MUTUAL SETTLEMENT AND RELEASE AGREEMENT
Exhibit 10.33
This Agreement (“Agreement”) is entered into by and among Xxxxxx Xxxxxxx, an individual, and
Artes Medical, Inc., a Delaware corporation (“Artes Medical”). The individual and corporation
referred to above are at times hereinafter referred to as a “party” and are collectively referred
to as the “parties.”
WHEREAS, Xx. Xxxxxxx and Artes Medical are engaged in a dispute regarding the meaning and
enforceability of that certain Warrant, dated January 18, 2004 (“Warrant”); and
WHERAS, to avoid the uncertainty and expense of litigation, the parties would like to forever
resolve any disputes related to the Warrant and which otherwise may exist between them;
NOW THEREFORE, in consideration of the mutual covenants, promises, agreements, terms, and
conditions set forth below, the parties agree as follows:
1. The Recitals set forth above are included herein by reference as part of this Agreement
among the parties.
2. Artes Medical and Xx. Xxxxxxx agree as follows:
(a) The terms of the Warrant shall be interpreted to provide that Xx. Xxxxxxx vested in a
total of 117,647 shares of the Company’s Common Stock immediately prior to the closing of the
Company’s initial public offering on December 26, 2006 (the “IPO”).
(b) Xx. Xxxxxxx shall be deemed to have elected to purchase all 117,647 shares of Common Stock
through the net issuance provisions set forth in Section 3 of the
Warrant, and using the IPO price of $6.00 per share as the fair market value of the Company’s
Common Stock.
(c) As a result of the net issuance provisions, Xx. Xxxxxxx was entitled to receive an
aggregate of 34,313 shares of Common Stock. The Company has previously issued Xx. Xxxxxxx 7,603
shares of Common Stock under the Warrant, of which Xx. Xxxxxxx requested the Company to transfer
3,801 shares of Common Stock to Xxxxxxxxx & Xxxxxxx LLP.
(d) Upon the Effective Date, Xx. Xxxxxxx is entitled to receive an aggregate of 26,710 shares
of Common Stock from the Company (the “Shares”), as the balance of the shares of Common Stock he is
entitled to receive as a result of his exercise of his 117,647 vested shares of Common Stock
through the net issuance provisions of the Warrant.
(e) Xx. Xxxxxxx agrees that the Shares are subject to market stand-off restrictions that
provide that he can not sell (including, without limitation, any short sale) or otherwise transfer
or dispose of the Shares prior to June 17, 2007 (subject to such extension or extensions as may be
required by the underwriters in order to publish research reports while complying with the Rule
2711 of the National Association of Securities Dealers, Inc.). The Company may impose
stop-transfer instructions with respect to the Shares subject to the foregoing market stand-off
restrictions until the end of such market stand-off period.
(f) Any certificates for the Shares shall bear the legends (and no other legends) attached
hereto as Exhibit A. The Company has retained Mellon Investor
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Services, LLC (“Mellon”) to serve as its transfer agent and registrar, and has elected to use
Mellon’s Direct Registration System (“DRS”), a system for book-entry ownership that allows shares
of Artes Medical to be owned, recorded and transferred electronically without having a physical
stock certificate issued. Each stockholder may request a physical stock certificate at any time.
(g) Notwithstanding the market standoff agreement, Xx. Xxxxxxx has requested the Company, and
the Company agrees, to transfer 5,341 Shares to Xxxxxxxxx & Xxxxxxx LLP (with Xx. Xxxxxxx receiving
the balance of 21,369 Shares), subject to Xxxxxxxxx & Xxxxxxx LLP executing the Investor
Representation Agreement attached hereto as Exhibit B.
(h) To lessen the administrative work, the parties have agreed not to issue a stock
certificate to Xx. Xxxxxxx for the Shares, and require Xx. Xxxxxxx to return the certificate for
cancellation so that certain of the Shares may be transferred to Xxxxxxxxx & Xxxxxxx LLP as
outlined in (g) above. Xx. Xxxxxxx agrees that the Company shall have the appropriate number of
Shares registered to him and Xxxxxxxxx & Xxxxxxx LLP in the DRS System maintained at Mellon.
