EMPLOYMENT AGREEMENT
EXHIBIT
10.10
THIS EMPLOYMENT AGREEMENT (“Agreement”) is entered into and becomes effective as of
February 15, 2004 (the “Effective Date”) by and between Artes Medical USA, Inc. (“Employer” or
“Company”) and Xxxxxxx Xxxxxxxx (“Employee”).
RECITALS
A. Employer is a Delaware corporation and is doing business in the State of California.
B. Both Employer and Employee desire that Employee serve Employer in the capacity of Vice
President, Engineering and Manufacturing and both parties desire to memorialize this relationship
in writing.
IN CONSIDERATION of the promises and of the mutual covenants contained herein, and for other
good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto do
hereby agree as follows:
AGREEMENT
l. Employment. Employer hereby engages Employee to serve as Vice President,
Engineering and Manufacturing and Employee hereby accepts such engagement upon the terms and
conditions set forth herein.
2. Term. The term of this Agreement shall begin on the Effective Date stated above
and shall remain in effect for five (5) years, unless terminated pursuant to Section 12. If the
Agreement is not terminated pursuant to Section 12, the Agreement shall continue from year to year
after February 14, 2009, unless either party to the Agreement gives written notice to the other of
a desire to change, amend, modify or terminate the Agreement, at least sixty (60) days prior to the
expiration of the then-current term of the Agreement.
3. Duties. Employee is employed to serve as the Vice President, Engineering and
Manufacturing and shall perform such duties as are customarily performed by a Vice President,
Engineering and Manufacturing and such other duties as the Chief Executive Officer assigns from
time to time. Employee acknowledges that he will report to the Chief Executive Officer who will be
Employee’s supervisor. As part of Employee’s duties, Employee acknowledges and understands that:
(a) Employee will devote his utmost knowledge and best skill to the performance of his duties; (b)
Employee will devote his full business time to the rendition of such services, subject to absences
for customary vacations and for temporary illness; and (c) Employee will not engage in any other
gainful occupation which requires his personal attention without prior consent of Employer, with
the exception that Employee may personally trade in stock, bonds,
securities, commodities or real estate investments for his own benefit, subject to Section 4
below.
4. Non-Competition. During the Employment Term and for three (3) months after
Employee’s employment terminates, if it is terminated pursuant to Section 13(b) or 13(c) of this
Agreement, Employee shall not, without the prior written permission of Employer, in the United
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States, its territories and possessions or within an one hundred (100) mile radius of any
Competitive Business of Employer, its affiliates or subsidiaries located outside the United States,
directly or indirectly, (a) enter into the employ of or render any services to any person, firm or
corporation engaged in any Competitive Business (as defined below); (b) engage in any Competitive
Business for his own account; (c) become associated with or interested in any Competitive Business
as an individual, partner, shareholder, creditor, director, officer, principal, agent, employee,
trustee, consultant, advisor or in any other relationship of capacity; (d) employ or retain, or
have or cause any other person or entity to employ or retain, any person who was employed or
retained by Employer or its affiliates while the Employee was employed by Employer or (e) solicit,
interfere with, or endeavor to entice away from Employer any of its customers or sources of supply.
However, nothing in this Agreement shall preclude the Employee from investing his personal assets
in the securities of any Competitive Business if such securities are traded on a national stock
exchange or in the over-the-counter market if such investment does not result in his beneficially
owning, at any time, more than 4.9% of the publicity-traded equity securities of such competitor.
“Competitive Business” shall mean any business or enterprise which (a) designs, sells,
manufactures, markets and/or distributes injectable material for soft tissue augmentation or (b)
engages in any other business in which Employer is involved at any time during the twelve month
period immediately prior to the termination of the Employee’s employment.
5. Confidentiality. Employee shall not disclose any information relating to Employer,
its employees or customers, and information regarding the affairs or operations of Employer,
including Employer proprietary information, trade secrets, patents and customer lists, to any third
party or parties during or after the term of this Agreement, without the prior written consent of
Employer. In connection herewith, Employee shall execute a Confidentiality and Non-Disclosure
Agreement attached hereto as Exhibit A and incorporated herein by this reference.
