<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1998
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission file number: 24572
GENEMEDICINE, INC.
(Exact name of registrant as specified in its charter)
Delaware 76-0355802
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
8301 New Trails Drive, The Woodlands, Texas 77381-4248
(Address of principal executive office) (zip code)
(281) 364-1150
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes X No
--- ---
As of July 23, 1998, there were outstanding 14,579,374 and 3,750,000 shares of
Common Stock and Series B Preferred Stock, par value $.001, respectively, of
the registrant.
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GENEMEDICINE, INC.
(A DELAWARE CORPORATION IN THE DEVELOPMENT STAGE)
FORM 10-Q
TABLE OF CONTENTS
PAGE NO.
---------
COVER PAGE........................................................... 1
TABLE OF CONTENTS.................................................... 2
PART I. FINANCIAL INFORMATION
ITEM 1. Financial Statements
Balance Sheets as of June 30, 1998 and December 31, 1997........ 3
Statements of Operations for the three and six months ended
June 30, 1998 and June 30, 1997, and for the period from
inception (January 2, 1992) through June 30, 1998............... 4
Statements of Cash Flows for the six months ended
June 30, 1998 and June 30, 1997, and for the period from
inception (January 2, 1992) through June 30, 1998............... 5
Notes to Financial Statements................................... 6
ITEM 2.
Management's Discussion and Analysis of Financial Condition
and Results of Operations....................................... 7
PART II. OTHER INFORMATION.......................................... 10
SIGNATURES........................................................... 11
Page 2 of 11
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<TABLE>
<CAPTION>
GENEMEDICINE, INC.
(A Delaware Corporation in the Development Stage)
BALANCE SHEETS
JUNE 30, DECEMBER 31,
1998 1997
------------- -------------
ASSETS (unaudited)
------
<S> <C> <C>
Current Assets:
Cash and cash equivalents.............................................$ 890,778 $ 873,180
Short-term investments................................................ 20,783,329 23,708,845
Prepaid expenses and other............................................ 147,723 175,128
Total current assets.............................................. 21,821,830 24,757,153
Equipment, furniture and leasehold improvements, net....................... 2,953,871 3,220,987
Deposits and other assets.................................................. 9,195 9,195
------------- -------------
Total Assets...............................................................$ 24,784,896 $ 27,987,335
============= =============
LIABILITIES AND STOCKHOLDERS' EQUITY
------------------------------------
Current Liabilities:
Accounts payable and accrued liabilities..............................$ 800,319 1,454,986
Deferred grant revenue................................................ - 89,737
Current portion of capital lease obligations.......................... 225,544 270,166
------------- -------------
Total current liabilities......................................... 1,025,863 1,814,889
------------- -------------
Long-term Liabilities:
Deferred contract revenue............................................. 3,419,970 2,919,970
Capital lease obligations, net of current portion..................... - 54,814
------------- -------------
Total long-term liabilities....................................... 3,419,970 2,974,784
------------- -------------
Commitments
Stockholders' Equity:
Convertible preferred stock, $.001 par value; 20,000,000 shares
authorized; 3,750,000 issued and outstanding...................... 3,750 3,750
Common stock, $.001 par value; 40,000,000 shares authorized;
14,574,915 and 13,911,422 shares issued and outstanding........... 14,575 13,911
Additional paid-in capital............................................ 74,258,855 70,097,651
Deferred compensation................................................. - (56,348)
Deficit accumulated during the development stage...................... (53,938,117) (46,861,302)
------------- -------------
Total stockholders' equity........................................ 20,339,063 23,197,662
------------- -------------
Total Liabilities and Stockholders' Equity.................................$ 24,784,896 $ 27,987,335
============= =============
The accompanying notes are an integral part of these financial statements.
Page 3 of 11
</TABLE>
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GENEMEDICINE, INC.
(A DELAWARE CORPORATION IN THE DEVELOPMENT STAGE)
STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
INCEPTION
THREE MONTHS ENDED SIX MONTHS ENDED (JANUARY 2, 1992)
JUNE 30, JUNE 30, THROUGH
--------------------------- --------------------------- JUNE 30,
1998 1997 1998 1997 1998
------------ ------------ ------------ ------------ -------------
<S> <C> <C> <C> <C> <C>
Revenues:
Contract revenue....................$ 1,000,000 $ 1,000,000 $ 2,022,500 $ 2,500,000 $ 14,202,500
Research and development
grant revenue..................... 129,443 149,000 219,181 389,000 1,745,578
Interest income..................... 329,003 435,463 680,919 866,409 6,378,990
------------ ------------ ------------ ------------ -------------
Total revenues.................... 1,458,446 1,584,463 2,922,600 3,755,409 22,327,068
Expenses:
Research and development............ 3,991,145 3,488,969 7,721,595 6,768,298 57,209,343
General and administrative.......... 1,267,093 1,187,237 2,262,313 2,191,753 18,544,279
Interest expense.................... 6,700 16,953 15,507 36,792 511,563
------------ ------------ ------------ ------------ -------------
Total expenses.................... 5,264,938 4,693,159 9,999,415 8,996,843 76,265,185
------------ ------------ ------------ ------------ -------------
Net loss..............................$ (3,806,492) $ (3,108,696) $ (7,076,815) $ (5,241,434) $ (53,938,117)
============ ============ ============ ============ =============
Loss per share........................$ (0.2) $ (0.2) $ (0.4) $ (0.39)
============ ============ ============ ============
Shares used in computing
loss per share...................... 14,520,094 13,702,578 14,413,660 13,583,073
============ ============ ============ ============
The accompanying notes are an integral part of these financial statements.
Page 4 of 11
</TABLE>
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<TABLE>
<CAPTION>
GENEMEDICINE, INC.
