EMPLOYMENT AGREEMENT
Exhibit 10.1
This Employment Agreement (the “AGREEMENT”) is entered into effective as of September 3, 2009,
between Fibrocell Science Inc., a Delaware series limited liability company (the “Corporation” or
“Fibrocell Science”), and Xxxxxx Xxxx, an individual residing in and working out of Ireland (the
“Executive”).
WITNESSETH:
Fibrocell Science desires to offer employment to the Executive in order to have the benefits of his
expertise and knowledge. The Executive, in turn, desires to accept employment with Fibrocell
Science on the terms set forth in this Agreement. The parties, therefore, enter into this
Agreement to establish the terms and conditions of the Executive’s employment with Fibrocell
Science.
In consideration of the mutual covenants and representations contained in this Agreement, Fibrocell
Science and the Executive agree to as follows:
| 1. | EMPLOYMENT OF EMPLOYEE; DUTIES: Fibrocell Science agrees to employ the Executive, and
the Executive agrees to be employed by Fibrocell Science, as a senior executive of the
Company with the title of Chief Operating Officer for the period specified in Section 2
(the “Employment Period”), subject to the terms and conditions of this Agreement. During
the Employment Period, as Chief Operating officer, the Executive shall perform all duties
and responsibilities which are consistent with the positions and such additional duties and
responsibilities consistent with such positions as may be from time to time be assigned to
the Executive by the Board of Directors. |
The Executive shall devote substantially all of his working time to the business and affairs
of the Company other than during vacations of four weeks per year and periods of illness or
incapacity; provided, however, that nothing in this Agreement shall preclude the Executive
from devoting time required: (i) for serving as a director or officer of any organization or
entity not in a competing business with the Company, and any other businesses in which the
Company becomes involved; (ii) delivering lectures, writing articles or books, or fulfilling
speaking engagements; or (iii) engaging in charitable and community activities provided that
such activities do not interfere with the performance of his duties hereunder.
| 2. | EMPLOYMENT PERIOD: The Employment Period shall begin on the date of this agreement and
shall continue until December 31, 2011. Within ninety (90) days of the expiration of this
Agreement, the Board of Directors shall review this Agreement, and either continue and
extend this Agreement, terminate this Agreement, and/or offer the Executive a different
agreement. The Executive will be notified of such action before the expiration of this
Agreement. This Agreement shall remain in effect until so terminated and/or modified by
the Board. Failure of the Board to take any action within the said ninety-day time period
shall be considered as an extension of this Agreement for an additional one-year period of
time. Notwithstanding anything to the contrary contained in this “sunset provision,” it is
agreed that if a Change of Control occurs while this Agreement is in effect, then this
Agreement shall not be subject to termination or modification under this “sunset
provision,” and shall remain in force for a period of two years after such Change of
Control. |
| 3. | SALARY: During the Employment Period, Fibrocell Science shall pay the Executive at a
monthly rate equal to an annual salary of Three Hundred Thousand Dollars (US$300,000.00)
(the “Salary”).
The Board of Directors may periodically review the Executive’s Salary and may determine to
increase (but not decrease) the Executive’s Salary, in accordance with such policies as the
Company may hereafter adopt from time to time, if it deems appropriate. The Salary shall be
payable in equal periodic installments which are not less frequent than the periodic
installments in effect for the salaries of other senior executives of Fibrocell Science. |
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| 4. | BONUS: |
| a. | The Executive shall be entitled to a one-time bonus in the amount of
One hundred Thousand Dollars (US$100,000.00) (the “Signing Bonus”), payable to the
Executive within thirty (30) days of the execution of this agreement. |
| b. | The Executive shall be entitled to receive an annual bonus (the “Annual
Bonus”), payable each year subsequent to the issuance of final audited financial
statements, but in no case later than 120 days after the end of the Company’s most
recently completed fiscal year. The final determination on the amount of the
Annual Bonus will be made by the Compensation Committee of the Board of Directors,
based primarily on mutually agreed upon criteria, established with respect to the
ensuing fiscal year, within thirty (30) days following the adoption by the Board of
Directors of a budget relating to the ensuing year. Criteria for the Annual Bonus
for 2009 shall be agreed upon prior to or within sixty (60) days after the
execution of this Agreement. The Compensation Committee may also consider other
more subjective factors in making its determination. The targeted amount of the
Annual Bonus shall be fifty percent (50%) of the Executive’s Salary. The actual
Annual Bonus for any given period may be higher or lower than fifty percent (50%).
