SEPARATION AGREEMENT AND GENERAL RELEASE
EXHIBIT 10.47
This Separation Agreement and General Release (this “Agreement”) is made and entered into by
and between Xxxxx X. Xxxxx (“Xx. Xxxxx”) and Artes Medical, Inc., a Delaware corporation (the
“Company”), and inures to the benefit of each of the Company’s current, former and future parents,
subsidiaries, related entities, employee benefit plans and each of their respective fiduciaries,
predecessors, successors, officers, directors, stockholders, agents, attorneys, employees and
assigns.
RECITALS
A. Xx. Xxxxx has resigned (i) as an employee of the Company and from his position as Chief
Financial Officer and Executive Vice President and as a Section 16 officer of the Company; and (ii)
as Managing Director of the Company’s subsidiary, Artes Medical Germany GmbH (“AMG”), both
resignations to be effective as of May 6, 2008 (“Resignation Date”).
B. Xx. Xxxxx wishes to confirm his resignation from the Company and from AMG pursuant to the
terms and to enter into a Mutual General Release with the Company, on the terms and conditions set
forth herein.
C. Xx. Xxxxx and the Company wish permanently to resolve any and all disputes that may have
arisen between them to date, including but not limited to, any disputes arising out of the
cessation of Xx. Xxxxx’x service to the Company as an officer and employee.
AGREEMENT
THEREFORE, in consideration of the mutual promises and covenants contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is hereby agreed by and between Xx. Xxxxx, on the one hand, and the Company, on
the other, as follows:
1. Resignation. Xx. Xxxxx hereby irrevocably resigns as (a) an employee of the
Company and (b) Chief Financial Officer, Executive Vice President and a Section 16 officer of the
Company, and (c) as Managing Director of AMG, each to be effective as of the Resignation Date
following approval of this Agreement by the Board of Directors of the Company.
2. Press Release. Subject to the disclosure requirements applicable to the Company
under the rules and regulations promulgated by the Securities and Exchange Commission (the “SEC”),
the Company agrees to prepare and issue a press release regarding Xx. Xxxxx’x services to the
Company and his resignation as Chief Financial Officer and as an employee of the Company that is
acceptable to the Company and Xx. Xxxxx. The form of the press release is attached hereto as
Exhibit A. Xx. Xxxxx acknowledges and agrees that the Company will file a Form 8-K with
the SEC regarding his resignation from the Company.
3. Wages, Vacation Time, Expenses. Xx. Xxxxx and the Company agree that he had
accrued and unused vacation time of 239.06 hours as of the Resignation Date. The Company agrees to
pay Xx. Xxxxx for this accrued and unused vacation time on the next business day immediately following the
Effective Date of this Agreement (less federal and state withholding
and other applicable taxes). Xx. Xxxxx has been reimbursed by the Company for all reimbursable
business expenses incurred by him through the Resignation Date.
4. Termination Consideration. Contingent upon this Agreement becoming effective as
provided in Section 27 of this Agreement (the “Effective Date”), the Company agrees:
4.1 The Company will pay Xx. Xxxxx, as W-2 income, the equivalent of fifteen (15) months
salary, totaling Three Hundred Twelve Thousand, Five Hundred Dollars ($312,500), less all
applicable withholding and other applicable taxes, payable as follows:
(a) One Hundred Seventy Five Thousand Dollars ($175,000), less all applicable withholding and
other applicable taxes, on the next business day immediately following the Effective Date of this
Agreement; and
(b) Twenty-two Thousand Nine Hundred Sixteen Dollars and Sixty-six Cents ($22,916.66), less
all applicable withholding and other applicable taxes, on the next business day immediately
following the Effective Date of this Agreement and continuing on each of the next five consecutive
months payable on the first day of each month with the final payment on October 1 2008, for an
aggregate amount of One Hundred Thirty Seven Thousand Five Hundred Dollars ($137,500) (less all
applicable withholding and other applicable taxes). The amounts which remain payable under this
section 4.1(b) on and after the first payment is made hereunder shall be maintained in an escrow
account at one of the Company’s existing banking institutions.
