EXHIBIT 10.11
PART-TIME EMPLOYMENT AND SEPARATION AGREEMENT
THIS PART-TIME EMPLOYMENT AND SEPARATION AGREEMENT (this "Agreement")
dated as of October 17, 1997 is entered into by and between Xxxxx Xxxxxx
("Xxxxxx") and ProCyte Corporation ("ProCyte").
RECITALS
X. Xxxxxx has been employed as Vice President and Secretary of ProCyte.
Xxxxxx'x full-time employment relationship with ProCyte ceased effective October
17, 1997.
X. Xxxxxx and ProCyte wish to have Hedine continue as a part-time
employee of ProCyte, upon the terms and conditions set forth herein.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises contained below, it is agreed as follows:
1. Employment
Effective October 17, 1997, Xxxxxx'x full-time employment with ProCyte
terminated and she resigned as Vice President and Secretary of ProCyte. From
October 17, 1997 through January 31, 1998 (the "Part-Time Employment Period"),
Hedine shall be employed by ProCyte on a part-time basis, after which her
employment and retention by ProCyte will terminate. As requested by ProCyte, she
will provide up to one day per week of services during the Part-Time Employment
Period and, in connection therewith, will schedule with the President of ProCyte
to be physically present at ProCyte's facility at least one day per week through
November 30, 1997.
Hedine shall be reimbursed for all preapproved, reasonable
out-of-pocket business expenses incurred by her as a part-time employee
hereunder upon presentation of an itemized expense voucher, in a form prescribed
by ProCyte, together with receipts or other reasonable evidence or
substantiation of these expenses.
2. Consideration
(a) Cash. In consideration of this Agreement, ProCyte shall
continue to pay Hedine at her normal annual salary of $134,000 (less tax
withholding) at ProCyte's normal pay periods (currently every two weeks) during
the Part-Time Employment Period. In addition, ProCyte shall continue to pay and
provide Hedine during the Part-Time Employment Period the health insurance
benefits that it provides to ProCyte's full-time employees. In the event Hedine
receives comparable insurance coverage through another employer, ProCyte's
obligation to pay and provide such health insurance benefits to Hedine shall
cease.
(b) Stock Options. It is recognized and agreed that (i) all
stock options previously granted to Hedine by ProCyte have vested with the
exception of an incentive stock option for 100,000 shares granted on January 26,
1995 at an exercise price of $2.94, which will continue to vest at the normal
rate (i.e., as if she were a full-time employee) through January 31, 1998, prior
to which time it will have become fully vested, (ii) the nonqualified stock
option granted Hedine on July 28, 1988 at an exercise price of $2.16 for 3,480
shares
has terminated pursuant to its terms, (iii) the nonqualified option granted
Hedine on September 16, 1988 at an exercise price of $2.16 for 29,000 shares
will terminate, pursuant to its terms, on September 16, 1998, (iv) after Hedine
completes her part-time employment in accordance with this Agreement, ProCyte
will extend to September 16, 1998 the time to exercise the incentive stock
options granted Hedine on May 7, 1991, September 27, 1991 and January 26, 1995
for 1,000, 70,000 and 100,000 shares, respectively, after which time such
options shall no longer be exercisable and shall terminate, and (v) the
extension of time to exercise provided by the preceding clause (iv) will cause
such stock options to be treated as nonqualified stock options for tax purposes
and not incentive stock options.
3. Benefits
All benefits to which Hedine was entitled shall cease as of the date of
termination of part-time employment, except Xxxxxx'x right to health insurance
benefits under COBRA, if Hedine elects, and her right, in accordance with
federal law, to leave her 401(k) contributions in ProCyte's 401(k) plan.
4. Reaffirmation of Prior Agreements
Hedine and ProCyte expressly reaffirm and incorporate herein as part of
this Agreement the following agreements:
(a) Indemnity Agreement. The Indemnity Agreement that Hedine
signed effective February 23, 1995 shall remain in full force and effect.
(b) Propriety Information and Invention Agreement. The
Propriety Information and Invention Agreement that Hedine signed effective
January 29, 1987 shall remain in full force and effect.