(i) The Company agrees that the Shares held by Xx. Xxxxxxx and Xxxxxxxxx & Xxxxxxx LLP are
eligible for sale pursuant to Rule 144(k) under the Securities Act of 1933, as amended, and that
such Shares shall be eligible for sale pursuant to Rule 144(k) at the expiration of the market
stand-off restrictions on June 17, 2007; provided that Xx. Xxxxxxx and Xxxxxxxxx & Xxxxxxx LLP do
not become an Affiliate of the Company (as defined in Rule 144) prior to June 17, 2007.
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(j) The parties each agree that the Warrant shall terminate and be of no further force or
effect as of the Effective Date of this Agreement, and Xx. Xxxxxx shall have no further rights
under the Warrant, and Artes Medical shall have no further obligations under the Warrant, except
for the receipt or issuance, as applicable, of the Shares as required by this Section 2.
(k) All share numbers and exercise prices in this Section 2 reflect the 4.25 for one (4.25:1)
reverse split of the Company’s Common Stock, which the Company effected in connection with the
closing of its IPO.
3. In consideration of the releases provided for in this Agreement, Artes Medical shall:
(a) Within two calendar days of the Effective Date, pay Xx. Xxxxxxx the total sum of Two
Hundred and Fifty Thousand Dollars ($250,000.00), by cashier’s or certified check made payable to
“Xxxxxxxxx & Xxxxxxx LLP Trust Account” (the “Cash Payment”); and
(b) Issue Xx. Xxxxxxx a warrant to purchase up to 25,000 shares of Common Stock (the “New
Warrant”) at an exercise price $8.07 per share. The New Warrant shall be in the form attached
hereto as Exhibit C.
4. Xx. Xxxxxxx acknowledges and agrees that he shall be solely responsible for any and all tax
obligations, including but not limited to, all state and federal income taxes, social security
withholding tax and other employment taxes, arising from Artes Medical’s issuance of the Shares
(including the Shares issued to Xxxxxxxxx & Xxxxxxx LLP), the Cash Payment and the New Warrant. At
Xx. Xxxxxxx’x request, Artes Medical
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shall prepare and issue Form 1099s within 2 calendar days of the Effective Date as follows:
(i) a Form 1099 to Xx. Xxxxxxx for the Shares (including any Shares issued to Xxxxxxxxx & Xxxxxxx
LLP) and (ii) a Form 1099 to Xxxxxxxxx & Xxxxxxx LLP Trust Account for the Cash Payment. Xx.
Xxxxxxx acknowledges and agrees that Artes Medical has not withheld or paid any taxes on his behalf
or on behalf of the Xxxxxxxxx & Xxxxxxx LLP Trust Account for the Shares, the Cash Payment or the
New Warrant. Further, Xx. Xxxxxxx agrees that should there ever be a re-characterization of the
tax liability for the Shares, the Cash Payment or the New Warrant such that Artes Medical is liable
to a taxing authority for tax or penalties associated with a failure to withhold taxes, Xx. Xxxxxxx
agrees to indemnify, hold harmless and defend Artes Medical against such liability and reimburse
Artes Medical for all such taxes, interest, penalties, attorneys’ fees and costs Artes Medical may
be required to pay on his behalf or on behalf of the Xxxxxxxxx & Xxxxxxx LLP Trust Account.
5. Each party shall negotiate in good faith and execute any further documents as may be
necessary to accomplish the full settlement and release as contemplated by this Agreement.
6. Xx. Xxxxxxx acknowledges and agrees that the Shares and the New Warrant to be issued by the
Company pursuant to the terms of this Agreement represent his entire interest in or right to
acquire the capital stock of the Company (or rights or other securities exercisable or convertible
into the capital stock of the Company).
