EXHIBIT 10.1
Redacted Version
EMPLOYMENT AGREEMENT
BY AND BETWEEN
PROCYTE CORPORATION
AND
XXX XXXXXX
DATED AS OF APRIL 27, 1998
"[ * ]" = omitted, confidential material, which material has been
separately filed with the Securities and Exchange Commission pursuant to a
request for confidential treatment.
CONTENTS
1. Employment.......................................... 1
2. Attention and Effort................................ 2
3. Term................................................ 2
4. Compensation........................................ 2
4.1 Base Salary.................................... 2
4.2 Bonus.......................................... 3
4.3 Key Employee Earnout........................... 3
4.4 Election to Board of Directors................ 4
4.5 Stock Options.................................. 4
5. Benefits............................................ 4
6. Termination......................................... 5
6.1 By The Company................................. 5
6.2 By The Executive............................... 5
6.3 Automatic Termination.......................... 5
6.4 Notice......................................... 5
7. Termination Payments................................ 6
7.1 Termination by the Company..................... 6
7.2 Termination by Executive....................... 6
7.3 Expiration of Term............................. 6
7.4 Payment Schedule............................... 7
7.5 Cause.......................................... 7
8. Noncompetition, Nonsolicitation, and Confidentiality 7
8.1 Applicability.................................. 7
8.2 Noncompetition................................. 7
8.3 Nonsolicitation................................ 8
8.4 Assignment of Intellectual Property............ 8
8.5 Disclosure and Protection of Inventions........ 9
8.6 Nondisclosure; Return of Materials............. 9
8.7 Enforcement of Covenants; Equitable Relief.....10
8.8 Effect of Violation............................10
8.9 Definition of the Company......................11
9. Representations and Warranties......................11
9.1 No Violation of Other Agreements...............11
9.2 Patents, Etc...................................11
10. Change of Control and Indemnification Agreements....11
11. Notice and Cure of Breach...........................11
12. Form of Notice......................................12
13. Assignment..........................................12
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14. Waivers.............................................13
15. Arbitration.........................................13
16. Amendments in Writing...............................14
17. Governing Law.......................................14
18. Severability........................................14
19. Headings............................................14
20. Counterparts........................................14
21. Entire Agreement....................................15
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EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of this 27th day of
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April, 1998, between ProCyte, a Washington corporation (the "Company"), and Xxx
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Tapman (the "Executive").
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RECITALS
A. The Company and HumaTech Corp, a Florida corporation ("HumaTech") are
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parties to that certain Purchase and Sale Agreement dated as of April 27, 1998
(the "Purchase Agreement") pursuant to which the Company will acquire from
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HumaTech substantially all of the assets of HumaTech in exchange for cash and
Company common stock.
B. The Executive is knowledgeable and experienced in the business to be
acquired by the Company from HumaTech. Therefore, the Company desires to employ
the Executive, and the Executive desires to accept such employment, upon and
subject to the terms and conditions contained in this Agreement.
C. It is a condition of the consummation of the transactions contemplated
by the Purchase Agreement that the Company and the Executive enter into this
Agreement.
D. As a result of the employment of Executive hereunder, Executive will
become thoroughly familiar with the Company's affairs, trade secrets, customers,
potential customers, markets, operations, business and other proprietary
information on the date hereof, and could effectively compete against the
Company as a result of such knowledge. It is critical to the financial position
and other interests of the Company that the Executive not compete with the
Company as set forth herein.
AGREEMENTS
NOW, THEREFORE, for and in consideration of the foregoing premises and for
other good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, the parties hereby agree as follows:
1. EMPLOYMENT
The Company will employ Executive and Executive will accept employment by
the Company as its Vice President of Strategic Development, or in such other
executive position which is mutually agreed to with the President of the Company
(the "President"). Executive will have such authority, subject to the
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Company's Articles of Incorporation and Bylaws, as may be granted from time to
time by the President. Executive will perform the duties assigned in the
Company's Bylaws and such other duties as may be mutually agreed from time to
time by the Executive and the President, which relate to the business of the
Company, its subsidiaries, or any business venture in which the Company or its
subsidiaries may participate.
