# **Exhibit 10.4**

# ** **

# **FIRSTAMENDMENT TO EMPLOYMENT AGREEMENT**

# ** **

This FIRST AMENDMENT TO EMPLOYMENT AGREEMENT(this “Amendment”) is entered into as of this 10th day of March, 2006 byand between Advanced Life Sciences, Inc., an Illinois corporation (“ALS”),and R. Richard Wieland, II (the “Executive”) to amend the terms of thatcertain Employment Agreement dated April 11, 2005 between ALS and the Executive(the “Agreement”).

 

WHEREAS, ALS and the Executive entered intothe Agreement on April 11, 2005;

 

WHEREAS, the parties wish to amend theAgreement as provided herein.

 

NOW, THEREFORE, in consideration of theforegoing recitals, the parties hereto, intending to be legally bound, agree asfollows:

 

1.     Incorporationof the Agreement. All capitalized terms which are not defined herein shallhave the same meanings as set forth in the Agreement, and the Agreement, to theextent not inconsistent with this Amendment, is incorporated herein by thisreference as though the same was set forth in its entirety. To the extent any termsand provisions of the Agreement are inconsistent with the amendments set forthin Paragraph 2 below, such terms and provisions shall be deemed supersededhereby. Except as specifically set forth herein, the Agreement shall remain infull force and effect and its provisions shall be binding on the partieshereto.

 

2.               Amendment ofthe Agreement. The Agreement is hereby amended asfollows:

 

a.               Section 4(a) of theAgreement shall be deleted in its entirety and replaced with the followinglanguage:

 

“Salary. The Company shall pay to theExecutive an annual base salary of $190,000 (“Base Salary”), payable insubstantially equal installments no less frequently than monthly in accordancewith the Company’s applicable payroll practices. The amount of Base Salaryshall be reviewed annually by the Chief Executive Officer to determine whetherto increase the Base Salary on a prospective basis and may be increased by theCompensation Committee of the Board without amendment to the Agreement. TheExecutive’s Base Salary shall not be reduced after any increase, without theExecutive’s consent.”

 

b.              Section 4(b) of theAgreement shall be deleted in its entirety and replaced with the followinglanguage:

 

“Bonus. The Executive shall beeligible to participate throughout the Term in the Company’s annual bonus plan orany similar or successor bonus plan (“Bonus Plan”) in accordance withthe Company’s compensation practices and the terms and provisions of the BonusPlan. During the 2006 fiscal year of the Company, the maximum bonus that theExecutive may receive is $48,000. The maximum bonus amount shall be reviewedannually by the Chief Executive Officer to determine whether to increase themaximum bonus amount on a prospective basis and may be increased by theCompensation Committee of the Board without amendment to the Agreement.”

 

3.               Effectuation. Except asamended by this Amendment, the provisions of the Agreement shall continue forall purposes without interruption and the Agreement shall remain in full forceand 

 

----

 

effect. The amendment to the Agreementcontemplated by this Amendment shall be deemed effective as of March 10, 2006.

 

4.               Counterparts. ThisAmendment may be executed in two or more counterparts, each of which shall bedeemed to be an original, but all of which together shall constitute one andthe same instrument.

 

***[SignaturePage Follows]***

 

----

 

***[SignaturePage to First Amendment to Employment Agreement]***

 

***               ***IN WITNESSWHEREOF, the parties hereto have duly executed this Amendment as of the datefirst above written.

 

 
| **EXECUTIVE**                | **ADVANCED LIFE SCIENCES, INC.** |
|------------------------------|----------------------------------|
|                         |                             |
| By                           | : /s/ Richard Wieland            |   | By | : /s/ John L. Flavin |   |
| Name: R. Richard Wieland, II | Name:                            | John L. Flavin |
|                         | Title:                           | President |
|                              |                                  |  |  |  |  |  |

 

----

 

**Employment Agreement**

** **

THIS EMPLOYMENT AGREEMENT (this “Agreement”) made effective as of the11th  day of April 2005(the “EffectiveDate”), by and between Advanced Life Sciences, Inc., an Illinois corporation(the “Company”), and R. Richard Wieland, II (the “Executive”).