7. Each party hereto shall bear his/its own attorneys’ fees and costs in connection with this
Agreement and the released matters referred to herein.
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8. In consideration of the above, the parties do, jointly and severally for themselves and
their respective heirs, executors, administrators, successors, and assigns, fully and forever
release, discharge and acquit each other party (the “Other Party”) and the Other Party’s respective
stockholders, directors, officers, employees, agents, insurers, attorneys, servants, brokers,
independent contractors, family members, lenders, successors, assigns, heirs, executors,
administrators, counsel, and each of them (including in all cases past, current and future
stockholders, directors, officers, employees, agents, insurers, attorneys, servants, brokers,
independent contractors, family members, lenders, successors, assigns, heirs, executors,
administrators, counsel) (the “Other Party’s Releasees”) of and from any and all claims,
liabilities and causes of action, of every nature, kind and description, in law, equity and
otherwise, the party may now or hereafter have, whether known or unknown, including without
limitation, any and all claims, liabilities and causes of action arising out of or relating to Xx.
Xxxxxxx’x employment with Artes Medical, the termination of Xx. Xxxxxxx’x employment, the Warrant,
Xx. Xxxxxxx’x Employment Agreement, dated January 18, 2004, patent applications previously or in
the future filed by Xx. Xxxxxxx (subject to Section 29 below), and any other topic whatsoever to
the extent permitted by law; provided, however, that nothing herein shall release the Other Party
or the Other Party’s Releasees from any of their obligations, representations, warranties or other
duties under this Agreement.
9. [Reserved]
10. Each party agrees that if any provision of the release given by such party under this
Agreement is found to be unenforceable, it will not affect the enforceability of
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the remaining provisions and the courts may enforce all remaining provisions to the extent
permitted by law.
11. Xx. Xxxxxxx promises and agrees that he will never xxx the Company or any of the Company’s
Other Party Releasees or Drs. Xxxxxx Xxxxxxxx and Xxxxxxxxx Xxxxxxxx, or otherwise institute or
participate in any legal or administrative proceedings against the Company or any of the Company’s
Other Party Releasees or Drs. Xxxxxx Xxxxxxxx and Xxxxxxxxx Xxxxxxxx, with respect to any claim
covered by the release provisions of this Agreement. The Company promises and agrees that it will
never xxx Xx. Xxxxxxx or Xx. Xxxxxxx’x Other Party Releasees, or otherwise institute or participate
in any legal or administrative proceedings against Xx. Xxxxxxx or any of Xx. Xxxxxxx’x Other Party
Releasees, with respect to any claim covered by the release provisions of this Agreement.
12. Xx. Xxxxxxx understands and agrees that he is waiving any and all rights he may have had,
now has, or in the future may have, to pursue against the Company or any of the Company’s Other
Party Releasees any and all remedies available to him under any employment-related causes of
action, including without limitation, claims of wrongful discharge, breach of contract, breach of
the covenant of good faith and fair dealing, fraud, violation of public policy, defamation,
discrimination, personal injury, physical injury, emotional distress, claims under Title VII of the
Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act, the Americans With
Disabilities Act, the Federal Rehabilitation Act, the Family and Medical Leave Act, the California
Fair Employment and Housing Act, the California Family Rights Act, the Equal Pay Act of
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1963, the provisions of the California Labor Code and any other federal, state or local laws
and regulations relating to employment, conditions of employment and/or employment discrimination.
Notwithstanding the foregoing, nothing in this Agreement affects Xx. Xxxxxxx’x right to
indemnification pursuant to California Labor Code Section 2802, or prohibits Xx. Xxxxxxx from
filing a charge with any relevant Federal, State or local administrative agency, but Xx. Xxxxxxx
agrees not to participate in, and agrees to waive his rights with respect to any monetary or other
financial relief arising from any such administrative proceeding.