2. ATTENTION AND EFFORT
Executive will devote all of his entire productive time, ability, attention
and effort to the Company's business and will skillfully serve its interests
during the term of this Agreement. Executive agrees that, during his employment
hereunder, he will not undertake without the prior written consent of the
Company any outside activity, whether or not competitive with the business of
the Company, that could reasonably give rise to a conflict of interest or
otherwise interfere with his duties and obligations to the Company.
Executive acknowledges that employment with the Company and performance of
his duties set forth herein may require relocation of the Executive to Seattle,
Washington at any time during the term of this Agreement, provided that in the
event of such relocation, the Company shall pay the Executive's reasonable
moving expenses.
3. TERM
Unless otherwise terminated pursuant to Section 6 of this Agreement,
Executive's term of employment under this Agreement shall expire two (2) years
from the date hereof.
4. COMPENSATION
During the term of this Agreement, the Company agrees to pay or cause to be
paid to Executive, and Executive agrees to accept in exchange for the services
rendered hereunder by him, the following compensation:
4.1 BASE SALARY
Executive's compensation shall consist, in part, of an annual salary of
Seventy-Five Thousand Dollars ($75,000) before all customary payroll deductions.
Such annual salary shall be paid in substantially equal installments and at the
same intervals as other officers of the Company are paid. The Board of
Directors based on the
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recommendation of the President shall determine in its sole discretion any
increases in the amount of the annual salary.
4.2 BONUS
Executive is entitled to receive, in addition to the annual salary
described above, an annual bonus in the amount of $25,000 for each year of the
two-year term of this Agreement. Thereafter, Executive shall participate in the
regular Company executive bonus program. In addition, a separate bonus of
$37,500 for each year of the two-year term of this Agreement shall be paid if
the Net Twelve-Month Sales Target for such year as set forth in Section 4.3(a)
is achieved.
4.3 KEY EMPLOYEE EARNOUT
(a) Two additional payments to Executive ("Earnout Payments") shall be made
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within thirty (30) days after the first and second anniversaries of the date
hereof if the following sales targets for the two twelve (12) month periods
following the date hereof for HumaTech Products are met and if Executive remains
in the employment of the Company for each period. For purposes of this Section
4.3, "HumaTech Products" means all hair care (such as Tricomin) and skin care
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(such as Complex cu3 or Pillo Pro) products sold by the Company except wound
care products sold by Bard Medical or other licensees, Tricomin products sold to
the GraftCyte accounts set forth on Schedule 3, skin care products sold by
Osmotics or other licensees, and GraftCyte-branded products.
Minimum Net Minimum Net
Number Twelve-Month Sales to Earn
Anniversary Earnout Payment/(1)/ of Shares/(1)/ Sales Target Prorated Amount
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First $100,000 40,000 [ * ] [ * ]
Second $100,000 20,000 [ * ] [ * ]
(1) Subject to proration if twelve-month sales are less than target, but above
minimum sales level.
(b) Any Earnout Payment shall be paid, at the election of the Company,
either in cash or in Purchaser common stock valued on the basis of the 20-
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[ * ] Confidential Treatment Requested
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day average of the closing prices ending with the eighth business day after the
end of the 12-month period; provided however that the Earnout Payment, if paid
in Company common stock, will in no case be less than the number of shares set
forth in the table above, as adjusted.
(c) The Earnout Payments and minimum number of shares will be prorated
(i) in the case of any Earnout Payment for the first twelve months, based on the
portion of the net sales revenue above [ * ] and less than [ * ], but no Earnout
Payment will be made if net sales revenues are less than [ * ] and (ii) in the
case of any Earnout Payment for the second twelve months, based on the portion
of the net sales revenue above [ * ] and less than [ * ], but no such Earnout
Payment will be made if net sales revenues are less than [ * ] No second
Earnout Payment will be made if net sales for the second twelve months are less
than 90% of net sales for the first twelve months. If the net Twelve-Month
Sales Target for the first 12-month period is not achieved but is more than [ *
], then the Net Twelve-Month Sales Target for the second 12-month period shall
continue to be [ * ] and the shortfall from the first 12-month period can be
earned to the extent the sales for the second 12-month period exceed [ * ] up to
the amount of such shortfall.