4.2 Xx. Xxxxx will be entitled to additional vesting of his stock options as set forth on
Exhibit B subject to Board approval, expected to be received on May 6, 2008. As set forth on
Exhibit B, Xx. Xxxxx will have a total of 78,350 shares of common stock fully vested under his
outstanding stock options (the “Stock Options”) as of the Effective Date of this Agreement.
Subject to Board approval, Xx. Xxxxx shall have twenty-four (24) months after the Effective Date of
this Agreement to exercise his options. Xx. Xxxxx acknowledges and agrees that the extension of
the period in which he may exercise his vested option shares under his Stock Options from ninety
(90) days after the Effective Date of this Agreement to twenty four months to May 6, 2010 will have
the effect of automatically converting any of the Stock Options (other than those that are fully
vested as of the Effective Date) that are currently Incentive Stock Options (“ISO”) to
Non-Qualified Stock Options (“NSO”). The Stock Options held by Xx. Xxxxx and which are subject to
the extension of the exercise period described herein, are set forth on Exhibit B, attached
hereto and incorporated herein by this reference.
Xx. Xxxxx further acknowledges that ISOs and NSOs are treated differently under the tax laws.
For example, upon the exercise of a Stock Option following its conversion to an NSO, Xx. Xxxxx will
recognize immediate taxable income in an amount equal to the excess of (a) the fair market value of
the purchased shares at the time of exercise over (b) the aggregate exercise price paid for those
shares. This income will be subject to federal and state income and employment tax withholding,
even though Xx. Xxxxx is not an employee of the Company at the time of exercise. As a result, when
Xx. Xxxxx elects to exercise any Stock Option converted to an NSO, he will be required to deliver a
check to the Company not only for the exercise price of the purchased shares but also for the
applicable withholding taxes. Xx. Xxxxx acknowledges that he is solely responsible for seeking his
own legal and tax advice on such matters.
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4.3 The Company will pay or alternatively, reimburse Xx. Xxxxx upon reasonable proof of such
expenses, the COBRA premium(s) on Xx. Xxxxx’x behalf and his legal dependents for a period of
fifteen (15) months commencing on the date of Xx. Xxxxx’x separation of employment from the Company
(the “COBRA Period”); provided Xx. Xxxxx does not otherwise become eligible to participate in
another employer’s group insurance plan. If Xx. Xxxxx desires to continue his participation beyond
the end of the COBRA Period, and is eligible to continue his participation pursuant to COBRA, Xx.
Xxxxx agrees that he shall be fully responsible for making the necessary premium payments in order
to continue such coverage. Nothing herein shall be deemed to permit Xx. Xxxxx to continue
participating in any life insurance, long-term disability benefits, or accidental death and
dismemberment plans maintained by the Company after the date of his separation of employment from
the Company. Nothing herein shall limit the right of the Company to change the provider and/or the
terms of its group health insurance plans at any time hereafter.
4.5 Xx. Xxxxxxxxxxx X. Xxxxxxxx, the Company’s Chairman of the Board, will provide a letter of
positive reference on behalf of Xx. Xxxxx within five business days immediately following the
Effective Date of this Agreement for purposes of assisting him in obtaining future employment, the
contents and format of which shall be subject to Xx. Xxxxxxxx’x sole discretion.
5. Equity Holdings.
5.1 Stock. Xx. Xxxxx hereby acknowledges that he holds 10,000 shares of Common Stock
(collectively, the “Stock”).
5.2 Options. In addition, Xx. Xxxxx hereby acknowledges that he holds the Stock
Options to purchase the indicated shares of Common Stock at the indicated exercise price in the
table attached as Exhibit B.
5.3 Acknowledgement. Xx. Xxxxx acknowledges and agrees that the Stock listed in
Section 5.1 and the Stock Options to acquire shares of Common Stock listed in Section 5.2 sets
forth Xx. Xxxxx’x and Xx. Xxxxx’x spouse, executors, administrators, stockholders, assigns, and
successors, 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), and that
neither he nor his spouse, executors, administrators, stockholders, assigns and successors have any
right to acquire or purchase any additional shares of capital stock or rights or other securities
exercisable or convertible for the Company’s capital stock (collectively, the “Securities”).
