**Exhibit 10.2**

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**Amended and Restated EmploymentAgreement**

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THIS EMPLOYMENT AGREEMENT (this“Agreement”) made effective as of the 10th  day of March, 2006 (the “Effective Date”), byand between Advanced Life Sciences, Inc., an Illinois corporation (the “Company”),and Michael T. Flavin, Ph.D. (the “Executive”).

 

WHEREAS, theCompany and the Executive previously entered into a Letter of Employment datedJune 1, 2002 (the “Existing Employment Contract”); and

 

WHEREAS, theCompany and the Executive desire to enter into this Agreement, effective as ofthe Effective Date, to amend and restate the Existing Employment Contract; and

 

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

 

WHEREAS, the Company has agreedwith the Executive that this Agreement shall set forth the terms and conditionsof the Executive’s employment with the Company;

 

NOW, THEREFORE, inconsideration of the mutual covenants contained herein, the Company and theExecutive agree as follows:

 

1.                                       Term. Theemployment 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.                                       Position andDuties. The Executive shall serve as the Chief Executive Officer of theCompany, and shall have such responsibilities, duties and authority as areassigned by the Board of Directors of the Company and are customarilyassociated with such position, including but not limited to, those he may haveas of the Effective Date. The Executive shall devote such time to theperformance of his duties as is necessary to satisfactorily perform hisresponsibilities and duties.

 

3.                                       Place ofPerformance. In connection with the Executive’s employment by the Company,the Executive shall be based at the principal executive offices of the Company currentlyin Woodridge, Illinois, except for required 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.

 

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(a)                                  Salary. TheCompany shall pay to the Executive an annual base salary of $260,000 (“BaseSalary”), payable in substantially equal installments no less frequently than monthlyin accordance with the Company’s applicable payroll practices. The amount ofBase Salary shall be reviewed annually by the Compensation Committee of theBoard to determine whether to increase the Base Salary on a prospective basisand may be increased by the Compensation Committee without amendment tothe Agreement. The Executive’s Base Salary shall not be reduced after anyincrease, without the Executive’s consent.

 

(b)                                 Bonus. TheExecutive shall be eligible to participate throughout the Term in the Company’sannual bonus plan or any similar or successor bonus plan (“BonusPlan”) in accordance with the Company’s compensation practices and theterms and provisions of the Bonus Plan. During the 2006 fiscal year of theCompany, the maximum bonus that the Executive may receive is $88,000. Themaximum bonus amount shall be reviewed annually by the Compensation Committeeto determine whether to increase the maximum bonus amount on a prospectivebasis and may be increased by the Compensation Committee of the Boardwithout amendment to the Agreement.

 

(c)                                  StockIncentive Plan. As of the Effective Date, the Executive shall be shall beeligible to receive additional awards of the Company’s common stock under theStock Incentive Plan or under any other equity plan of the Company asdetermined by the Board of Directors of the Company (the “Board”) in itsdiscretion.

 

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

 

(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 and vision insurance plans, and disability plan, subjectto and on a basis consistent with the terms, conditions and overalladministration of such plans and arrangements, as they may be amended fromtime 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)                               ExpenseReimbursement. The Executive shall be entitled to receive reimbursement forall reasonable business, travel or other out-of-pocket expenses incurred by theExecutive in fulfilling the Executive’s duties and responsibilities hereunder,provided that such expenses are incurred and accounted for in accordance withthe policies and procedures established by the Company.

 

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5.                                       Termination.

 

(a)                                  TheExecutive’s employment hereunder may be terminated under the followingcircumstances:

 

(i)                                     The death of theExecutive;

 

(ii)           Bythe Company for “Cause”, which shall mean any of the following:, as determinedby 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 conduct that is injurious tothe Company; (C) engagement in any act of dishonesty or misconduct that resultsin damage to the Company or its business or reputation or that the Boarddetermines to adversely affect the value, reliability or performance of theExecutive to the Company; (D) refusal or failure to substantially comply withthe Company’s human resources rules, policies, directions and/or restrictionsrelating to harassment and/or discrimination, or with compliance or riskmanagement rules, policies, directions and/or restrictions; (E) unauthorizeduse or disclosure of Confidential Information (as defined below) or other tradesecrets of the 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 theCompany for any reason other than as stated in Sections 5(a)(i) through5(a)(iii) above, upon providing a Notice of Termination (as defined in Section 5(b)).

