EXHIBIT 10.9
EXECUTIVE EMPLOYMENT AGREEMENT
FOR XXXXXXX X. BOSS, JR.
AMENDMENT #1
FEBRUARY 28, 2002
This amends section 4.1 to:
4. Compensation and Benefits.
4.1 Base Salary. As compensation for services to the Company, the Company
shall pay to the Employee until the Date of Termination as follows: i)
during the first year of the term, the Employee will receive 60,000
shares of Common Stock (this has already been issued to the Employee
in August 2001); (ii) an annual salary of $50,000 for 2002 beginning
March 1, 2002; and (c) an annual salary of $60,000 for 2003. For this
compensation, the Employee agrees to devote a minimum of 25 full
mutually agreeable business days per year as requested by the Company
(i.e., out-of-town meetings, etc.). The Base Salary shall be payable
in equal semi-monthly installments or in accordance with the Company's
established policy, subject only to such payroll and withholding
deductions as may be required by law and other deductions applied
generally to employees of the Company for insurance and other employee
benefit plans.
As amended hereby, the Executive Employment Agreement remains in full force and
effect.
ISOLAGEN TECHNOLOGIES, INC.
By: __________________________________
Name: Xxxxxxx Xxxxxxxx
Title: CEO
EMPLOYEE
______________________________________
Xxxxxxx X. Boss, Jr.
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made and
entered into this 10th day of August, 2001 by and between Isolagen Technologies,
Inc., a Delaware corporation (hereinafter referred to as the "Company"), and
Xxxxxxx X. Boss, Jr. (hereinafter referred to as the "Employee").
WITNESSETH:
WHEREAS, Employee desires to serve the Company as its Co-Chairman; and
WHEREAS, the parties desire to provide that the Employee be employed by
the Company under the terms of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants and obligations contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Employee hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
have the meanings prescribed below:
Affiliate is used in this Agreement to define a relationship to a
person or entity and means a person or entity who, directly or indirectly
through one or more intermediaries, controls, is controlled by, or is under
common control with, such person or entity.
Annual Bonus shall have the meaning assigned thereto in Section 4.2
hereof.
Base Salary shall have the meaning assigned thereto in Section 4.1
hereof.
Cause shall have the meaning assigned thereto in Section 5.3 hereof.
Code means the Internal Revenue Code of 1986, as amended, and the rules
and regulations promulgated by the Internal Revenue Service thereunder, all as
in effect from time to time during the Employment Period.
Company means Isolagen Technologies, Inc., a Delaware corporation.
Confidential Information shall have the meaning assigned thereto in
Section 8.2 hereof.
Date of Termination means the earliest to occur of (i) the date of the
Employee's death, (ii) the date on which the Employee terminates this Agreement
for any reason or (iii) the date of receipt of the Notice of Termination, or
such later date as may be prescribed in the Notice of Termination in accordance
with Section 5.6 hereof.
Disability means an illness or other disability which prevents the
Employee from discharging his responsibilities under this Agreement for a period
of 90 consecutive calendar days, or an
aggregate of 90 calendar days in any calendar year, during the Employment
Period, all as determined in good faith by the Board of Directors of the
Company.
Effective Date means ________________, 2001.
Employee means Xxxxxxx X. Boss, Jr., an individual.
Employment Period shall have the meaning assigned thereto in Section 3
hereof.
Exchange Act means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the Securities and Exchange Commission
thereunder, all as in effect from time to time during the Employment Period.
Notice of Termination shall have the meaning assigned thereto in
Section 5.6 hereof.
Parent shall mean American Financial Holding, Inc., a Delaware
corporation and sole shareholder of the Company.
Parent Common Stock shall mean the Common Stock, $.001 par value per
share of the Parent.
Without Cause shall have the meaning assigned thereto in Section 5.4
hereof.
2. General Duties of Company and Employee.
2.1 The Company agrees to employ the Employee, and the Employee
agrees to accept employment by the Company and to serve the Company as its
Co-Chairman. The authority, duties and responsibilities of the Employee shall
include those duties of Co-Chairman as may be specified in the Bylaws of the
Company as in effect on the date hereof, and such other or additional duties as
may from time to time be assigned to the Employee by the Board of Directors.
While employed hereunder, the Employee shall devote his full time and attention
during normal business hours to the affairs of the Company and use his best
efforts to perform faithfully and efficiently his duties and responsibilities.