(c) Confidentiality and Computer Systems Agreement. The
Confidentiality and Computer Systems Agreement that Hedine signed effective
January 28, 1994 shall remain in full force and effect.
5. Nonsolicitation
Hedine shall not directly or indirectly solicit or entice, or attempt
to solicit or entice, any employee, consultant, customer, research collaborator
or corporate partner of ProCyte to cease his, her or its relationship with
ProCyte.
6. No Disparagement
Hedine shall not make any disparaging or negative remarks to anyone,
either inside or outside of ProCyte, about ProCyte or ProCyte's business,
business practices, products, patents, technology, marketing strategy, services,
policies, judgments, decisions, officers, directors or employees. ProCyte shall
not make any disparaging or negative remarks to anyone, either inside or outside
of ProCyte, about Hedine or Xxxxxx'x proposed business, business practices,
services, judgments or decisions.
7. General Release of Claims
Hedine expressly waives any claims against ProCyte and releases ProCyte
(including its officers, directors, shareholders, managers, agents and
representatives) from any claims that Hedine may have in any way arising out of
or connected with Xxxxxx'x employment with
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ProCyte. It is understood that this release includes, but is not limited to, any
claims for wages, bonuses, employment benefits, or damages of any kind
whatsoever, arising out of any contracts, express or implied, any covenant of
good faith and fair dealing, express or implied, any theory of wrongful
discharge, any legal restriction on ProCyte's right to terminate employees, or
any federal, state or other governmental statute or ordinance, including,
without limitation, Title VII of the Civil Rights Act of 1964, the federal Age
Discrimination in Employment Act, the Americans with Disabilities Act, the
Washington Law Against Discrimination, or any other legal limitation on the
employment relationship.
Hedine represents that she has not filed any complaints, charges or
lawsuits against ProCyte with any governmental agency or any court, and agrees
that she shall not initiate, assist or encourage any such actions.
This waiver and release shall not waive or release claims where the
events in dispute first arise after execution of this Agreement, nor shall it
preclude Hedine from filing a lawsuit for the exclusive purpose of enforcing
Xxxxxx'x rights under this Agreement.
8. Severability
The provisions of this Agreement are severable, and if any part of it
is found to be unlawful or unenforceable, the other provisions of this Agreement
shall remain fully valid and enforceable to the maximum extent consistent with
applicable law.
9. Revocation; Knowing and Voluntary Agreement
Hedine agrees she has been provided the opportunity to consider for
twenty-one (21) days whether to enter this Agreement and has voluntarily chosen
to enter this Agreement on this date. Hedine may revoke this Agreement for a
period of seven (7) days following execution of this Agreement; this Agreement
shall become effective following expiration of this seven (7) day period. Hedine
acknowledges that she is voluntarily executing this Agreement, that she has
carefully read and fully understands all aspect of this Agreement, that she has
not relied upon any representations or statements not set forth herein or made
by ProCyte's agent or representatives, that she has been advised to consult with
an attorney prior to executing this Agreement, and that, in fact, she has
consulted with an attorney of her choice as to the subject matter and effect of
this Agreement.
10. Consulting
For a period extending one year after the end of the Part-Time
Employment Period, Hedine shall, upon the reasonable request of ProCyte, and at
mutually agreed-upon times and places, provide part-time consulting services (as
an independent contractor) to ProCyte at the rate of $1,000 per day.
11. Entire Agreement
This Agreement sets forth the entire understanding between Hedine and
ProCyte and supersedes and cancels the Key Executive Severance Agreement dated
as of February 19, 1997 and any other prior agreements or understandings,
express or implied, with respect to the subject matter hereof, including the
terms of Xxxxxx'x part-time employment with ProCyte and the termination of her
relationship as an employee and officer.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
XXXXX XXXXXX PROCYTE CORPORATION
/s/ Xxxxx Xxxxxx By /s/ Xxxx X. Xxxxxxxx
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Xxxxx Xxxxxx
Title: President and Chief Executive Officer
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