 

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

 

WHEREAS,the Company and the Executive desire to enter into this Agreement, effective asof the Effective Date, to replace the Existing Employment Contract; and

 

WHEREAS, the Company desires to employ the Executive in accordance withthe terms and conditions hereinafter set forth and the Executive desires to beso employed; and

 

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

 

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

 

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

 

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

 

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

 

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

 

(a)           Salary.The Company shall pay to the Executive an annual base salary of $140,000 (“BaseSalary”), payable in substantially equal installments no less frequently thanmonthly in accordance with the Company’s applicable payroll practices. Theamount of Base Salary shall be reviewed annually by the Chief Executive Officer(with the first review to occur prior to the first anniversary of the EffectiveDate) to determine whether to increase the Base 

 

----

 

Salaryon a prospective basis. The Executive’s Base Salary shall not be reduced afterany increase, without the Executive’s consent.

 

(b)           Bonus. The Executive shall beeligible to participate throughout the Term in the Company’s annual bonus plan orany similar or successor bonus plan (“Bonus Plan”)in accordance with the Company’s compensation practices and the terms andprovisions of the Bonus Plan. During the 2005fiscal year of the Company, if the Executive achieves a financing milestoneevent as may be established in the Bonus Plan, the Executive’s Base Salaryshall increase up to a maximum annual Base Salary of $180,000 and the SeverancePeriod (as defined in Section 6(d) of this Agreement) shall increase to twelve(12) months concurrent with the achievement of such a financing milestone event.Further and in addition to any increase in Base Salary, during the 2005 fiscalyear of the Company, the Executive is eligible for up to a maximum bonus thatthe Executive may receive under the Bonus Plan is $175,000.

 

(c)           Stock IncentivePlan. As of the Effective Date, the Executive shallbe shallbe eligible to receive additional awards of the Company’scommon stock under the Stock Incentive Plan or under any other equity plan ofthe Company as determined by the Board of Directors of theCompany (the “Board”) in its discretion.

 

(d)           OtherBenefits and Perquisites. During the Term of the Executive’s employmenthereunder:

 

(i)    BenefitPlans. The Executive shall be entitled to participate in or receivebenefits under any employee pension or welfare benefit planor arrangement made available by the Company at any time during his employmenthereunder to its employees (collectively the “Benefit Plans”), includingwithout limitation each qualified retirement plan, life insurance and accidentplan, medical, dental insurance plans, and disability plan, subject to and on abasis consistent with the terms, conditions and overall administration of suchplans and arrangements, as they may be amended from time to time.

(ii)   Vacation.The Executive shall be entitled to not less than 25 days of paid vacation ineach calendar year, in accordance with the Company’s vacation policy.

(iii)          Expense Reimbursement. TheExecutive shall be entitled to receive reimbursement for all reasonablebusiness, travel or other out-of-pocket expenses incurred by the Executive infulfilling the Executive’s duties and responsibilities hereunder, provided thatsuch expenses are incurred and accounted for in accordance with the policiesand procedures established by the Company. Additionally, the Company willreimburse the Executive upon expense receipt submission, the annual expenses ofmembership in two (2) financial groups and the annual costs of a health clubmembership and physical examination up to an amount of $2,000 of total expensesper year.

 

5.             Termination.

 

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

 

(i)            Thedeath of the Executive;

 

(ii)           Bythe Company for “Cause”, which shall mean any of the following~~:~~, asdetermined by the Board in its discretion:  (A) conviction of or plea of guilty or *nolo contendere* to any criminal violationinvolving dishonesty or fraud; (B) engagement in 

 

----

 

conductthat is injurious to the Company; (C) engagement in any act of dishonesty ormisconduct that results in damage to the Company or its business or reputationor that the Board determines to adversely affect the value, reliability or performance ofthe Executive to the Company; (D) refusal or failure tosubstantially comply with the Company’s human resources rules, policies,directions and/or restrictions relating to harassment and/or discrimination, orwith compliance or risk management rules, policies, directions and/orrestrictions; (E) unauthorized use or disclosure of ConfidentialInformation (as defined below) or other trade secrets ofthe Company; (F) loss of any license or registration that isnecessary for the Executive to perform his duties to the Company, or commissionof any act that could result in the legal disqualification of the Executivefrom being employed by the Company or any of its affiliates; (G) failure tocooperate with the Company or any of its affiliates in any internalinvestigation or administrative, regulatory or judicial proceeding; or (H)continuous failure by the Executive to perform his duties to the Company (whichmay include any sustained and unexcused absence of the Executive from theperformance of such duties, which absence has not been certified in writing asdue to physical or mental illness or disability), after a written demand forperformance has been delivered to the Executive identifying the manner in whichthe Executive has failed to substantially perform such duties. The applicationof 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 theCompany or the Board on any other part of the definition that also may beapplicable. In addition, the Executive’s employment shall be deemed to haveterminated for Cause if, after the Executive’s employment has terminated, factsand circumstances are discovered that would have justified a termination forCause.