For any fiscal year in which Executive is employed for less than the full year,
Executive shall receive a bonus which is prorated based on the number of full
months in the year which are worked. For the avoidance of doubt, there shall be no
proration with respect to the calendar year ended December 31, 2009. |
| c. | Upon the Company’s successful completion of a capital raise in excess
of Six Million Dollars (US$6,000,000.00), or a series of capital raises that in
aggregate are in excess of US$6,000,000.00, the Executive shall be entitled to a
one-time bonus in the amount of fifty Thousand Dollars (US$50,000.00) (the “Special
Bonus”), payable to the Executive within thirty (30) days of the closing date of
the capital raise, or series of raises, provided that the Executive is the Chief
Operating Officer at the time of said event. |
| d. | The Executive shall be entitled to receive a one-time bonus in the
amount of Fifty Thousand Dollars (US$50,000.00) (the “Milestone Bonus”) upon the
U.S. Food and Drug Administration’s (the “FDA”) approval of the Company’s Biologics
License Application filing, payable to the Executive within thirty (30) days of the
closing date of such FDA approval, provided that the Executive is the Chief
Operation Officer at the time of said event. |
| 5. | BENEFITS: |
| a. | In addition to and except for the matters governed by this Agreement,
the Executive shall be entitled to employee benefits and perquisites, including but
not limited to pension, deferred compensation plans, incentive stock options, group
life insurance, disability, sickness and accident insurance and health benefits
under such plans and programs as provided to other Executives of the Company from
time to time. At the Executive’s option, in lieu of providing group medical
benefits, the Company will reimburse the Executive for health insurance premium
payments made pursuant to a private supplemental health insurance policy in Ireland
by the Executive (currently approximately $500 per month). The Company shall also
reimburse the Executive for a term life policy (currently approximately $200 per
month). |
| b. | The executive shall receive four (4) weeks of vacation annually,
administered in accordance with the Company’s existing vacation policy. |
| c. | The Executive shall be entitled to reimbursement for all reasonable
travel and entertainment expenses incurred by the Executive in connection with the
performance of his duties under this Agreement, including travel to the Company’s
various offices and facilities in the United States and abroad, reimbursement for
attending out-of-town meetings of the Board of Directors, and such other travel as
may be required or appropriate in Executive’s discretion, consistent with duly
approved Company budgets, to fulfill the responsibilities of his office, all in
accordance with such policies and procedures as the Company may from time to time
establish for senior officers and as required to preserve any deductions for
federal income taxation purposes to which the Company may be entitled and subject
to the Company’s normal requirements with respect to reporting and documentation of
such expenses. The Company shall also pay or reimburse Executive for all
membership fees and dues in appropriate professional associations and organizations
utilized by Executive in the course of his service for the Company, as well as all
expenses incurred by the Executive for Executive’s cellular telephone and portable
text messaging including monthly service charges, equipment maintenance and all
other ancillary charges including, but not limited to, text messaging, paging, and
wireless communications. |
| 6. | NON-DISCLOSURE; NON-COMPETITION: |
| a. | EMPLOYEE NON-DISCLOSURE, NON-COMPETITION AND ASSIGNMENT OF INVENTIONS
AGREEMENT: As a condition to this Agreement, the Executive agrees to execute and
comply with the terms and conditions of the “Fibrocell Science Inc. Employee
Non-Disclosure, Non-Competition and Assignment of Inventions Agreement” attached as
Exhibit 1. |
| b. | CONFIDENTIALITY: Executive covenants and agrees to keep this Agreement
and its terms confidential and to not discuss or disclose the terms of this
Agreement or any of the discussions or correspondence relating thereto with any
past, present or future employees of Fibrocell Science, and prospective employer
(s) or any representatives thereof, except as otherwise required by law
Notwithstanding the foregoing, the Executive may discuss the terms of this
Agreement with his attorney, financial advisors and immediate family members,
provided he first informs such individuals of their obligation to keep that
information confidential. |
| 7. | TERMINATION: |
| a. | TERMINATION BY Fibrocell Science: |
| i. | Fibrocell Science may terminate the Executive’s
employment under this Agreement without Cause (as defined in Section
7a(ii)), at any time by giving notice thereof to the Executive. The