 

(b)                                 Notice ofTermination. Any termination of the Executive’s employment by the Companyor by the Executive (other than a termination pursuant to Section 5(a)(i)above) shall be communicated by written Notice of Termination to the otherparty hereto in accordance with Section 10. For purposes of this Agreement, a “Noticeof Termination” shall mean a notice that shall indicate the specifictermination provision in this Agreement relied upon and shall set forth inreasonable detail the facts and 

 

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circumstances claimed to provide a basis fortermination 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 terminatedpursuant to Section 5(a)(ii) or 5(a)(iv) above, the date suchNotice of Termination is given (or such later date as provided therein); (iii) ifthe 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 thisAgreement expires, if either the Company or the Executive provides notice inaccordance 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.                                       CompensationUpon Termination.

 

(a)                                  The followingpayments shall be made upon the Executive’s termination of employment for anyreason:  (i) earned but unpaid BaseSalary through the Executive’s Date of Termination; (ii) any accrued butunpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii);Any outstanding notes payable to you along with the interest due;  and (iv) any amounts payable under anyof the Company’s Bonus Plan and Benefit Plans in accordance with the terms ofthose plans. All amounts under clauses (i) through (iv) shall be paidin a lump sum on the Executive’s Date of Termination or as soon asadministratively practicable thereafter.

 

(b)                                 In the event theExecutive’s employment is terminated pursuant to Sections 5(a)(i) or5(a)(ii), or by the Executive for any reason****pursuantto Section 5(a)(iv), above, the Company shall have no further obligationto the Executive under this Agreement, other than the payments in Section 6(a).

 

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

 

(d)           In addition to thepayments made under Section 6(a), if the Executive’s employment is terminatedby the Company without Cause pursuant to Section 5(a)(iv) above, the Companyshall, for a period of twenty four (24) months following the Date ofTermination, (i) provide to Executive salary continuation, at Executive’s BaseSalary rate then in effect, and any amounts that may come due under theCompany’s Bonus Plan (ii) continue the Executive’s coverage under the BenefitPlans in which the Executive participated immediately prior to the Date ofTermination, provided, however, that if the Company cannot continue suchcoverage, the Company shall provide or arrange to provide, at its expense,similar coverage to the Executive.

 

(e)                                  The Executive shallnot be required to mitigate the amount of any payment provided for in this Section 6by seeking other employment or otherwise, nor shall the amount of any paymentor benefit provided for in this Section 6 be reduced by any compensationearned by the Executive as the result of employment by another employer,

 

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by retirement benefits, by offset against anyamount claimed to be owed by the Executive to the Company, or otherwise.

 

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

 

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

 

7.                                       Changein Control.

 

(a)                                  Paymentsand Benefits Upon Employment Termination Upon a Change in Control. TheExecutive hereby agrees to waive any rights associated with the Change inControl Section of the Existing Employment Contract arisingprior to the date hereof; the rights contained herein shall 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’stermination of employment for a period of 24 months, provided, however, that ifthe Company cannot continue such coverage, the Company shall provide or arrangeto provide, at its expense, similar coverage to the Executive.

 

(b)                                 Timingof Payment. All payments under Section 7(a) shall be made in a lumpsum cash payment as soon as practicable, but in no event more than 10 daysafter the Executive’s termination of employment.

 

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

 

(i)                                     “Changein 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 SecuritiesExchange Act of 1934, as amended (the “Exchange Act”) and as used in Sections13(d)(3) and 14(d)(2) of the Exchange Act), 

 

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includinga “group” (as defined in Section 13(d)(3) of the Exchange Act), otherthan (I) the Company, (II) any wholly-owned subsidiary of the Company, (III)any employee benefit plan (or related trust) sponsored or maintained by theCompany or any of its affiliates, or (IV) a “Permitted Holder” (as definedbelow), becomes a “beneficial owner” (as defined in Rule 13d-3 under theExchange Act), directly or indirectly, of securities of the Company havingfifty percent (50%) or more of the combined voting power of thethen-outstanding securities of the Company that may be cast for theelection of directors of the Company (other than as a result of an issuance ofsecurities initiated by the Company in the ordinary course of business) (the “CompanyVoting Securities”); provided, however, that the event described in this Section 7(c)(i) shallnot be deemed to be a Change in Control by virtue of any underwritertemporarily holding securities pursuant to an offering 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 acquisition of Company Voting Securities by theCompany which reduces the number of Company Voting Securities outstanding;provided, however, that if after such acquisition by the Company such personbecomes the beneficial owner of additional Company Voting Securities thatincreases the percentage of outstanding Company Voting Securities beneficiallyowned by such person, a Change in Control transaction shall then occur.