4.4 ELECTION TO BOARD OF DIRECTORS
If the Executive is elected to and agrees to serve as a director of the
Board of Directors pursuant to Section 6.2 of the Purchase Agreement, Executive
shall serve in that capacity without further compensation.
4.5 STOCK OPTIONS
Subject to the discretion of the Board of Directors, Executive shall be
eligible to receive a stock option for One Hundred Thousand (100,000) shares of
Company common stock under the Company's 1989 Restated Stock Option Plan (the
"Plan"). The option, if granted, shall be subject to two-year vesting from the
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effective date of the grant (with a one-half of the shares to vest on each
anniversary of the date of grant) and to all the terms and conditions of the
Plan.
5. BENEFITS
During the term of this Agreement, Executive will be entitled to
participate in, subject to and in accordance with applicable eligibility
requirements, such fringe benefit programs as may be provided from time to time
by, to the extent required,
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[ * ] Confidential Treatment Requested
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action of the Board of Directors (or any person or committee appointed by the
Board of Directors to determine fringe benefit programs and other emoluments).
Executive will be eligible for fifteen (15) days of vacation per year.
6. TERMINATION
Employment of Executive pursuant to this Agreement may be terminated as
follows, but in any case, the provisions of Section 8 hereof shall survive the
termination of this Agreement and the termination of Executive's employment
hereunder:
6.1 BY THE COMPANY
With or without Cause (as defined below), the Company may terminate the
employment of Executive at any time during the term of employment upon giving
Notice of Termination (as defined below).
6.2 BY THE EXECUTIVE
The Executive may terminate his employment hereunder at any time upon
giving Notice of Termination if the Board of Directors substantially reduces the
duties or responsibilities of the Executive.
6.3 AUTOMATIC TERMINATION
This Agreement and Executive's employment hereunder shall terminate
automatically upon the death or total disability of Executive. The term "total
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disability" as used herein shall mean Executive's inability to perform the
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duties set forth in Section 1 hereof for a period or periods aggregating 90
calendar days in any 12-month period as a result of physical or mental illness,
loss of legal capacity or any other cause beyond Executive's control, unless
Executive is granted a leave of absence by the President. Executive and the
Company hereby acknowledge that Executive's ability to perform the duties
specified in Section 1 hereof is of the essence of this Agreement. Termination
hereunder shall be deemed to be effective (a) at the end of the calendar month
in which Executive's death occurs or (b) immediately upon a determination by the
President of Executive's total disability, as defined herein.
6.4 NOTICE
The term "Notice of Termination" shall mean written notice of termination
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of Executive's employment given at least sixty days(60) days in advance of the
termination date ("Termination Date"), during which period Executive's
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employment and performance of services will continue; provided, however, that
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the Company may,
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upon notice to Executive and without reducing Executive's compensation during
such period, excuse Executive from any or all of his duties during such period.
The effective date of the termination of Executive's employment hereunder shall
be the Termination Date or the date on which such 60 day period expires,
whichever is later.
7. TERMINATION PAYMENTS
In the event of termination of the employment of Executive, all
compensation and benefits set forth in this Agreement shall terminate except as
specifically provided in this Section 7:
7.1 TERMINATION BY THE COMPANY
If the Company terminates Executive's employment without Cause prior to the
end of the term of this Agreement or if Executive terminates his employment
pursuant to Section 6.2, Executive shall be entitled to receive (a) the annual
salary, bonuses, and Earn Out Payments Executive would have received if his
employment hereunder had continued until the end of the term of this Agreement
and (b) any unpaid annual salary which has accrued for services already
performed as of the date termination of Executive's employment becomes
effective. If the Company terminates Executive's employment without Cause prior
to the end of the term of this Agreement or if Executive terminates his
employment pursuant to Section 6.2, then Executive may waive his right to
receive the payments under (a) above and be released from all obligations under
Section 8.2 by giving the Company notice of such election within ten days after
such termination. If Executive is terminated by the Company for Cause,
Executive shall not be entitled to receive any of the foregoing benefits, other
than those set forth in clause (b) above.