Employment Period shall terminate as of the date of such termination of
the employment. |
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| ii. | Fibrocell Science may terminate the Executive’s
employment under this Agreement for Cause at any time by notifying the
Executive of such termination. For all purposes of this Agreement, the
Employment Period shall end as of the date of such termination of
employment. “CAUSE” shall mean the Executive’s |
| 1) | Neglect, failure or refusal to timely
perform the duties of his employment (other than by reason of a
physical or mental illness or impairment), or his gross negligence
in the performance of his duties in any material respect. |
| 2) | Material breach of any agreements,
covenants and representations in any employment agreement or other
agreement with Fibrocell Science or any affiliate or subsidiary. |
| 3) | Material violation of any law, rule,
regulation or by-law of any governmental authority (state, federal
or foreign), any securities exchange or association or other
regulatory or self-regulatory body or agency applicable to Fibrocell
Science or any affiliate or subsidiary or any material general
policy or directive of Fibrocell Science or any affiliate or
subsidiary. |
| 4) | Conviction of, or plea of guilty or nolo
contenere to, a crime involving moral turpitude, dishonesty, fraud
or unethical business conduct, or a felony. |
| 5) | Violation of the Employee Non-Disclosure,
Non-Competition and Assignment of Inventions Agreement. |
| 6) | Giving or accepting undisclosed material
commissions or other payments in cash or kind in connection with the
affairs of Fibrocell Science or its clients. |
| 7) | Failure to obtain or maintain any
registration, license or other authorization or approval that
Fibrocell Science or any affiliate or subsidiary reasonably believes
is required in order for the Executive to perform his duties. |
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| 8) | Habitual abuse of alcohol or drugs. |
| b. | TERMINATION BY THE EMPLOYEE: The Executive may terminate this
Agreement at any time, for any reason or for no reason at all, by giving notice
thereof to Fibrocell Science at least thirty (30) days before the effective date of
such termination. The Employment Period shall terminate as of the date of such
termination of employment. |
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| x. | XXXXXXXXX BENEFITS: |
| i. | Except as provided in 7c(ii), if the Executive’s
employment under this Agreement is terminated before the end of the
Employment Period by Fibrocell Science without Cause or if the Executive
dies or becomes totally disabled (as defined in Section 7d), Fibrocell
Science shall continue to pay to Executive the Base Salary (at a monthly
rate equal to the rate in effect immediately prior to such termination)
for the longer of (x) the remaining Term or (y) twelve (12) months from
the date of termination (the “Termination Payments”), when, as and if
such payments would have been made in the absence of Executive’s
termination. The Termination Payments shall be made regardless of
Executive’s subsequent re-employment as long as any new employment is not
in violation of Section 6 of this Agreement. |
| ii. | If the Executive’s employment under this Agreement
is terminated by Fibrocell Science following a Change of Control without
Cause or by the Executive for Good Reason, Fibrocell Science shall pay
the Executive a lump sum cash payment, within thirty (30) days of the
date of such termination, equal to the greater of (x) the remaining Term
or (y) twelve (12) months from the date of termination (the “Termination
Payments”), when, as and if such payments would have been made in the
absence of Executive’s termination. |
| iii. | If the Executive’s employment under this Agreement
is terminated by Fibrocell Science for Cause or by the Executive without
Good Reason, Fibrocell Science shall have no further obligations to
Executive under this Agreement, and any and all options granted hereunder
shall terminate according to their terms. |
| iv. | “GOOD REASON” means: |
| 1) | Any material reduction in the Executive’s
authority, duties or responsibilities occurring after a Change in
Control. |
| 2) | Any material failure by Fibrocell Science
to pay or provide the compensation and benefits under this
Agreement; provided that, in each such event, the Executive shall
give Fibrocell Science notice thereof which shall specify in
reasonable detail the circumstances constituting Good Reason, and
there shall be no Good Reason with respect to any such circumstances
cured by Fibrocell Science within thirty (30) days after such
notice. |
| 3) | A “CHANGE IN CONTROL” which shall be
deemed to have occurred on: |
| a. | The date of the
acquisition by any “person” (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act), excluding
Fibrocell Science or any of its subsidiaries or affiliates
or any employee benefit plan sponsored by any of the
