EXHIBIT 10.5


 


Second Amended and Restated


Employment Agreement


 


THIS EMPLOYMENT AGREEMENT (this “Agreement”)
made effective as of the 13th day of November 2007 (the “Effective Date”), by
and between Advanced Life Sciences, Inc., an Illinois corporation (the “Company”),
and Ze-Qi Xu, Ph.D. (the “Executive”).


 


WHEREAS, the
Company and the Executive previously entered into an employment contract (the “Original
Employment Contract”); and


 


WHEREAS, the
Company and the Executive entered into an Amended and Restated Employment
Agreement, effective November 7, 2006 (the “First Amended and Restated
Employment Agreement); and


 


WHEREAS, the
Company and the Executive desire to enter into this Second Amended and Restated
Agreement, effective as of the Effective Date, to amend and restate the First
Amended and Restated Employment Agreement; and


 


WHEREAS, the Company desires to employ the Executive in accordance with
the terms and conditions hereinafter set forth and the Executive desires to be
so employed; and


 


WHEREAS, the
Company has agreed with the Executive that this Agreement shall set forth the
terms and conditions of the Executive’s employment with the Company;


 


NOW,
THEREFORE, in consideration of the mutual covenants contained herein, the
Company and the Executive agree as follows:


 


1.                                       Term.
The employment of the Executive by the Company pursuant to this Agreement shall
begin as of the Effective Date and shall expire on the third anniversary of the
Effective Date (the “Term”), unless extended, as set forth below, or otherwise
terminated pursuant to the provisions of this Agreement; provided, however,
that commencing on the third anniversary of the Effective Date and on each
anniversary thereafter, the Term of this Agreement shall automatically be
extended for one additional year unless, not later than 90 days prior to such
anniversary, the Executive or the Company shall have given notice in writing
that he or it does not wish to extend this Agreement.


 


2.                                       Position
and Duties. The Executive shall serve as the Executive Vice President and
Chief Scientific Officer of the Company, and shall have such responsibilities,
duties and authority as are assigned by the Chief Executive Officer and are
customarily associated with such position, including but not limited to, those
he may have as of the Effective Date. The Executive shall devote such time to
the performance of his duties as is necessary to satisfactorily perform his
responsibilities and duties.


 


3.                                       Place
of Performance. In connection with the Executive’s employment by the
Company, the Executive shall be based at the principal executive offices of the
Company currently in Woodridge, Illinois, except for required travel on the
Company’s business.


 


4.                                       Compensation
and Related Matters. During the Term of the Executive’s employment, as
compensation and consideration for the performance by the Executive of the
Executive’s duties, responsibilities and covenants pursuant to this Agreement,
the Company shall pay the Executive and the Executive agrees to accept in full
payment for such performance the amounts and benefits set forth below.


 


(a)                                  Salary. The
Company shall pay to the Executive an annual base salary of $225,000 (“Base
Salary”), payable in substantially equal installments no less frequently than
monthly in accordance with the Company’s applicable payroll practices. The
Compensation Committee of the Board of Directors of the Company (the “Compensation
Committee”) shall review the Base Salary annually, at a minimum, or at such
other time as it deems a review necessary and may increase the Base Salary on a
prospective basis. Any such salary adjustment shall then be considered Base
Salary for the purposes of this Agreement. The Executive’s Base Salary shall
not be reduced after any increase, without the Executive’s consent.


 


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(b)                                 Bonus.
The Executive shall be eligible to participate throughout the Term in the
Company’s annual bonus plan or any similar or successor bonus plan (“Bonus Plan”)
in accordance with the Company’s compensation practices and the terms and
provisions of the Bonus Plan. Each year, the Executive may be eligible to
receive a target performance
bonus of thirty percent (30%) of Base Salary. The amount of the Executive’s
target performance bonus shall be reviewed annually and may be increased by the
Compensation Committee.


 


(c)                                  Stock
Incentive Plan. The Executive shall be eligible to receive additional
awards of the Company’s common stock under the Company’s Stock Incentive Plan
or under any other equity plan of the Company as determined by the Compensation
Committee in its discretion.


 


(d)                                 Other Benefits and
Perquisites. During the Term of the Executive’s employment hereunder:


 


(i) Benefit Plans. The Executive shall be
entitled to participate in or receive benefits under any employee pension or
welfare benefit plan or arrangement made available by the Company at any time
during his employment hereunder to its employees (collectively the “Benefit
Plans”), including without limitation each qualified retirement plan, life
insurance and accident plan, medical, dental insurance plans, and disability
plan, subject to and on a basis consistent with the terms, conditions and
overall administration of such plans and arrangements, as they may be amended
from time to time.


 


(ii) Vacation. The Executive shall be
entitled to not less than 20  days of paid
vacation in each calendar year, in accordance with the Company’s vacation
policy.