 

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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) thespouse or any immediate family member of the Principal and any child or spouseof 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, acontrolling interest of which consists of the Principal and/or such otherpersons referred to in the immediately preceding clause (B), or (D) thetrustees of any trust referred to in clause (D).

 

(d)                                 Treatmentof Parachute Payments.

 

(i)                                     Notwithstandingany other provisions of this Agreement, and except as set forth below, in theevent that any payment or benefit received or to be received by the Executivein connection with a Change in Control or the termination of the Executive’semployment (whether pursuant to the terms of this Agreement or any other plan,arrangement or agreement with the Company, any person whose actions result in aChange 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 “excessparachute payment” pursuant to Section 280G of the Internal Revenue Codeof 1986, as amended (the “Code”), or any successor or substitute provision ofthe Code, with the effect that the Executive is liable for the payment of theexcise tax described in Code Section 4999 or any successor or substituteprovision of the Code (the “Excise Tax”), then, after taking into account anyreduction in the Total Payments provided by reason of Code Section 280G insuch other plan, arrangement or agreement, the cash payments provided in Section 7(a)(i) ofthis Agreement shall first be reduced, and the noncash payments and benefitsshall thereafter be reduced, to the extent necessary so that no portion of theTotal Payments is subject to the Excise Tax; provided, however, that theExecutive may elect (at any time prior to the payment of any Total Paymentunder this Agreement) to have the noncash payments and benefits reduced (oreliminated) prior to any reduction of the cash payments under this Agreement.

 

(b)                                 Alldeterminations required to be made under this Section 7(d), and theassumptions to be utilized in arriving at such determination, shall be made bythe certified public accounting firm used for auditing purposes by the Companyimmediately prior to the date of the Executive’s termination of employment or,if the parties determine that such certified public accounting firm cannot makesuch determination because of legal restrictions, the parties shall agree on adifferent certified public accounting firm (such certified public 

 

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accounting firm is hereinafter referred to asthe “Accounting Firm”), which shall provide detailed supporting calculationsboth to the Company and the Executive not later than 5 days prior to the dateof the Executive’s termination of employment. The Company shall pay all feesand expenses of the Accounting Firm. Any determination by the Accounting Firmshall be binding upon the Company and the Executive, except as provided inparagraph (c) below.

 

(c)                                  As aresult of the uncertainty in the application of Code Sections 280G and 4999 atthe time of the initial determination by the Accounting Firm hereunder, it ispossible that the Internal Revenue Service (the “IRS”) or other agency willclaim that an Excise Tax, or a greater Excise Tax, is due. If the Executive isrequired to make a payment of any such Excise Tax, the Company will promptlypay 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 anyincome taxes, interest, penalties or additional Excise Tax payable by Executivewith respect to such Excise Tax or additional payment), as determined by theAccounting Firm. The Executive will notify the Company in writing of any claimby the IRS or other agency that, if successful, would require payment by theCompany of the additional payments under this paragraph. The Executive and the Companyshall each reasonably cooperate with the other in connection with anyadministrative or judicial proceedings concerning the existence or amount ofliability for Excise Tax with respect to the Total Payments. The Company shallpay all fees and expenses of the Executive relating to a claim by the IRS orother agency.

 

8.                                       RestrictiveCovenants.

 

(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 thatconstitutes a breach of this Section 8, generally known or available tothe public; (ii) is hereafter furnished without restriction on disclosureto the Executive by a third party, other than an employee or agent of theCompany, who is not under any obligation of confidentiality to the Company; (iii) isdisclosed with the written approval of the Company; or (iv) is required tobe disclosed or provided by law, court order, or similar compulsion, includingpursuant to or in connection with any legal proceeding involving the partieshereto; provided, however, that such disclosure shall be 

 

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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 absolutelyconfidential. The Executive shall deliver promptly to the Company, at thetermination 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, orentity in 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,and the 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).The Executive agrees and acknowledges that (i) the Company shall beobligated to make such payment only upon a written request by the Executivecontaining sufficient information for the Company to make a determination thatthis Section 8(b) caused the Executive’s inability to secure otheremployment, and (ii) the Company shall be released from the obligation tomake such payment if the Company provides the Executive a written release fromthis Section 8(b). The Company’s obligation to make payments under this Section 8(b) shallbe made only for the period beginning with the Executive’s inability to secureother employment as a result of this Section 8(b) and ending no laterthan the expiration of the twelve-month period following the Executive’s Dateof Termination.