 

(iii)          Bymutual agreement between the Company and the Executive; or

 

(iv)          By the Executive or the Company forany 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)           Noticeof Termination. Any termination of the Executive’s employment by theCompany or by the Executive (other than a termination pursuant to Section5(a)(i) above) shall be communicated by written Notice of Termination to theother party hereto in accordance with Section 10. Forpurposes of this Agreement, a “Notice of Termination” shall mean a notice thatshall indicate the specific termination provision in this Agreement relied uponand shall set forth in reasonable detail the facts and circumstances claimed toprovide a basis for termination of the Executive’s employment under theprovision so indicated.

 

(c)           “Dateof Termination” shall mean (i) if the Executive’s employment is terminatedpursuant to Section 5(a)(i) above, the date of his death; (ii) if the Executive’semployment is terminated pursuant to Section 5(a)(ii) or 5(a)(iv) above, thedate such Notice of Termination is given (or such later date as providedtherein); (iii) if the Executive’s employment is terminated pursuant to Section5(a)(iii) above, the date mutually agreed to by the parties; (iv) the date theTerm of this Agreement expires, if either the Company or the Executive providesnotice in accordance with Section 1; or (v) if the Executive terminates hisemployment and fails to provide written notice to the Company of suchtermination, the date of such termination.

 

6.             Compensation Upon Termination.

 

(a)           Thefollowing payments shall be made upon the Executive’s termination of employmentfor any reason:  (i) earned but unpaidBase Salary through the Executive’s Date of 

 

----

 

Termination;(ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owedpursuant to Section 4(d)(iii); and (iv) any amounts payable under any of theCompany’s Benefit Plans in accordance with the terms of those plans. Allamounts under clauses (i) through (iii) shall be paid in a lump sum on theExecutive’s Date of Termination or as soon as administratively practicablethereafter.

 

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

 

(c)           If the Executive’s employment isterminated by the parties pursuant to Section 5(a)(iii) above, the Executive shallbe entitled to receive the compensation the parties specify in any writtenagreement that the Company and the Executive execute regarding the Executive’stermination.

 

(d)           In addition to the payments madeunder Section 6(a), if the Executive’s employment is terminated by the Companywithout Cause pursuant to Section 5(a)(iv) above, the Company shall, fora period of nine (9) months (the “Severance Period”) following the Date ofTermination, (i) provide to Executive salary continuation, at Executive’s BaseSalary rate then in effect, and (ii) continue the Executive’s coverage underthe Benefit Plans in which the Executive participated immediately prior to theDate of Termination, provided, however, that if the Company cannot continuesuch coverage, the Company shall provide or arrange to provide, at its expense,similar coverage to the Executive. Notwithstanding the forgoing, vacation daysshall not accrue during the Severance Period.

 

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

 

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

 

7.             Change in Control.

 

(a)           Paymentsand Benefits Upon Employment Termination Upon a Change in Control. If theExecutive’s employment is terminated other than for Cause within 24 monthsafter a Change in Control (as defined below), the Company shall provide thefollowing payments and benefits to the Executive, in lieu of those payments andbenefits provided under Sections 6(d), but in addition to the amounts payableunder Section 6(a):

 

(i)            TheCompany shall pay the Executive a lump sum cash amount equal to two (2) timesthe sum of (A) the Executive’s Base Salary as in effect on the date of theExecutive’s termination of employment and (B) the Executive’s target bonusamount for the fiscal year in which the Executive’s employment is terminated ORan amount equal to the annual bonus paid to the Executive during the fiscalyear immediately preceding the Executive’s termination of employment.

 

(ii)           TheCompany shall continue the Executive’s coverage under the Benefit Plans inwhich the Executive participated immediately prior to the Executive’s 

 

----

 

termination of employment for a period of 24months, provided, however, that if the Company cannot continue such coverage,the Company shall provide or arrange to provide, at its expense, similarcoverage to the Executive.