 


(iii)                               Expense
Reimbursement. The Executive shall be entitled to receive reimbursement for
all reasonable business, travel or other out-of-pocket expenses incurred by the
Executive in fulfilling the Executive’s duties and responsibilities hereunder,
provided that such expenses are incurred and accounted for in accordance with
the policies and procedures established by the Company.


 


5.                                       Termination.


 


(a)                                  The
Executive’s employment hereunder may be terminated under the following
circumstances:


 


(i)                                     The death of the
Executive;


 


(ii)                                  By the Company for “Cause”,
which shall mean any of the following:, as determined by the Board in its
discretion:  (A) conviction of or plea of
guilty or nolo contendere to any
criminal violation involving dishonesty or fraud; (B) engagement in conduct
that is injurious to the Company; (C) engagement in any act of dishonesty or misconduct
that results in damage to the Company or its business or reputation or that the
Board determines to adversely affect the value, reliability or performance of
the Executive to the Company; (D) refusal or failure to substantially comply
with the Company’s human resources rules, policies, directions and/or
restrictions relating to harassment and/or discrimination, or with compliance
or risk management rules, policies, directions and/or restrictions; (E)
unauthorized use or disclosure of Confidential Information (as defined below)
or other trade secrets of the Company; (F) loss of any license or registration
that is necessary for the Executive to perform his duties to the Company, or
commission of any act that could result in the legal disqualification of the
Executive from being employed by the Company or any of its affiliates; (G)
failure to cooperate with the Company or any of its affiliates in any internal
investigation or administrative, regulatory or judicial proceeding; or (H)
continuous failure by the Executive to perform his duties to the Company (which
may include any sustained and unexcused absence of the Executive from the
performance of such duties, which absence has not been certified in writing as
due to physical or mental illness or disability), after a written demand for
performance has been delivered to the Executive identifying the manner in which
the Executive has failed to substantially perform such duties. The application
of any part of the definition of Cause set forth in clauses (A) through (H)
above to the Executive shall not preclude or prevent the reliance by the
Company or the Board on any other part of the definition that also may be
applicable. In addition, the Executive’s employment shall be deemed to have
terminated for Cause if, after the Executive’s employment has terminated, facts
and circumstances are discovered that would have justified a termination for
Cause.


 


(iii)                               By
mutual agreement between the Company and the Executive; or


 


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(iv)                              By
the Executive or the Company for any reason other than as stated in Sections
5(a)(i) through 5(a)(iii) above, upon providing a Notice of Termination (as
defined in Section 5(b)).


 


(b)                                 Notice of
Termination. Any termination of the Executive’s employment by the Company
or by the Executive (other than a termination pursuant to Section 5(a)(i)
above) shall be communicated by written Notice of Termination to the other
party hereto in accordance with Section 10. For purposes of this Agreement, a “Notice
of Termination” shall mean a notice that shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive’s employment under the provision so indicated.


 


(c)                                  “Date of Termination”
shall mean (i) if the Executive’s employment is terminated pursuant to Section
5(a)(i) above, the date of his death; (ii) if the Executive’s employment is
terminated pursuant to Section 5(a)(ii) or 5(a)(iv) above, the date such Notice
of Termination is given (or such later date as provided therein); (iii) if the
Executive’s employment is terminated pursuant to Section 5(a)(iii) above, the
date mutually agreed to by the parties; (iv) the date the Term of this
Agreement expires, if either the Company or the Executive provides notice in
accordance with Section 1; or (v) if the Executive terminates his employment
and fails to provide written notice to the Company of such termination, the
date of such termination.


 


6.                                       Compensation
Upon Termination.


 


(a)                                  The following
payments shall be made upon the Executive’s termination of employment for any
reason:  (i) earned but unpaid Base
Salary through the Executive’s Date of Termination; (ii) any accrued but unpaid
vacation; (iii) unreimbursed business expenses owed pursuant to Section
4(d)(iii); (iv) any outstanding notes payable to the Executive along with the
interest due; and (v) any amounts payable under any of the Company’s Bonus Plan
and Benefit Plans in accordance with the terms of those plans. All amounts
under clauses (i) through (v) shall be paid in a lump sum on the Executive’s
Date of Termination or as soon as administratively practicable thereafter.


 


 (b)                              In
the event that the Executive’s employment is terminated pursuant to Sections
5(a)(i) or 5(a)(ii), or by the Executive for any reason  pursuant to Section 5(a)(iv), above, the
Company shall have no further obligation to the Executive under this Agreement,
other than the payments in Section 6(a).


 


(c)                                  If
the Executive’s employment is terminated by the parties pursuant to Section
5(a)(iii) above, the Executive shall be entitled to receive the compensation
the parties specify in any written agreement that the Company and the Executive
execute regarding the Executive’s termination.


