BENEFITS OTHERWISE AVAILABLE UNDER THE EMPLOYMENT AGREEMENT) IS
OR SHALL BE DUE OR CLAIMED TO BE DUE FROM THE COMPANY AND/OR FROM ANY OTHER
PERSON OR ENTITY RELEASED IN PARAGRAPH 5 BELOW WITH RESPECT TO ANY CLAIM OR
CLAIMS RELEASED IN SECTION 5 BELOW, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL
CLAIMS FOR ATTORNEYS' FEES AND THE COSTS OF LITIGATION THAT HE MAY HAVE UNDER
ANY FEDERAL, STATE OR LOCAL LAW, COMMON LAW OR IN EQUITY; PROVIDED, HOWEVER,
THAT NOTWITHSTANDING THE FOREGOING, THE COMPANY SHALL CONTINUE TO INDEMNIFY
EXECUTIVE IN ACCORDANCE WITH THE COMPANY'S CERTIFICATE OF INCORPORATION AND
BY-LAWS AND DELAWARE LAW, INCLUDING, BUT NOT LIMITED TO, THE PAYMENT OR
REIMBURSEMENT OF ATTORNEYS FEES.
3.
CONSULTING SERVICES.
(A)
EFFECTIVE WITH EXECUTIVE'S TERMINATION OF
EMPLOYMENT, AND CONTINUING UNTIL THE EARLIER OF TERMINATION OF THIS AGREEMENT OR
TWENTY-FOUR (24) MONTHS FROM THE DATE HEREOF (THE "CONSULTING TERM"),
EXECUTIVE'S STATUS SHALL CHANGE TO THAT OF A CONSULTANT TO, AND NOT AN EMPLOYEE
OF, THE COMPANY.
DURING THE CONSULTING TERM, EXECUTIVE WILL BE REASONABLY
AVAILABLE TO NEOPHARM PERSONNEL DURING NORMAL BUSINESS HOURS FOR CONSULTATION ON
MATTERS RELATING TO THE COMPANY'S BUSINESS OPERATIONS AND STRATEGIES, INCLUDING,
BUT NOT LIMITED TO, THE COMPANY'S DEVELOPMENT OF DRUGS AND NONDRUGS WHICH ARE
CURRENTLY BEING RESEARCHED AND DEVELOPED BY THE COMPANY; PROVIDED, HOWEVER, THAT
SUCH CONSULTATION SHALL NOT EXCEED TWENTY (20) HOURS PER WEEK.
(B)
WHILE SERVING AS A CONSULTANT TO THE
COMPANY, EXECUTIVE'S PREVIOUSLY GRANTED OPTIONS WILL CONTINUE TO VEST IN
ACCORDANCE WITH THE CURRENT VESTING SCHEDULE APPLICABLE TO SUCH OPTIONS AND
SHALL REMAIN EXERCISABLE UNTIL THE DATE THAT IS NINETY (90) DAYS AFTER THE
TERMINATION OF THE CONSULTING TERM.
4.
RESTRICTIVE COVENANTS FOR EXECUTIVE.
(A)
EXECUTIVE HEREBY COVENANTS AND AGREES WITH
THE COMPANY THAT, IN CONSIDERATION FOR THE PAYMENTS AND OTHER VALUABLE
CONSIDERATION TO BE PROVIDED TO EXECUTIVE UNDER THIS AGREEMENT, FOR A PERIOD
(THE "RESTRICTED PERIOD") OF TWENTY-FOUR (24) MONTHS FROM THE DATE OF THIS
AGREEMENT, EXECUTIVE SHALL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF THE
COMPANY, WHICH CONSENT SHALL BE WITHIN THE SOLE AND EXCLUSIVE DISCRETION OF THE
COMPANY, EITHER DIRECTLY OR INDIRECTLY, ON HIS OWN ACCOUNT OR AS AN EXECUTIVE,
CONSULTANT, AGENT, PARTNER,
2
JOINT VENTURER, OWNER, OFFICER, DIRECTOR OR SHAREHOLDER OF ANY OTHER PERSON,
FIRM, CORPORATION, PARTNERSHIP, LIMITED LIABILITY COMPANY OR OTHER ENTITY:
(I)
PERFORM SERVICES FOR ANY COMPETING
BUSINESS, AS HEREINAFTER DEFINED, INCLUDING SPECIFICALLY, BUT NOT LIMITED TO,
PARTICIPATING IN THE RESEARCH, DEVELOPMENT, SALE OR MARKETING OF DRUG OR
NON-DRUG PRODUCTS OR THE MANAGEMENT OF INDIVIDUALS INVOLVED IN THE RESEARCH,
DEVELOPMENT, SALE OR MARKETING OF DRUG OR NON-DRUG PRODUCTS.
FOR PURPOSES OF
THIS COVENANT, THE TERM "COMPETING BUSINESS" SHALL MEAN ANY ENTITY ENGAGED IN
THE RESEARCH, DEVELOPMENT, MARKETING OR SALE OF DRUG AND NONDRUG PRODUCTS WHICH
ARE OR WOULD BE COMPETITIVE IN THE FIELDS OF CANCER OR LIPOSOME TECHNOLOGY
WITH:
(1) THOSE PRODUCTS BEING MARKETED BY THE COMPANY AT THE TIME OF
EXECUTIVE'S TERMINATION; OR (2) THOSE PRODUCTS THAT EXECUTIVE WAS AWARE WERE
UNDER RESEARCH AND DEVELOPMENT BY THE COMPANY