7.2 TERMINATION BY EXECUTIVE
In the case of the termination of Executive's employment by Executive
(other than pursuant to Section 6.2), Executive shall not be entitled to any
payments hereunder, other than those set forth in clause (b) of Section 7.1
hereof.
7.3 EXPIRATION OF TERM
In the case of a termination of Executive's employment as a result of the
expiration of the term of this Agreement, Executive shall not be entitled to
receive any payments hereunder, other than those set forth in clause (b) of
Section 7.1 hereof.
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7.4 PAYMENT SCHEDULE
All payments under this Section 7 shall be made to Executive at the same
interval as payments of salary were made to Executive immediately prior to
termination.
7.5 CAUSE
Wherever reference is made in this Agreement to termination being with or
without Cause, "Cause" shall include, without limitation, the occurrence of one
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or more of the following events:
(a) Failure or refusal to carry out the lawful duties of Executive
described in Section 1 hereof or any directions of the Board of Directors,
which directions are reasonably consistent with the duties herein set forth
to be performed by Executive;
(b) Violation by Executive of a state or federal criminal law
involving the commission of a crime against the Company or a felony;
(c) Current use by Executive of illegal substances; deception, fraud,
misrepresentation or dishonesty by Executive; any incident materially
compromising Executive's reputation or ability to represent the Company
with the public; any act or omission by Executive which substantially
impairs the Company's business, good will or reputation; or any other
misconduct; or
(d) Any other material violation of any provision of this Agreement.
8. NONCOMPETITION, NONSOLICITATION, AND CONFIDENTIALITY
8.1 APPLICABILITY
This Section 8 shall survive the termination of Executive's employment with
the Company or the expiration of the term of this Agreement.
8.2 NONCOMPETITION
(a) Executive agrees that he will not, directly or indirectly, during his
employment with the Company and for a period of two years from the date on which
his employment with the Company terminates for any reason or from the date this
Agreement expires, whichever is later, be employed by, consult with or otherwise
perform services for, own, manage, operate, join, control or participate in the
ownership, management, operation or control of or be connected with, in any
manner,
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any Competitor, and will not undertake any active planning for any business
competitive with the Company within the geographical area described in Schedule
1.
(b) A "Competitor" shall include any entity which, directly or indirectly,
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(i) competes with the Company or (ii) produces, markets, distributes, or
otherwise derives benefit from the production, marketing or distribution of
products or services which compete with products or services then produced,
marketed, distributed or otherwise provided by the Company, or the feasibility
for production of which the Company is then actually studying, or which the
Company is preparing to market or (iii) is developing products or services that
will be in competition with the products or services then produced or being
studied or developed by the Company, in each case within the geographical area
described in Schedule 1 hereto.
(c) Without limitation of Subsection (a) hereof, Executive shall be deemed
to be impermissibly connected with a Competitor if the Executive is a general or
limited partner, owner, investor, shareholder, employee, officer, director,
member, consultant, agent, or coventurer of such Competitor; provided, however,
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that nothing herein shall prevent the purchase or ownership by Executive of
shares which constitute less than five percent (5%) of the outstanding equity
securities of a publicly or privately held corporation, if Executive had no
other relationship with such corporation.
8.3 NONSOLICITATION
Executive shall not directly or indirectly solicit, influence or entice, or
attempt to solicit, influence or entice, any employee or consultant of the
Company to cease his or his relationship with the Company, and shall not hire or
attempt to hire such persons. Executive shall not solicit, influence, entice or
in any way divert any customer, distributor, partner, joint venturer or supplier
of the Company to do business or in any way become associated with any
Competitor, or to terminate or diminish its relationship with the Company. This
Section 8.3 shall apply during the time period and in the geographical area
described in Section 8.2 hereof.