 

(b)           Timingof Payment. All payments under Section 7(a) shall be made in a lump sum cashpayment as soon as practicable, but in no event more than 10 days after theExecutive’s termination of employment.

 

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

 

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

 

(A)    Any“person” (as such term is defined in Section 3(a)(9) of the Securities ExchangeAct 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 Section13(d)(3) of the Exchange Act), other than (I) the Company, (II) anywholly-owned subsidiary of the Company, (III) any employee benefit plan (orrelated 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, ofsecurities of the Company having fifty percent (50%) or more of the combinedvoting power of the then-outstanding securities of the Company that may be castfor the election of directors of the Company (other than as a result of anissuance of securities initiated by the Company in the ordinary course ofbusiness) (the “Company Voting Securities”); provided, however, that the eventdescribed in this Section 7(c)(i) shall not be deemed to be a Change in Controlby virtue of any underwriter temporarily holding securities pursuant to anoffering of such securities;

 

(B)           Duringany period of two consecutive years, individuals who at the beginning of anysuch period constitute the Board (the “Incumbent Directors”) cease for anyreason to constitute at least a majority of the Board, unless the election, orthe nomination for election by the stockholders of the Company, of each newdirector of the Company during such period was approved by a vote of at leasttwo-thirds of the Incumbent Directors then still in office;

 

(C)           Asthe result of, or in connection with, any cash tender or exchange offer, mergeror other business combination, sale of all or substantially all of the Company’sassets or contested election, or any combination of the foregoing transactions,less than a majority of the combined voting power of the then-outstandingsecurities of the Company or any successor corporation or entity entitled tovote generally in the election of the directors of the Company or such othercorporation or entity after such transaction is held in the aggregate by theholders of the securities of the Company entitled to vote generally in theelection of directors of the Company immediately prior to such transaction; or

 

(D)          Thestockholders of the Company approve a plan of complete liquidation ordissolution of the Company.

 

Notwithstanding the foregoing, a Change inControl shall not be deemed to occur solely because any person acquiresbeneficial ownership of more than fifty percent (50%) of the Company VotingSecurities as a result of the 

 

----

 

acquisitionof Company Voting Securities by the Company which reduces the number of CompanyVoting Securities outstanding; provided, however, that if after suchacquisition by the Company such person becomes the beneficial owner ofadditional Company Voting Securities that increases the percentage ofoutstanding Company Voting Securities beneficially owned by such person, aChange in Control transaction shall then occur.

 

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

 

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

 

(d)           Treatment of Parachute Payments.

(i)            Notwithstanding any other provisionsof this Agreement, and except as set forth below, in the event that any paymentor benefit received or to be received by the Executive in connection with aChange in Control or the termination of the Executive’s employment (whetherpursuant to the terms of this Agreement or any other plan, arrangement oragreement with the Company, any person whose actions result in a Change inControl or any person affiliated with the Company or such person) (all suchpayments and benefits, including payments under Section 7(a) above, beinghereinafter called “Total Payments”) is determined to be an “excess parachutepayment” pursuant to Section 280G of the Internal Revenue Code of 1986, asamended (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 taxdescribed in Code Section 4999 or any successor or substitute provision of theCode (the “Excise Tax”), then, after taking into account any reduction in theTotal 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 thisAgreement shall first be reduced, and the noncash payments and benefits shallthereafter be reduced, to the extent necessary so that no portion of the TotalPayments is subject to the Excise Tax; provided, however, that the Executivemay elect (at any time prior to the payment of any Total Payment under thisAgreement) to have the noncash payments and benefits reduced (or eliminated)prior to any reduction of the cash payments under this Agreement.

(b)           All determinations required to bemade under this Section 7(d), and the assumptions to be utilized in arriving atsuch determination, shall be made by the certified public accounting firm usedfor auditing purposes by the Company immediately prior to the date of theExecutive’s termination of employment or, if the parties determine that suchcertified public accounting firm cannot make such determination because oflegal restrictions, the parties shall agree on a different certified publicaccounting firm (such certified public accounting firm is hereinafter referredto as the “Accounting Firm”), which shall provide detailed supportingcalculations both to the Company and the 

 

----

 

Executive not later than 5 days prior to thedate of the Executive’s termination of employment. The Company shall pay allfees and expenses of the Accounting Firm. Any determination by the AccountingFirm shall be binding upon the Company and the Executive, except as provided inparagraph (c) below.