The Employee may (i) serve on corporate, civic or charitable boards or
committees provided that (A) such boards or committees do not control or advise
business entities that compete with the Company and (B) all such services are
promptly disclosed in writing to the Board of Directors, (ii) deliver lectures,
fulfill speaking engagements or teach at educational institutions and (iii)
manage personal investments, so long as such activities do not interfere with
the performance of the Employee's duties and responsibilities.
2.2 The Employee agrees and acknowledges that he owes a fiduciary
duty of loyalty, fidelity and allegiance to act at all times in the best
interests of the Company and to do no act and to make no statement, oral or
written, which would injure the Company's business, its interests or its
reputation.
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2.3 The Employee agrees to comply at all times with all applicable
policies, rules and regulations of the Company, including, without limitation,
the Parent's Code of Ethics and the Parent's policy regarding trading in the
Parent Common Stock, as each is in effect from time to time during the
Employment Period.
3. Term. Unless sooner terminated pursuant to other provisions hereof, the
Employee's period of employment under this Agreement shall be the period
beginning on the Effective Date and ending on the fifth anniversary thereof. The
period of time beginning on the Effective Date and ending on the fifth
anniversary thereof, or such earlier date on which this Agreement is terminated
prior to the end of such period pursuant to other provisions hereof, is referred
to herein as the "Employment Period."
4. Compensation and Benefits.
4.1 Base Salary. As compensation for services to the Company, the
Company shall pay to the Employee until the Date of Termination as follows: i)
In exchange for 60,000 shares of the Parent, the Employee will not receive a
salary for twelve (12) months after the Effective Date; (ii) Twelve (12) months
after the Effective Date, the Employee will receive an annual base salary of
$75,000 (the "Base Salary"); (iii) Twenty-four (24) months after the Effective
Date, the Employee will receive an annual base salary of $100,000; (iv)
Thirty-six (36) months after the Effective Date, the Employee will receive an
annual base salary of $125,000; (v) Forty-eight (48) months after the Effective
Date, the Employee will receive an annual base salary of $137,500; (vi) The
Employee will receive a $50,000 bonus upon the FDA's final approval of the
Company's product for cosmetic purposes or upon the Company receiving an
additional United States patent for such product; and (vii) For every one-night
over night trip that the Employee attends on behalf of the Company, the Employee
will be eligible to receive an additional $5,000 per day. For every multiple day
over-night trips that the Employee attends on behalf of the Company, the
Employee's additional $5,000 per day will be reduced to $3,500 per day. The Base
Salary shall be payable in equal semi-monthly installments or in accordance with
the Company's established policy, subject only to such payroll and withholding
deductions as may be required by law and other deductions applied generally to
employees of the Company for insurance and other employee benefit plans.
4.2 Annual Bonus. The Company will pay Employee an annual bonus
("Annual Bonus") to be determined by the Board of Directors in its sole
discretion. The Annual Bonus shall be payable at a time to be determined by the
Board of Directors in its sole discretion.
4.3 Vacation. Until the Date of Termination, the Employee shall be
entitled to vacation as determined by the Company's vacation policy for its
executive officers as in effect from time to time.
4.4 Incentive, Savings and Retirement Plans. Until the Date of
Termination, the Employee shall be eligible to participate in and shall receive
all benefits under all executive incentive, savings and retirement plans
(including 401(k) plans) and programs currently maintained or hereafter
established by the Company for the benefit of its executive officers and/or
employees.
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4.5 Welfare Benefit Plans. Until the Date of Termination, the
Employee and/or the Employee's family, as the case may be, shall be eligible to
participate in and shall receive all benefits under each welfare benefit plan of
the Company currently maintained or hereafter established by the Company for the
benefit of its employees. Such welfare benefit plans may include, without
limitation, medical, dental, disability, group life, accidental death and travel
accident insurance plans and programs.
4.6 Reimbursement of Expenses. The Employee may from time to time
until the Date of Termination incur various business expenses customarily
incurred by persons holding positions of like responsibility, including, without
limitation, travel, entertainment and similar expenses incurred for the benefit
of the Company. Subject to the Company's policy regarding the reimbursement of
such expenses as in effect from time to time during the Employment Period, which
does not necessarily allow reimbursement of all such expenses, the Company shall
reimburse the Employee for such expenses from time to time, at the Employee's
request, and the Employee shall account to the Company for all such expenses.