6. Covenants. At all times on and after the Effective Date, Xx. Xxxxx shall to the
best of his ability, upon the reasonable request of the Company:
6.1 Reasonably assist and cooperate with the Company, and the Company’s agents, in completing
an audit of all past issuances of securities by the Company and evaluating and resolving all
potential claims related to rights to receive or ownership of the Company’s securities, which shall
include, but is not limited to, (a) providing the Company with full and timely disclosure and with
access to all available information related to the past issuances of the Company’s securities and
potential claims by third parties related to their rights to receive or ownership of the Company’s
securities (including claims by actual and potential investors,
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finders, placement agents, brokers, consultants, employees and directors), (b) assist the
Company in resolving any potential claims and disputes related to same; and (c) assist in preparing
and execute, under penalty of perjury, a disclosure report for the Company’s Audit Committee, which
contains representations and warranties by Xx. Xxxxx, regarding the Company’s past issuances of
securities and potential claims related to the rights of third parties to receive or their
ownership of the Company’s securities.
6.2 Reasonably assist and cooperate with the Company, and the Company’s agents, in responding
to any questions or issues related to the Company and/or its officers, directors, employees and
consultants during the time Xx. Xxxxx was employed by the Company raised by the U.S. Securities and
Exchange Commission, the Company’s auditors, the Company’s Board of Directors or any committee
thereof, the Company’s investment bankers, the Company’s legal counsel, or any other federal, state
or foreign regulatory body.
6.3 Reasonably assist and cooperate fully with the Company, and the Company’s agents, in
matters the Board has determined are necessary to comply with federal, state or foreign securities
laws.
6.4 Reasonably assist and cooperate with the Company, and the Company’s agents, in responding
to any questions or issues raised by the U.S. FDA or any similar foreign regulatory body; and not
to take any action that may potentially cause the Company or the Company’s clinical investigators,
Scientific Advisory Board members or customers to be in violation of the FDA’s rules and
regulations or the rules and regulations of any other federal, state or foreign regulatory agency
that has or may have in the future jurisdiction over the Company or its products.
6.5 The Company will reimburse Xx. Xxxxx for reasonable expenses incurred by him in response
to requests by the Company for assistance and cooperation on the matters referenced in this section
6, and shall compensate Xx. Xxxxx for time spent on such matters at the rate of $250 per hour.
7. General Release by Xx. Xxxxx. In consideration of the mutual promises and
covenants contained herein, Xx. Xxxxx for himself, his heirs, executors, administrators, assigns
and successors, fully and forever releases and discharges the Company and each of its current,
former and future parents, subsidiaries, related entities, employee benefit plans and each of their
respective fiduciaries, predecessors, successors, officers, directors, stockholders, attorneys,
agents, employees and assigns (collectively, the “Company Releasees”), with respect to any and all
claims, liabilities and causes of action, of every nature, kind and description, in law, equity or
otherwise, whether know or unknown, suspected or unsuspected, which have arisen, occurred or
existed at any time prior to the Effective Date of this Agreement, including, without limitation,
any and all claims, liabilities and causes of action arising out of or relating to Xx. Xxxxx’x
equity ownership in the Company, Xx. Xxxxx’x employment with the Company or the cessation of that
employment or Xx. Xxxxx’x service as an officer of the Company or the cessation of that service;
provided, however, that nothing herein shall release the Company Releasees from any obligations,
representations, warranties or other duties under this Agreement or impair the right or ability of
Xx. Xxxxx or any of the Xxxxx Releasees to enforce the terms thereof. Notwithstanding this
Agreement, however, nothing herein shall release the Company from any obligation to indemnify Xx.
Xxxxx as a former employee or officer, or relinquish any right to insurance coverage, in the
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event that some other party commences any form of legal proceeding relating to his employment
with the Company or his services as an officer.