8.4 ASSIGNMENT OF INTELLECTUAL PROPERTY
All concepts, designs, machines, devices, uses, processes, technology,
trade secrets, works of authorship, customer lists, plans, embodiments,
inventions, improvements or related work product (collectively "Intellectual
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Property") which Executive develops, conceives or first reduces to writing
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during the term of his employment hereunder or within one year after the
termination of his employment hereunder or the expiration of this Agreement,
whether working alone or with others, shall be the sole and exclusive property
of the Company, together with any and all
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Intellectual Property rights, including, without limitation, patent or copyright
rights, related thereto, and Executive hereby assigns to the Company all of such
Intellectual Property. Intellectual Property shall include only such concepts,
designs, machines, devices, uses, processes, technology, trade secrets, customer
lists, plans, embodiments, inventions, improvements and work product which (i)
relate to Executive's performance of services under this Agreement, to the
Company's field of business or to the Company's actual or demonstrably
anticipated research or development, whether or not developed, conceived or
first reduced to practice during normal business hours or with the use of any
equipment, supplies, facilities or trade secret information or other resource of
the Company or (ii) are developed in whole or in part on the Company's time or
developed using the Company's equipment, supplies, facilities or trade secret
information, or other resources of the Company, whether or not the work product
relates to the Company's field of business or the Company's actual or
demonstrably anticipated research.
8.5 DISCLOSURE AND PROTECTION OF INVENTIONS
Executive shall disclose in writing all concepts, designs, processes,
technology, plans, embodiments, inventions or improvements constituting
Intellectual Property to the Company promptly after the development thereof. At
the Company's request and at the Company's expense, Executive will assist the
Company or its designee in efforts to protect all rights relating to such
Intellectual Property. Such assistance may include, without limitation, the
following: (a) making application in the United States and in foreign countries
for a patent or copyright on any work products specified by the Company; (b)
executing documents of assignment to the Company or its designee of all of
Executive's right, title and interest in and to any work product and related
intellectual property rights; and (c) taking such additional action (including,
without limitation, the execution and delivery of documents) to perfect,
evidence or vest in the Company or its designee all right, title and interest in
and to any Intellectual Property and any rights related thereto.
8.6 NONDISCLOSURE; RETURN OF MATERIALS
During the term of his employment by the Company and following termination
of such employment, Executive will not disclose (except as required by his
duties to the Company), (i) any concept, design, process, technology, trade
secret, customer list, plan, embodiment, or invention, or any Intellectual
Property; (ii) the financial activities, performance, or strategic planning of
the Company; (iii) the identity of the customers or suppliers of the Company, or
any other persons or entities with which the Company has a business
relationship; or (iv) any other confidential information of the Company of which
Executive becomes informed or aware during his employment
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with the Company or HumaTech, whether or not developed by Executive. In the
event of the termination of his employment with the Company or the expiration of
this Agreement, Executive will return all documents, data and other materials of
whatever nature, including, without limitation, drawings, specifications,
research, reports, embodiments, software and manuals to the Company which
pertain to the Company, to its business, or to any Intellectual Property and
shall not retain or cause or allow any third party to retain photocopies or
other reproductions of the foregoing.
8.7 ENFORCEMENT OF COVENANTS; EQUITABLE RELIEF
Executive acknowledges that he has carefully read and considered all the
terms and conditions of this Agreement, including the restraints imposed upon
his pursuant to this Section 8. Executive agrees that said restraints are
necessary for the reasonable and proper protection of the Company and that each
and every one of the restraints is reasonable in respect to subject matter,
length of time and geographic area. Executive further agrees that all goodwill
of the Company and its Affiliates is their exclusive property.
Executive acknowledges that the provisions of this Section 8 are essential
to the Company, that the Company would not enter into this Agreement if it did
not include this Section 8 and that damages sustained by the Company as a result
of a breach of this Section 8 cannot be adequately remedied by damages, and
Executive agrees that the Company, notwithstanding any other provision of this
Agreement, including, without limitation, Section 14 hereof, and in addition to
any other remedy it may have under this Agreement or at law, shall be entitled
to injunctive and other equitable relief to prevent or curtail any breach of any
provision of this Agreement, including, without limitation, this Section 8.