4.7 Stock Options. The Board of Directors of the Parent, in its
sole discretion, may grant to the Employee options to acquire shares of Parent
Common Stock with such terms and conditions as determined by the Board of
Directors in its sole discretion.
5. Termination.
5.1 Death. This Agreement shall terminate automatically upon the
death of the Employee.
5.2 Disability. The Company may terminate this Agreement, upon
written notice to the Employee delivered in accordance with Sections 5.6 and
12.1 hereof, upon the Disability of the Employee.
5.3 Cause. The Company may terminate the Employee's employment
hereunder for Cause. For purposes of this Agreement, the Company shall have
"Cause" to terminate the Employee's employment under upon (A) the willful
failure by the Employee to substantially perform his duties hereunder (other
than any such failure resulting from the Employee's incapacity due to physical
or mental illness) or failure to follow the specific directives of the Board of
Directors, after demand for substantial performance that specifically identifies
the manner in which the Company believes the Employee has not substantially
performed his duties is delivered to the Employee by the Company, or (B) the
willful engaging by the Employee in misconduct which is materially injurious to
the Company, monetarily or otherwise. For purposes of this paragraph, no act, or
failure to act, on the Employee's part shall be considered "willful" unless
done, or omitted to be done, by him not in good faith and without reasonable
belief that his action or omission was in the best interest of the Company.
Notwithstanding the foregoing, the Employee shall not be deemed to have been
terminated for Cause without (A) 15 days notice to the Employee setting forth
the reasons for the Company's intention to terminate for Cause and (B) delivery
to the Employee of a Notice of
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Termination as defined in Section 5.6 hereof, from the Board of Directors
finding that, in the good faith opinion of the Board of Directors, the Employee
was guilty of conduct set forth above in clause (A) of this Section 5.3 and
specifying the particulars thereof in detail.
5.4 Without Cause. The Company may terminate this Agreement
Without Cause, upon written notice to the Employee delivered in accordance with
Sections 5.6 and 12.1 hereof. For purposes of this Agreement, the Employee will
be deemed to have been terminated "Without Cause" if the Employee is terminated
by the Company for any reason other than Cause, Disability of the Employee or
death of the Employee.
5.5 By the Employee. The Employee may terminate this Agreement for
any reason, upon written notice to the Company delivered in accordance with
Sections 5.6 and 12.1 hereof.
5.6 Notice of Termination. Any termination of this Agreement by
the Company for Cause, Without Cause or as a result of the Disability of the
Employee, or by the Employee for any reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with this Agreement.
For purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Employee's employment under the
provision so indicated and (iii) specifies the termination date, if such date is
other than the date of receipt of such notice (which termination date shall not
be more than 15 days after the giving of such notice).
6. Obligations of Company upon Termination.
6.1 Cause; By Employee; Disability. If this Agreement shall be
terminated (i) by the Company for Cause or Disability of the Employee, (ii) on
the death of the Employee or (iii) by the Employee for any reason:
6.1.1 the Company shall pay to the Employee or his estate,
in a lump sum in cash within 30 days after the Date of Termination, the
aggregate of the following amounts:
6.1.1.1 if not theretofore paid, the Base Salary
through the Date of Termination; and
6.1.1.2 in the case of compensation previously
deferred by the Employee, all amounts of such compensation
previously deferred and not yet paid by the Company; and
6.1.2 the Company shall, promptly upon submission by the
Employee of supporting documentation, pay or reimburse to the Employee
any costs and expenses paid or incurred by the Employee prior to the
Date of Termination which would have been payable under Section 4.6
hereof if the Employee's employment had not terminated.
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6.2 Without Cause. If this Agreement shall be terminated by the
Company Without Cause: 1.1
6.2.1 the Company shall pay to the Employee, in a lump sum
in cash within 30 days after the Date of Termination, the aggregate of
the following amounts:
6.2.1.1 if not theretofore paid, the Base Salary
through the Date of Termination; and
6.2.1.2 in the case of compensation previously
deferred by the Employee, all amounts of such compensation
previously deferred and not yet paid by the Company;
6.2.2 the Company shall, promptly upon submission by the
Employee of supporting documentation, pay or reimburse to the Employee
any costs and expenses paid or incurred by the Employee prior to the
Date of Termination which would have been payable under Section 4.6
hereof if the Employee's employment had not terminated;
6.2.3 for a period of 3 months after the Date of
Termination, the Company shall continue benefits to the Employee and/or
the Employee's family at least equal to those which would have been
provided to them under Section 4.5 hereof if the Employee's employment
had not been terminated; and
6.2.4 the Company shall pay to the Employee, in equal
semi-monthly installments, the Base Salary for a period of 3 months
after the Date of Termination.