6. Limitations on Authority. Employee understands that he may not enter into any of
the following types of agreements that exceed Twenty Five Thousand Dollars ($25,000.00) in amount,
without the express written approval of the Chief Executive Officer or his designee:
a. Pledge the credit of Employer or any of its other employees;
b. Bind the Employer under any contract, agreement, note, mortgage or otherwise;
c. Release or discharge any debt due to Employer unless the Employer has received the full
amount thereof, and,
d. Sell, mortgage, transfer or otherwise dispose of any assets of the Employer.
7. Personnel Policies and Procedures. The Employer shall have the authority to
establish from time to time personnel policies and procedures to be followed by its employees.
Employee agrees to comply with the policies and procedures of the Employer. To the extent any
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provisions in Employer’s personnel policies and procedures differ with the terms of this Agreement,
the terms of this Agreement shall apply.
8. Compensation.
a. Salary. For the calendar year 2004, Employee shall be paid an annual base salary,
less income taxes and other applicable withholdings, of One Hundred Thousand Dollars ($100,000.00),
payable in equal monthly payments commencing on February 15, 2004. On or before December 31, 2004,
Employee shall be paid an additional amount of salary in the amount of Sixteen Thousand Six Hundred
and Sixty-six Dollars ($16,666.00). From and after January 1, 2005, Employee shall be paid an
annual base salary, less income taxes and other applicable withholdings, of One Hundred and Twenty
Thousand Dollars ($120,000.00), payable in equal monthly payments.
b. Stock Options. Employee shall have the right to purchase shares of common stock of
Employer in accordance with the terms of that certain Stock Option Agreement, in the form attached
hereto as Exhibit B and incorporated herein by this reference. The parties acknowledge that no
stock options shall be issued to Employee until Employer’s 2001 Stock Option Plan has been amended
to accommodate the issuance of such stock options, and any such stock options which would have been
available for exercise under the terms and conditions of such Stock Option Agreement had stock
options been issued to Employee as of the date of this Agreement shall vest immediately.
9. Fringe Benefits. The benefits set forth in this Section 9 shall continue through
the term of the Agreement and any renewals thereof, subject to any modifications thereof which
shall be set forth in writing and signed by the parties; and such benefits shall continue upon
termination for other than good cause (as defined below) until (a) the last day of a three (3)
month period after the effective date of termination or (b) the date upon which Employee accepts
employment from a third party after the effective date of termination, which ever date first
occurs.
a. Medical, Dental and Long-Term Disability. Employee and his family shall receive
medical insurance, dental insurance and long-term disability benefits as currently provided to
full-time employees of Employer.
b. Retirement Benefits. Employee shall receive retirement benefits (defined benefit
contribution (401 K) and pension plan) as currently available to full-time employees of Employer.
10. Vacation and Leave. a. Employee shall be entitled to three (3) weeks of paid
vacation per year and personal leave time. No more than one week of that vacation can be carried
over to the next calendar year. Any additional vacation time will be forfeited.
b. Employee agrees that no significant time off will be taken until employer receives notice from
the FDA that its product Artefill is approved for commercial sale and distribution.
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11. Expenses. Employer shall reimburse Employee for reasonable and necessary expenses
incurred by Employee in the ordinary course of business for Employer, in accordance with Employer’s
policies and procedures.
12. Termination. This Agreement and the employment of Employee shall terminate prior
to its expiration date under the following conditions:
a. The death of Employee;
b. The permanent disability of Employee (permanent disability shall exist when Employee
suffers from a condition of mind or body that indefinitely prevents his from further performance of
the essential functions of his position with or without reasonable accommodation); or,
c. Upon receipt by Employee of written notice from Employer that Employee’s employment is
being discharged for “good cause.” The Employer has “good cause” to discharge Employee, without
liability, for the reasons listed below:
i. Employee fails or refuses to faithfully and diligently perform the usual and customary
duties of his employment which failure or refusal is not cured within thirty (30) days after
written notice thereof is given to Employee; or
ii. Employee fails or refuses to comply with the policies, standards and/or rules of the
Employer which from time to time may be established; or
iii. Employee fails or refuses to act in accordance with any lawful direction or order of the
Employer; or
iv. It is determined that the Employee has conducted himself in an unprofessional, unethical,
illegal or fraudulent manner, or has acted or failed to act in a manner detrimental to the
reputation, character or standing of Employer; including, but not limited to, theft or
misappropriation of Employer’s assets, engaging in unlawful discriminatory or harassing conduct,
the filing of false expense or related reports, or being convicted of a felony; or
v. Employee violates any term or condition of this Agreement; or
vi. As a result of a slow-down in business, or similar circumstance, or upon a Change of
Control (defined below), it is determined that Employee’s services are no longer needed; or
d. Upon receipt by Employee of written notice from Employer that Employee’s employment is
being discharged for “other than good cause;” or
e. Upon receipt by Employer of written notice from Employee that Employee is resigning, except
as set forth otherwise below. In such event, Employer’s obligations hereunder shall terminate
after paying Employee any compensation owed through the last day he works; or
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f. By the mutual consent of Employer and the Employee on such terns as they may agree.
