SEPARATION AGREEMENT AND GENERAL RELEASE
EXHIBIT
10.48
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (this “Agreement”) is made and entered into by
and between Xxxxx X. Xxxxxxxx (“Xx. Xxxxxxxx”) and Artes Medical, Inc., a Delaware corporation (the
“Company”), and inures to the benefit of 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, agents, attorneys,
employees and assigns.
RECITALS
A. Xx. Xxxxxxxx has resigned (i) as an employee of the Company, (ii) as Chief Executive
Officer and President of the Company; (iii) as a Section 16 officer of the Company; and (iv) as a
Director on the Company’s Board of Directors, each resignation to be effective at 9:00 a.m.
(Pacific Time) on May 12, 2008 (“Resignation Date”).
B. Xx. Xxxxxxxx wishes to confirm her resignation from the Company and from the Company’s
Board of Directors and enter into a General Release with the Company, on the terms and conditions
set forth herein.
C. Xx. Xxxxxxxx and the Company wish to permanently 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. Xxxxxxxx’x service to the Company as a director, 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. Xxxxxxxx, on the one hand, and the Company, on
the other, as follows:
1. Resignation. Xx. Xxxxxxxx hereby irrevocably resigns as (i) as an employee of the
Company, (ii) as Chief Executive Officer and President of the Company; (iii) as a Section 16
officer of the Company; and (iv) as a Director on the Company’s Board of Directors, 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. Xxxxxxxx’x services to the
Company and her resignation that is acceptable to the Company and Xx. Xxxxxxxx. The form of the
press release is attached hereto as Exhibit A. Xx. Xxxxxxxx acknowledges and agrees that
the Company will file a Form 8-K with the SEC regarding her resignation from the Company and from
the Company’s Board of Directors.
3. Wages, Vacation Time, Expenses. Xx. Xxxxxxxx and the Company agree that she had
accrued unused vacation time of 240 hours as of the Resignation Date. The Company agrees to pay
Xx. Xxxxxxxx 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
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and other applicable taxes). The Company acknowledges that Xx. Xxxxxxxx has submitted but not
been reimbursed for reimbursable business expenses incurred by her prior to the Resignation Date.
The Company agrees that it will make the full reimbursement payment to Xx. Xxxxxxxx within ten
business days of the Resignation Date.
4. Termination Consideration. Contingent upon this Agreement becoming effective as
provided in Section 26 of this Agreement (the “Effective Date”), the Company agrees:
4.1 The Company will pay Xx. Xxxxxxxx, as W-2 income, the equivalent of eighteen (1) months
salary, totaling Four Hundred Eighty Seven Thousand Five Hundred Dollars ($487,500), less all
applicable withholding and other applicable taxes, payable as follows:
(a) Two Hundred Seventy Three Thousand Dollars ($273,000), less all applicable withholding
and other applicable taxes, on the next business day immediately following the Effective Date of
this Agreement; and
(b) Thirty Five Thousand Seven Hundred Fifty Dollars ($35,750), 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 15 2008, for an aggregate amount
of Two Hundred Fourteen Thousand Five Hundred ($214,500) (less all applicable withholding and other
applicable taxes). The amounts which remain payable under this Section 4.1(b) shall be deposited
at one of the Company’s existing banking institutions within fourteen (14) business days after the
Effective Date of this Agreement and shall be maintained on deposit in an escrow account at that
institution for her benefit, until it is paid in full to Xx. Xxxxxxxx under the terms of this
Section 4.1(b).
4.2 Xx. Xxxxxxxx will be entitled to additional vesting of her stock options as set forth on
Exhibit B subject to Board approval, expected to be received on May 12, 2008. As set forth
on Exhibit B, Xx. Xxxxxxxx will have a total of 178,314 shares of common stock fully vested
under her outstanding stock options (the “Stock Options”) as of the Effective Date of this
Agreement. Subject to Board approval, Xx. Xxxxxxxx shall have twenty-four (24) months after the
Effective Date of this Agreement to exercise her options. Xx. Xxxxxxxx acknowledges and agrees
that the extension of the period in which he may exercise her vested option shares under her Stock
Options from ninety (90) days after the Effective Date of this Agreement to twenty four months (24)
to May 12, 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. Xxxxxxxx
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. Xxxxxxxx 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.
Xxxxxxxx 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. Xxxxxxxx is not an employee of the Company at the time of exercise. As
a result, when Xx. Xxxxxxxx elects to exercise any Stock Option converted to an NSO, she will be
required to deliver a check to the Company not only for the
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exercise price of the purchased shares but also for the applicable withholding taxes. Xx.
Xxxxxxxx acknowledges that she is solely responsible for seeking her own legal and tax advice on
such matters.
4.3 The Company will pay or alternatively, reimburse Xx. Xxxxxxxx upon reasonable proof of
such expenses, the COBRA premium(s) on Xx. Xxxxxxxx’x behalf and her legal dependents for a period
of eighteen (18) months commencing on the date of Xx. Xxxxxxxx’x separation of employment from the
Company (the “COBRA Period”); provided Xx. Xxxxxxxx does not otherwise become eligible to
participate in another employer’s group insurance plan. If Xx. Xxxxxxxx desires to continue her
participation beyond the end of the COBRA Period, and is eligible to continue her participation
pursuant to COBRA, Xx. Xxxxxxxx agrees that she shall be fully responsible for making the necessary
premium payments in order to continue such coverage. Nothing herein shall be deemed to permit Xx.