(A Delaware Corporation in the Development Stage)
STATEMENTS OF CASH FLOWS
(unaudited)
Six Months Ended Inception
June 30, (January 2, 1992)
--------------------------- through
1998 1997 June 30, 1997
------------- ------------ ----------------
<S> <C> <C> <C>
Cash flows used in operating activities:
Net loss..........................................................$ (7,076,815) $ (5,241,434) $ (53,938,117)
Adjustments to reconcile net loss to net cash used
by operating activities:
Depreciation and amortization................................... 544,024 469,506 3,322,001
Issuance of convertible debt for noncash consideration.......... - - 905,000
Issuance of stock for noncash consideration..................... - - 107,644
Compensation expense related to stock plans..................... 56,348 194,638 1,777,708
Loss on equipment retirements................................... - - 7,565
Changes in assets and liabilities:
Decrease (increase) in prepaid expenses and other assets...... 27,405 (69,360) (153,790)
Increase (decrease) in accounts payable and accrued liabilities (654,667) (593,599) 800,319
Increase in deferred revenue and deferred contract revenue.... 410,263 580,000 3,419,971
------------- ------------ ----------------
Net cash used in operating activities....................... (6,693,442) (4,660,249) (43,751,699)
------------- ------------ ----------------
Cash flows used in investing activities:
Purchase of equipment, furniture and leasehold improvements....... (276,908) (964,545) (6,286,566)
Net sales (purchases) of short-term investments................... 2,925,516 3,883,330 (20,783,329)
------------- ------------ ----------------
Net cash used in investing activities....................... 2,648,608 2,918,785 (27,069,895)
------------- ------------ ----------------
Cash flows from financing activities:
Proceeds from notes payable and capital lease obligations......... - - 2,030,823
Repayment of notes payable and capital lease obligations.......... (99,436) (170,123) (1,674,279)
Advance on line of credit......................................... - - 750,000
Proceeds from issuance of preferred stock, net.................... - - 22,264,465
Proceeds from issuance of common stock, net....................... 4,161,868 4,485,742 48,341,363
------------- ------------ ----------------
Net cash provided by financing activities................... 4,062,432 4,315,619 71,712,372
------------- ------------ ----------------
Net increase in cash and cash equivalents............................. 17,598 2,574,155 890,778
Cash and cash equivalents, beginning of period........................ 873,180 2,145,404 -
------------- ------------ ----------------
Cash and cash equivalents, end of period..............................$ 890,778 $ 4,719,559 $ 890,778
============= ============ ================
Supplemental disclosure of cash flow information:
Cash paid during the period for interest..........................$ 15,507 $ 36,792 $ 448,560
Issuance of convertible debt for technology.......................$ - $ - $ 905,000
Conversion of debt to preferred and common stock..................$ - $ - $ 1,786,000
</TABLE>
The accompanying notes are an integral part of these financial statements.
Page 5 of 11
<PAGE>
GENEMEDICINE, INC.
(A Delaware Corporation in the Development Stage)
NOTES TO FINANCIAL STATEMENTS
June 30, 1998
(unaudited)
1. ORGANIZATION AND BASIS OF PRESENTATION:
GeneMedicine, Inc. ("GeneMedicine" or the "Company") is a Delaware
corporation in the development stage. The Company is developing non-viral gene
therapies that may provide unique clinical benefits in the treatment of a number
of human diseases. The Company intends to develop its products through alliances
with major pharmaceutical and biotechnology companies.
The Company has devoted substantially all of its efforts to research and
product development and has not yet generated any revenues from the sale of
products, nor is there any assurance of future product revenues. In addition,
the Company expects to continue to incur losses for the foreseeable future, and
there can be no assurance that the Company will successfully complete the
transition from a development stage company to successful operations. The
research and development activities engaged in by the Company involve a high
degree of risk and uncertainty. The ability of the Company to successfully
develop, manufacture and market its proprietary products is dependent upon many
factors. These factors include, but are not limited to, the need for additional
financing, the ability to establish and maintain collaborative arrangements for
research, development and commercialization of products with corporate partners,
and the ability to develop or access manufacturing, sales and marketing
experience. Additional factors include uncertainties as to patents and
proprietary technologies, technological change and risk of obsolescence,
development of products, competition, government regulations and regulatory
approval, and product liability exposure. As a result of the aforementioned
factors and the related uncertainties, there can be no assurance of the
Company's future success.
The accompanying interim financial statements are unaudited and reflect all
adjustments which, in the opinion of management, are necessary for a fair
presentation of the results for the interim periods presented. Results for
interim periods are not necessarily indicative of the results to be expected for
the entire year ending December 31, 1998. These financial statements should be
read in conjunction with the Company's audited financial statements included
with the Company's Annual Report on Form 10-K for the year ended December 31,
1997.
Effective January 1, 1998, the Company adopted Financial Accounting
Standards No. 130, "Reporting Comprehensive Income." Statement No. 130
establishes standards for reporting and displaying comprehensive income and its
components. Comprehensive income is the total of net income and all other non-
owner changes in equity. For the period from inception (January 2, 1992) through
June 30, 1998, the only component of comprehensive income for the Company is net
income. Adopting Statement No. 130 had no effect on the Company's financial
position or results of operation.
Page 6 of 11
<PAGE>
GENEMEDICINE, INC.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
OVERVIEW
Except for the historical information contained herein, the following
discussion contains forward-looking statements that involve risks and
uncertainties. Actual results could differ materially from those discussed
here. Factors that could cause or contribute to such differences include, but
are not limited to, the early stage of GeneMedicine, Inc.'s development and
technological uncertainty, dependence on collaborative partners and licenses,
the failure of existing or future partnerships to be successful, future capital
needs and uncertainty of additional funding, uncertainty of patent protection,
uncertainty of government regulatory requirements, level of competition and
rapid technological change, as well as those set forth in this section and in
the section entitled "Risk Factors" and elsewhere in the Company's Form 10-K for
the year ended December 31, 1997.
Since its inception in January 1992, GeneMedicine has devoted its resources
primarily to fund its research and development programs. The Company has been
unprofitable since inception and to date has not received any revenues from the
sale of products. No assurance can be given that the Company will be able to
generate sufficient product revenues to attain profitability on a sustained
basis or at all. The Company expects to incur substantial losses for the next
several years as it continues to invest in product research and development,
preclinical studies, clinical trials and regulatory compliance. At June 30,
1998, the Company's accumulated deficit was approximately $53.9 million.
RESULTS OF OPERATIONS
Revenues of $1.5 million and $2.9 million were recorded for the three and six
months ended June 30, 1998, respectively, which consisted primarily of contract
revenue of $1.0 million and $2.0 million, and interest income of $0.3 million
and $0.7 million, respectively. These results compare with revenues of $1.6
million and $3.8 million for the three and six months ended June 30, 1997,
respectively, which consisted primarily of contract revenue of $1.0 million and
$2.5 million, and interest income of $0.4 million and $0.9 million,
respectively. Contract revenues in each respective period primarily resulted
from a corporate partnership with certain Boehringer Mannheim subsidiaries
("Boehringer Mannheim") of Corange International Ltd. ("Corange"), which was
acquired by Roche Holding Ltd. in March 1998, to develop certain non-viral gene
medicines to treat selected cancer indications. The decrease in contract
revenue for the first six months of 1998 compared to the same period in 1997 was
due to the recognition in 1997 of a $0.5 million milestone payment from
Boehringer Mannheim for achieving clearance from the U.S. Food and Drug
Administration to commence a Phase I clinical trial using the Company's IL-2
Gene Medicine, which GeneMedicine is developing for the treatment of head and
neck cancer.
