Exhibit 99.2
[Cytomedix Letterhead]
June 3, 2005
Xx. Xxxxxx X. Xxxxxx 0000 Xxxxxx Xxxx Xxxxxx Xxxxxxxxxxx, XX 00000
Dear Xx. Xxxxxx:
On behalf of the Board of Directors of Cytomedix, Inc. (the "Company"),
I am pleased to offer you the following compensation and other benefits on the
terms and conditions set forth in this letter agreement with attached exhibits
(the "Agreement").
Position
Subject to the terms and conditions herein, the Company agrees to
employ you as Controller. In such capacity, you shall report to the Company's
Chief Executive Officer and shall have the powers, responsibilities,
restrictions and authorities as are assigned by the Chief Executive Officer. By
your acceptance of this Agreement, you accept employment as Controller as of
July 1, 2005 (the "Effective Date") and agree to devote your full working time
and efforts to the best of your ability, experience, and talent, to the
performance of services, duties and responsibilities as the Company's
Controller.
Employment At Will
Your term of employment shall commence as of the Effective Date and
continue until the date of termination (the "Termination Date") (the period from
the Effective Date until the Termination Date shall be the "Term"). Your
employment with the Company shall not be for any specific term and may be
terminated by you or the Company at any time with or without cause. In the case
of termination by you or by the Company, and if so requested by the Company, you
agree to remain the Company's Controller for period of thirty (30) days from the
date of notice of termination. In such case, the Termination Date shall be the
thirtieth day following notice of termination.
Salary and Benefits
You shall receive a base salary ("Base Salary") at the rate of $135,000
per annum during the Term; provided, however, the Compensation Committee of the
Company's Board of Directors shall review your annual Base Salary for
recommended potential increase each year. Any increase in Base Salary shall
constitute "Base Salary" hereunder. Base Salary shall be payable in accordance
with the ordinary payroll practices of the Company and the Company shall be
entitled to withhold from payment any amount of withholding required by law.
As soon as possible after the first six month anniversary of your
employment date, there will be a review of your compensation and any changes
will be retroactive to the first six month anniversary date.
You will be eligible for medical and dental insurance currently offered
to all employees and life insurance, retirement plan, disability insurance and
other benefits when they are made available to all full-time employees.
Incentive Stock Options
Upon recommendation by the Compensation Committee of the Company's
Board of Directors and approval by the Board of Directors, you shall receive
options to purchase 60,000 shares of Company's common stock (the "Options") at
an exercise price equal to the closing sale price of the Company's common stock
on the date you accept this Agreement. The Options shall vest as follows:
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Number of Options Vesting Date
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15,000 Upon receipt of a valid and unrevoked certified
public accountant certificate issued by a legally
constituted state authority.
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15,000 First anniversary of employment (assuming CPA
certificate has been received and maintained).
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15,000 Second anniversary of employment (assuming CPA
certificate has been received and maintained).
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15,000 Third anniversary of employment (assuming CPA
certificate has been received and maintained
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Notwithstanding the above, the Options shall vest immediately upon the
termination of your employment without "Cause" or in connection with a "Change
in Control" as such terms are defined in Appendix B to this Agreement.
The other terms and conditions of the Options shall be governed by the
terms of a stock option award agreement in a form substantially similar to that
presently used by the Company.
Annual Bonus
You shall be eligible for an annual target bonus of twenty percent
(20%) of your earned salary, which may be payable in the form of cash, or by
mutual agreement, in the form of stock options or a combination thereof. The
annual bonus shall be contingent upon your satisfaction of mutually agreed upon
performance criteria and may be larger or smaller depending upon your
performance. Any awards pursuant to an annual bonus plan shall be governed by
the terms and conditions contained in the grant notice and stock option
agreement issued to you by the Company.
CPA Certification
The Company is making this offer to you upon its assumption that you
will complete all necessary coursework and other efforts to obtain a valid and
unrevoked CPA certificate re-issued by a legally constituted state authority on
or before October 1, 2005. The Company hereby agrees to reimburse you for
reasonable and validly incurred costs and fees in connection with such
recertification (including tuition, course materials, and examination fees) up
to the amount of $7,500.00. Both parties understand and agree that if you have
not achieved such recertification on or before October 1, 2005, the Company will
have the right to terminate your employment for "Cause".