foregoing, or beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act) of 50.1% or more of
either (x) the membership units of Fibrocell Science or (y)
the then outstanding voting securities entitled to vote
generally in the election of directors; or |
| b. | The date the individuals
who constitute the Board as of the date of Fibrocell
Science’s formation(or as emergence from Chapter 11
reorganization) (the “Incumbent Board”) cease for any reason
to constitute at least a majority of the members of the
Board, provided that any individual becoming a member
subsequent to the effective date of the formation whose
admittance was approved by a vote of at least a majority of
the directors then encompassing the Incumbent Board; or |
| c. | The Consummation of a
merger, consolidation, recapitalization, reorganization,
sale or disposition of all or a substantial portion of
Fibrocell Science’s assets, a reverse stock split of
outstanding voting securities, the issuance of shares of
stock of Fibrocell Science in connection with the
acquisition of the stock or assets of another entity,
provided, however, that a Change in Control shall not occur
under this clause: |
| i. | If
consummation of the transaction would result in at
least 51% of the total voting power represented by
the voting securities of Fibrocell Science (or, if
not Fibrocell Science, the entity that succeeds to
all or substantially all of Fibrocell Science’s
business) outstanding immediately after such
transaction being beneficially owned (within the
meaning of Rule 13d-3 promulgated pursuant to the
Exchange Act) by at least 75% of the holders of
outstanding voting securities of Fibrocell Science
immediately prior to the transaction, with the
voting power of each such continuing holders not
substantially altered in the transaction. |
| 4) | If the Executive is entitled to receive
payments or other benefits under this Agreement upon the termination
of his employment with Fibrocell Science, the Executive hereby
irrevocably waives the right to receive any payments or other
benefits under any other severance or similar plan maintained by
Fibrocell Science (“OTHER SEVERANCE PLAN”), provided, however, that
if the payments and other benefits provided under such Other
Severance Plan exceed the payments and other benefits under this
Agreement, the Executive, in his sole discretion, may elect to
receive the payments and benefits under such Other Severance Plan in
lieu of the payments and benefits under this Agreement upon his
termination of employment. |
| d. | TERMINATION BY DEATH OR DISABILITY: Except for the right to the
payment of any unpaid Salary or Bonus, as provided in this Agreement, This
Agreement shall terminate automatically upon the Executive’s death. If Fibrocell
Science determines in good faith that the Executive has a “total disability”
(within the meaning of such term), Fibrocell Science may terminate his employment
under this Agreement by notifying the Executive thereof at least thirty (30) days
before the effective date of such termination. |
| 8. | NOTICES: Any notices, requests, demands and other communications provided for by this
Agreement shall be sufficient if in writing and if sent by registered or certified mail to
the Executive at the last address he has filed in writhing with Fibrocell Science or, in
the case of Fibrocell Science, to Fibrocell Science’s principal executive offices. |
| 9. | EQUITY GRANT: In connection with the restructuring of Fibrocell Science’s predecessor
corporation, Isolagen, Inc., the Executive shall be granted 5% of new equity of Fibrocell
Science issued pursuant to the restructuring agreement (the “Equity” or the “Shares”) prior
to the exit financing. The Equity shall be granted upon the earlier of (i) confirmation of
the restructuring plan, or (ii) the execution of this Agreement. One half (1/2) shall vest
upon entering into this Agreement and one fourth (1/4) shall vest on each successive one
year anniversary. In the event of changes in the structure of Fibrocell Science by reason
of any special dividend, spin-off, split-up, recapitalization, merger, consolidation,
business combination or exchange of such shares and the like, Fibrocell Science shall make
an equitable adjustment to the number of Shares to be granted hereunder. Fibrocell Science
shall make a gross-up payment with respect to the equity grant of 5% noted above. For
purposes of determining the amount of the tax gross-up payment, the Executive will be
deemed to pay federal/Irish income taxes at the highest marginal rate of income taxation in
the calendar year with respect to which the tax gross-up payment is to be made and state
and local (incl. Ireland) taxes at the at the highest marginal rates of taxation in the
state / locality (incl. Ireland) where taxes thereon are lawfully due. Such tax gross-up
payment shall be made during the year following the year with respect to which the
liability for the gross-up payment was incurred. |