The Company's research and development expenses for the quarter ended June 30,
1998 were $4.0 million, compared to $3.5 million for the second quarter of 1997.
For the six months ended June 30, 1998, research and development expenses
increased to $7.7 million from $6.8 million for the same period in 1997. These
increases were generally due to the expansion of the Company's research and
development activities, resulting in staffing increases and the related salary
and benefit costs, as well as additional laboratory supplies and other support
costs. The expansion of the Company's research and development activities has
been driven primarily by the progression of research in the field of genetic
vaccines and clinical development efforts in the field of cancer. The Company
anticipates that research and development expenditures will increase over the
next several years as it continues to expand its research and product
development efforts.
Page 7 of 11
<PAGE>
General and administrative expenses marginally increased to $1.3 million and
$2.3 million for the three and six months ended June 30, 1998, respectively,
compared to the same periods in 1997.
Losses per share for the three and six months ended June 30, 1998 were $0.26
and $0.49, respectively, as compared to losses per share of $0.23 and $0.39 for
the same periods in 1997. The increases in the Company's net loss per share for
the three and six months ended June 30, 1998 was primarily the result of
decreased contract revenue and increased research and development expenses as
described above.
LIQUIDITY AND CAPITAL RESOURCES
Since its inception, the Company has financed its operations primarily through
private and public sales of its equity securities, interest income on invested
funds and revenues from corporate alliances. Through June 30, 1998, the Company
had received approximately $70.6 million in net proceeds from sales of its
equity securities. At June 30, 1998, the Company had working capital of $20.8
million and cash, cash equivalents and short-term investments of $21.7 million.
In addition, in July 1998 the Company received a $1.25 million, quarterly
scheduled, contract research payment from Boehringer Mannheim.
The Company expects its cash requirements to increase significantly in future
periods. The Company will require substantial funds to conduct research and
development programs, preclinical studies and clinical trials of its potential
products and to market with its partners any products that are developed. In
addition, the Company currently plans to manufacture clinical scale quantities
of its products, which will require the Company to expend substantial additional
capital. The Company's future capital requirements will depend on many factors,
including the ability to maintain existing and establish additional corporate
partnerships, continued scientific progress in its research and development
programs, the scope and results of preclinical testing and clinical trials, the
time and costs involved in obtaining regulatory approvals, the costs involved in
filing, prosecuting and enforcing patent claims, competing technological
developments, the cost of manufacturing, and scale-up and effective
commercialization activities and arrangements. Based on its current plans, the
Company believes that its available cash, including proceeds from projected
interest income and anticipated funding from its corporate alliance with
Boehringer Mannheim, will enable the Company to maintain its current and planned
operations into the first quarter of 2000. There can be no assurance, however,
that changes in the Company's research and development plans or other changes
affecting the Company's operating expenses will not result in the expenditure of
such resources before such time. The Company intends to seek additional funding
through public or private financing, research and development arrangements with
potential corporate partners, or from other sources. There can be no assurance
that additional financing will be available on favorable terms, if at all. In
the event that adequate funding is not available, the Company may be required to
delay, reduce or eliminate one or more of its research or development programs
or obtain funds through arrangements with corporate collaborators or others that
may require the Company to relinquish greater or all rights to product
candidates at an earlier stage of development or on less favorable terms than
the Company would otherwise seek. Insufficient financing may also require the
Company to relinquish rights to certain of its technologies that the Company
would otherwise develop or commercialize itself.
The Company's business is subject to significant risks, including, without
limitation, uncertainties associated with the length and expense of the
regulatory approval process, uncertainty associated with obtaining and enforcing
patents and risks associated with dependence on corporate partners. Although
the Company's products may appear promising at an early stage of development,
they may not be successfully commercialized for a number of reasons, such as the
possibility that the potential products will be determined to be ineffective
during clinical trials, fail to receive necessary approvals, be uneconomical to
manufacture or market, or be precluded from commercialization by proprietary
rights of third parties. In addition, the failure
Page 8 of 11
<PAGE>
by the Company to obtain patent protection for its products may make certain of
its products commercially unattractive. There can be no assurance that any
collaboration will be continued or result in successful commercialized products.
Page 9 of 11
<PAGE>
GENEMEDICINE, INC.
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
None
Item 2. Changes in Securities and Use of Proceeds
None
Item 3. Defaults upon Senior Securities
None
Item 4. Submission of Matters to a Vote of Security Holders
(a) The Annual Meeting of Stockholders of GeneMedicine, inc. was held
on June 11, 1998.
(b) The matters voted upon at the meeting and the voting of
stockholders with respect thereto are as follows:
Proposal 1
To elect two directors to serve until the 2001 Annual Meeting of
Stockholders and until their successors are elected.
For Against
--- -------
Edward L. Cahill 11,357,136 41,964
Arthur M. Pappas 11,356,261 42,839
The following individuals term of office as a director continued after
the meeting: David F.J. Leathers, Eric Tomlinson, D.Sc., Ph.D.,
Stanley T. Crooke, M.D., Ph. D., and Bert W. O'Malley, M.D.
Item 5. Other Information
None
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibit Number Description
-------------- -----------
10.12 Amended and Restated Employment Agreement between
Registrant and Eric Tomlinson dated June 11, 1998
10.13 Secured Promissory Note between Registrant and
Eric Tomlinson dated April 8, 1998
27 Financial Data Schedule
(b) No reports on Form 8-K have been filed during the quarter for
which this report is filed.
Page 10 of 11
<PAGE>
GENEMEDICINE, INC.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
GENEMEDICINE, INC.
Date: 7/24/1998 By:/s/ John M. Dodson
--------- -----------------------------------
John M. Dodson
Director, Finance & Accounting
(on behalf of the Registrant and as the
Registrant's Chief Accounting Officer)
Page 11 of 11
<PAGE>
EXHIBIT 10.12
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made
and entered into effective as of June 11, 1998 (the "Effective Date") by and
between GeneMedicine, Inc., a Delaware corporation (the "Company") and Eric
Tomlinson, D.Sc. (the "Executive"). The Company and Executive are hereinafter
collectively referred to as the "Parties," and individually referred to as a
"Party."