7. Employee's Obligation to Avoid Conflicts of Interest.
7.1 Consistent with the Employee's fiduciary duties to the
Company, the Employee agrees that he shall not knowingly become involved in a
conflict of interest with the Company, or upon discovery thereof, allow such a
conflict to continue. The Employee further agrees to disclose to the Company,
promptly after discovery, any facts or circumstances which might involve a
conflict of interest with the Company.
7.2 The Company and the Employee recognize that it is impossible
to provide an exhaustive list of actions or interests which constitute a
"conflict of interest." Moreover, the Company and the Employee recognize that
there are many borderline situations. In some instances, full disclosure of
facts by the Employee to the Company is all that is necessary to enable the
Company to protect its interests. In others, if no improper motivation appears
to exist and the Company's interests have not suffered, prompt elimination of
the outside interest will suffice. In still others, it may be necessary for the
Company to terminate the employment relationship. The Company and the Employee
agree that the Company's determination as to whether or not a conflict of
interest exists shall be conclusive. The Company reserves the right to take such
action as, in its judgment, will end the conflict of interest.
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7.3 In this connection, it is agreed that any direct or indirect
interest in, connection with or benefit from any outside activities,
particularly commercial activities, which interest might in any way adversely
affect the Company or its Affiliates, involves a possible conflict of interest.
Circumstances in which a conflict of interest on the part of the Employee would
or might arise, and which should be reported immediately to the Company,
include, but are not limited to, the following:
7.3.1 Ownership of a material interest in any lender,
supplier, contractor, subcontractor, customer or other entity with
which the Company does business.
7.3.2 Acting in any capacity, including director, officer,
partner, consultant, employee, distributor, agent or the like, for any
lender, supplier, contractor, subcontractor, customer or other entity
with which the Company does business.
7.3.3 Acceptance, directly or indirectly, of payments,
services or loans from a lender, supplier, contractor, subcontractor,
customer or other entity with which the Company does business,
including, without limitation, gifts, trips, entertainment or other
favors of more than a nominal value, but excluding loans from publicly
held insurance companies and commercial or savings banks at market
rates of interest.
7.3.4 Use of information or facilities to which the
Employee has access in a manner which will be detrimental to the
Company's interests, such as use for the Employee's own benefit of
know-how or information developed through the Company's business
activities.
7.3.5 Disclosure or other misuse of information of any kind
obtained through the Employee's connection with the Company.
7.3.6 Acquiring or trading in, directly or indirectly,
other properties or interests connected with the design or marketing of
products or services designed or marketed by the Company.
8. Employee's Confidentiality Obligation.
8.1 The Employee hereby acknowledges, understands and agrees that
all Confidential Information is the exclusive and confidential property of the
Company and its Affiliates which shall at all times be regarded, treated and
protected as such in accordance with this Section 8. The Employee acknowledges
that all such Confidential Information is in the nature of a trade secret.
8.2 For purposes of this Agreement, "Confidential Information"
means information which is used in the business of the Company or its Affiliates
and (i) is proprietary to, about or created by the Company or its Affiliates,
(ii) gives the Company or its Affiliates some competitive business advantage or
the opportunity of obtaining such advantage or the disclosure of which could be
detrimental to the interests of the Company or its Affiliates, (iii) is
designated as Confidential Information by the Company or its Affiliates, is
known by the Employee to be considered confidential by the Company or its
Affiliates, or from all the relevant circumstances should
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reasonably be assumed by the Employee to be confidential and proprietary to the
Company or its Affiliates, or (iv) is not generally known by non-Company
personnel. Such Confidential Information includes, without limitation, the
following types of information and other information of a similar nature
(whether or not reduced to writing or designated as confidential):
8.2.1 Internal personnel and financial information of the
Company or its Affiliates, vendor information (including vendor
characteristics, services, prices, lists and agreements), purchasing
and internal cost information, internal service and operational
manuals, and the manner and methods of conducting the business of the
Company or its Affiliates;
8.2.2 Marketing and development plans, price and cost data,
price and fee amounts, pricing and billing policies, quoting
procedures, marketing techniques, forecasts and forecast assumptions
and volumes, and future plans and potential strategies (including,
without limitation, all information relating to any acquisition
prospect and the identity of any key contact within the organization of
any acquisition prospect) of the Company or its Affiliates which have
been or are being discussed;
8.2.3 Names of customers and their representatives,
contracts (including their contents and parties), customer services,
and the type, quantity, specifications and content of products and
services purchased, leased, licensed or received by customers of the
Company or its Affiliates; and
8.2.4 Confidential and proprietary information provided to
the Company or its Affiliates by any actual or potential customer,
government agency or other third party (including businesses,
consultants and other entities and individuals).