In the event that the Executive is terminated without cause, or in the event that Fibrocell
Science does not renew this Agreement at the end of the Employment Period, or in the event
of a change in control, any unvested Shares shall automatically vest upon the earlier of (1)
the termination date or (2) the date of change in control. In the event the employee is
terminated with cause, any unvested
Shares shall be canceled upon the termination date. In the event that the Executive
voluntarily resigns from Fibrocell Science, or in the event that the Executive does not
renew this Agreement at the end of the Employment Period, all unvested Shares shall be
canceled upon the termination date. |
| 10. | HEADINGS OF NO EFFECT: The paragraph headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or interpretation of
this Agreement. |
| 11. | WITHHOLDING TAXES: To the extent that Fibrocell Science subsequently reclassifies the
Executive as an Executive of Fibrocell Science with respect to offering benefits, Fibrocell
Science shall have the right, to the extent permitted by law, to withhold from any payment
of any kind due to the Executive under this Agreement to satisfy the tax withholding
obligations of Fibrocell Science under applicable law. |
| 12. | BINDING AGREEMENT; WAIVER: This Agreement shall be binding upon the Executive and
Fibrocell Science on and after the date of this Agreement. The rights and obligations of
Fibrocell Science under this Agreement shall inure to the benefit of and shall be binding
upon Fibrocell Science and any successor of Fibrocell Science, and the benefits of this
Agreement shall inure to the benefit of the Executive’s estate and beneficiaries in the
event of the Executive’s death. Neither party may assign his or its duties or rights under
this Agreement without the prior written consent of the other party; provided, however
that: |
| a. | Fibrocell Science may assign this Agreement to any subsidiary, parent
or affiliate, without the consent of the Executive, and such assignment shall not,
in and of itself, constitute a termination of the employment under this Agreement,
and |
| b. | This Agreement may be assigned without consent in connection with any
sale of all or substantially all of Fibrocell Science’s assets or upon any merger,
consolidation or reorganization of Fibrocell Science with or into any other entity. |
| 13. | ENTIRE AGREEMENT; LAST AGREEMENT: This Agreement and the Fibrocell Science Executive
Non-Disclosure, Non-Competition and Assignment of Inventions Agreement constitute the
entire understanding of the Executive and Fibrocell Science with respect to the subject
matter hereof and supersedes and voids any and all prior agreements or understandings,
written or oral, regarding the subject matter hereof. This Agreement may not be changed,
modified, or discharged orally, but only by an instrument in writing signed by the parties.
The parties hereto agree that this Agreement shall not be renewed or renegotiated
following the Employment Period. |
| 14. | GOVERNING LAW AND SEVERABILITY: This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania (without giving effect to choice of law principles or rules
thereof that would cause the application of the laws of any jurisdiction other than the
Commonwealth of Pennsylvania) and the invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other provision. Any
provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating or affecting the remaining
provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction. |
| 15. | ARBITRATION: Disputes regarding the Executive’s employment with Fibrocell Science,
including, without limitation, any dispute under this agreement which cannot be resolved by
negotiations between Fibrocell Science and the Executive, but excluding any disputes
regarding the Executive’s compliance with the restrictions of the Executive Non-Disclosure,
Non-Competition and Assignment of Inventions Agreement referred to in Section 6 of this
Agreement, shall be submitted to, and solely determined by, final and binding arbitration
conducted by JAMS/ENDISPUTE, INC.’s arbitration rules applicable to employment disputes,
and the parties agree to be bound by the final award of the arbitrator in any such
proceeding. The arbitrator shall apply the laws of the state of Delaware with respect to
the interpretation or enforcement of any matter relating to this Agreement; in all other
cases the arbitrator shall apply to the state specified in Fibrocell Science’s alternative
dispute resolution policy as in effect from time to time (if any). Arbitration may be held
in Delaware, Pennsylvania, or such other place as the parties hereto may mutually agree,
and shall be conducted solely by a former judge. Judgment upon the award by the arbitrator
may be entered in any court having jurisdiction thereof. |
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed and
delivered by its authorized officers or individually, on the 3rd day of September, 2009.