RECITALS
A. The Company hereby agrees to continue to employ Executive, and
Executive hereby accepts continued employment by the Company, upon the terms and
conditions set forth in this Agreement.
B. The Company and the Executive have previously entered into an
Employment Agreement, dated effective as of January 1, 1998 (the "Prior
Agreement") memorializing the terms of Executive's engagement by the Company.
C. The Company and the Executive desire to terminate the Prior Agreement
and to enter into this Agreement, the terms of which shall supersede, amend and
restate in their entirety the terms of the Prior Agreement.
AGREEMENT
In consideration of the foregoing recitals and the mutual promises and
covenants herein contained, and for other good and valuable consideration, the
Parties, intending to be legally bound, agree as follows:
1. EMPLOYMENT AND TERM.
1.1 Executive shall serve as the Vice Chairman of the Board of Directors
of the Company and primarily be responsible for (i) coordinating and leading any
and all corporate partnering discussions and negotiations between the Company
and Boehringer Mannheim or Roche Holding Ltd., (ii) identifying and evaluating
other suitable strategic initiatives and corporate partnering opportunities for
the Company and (iii) assisting in the Company's investor relation efforts.
Executive shall report to and be subject to the general direction and control of
the Board of Directors of the Company (the "Board").
1.2 Except as otherwise provided for in this Agreement, the initial term
of this Agreement shall commence on the Effective Date and shall terminate on
December 31, 1998 (the "Initial Term"). This Agreement shall automatically be
renewed for additional one (1) month periods (each a "Renewal Period" and,
together with the Initial Term, collectively the "Term") unless either Party
provides written notice to the other, no later than three (3) months prior to
the commencement of the applicable Renewal Period, of its election not to extend
the Term as
1
<PAGE>
provided in this sentence. Notwithstanding anything herein to the contrary,
either party may terminate this Agreement at any time, with or without cause,
subject to the terms and conditions of Sections 4 and 5 herein.
1.3 Executive agrees to resign from the Board upon termination of his
employment with the Company for any reason.
2. LOYAL AND CONSCIENTIOUS PERFORMANCE.
2.1 During his employment with the Company, Executive shall devote his
full business energies, interest, abilities and productive time to the proper
and efficient performance of his duties under this Agreement.
2.2 During the Term and for a period of eighteen (18) months thereafter,
Executive agrees to not, solicit, for himself or others, any person or entity
that is or was a customer of the Company during his employment with the Company,
or a potential customer with whom the Company had significant contacts during
his employment with the Company for any purpose or activity that is directly or
indirectly competitive with the business of the Company, or solicit the
employment or services of, or attempt to cause to leave the employment or
service of the Company, or any affiliate of the Company, or otherwise interfere
with the relationship of the Company or any affiliate of the Company, with any
person who is or was employed by, or otherwise engaged to perform services for,
the Company or any affiliate of the Company, whether such affiliation is in the
capacity of employee, consultant, independent contractor or otherwise.
2.3 Executive hereby acknowledges and agrees that the scope of the
covenants set forth in this Section 2 are reasonable and necessary to protect
the interests of the Company.
2.4 Although the restrictions set forth in this Section 2 are considered
by the Parties to be reasonable in all circumstances, it is recognized that
restrictions of the nature in question may fail for unforeseen reasons, and
accordingly it is hereby agreed and declared that if any of the restrictions set
forth in this Section 2 shall be adjudged to be void as going beyond what is
reasonable in all of the circumstances for the protection of the Company and of
the Executive or for any other reason, but would be valid if part of the wording
thereof were deleted or the periods (if any) thereof reduced or the range of
activities or area dealt with thereby reduced in scope, such restrictions shall
apply with such modifications as may be necessary to make them valid and
effective and such provisions shall be modified accordingly.
2.5 The provisions of this Section 2 shall survive any termination of this
Agreement.
3. COMPENSATION OF EXECUTIVE.
3.1 So long as Executive is employed by the Company, the Company shall pay
Executive a salary (the "Base Salary") of three hundred ten thousand one hundred
twenty eight dollars ($310,128) per year, payable in regular periodic payments
in accordance with Company policy. Such salary shall be prorated for any partial
year of employment on the basis of a 365-day fiscal year.
2
<PAGE>
3.2 So long as Executive is employed by the Company, the Company agrees
to pay Executive seven hundred sixty-five dollars and seven cents ($765.07) per
month or such other reasonable amount that the Executive is actually billed for
reasonable health and medical benefits chosen by the Executive.
3.3 The Company agrees to maintain Executive's membership at The
Woodlands Country Club (the "Club") so long as Executive is employed by the
Company.
3.4 If Executive sells the home in which he resides as of the Effective
Date, at any time prior to the later to occur of (i) June 30, 2000 or, (ii) the
date which is eighteen (18) months after the Term, the Company agrees to
reimburse Executive for reasonable closing costs up to a maximum of thirty
thousand dollars ($30,000), provided that Executive personally incurs such
closing costs in the sale of his home. Executive shall also be entitled to
receive from the Company an additional payment (the "gross-up payment") in an
amount that is equal to the taxes imposed upon the reimbursement, if any.
Executive shall not be entitled to any additional payment on the gross-up
payment. Executive must submit appropriate documentation in accordance with the
Company's expense reimbursement policy in order to receive reimbursement for
such costs.
3.5 So long as Executive is employed by the Company, the Company agrees
to reimburse the Executive for all reasonable and necessary business expenses in
accordance with the Company's expense reimbursement policies.
3.6 All of Executive's compensation shall be subject to customary
withholding taxes and any other employment taxes as are commonly required to be
collected or withheld by the Company.
4. TERMINATION.
Executive's employment with the Company may be terminated under the
following conditions:
4.1 DEATH OR DISABILITY. Executive's employment with the Company shall
terminate effective upon the date of Executive's death or "disability" as
defined under Section 4.1.1.
4.1.1 The term "disability" shall mean total mental or physical
incapacity of the Executive, which continues for not less than one (1) month and
is based upon a certification of such incapacity by Executive's physician or a
duly licensed physician selected by the Board.