Xxxxxxxx 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 her 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.
5. Equity Holdings.
5.1 Stock. Xx. Xxxxxxxx hereby acknowledges that she holds 24,200 shares of Common
Stock (collectively, the “Stock”).
5.2 Options. In addition, Xx. Xxxxxxxx hereby acknowledges that she 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. Xxxxxxxx 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. Xxxxxxxx’x and Xx. Xxxxxxxx’x spouse, heirs, 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 she nor her 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. Xxxxxxxx shall to the
best of her ability, upon the reasonable request of the Company:
6.1 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. Xxxxxxxx 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.
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6.2 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.
6.3 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.
6.4 The Company will reimburse Xx. Xxxxxxxx for reasonable expenses incurred by her in
response to requests by the Company for assistance and cooperation on the matters referenced in
this Section 6, and shall compensate Xx. Xxxxxxxx for time spent on such matters at the rate of
$250 per hour.
7. General Release by Xx. Xxxxxxxx. In consideration of the mutual promises and
covenants contained herein, Xx. Xxxxxxxx for herself, her 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. Xxxxxxxx’x
equity ownership in the Company, Xx. Xxxxxxxx’x employment with the Company or the cessation of
that employment or Xx. Xxxxxxxx’x service as an officer and director 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. Xxxxxxxx or any of the Xxxxxxxx Releasees to enforce the terms
thereof. Notwithstanding this Agreement, however, nothing herein shall release the Company from
any obligation to indemnify Xx. Xxxxxxxx as a former employee, officer or director, or relinquish
any right to insurance coverage, in the event that some other party commences any form of legal
proceeding relating to her employment with the Company or her services as an officer or director.
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. Xxxxxxxx and her descendants, dependents, executors, administrators, attorneys and
agents (collectively, the “Xxxxxxxx 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. Xxxxxxxx’x employment with the
Company or Xx. Xxxxxxxx’x service as an officer and director of the Company; provided, however,
that nothing herein shall release the Xxxxxxxx Releasees from any obligations,
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representations,
warranties or other duties under this Agreement or the Confidentiality and
Proprietary Information Agreement signed by Xx. Xxxxxxxx during her 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. Xxxxxxxx understands and agrees
that she is waiving any and all rights she 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 her 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. Xxxxxxxx for workers’ compensation benefits,
unemployment insurance benefits, or any other claims that she cannot lawfully waive by this
Agreement. This release shall also not affect or diminish any contractual or statutory rights that
Xx. Xxxxxxxx has to indemnification for acts or omissions within the course and scope of her
employment with or service to the Company, nor shall it affect or diminish Xx. Xxxxxxxx’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. Xxxxxxxx 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. Xxxxxxxx (on her behalf and on behalf of the Xxxxxxxx Releasees) expressly agrees and
understands that the release given by her pursuant to this Agreement applies to all unknown,
unsuspected and unanticipated claims, liabilities and causes of action which Xx. Xxxxxxxx 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.
Xxxxxxxx or any of the other Xxxxxxxx Releasees.
11. Severability of Release Provisions. The parties agree that if any provision of
the release given by Xx. Xxxxxxxx or the Company, respectively, under this Agreement is found to be
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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. Xxxxxxxx represents
that, as of the Effective Date of this Agreement, she 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. Xxxxxxxx further agrees that, to the fullest
extent permitted by law, she 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. Xxxxxxxx
related in any way to the matters discharged herein. Xx. Xxxxxxxx waives her 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. Xxxxxxxx or on Xx. Xxxxxxxx’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. Xxxxxxxx’x employment with and service to
the Company, other than as necessarily disclosed by the public filing of this Agreeement, and
except Xx. Xxxxxxxx may disclose this information to her spouse and to her attorneys, accountants
and other professional advisors to whom the disclosure is necessary to accomplish the purposes for
which Xx. Xxxxxxxx has consulted such professional advisors. Xx. Xxxxxxxx expressly promises and
agrees that, unless compelled by legal process, she 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. Xxxxxxxx acknowledges that she has not suffered any work-related
illnesses or injuries while employed by the Company.
15. Non-Solicitation. Xx. Xxxxxxxx agrees that for a period of one year following her
Resignation Date, she 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 their relationship with the Company, or accept employment at another company, entity, or
with Xx. Xxxxxxxx.
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.
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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. Xxxxxxxx acknowledges and agrees that she has had the right and sufficient
opportunity to be represented by counsel of her own choosing. Xx. Xxxxxxxx further acknowledges
and agrees that she 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 26 of this
Agreement, the Company agrees to reimburse Xx. Xxxxxxxx for the legal fees paid to her legal
counsel for services rendered on her behalf in connection with her Resignation and this Agreement,
provided that Xx. Xxxxxxxx or her 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.
