Exhibit 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made effective as of
March 3, 2000 (the "Effective Date"), between AUTOLOGOUS WOUND THERAPY, INC., a
Delaware corporation (the "Company"), and ROBIN LEE GELLER, Ph.D. ("Executive").
WHEREAS, the Company desires to employ Executive on the terms and
conditions hereinafter set forth;
WHEREAS, the Company recognizes that Executive's employment is critical
to the growth and success of the Company and therefore desires to assure the
Company of Executive's continued employment; and
WHEREAS, based on the foregoing, the Company and Executive wish to
enter into this agreement to come into force as of the Effective Date.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements herein contained, the Company and Executive hereby
agree as follows:
ARTICLE 1. EMPLOYMENT
A. EMPLOYMENT AND DUTIES. The Company shall employ Executive for the Term (as
hereinafter defined) as Vice President, Scientific Affairs, to perform such
duties as she shall reasonably be directed by the President to perform.
Executive hereby accepts such employment and agrees to render such services on
behalf of the Company. Executive shall perform her duties and carry out her
responsibilities hereunder in a diligent manner, and shall devote her exclusive
and full working time, attention and effort to the affairs of the Company, shall
use all reasonable her efforts to promote the interests of the Company and shall
be just and faithful in the performance of her duties and in carrying out her
responsibilities.
B. LOCATION. The principal location for performance of Executive's services
hereunder shall be at the Company's executive offices, which are to be
re-located to north suburban Chicago, Illinois, subject to reasonable travel
requirements during the course of performing such services.
ARTICLE 2. EMPLOYMENT TERM
The term of Executive's employment hereunder (the "Term") shall be
deemed to commence on the Effective Date and shall end on December 31, 2001,
unless sooner terminated in accordance with the terms of this Agreement;
provided, however, that the Term shall be automatically renewed and extended for
additional and successive Terms of two (2) years each at the end of each Term
(and any subsequent renewal Term thereof) unless either party gives Notice of
Termination (as hereinafter defined) to the other party no later than ninety
(90) days before the expiry of the then-current Term.
ARTICLE 3. COMPENSATION AND BENEFITS
In consideration for performing services on behalf of the Company, the
Executive shall receive the following compensation and benefits:
A. CASH COMPENSATION.
i. BASE SALARY. The Company shall pay Executive an annual salary of One
Hundred and Fifty Thousand Dollars ($150,000), payable in bi-weekly
installments, in arrears (the "Base Salary"). The Base Salary shall be
reviewed annually by the Company's Board of Directors and may be
increased, but not decreased (unless mutually agreed upon by Executive
and the Company).
ii. BONUS AND INCENTIVE PLANS. The Company shall establish, and
Executive shall be entitled to participate in, Executive Bonus
Compensation and Long-Term Incentive Programs, which shall be
substantially in accordance with the summary points contained in Part A
of Appendix I, attached hereto and made part hereof.
iii. PARTICIPATION IN BENEFIT PLANS. The Company shall establish, and
Executive shall be entitled to participate in (and to the extent that
Executive's position, title, tenure, salary, age, health, and other
qualifications make her eligible to participate in), employee benefit
plans or programs, which shall be substantially in accordance with the
summary points contained in Part B of Appendix I. The Company does not
guarantee the continuance of any particular employee benefit plan or
program during the Term and Executive's participation in any such plans
or programs shall be subject to all terms, provisions, rules, and
regulations applicable thereto. Executive will be entitled to twenty
(20) days of vacation per year, to be used in accordance with the
Company's vacation policy for senior executives as may be in force from
time to time. During the existence of a Benefit Period, if any, (as
hereinafter defined), the Company will arrange to provide Executive
with welfare benefits (including life and health insurance benefits) of
substantially similar design and cost to Executive as the welfare
benefits and other employee benefits available to Executive prior to
Executive's or the Company's, as the case may be, receipt of Notice of
Termination (as hereinafter defined). In the event that Executive shall
obtain full-time employment providing comparable welfare benefits
during the Benefit Period, such benefits as otherwise receivable
hereunder by Executive shall be discontinued.