(c)           As a result of the uncertainty in theapplication of Code Sections 280G and 4999 at the time of the initialdetermination by the Accounting Firm hereunder, it is possible that theInternal Revenue Service (the “IRS”) or other agency will claim that an ExciseTax, or a greater Excise Tax, is due. If the Executive is required to make apayment of any such Excise Tax, the Company will promptly pay the Executive anadditional amount equal to the amount, or greater amount, of Excise Tax theExecutive is required to pay (plus a gross up payment for any income taxes,interest, penalties or additional Excise Tax payable by Executive with respectto 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 orother agency that, if successful, would require payment by the Company of theadditional payments under this paragraph. The Executive and the Company shalleach reasonably cooperate with the other in connection with any administrativeor judicial proceedings concerning the existence or amount of liability forExcise Tax with respect to the Total Payments. The Company shall pay all feesand expenses of the Executive relating to a claim by the IRS or other agency.

 

8.             Restrictive Covenants.

 

(a)           TradeSecrets. The Executive acknowledges that he has had and shall have access toconfidential information of the Company, whether or not reduced to writing andwhether in paper, electronic, digital, analog or other format (including, butnot limited to, trade secrets, know-how, Inventions (as defined below), newproduct and product development information, research results, marketing andsales programs, customer and supplier information, financial data, employeerecords, cost information, pricing information, sales and marketing strategies,the identity of customers, information received by the Company under anobligation of confidentiality to customers, and all information generated bythe Company for customers) relating to the past, present or planned business,customers, clients, contacts, prospects and assets of the Company that isunique, valuable and has not purposefully been made generally known to thepublic by the Company (“Confidential Information”). Confidential Informationshall 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 constitutesa breach of this Section 8, generally known or available to the public; (ii) ishereafter furnished without restriction on disclosure to the Executive by athird party, other than an employee or agent of the Company, who is not underany obligation of confidentiality to the Company; (iii) is disclosed with thewritten approval of the Company; or (iv) is required to be disclosed orprovided by law, court order, or similar compulsion, including pursuant to orin connection with any legal proceeding involving the parties hereto; provided,however, that such disclosure shall be limited to the extent so required orcompelled; and provided further, however, that if the Executive is required todisclose such Confidential Information, the Executive shall give the Companynotice of such disclosure and cooperate in seeking suitable protections. TheExecutive 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 thatincorporate, contain, refer to or embody any Confidential Information (“Items”),acquired by the Executive in connection with the Executive’s employment withthe Company are the property of the Company. Other than in the course ofperforming services for the Company or otherwise authorized in writing by theCompany, 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 theCompany, without retaining any copies, all Items and any other documents ormaterials in the Executive’s possession relating, directly or indirectly, toany Confidential Information.

 

(b)           Non-competition.Beginning on the Effective Date and for a period of  twelve (12) months following Executive’s Dateof Termination (the “Restricted Period”), Executive shall not directly orindirectly, 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 entityin the United States that is engaged in “Competing Services” (as definedherein). Competing Services shall mean chemistry and biology research anddevelopment relating to, arising from, connected with, or competitive with orintended to be competitive with, any product or research project as to whichthe Executive performed services for the Company, or about which the Executivereceived access to Confidential Information while employed by the Company. Ifthe Executive obtains other employment during the twelve-month period after theExecutive’s Date of Termination, the Executive agrees to notify the Company inwriting of the name and address of such employer. The Executive understands, andthe Company agrees, that the Company shall pay to the Executive a monthlyamount equal to one month of the Executive’s final Base Salary if the Executiveis unable to secure other employment as a direct result of this Section 8(b). TheExecutive agrees and acknowledges that (i) the Company shall be obligated tomake such payment only upon a written request by the Executive containingsufficient information for the Company to make a determination that thisSection 8(b) caused the Executive’s inability to secure other employment, and(ii) the Company shall be released from the obligation to make such payment ifthe Company provides the Executive a written release from this Section 8(b). TheCompany’s obligation to make payments under this Section 8(b) shall be madeonly for the period beginning with the Executive’s inability to secure otheremployment as a result of this Section 8(b) and ending no later than theexpiration of the twelve-month period following the Executive’s Date ofTermination.