 


(d)                                 In
addition to the payments made under Section 6(a), if the Executive’s employment
is terminated by the Company without Cause pursuant to Section 5(a)(iv) above,
and conditioned upon the Executive’s execution of a valid and legally
enforceable release of claims against the Company, the Company shall, for a
period of twelve (12) months following the Date of Termination (the “Severance
Period”):  (i) provide to the Executive
salary continuation paid in accordance with the Company’s applicable payroll
practices, at the Executive’s Base Salary rate in effect as of the Date of
Termination and (ii) continue the Executive’s coverage under the Company’s
health medical, dental, vision, disability, and life and accident benefit
plans, in which the Executive participated immediately prior to the Date of
Termination, provided, however, that if the Company cannot continue such
coverage, the Company shall provide or arrange to provide, at its expense,
similar coverage to the Executive and if such coverage cannot be arranged, the  Company will provide a cash equivalent payment to the
Executive. In addition, no later than two and one-half (21⁄2) months following
the end of the year in which the Executive’s employment is terminated, the
Company shall pay the Executive in a lump sum an amount equal to the Executive’s
target performance bonus multiplied by a fraction, the numerator of which is
the number of days in the calendar year in which the Executive’s employment is
terminated through the Date of Termination and the denominator of which is 365.
Notwithstanding the forgoing, vacation days shall not accrue during the
Severance Period.


 


(e)                                  The Executive shall
not be required to mitigate the amount of any payment provided for in this
Section 6 by seeking other employment or otherwise, nor shall the amount of any
payment or benefit provided for in this Section 6 be reduced by any
compensation earned by the Executive as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by the Executive to the Company, or otherwise.


 


(f)                                    The obligations of
the Company to make payments and provide benefits under this Section 6 shall
survive the termination of this Agreement.


 


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7.                                       Change
in Control. Upon a Change in Control
(as defined below), all outstanding stock options and other equity awards under
the Company’s Stock Incentive Plan or other similar or successor plan held by
the Executive will immediately become fully vested and exercisable.


 


(a)                                  Payments
and Benefits Upon Employment Termination Upon a Change in Control. If, within
twenty four (24) months after a Change in Control, the Executive’s employment
is terminated by the Company other than for Cause or if the Executive
terminates employment for Good Reason (as defined below), the Company shall
provide the following payments and benefits to the Executive, in lieu of those
payments and benefits provided under Sections 6(d), but in addition to the
amounts payable under Section 6(a):


 


(i)                                     The
Company shall pay the Executive a lump sum cash amount equal to (2) times the
sum of (A) the Executive’s annual Base Salary as in effect on the date of the
Executive’s termination of employment and (B) the Executive’s target
performance bonus amount as in effect as in effect for the fiscal year in which
the Executive’s employment is terminated:


 


(Base Salary +
Target Performance Bonus)   x   2  
=   lump sum cash amount


 


(ii)                                  The
Company shall continue the Executive’s coverage under the Company’s health
medical, dental, vision, disability, and life and accident insurance benefit
plans in which the Executive participated immediately prior to the Executive’s
termination of employment for a period of twenty four (24) months, provided,
however, that if the Company cannot continue such coverage, the Company shall
provide or arrange to provide, at its expense, similar coverage to the
Executive and if such coverage cannot be arranged, the  Company
will provide a cash equivalent payment to the Executive.


 


(b)                                 Timing
of Payment. All payments under Section 7(a)(i) shall be made in a lump sum cash
payment as soon as practicable, but in no event more than 10 days after the
Executive’s termination of employment.


 


(c)                                  Definitions.
For purposes of this Agreement, the following terms shall have the following
definitions:


 


(i) “Change in Control” means the occurrence of
any one or more of the following:


 


(A)                              any
“person” (as such term is defined in Section 3(a)(9) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) and as used in Sections 13(d)(3)
and 14(d)(2) of the Exchange Act), including a “group” (as defined in Section
13(d)(3) of the Exchange Act), other than (I) the Company, (II) any wholly-owned
subsidiary of the Company, (III) any employee benefit plan (or related trust)
sponsored or maintained by the Company or any of its affiliates, or (IV) a “Permitted
Holder” (as defined below), becomes a “beneficial owner” (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company having fifty percent (50%) or more of the combined voting power of the
then-outstanding securities of the Company that may be cast for the election of
directors of the Company (other than as a result of an issuance of securities
initiated by the Company in the ordinary course of business) (the “Company
Voting Securities”); provided, however, that the event described in this
Section 7(c)(i) shall not be deemed to be a Change in Control by virtue of any
underwriter temporarily holding securities pursuant to an offering of such
securities;


 


(B)                                individuals who, as of
the date of this Agreement, constitute the Board (the “Incumbent Directors”),
together with any new director(s) whose election or nomination for election by
the Company’s stockholders subsequent to the date hereof was approved by a vote
of at least two-thirds (2/3) of the directors then still in office who either
were Incumbent Directors or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority thereof;