13. This Agreement is intended to include and be construed as a full and complete mutual
release of any and all known and unknown claims by and between the respective Parties. It is
understood and agreed that all rights under section 1542 of the California Civil Code and any
similar law of any state or territory of the United States are hereby expressly waived. Said
section reads as follows:
“1542. GENERAL RELEASE – CLAIMS EXTINGUISHED. A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR”.
14. It is further understood that this Agreement includes a compromise of disputed claims,
that this Agreement is not to be construed as an admission of liability or exoneration on the part
of any Party, and that the Parties specifically deny any liability and intend merely to avoid
litigation and buy their peace.
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15. The parties acknowledge that they, or any of them, may hereafter discover facts different
from, or in addition to, those now known or believed to be true with respect to any matter released
herein and hereby expressly agree to assume the risk of the possible discovery of additional or
different facts, and agree that this Agreement shall be and remain effective in all respects
regardless of such additional or different facts.
16. It is understood and agreed that in executing this Agreement, the parties have relied
wholly upon their own respective judgment, belief, and knowledge of the nature, extent, effect, and
duration of their respective damages, loss, expense, or injuries and liability therefore, and this
Agreement is executed without reliance upon any statement or representation of or by the released
parties or their representatives. The parties further declare and represent that no promise,
inducement, or agreement not herein expressed has been made to the parties. This Agreement
contains the entire agreement and compromise among the parties regarding the matters set forth
herein.
17. The parties acknowledge that the terms of this Agreement have been completely read and
explained to them by their respective attorney(s) of their choice, and that its terms are fully
understood and voluntarily accepted by the parties.
18. The parties represent and warrant that no person or entity, other than the undersigned
has, or has had, any interest in the claims, demands, obligations, damages, causes of action, or
other matters, released herein, that the undersigned have the right and authority to execute this
Agreement, and that they have not sold, assigned, transferred, conveyed, or otherwise disposed of
any of the claims, demands, obligations, or causes of action released herein.
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19. This Agreement shall be construed and interpreted in accordance with the laws of the State
of California. The parties understand and acknowledge that each of them has had the opportunity to
contribute to the drafting of this Agreement and agree that no provision hereof shall be construed
against any party as being the draftsman.
20. In the event a dispute arises to interpret or enforce the provisions of this Agreement,
such dispute shall be arbitrated, following the same arbitration procedures set forth in Xx.
Xxxxxxx’x Employment Agreement, dated January 18, 2004.
21. In the event an action is commenced by either party against the other to interpret or
enforce any of the provisions of this Agreement, the prevailing party shall be entitled to recover
from the other party reasonable attorneys’ fees, costs and necessary disbursements incurred in
connection with such action.
22. No modification or waiver of any term of this Agreement shall be valid unless in writing
and signed by the parties hereto. No waiver of any breach hereof shall be deemed a waiver of any
subsequent breach or default of the same or similar nature.
23. This Agreement shall be binding upon and shall inure to the benefit of all parties and
their heirs, executors, administrators, successors, and assigns.
24. Xx. Xxxxxxx acknowledges that this Agreement was first presented to him on March 14, 2007,
that the terms of this Agreement have been negotiated by counsel for both parties, and that he is
entitled to have 21 days’ time in which to consider the Agreement. Xx. Xxxxxxx acknowledges that
he understands that he has the right to obtain the advice and counsel from the legal representative
of his choice, and that he executes this Agreement having had sufficient time within which to
consider its terms. Mr.
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Xxxxxxx represents that if he executes this Agreement before 21 days have elapsed, he does so
voluntarily, and that he voluntarily waives any remaining consideration period.
25. Xx. Xxxxxxx understands that after executing this Agreement, he has the right to revoke it
within seven (7) days after his execution of it. Xx. Xxxxxxx understands that this Agreement will
not become effective and enforceable unless the seven day revocation period passes and Xx. Xxxxxxx
does not revoke the Agreement in writing. Xx. Xxxxxxx understands that this Agreement may not be
revoked after the seven day revocation period has passed. Xx. Xxxxxxx understands that any
revocation of this Agreement must be made in writing and delivered to the Company (to the attention
of the Company’s Chief Legal Officer) within the seven day period, and that if he does so revoke
the Agreement, he shall not be entitled to receive any of the benefits described herein. This
Agreement does not waive or release any rights or claims Xx. Xxxxxxx may have under the Age
Discrimination in Employment Act that arise after the execution of this Agreement.