4.2 TERMINATION BY THE COMPANY/EXPIRATION OF THE TERM. Executive's
employment with the Company shall be deemed terminated upon the expiration of
the Term; provided, however, that the Company may terminate Executive's
employment under this Agreement at any time and for any reason by delivery of
written notice to the Executive prior to the expiration of the Term. Any notice
of termination given pursuant to this Section 4.2 shall effect termination as of
the date specified in such notice or, in the event no such date is specified, on
the last day of the month in which such notice is delivered or deemed delivered
as provided in Section 9 below.
3
<PAGE>
4.3 TERMINATION BY EXECUTIVE. Executive may terminate his employment
under this Agreement at any time and for any reason prior to the expiration of
the Term by delivery of a written notice to the Company. Any notice of
termination given pursuant to this Section 4.3 shall effect termination as of
the date specified in such notice or, in the event no date is specified, on the
last day of the month in which such notice is delivered or deemed delivered as
provided in Section 9 below.
5. COMPENSATION UPON TERMINATION.
5.1 Termination by the Company/Expiration of Term. Upon the termination
of Executive's employment as described in Section 4.2, including upon the
expiration of the Term, and upon Executive's furnishing to the Company and an
executed waiver and release of claims (a form of which is attached hereto as
Exhibit A), Executive shall be entitled to the following:
5.1.1 Executive's Base Salary and accrued benefits through the
expiration date of the Term, payable promptly following termination;
5.1.2 A severance payment equal to one and one-half (1 1/2) times
Executive's annual Base Salary in effect at the time of termination, payable in
accordance with Section 5.5 below;
5.1.3 Amendment of each of the stock option grants set forth on
Exhibit B (the "Options") to reflect that: (i) the vesting of each of the
Options shall be accelerated such that the Options shall be fully vested upon
termination, and (ii) each of the Options shall be exercisable up to and
including two (2) years from the termination date of Executive's employment.
Pursuant to applicable tax laws, the Options will lose potentially favorable tax
treatment afforded incentive stock options if not exercised within ninety (90)
days of Executive's termination date.
5.1.4 Seven hundred sixty-five dollars and seven cents ($765.07) per
month from the Company for reasonable health benefits chosen by the Executive,
plus continued payment for Club membership, until the date that is eighteen (18)
months after the expiration date of the Term. Executive shall be solely
responsible for all expenses arising from his use of the Club other than the
Club membership fee.
5.2 DEATH AND DISABILITY. If Executive's employment shall be terminated
by death or disability as provided in Section 4.1, the provisions of Section 5.1
shall apply.
5.3 TERMINATION BY EXECUTIVE. If Executive shall terminate Executive's
employment with the Company prior to the expiration date of the Term, then upon
Executive's furnishing to the Company an executed waiver and release of claims
(a form of which is attached hereto as Exhibit A), Executive shall be entitled
to the following:
5.3.1 Executive's Base Salary and accrued benefits through the date
of termination, payable promptly following termination;
5.3.2 A severance payment equal to one and one-half (1 1/2) times
Executive's annual Base Salary in effect at the time of termination, payable in
accordance with Section 5.5 below;
4
<PAGE>
5.3.3 Amendment of each of the Options to reflect that: (i) the
Options shall be accelerated such that the number of vested shares under the
Options shall equal the number of shares that would have vested under the
Options had Executive remained an employee for an additional eighteen (18)
months following the date of termination, and (ii) each of the Options shall be
exercisable up to and including two (2) years from the date of termination of
Executive's employment;
5.3.4 Seven hundred sixty-five dollars and seven cents ($765.07) per
month from the Company for reasonable health benefits chosen by the Executive,
plus continued payment for Club membership, until the date that is eighteen (18)
months after the date of termination of Executive's employment. Executive shall
be solely responsible for all expenses arising from his use of the Club other
than the Club membership fee.
5.4 CHANGE OF CONTROL. If, during the Term, a Change of Control occurs
as defined in Section 7.1.1, and the Executive's employment with the new company
is terminated by the new company for any reason whatsoever, the provisions of
Section 5.1 shall apply upon such termination.
5.5 TIMING OF SEVERANCE PAYMENTS. Severance payments payable pursuant to
Sections 5.1.2 and 5.3.2 shall be paid in accordance with this Section 5.5.
Promptly following termination, Executive shall be paid an amount equal to the
product of (A) a fraction, the numerator of which is the number of months
(rounded to the nearest whole month) remaining between the date of termination
and December 31, 1999 and the denominator of which is twelve (12), times (B)
Executive's annual Base Salary in effect at the time of termination. No later
than January 15, 2000, Executive shall be paid an amount equal to (X) one and
one-half (1 1/2) times Executive's annual Base Salary in effect at the time of
termination minus (Y) the amount paid in accordance with the preceding sentence.
6. CONFIDENTIAL INFORMATION; EXECUTIVE'S DUTIES UPON TERMINATION.
6.1 No Confidential Information shall be disclosed by the Executive to
any third party or used by the Executive for the benefit of the Executive or any
third party without the prior written consent of the Company.
6.2 Confidential information shall not include information that:
6.2.1 at the time of its disclosure, is publicly available through
no fault of the Parties;
6.2.2 at the time of its disclosure, is, without fault of the
receiving party, part of the public domain;
6.2.3 subsequent to its disclosure hereunder, is obtained by the
Executive from a third party not subject to a contractual or fiduciary
obligation for confidentiality to the disclosing party;
6.2.4 is required to be disclosed under court or governmental order,
rule or regulation; or
5
<PAGE>
6.2.5 is disclosed pursuant to any research grant related to
technology outside of gene therapy.
6.3 Upon termination of the employment of Executive for any reason,
Executive will deliver to the Company all documents, notebooks, designs,
specifications, customer lists, drawings, manuals, reports, plans and other data
of any nature containing or relating to the Confidential Information, Technology
or Inventions, and Executive will not deliver to anyone else any of such
documents or data or any reproduction of such documents or data containing or
relating to the Confidential Information, Technology or Inventions of the
Company.
6.4 Executive agrees to make prompt and complete disclosure to the
Company of every Invention. Executive agrees that the Company shall have sole
ownership rights to all Inventions and agrees to cooperate fully, at no expense
to the Executive, with the Company to secure and defend the Company's said
ownership rights. Executive hereby assigns to the Company any rights the
Executive may acquire in any such Inventions.