 


(C)                                the consummation by the
Company of a reorganization, merger or consolidation, or sale or other
disposition of all or substantially all of the assets of the Company (a “Business
Combination”), in each case, unless immediately following such Business
Combination:  (A) holders of the
securities of the Company entitled to vote generally in the election of
directors of


 


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the Company immediately prior to such Business Combination own or hold,
in substantially the same proportions as their ownership immediately prior to
such Business Combination, more than 50% of the combined voting power of then
outstanding voting securities entitled to vote generally in the election of
directors of (x) the entity resulting from such Business Combination, or (y) if
applicable, the entity that as a result of such Business Combination owns the
Company or all or substantially all of the Company’s assets either directly or
through one or more subsidiaries; or


 


(D)                               the stockholders of the
Company approve a plan of complete liquidation or dissolution of the Company.


 


Notwithstanding the foregoing, a Change in
Control shall not be deemed to occur solely because any person acquires
beneficial ownership of more than fifty percent (50%) of the Company Voting
Securities as a result of the acquisition of Company Voting Securities by the
Company which reduces the number of Company Voting Securities outstanding;
provided, however, that if after such acquisition by the Company such person
becomes the beneficial owner of additional Company Voting Securities that
increases the percentage of outstanding Company Voting Securities beneficially
owned by such person, a Change in Control transaction shall then occur.


 


Further notwithstanding the foregoing, unless
a majority of the Incumbent Directors determines otherwise, no Change in
Control shall be deemed to have occurred with respect to the Executive if the
Change in Control results from actions or events in which the Executive is a
participant in a capacity other than solely as an officer, employee or director
of the Company or any of its affiliates.


 


(ii)                                  “Permitted Holders”
means (A) Michael T. Flavin (the “Principal”), (B) the spouse or any immediate
family member of the Principal and any child or spouse of any spouse or
immediate family member of the Principal, (C) a trust, corporation, partnership
or other entity, the beneficiaries, stockholders, partners, owners or persons
beneficially holding, directly or indirectly, a controlling interest of which
consists of the Principal and/or such other persons referred to in the
immediately preceding clause (B), or (D) the trustees of any trust referred to
in clause (D).


 


(iii)                               “Good Reason” means any
of the following conditions, without the Executive’s consent, (A) a material
diminution in the Executive’s Base Salary, (B) a material diminution in the
Executive’s authority, duties, or responsibilities, (C) a material diminution
in the authority, duties, or responsibilities of the supervisor to whom the
Executive is required to report, including a requirement that the Executive
report to a corporate officer or employee instead of reporting directly to the
Board (or other similar governing body), (D) a material diminution in the
budget over which the Executive retains authority, (E) a material change in the
geographic location at which the Executive must perform services, and (F) any
other action or inaction that constitutes a material breach by the Company of
this Agreement. If one or more of the above conditions exists, the Executive
must provide notice to the Company within ninety (90) days of the initial
existence of the condition. Upon such notice, the Company shall have a period
of thirty (30) days during which it may remedy the condition.


 


(d)                                 Treatment
of Parachute Payments.


 


(i)                                     Notwithstanding
any other provisions of this Agreement, and except as set forth below, in the
event that any payment or benefit received or to be received by the Executive
in connection with a Change in Control or the termination of the Executive’s
employment (whether pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, any person whose actions result in a
Change in Control or any person affiliated with the Company or such person)
(all such payments and benefits, including payments under Section 7(a) above,
being hereinafter called “Total Payments”) is determined to be an “excess
parachute payment” pursuant to Section 280G of the Internal Revenue Code of
1986, as amended (the “Code”), or any successor or substitute provision of the
Code, with the effect that the Executive is liable for the payment of the
excise tax described in Code Section 4999 or any successor or substitute
provision of the Code (the “Excise Tax”), then, after taking into account any
reduction in the Total Payments provided by reason of Code Section 280G in such
other plan, arrangement or agreement, the cash payments provided in Section
7(a)(i) of this Agreement shall first be reduced, and the noncash


 


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payments and
benefits shall thereafter be reduced, to the extent necessary so that no
portion of the Total Payments is subject to the Excise Tax.


 


(ii)                                  All
determinations required to be made under this Section 7(d), and the assumptions
to be utilized in arriving at such determination, shall be made by the
certified public accounting firm used for auditing purposes by the Company
immediately prior to the date of the Executive’s termination of employment or,
if the parties determine that such certified public accounting firm cannot make
such determination because of legal restrictions, the parties shall agree on a
different certified public accounting firm (such certified public accounting
firm is hereinafter referred to as the “Accounting Firm”), which shall provide
detailed supporting calculations both to the Company and the Executive not
later than 5 days prior to the date of the Executive’s termination of
employment. The Company shall pay all fees and expenses of the Accounting Firm.
Any determination by the Accounting Firm shall be binding upon the Company and
the Executive, except as provided in paragraph (ii) below.