26. This Agreement shall become effective on the eighth (8th) day after execution by Xx.
Xxxxxxx, so long as Xx. Xxxxxxx has not revoked it within the time and in the manner specified in
Section 25 of this Agreement, referred to herein as the “Effective Date.”
27. Xx. Xxxxxxx agrees that he will not (directly or indirectly) make any voluntary
statements, written or verbal, or cause or encourage others to make any such statements that
defame, disparage or in any way criticize the reputation, business practices or conduct of the
Company or the Company’s Other Party Releasees. The
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Company agrees that it will not (directly or indirectly) make any voluntary statements,
written or verbal, or cause or encourage others to make any such statements that defame, disparage
or in any way criticize the reputation, business practices or conduct of Xx. Xxxxxxx or Xx.
Xxxxxxx’x Other Party Releasees.
28. Xx. Xxxxxxx promises and agrees that, unless compelled by legal process, he will not
disclose to others and will keep confidential both the fact of and the terms of this Agreement,
including the amounts referred to in this Agreement, except that he may disclose this information
to his spouse and to his attorneys, accountants and other professional advisors to whom the
disclosure is necessary to accomplish the purposes for which Xx. Xxxxxxx has consulted such
professional advisors. Xx. Xxxxxxx expressly promises and agrees that, unless compelled by legal
process, he will not disclose to any present or former employees of the Company the fact or the
terms of this Agreement. Similarly, the Company promises and agrees that, unless required under
the rules and regulations of the SEC (as determined by the Company based on the advice of its
corporate counsel) or compelled by legal process, it will not disclose to others and will keep
confidential both the fact of and the terms of this Agreement, including the amounts referred to in
this Agreement, except that it may disclose this information to its attorneys, accountants and
other professional advisors to whom the disclosure is necessary to accomplish the purposes for
which the Company has consulted such professional advisors.
29. Notwithstanding the releases above or anything to the contrary herein, Xx. Xxxxxxx
acknowledges that he is a party to and covenants to remain bound by the terms
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and conditions of that certain Confidentiality Agreement, dated August 27, 2003, by and
between the Company and him, and attached hereto as Exhibit D. Xx. Xxxxxxx represents and
warrants that he does not have an ownership interest in, any licensed rights to or any other claims
to the Company’s intellectual property rights (other than as a stockholder and provided, further,
that the Company’s intellectual property shall not include any intellectual property that was
independently developed by Xx. Xxxxxxx without any use of and without reference to the Company’s
confidential information as demonstrated by Xx. Xxxxxxx’x records created at the time of such
independent development), and that any patent(s) or patent application(s) in which he is listed as
one of the inventors was not made, conceived, reduced to practice or developed (in whole or in
part, either alone or jointly with others) during the time he provided services to the Company, and
any such patent(s) or patent application(s) are not based on or derived from the Company’s
confidential information that he obtained during his services to the Company.
30. Copies of this Agreement signed in counterparts and transmitted by fax shall operate as
originals.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates below:
/s/ Xxxxxx Xxxxxxx |
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Xxxxxx Xxxxxxx, an Individual
|
| Date: | March 27, 2007 |
ARTES MEDICAL, INC.
| By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx, Executive Vice President and Chief Financial Officer |
| Date: | April 2, 2007 |
[Signature Page to Mutual Settlement and Release Agreement]
APPROVED AS TO FORM.
