Exhibit 10.22
CONSULTING AND SEPARATION AGREEMENT
THIS CONSULTING AND SEPARATION AGREEMENT (this "Agreement") dated as of
August 12, 1996 is entered into by and between Xxxxxx Xxxxxx ("Xxxxxx") and
ProCyte Corporation ("ProCyte").
RECITALS
A. Ashley has been employed as Chief Executive Officer and President of
ProCyte and serves as Chairman of ProCyte's Board of Directors (the "Board of
Directors"). Ashley's employment relationship with ProCyte is terminated
effective August 12, 1996.
X. Xxxxxx and ProCyte wish to have Ashley continue as a Director and
Chairman of the Board of Directors and to provide consulting services to
ProCyte, upon the terms and conditions set forth herein.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises contained below, it is agreed as follows:
1. EMPLOYMENT; CHAIRMAN OF THE BOARD
Effective August 12, 1996, Ashley's employment with ProCyte is terminated
and he has resigned as Chief Executive Officer and President of ProCyte. Ashley
will continue to serve as a Director and Chairman of the Board of Directors
through the next annual shareholders meeting, his nomination and election
thereafter being at the discretion of the Board of Directors and/or
shareholders, as the case may be.
2. CONSULTING SERVICES
As and when requested by ProCyte, Ashley shall provide consulting services
to ProCyte until August 11, 1999 (the "Consulting Period"); provided, however,
that the consulting services will be provided at mutually agreed upon times at
ProCyte's offices, Kirkland, Washington, or such other locations reasonably
requested by ProCyte and will not exceed an average of eight (8) hours per week
unless otherwise agreed. Ashley shall be reimbursed for all preapproved,
reasonable out-of-pocket business expenses incurred by him in providing the
consulting services upon presentation of an itemized expense voucher, in a form
prescribed by ProCyte, together with receipts or other reasonable evidence or
substantiation of these expenses.
3. CONSIDERATION
(a) CASH. In consideration of this Agreement, ProCyte shall pay
Ashley at an annual rate of $107,500 (i.e., approximately 50% of his current
gross base salary) at ProCyte's normal pay periods (currently every two weeks)
during the Consulting Period. In addition, ProCyte shall pay Ashley for a
period of up to eighteen (18) months after his termination of employment the
cost of any health insurance benefits he elects to continue under COBRA for
himself and/or his eligible dependents.
(b) TAX CONSEQUENCES. Because Ashley is an independent contractor,
no withholding of taxes will be made from the amounts paid pursuant to
Section 3(a). Ashley assumes any and all tax obligations that may be imposed
now or at any future time with respect to such payments. Ashley shall indemnify
and hold harmless ProCyte and its responsible directors, officers, or managers
against any claims, assessments, liens, penalties, or judgments that may be
asserted against ProCyte or its directors, officers, or managers for liability
for unpaid taxes associated with the payments or treatment or characterization
of the payments to Ashley.
(c) STOCK OPTION. The stock option granted to Ashley on January 26,
1995 to purchase One Hundred Fifty Thousand (150,000) shares of ProCyte Common
Stock at $2.94 per share (the "Option") pursuant to ProCyte's 1989 Stock Option
Plan (the "Plan") shall continue to vest and be exercisable during the term of
Ashley's consulting services because his consulting relationship constitutes a
continuing relationship with ProCyte under the Plan, it being recognized that
the Option will become a nonqualified stock option and lose its status as an
incentive stock option. During the Consulting Period, Ashley shall not be
eligible for, and shall rescind, any stock option grants pursuant to the 1991
Stock Option Plan for Nonemployee Directors or any other stock option plan for
nonemployee directors.
(d) COMPENSATION AS DIRECTOR. During the Consulting Period, Ashley
shall not receive any compensation for his continuing service as a Director or
Chairman of the Board of Directors, other than reimbursement for his expenses.
4. BENEFITS
Except as expressly provided in this Agreement, all benefits to which
Ashley was entitled as of the date of termination of employment shall cease as
of the date of termination of employment, except Ashley's right to health
insurance benefits under COBRA, if Ashley elects, and his right, in accordance
with federal law, to leave his 401(k) contributions in ProCyte's 401(k) plan.
5. REAFFIRMATION OF PRIOR AGREEMENTS
Ashley and ProCyte expressly reaffirm and incorporate herein as part of
this Agreement the following agreements:
(a) INDEMNITY AGREEMENT. The Indemnity Agreement that Ashley signed
effective February 23, 1995, shall remain in full force and effect.
