FORM OF NONCOMPETITION AND
NONSOLICITATION AGREEMENT
This Noncompetition and Nonsolicitation
Agreement (this “Agreement” )
is made and entered into as of July 5, 2006 by and between
Sirion Therapeutics,
Inc. , a North Carolina corporation (
“Sirion” ), and [
] (the “Stockholder” ). Capitalized terms
used and not otherwise defined in this Agreement shall have the
meanings given to them in the Merger Agreement (as defined
below).
Whereas, simultaneously with
the execution and delivery of this Agreement, Sytera, Inc., a
Delaware corporation ( “Sytera” ), Sytera
II, Inc., a Delaware corporation, Sirion, the Sytera
Stockholders’ Representative and the Sirion
Shareholders’ Representative are entering into that certain
Agreement and Plan of Merger and Reorganization (the
“Merger Agreement” ), dated as of even
date herewith, pursuant to which Sytera will be merged with and
into Sirion, with Sirion continuing as the surviving corporation
(the “Merger” );
Whereas, as a major
stockholder and employee of Sytera, Stockholder has obtained
extensive and valuable knowledge and confidential information
concerning the business of Sytera;
Whereas, in connection with
the Merger, Stockholder will become an employee of or consultant to
Sirion, in which capacity Stockholder will obtain extensive and
valuable knowledge and confidential information concerning the
business of Sirion; and
Whereas, in connection with
and as a condition to the consummation of the Merger, and to enable
Sirion to secure more fully the benefits of the Merger, Sirion has
required that Stockholder enter into this Agreement, and
Stockholder desires to enter into this Agreement in order to induce
Sirion to consummate the Merger.
Now, Therefore, in
consideration of the foregoing premises and the mutual covenants
and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1.
Definitions.
As used in this Agreement, the
following terms shall have the following respective
meanings:
1.1
“Competing Product” means any pharmaceutical
product intended for use in the Field.
1.2
“Competing Service” means any service
relating to the discovery, development, manufacture,
commercialization, promotion, sale, supply, licensing,
sublicensing, distribution or resale of any Competing
Product.
1.3 A
Person shall be deemed to be engaged in
“Competition” if: (i) such Person is
engaged directly or indirectly in the discovery, development,
manufacture, commercialization, promotion, sale, supply, licensing,
sublicensing, distribution or resale of any Competing
Product
for or on
behalf of any commercial or for-profit business enterprise; or
(ii) such Person is engaged directly or indirectly in
providing, performing or offering any Competing Service for or on
behalf of any commercial or for-profit business
enterprise.
1.4
“Confidential Information” means any
non-public information relating to Sirion or to its business,
operations, financial affairs, performance, assets, technology,
processes, products, contracts, customers, licensees, sublicensees,
suppliers, personnel, consultants or plans, including, without
limitation, any such information consisting of or otherwise
relating to trade secrets, know-how, technology, inventions,
prototypes, designs, drawings, sketches, processes, license or
sublicense arrangements, formulae, proposals, research and
development activities, customer lists or preferences, pricing
lists, referral sources, marketing or sales techniques or plans,
operations manuals, service manuals, financial information,
projections, lists of consultants, lists of suppliers or lists of
distributors; provided , however , that
“Confidential Information” shall not be deemed to
include information of Sirion that was already publicly known and
in the public domain prior to the time of its initial disclosure to
Stockholder.
1.5
“Fenretinide” means 4-hydroxyphenyl
retinamide and its active metabolite, 4-methoxyphenyl
retinamide.
1.6
“Field” shall mean: (i) as applied to
all pharmaceutical products other than Syt101, for the treatment or
prevention of all ophthalmology diseases; and (ii) as applied
to Syt101, for the treatment or prevention of all diseases other
than diabetes.
1.7
“Indemnitees” shall include:
(i) Sirion; (ii) each Person who is or becomes an
Affiliate of Sirion; and (iii) the successors and assigns of
each of the Persons referred to in the foregoing clauses
“(i)” and “(ii)”.
1.8
“Noncompetition Period” shall mean the
period commencing on the Closing Date and ending on the third (3rd)
anniversary of the Closing Date; provided , however ,
that in the event of any breach by Stockholder of any provision of
this Agreement, the Noncompetition Period shall be automatically
extended by a number of days equal to the total number of days in
the period from the date on which such breach shall have first
occurred through the date as of which such breach shall have been
fully cured.
1.9
“Restricted Territory” means and includes
the United States, each member country of the European Union and
Japan.
1.10
“Syt101” means Fenretinide, including any
active metabolite or prodrug of Fenretinide or any hydrate,
conjugate, salt, ester, amide, solvate, cocrystal, isomer,
polymorph, analogue or other derivative of any of the
foregoing.
2.
Restriction on
Competition. Stockholder agrees that, during the
Noncompetition Period, Stockholder shall not: (i) engage in
Competition in any Restricted Territory; or (ii) be or become
an officer, director, stockholder, partner, member, owner,
investor, lender, employee, agent, consultant, advisor, manager,
for or to, or otherwise be or become associated with or acquire or
hold any direct or indirect interest in, any Person that engages in
Competition in an
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