8.8 EFFECT OF VIOLATION
Executive and the Company acknowledge and agree that additional
consideration has been given to Executive for Executive entering into this
Section 8, such additional consideration including, without limitation,
guaranteed bonus of $25,000 per year for two years and certain provisions for
termination payments pursuant to Section 7 of this Agreement. Violation by
Executive of this Section 8 shall relieve the Company of any obligation it has
to make such bonus and termination payments, but shall not relieve Executive of
any of his obligations under this Agreement, including the obligation not to
compete.
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8.9 DEFINITION OF THE COMPANY
For purposes of Sections 8.2, 8.3 and 8.6 hereof, "the Company" shall
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include all subsidiaries of the Company, and any business venture in which the
Company or its subsidiaries may participate.
9. REPRESENTATIONS AND WARRANTIES
In order to induce the Company to enter into this Agreement, Executive
represents and warrants to the Company as follows:
9.1 NO VIOLATION OF OTHER AGREEMENTS
Neither the execution nor the performance of this Agreement by Executive
will violate or conflict in any way with any other agreement by which Executive
may be bound, or with any other duties imposed upon Executive by corporate or
other statutory or common law.
9.2 PATENTS, ETC.
Executive has prepared and attached hereto as Schedule 2 a list of all
inventions, patent applications and patents made or conceived by Executive prior
to the date hereof, which are subject to prior agreement or which Executive
desires to exclude from this Agreement, or, if no such list is attached,
Executive hereby represents and warrants to the Company that there are no such
inventions, patent applications or patents.
10. CHANGE OF CONTROL AND INDEMNIFICATION AGREEMENTS
As approved by the Board of Directors of the Company, Executive shall be
entitled to Change of Control and Indemnification Agreements in substantially
the same form and content as in effect between the Company and the other
officers of the Company.
11. NOTICE AND CURE OF BREACH
Whenever a breach of this Agreement by either party is relied upon as
justification for any action taken by the other party pursuant to any provision
of this Agreement, other than pursuant to the definition of "Cause" set forth in
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Section 7.5 hereof, before such action is taken, the party asserting the breach
of this Agreement shall give the other party at least ninety days (90) days
prior written notice of the existence and the nature of such breach before
taking further action hereunder and
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shall give the party purportedly in breach of this Agreement the opportunity to
correct such breach during the 90 day period.
12. FORM OF NOTICE
All notices given hereunder shall be given in writing, shall specifically
refer to this Agreement and shall be personally delivered or sent by telecopy or
other electronic facsimile transmission or by registered or certified mail,
return receipt requested, at the address set forth below or at such other
address as may hereafter be designated by notice given in compliance with the
terms hereof:
If to Executive: Xx. Xxx Xxxxxx
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With a copy to: Xxxxxx Xxxxxx
Xxxxxx & Xxxxxx
Suite 212, 0000 X. Xxxxxxx Xxxxxxx
Xxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
If to the Company: ProCyte Corporation
Attn: Xxxx X. Xxxxxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxx X. Xxxxxx
Xxxxxxx Coie LLP
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
If notice is mailed, such notice shall be effective upon mailing, or if notice
is personally delivered or sent by telecopy or other electronic facsimile
transmission, it shall be effective upon receipt.
13. ASSIGNMENT
This Agreement is personal to Executive and shall not be assignable by
Executive. Subject to the provisions of Section 6.2(ii) hereof, the Company may
assign its rights hereunder to (i) any corporation resulting from any merger,
consolidation or other reorganization to which the Company is a party or (ii)
any
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corporation, partnership, association or other person to which the Company may
transfer all or substantially all of the assets and business of the Company
existing at such time. All of the terms and provisions of this Agreement shall
be binding upon and shall inure to the benefit of and be enforceable by the
parties hereto and their respective successors and permitted assigns.
14. WAIVERS
No delay or failure by any party hereto in exercising, protecting or
enforcing any of its rights, titles, interests or remedies hereunder, and no
course of dealing or performance with respect thereto, shall constitute a waiver
thereof. The express waiver by a party hereto of any right, title, interest or
remedy in a particular instance or circumstance shall not constitute a waiver
thereof in any other instance or circumstance. All rights and remedies shall be
cumulative and not exclusive of any other rights or remedies.