13. Compensation Upon Termination.
a. Good Cause. In the event Employee is discharged for good cause, he shall receive
two (2) weeks’ notice that his employment is terminated and shall receive compensation at his then
wage level for those two weeks. Employee is entitled to no other severance compensation when he is
terminated for good cause as defined in Section 12(c) above.
b. For Other Than Good Cause. In the event Employee’s employment is terminated for
other than good cause, he shall receive severance compensation of three (3) months’ salary at his
then-current wage level. Employee is entitled to no other severance compensation when termination
occurs under Section 12(d) above, except when such resignation occurs in connection with a Change
of Control as defined below.
c. Change of Control. “Change of Control” as used in this Agreement shall mean (a)
the acquisition of Employer by another entity by means of any transaction or series of related
transactions (including, without limitation, any reorganization, merger or consolidation, but
excluding any merger effected exclusively for the purpose of changing the domicile of Employer); or
(b) a sale or exchange of all or substantially all of the assets of the Employer; unless in the
case of transaction described in (a) or (b) above, the shareholders of record of Employer immediately prior to such acquisition or sale will,
immediately after such acquisition or sale (by virtue of securities issued as consideration for
such acquisition or sale or otherwise), hold at least fifty percent (50%) of the voting securities
of the surviving or acquiring entity. Employer will use its best efforts to ensure that the
acquiring or surviving company agrees to the same employment terms as set forth herein. If the
acquiring or surviving company does not agree to the existing employment terms, and Employee
resigns as a result of such Change of Control and the failure of the acquiring company to agree to
these employment terms and conditions, such termination shall be deemed to be “for other than good
cause,” notwithstanding Section 12(d) above, and Employee shall receive the severance compensation
set forth in Section 13(b) above. Payment of any severance pay due hereunder shall be made
immediately prior to the closing or consummation of any transaction which constitutes a Change of
Control. For purposes of this section, any resignation of Employee in connection with the
anticipated merger of Employer and Artes Europe (a foreign entity) shall not result in the payment
of severance benefits and shall not constitute a termination for “other than good cause.”
14. Arbitration/Sole Remedy for Breach of Agreement. In the event of any dispute
between Employer and Employee concerning any aspect of the employment relationship, including any
disputes relating to termination, all such disputes shall be resolved by binding arbitration before
a single neutral arbitrator pursuant to the following terms. This provision shall supersede any
prior arbitration agreement, policy or understanding between the parties. The parties intend to
revoke any prior arbitration agreement.
a. Claims Covered by the Agreement. Employee and Employer mutually consent to the
resolution by final and binding arbitration of all claims or controversies (“claims”) that Employer
may have against Employee or that Employee may have against Employer or
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against its officers,
directors, partners, employees, agents, pension or benefit plans, administrators, or fiduciaries,
franchisors, or any parent, subsidiary or affiliated company or corporation (collectively referred
to as “Employer”), relating to, resulting from, or in any way arising out of Employee’s employment
relationship with Employer and/or the termination of Employee’s employment relationship with
Employer, to the extent permitted by law, The claims covered by this Agreement include, but are not
limited to, claims for wages or other compensation due; claims for breach of any contract or
covenant (express or implied); tort claims; claims for discrimination and harassment (including,
but not limited to, race, sex, religion, national origin, age, marital status or medical condition,
disability, or sexual orientation); claims for benefits (except where an employee benefit or
pension plan specifies that its claims procedure shall culminate in an arbitration procedure
different from this one); and claims for violation of any public policy, federal, state or other
governmental law, statute, regulation or ordinance, except claims excluded in the following
section.