 

(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 

 

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during the Restricted Period, to leave his orher employment with the Company or join or become affiliated with any otherbusiness or entity, hire any employee of the Company or in any way interferewith the relationship between any employee and the 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 thework performed by the Company for its customers, and (ii) are conceived orreduced to practice by the Executive, either alone or with others, during theExecutive’s employment with the Company or during a period of 120 days afterthe Executive’s Date of Termination, whether or not done during the Executive’sregular working hours, are the sole property of the Company, including, withoutlimitation, all domestic and foreign patent rights, rights of registration orother protection under the copyright laws, or other rights pertaining to theInventions. For purposes of this Agreement, Inventions shall include anyimprovements to an Invention and shall not be limited to the definition of apatentable invention or copyrightable work of authorship as contained in theUnited States patent or copyright laws. The Executive shall disclose promptlyand fully in writing to the Company each Invention, whether or not reduced topractice, that the Executive conceives or learns (either alone or jointly withothers) during the Term of Employment. The Executive hereby assigns to theCompany, or its nominee, all of the Executive’s right, title and interest,including international priority rights, in and to all Inventions (other thanany Invention that was developed entirely on the Executive’s own time and forwhich no equipment, supplies, facilities or trade secret information of theCompany was used, unless such Invention relates directly to the Company’sbusiness or to the Company’s actual or demonstrably anticipated research ordevelopment), and in and to all United States or foreign patents, copyrightsand other proprietary rights granted thereon or resulting therefrom, and in andto all applications for United States or foreign copyrights, patents and other proprietaryrights. The Executive shall execute all papers, perform all lawful acts orassist the Company in any way the Company deems necessary or advisable (at theCompany’s expense) for the preparation, filing, prosecution, issuance,procurement, maintenance or enforcement of patents applications and patents ofthe United States and foreign countries, and for obtaining and enforcingcopyright protection and registration, of any Invention. To that end, theExecutive shall at the Company’s request and without limitation, testify in anysuit or other proceeding involving any of the Inventions, execute all documentsthat the Company reasonably determines to be necessary or convenient for use inapplying for and obtaining patent or copyright protection and registration onany of the Inventions and enforcement of that protection 

 

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andregistration, and execute all necessary documents and papers required to vesttitle in and assign to the Company (or its nominee) patent or copyrightprotection and registration. The Executive’s obligation to assist the Companyin obtaining and enforcing patent or copyright protection and registration forthe Inventions shall continue following termination of this Agreement, butCompany shall compensate the Executive following the expiration or terminationof this Agreement at a rate of $10 for the execution of each document and $150per day for each day or portion thereof spent at the Company’s request inrendering assistance, plus reimbursement for the reasonable out-of-pocket expensesincurred by the Executive for such assistance. The Executive hereby irrevocablyappoints the Company and its duly authorized officers and agents as his agentand attorney-in-fact to act for and on behalf of the Executive in filing allpatent applications, applications for copyright protection and registrationamendments, renewals and all other appropriate documents in any way related tothe Inventions.

 

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

 

(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 thoseareas, during the period of time and in the scope that are or would be judgedto be reasonable.

 

9.                                       BindingAgreement; Successors. This Agreement and all rights of the Executive hereundershall inure to the benefit of and be enforceable by the Executive’s personal orlegal representatives, executors, administrators, successors, heirs,distributees, devisees and legatees. If the Executive should die while anyamounts would still be payable to him hereunder if he had continued to live,all such amounts, unless otherwise provided herein, shall be paid in accordancewith the terms of this Agreement to the Executive’s devisee, legatee, or otherdesignee or, if there be no such designee, to the Executive’s estate. ThisAgreement shall be binding upon, and inure to the benefit of, any successors orassigns of the Company. This Agreement is not intended to confer upon anyperson other than the parties hereto (and the Executives’ Spouse anddependents) any rights or remedies, except as specifically provided in this Section 9.