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. Xxxxxxxx shall return to the Company all of her
access keys and electronic passes to the Company’s premises, her Company laptops and computers, and
all Company data, documents, files, records, computer-recorded information and all copies thereof,
in whatever media, in her possession on or before the Effective Date, or sooner upon demand by the
Company therefore. Xx. Xxxxxxxx specifically promises and agrees that she shall not retain copies
(electronic or otherwise) of any company data, documents, files, records or information following
the Effective Date of this Agreement. Xx. Xxxxxxxx represents that she has already returned all
Company property as referenced, and the Company acknowledges receipt of
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her laptops and computers.
The parties agree that Xx. Xxxxxxxx personally owns the blackberry she used at the time of her
Resignation.
24. Period to Consider Terms of Agreement. Xx. Xxxxxxxx acknowledges that this
Agreement was first presented to her on May 11, 2008 , that the terms of this Agreement have been
negotiated by counsel for both parties, and that she is entitled to have 21 days’ time in which to
consider the Agreement. Xx. Xxxxxxxx acknowledges that she understands that she should obtain the
advice and counsel from the legal representative of her choice before executing this Agreement, and
that she executes this Agreement having had sufficient time within which to consider its terms.
Xx. Xxxxxxxx represents that if she executes this Agreement before 21 days have elapsed, she does
so voluntarily, and that she voluntarily waives any remaining consideration period. The parties
both agree that any changes to this Agreement negotiated between them after May 11, 2008 shall not
require a new 21-day consideration period.
25. Revocation of Agreement. Xx. Xxxxxxxx understands that after executing this
Agreement, she has the right to revoke it within seven (7) days after her execution of it. Xx.
Xxxxxxxx understands that this Agreement will not become effective and enforceable unless the seven
day revocation period passes and Xx. Xxxxxxxx does not revoke the Agreement in writing. Xx.
Xxxxxxxx understands that this Agreement may not be revoked after the seven day revocation period
has passed. Xx. Xxxxxxxx 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 she does so revoke the Agreement, she shall not be entitled to
receive any of the benefits described herein.
26. Effective Date. This Agreement shall become effective on the eighth (8th) day
after execution by Xx. Xxxxxxxx, so long as Xx. Xxxxxxxx has not revoked it within the time and in
the manner specified in Section 26 of this Agreement.
27. Injunctive Relief; Consent to Jurisdiction. Xx. Xxxxxxxx acknowledges and agrees
that damages will not be an adequate remedy in the event of a breach of any of her obligations
under this Agreement. Xx. Xxxxxxxx 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. Xxxxxxxx hereby
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.
Xxxxxxxx further agrees that service upon her in any such action or proceeding may be made by first
class mail, certified or registered, to Xx. Xxxxxxxx’x address as last appearing on the records of
the Company.
28. 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. Xxxxxxxx shall use the Company’s primary office location; and if notice is to be
provided to Xx. Xxxxxxxx, the Company shall use Xx. Xxxxxxxx’x address as listed in the Company’s
payroll
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records. Any payments made by the Company to Xx. Xxxxxxxx under the terms of this
Agreement shall be delivered to Xx. Xxxxxxxx either in person or at the address as listed in the
Company’s payroll records.
29. 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.
30. 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/ Xxxxxxxxxxx X. Xxxxxxxx | |||
| Xxxxxxxxxxx X. Xxxxxxxx | ||||
| Executive Chairman of the Board | ||||
| Dated: | 5 / 14 / 2008 | |||
| XX. XXXXXXXX: | XXXXX X. XXXXXXXX |
|||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx X. Xxxxxxxx | ||||
| Dated: | 5 / 14 / 2008 | |||
[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
Artes Medical, Inc.
Xxxxx Xxxxxxxx
Option Vesting and Extension
Xxxxx Xxxxxxxx
Option Vesting and Extension
| Total | ||||||||||||||||||||||||
| Shares | Shares | Aggregate | Shares | |||||||||||||||||||||
| Outstanding | Exercisable | Exercise | Exercise Price | Additional | Exercisable | |||||||||||||||||||
Grant
Date |
at 5/12/08 | at 5/12/08 | Price | to be Paid | Vesting | * | ||||||||||||||||||
3/24/2006 |
117,647 | 63,723 | $ | 5.31 | $ | 338,369.13 | — | 63,723 | ||||||||||||||||
6/30/2006 |
47,058 | 21,567 | $ | 7.86 | $ | 169,516.62 | — | 21,567 | ||||||||||||||||
2/2/2007 |
250,000 | 31,249 | $ | 9.96 | $ | 311,240.04 | — | Rescind | ||||||||||||||||
2/28/2008 |
93,024 | 3,876 | $ | 2.20 | $ | 8,527.20 | 89,148 | 93,024 | ||||||||||||||||
| 507,729 | 120,415 | $ | 827,652.99 | 89,148 | 178,314 | |||||||||||||||||||
| * | Note: These shares represent the number of stock options that will be exerciable to Xx. Xxxxxxxx as of the date of her termination. Xx. Xxxxxxxx has 2 years post her termination date to exercise such options (5/12/10). |
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