
of Employee's employment, Employee 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
Employee's employment, and without limiting the generality of the foregoing, any
Development of the Employee relating to any PharmaFrontiers subject matter on
which Employee worked or was informed during Employee's employment by
PharmaFrontiers shall be conclusively presumed to have been conceived and made
prior to the termination of Employee's employment (unless the Employee clearly
proves that such Development was conceived and made following the termination of
Employee's employment), and shall accordingly belong, and be assigned, to
PharmaFrontiers and shall be subject to this Agreement.
8.2 Without limiting the foregoing, Employee agrees at the request of
PharmaFrontiers (but without additional compensation from PharmaFrontiers during
Employee'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 Employee's right, title, 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.
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8.3 All expenses incurred by the Employee by reason of the performance
of any of the obligations set forth in this Section on Inventions shall be borne
by PharmaFrontiers. Should the Employee's assistance be requested by
PharmaFrontiers after termination of employment, PharmaFrontiers would
compensate the Employee at a reasonable rate.
9. Conflicts of Interest
9.1 In keeping with Employee's fiduciary duties to PharmaFrontiers,
Employee agrees that Employee shall not, directly or indirectly, become involved
in any conflict of interest, or upon discovery thereof, allow such a conflict to
continue. Moreover, Employee agrees that Employee shall promptly disclose to The
Board of PharmaFrontiers any facts which might involve any reasonable
possibility of a conflict of interest. Employee 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.
9.2 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 Employee would or
might arise, and which should be reported immediately by Employee 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 Employee 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
Employee'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 Employee 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, employee or agent of any enterprise
which is in competition with PharmaFrontiers or its dealers or distributors.
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10. Activities Associated With Maintenance of Professional Status and
Community Activities
PharmaFrontiers will reimburse Employee for the costs of activities
associated with the maintenance of the Employee's professional status, including
the payment of licensing fees and required continuing education, expenses for
professional/network meetings, as well as community activities.
11. Prior Discoveries
Employee attaches hereto, concurrently with the execution of this
Agreement, a list and brief description of all unpatented inventions and
discoveries, if any exist, made or conceived by Employee prior to Employee's
employment with PharmaFrontiers and which are to be excluded from this
Agreement. If no such list is attached at the time of execution of this
Agreement, it shall be conclusively presumed that Employee has waived any right
Employee may have to any such invention or discovery which relates to
PharmaFrontiers' business.
12. Publicity
12.1 Employee agrees that PharmaFrontiers may use, and hereby grants
PharmaFrontiers the nonexclusive and worldwide right to use, Employee's name,
picture, likeness, photograph, signature, or any other attribute of Employee's
persona (all of such attributes are hereafter collectively referred to as
"Persona") in any media for any advertising, publicity or other purpose at any
time, either during or subsequent to Employee's employment by PharmaFrontiers.
Employee agrees that such use of Employee's Persona will not result in any
invasion or violation of any privacy or property rights Employee may have; and
Employee agrees that Employee will receive no additional compensation for the
use of Employee's Persona. Employee further agrees that any negatives, prints or
other material for printing or reproduction purposes prepared in connection with
the use of Employee's Persona by PharmaFrontiers shall be and are the sole
property of PharmaFrontiers.
12.2 Employee further agrees that at no time shall Employee write,
author, publish, distribute, or cause to be published or distributed any
pictorial, graphic, or literary works, such as but without limitation, books,
articles, stories, or pamphlets, in any medium of expression, tangible or
intangible, that relate, describe, or pertain in any way to PharmaFrontiers or
to the operations, activities, or employees of PharmaFrontiers without first
obtaining the prior written consent of the Board of Directors of PharmaFrontiers
to do so and also the prior written approval of the contents of any such work by
the Board of Directors of PharmaFrontiers.
13. Remedies
Employee and PharmaFrontiers agree that, because damages at law for any
breach or nonperformance of this Agreement by Employee, while recoverable, are
and will be inadequate, this Agreement may be enforced in equity by specific
performance, injunction, accounting or otherwise.
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14. Miscellaneous
14.1 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 Employee and the successors and assigns
of PharmaFrontiers. This Agreement may be assigned by PharmaFrontiers but is
personal to the Employee and no rights, duties, and obligations of Employee
hereunder may be assigned.
14.2 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
employees shall be construed to be a waiver of any succeeding breach of such
provision, or as a waiver of the provision itself.
14.3 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.
14.4 Employee's obligations under this Agreement to PharmaFrontiers
shall survive the termination, for whatever reason, of Employee's employment by
PharmaFrontiers.
14.5 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
Employee and PharmaFrontiers and constitutes the sole and entire agreement
between the Employee and PharmaFrontiers with respect to the subject matter of
this Agreement.
14.6 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 interpretation, validity and effect of this
Agreement without regard to the place of execution or the place for performance
thereof, and PharmaFrontiers and Employee agree that the state and federal
courts in Harris County, Texas, shall have personal jurisdiction and venue over
PharmaFrontiers and Employee to hear all disputes arising under this Agreement.
This Agreement is to be at least partially performed in Harris County, Texas.
14.7 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:
Mr. Warren C. Lau
PharmaFrontiers Corporation
10211 Silver Leaf Lane
Tomball, Texas 77375
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If to Employee, to:
Mr. C. W. Bill Rouse
2030 McClendon Houston,
Texas 77030
or to such other addresses as either party may designate by notice to the other
party hereto in the manner specified in this section.
14.8 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 unless 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 Employee's salary
and/or duties shall not be, nor be deemed to be, a change, termination or waiver
of this Agreement or of any of the provisions herein contained.
PHARMAFRONTIERS CORPORATION EMPLOYEE
By: /s/ David B. McWilliams By: /s/ C.W. Rouse
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David B. McWilliams C. W. Bill Rouse
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