 

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

 

If to the Executive:

 

Michael T. Flavin, Ph.D.

8817 Royal Swan Lane

Darien, IL 60561

 

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If to the Company:

 

Advanced Life Sciences, Inc.

1440 DaveyRoad

Woodridge,Illinois 60517

Attn: Chief Executive Officer

 

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

 

11.                                 GeneralProvisions. No provision of this Agreement may be modified, waived ordischarged unless such waiver, modification or discharge is agreed to inwriting signed by the Executive and such officer of the Company as may bespecifically designated by the Company’s Board. No waiver by either partyhereto at any time of any breach by the other party hereto of, or compliancewith, any condition or provision of this Agreement to be performed by suchother party shall be deemed a waiver of similar or dissimilar provisions orconditions at the same or at any prior or subsequent time. No agreements orrepresentations, oral or otherwise, express or implied, with respect to thesubject matter hereof have been made by either party that are not set forthexpressly in this Agreement.

 

12.                                 Validity.The invalidity or unenforceability of any provision or provisions of thisAgreement shall not affect the validity or enforceability of any otherprovision of this Agreement, which shall remain in full force and effect. Ifany provision of this Agreement is found to be invalid or unenforceable, inwhole or in part, then it shall be deemed to be modified or restricted to theextent and in the manner necessary to render it valid and enforceable, or shallbe deemed excised from this Agreement, as the case may require, and thisAgreement shall be construed and enforced to the maximum extent permitted bylaw, as if the provision had been originally incorporated herein as so modifiedor restricted, or as if it had not originally been incorporated herein, as thecase may be.

 

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

 

14.                                 Entire Agreement.This Agreement sets forth the entire agreement of the parties hereto in respectof the subject matter contained herein and supersedes all prior agreements,promises, covenants, arrangements, communications, representations orwarranties, whether oral or written, by any officer, employee or representativeof any party hereto; and any prior agreement of the parties hereto in respectof the subject matter contained herein is hereby terminated and canceled. Forthe avoidance of doubt, the Company and the Executive hereby agree that thisAgreement shall replace and supercede the Existing Employment Contract andgovern the relationship of the parties.

 

15.                                 IrreparableHarm. The Executive acknowledges that: (i) the Executive’s compliancewith this Agreement is necessary to preserve and protect the proprietaryrights, Confidential Information and the goodwill of the Company and itssubsidiaries as going concerns; (ii) any failure by the Executive tocomply with the provisions of this Agreement shall result inirreparable and continuing injury for which there will be no adequate remedy atlaw; and 

 

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(iii) in the event thatthe Executive should fail to comply with the terms and conditions of thisAgreement, the Company shall be entitled, in addition to such other relief as may beproper, to all types of equitable relief (including, but not limited to, theissuance of an injunction and/or temporary restraining order) as may benecessary to cause the Executive to comply with this Agreement, to restore tothe Company its property, and to make the Company whole.

 

16.                                 Consentto Jurisdiction and Forum; Legal Fees and Costs. The Company and theExecutive hereby expressly and irrevocably agree that any action, whether atlaw or in equity, arising out of or based upon this Agreement or the Executive’semployment by the Company shall only be brought in a federal or state courtlocated in Cook County, Illinois. TheExecutive hereby irrevocably consents to personal jurisdiction in such courtand to accept service of process in accordance with the provisions of suchcourt. In connection with any dispute arising out of or based upon thisAgreement or the Executive’s employment by the Company, each party shall beresponsible for its or his own legal fees and expenses and all court costsshall be shared equally by the Company and the Executive unless the courtapportions such legal fees or court costs in a different manner.

 

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

 

18.                                 GoverningLaw. This Agreement is governed by and is to be construed and enforced inaccordance with the laws of the State of Illinois, without regard to itsconflict of law provisions.

 

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

 

 
| **EXECUTIVE**           | **ADVANCED LIFE SCIENCES, INC.** |
|-------------------------|---------------------------------------|
|                    |                                  |   |
| By:                     | /s/ Michael  T. Flavin                |   | By: | /s/ John L.  Flavin |   |
| Name: Michael T. Flavin | Name:                                 | John L. Flavin |
|                    | Title:                                | President |
|                         |                                       |  |  |  |  |  |

 

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