EXHIBIT 10.2


 


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 John L. Flavin (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 President  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 $253,000 (“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.


 


(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


 


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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


 


(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)).


 


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(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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(g)           If the Executive’s
employment is terminated by the parties pursuant to Section 5(a)(iii) or
Section 5(a)(iv) above, the Executive shall remain a Director of Advanced Life
Sciences Holdings, Inc. (“ADLS”) for as long as the Executive is a beneficial
owner of any class of stock in ADLS.


 


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;


 


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(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 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


 


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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 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


 


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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
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


 


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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 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


 


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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 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:


 


John L. Flavin


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.


 


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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 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/ John L. Flavin

  	
   

  	
  By:

  	
  /s/ Richard
  Wieland

  	
   

  
	
  Name: John L. Flavin

  	
   

  	
  Name:

  	
  Richard Wieland

  
	
   

  	
   

  	
  Title:

  	
  EVP & CFO

  
							



 


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