8.3 As a consequence of the Employee's acquisition or anticipated
acquisition of Confidential Information, the Employee shall occupy a position of
trust and confidence with respect to the affairs and business of the Company and
its Affiliates. In view of the foregoing and of the consideration to be provided
to the Employee, the Employee agrees that it is reasonable and necessary that
the Employee make each of the following covenants:
8.3.1 Until the Date of Termination and at all times
thereafter, the Employee shall not disclose Confidential Information to
any person or entity, either inside or outside of the Company, other
than as necessary in carrying out his duties and responsibilities as
set forth in Section 2 hereof, without first obtaining the Company's
prior written consent (unless such disclosure is compelled pursuant to
court orders or subpoena, and at which time the Employee shall give
notice of such proceedings to the Company).
8.3.2 Until the Date of Termination and at all times
thereafter, the Employee shall not use, copy or transfer Confidential
Information other than as necessary in carrying out his duties and
responsibilities as set forth in Section 2 hereof, without first
obtaining the Company's prior written consent.
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8.3.3 On the Date of Termination, the Employee shall
promptly deliver to the Company (or its designee) all written
materials, records and documents made by the Employee or which came
into his possession on or before the Date of Termination (even if prior
to the date hereof) concerning the business or affairs of the Company
or its Affiliates, including, without limitation, all materials
containing Confidential Information.
9. Disclosure of Information, Ideas, Concepts, Improvements, Discoveries
and Inventions. As part of the Employee's fiduciary duties to the Company, the
Employee agrees that during his employment by the Company and (a) in the event
of a termination under Section 6.1 hereof for a period of one year following the
Date of Termination and (b) in the event of a termination under Section 6.2
hereof for a period equal to the period for which payments are made to the
Employee under Section 6.2.4 hereof, the Employee shall promptly disclose in
writing to the Company all information, ideas, concepts, improvements,
discoveries and inventions, whether patentable or not, and whether or not
reduced to practice, which are conceived, developed, made or acquired by the
Employee, either individually or jointly with others, and which relate to the
business, products or services of the Company or its Affiliates, irrespective of
whether the Employee used the Company's time or facilities and irrespective of
whether such information, idea, concept, improvement, discovery or invention was
conceived, developed, discovered or acquired by the Employee on the job, at
home, or elsewhere. This obligation extends to all types of information, ideas
and concepts, including information, ideas and concepts relating to new types of
services, corporate opportunities, acquisition prospects, the identity of key
representatives within acquisition prospect organizations, prospective names or
service marks for the Company's business activities, and the like.
10. Ownership of Information, Ideas, Concepts, Improvements, Discoveries
and Inventions, and all Original Works of Authorship.
10.1 All information, ideas, concepts, improvements, discoveries
and inventions, whether patentable or not, which are conceived, made, developed
or acquired by the Employee or which are disclosed or made known to the
Employee, individually or in conjunction with others, during the Employee's
employment by the Company and which relate to the business, products or services
of the Company or its Affiliates (including, without limitation, all such
information relating to corporate opportunities, research, financial and sales
data, pricing and trading terms, evaluations, opinions, interpretations,
acquisition prospects, the identity of customers or their requirements, the
identity of key contacts within the customers' organizations or within the
organization of acquisition prospects, marketing and merchandising techniques,
and prospective names and service marks) are and shall be the sole and exclusive
property of the Company. Furthermore, all drawings, memoranda, notes, records,
files, correspondence, manuals, models, specifications, computer programs, maps
and all other writings or materials of any type embodying any of such
information, ideas, concepts, improvements, discoveries and inventions are and
shall be the sole and exclusive property of the Company.