XXXXXXXXX & XXXXXXX LLP
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx Attorneys for Xxxxxx Xxxxxxx |
| Date: | March 27, 2007 |
XXXXXX XXXXXX LLP
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx Attorneys for Artes Medical, Inc. |
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Xxxxxx X. Xxxxxxxxx Attorneys for Artes Medical, Inc. |
| Date: | April 2, 2007 |
[Signature Page to Mutual Settlement and Release Agreement]
Exhibit A
Stock Legends
The securities represented by this DRS Stock Distribution System Statement
or stock certificate have not been registered under the Securities Act of 1933,
as amended (the “Act”), or the securities laws of any state. These securities
may not be sold, offered for sale, pledged or hypothecated unless (i) there is
a registration statement in effect with respect to such securities under the
Act, (ii) the Issuer has received an opinion of counsel reasonably satisfactory
in form and content to the Issuer that such registration is not required or
(iii) the securities are sold pursuant to Rule 144 of the Act. |
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The securities represented by this certificate DRS Stock Distribution System
Statement or stock are subject the terms and conditions of an agreement with
the Issuer entered into by the original holder of such securities, providing
for, among other things, a lock-up period of up to 180 days after the effective
date of the Issuer’s registration statement filed under the Securities Act of
1933, as amended, and may not be offered for sale, sold, contracted for sale,
pledged or otherwise disposed of prior to June 17, 2007 without the consent of
the Issuer. A copy of such agreement may be obtained from the Issuer without
charge upon request. Such lock-up period is binding on transferees of these
securities. |
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A full statement of the rights, preferences, privileges and restrictions
granted or imposed upon the respective classes and series of shares of the
Issuer and upon the holders thereof are set forth in Article IV of the Issuer’s
Amended and Restated Certificate of Incorporation. A copy of such Amended and
Restated Certificate of Incorporation may be obtained from the Issuer without
charge upon request. |
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Exhibit B
Investor Representation Agreement
INVESTOR REPRESENTATION AGREEMENT
March 30, 2007
Artes Medical, Inc.
0000 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxx, XX 00000
0000 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the 5,341 shares of Common Stock of Artes Medical, Inc., a Delaware
corporation (the “Company”), issued by the Company (the “Securities”), which Xxxxxxxxx & Xxxxxxx
LLP (“H&C”) is acquiring pursuant to the Mutual Settlement and Release Agreement between the
Company and Xxxxxx Xxxxxxx (“Xxxxxxx”).
This will confirm to the Company that H&C will take the Securities subject to and hereby
assumes and accepts all the terms and conditions, provisions, rights and obligations contained in
all written agreements between the Xxxxxxx and the Company concerning the Securities, including,
without limitation, market stand-off restrictions that provide that H&C can not sell (including,
without limitation, any short sale) or otherwise transfer or dispose of the Securities prior to
June 17, 2007 (subject to such extension or extensions as may be required by the underwriters in
order to publish research reports while complying with the Rule 2711 of the National Association of
Securities Dealers, Inc.).
H&C hereby confirms to the Company that (i) it is an “accredited investor” within the meaning
of Regulation D promulgated under the Securities Act of 1933 (the “Act”); (ii) it has such
knowledge and experience in financial, tax, and business matters so as to utilize information made
available to it in order to evaluate the merits and risks of an
investment decision with respect thereto; (iii) it has had the opportunity to ask questions
and receive and review such answers and information concerning the Company as it has deemed
pertinent; (iv) it is not relying on the Company respecting the tax and other economic
considerations of an investment in the Company; (v) it is acquiring the Securities solely for its
own account for investment and not with a view to resale or distribution; (vi) it agrees to be
bound by all of the terms and conditions, provisions, rights and obligations of the above
referenced agreements as if H&C was Xxxxxxx and (vii) it will abide by all of the transfer
restrictions on the Securities resulting from the above referenced agreements, including without
limitation, any market stand-off provisions.
It is H&C’s understanding that the certificate evidencing the Securities will bear legends
which restrict the sale, transfer or other disposition of the Securities.
| Very truly yours, XXXXXXXXX & XXXXXXX LLP |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx | ||||
Exhibit C
New Warrant