| EXECUTIVE |
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| /s/ Xxxxxx Xxxx | ||||
| Xxxxxx Xxxx | ||||
| POST-PETITION CREDITOR INSTRUCTING GROUP |
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| /s/ Xxxxxx Xxxxxx | ||||
| Name: | ||||
Exhibit 1
EMPLOYEE NON-DISCLOSURE, NON-COMPETITION AND ASSIGNMENT OF INVENTIONS AGREEMENT
This Agreement is made between Fibrocell Science Inc., a Delaware corporation (“Fibrocell
Science”), and Xxxxxx Xxxx (the “EMPLOYEE”).
In consideration of the employment or the continued employment of the Employee by Fibrocell
Science, Fibrocell Science and the Employee agree as follows:
| 1. | PROPRIETARY INFORMATION: |
| a. | The Employee agrees that all information, whether or not in writing, of
a private, secret or confidential nature concerning Fibrocell Science’s business,
business relationships or financial affairs (collectively, “Proprietary
Information”) is and shall be the exclusive property of Fibrocell Science. By way
of illustration, but not limitation, Proprietary Information shall include the
source format of Fibrocell Science research reports, research fulfillment process,
information concerning the terms of Fibrocell Science’s strategic partnerships with
agents, service providers, and other business partners, and all inventions,
products, processes, methods, techniques, formulas, compositions, projects,
developments, plans, research data, financial data, personnel data, computer
programs, source and object codes, customer and supplier lists, know-how and
contacts and our knowledge of customers or prospective customers of Fibrocell
Science. The Employee will not disclose any Proprietary Information to any person
or use the same for any purposes (other than in the performance of his duties as an
employee of Fibrocell Science) without written approval by an officer of Fibrocell
Science, either during or after his employment with Fibrocell Science, unless and
until such Proprietary Information has become public knowledge without fault by the
Employee. |
| b. | The Employee agrees that all files, letters, memoranda, reports,
records, data sketches, drawings, notebooks, program listings, or other written,
electronic, photographic, or other tangible material containing Proprietary
Information, whether created by the Employee or others, which shall come into his
custody or possession, shall be and are the exclusive property of the Fibrocell
Science to be used by the Employee only in the performance of his duties for
Fibrocell Science. All such materials or copies thereof and all tangible property
of Fibrocell Science in the custody or possession of the Employee shall be
delivered to Fibrocell Science upon the earlier of (i) a request by Fibrocell
Science or (ii) the termination of his employment. After such delivery, the
Employee shall not retain any such materials or copies thereof or any such tangible
property. |
| c. | The Employee agrees that his obligation not to disclose or to use
information and materials of the types set forth in paragraphs (a) and (b) above,
and his obligation to return materials and tangible property, set forth in
paragraph (b) above, also extends to such types of information, materials and
tangible property of customers of Fibrocell Science or suppliers to Fibrocell
Science or other third parties who may have disclosed or entrusted the same to
Fibrocell Science or to the Employee. |
| 2. | DEVELOPMENTS: |
| a. | If at any time or times during his employment, the Employee shall
(either alone or with others) make, conceive, create, discover, invent or reduce to
practice any invention, modification, discovery, design, development, improvement,
process, software program, work of authorship, documentation, formula, data,
technique, know-how, trade secret or intellectual property right whatsoever or any
interest therein (whether or not patentable or registerable under copyright,
trademark or similar statuettes or subject to analogous protection) (herein called
“Developments”) that (i) relates to the business of Fibrocell Science or any
customer of or supplier to Fibrocell Science in connection with such customer’s or
supplier’s activities with Fibrocell Science or any of the products or services
being developed, manufactured or sold by Fibrocell Science or which may be used in
relation therewith, (ii) results from tasks assigned to the Employee by Fibrocell
Science or (iii) results from the use of premises or personal property (whether
tangible or intangible) owned, leased or contracted for by Fibrocell Science, such
Developments and the benefits thereof are and shall immediately become the sole and
absolute property of Fibrocell Science and its assigns, as works made for hire or
otherwise, and the Employee shall promptly disclose to Fibrocell Science (or any