Confidentiality and No compete
By your acceptance of this Agreement, you agree to be bound by the
terms of conditions of the Confidentiality and No compete provisions contained
in Exhibit A.
Miscellaneous
This Agreement, including the attached Exhibits A and B, contains the
entire understanding among the parties hereto and supersedes in all respects any
prior or other agreement or understanding among the parties with respect to your
employment, including but not limited to any severance arrangements.
If any provision of this Agreement shall be declared to be invalid or
unenforceable, in whole or in part, such invalidity or unenforceability shall
not affect the remaining provisions hereof which shall remain in full force and
effect. Each party hereto shall be solely responsible for any and all legal fees
incurred by him or it in connection with this Agreement, including the
enforcement of this Agreement. This Agreement may only be amended by written
agreement of the parties hereto, and shall be construed, interpreted and
governed in accordance with the laws of Maryland, without reference to rules
relating to conflicts of law.
Acceptance
By your signature below, you agree that this Agreement, including
Exhibits A and B, shall be binding upon and inure to the benefit of your heirs
and representatives and the assigns and successors of the Company, but neither
this Agreement nor any rights or obligations hereunder shall be assignable or
otherwise subject to hypothecation by you or by the Company, except that the
Company may assign this Agreement to any successor (whether by merger, purchase
or otherwise) to the stock, assets or business(es) of the Company.
Very truly yours,
CYTOMEDIX, INC.
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, Ph.D.
Chief Executive Officer
I have read and hereby accept the terms of this Agreement
/s/Xxxxxx Xxxxxx
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Xx. Xxxxxx X. Xxxxxx
Date: June 3, 2005
Exhibit A
Confidentiality and Noncompete
Provisions
(a) Xx. Xxxxxx shall not, without the prior written consent of the
Company, use, divulge, disclose or make accessible to any other person, firm,
partnership, corporation or other entity any Confidential Information (as
defined below) pertaining to the business of the Company or any of its
affiliates, except (i) while employed by the Company, in the business of and for
the benefit of the Company, or (ii) when required to do so by a court of
competent jurisdiction, by any governmental agency having supervisory authority
over the business of the Company, or by any administrative body or legislative
body (including a committee thereof) with jurisdiction to order Xx. Xxxxxx to
divulge, disclose or make accessible such information.
For purposes of this Exhibit A, "Confidential Information" shall mean
non-public information concerning the financial data, strategic business plans,
product development (or other proprietary product data), customer lists,
marketing plans and other non-public, proprietary and confidential information
of the Company or its affiliates (hereinafter referred to as the "Protected
Group") or the Company's existing or potential customers, that is not otherwise
available to the public (other than by Xx. Xxxxxx'x breach of the terms hereof).
(b) During the Term and for one (1) year thereafter, Xx. Xxxxxx agrees
that, without the prior written consent of the Company, (A) he will not,
directly or indirectly, in the United States, participate in any Position (as
defined below) in any business which is in competition with any business of the
Protected Group and (B) he shall not, on his own behalf or on behalf of any
person, firm or company, directly or indirectly, solicit or offer employment to
any person who has been employed by the Protected Group at any time during the
twelve months immediately preceding such solicitation, and (C) he shall not, on
his own behalf or on behalf of any person, firm or company, solicit, call upon,
or otherwise communicate in any way with any client, customer, prospective
client or prospective customer of the Company or of any member of the Protected
Group for the purposes of causing or of attempting to cause any such person to
purchase products sold or services rendered by the Company or by any member of
the Protected Group from any person other than the Company or any member of the
Protected Group. The term "Position" shall include, without limitation, a
partner, director, holder of more than five percent of the outstanding voting
shares, principal, executive, officer, manager or any employment or consulting
position in which his responsibilities relate to products or processes for wound
care or any other area in which he had significant involvement during his
employment at Cytomedix. It is acknowledged and agreed that the scope of the
clause as set forth above is essential, because (i) a more restrictive
definition of "Position" (e.g. limiting it to the "same" position with a
competitor) will subject the Company to serious, irreparable harm by allowing
competitors to describe positions in ways to evade the operation of this clause,
and substantially restrict the protection sought by the Company, and (ii) by
allowing Xx. Xxxxxx to escape the application of this clause by accepting a
position designated as a "lesser" or "different" position with a competitor, the
Company is unable to restrict the Xx. Xxxxxx from providing valuable information
to such competing company to the harm of the Company.