8. General Release by the Company. In consideration of the mutual promises and
covenants contained herein, the Company and the Company Releasees fully and forever release and
discharge Xx. Xxxxx and his descendants, dependents, executors, administrators, attorneys and
agents (collectively, the “Xxxxx Releasees”), with respect to any and all claims, liabilities and
causes of action, of every nature, kind and description, in law, equity or otherwise, whether known
or unknown, suspected or unsuspected, which have arisen, occurred or existed at any time prior to
the Effective Date of this Agreement, including, without limitation, any and all claims,
liabilities and causes of action arising out of or relating to Xx. Xxxxx’x employment with the
Company or Xx. Xxxxx’x service as an officer of the Company; provided, however, that nothing herein
shall release the Xxxxx Releasees from any obligations, representations, warranties or other duties
under this Agreement or the Confidentiality and Proprietary Information Agreement signed by Xx.
Xxxxx during his employment with the Company or impair the right or ability of the Company or any
of the Company Releasees to enforce the terms thereof.
9. Knowing Waiver of Employment Related Claims. Xx. Xxxxx 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 any of the Company 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, retaliation, harassment, personal injury, physical
injury, emotional distress, claims for attorneys’ fees 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 1963, the
provisions of the California Labor Code and any other federal, state or local laws and regulations
relating to employment or the conditions of employment. Notwithstanding the foregoing, this
release shall not apply to any claims by Xx. Xxxxx for workers’ compensation benefits, unemployment
insurance benefits, or any other claims that he cannot lawfully waive by this Agreement. This
release shall also not affect or diminish any contractual or statutory rights that Xx. Xxxxx has to
indemnification for acts or omissions within the course and scope of his employment with the
Company, nor shall it affect or diminish Xx. Xxxxx’x rights to coverage under any applicable
insurance policies held by the Company or its officers and directors. Further, this Agreement does
not waive or release any rights or claims that Xx. Xxxxx may have under the Age Discrimination in
Employment Act that arise after the execution of this Agreement.
10. Waiver of Civil Code § 1542. The parties both agree to waive any and all rights
and benefits conferred upon each of them by Section 1542 of the Civil Code of the State of
California, which states as follows:
“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.”
Xx. Xxxxx (on his behalf and on behalf of the Xxxxx Releasees) expressly agrees and understands
that the release given by him pursuant to this Agreement applies to all unknown, unsuspected
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and unanticipated claims, liabilities and causes of action which Xx. Xxxxx may have against the
Company or any of the other Company Releasees.
The Company (on its behalf and on behalf of the Company Releasees) expressly agrees and understands
that the release given by it pursuant to this Agreement applies to all unknown, unsuspected and
unanticipated claims, liabilities and causes of action which the Company may have against Xx. Xxxxx
or any of the other Xxxxx Releasees.
11. Severability of Release Provisions. The parties agree that if any provision of
the release given by Xx. Xxxxx or the Company, respectively, under this Agreement is found to be
unenforceable, it will not affect the enforceability of the remaining provisions and the courts may
enforce all remaining provisions to the extent permitted by law.
12. Promise to Refrain from Suit or Administrative Action. Xx. Xxxxx represents that,
as of the Effective Date of this Agreement, he has not filed any lawsuits, complaints, petitions,
claims or other accusatory pleadings against the Company or any Company Releasees in any court of
law or before any government agency. Xx. Xxxxx further agrees that, to the fullest extent
permitted by law, he will not prosecute in any court, whether state or federal, any claim or demand
of any type related to the matters released above, it being the intention of the parties that with
the execution of this release, the Company and all Company Releasees will be absolutely,
unconditionally and forever discharged of and from all obligations to or on behalf of Xx. Xxxxx
related in any way to the matters discharged herein. Xx. Xxxxx waives his right to recover any
type of personal relief from the Company or any Company Releasees, including monetary damages or
reinstatement, in any administrative action or proceeding brought by or before any government
agency or body, whether state or federal, and whether brought by Xx. Xxxxx or on Xx. Xxxxx’x
behalf, related in any way to the matters released herein.
13. Confidentiality of Agreement and Nondisparagement. The parties both promise and
agree that, unless compelled by legal process, they will not disclose to others and will keep
confidential the facts and circumstances relating to Xx. Xxxxx’x employment with the Company, other
than as necessarily disclosed by the public filing of this Agreeement, and except Xx. Xxxxx 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. Xxxxx has
consulted such professional advisors. Xx. Xxxxx 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. The parties further
promise and agree never to disparage one another by making any oral or written statement which
tends to criticize or discredit the other.