 


(iii)                               As
a result of the uncertainty in the application of Code Sections 280G and 4999
at the time of the initial determination by the Accounting Firm hereunder, it
is possible that the Internal Revenue Service (the “IRS”) or other agency will
claim that an Excise Tax, or a greater Excise Tax, is due. If the Executive is
required to make a payment of any such Excise Tax, the Company will promptly
pay the Executive an additional amount equal to the amount, or greater amount,
of Excise Tax the Executive is required to pay (plus a gross up payment for any
income taxes, interest, penalties or additional Excise Tax payable by Executive
with respect to such Excise Tax or additional payment), as determined by the
Accounting Firm. The Executive will notify the Company in writing of any claim
by the IRS or other agency that, if successful, would require payment by the
Company of the additional payments under this paragraph. The Executive and the
Company shall each reasonably cooperate with the other in connection with any
administrative or judicial proceedings concerning the existence or amount of
liability for Excise Tax with respect to the Total Payments. The Company shall
pay all fees and expenses of the Executive relating to a claim by the IRS or
other agency. Payments under this Section 7(d)(iii) will be made by the end of
the Executive’s taxable year next following the Executive’s taxable year in
which the Executive remits the related taxes, in accordance with Code Section
409A and Treas. Reg. §1.409A-3(i)(1)(v) (or any similar or successor
provisions).


 


8.                                       Code
Section 409A.


 


(a)                                  This
Agreement is intended to comply with Code Section 409A and the interpretative
guidance thereunder, including the exceptions for short-term deferrals,
separation pay arrangements, reimbursements, and in-kind distributions, and
shall be administered accordingly. The Agreement shall be construed and
interpreted with such intent.


 


(b)                                 To
the extent payments under Section 6(d) are subject to Code Section 409A and the
Executive is a Specified Employee (as defined below) as of the Date of
Termination, distributions to the Executive may not be made before the date
that is six months after the date of the Date of Termination or, if earlier,
the date of the Executive’s death (the “Six Month Delay Rule”). The term “Specified
Employee” has the meaning given to that term in Code Section 409A and Treas.
Reg. §1.409A-1(c)(i) (or other similar or successor provisions). Payments to
which the Executive would otherwise be entitled during the first six months
following the Date of Termination (the “Six Month Delay”) will be accumulated
and paid on the first day of the seventh month following the Date of
Termination. Notwithstanding the Six Month Delay Rule set forth in this Section
8(b), to the maximum extent permitted under Code Section 409A and Treas. Reg.
§1.409A-1(b)(9)(iii) (or any similar or successor provision), during the Six
Month Delay, the Company will provide the payments set forth in Section 6(d)(i)
above, but in no event will the amount of such payments exceed during the Six
Month Delay an amount equal to two times the lesser of (i) the maximum amount
that may be taken into account under a qualified plan pursuant to Code Section
401(a)(17) for the year in which the Date of Termination occurs and (ii) the
sum of the Executive’s annualized compensation based upon the annual rate of
pay for services provided to the Company for the taxable year of the Executive
preceding the taxable year of the Executive in which the Executive’s Date of
Termination occurs (adjusted for any increase during that year that was
expected to continue indefinitely if the Executive had not had a Date of
Termination), provided that amounts paid under this sentence will count toward,
and will not be in addition to, the total payment amount required to be made to
the Executive by the Company under Section 6(d)(i) above. Notwithstanding the
Six Month Delay Rule set forth in this Section 8(b), to the maximum extent
permitted under Code Section 409A and Treas. Reg. §1.409A-1(b)(9)(v) (or any
similar or successor provision), the Company will provide the payments set
forth in Section 6(d)(ii), if not otherwise excepted from Code Section 409A, to
the extent such payments do not exceed the applicable dollar amount under Code
Section 402(g)(1)(B) for the year in which


 


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the Date of Termination
occurs; provided that amounts paid under this sentence will count toward, and
will not be in addition to, the total payment amount required to be made to the
Executive by the Company under Section 6(d)(ii) above.