6.4.1 Exhibit C hereto contains a true, complete and accurate list
of all inventions, copyrights, patents or improvements of the Executive relevant
to the subject matter of the employment of the Executive by the Company that had
been made or conceived or first reduced to practice by the Executive alone or
jointly with others prior to the employment of the Executive and prior to
Executive's execution of this Agreement and which Executive desires to remove
from the operation of this Agreement.
6.5 Executive represents that the performance of all the terms of this
Agreement by Executive and as an officer of the Company does not and, to the
best knowledge of the Executive, will not breach any agreement or duty to keep
in confidence proprietary information acquired by Executive in confidence or in
trust prior to the employment of the Executive by the Company. Executive
represents that the Executive has not entered into, and the Executive hereby
covenants that the Executive will not enter into, any agreement either written
or oral, in conflict herewith. Executive represents that at the present time
Executive is not restricted from entering into this Agreement.
6.6 Executive represents that Executive has not brought to the Company
and covenants that Executive will not bring to the Company or use in the
performance of the Executive's responsibilities at the Company any proprietary
information, materials or documents of a former or present employer that are not
generally available to the public, unless the Executive has obtained prior
written authorization from the former or present employer. Executive hereby
covenants that the Executive shall not breach any obligation of confidentiality
or duty that the Executive may have to former or present employers.
6.7 The provisions of this Section 6 shall survive any termination of
this Agreement.
7. DEFINITIONS.
7.1 As used herein, the following terms shall have the following
meanings:
7.1.1 CHANGE OF CONTROL means the occurrence of one or more of the
following events: (i) a dissolution or liquidation of the Company; (ii) a
merger or consolidation in which
6
<PAGE>
the Company is not the surviving corporation in which the Company's shareholders
immediately prior to the transaction do not hold beneficial ownership of a least
fifty percent (50%) of the outstanding voting shares of the new or continuing
corporation; (iii) a reverse merger in which the Company is the surviving
corporation but the shares of the Company's common stock outstanding immediately
preceding the merger are converted by virtue of the merger into other property,
whether in the form of securities, cash or otherwise; (iv) at least a majority
of the outstanding corporate shares of the Company are sold, exchanged or
otherwise disposed of, in one transaction or series of related transactions and
the Company's shareholders immediately prior to such transaction or transactions
do not hold beneficial ownership of at least fifty percent (50%) of the
outstanding voting shares of the Company or of the ownership interests of the
entity for which shares of the Company were exchanged (taking into account only
such shareholders' ownership of the Company prior to the time such transaction
or transactions commenced); or (v) the Company sells all or substantially all of
its assets to a single purchaser or to a group of associated purchasers.
7.1.2 CONFIDENTIAL INFORMATION shall mean, subject to Section 6.2,
the Technology in the field of gene therapy known by, or disclosed to, or
learned by, or developed by, the Executive in the course and scope of the
performance of this Agreement, which information is not generally known in the
trade, science or industry in which the Company and/or its affiliates are
engaged.
7.1.3 INVENTIONS shall mean all improvements, discoveries,
inventions, whether patentable or not, copyrightable works, copyrights, trade
secrets, formulae, processes techniques, and other developments and advances
with respect to the Technology in the field of gene therapy that are developed,
conceived or reduced to practice by the Executive in the course and scope of the
performance of this Agreement during the Term and for a period of one year
thereafter that result from the Executive's duties hereunder or result from the
use of premises or equipment owned, leased or contracted for by the Company.
7.1.4 TECHNOLOGY shall mean all know-how, information, ideas,
concepts, designs, specifications, suggestions, improvements, discoveries,
inventions, copyrightable works, uncopyrightable works, copyrights, patent
rights, unpatentable works, patents, trade secrets, formulae, processes,
techniques, methods, machines, devices, products, services, marketing plans,
strategies, forecasts and customer lists and other data, in each case that are
included within the field of gene therapy, and includes, without limiting the
generality of the foregoing, notebooks, drawings, computer software, manuals,
reports, specifications and other writings or compilations of information,
engineering and other scientific and practical information, models and records.
8. ASSIGNMENT AND BINDING EFFECT.
8.1 This Agreement, including Exhibits A, B and C shall be binding upon
and inure to the benefit of Executive and Executive's heirs, executors, personal
representatives, assigns, administrators and legal representatives. Because of
the unique and personal nature of Executive's duties under this Agreement,
neither this Agreement nor any rights or obligations under this Agreement shall
be assignable by Executive. This Agreement shall be binding upon and inure to
the benefit of the Company and its successors, assigns and legal
representatives.
7
<PAGE>
9. NOTICES.
9.1 All notices or demands of any kind required or permitted to be given
by the Company or Executive under this Agreement shall be given in writing and
shall be personally delivered (and receipted for) or mailed by certified mail,
return receipt requested, postage prepaid, addressed as follows:
9.1.1 If to the Company:
Vice President, Human Resources
GeneMedicine, Inc.
8301 New Trails Drive
The Woodlands, Texas 77381-4248
If to Executive:
Eric Tomlinson, D.Sc.
7 Morning Arbor Place
The Woodlands, Texas 77381-6628
Any such written notice shall be deemed received when personally delivered or
three (3) days after its deposit in the United States mail as specified above.
Either Party may change its address for notices by giving notice to the other
Party in the manner specified in this section.
10. CHOICE OF LAW.
10.1 This Agreement shall be construed and enforced in accordance with the
laws of the State of Texas without regard to the place of execution or the place
for performance thereof. This Agreement is to be at least partially performed
in Harris County, Texas, and, as such, the Company and the Executive agree that
personal jurisdiction and venue shall be proper with the state or federal courts
situated in Harris County, Texas, to hear such disputes arising under this
Agreement.
11. INTEGRATION.
11.1 This Agreement contains the complete, final and exclusive agreement
of the Parties relating to the subject matter of this Agreement, and supersedes
all prior oral and written employment agreements or arrangements between the
Parties, including without limitation the Prior Agreement and that certain
Employment and Stock Purchase Agreement, dated as of July 31, 1992, between the
Company and Executive, except for the benefits Executive may be entitled to
under the terms and conditions of the GeneMedicine, Inc. Cash Incentive
Retention and Severance Plan.
12. PUBLIC ANNOUNCEMENTS.
12.1 The Parties agree that no public announcements regarding the terms
and conditions of this Agreement, including Executive's termination of
employment, will be made by either party, except as is required in order to
comply with all applicable laws and regulations;
8
<PAGE>
provided that, the Company shall use reasonable efforts to give Executive an
opportunity to review and comment regarding any such required public
announcements.