10.2 In particular, the Employee hereby specifically sells,
assigns, transfers and conveys to the Company all of his worldwide right, title
and interest in and to all such information, ideas, concepts, improvements,
discoveries or inventions, and any United States or foreign applications for
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patents, inventor's certificates or other industrial rights which may be filed
in respect thereof, including divisions, continuations, continuations-in-part,
reissues and/or extensions thereof, and applications for registration of such
names and service marks. The Employee shall assist the Company and its nominee
at all times, until the Date of Termination and at all times thereafter, in the
protection of such information, ideas, concepts, improvements, discoveries or
inventions, both in the United States and all foreign countries, which
assistance shall include, but shall not be limited to, the execution of all
lawful oaths and all assignment documents requested by the Company or its
nominee in connection with the preparation, prosecution, issuance or enforcement
of any applications for United States or foreign letters patent, including
divisions, continuations, continuations-in-part, reissues and/or extensions
thereof, and any application for the registration of such names and service
marks.
10.3 In the event the Employee creates, during the Employee's
employment by the Company, any original work of authorship fixed in any tangible
medium of expression which is the subject matter of copyright (such as,
videotapes, written presentations on acquisitions, computer programs, drawings,
maps, architectural renditions, models, manuals, brochures or the like) relating
to the Company's business, products or services, whether such work is created
solely by the Employee or jointly with others, the Company shall be deemed the
author of such work if the work is prepared by the Employee within the scope of
his employment; or, if the work is not prepared by the Employee within the scope
of his employment but is specially ordered by the Company as a contribution to a
collective work, as a part of a motion picture or other audiovisual work, as a
translation, as a supplementary work, as a compilation or as an instructional
text, then the work shall be considered to be a work made for hire, and the
Company shall be the author of such work. If such work is neither prepared by
the Employee within the scope of his employment nor a work specially ordered and
deemed to be a work made for hire, then the Employee hereby agrees to sell,
transfer, assign and convey, and by these presents, does sell, transfer, assign
and convey, to the Company all of the Employee's worldwide right, title and
interest in and to such work and all rights of copyright therein. The Employee
agrees to assist the Company and its Affiliates, at all times, until the Date of
Termination and at all times thereafter, in the protection of the Company's
worldwide right, title and interest in and to such work and all rights of
copyright therein, which assistance shall include, but shall not be limited to,
the execution of all documents requested by the Company or its nominee and the
execution of all lawful oaths and applications for registration of copyright in
the United States and foreign countries.
11. Employee's Non-Competition Obligation.
11.1 Until the Date of Termination, and (a) in the event of a
termination under Section 6.1 hereof for a period of one year following the Date
of Termination or (b) in the event of a termination under Section 6.2 hereof for
a period equal to the period for which payments are made to the Employee under
Section 6.2.4 hereof, the Employee shall not, acting alone or in conjunction
with others, directly or indirectly, in any of the business territories in which
the Company or any of its Affiliates is as of the Date of Termination conducting
business, invest or engage, directly or indirectly, in any business which is
competitive with that of the Company as of the Date of Termination or accept
employment with or render services to such a competitor as a director, officer,
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agent, employee or consultant, or take any action inconsistent with the
fiduciary relationship of an employee to his employer; provided, however, that
the beneficial ownership by the Employee of up to three percent of the voting
stock of any corporation subject to the periodic reporting requirements of the
Exchange Act shall not violate this Section 11.1.
11.2 In addition to the other obligations agreed to by the Employee
in this Agreement, the Employee agrees that until the Date of Termination, and
(a) in the event of a termination under Section 6.1 hereof for a period of one
year following the Date of Termination or (b) in the event of a termination
under Section 6.2 hereof for a period equal to the period for which payments are
made to the Employee under Section 6.2.4 hereof, he shall not at any time,
directly or indirectly, (i) induce, entice or solicit any employee of the
Company to leave his employment, (ii) contact, communicate or solicit any
customer or acquisition prospect of the Company derived from any customer list,
customer lead, mail, printed matter or other information secured from the
Company or its present or past employees or (iii) in any other manner use any
customer lists or customer leads, mail, telephone numbers, printed material or
other information of the Company relating thereto.