persons designated by it) each such Development and, as may be necessary to ensure
Fibrocell Science’s ownership of such Developments, the Employee hereby assigns any
rights, title and interest (including, but not limited to, any copyrights and
trademarks) in and to the Developments and benefits and/or rights resulting
therefrom to Fibrocell Science and its assigns without further compensation and
shall communicate, without cost or delay, and without disclosing to others the
same, all available information relating thereto (with all necessary plans and
models) to Fibrocell Science. |
| b. | The Employee will, during his employment and at any time thereafter, at
the request and cost of Fibrocell Science, promptly sign, execute, make and do all
such deeds, documents, acts and things as Fibrocell Science and its duly authorized
agents may reasonably require: (i) to apply for, obtain, register and vest in the
name of Fibrocell Science alone (unless Fibrocell Science otherwise directs)
letters patent, copyrights, trademarks or other analogous protection in any country
throughout the world and when so obtained or vested to renew and restore the same;
and (ii) to defend any judicial, opposition or other proceedings in respect of such
applications and any judicial, opposition or other proceedings or petitions or
applications for revocation of such letters patent, copyright, trademark or other
analogous protection. |
| 3. | OTHER AGREEMENTS: The Employee hereby represents that, except as the Employee has
disclosed in writing to Fibrocell Science, the Employee is not bound by the terms of any
agreement with any previous employer or other party to refrain from using or disclosing any
trade secret or confidential or proprietary information in the course of his employment
with Fibrocell Science or to refrain from competing, directly or indirectly, with the
business of such previous employer or any other party. The Employee further represents
that, to the best of his knowledge, his performance of all the terms of this Agreement and
as an employee of Fibrocell Science does not and will not breach
any agreement to keep in confidence proprietary information, knowledge or data acquired by
the Employee in confidence or in trust prior to his employment with Fibrocell Science, and
the Employee will not knowingly disclose to Fibrocell Science or induce Fibrocell Science to
use any confidential or proprietary information or material belonging to any previous
employer or others. |
| 4. | OBLIGATIONS TO GOVERNMENT OR OTHER THIRD PARTIES: The Employee acknowledges that
Fibrocell Science from time to time may have agreements with the other persons or entities
or with the United States Government, foreign governments, or agencies thereof, which
impose obligations or restrictions on Fibrocell Science regarding inventions made during
the course of work under such agreements or regarding the sensitive nature of such work.
The Employee agrees to be bound by all such obligations and restrictions which are made
known to the Employee and to take all action necessary to discharge the obligations of
Fibrocell Science under such agreements. |
| 5. | NO EMPLOYMENT CONTRACT: The Employee understands that this Exhibit 1, by itself, does
not constitute a contract of employment and does not imply that his employment will
continue for any period of time. |
| 6. | NONCOMPETITION: During the period of the Employee’s employment with Fibrocell Science
and for a period of twelve (12) months after the termination or expiration thereof, the
Employee will not directly or indirectly (i) within any state or foreign jurisdiction in
which Fibrocell Science or any subsidiary of the Fibrocell Science is then providing
services or products or marketing its services or products (or engaged in active
discussions to provide such services), or within a fifty (50) mile radius of any such state
or foreign jurisdiction, directly or indirectly own any interest in, manage, control,
participate in, consult with, render services for, or in any manner engage in any business
engaged in by Fibrocell Science (unless the Board of Directors shall have authorized such
activity and the Company shall have consented thereto in writing), whether as an individual
proprietor, partner, stockholder, officer, employee, director, joint venture, investor,
lender, or in any other capacity whatsoever (other than as the holder of not more than one
percent (1%) of the total outstanding stock of a publicly-held company), to any business
that directly or indirectly competes with Fibrocell Science, or provides products or
services of the kind or type acquired, developed or being developed, produced, marketed,
distributed, planned, furnished or sold by Fibrocell Science while the Employee was