 

(c)           Non-Solicitationof Employees. During the Restricted Period, the Executive shall not, directlyor indirectly solicit or induce, or attempt to solicit or induce, any currentemployee of the Company, or any individual who becomes an employee during theRestricted Period, to leave his or her employment with the Company or join orbecome affiliated with any other business or entity, hire any employee of theCompany or in any way interfere with the relationship between any employee andthe Company.

 

(d)           Non-Solicitationof Customers. During the Restricted Period, the Executive shall not, directlyor indirectly, solicit or induce, or attempt to solicit or induce, anycustomer, supplier, licensee, licensor or other business relation of theCompany to terminate its relationship or contract with the Company, to ceasedoing business with the Company, or in any way interfere with the relationshipbetween any such customer, supplier, licensee or business relation and theCompany (including making any negative statements or communications concerningthe Company or their employees).

 

(e)           Inventions.The Executive acknowledges all inventions of the Company (including, but notlimited 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 workperformed by the Company for its customers, and (ii) are conceived or reducedto practice by the Executive, either alone or with others, during the Executive’semployment with the Company or during a period of 120 days after the Executive’sDate of Termination, whether or not done during the Executive’s regular working

 

----

 

hours, are the sole property of theCompany, including, without limitation, all domestic and foreign patent rights,rights of registration or other protection under the copyright laws, or otherrights pertaining to the Inventions. For purposes of this Agreement, Inventionsshall include any improvements to an Invention and shall not be limited to thedefinition of a patentable invention or copyrightable work of authorship ascontained in the United States patent or copyright laws. The Executive shalldisclose promptly and fully in writing to the Company each Invention, whetheror not reduced to practice, that the Executive conceives or learns (eitheralone or jointly with others) during the Term of Employment. The Executivehereby assigns to the Company, or its nominee, all of the Executive’s right,title and interest, including international priority rights, in and to allInventions (other than any Invention that was developed entirely on theExecutive’s own time and for which no equipment, supplies, facilities or tradesecret information of the Company was used, unless such Invention relatesdirectly to the Company’s business or to the Company’s actual or demonstrablyanticipated research or development), and in and to all United States or foreignpatents, copyrights and other proprietary rights granted thereon or resultingtherefrom, and in and to all applications for United States or foreigncopyrights, patents and other proprietary rights. The Executive shall executeall papers, perform all lawful acts or assist the Company in any way theCompany deems necessary or advisable (at the Company’s expense) for thepreparation, filing, prosecution, issuance, procurement, maintenance orenforcement of patents applications and patents of the United States andforeign countries, and for obtaining and enforcing copyright protection andregistration, of any Invention. To that end, the Executive shall at the Company’srequest and without limitation, testify in any suit or other proceedinginvolving any of the Inventions, execute all documents that the Companyreasonably determines to be necessary or convenient for use in applying for andobtaining patent or copyright protection and registration on any of theInventions and enforcement of that protection and registration, and execute allnecessary documents and papers required to vest title in and assign to theCompany (or its nominee) patent or copyright protection and registration. TheExecutive’s obligation to assist the Company in obtaining and enforcing patentor copyright protection and registration for the Inventions shall continuefollowing termination of this Agreement, but Company shall compensate theExecutive following the expiration or termination of this Agreement at a rateof $10 for the execution of each document and $150 per day for each day orportion thereof spent at the Company’s request in rendering assistance, plusreimbursement for the reasonable out-of-pocket expenses incurred by theExecutive for such assistance. The Executive hereby irrevocably appoints theCompany and its duly authorized officers and agents as his agent andattorney-in-fact to act for and on behalf of the Executive in filing all patentapplications, applications for copyright protection and registration amendments,renewals and all other appropriate documents in any way related to theInventions.

 

(f)            Survival.The provisions set forth in this Section 8 shall survive termination of thisAgreement.

 

(g)           ScopeLimitations. If the scope, period of time or area of restriction specified inthis Section 8 are or would be judged to be unreasonable in any courtproceeding, then the period of time, scope or area of restriction shall bereduced or limited in the manner and to the extent necessary to make therestriction 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 bereasonable.