(c) Xx. Xxxxxx agrees that he will not, directly or indirectly,
individually or in concert with others, engage in any conduct or make any
statement that is likely to have the effect of undermining or disparaging the
reputation of the Company or any member of the Protected Group, or their good
will, products, or business opportunities, or that is likely to have the effect
of undermining or disparaging the reputation of any officer, director, agent,
representative or employee, past or present, of the Company or any member of the
Protected Group. Company agrees that it shall not, directly or indirectly,
engage in any conduct or make any statement that is likely to have the effect of
undermining or disparaging the reputation of Xx. Xxxxxx.
(d) For purposes of this Exhibit A, a business shall be deemed to be in
competition with the Protected Group if it is principally involved in the
purchase, sale or other dealing in any property or the rendering of any service
purchased, sold, dealt in or rendered by the Protected Group as a material part
of the business of the Protected Group within the same geographic area in which
the Protected Group effects such purchases, sales or dealings or renders such
services.
(e) Xx. Xxxxxx and the Company agree that this covenant not to compete
is a reasonable covenant under the circumstances, and further agree that if in
the opinion of any court of competent jurisdiction such restraint is not
reasonable in any respect, such court shall have the right, power and authority
to excise or modify such provision or provisions of this covenant as to the
court shall appear not reasonable and to enforce the remainder of the covenant
as so modified. Xx. Xxxxxx agrees that any breach of the covenants contained in
this Exhibit A would irreparably injure the Company. Accordingly, Xx. Xxxxxx
agrees that the Company may, in addition to pursuing any other remedies it or
they may have in law or in equity, cease making any payments otherwise required
by this Agreement and obtain an injunction against Xx. Xxxxxx from any court
having jurisdiction over the matter restraining any further violation of this
Agreement by Xx. Xxxxxx.
Exhibit B
Definitions of
"Cause" and
"Change Of Control"
"Cause" shall mean: (1) the willful and continued failure by Xx. Xxxxxx to
substantially perform his duties with the Company in good faith (other than any
such failure resulting from his incapacity due to physical or mental illness,
injury or disability), after a demand for substantial performance is delivered
to him by the Board of Directors of the Company which identified, in reasonable
detail, the manner in which the Board of Directors believes that Xx. Xxxxxx has
not substantially performed his duties in good faith; (2) the willful engaging
by Xx. Xxxxxx in conduct which causes material harm to the Company, monetarily
or otherwise; or (3) Xx. Xxxxxx'x conviction of a felony arising from conduct
during the term of this Agreement.
"Change of Control" shall mean (1) a sale or other disposition of all or
substantially all of the assets of the Company; (2) a merger or consolidation in
which the Company is not the surviving entity and in which the shareholders of
the Company immediately prior to such consolidation or merger own less than
fifty percent (50%) of the surviving entity's voting power immediately after the
transaction; (3) a reverse merger in which the Company is the surviving entity
but the shares of the Company's common stock outstanding immediately preceding
the merger are converted by virtue of the merger into other property, whether in
form of securities, cash or otherwise, and in which the shareholders of the
Company immediately prior to such merger own less than fifty percent (50%) of
the Company's voting power immediately after the transaction; (4) any other
capital reorganization in which more than fifty percent (50%) of the shares of
the Company entitled to vote are exchanged; or (5) during any period of two
consecutive years (not including periods prior to the effective date of this
Agreement), individuals who at the beginning of such period constitute the board
and any new directors whose election by the board or nomination for election by
the stockholders was approved by at least 2/3rds of the members of the board,
cease for any reason to constitute a majority thereof.