14. No Injuries. Xx. Xxxxx acknowledges that he has not suffered any work-related
illnesses or injuries while employed by the Company.
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15. Non-Solicitation. Xx. Xxxxx agrees that for a period of one year following his
Resignation Date, he will not directly or indirectly solicit, entice, induce or attempt to induce
or influence any employee, independent contractor, vendor, or supplier of the Company to terminate
or alter his, his or its relationship with the Company, or accept employment at another company,
entity, or with Xx. Xxxxx.
16. Integrated Agreement. The parties acknowledge and agree that no promises or
representations were made to them concerning the subject matter of this Agreement which do not
appear written herein and that this Agreement contains the entire agreement of the parties on the
subject matter thereof. The parties further acknowledge and agree that parol evidence shall not be
required to interpret the intent of the parties.
17. Voluntary Execution. The parties hereby acknowledge that they have read and
understand this Agreement and that they sign this Agreement voluntarily and without coercion.
18. Waiver, Amendment and Modification of Agreement; Assignment. The parties agree
that no waiver, amendment or modification of any of the terms of this Agreement shall be effective
unless in writing and signed by all parties affected by the waiver, amendment or modification. No
waiver of any term, condition or default of any term of this Agreement shall be construed as a
waiver of any other term, condition or default. The rights and liabilities of the parties hereto
shall bind and inure to the benefit of their respective successors, heirs, executors and
administrators, as the case may be.
19. Representation by Counsel.
19.1 Xx. Xxxxx acknowledges and agrees that he has had the right and sufficient opportunity to
be represented by counsel of his own choosing. Xx. Xxxxx further acknowledges and agrees that he
is not relying on the Company or its outside legal counsel for legal advice regarding this
Agreement. The parties further acknowledge that they have entered into this Agreement voluntarily,
without coercion, and based upon their own judgment and not in reliance upon any representations or
promises made by the other party or parties, other than those contained within this Agreement. The
parties further agree that if any of the facts or matters upon which they now rely in making this
Agreement hereafter prove to be otherwise, this Agreement will nonetheless remain in full force and
effect.
19.2 Contingent upon this Agreement becoming effective as provided in Section 27 of this
Agreement, the Company agrees to reimburse Xx. Xxxxx for the legal fees paid to his legal counsel
for services rendered on his behalf in connection with his Resignation and this Agreement, provided
that Xx. Xxxxx or his counsel shall provide the Company redacted copies of such legal fee invoices;
and provided that the total amount of reimbursement for such fees shall not exceed $15,000 in any
event.
20. California Law. The parties agree that this Agreement and its terms shall be
construed under California law, without reference to rules of conflicts of law.
21. Drafting. The parties agree that this Agreement shall be construed without regard
to the drafter of the same and shall be construed as though each party to this Agreement
participated equally in the preparation and drafting of this Agreement.
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22. Counterparts. This Agreement may be signed in counterparts and said counterparts
shall be treated as though signed as one document.
23. Return of Company Property. Xx. Xxxxx shall return to the Company all of his
access keys and electronic passes to the Company’s premises, his Company laptops and computers, and
all Company data, documents, files, records, computer-recorded information and all copies thereof,
in whatever media, in his possession on or before the Effective Date, or sooner upon demand by the
Company therefore. Xx. Xxxxx specifically promises and agrees that he shall not retain copies
(electronic or otherwise) of any company data, documents, files, records or information following
the Effective Date of this Agreement. Xx. Xxxxx represents that he has already returned all
Company property as referenced, and the Company acknowledges receipt of his laptops and computers.
The parties agree that Xx. Xxxxx personally owns the blackberry he used at the time of his
Resignation.
24. Attorneys’ Fees. Subject to the provisions of Section 19.2 above, each party
shall be responsible for its own legal fees incurred in connection with the entering into of this
Agreement.