11.3 The parties hereto acknowledge and agree that (i) the
agreements and covenants set forth in this Section 11 are being made for good
and valuable consideration, the receipt and sufficiency of which is
acknowledged; (ii) the covenants contained in this Section 11 are an important
aspect of this Agreement, and the Company would not have entered into this
Agreement absent the inclusion of this Section 11; and (iii) the restrictions
imposed in this Section 11, including the geographic area and duration of the
covenants made herein, are reasonable and necessary to protect the Company. If
the Employee breaches or indicates an intention to breach any term or provision
of this Section 11, the parties hereto agree that the Company shall be entitled
to the right of both temporary and permanent injunctive relief and/or specific
performance. The right of the Company to such relief shall not be construed to
prevent the Company from pursuing, either consecutively or concurrently, any and
all other legal or equitable remedies available to it for such breach or
threatened breach, specifically including, without limitation, the recovery of
monetary damages. If any court determines that any provision of this Section 11,
or any part thereof, is unenforceable because of the duration or geographic
scope of such provision, the parties hereto agree that such court shall have the
power to reduce the duration or geographic scope of such provision, as the case
may be, and the parties hereto agree to request the court to exercise such
power, and, in its amended form, such provision shall then be enforceable and
shall be enforced.
12. Miscellaneous.
12.1 Notices. All notices and other communications required or
permitted hereunder or necessary or convenient in connection herewith shall be
in writing and shall be deemed to have been given when delivered by hand or
mailed by registered or certified mail, return receipt requested, as follows
(provided that notice of change of address shall be deemed given only when
received):
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If to the Company to:
Isolagen Technologies, Inc.
c/o American Financial Holding, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
If to the Employee to:
Xxxxxxx X. Boss, Jr.
00 Xxxxx Xxxx
Xxxxx Xxxxx, Xxx Xxxxxx 00000
or to such other names or addresses as the Company or the Employee, as the case
may be, shall designate by notice to the other party hereto in the manner
specified in this Section 12.1.
12.2 Waiver of Breach. The waiver by any party hereto of a breach
of any provision of this Agreement shall neither operate nor be construed as a
waiver of any subsequent breach by any party.
12.3 Assignment. This Agreement shall be binding upon and inure to
the benefit of the Company, its successors, legal representatives and assigns,
and upon the Employee, his heirs, executors, administrators, representatives and
assigns; provided, however, the Employee agrees that his rights and obligations
hereunder are personal to him and may not be assigned without the express
written consent of the Company.
12.4 Entire Agreement; No Oral Amendments. This Agreement, together
with any exhibit attached hereto and any document, policy, rule or regulation
referred to herein, replaces and merges all previous agreements and discussions
relating to the same or similar subject matter between the Employee and the
Company and constitutes the entire agreement between the Employee and the
Company with respect to the subject matter of this Agreement. This Agreement may
not be modified in any respect by any verbal statement, representation or
agreement made by any employee, officer, or representative of the Company or by
any written agreement unless signed by an officer of the Company who is
expressly authorized by the Company to execute such document.
12.5 Enforceability. If any provision of this Agreement or
application thereof to anyone or under any circumstances shall be determined to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or application.
12.6 Jurisdiction; Arbitration. The laws of the State of Delaware
shall govern the interpretation, validity and effect of this Agreement without
regard to the place of execution or the place for performance thereof. Except
for the Company's right to seek equitable relief as provided in Section 12.7
hereof, any controversy or claim arising out of or relating to this Agreement,
or the breach thereof, shall be submitted to arbitration in Houston, Texas
administered by the American
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Arbitration Association in accordance with its applicable arbitration rules, and
the judgment on the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof, which judgment shall be binding upon the
parties hereto.
12.7 Injunctive Relief. The Company and the Employee agree that a
breach of any term of this Agreement by the Employee would cause irreparable
damage to the Company and that, in the event of such breach, the Company shall
have, in addition to any and all remedies of law, the right to any injunction,
specific performance and other equitable relief to prevent or to redress the
violation of the Employee's duties or responsibilities hereunder.
[Signature page follows]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound,
have executed this Agreement as of the date first written above.
ISOLAGEN TECHNOLOGIES, INC.
By: __________________________________
Name: Xxxxxx XxXxxx
Title: COO
EMPLOYEE
______________________________________
Xxxxxxx X. Boss, Jr.
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