13. AMENDMENT.
13.1 This Agreement cannot be amended or modified except by a written
agreement signed by Executive and the Company.
14. WAIVER.
14.1 No term, covenant or condition of this Agreement or any breach
thereof shall be deemed waived, except with the written consent of the Party
against whom the wavier in claimed, and any waiver or any such term, covenant,
condition or breach shall not be deemed to be a waiver of any preceding or
succeeding breach of the same or any other term, covenant, condition or breach.
15. SEVERABILITY.
15.1 The finding by a court of competent jurisdiction of the
unenforceability, invalidity or illegality of any provision of this Agreement
shall not render any other provision of this Agreement unenforceable, invalid or
illegal. Such court shall have the authority to modify or replace the invalid
or unenforceable term or provision with a valid and enforceable term or
provision which most accurately represents the Parties' intention with respect
to the invalid or unenforceable term or provision.
16. INTERPRETATION; CONSTRUCTION.
16.1 The headings set forth in this Agreement are for convenience of
reference only and shall not be used in interpreting this Agreement. This
Agreement has been drafted by legal counsel representing the Company, but
Executive has been encouraged, and has consulted with, his own independent
counsel and tax advisors with respect to the terms of this Agreement. The
Parties acknowledge that each Party and its counsel has reviewed and revised, or
had an opportunity to review and revise, this Agreement, and the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement.
17. REPRESENTATIONS AND WARRANTIES.
17.1 Executive represents and warrants that he is not restricted or
prohibited, contractually or otherwise, from entering into and performing each
of the terms and covenants contained in this Agreement, and that his execution
and performance of this Agreement will not violate or breach any other
agreements between Executive and any other person or entity.
18. COUNTERPARTS.
18.1 This Agreement may be executed in two counterparts, each of which
shall be deemed an original, all of which together shall contribute one and the
same instrument.
9
<PAGE>
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
The Company:
GENEMEDICINE, INC.
a Delaware Corporation
By: Kathryn Stankis
Name:
-----------------------------------
Title:Vice President, Human Resources
EXECUTIVE:
Eric Tomlinson
-----------------------------------------
Waiver and Release Agreement - Exhibit A
Stock Options - Exhibit B
Inventions - Exhibit C
10
<PAGE>
EXHIBIT A
RELEASE AND WAIVER OF CLAIMS
In consideration of the payments and other benefits set forth in Sections 5.1
and 5.3 of the Employment Agreement dated June 11, 1998, to which this form is
attached, I hereby furnish GeneMedicine, Inc. (the "Company") with the following
release and waiver.
I hereby release, and forever discharge the Company, its officers, directors,
agents, employees, stockholders, successors, assigns and affiliates, of and from
any and all claims, liabilities, demands, causes of action, costs, expenses,
attorneys' fees, damages, indemnities and obligations of every kind and nature,
in law, equity, or otherwise, known and unknown, suspected and unsuspected,
disclosed and undisclosed, arising at any time prior to and including my
employment termination date with respect to any claims relating to my employment
and the termination of my employment, including but not limited to, claims
pursuant to any federal, state or local law relating to employment, including,
but not limited to, discrimination claims, claims under the California Fair
Employment and Housing Act, and the Federal Age Discrimination in Employment Act
of 1967, as amended ("ADEA"), or claims for wrongful termination, breach of the
covenant of good faith, contract claims, tort claims, and wage or benefit
claims, including but not limited to, claims for salary, bonuses, commissions,
stock, stock options, vacation pay, fringe benefits, severance pay or any form
of compensation.
I acknowledge that, among other rights, I am waiving and releasing any rights
I may have under ADEA, that this waiver and release is knowing and voluntary,
and that the consideration given for this waiver and release is in addition to
anything of value to which I was already entitled as an employee of the Company.
I further acknowledge that I have been advised, as required by the Older Workers
Benefit Protection Act, that: (a) the waiver and release granted herein does
not relate to claims which may arise after this agreement is executed; (b) I
have the right to consult with an attorney prior to executing this agreement
(although I may choose voluntarily not to do so); (c) I have twenty-one (21)
days from the date I receive this agreement, in which to consider this agreement
(although I may choose voluntarily to execute this agreement earlier); (d) I
have seven (7) days following the execution of this agreement to revoke my
consent to the agreement; and (e) this agreement shall not be effective until
the seven (7) day revocation period has expired.
Date: By:
----------------------- -----------------------------
<PAGE>
EXHIBIT B
STOCK OPTIONS
<TABLE>
<CAPTION>
GRANT DATE TYPE SHARES PRICE SHARES EXERCISED OUTSTANDING OUTSTANDING
GRANTED UN-VESTED EXERCISABLE
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
30-Aug-94 ISO 50,000 8.375 0 7,217 42,713
- -------------------------------------------------------------------------------------------------------------------
11-Jul-95 ISO 20,000 9.750 0 7,418 12,512
- -------------------------------------------------------------------------------------------------------------------
1-Jul-96 ISO 40,000 3.813 0 24,990 15,050
- -------------------------------------------------------------------------------------------------------------------
8-Jul-97 ISO 30,000 6.875 0 26,250 3,750
- -------------------------------------------------------------------------------------------------------------------
8-Jul-97 ISO 20,000 6.875 0 17,472 2,521
- -------------------------------------------------------------------------------------------------------------------
6-Jan-98 ISO 50,000 5.375 0 50,000 0
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT C
INVENTIONS
<PAGE>
TABLE OF CONTENTS
Page
1. Employment and Term................................................1
2. Loyal and Conscientious Performance................................2
3. Compensation of Executive..........................................2
4. Termination........................................................3
5. Compensation Upon Termination......................................3
6. Confidential Information; Executive's Duties Upon Termination......5
7. Definitions........................................................6
8. Assignment and Binding Effect......................................7
9. Notices............................................................7
10. Choice of Law......................................................8
11. Integration........................................................8
12. Public Announcements...............................................8
13. Amendment..........................................................8
14. Waiver.............................................................8
15. Severability.......................................................8
16. Interpretation; Construction.......................................9
17. Representations and Warranties.....................................9
18. Counterparts.......................................................9
i
<PAGE>
EXHIBIT 10.13
SECURED PROMISSORY NOTE
April 8, 1998
The Woodlands, Texas
FOR VALUE RECEIVED, ERIC TOMLINSON, D.SC., PH.D. ("BORROWER"), hereby
unconditionally promises to pay to the order of GENEMEDICINE, INC., a Delaware
corporation ("LENDER"), in lawful money of the United States of America and in
immediately available funds, the aggregate principal amount of all advances made
hereunder as set forth on Exhibit A hereto, as the same may be amended from time
to time, which aggregate principal amount shall not exceed Fifty Thousand
Dollars ($50,000) (the "LOAN"), together with accrued and unpaid interest
thereon from the date of each advance hereunder on the loan balance then
outstanding, due and payable on the dates and in the manner set forth below. The
undersigned hereby authorizes the holder of this Note to note on Exhibit A all
advances made by the holder hereunder, which notations shall, in the absence of
manifest error, be conclusive; provided, however, that the failure to make a
notation or the inaccuracy of the notation shall not limit or otherwise affect
the obligations of the undersigned under this Note.