 


(c)                                  Payments
under Section 7(a)(i) are intended to qualify as short-term deferrals. However,
if the Company reasonably determines that a payment under Section 7(a)(i) above
does not qualify as a short-term deferral under Code Section 409A and Treas.
Reg. §1.409A-1(b)(4) (or any similar or successor provisions), or that other
benefits under Section 7(a) do not qualify for an exception from Code Section
409A and the Executive is a Specified Employee as of the Date of Termination,
distributions to the Executive are subject to the Six Month Delay Rule. Payments
to which the Executive would otherwise be entitled during the Six Month Delay
will be accumulated and paid on the first day of the seventh month following the
Date of Termination. Notwithstanding the Six-Month Delay Rule set forth in this
Section 8(c):


 


(i)                                     To
the maximum extent permitted under Code Section 409A and Treas. Reg.
§1.409A-1(b)(9)(iii) (or any similar or successor provision), during the first
month of the Six-Month Delay, the Company will pay the Executive an amount
equal to the lesser of:  (i) the total
lump sum severance provided under Section 7(a)(i) or (ii) two times the lesser
of (A) the maximum amount that may be taken into account under a qualified plan
pursuant to Code Section 401(a)(17) for the year in which the Date of
Termination occurs, and (B) the sum of the Executive’s annualized compensation
based upon the annual rate of pay for services provided to the Company for the
taxable year of the Executive preceding the taxable year of the Executive in
which the Executive’s Date of Termination occurs (adjusted for any increase
during that year that was expected to continue indefinitely if the Executive
had not had a Date of Termination); provided that amounts paid under this
sentence will count toward, and will not be in addition to, the total payment
amount required to be made to the Executive by the Company under Section
7(a)(i) above.


 


(ii)                                  To
the maximum extent permitted under Code Section 409A and Treas. Reg.
§1.409A-1(b)(9)(v) (or any similar or successor provision), the Company will
provide the payments set forth in Section 7(a)(ii), if not otherwise excepted
from Code Section 409A, to the extent such payments do not exceed the applicable
dollar amount under Code Section 402(g)(1)(B) for the year in which the Date of
Termination occurs; provided that amounts paid under this sentence will count
toward, and will not be in addition to, the total payment amount required to be
made to the Executive by the Company under Section 7(a)(ii) above.


 


9.                                       Restrictive  Covenants.


 


(a)                                  Trade Secrets. The
Executive acknowledges that he has had and shall have access to confidential
information of the Company, whether or not reduced to writing and whether in
paper, electronic, digital, analog or other format (including, but not limited
to, trade secrets, know-how, Inventions (as defined below), new product and
product development information, research results, marketing and sales
programs, customer and supplier information, financial data, employee records,
cost information, pricing information, sales and marketing strategies, the
identity of customers, information received by the Company under an obligation
of confidentiality to customers, and all information generated by the Company
for customers) relating to the past, present or planned business, customers,
clients, contacts, prospects and assets of the Company that is unique, valuable
and has not purposefully been made generally known to the public by the Company
(“Confidential Information”). Confidential Information shall not include any
information that: (i) is now, or hereafter becomes, through no act or failure
to act on the part of the Executive that constitutes a breach of this Section
9, generally known or available to the public; (ii) is hereafter furnished
without restriction on disclosure to the Executive by a third party, other than
an employee or agent of the Company, who is not under any obligation of
confidentiality to the Company; (iii) is disclosed with the written approval of
the Company; or (iv) is required to be disclosed or provided by law, court
order, or similar compulsion, including pursuant to or in connection with any
legal proceeding involving the parties hereto; provided, however, that such
disclosure shall be limited to the extent so required or compelled; and
provided further, however, that if the Executive is required to disclose such
Confidential Information, the Executive shall give the Company notice of such
disclosure and cooperate in seeking suitable protections. The Executive
acknowledges that all Confidential Information, and all documents, files,
reports, drawings, designs, specifications, formulae, samples, data, writings,
tools, equipment, memory devices or any other tangible objects that
incorporate, contain, refer to or embody any Confidential Information (“Items”),
acquired by the Executive in connection with the Executive’s employment with
the Company are the property of the Company. Other than in the course of
performing services for the Company or otherwise authorized in writing by the
Company, the Executive shall not, at any time, directly or indirectly use,
divulge, furnish or make accessible to any person any Confidential Information,
but instead shall keep all


 


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Confidential Information strictly and absolutely confidential. The
Executive shall deliver promptly to the Company, at the termination of his
employment or at any other time at the request of the Company, without
retaining any copies, all Items and any other documents or materials in the
Executive’s possession relating, directly or indirectly, to any Confidential
Information.


 


(b)                                 Non-competition. Beginning
on the Effective Date and for a period of twelve (12) months following
Executive’s Date of Termination (the “Restricted Period”), Executive shall not
directly or indirectly, alone or in conjunction with any other party, own any
interest in, operate, control, engage in or participate as a partner, director,
principal, officer, employee, independent contractor or agent of, act as a
consultant to, perform any services for, or assist in any way any company,
person, or entity in the United States that is engaged in “Competing Services”
(as defined herein). Competing Services shall mean chemistry and biology
research and development relating to, arising from, connected with, or
competitive with or intended to be competitive with, any product or research
project as to which the Executive performed services for the Company, or about
which the Executive received access to Confidential Information while employed
by the Company. If the Executive obtains other employment during the
twelve-month period after the Executive’s Date of Termination, the Executive
agrees to notify the Company in writing of the name and address of such
employer.