25. Period to Consider Terms of Agreement. Xx. Xxxxx acknowledges that this Agreement
was first presented to him on May 2, 2008 , 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. Xxxxx acknowledges that he understands that he should obtain the advice and counsel
from the legal representative of his choice before executing this Agreement, and that he executes
this Agreement having had sufficient time within which to consider its terms. Xx. Xxxxx 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. The parties both agree that any changes to
this Agreement negotiated between them after May 2, 2008 shall not require a new 21-day
consideration period.
26. Revocation of Agreement. Xx. Xxxxx understands that after executing this
Agreement, he has the right to revoke it within seven (7) days after his execution of it. Xx.
Xxxxx understands that this Agreement will not become effective and enforceable unless the seven
day revocation period passes and Xx. Xxxxx does not revoke the Agreement in writing. Xx. Xxxxx
understands that this Agreement may not be revoked after the seven day revocation period has
passed. Xx. Xxxxx 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.
27. Effective Date. This Agreement shall become effective on the eighth (8th) day
after execution by Xx. Xxxxx, so long as Xx. Xxxxx has not revoked it within the time and in the
manner specified in Section 26 of this Agreement.
28. Injunctive Relief; Consent to Jurisdiction. Xx. Xxxxx acknowledges and agrees
that damages will not be an adequate remedy in the event of a breach of any of his obligations
under this Agreement. Xx. Xxxxx therefore agrees that the Company shall be entitled (without
limitation of any other rights or remedies otherwise available to the Company and without the
necessity of posting a bond) to obtain an injunction from any court of competent jurisdiction
prohibiting the continuance or recurrence of any breach of this Agreement. Xx. Xxxxx hereby
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submits to the jurisdiction and venue in the federal district court for the Southern District
of California and in the courts of the State of California in San Diego County, California. Xx.
Xxxxx further agrees that service upon him in any such action or proceeding may be made by first
class mail, certified or registered, to Xx. Xxxxx’x address as last appearing on the records of the
Company.
29. Notice. Any notices provided hereunder must be in writing and such notices or any
other written communication shall be deemed effective: (i) upon personal delivery to the party to
be notified; (ii) when sent by confirmed telex or facsimile if sent during normal business hours of
the recipient or, if not sent during normal business hours, then on the next business day; (iii)
three days after having been sent by registered or certified mail, return receipt requested,
postage prepaid; or (iv) one day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. If notice is to be provided to
the Company, Xx. Xxxxx shall use the Company’s primary office location; and if notice is to be
provided to Xx. Xxxxx, the Company shall use Xx. Xxxxx’x address as listed in the Company’s payroll
records. Any payments made by the Company to Xx. Xxxxx under the terms of this Agreement shall be
delivered to Xx. Xxxxx either in person or at the address as listed in the Company’s payroll
records.
30. Arbitration. Any dispute or claim arising out of or in connection with this
Agreement will be finally settled by binding arbitration in San Diego, California in accordance
with the then-current employment rules of the American Arbitration Association by one (1)
arbitrator appointed in accordance with said rules. The arbitrator shall apply California law,
without reference to rules of conflicts of law or rules of statutory arbitration, to the resolution
of any dispute. Judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to any court of
competent jurisdiction for preliminary or interim equitable relief, or to compel arbitration in
accordance with this paragraph, without breach of this arbitration provision. If litigation,
arbitration or any other legal proceeding is instituted arising out of or in any way related to
this Agreement, the prevailing party shall be entitled to attorneys fees, expert fees, statutory
costs, and other actual costs.
31. Survival. Sections 1.1, 5.3, 6 and 7 though 30 shall survive termination or
expiration of this Agreement.
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THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND EACH
AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE VOLUNTARILY EXECUTED
THIS AGREEMENT ON THE DATES SHOWN BELOW.
| COMPANY: | ARTES MEDICAL, INC. |
|||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx X. Xxxxxxxx | ||||
| Chief Executive Officer | ||||
Dated: 5/04/08
| XX. XXXXX: | XXXXX X. XXXXX |
|||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
Dated: 5/04/08
[SIGNATURE PAGE TO SEPARATION AGREEMENT AND GENERAL RELEASE]
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Exhibit A
(Form of Press Release)
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Exhibit B
(Stock Options)
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