employed by Fibrocell Science; or (ii) recruit, solicit or induce, or attempt to induce,
any employee or employees of Fibrocell Science to terminate their employment with, or
otherwise cease their relationship with, Fibrocell Science; pr (iii) solicit, divert or
take away, or attempt to divert or take away, the business or patronage (with respect to
products or services of the kind or type developed, produced, marketed, furnished or sold
by Fibrocell Science) of any of the clients, customers or accounts, or prospective clients,
customers or accounts, of Fibrocell Science which were contacted, solicited or served by
the Employee while employed by Fibrocell Science. |
||
The term “business engaged in by the Company” shall mean the development and
commercialization of autologous fibroblast system technology for application in, among other
therapies, dermatology, surgical and post-traumatic scarring, skin ulcers, cosmetic surgery,
periodontal disease, reconstructive dentistry, vocal chord injuries, urinary incontinence,
and digestive and gastroenterological disorders and other applications relating to the
market for autologous fibroblast or UMC cells and the five
derivative cell lines: osteoblast, chondroblast, fibroblast, adipocyte, and neuroectoderm. |
| 7. | OUTSIDE EMPLOYMENT: The Employee agrees not to undertake any other employment (whether
or not compensated) without the prior written consent of Fibrocell Science; provided
however, that nothing herein shall be construed to prevent the Employee from making
investments of his personal assets for from engaging in religious, charitable, community or
other similar activities, so long as such investments and activities do not violate the
provisions of Section 6 hereof or unreasonably interfere with the performance by the
Employee of his duties and responsibilities as an officer or employee of Fibrocell Science. |
| 8. | MISCELLANEOUS: |
| a. | Each provision of this Agreement shall be treated as a separate and
independent clause, and the invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision of
this Agreement. Moreover, if one or more of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as to scope,
activity, geography, time-period, subject, or otherwise so as to be unenforceable
at law, such provision or provisions shall be construed by the appropriate judicial
body by limiting or reducing it or them, so as to be enforceable to the maximum
extent compatible with the applicable law as it shall then appear. |
| b. | This Agreement supersedes all prior agreements, written or oral,
between the Employee and Fibrocell Science relating to the subject matter of this
Agreement. This Agreement may not be modified, changed or discharged in whole or
in part, except by an agreement in writing signed by the Employee and Fibrocell
Science. The Employee agrees that any change or changes in his duties, salary or
compensation after the signing of this Agreement shall not affect the validity or
scope of this Agreement. |
| c. | This Agreement will be binding upon the Employee’s heirs, executors and
administrators and will inure to the benefit of Fibrocell Science and its
successors and assigns. |
| d. | No delay or omission by Fibrocell Science in exercising any right under
this Agreement will operate as a waiver of that or any other right. A waiver or
consent given by Fibrocell Science on any one occasion is effective only in that
instance and will not be construed as a bar to or waiver of any right on any other
occasion. |
| e. | The Employee expressly consents to be bound by the provisions of this
Agreement for the benefit of Fibrocell Science or any subsidiary or affiliate
thereof to whose employ the Employee may be transferred without the necessity that
this Agreement be re-executed at the time of such transfer. |
| f. | The restrictions contained in this Agreement are necessary for the
protection of the business and goodwill of Fibrocell Science and are considered by
the Employee to be reasonable for such purpose. The Employee agrees that any
breach of this Agreement is likely to cause Fibrocell Science substantial and
irrevocable damage and therefore, in the event of any such
breach, the Employee agrees that Fibrocell Science, in addition to such other
remedies which may be available, shall be entitled to specific performance and other
injunctive relief. |
| g. | This Agreement is governed by and will be construed as a sealed
instrument under and in accordance with the laws of the State of Pennsylvania. |
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed and
delivered by its authorized officers or individually, on the 3rd day of September, 2009.
| EMPLOYEE |
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| /s/ Xxxxxx Xxxx | ||||
| Xxxxxx Xxxx | ||||