 


(c)                                  Non-Solicitation of
Employees. During the Restricted Period, the Executive shall not, directly or
indirectly solicit or induce, or attempt to solicit or induce, any current
employee of the Company, or any individual who becomes an employee during the
Restricted Period, to leave his or her employment with the Company or join or
become affiliated with any other business or entity, hire any employee of the
Company or in any way interfere with the relationship between any employee and
the Company.


 


(d)                                 Non-Solicitation
of Customers. During the Restricted Period, the Executive shall not, directly
or indirectly, solicit or induce, or attempt to solicit or induce, any
customer, supplier, licensee, licensor or other business relation of the
Company to terminate its relationship or contract with the Company, to cease
doing business with the Company, or in any way interfere with the relationship
between any such customer, supplier, licensee or business relation and the
Company (including making any negative statements or communications concerning
the Company or their employees).


 


(e)                                  Inventions.
The Executive acknowledges all inventions of the Company (including, but not
limited to, procedures, systems, machines, methods, processes, uses,
apparatuses, compositions of matter, designs, or configurations of any kind,
discovered, conceived, reduced to practice, developed, made or produced) (“Inventions”)
that (i) relate to the present or planned business of the Company or the work
performed by the Company for its customers, and (ii) are conceived or reduced
to practice by the Executive, either alone or with others, during the Executive’s
employment with the Company or during a period of 120 days after the Executive’s
Date of Termination, whether or not done during the Executive’s regular working
hours, are the sole property of the Company, including, without limitation, all
domestic and foreign patent rights, rights of registration or other protection
under the copyright laws, or other rights pertaining to the Inventions. For
purposes of this Agreement, Inventions shall include any improvements to an
Invention and shall not be limited to the definition of a patentable invention
or copyrightable work of authorship as contained in the United States patent or
copyright laws. The Executive shall disclose promptly and fully in writing to
the Company each Invention, whether or not reduced to practice, that the
Executive conceives or learns (either alone or jointly with others) during the
Term of Employment. The Executive hereby assigns to the Company, or its
nominee, all of the Executive’s right, title and interest, including
international priority rights, in and to all Inventions (other than any
Invention that was developed entirely on the Executive’s own time and for which
no equipment, supplies, facilities or trade secret information of the Company
was used, unless such Invention relates directly to the Company’s business or
to the Company’s actual or demonstrably anticipated research or development),
and in and to all United States or foreign patents, copyrights and other
proprietary rights granted thereon or resulting therefrom, and in and to all
applications for United States or foreign copyrights, patents and other
proprietary rights. The Executive shall execute all papers, perform all lawful
acts or assist the Company in any way the Company deems necessary or advisable
(at the Company’s expense) for the preparation, filing, prosecution, issuance,
procurement, maintenance or enforcement of patents applications and patents of
the United States and foreign countries, and for obtaining and enforcing
copyright protection and registration, of any Invention. To that end, the
Executive shall at the Company’s request and without limitation, testify in any
suit or other proceeding involving any of the Inventions, execute all documents
that the Company reasonably determines to be necessary or convenient for use in
applying for and obtaining patent or copyright protection and registration on
any of the Inventions and enforcement of that protection and registration, and
execute all necessary documents and papers required to vest title in and assign
to the Company (or its nominee) patent or


 


8

















 


copyright
protection and registration. The Executive’s obligation to assist the Company
in obtaining and enforcing patent or copyright protection and registration for
the Inventions shall continue following termination of this Agreement, but
Company shall compensate the Executive following the expiration or termination
of this Agreement at a rate of $10 for the execution of each document and $150
per day for each day or portion thereof spent at the Company’s request in
rendering assistance, plus reimbursement for the reasonable out-of-pocket
expenses incurred by the Executive for such assistance. The Executive hereby
irrevocably appoints the Company and its duly authorized officers and agents as
his agent and attorney-in-fact to act for and on behalf of the Executive in
filing all patent applications, applications for copyright protection and
registration amendments, renewals and all other appropriate documents in any
way related to the Inventions.


 


(f)                                    Survival.
The provisions set forth in this Section 9 shall survive termination of this
Agreement.


 


(g)                                 Scope
Limitations. If the scope, period of time or area of restriction specified in
this Section 9 are or would be judged to be unreasonable in any court
proceeding, then the period of time, scope or area of restriction shall be
reduced or limited in the manner and to the extent necessary to make the
restriction reasonable, so that the restriction may be enforced in those areas,
during the period of time and in the scope that are or would be judged to be
reasonable.