b. Claims Not Covered by the Agreement. Claims Employee may have for workers’
compensation (excluding discrimination claims under workers’ compensation statutes) or unemployment
compensation benefits are not covered by this Agreement. Also not covered are claims by Employer
for injunctive and/or other equitable relief for unfair competition and/or the use and/or
unauthorized disclosure of trade secrets or confidential information, as to which Employee
understands and agrees that Employer may seek and obtain relief from a court of competent
jurisdiction.
c. Required Notice of Claims and Statute of Limitations. Arbitration may be initiated
by Employee by serving or mailing a written notice to Xx. Xxxxxx Xxxxxxxx of Employer. Arbitration
may be initiated by Employer by serving or mailing a written notice to Employee at his/her last
known address. The notice shall identify and describe the nature of all claims asserted and the
facts upon which such claims are based. The written notice shall be served or mailed within the
applicable statute of limitations period set forth by federal or state law.
d. Arbitration Procedures.
i. After demand for arbitration has been made by serving written notice under the terms of
Section 142(c) of this Agreement, the party demanding arbitration shall file a demand for
arbitration with the American Arbitration Association (“AAA”) in San Diego, California. The
arbitrator shall be selected from the AAA panel and the arbitration shall be conducted pursuant to
AAA policies and procedures. All rules governing the arbitration shall be the rules as set forth
by AAA.
ii. The arbitrator shall apply the substantive law of the state of California, or federal law,
or both, as applicable to the claim(s) asserted.
iii. In the event the arbitrator determines a breach of contract occurred, the parties agree
that any award of contract damages shall not be greater than three (3) months’ wages at Employee’s
then-current rate of pay.
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iv. Either party may file a motion for summary judgment with the arbitrator under the Federal
Rules of Civil Procedure. The arbitrator is entitled to resolve some or all of plaintiff’s claims
through such a motion.
e. Arbitration Decision. The arbitrator’s decision will be final and binding. A
party’s right to appeal the decision is limited to grounds provided under applicable federal or
state law.
f. Arbitration Fees and Costs. Employer shall be responsible for the arbitrator’s
fees and costs. Except as provided by statute, each party shall be responsible for its own
attorneys’ fees.
g. Waiver of Jury Trial/Exclusive Remedy. Employee and Employer waive any
constitutional right to have any dispute between them covered by the terms of this Agreement
decided by a court of law and/or by a jury in a court proceeding and/or by any administrative
agency, other than those claims subject to Paragraph 14(b).
15. Successors and Assigns. The rights and obligations of the Employer under this
Agreement shall enure to the benefit of and shall be binding upon the successors and assigns of
Employer. Employee shall not be entitled to assign any of his rights or obligations under this
Agreement.
16. Governing Law. This Agreement shall be interpreted, construed, governed and
enforced in accordance to the laws of the State of California.
17. Amendments. No amendment or modification of the terms or conditions of this
Agreement shall be valid unless in writing and signed by the parties hereto.
18. Separate Terms/Severability. Each term, condition, covenant or provision of this
Agreement shall be viewed as separate and distinct, and in the event that any such term, covenant
or provision shall be held by a court or arbitrator of competent jurisdiction to be invalid,
unenforceable or void, the remaining provisions shall continue in full force and effect.
19. Waiver. A waiver by either party of a breach of provision or provisions of this
Agreement shall not constitute a general waiver, or prejudice the other party’s right otherwise to
demand strict compliance with that provision or any other provisions in this Agreement.
20. Notices. Any notice required or permitted to be given under this Agreement shall
be sufficient, if in writing, sent by mail to his residence in the case of Employee, or hand
delivered to the Employee, or to its principal office in the case of the Employer.
21. Entire Agreement. Employee acknowledges receipt of this Agreement and agrees that
this Agreement (including all exhibits attached hereto) represents the entire Agreement with
Employer concerning the subject matter hereof, and supersedes any previous oral or written
communications, representations, understandings or Agreements with Employer or any agent thereof
Employee understands that no representative of the Employer has been authorized to enter into any
Agreement or commitment with Employee which is inconsistent in any way with the terms of this
Agreement.
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IN WITNESS HEREOF, the parties have executed this Agreement as of the date set forth above.
| /s/ Xxxxxxx Xxxxxxxx | ||||||
| Xxxxxxx Xxxxxxxx | ||||||
| Artes Medical USA, Inc. | ||||||
| By: | /s/ Xx. Xxxxxx Xxxxxxxx
|
|||||
| Chief Executive Officer | ||||||
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