This Promissory Note is the Note referred to in and is executed and
delivered in connection with that certain Stock Pledge Agreement dated as of
even date herewith and executed by Borrower in favor of Lender (as the same may
from time to time be amended, modified or supplemented or restated, the "PLEDGE
AGREEMENT"). Additional rights of Lender are set forth in the Pledge Agreement.
All capitalized terms used herein and not otherwise defined herein shall have
the respective meanings given to them in the Pledge Agreement.
1. PRINCIPAL REPAYMENT. The outstanding principal amount of the Loan
shall be due and payable on October 8, 1998.
Notwithstanding the foregoing, in the event that the Borrower (i)
voluntarily terminates his employment with Lender or (ii) sells any of the
Collateral securing the Loan (as identified and described in the Pledge
Agreement), this Note shall be accelerated and all remaining unpaid principal
and interest shall become due and payable immediately upon the occurrence of
such event.
2. INTEREST RATE. Borrower further promises to pay interest on the
outstanding principal amount hereof from the date hereof until payment in full,
which interest shall be payable at the rate of 5.38% per annum or the maximum
rate permissible by law (which under the laws of the State of Texas shall be
deemded to be the laws relating to permissible rates of interest on commercial
loans), whichever is less. Interest shall be due and payable at the same time
that the principal amount of this Note becomes due and payable and shall be
compounded monthly and calculated on the basis of a 360-day year for the actual
number of days elapsed.
<PAGE>
3. PLACE OF PAYMENT. All amounts payable hereunder shall be payable at
the office of Lender, 8301 New Trails Drive, The Woodlands, Texas 77381, unless
another place of payment shall be specified in writing by Lender.
4. APPLICATION OF PAYMENTS. Payments on this Note shall be applied
first to accrued interest, and thereafter to the outstanding principal balance
hereof.
5. SECURED NOTE. The full amount of this Note is secured by the
Collateral identified and described as security therefor in the Pledge Agreement
executed by and delivered by Borrower. Borrower shall not, directly or
indirectly, create, permit or suffer to exist, and shall defend the Collateral
against and take such other action as is necessary to remove, any Lien on or in
the Collateral, or in any portion thereof, except as permitted pursuant to the
Pledge Agreement.
6. DEFAULT. Each of the following events shall be an "EVENT OF
DEFAULT" hereunder:
(a) Borrower fails to pay timely any of the principal amount due
under this Note on the date the same becomes due and payable or any accrued
interest or other amounts due under this Note on the date the same becomes due
and payable;
(b) Borrower files any petition or action for relief under any
bankruptcy, reorganization, insolvency or moratorium law or any other law for
the relief of, or relating to, debtors, now or hereafter in effect, or makes any
assignment for the benefit of creditors or takes any corporate action in
furtherance of any of the foregoing; or
(c) An involuntary petition is filed against Borrower (unless such
petition is dismissed or discharged within sixty (60) days) under any bankruptcy
statute now or hereafter in effect, or a custodian, receiver, trustee, assignee
for the benefit of creditors (or other similar official) is appointed to take
possession, custody or control of any property of Borrower.
Upon the occurrence of an Event of Default hereunder, all unpaid principal,
accrued interest and other amounts owing hereunder shall, at the option of
Lender, and, in the case of an Event of Default pursuant to (b) or (c) above,
automatically, be immediately due, payable and collectible by Lender pursuant to
applicable law.
7. WAIVER. Borrower waives presentment and demand for payment, notice
of dishonor, protest and notice of protest of this Note, and shall pay all costs
of collection when incurred, including, without limitation, reasonable
attorneys' fees, costs and other expenses.
The right to plead any and all statutes of limitations as a defense to
any demands hereunder is hereby waived to the full extent permitted by law.
8. GOVERNING LAW. This Note shall be governed by, and construed and
enforced in accordance with, the laws of the State of Texas, excluding conflict
of laws principles that would cause the application of laws of any other
jurisdiction.
2
<PAGE>
9. The undersigned represents and agrees that the amounts due under
this Note are not consumer debt, and are not incurred primarily for personal,
family or household purposes, but are for business and commercial purposes only.
10. PREPAYMENT. Borrower may prepay the unpaid principal in whole or
in part, without penalty, at any time, upon the payment of all unpaid interest
accrued to the date of such prepayment.
11. NOT-TRANSFERABLE. The right of Borrower to request and receive the
Loan hereunder, as well as the other benefits under this Note, shall not be
assignable or otherwise transferrable by Borrower.
12. SUCCESSORS AND ASSIGNS. The provisions of this Note shall inure to
the benefit of and be binding on any successor to Borrower and shall extend to
any holder hereof.
Eric Tomlinson
----------------------------
Eric Tomlinson, D.Sc. PH.D
3
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> JUN-30-1998
<CASH> 21,674,107
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 21,821,830
<PP&E> 2,953,871
<DEPRECIATION> 0
<TOTAL-ASSETS> 24,784,896
<CURRENT-LIABILITIES> 1,025,863
<BONDS> 0
0
3,750
<COMMON> 14,575
<OTHER-SE> 20,320,738
<TOTAL-LIABILITY-AND-EQUITY> 24,784,896
<SALES> 0
<TOTAL-REVENUES> 2,922,600
<CGS> 0
<TOTAL-COSTS> 9,999,415
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 15,507
<INCOME-PRETAX> (7,076,815)
<INCOME-TAX> 0
<INCOME-CONTINUING> (7,076,815)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (7,076,815)
<EPS-PRIMARY> 0
<EPS-DILUTED> (.23)
</TABLE>