 


10.                                 Binding
Agreement; Successors. This Agreement and all rights of the Executive
hereunder shall inure to the benefit of and be enforceable by the Executive’s
personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If the Executive should die while
any amounts would still be payable to him hereunder if he had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive’s devisee,
legatee, or other designee or, if there be no such designee, to the Executive’s
estate. This Agreement shall be binding upon, and inure to the benefit of, any
successors or assigns of the Company. This Agreement is not intended to confer
upon any person other than the parties hereto (and the Executives’ Spouse and
dependents) any rights or remedies, except as specifically provided in this
Section 10.


 


11.                                 Notice.
Notices, demands and all other communications provided for in this Agreement
shall be in writing and shall be deemed to have been duly given when delivered,
if delivered personally, or (unless otherwise specified) when received, if
mailed by United States certified or registered mail, return receipt requested,
postage prepaid, by Federal Express or other reputable overnight courier
service or by facsimile, addressed as follows:


 


If to the Executive:


 


Ze-Qi Xu, Ph.D.


1440 Davey Road


Woodridge, Illinois 60517


 


If to the Company:


 


Advanced Life Sciences, Inc.


1440 Davey Road


Woodridge, Illinois 60517


Attn: Chief Executive Officer


 


or to such other address as any
party may have furnished to the other in writing in accordance herewith, except
that notices of change of address shall be effective only upon receipt.


 


12.                                 General
Provisions. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in
writing signed by the Executive and such officer of the Company as may be
specifically designated by the Company’s Board. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party that are not set forth
expressly in this Agreement.


 


13.                                 Validity.
The invalidity or unenforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect. If
any provision of this Agreement is found to be invalid or unenforceable, in
whole or in part, then it shall be deemed to be


 


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modified or restricted to the
extent and in the manner necessary to render it valid and enforceable, or shall
be deemed excised from this Agreement, as the case may require, and this
Agreement shall be construed and enforced to the maximum extent permitted by
law, as if the provision had been originally incorporated herein as so modified
or restricted, or as if it had not originally been incorporated herein, as the
case may be.


 


14.                                 Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original but all of which together shall constitute one and
the same instrument.


 


15.                                 Entire
Agreement. This Agreement sets forth the entire agreement of the parties
hereto in respect of the subject matter contained herein and supersedes all
prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer,
employee or representative of any party hereto; and any prior agreement of the
parties hereto in respect of the subject matter contained herein is hereby
terminated and canceled. For the avoidance of doubt, the Company and the
Executive hereby agree that this Agreement shall replace and supersede the
Original Employment Contract and First Amended and Restated Employment
Agreement and govern the relationship of the parties.


 


16.                                 Irreparable
Harm. The Executive acknowledges that: (i) the Executive’s compliance with
this Agreement is necessary to preserve and protect the proprietary rights,
Confidential Information and the goodwill of the Company and its subsidiaries
as going concerns; (ii) any failure by the Executive to comply with the
provisions of this Agreement shall result in irreparable and continuing injury
for which there will be no adequate remedy at law; and (iii) in the event that
the Executive should fail to comply with the terms and conditions of this
Agreement, the Company shall be entitled, in addition to such other relief as
may be proper, to all types of equitable relief (including, but not limited to,
the issuance of an injunction and/or temporary restraining order) as may be
necessary to cause the Executive to comply with this Agreement, to restore to
the Company its property, and to make the Company whole.


 


17.                                 Consent
to Jurisdiction and Forum; Legal Fees and Costs. The Company and the
Executive hereby expressly and irrevocably agree that any action, whether at
law or in equity, arising out of or based upon this Agreement or the Executive’s
employment by the Company shall only be brought in a federal or state court
located in Cook County, Illinois. The Executive hereby irrevocably consents to
personal jurisdiction in such court and to accept service of process in
accordance with the provisions of such court. In connection with any dispute
arising out of or based upon this Agreement or the Executive’s employment by
the Company, each party shall be responsible for its or his own legal fees and
expenses and all court costs shall be shared equally by the Company and the
Executive unless the court apportions such legal fees or court costs in a
different manner.


 


18.                                 Withholding.
All payments made to the Executive pursuant to this Agreement shall be subject
to applicable withholding taxes, if any, and any amount so withheld shall be
deemed to have been paid to the Executive for purposes of amounts due to the
Executive under this Agreement.


 


19.                                 Governing
Law. This Agreement is governed by and is to be construed and enforced in
accordance with the laws of the State of Illinois, without regard to its
conflict of law provisions.


 


IN WITNESS
WHEREOF, the parties have executed this Agreement on the date and year first
above written.


 


	
  EXECUTIVE

  	
  ADVANCED
  LIFE SCIENCES, INC.

  
	
   

  	
   

  
	
  By:

  	
  /s/ Ze-Qi Xu

  	
   

  	
  By:

  	
  /s/ Michael T. Flavin

  	
   

  
	
  Name: Ze-Qi Xu, Ph.D.

  	
  Name:   Michael T. Flavin,
  Ph.D.

  
	
   

  	
  Title:     Chief
  Executive Officer

  
						



 


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