 

9.             Binding Agreement;Successors. This Agreement and all rights of the Executive hereunder shallinure to the benefit of and be enforceable by the Executive’s personal or legalrepresentatives, executors, administrators, successors, heirs, distributees,devisees and legatees. If the Executive should die while any amounts wouldstill be payable to him hereunder if he had continued to live, all suchamounts, unless otherwise provided herein, shall be paid in accordance with theterms of this 

 

----

 

Agreement to the Executive’s devisee, legatee, or other designee or, ifthere be no such designee, to the Executive’s estate. This Agreement shall bebinding upon, and inure to the benefit of, any successors or assigns of theCompany. This Agreement is not intended to confer upon any person other thanthe parties hereto (and the Executives’ Spouse and dependents) any rights orremedies, except as specifically provided in this Section 9.

 

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

 

If to the Executive:

 

R. Richard Wieland

10Ambrose Lane

Barrington, IL  60010

 

If to the Company:

 

Advanced Life Sciences, Inc.

1440 DaveyRoad

Woodridge,Illinois 60517

Attn: Chief Executive Officer

 

or to such other address asany 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.

 

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

 

12.           Validity. The invalidity orunenforceability of any provision or provisions of this Agreement shall notaffect the validity or enforceability of any other provision of this Agreement,which shall remain in full force and effect. If any provision of this Agreementis found to be invalid or unenforceable, in whole or in part, then it shall bedeemed to be modified or restricted to the extent and in the manner necessaryto render it valid and enforceable, or shall be deemed excised from thisAgreement, as the case may require, and this Agreement shall be construed andenforced to the maximum extent permitted by law, as if the provision had beenoriginally incorporated herein as so modified or restricted, or as if it hadnot originally been incorporated herein, as the case may be.

 

13.           Counterparts. This Agreementmay be executed in one or more counterparts, each of which shall be deemed tobe an original but all of which together shallconstitute one and the same instrument.

 

14.           Entire Agreement. ThisAgreement sets forth the entire agreement of the parties hereto in respect ofthe subject matter contained herein and supersedes all prior agreements,promises, covenants, 

 

----

 

arrangements,communications, representations or warranties, whether oral or written, by anyofficer, employee or representative of any party hereto; and any prioragreement of the parties hereto in respect of the subject matter containedherein is hereby terminated and canceled. For the avoidance of doubt, theCompany and the Executive hereby agree that this Agreement shall replace andsupercede the Existing Employment Contract and govern the relationship of theparties.

 

15.           Irreparable Harm. TheExecutive acknowledges that: (i) the Executive’s compliance with this Agreementis necessary to preserve and protect the proprietary rights, ConfidentialInformation and the goodwill of the Company and its subsidiaries as goingconcerns; (ii) any failure by the Executive to comply with the provisions ofthis Agreement shall result in irreparable andcontinuing 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 andconditions of this Agreement, the Company shall be entitled, in addition tosuch other relief as may be proper, to all types of equitable relief(including, but not limited to, the issuance of an injunction and/or temporaryrestraining order) as may be necessary to cause the Executive to comply withthis Agreement, to restore to the Company its property, and to make the Companywhole.

 

16.           Consent to Jurisdiction and Forum;Legal Fees and Costs. The Company and the Executive hereby expressly andirrevocably agree that any action, whether at law or in equity, arising out ofor based upon this Agreement or the Executive’s employment by the Company shallonly be brought in a federal or state court located in CookCounty, Illinois. The Executive hereby irrevocably consents to personaljurisdiction in such court and to accept service of process in accordance withthe provisions of such court. In connection with any dispute arising out of orbased upon this Agreement or the Executive’s employment by the Company, eachparty shall be responsible for its or his own legal fees and expenses and allcourt costs shall be shared equally by the Company and the Executive unless thecourt apportions such legal fees or court costs in a different manner.

 

17.           Withholding. All payments madeto the Executive pursuant to this Agreement shall be subject to applicablewithholding taxes, if any, and any amount so withheld shall be deemed to havebeen paid to the Executive for purposes of amounts due to the Executive underthis Agreement.

 

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

 

INWITNESS WHEREOF, the parties have executed this Agreement on the date and yearfirst above written.

 
| **EXECUTIVE**                | **ADVANCED LIFE SCIENCES, INC.** |
|------------------------------|----------------------------------|
|                         |                             |
| By                           | : /s/ Richard Wieland       |   | By | : /s/ Michael T. Flavin |   |
| Name: R. Richard Wieland, II | Name:                            | Michael T. Flavin |
|                         | Title:                           | Chief Executive Officer |
|                              |                                  |  |  |  |  |  |

 

----