15. ARBITRATION
Subject to the provisions of Section 8.7 hereof, any controversies or
claims arising out of or relating to this Agreement shall be fully and finally
settled by arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association then in effect (the "AAA Rules"), conducted
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by one arbitrator either mutually agreed upon by the Company and Executive or
chosen in accordance with the AAA Rules, except that the parties thereto shall
have any right to discovery as would be permitted by the Federal Rules of Civil
Procedure for a period of 90 days following the commencement of such arbitration
and the arbitrator thereof shall resolve any dispute which arises in connection
with such discovery. The prevailing party shall be entitled to costs, expenses
and reasonable attorneys' fees, and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. If, for
whatever reason, this clause cannot be enforced as drafted, the obligation to
arbitrate shall remain specifically enforceable in accordance with RCW Chapter
7.04, and the King County Superior Court shall have jurisdiction to appoint a
single arbitrator to arbitrate any disputes or claims between the parties. Any
and all awards entered by an arbitrator may be entered as a judgment on an ex
parte basis in the King County Superior Court, or any other court having
jurisdiction over the party against whom the award is entered, and enforced
according to the terms of the award. THE VENUE OF ALL HEARINGS SHALL BE IN
SEATTLE, KING COUNTY, WASHINGTON.
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16. AMENDMENTS IN WRITING
No amendment, modification, waiver, termination or discharge of any
provision of this Agreement, nor consent to any departure therefrom by either
party hereto, shall in any event be effective unless the same shall be in
writing, specifically identifying this Agreement and the provision intended to
be amended, modified, waived, terminated or discharged and signed by the Company
and Executive, and each such amendment, modification, waiver, termination or
discharge shall be effective only in the specific instance and for the specific
purpose for which given. No provision of this Agreement shall be varied,
contradicted or explained by any oral agreement, course of dealing or
performance or any other matter not set forth in an agreement in writing and
signed by the Company and Executive.
17. GOVERNING LAW
THIS AGREEMENT SHALL BE CONSTRUED IN ALL RESPECTS UNDER THE LAWS OF THE
STATE OF WASHINGTON WITHOUT REGARD TO THE DICTATES OF CONFLICTS OF LAWS THEREOF.
18. SEVERABILITY
If any provision of this Agreement shall be held invalid, illegal or
unenforceable in any jurisdiction, for any reason, including, without
limitation, the duration of such provision, its geographical scope or the extent
of the activities prohibited or required by it, then, to the full extent
permitted by law (a) all other provisions hereof shall remain in full force and
effect in such jurisdiction and shall be liberally construed in order to carry
out the intent of the parties hereto as nearly as may be possible, (b) such
invalidity, illegality or unenforceability shall not affect the validity,
legality or enforceability of any other provision hereof, and (c) any court or
arbitrator having jurisdiction thereover shall have the power to reform such
provision to the extent necessary for such provision to be enforceable under
applicable law.
19. HEADINGS
All headings used herein are for convenience only and shall not in any way
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
20. COUNTERPARTS
This Agreement, and any amendment or modification entered into pursuant to
Section 15 hereof, may be executed in any number of counterparts, each of which
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counterparts, when so executed and delivered, shall be deemed to be an original
and all of which counterparts, taken together, shall constitute one and the same
instrument.
21. ENTIRE AGREEMENT
This Agreement on and as of the date hereof constitutes the entire
agreement between the Company and Executive with respect to the subject matter
hereof and all prior or contemporaneous oral or written communications,
understandings or agreements between the Company and Executive with respect to
such subject matter are hereby superseded and nullified in their entireties.
IN WITNESS WHEREOF, the parties have executed and entered into this
Agreement as of the date set forth above.
EXECUTIVE:
/s/ Xxx Xxxxxx
--------------
Xxx Xxxxxx
PROCYTE CORPORATION:
By: /s/ Xxxx X. Xxxxxxxx
--------------------
Xxxx X. Xxxxxxxx, President and Chief
Executive Officer
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