(b) PROPRIETY INFORMATION AND INVENTION AGREEMENT. The Propriety
Information and Invention Agreement that Ashley signed effective January 29,
1987 shall remain in full force and effect, it being understood and agreed that
the provisions applicable or relating to employment shall also be applicable or
relate to his consulting services during the Consulting Period.
(c) CONFIDENTIALITY AND COMPUTER SYSTEMS AGREEMENT. The
Confidentiality and Computer Systems Agreement that Ashley signed effective
January 28, 1994 shall remain in full force and effect.
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6. NONSOLICITATION
Ashley shall not directly or indirectly solicit or entice, or attempt to
solicit or entice, any employee, consultant, customer, research collaborator or
corporate partner of ProCyte to cease his, her, or its relationship with
ProCyte.
7. COOPERATION IN ONGOING LITIGATION
Ashley agrees to make himself available for, and to provide whatever
cooperation and assistance may be requested by ProCyte relating to, any ongoing
or future litigation in which ProCyte or any officer, director, stockholder,
manager, agent or representative of ProCyte is a party or has a direct interest
relating to matters occurring before or during Ashley's employment with ProCyte
or service on the Board of Directors, including, without limitation, IN RE
PROCYTE SECURITIES LITIGATION and any related cases; provided, however, that
Ashley will not be expected to spend time on such matters in excess of the time
he is to be consulting pursuant to Section 2 unless ProCyte has agreed to
compensate him at a reasonable consulting fee plus expenses. Ashley shall
execute all documents in connection with such matters as may be reasonably
requested of him.
8. NO DISPARAGEMENT
Ashley shall not make any disparaging or negative remarks to anyone, either
inside or outside of ProCyte, about ProCyte or ProCyte's business, business
practices, products, patents, technology, marketing strategy, services,
policies, judgments, decisions, officers, directors, or employees. ProCyte
shall not make any disparaging or negative remarks to anyone, either inside or
outside of ProCyte, about Ashley or Ashley's proposed business, business
practices, services, judgments or decisions.
9. GENERAL RELEASE OF CLAIMS
Ashley expressly waives any claims against ProCyte and releases ProCyte
(including its officers, directors, shareholders, managers, agents and
representatives) from any claims that Xxxxxx xxx have in any way arising out of
or connected with Ashley's employment with ProCyte. It is understood that this
release includes, but is not limited to, any claims for wages, bonuses,
employment benefits, or damages of any kind whatsoever, arising out of any
contracts, express or implied, any covenant of good faith and fair dealing,
express or implied, any theory of wrongful discharge, any legal restriction on
ProCyte's right to terminate employees, or any federal, state or other
governmental statute or ordinance, including, without limitation, Title VII of
the Civil Rights Act of 1964, the federal Age Discrimination in Employment Act,
the Americans with Disabilities Act, the Washington Law Against Discrimination,
or any other legal limitation on the employment relationship.
Ashley represents that he has not filed any complaints, charges or lawsuits
against ProCyte with any governmental agency or any court, and agrees that he
shall not initiate, assist or encourage any such actions.
This waiver and release shall not waive or release claims where the events
in dispute first arise after execution of this Agreement, nor shall it preclude
Ashley from filing a lawsuit for the exclusive purpose of enforcing Ashley's
rights under this Agreement.
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10. SEVERABILITY
The provisions of this Agreement are severable, and if any part of it is
found to be unlawful or unenforceable, the other provisions of this Agreement
shall remain fully valid and enforceable to the maximum extent consistent with
applicable law.
11. KNOWING AND VOLUNTARY AGREEMENT
Ashley represents and agrees that he has read this Agreement, understands
its terms and the fact that it releases any claim he might have against ProCyte
and its agents, understands that he has the right to consult counsel of choice
and has done so, or knowingly waives the right to do so, and enters into this
Agreement without duress or coercion from any source.
12. ENTIRE AGREEMENT
This Agreement sets forth the entire understanding between Ashley and
ProCyte and supersedes and cancels the Key Executive Severance Agreement dated
as of February 23, 1995 and any other prior agreements or understandings,
express or implied, with respect to the subject matter hereof, including the
terms of Ashley's consulting services to be provided to ProCyte and the
termination of his relationship as an employee and officer. Ashley acknowledges
that in executing this Agreement, Ashley does not rely upon any representation
or statement by ProCyte or any representative of ProCyte concerning the subject
matter of this Agreement, except as expressly set forth in the text of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
PROCYTE CORPORATION XXXXXX XXXXXX
By_____________________________ ____________________________
Xxxxxx Xxxxxx
Title: _________________________
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