iv. EXPENSES. The Company will pay or reimburse Executive for all
reasonable and necessary out-of-pocket expenses incurred by her in the
performance of her duties under this Agreement, including first class
air travel and reasonable capital and operating expenses for an office
in Executive's home. Executive shall keep detailed and accurate records
of expenses incurred in connection with the performance of her duties
hereunder
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and reimbursement therefor shall be in accordance with policies and
procedures to be established from time to time by the Company's Board
of Directors.
B. STOCK WARRANTS. As a special incentive to obtain the services of
Executive, Company hereby grants Executive the option to purchase two
hundred thousand (200,000) shares of the common stock of the Company at
$7.00 per share at any time, under either periodic or accelerated
exercise terms as described below.
i. PERIODIC EXERCISE RIGHTS. Executive's option to purchase shares
shall vest and become fully and freely exercisable with respect to the
first sixty-seven thousand (67,000) shares on December 31, 2000; with
respect to the next sixty-seven thousand (67,000) shares on December
31, 2001, and with respect to the final sixty-six thousand (66,000)
shares on December 31, 2002; subject, however, to the provisions of
Sub-section (iii), of this Section (B):
ii. ACCELERATED EXERCISE RIGHTS. Notwithstanding periodic exercise
rights, all of Executive's options that are not already exercisable in
accordance with Sub-section 3(B)(i) shall become immediately
exercisable at such time that the common stock of the Company trades at
or above 37 and 5/8ths dollars per share (the "Target Price") as quoted
on the securities exchange where the Company stock is currently being
traded and during either of the two periods, chosen at the option of
the Executive:
a. the closing price for the stock is at or above the Target Price
for fifteen (15) consecutive trading days; or
b. the closing price for the stock is at or above the Target Price
for twenty (20) out of any thirty (30) consecutive trading days.
The determination of the Target Price during either of such periods
shall be conclusive as reported by any independent financial reporting
service, such as Reuters or Bloomberg Financial Markets.
iii. POST-TERMINATION EXERCISE RIGHTS. Notwithstanding any of the
foregoing, Executive shall have the right to exercise options to
purchase any stock warrants or other stock grants given by the Company
in accordance with the following:
(a) if Executive's employment is terminated for Cause (as defined
in Article 4(A)(ii), hereunder), or in the event that Executive
voluntarily resigns his employment with the Company, vesting of
all options shall cease immediately upon the effective date of
termination or resignation;
(b) if Executive's employment is terminated by reason of Death or
Disability (as defined in Article 4(B) hereunder), Executive's
legal representatives, conservators, heirs or assigns shall have
the right to exercise all such options until
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such options expire in accordance with the option plan under which
such options were granted. The rights granted under this
Sub-paragraph (iii)(b) shall apply whether or not the option was
vested at the time of Death or Disability; provided, however, that
Executive was employed by the Company for at least twelve (12)
months after the grant of any option; or
(c) if Executive's employment is terminated for any reason other
than Death or Disability, or in the event that Executive
voluntarily resigns, then Executive shall have the right to
exercise all options that have already vested as of the effective
date of termination or resignation (or that become vested by
reason of termination or resignation) during a period of ninety
(90) days following the effective date of termination or
resignation.
iv. ISSUANCE OF REGISTERED SHARES. The Company hereby guarantees that
it will issue registered common stock (the term "registered" as defined
in the Securities and Exchange Act of 1934) to the Executive pursuant
to the exercise of his options under Sub-sections (i) - (iii) of this
Section 3(B). In the event that the Company does not have sufficient
quantities of registered shares available to satisfy this obligation,
it shall immediately take all steps necessary to issue a registration
statement and to make sufficient registered shares available in
satisfaction of this Sub-section (iv).
v. DILUTION. In the event that the Company issues new or additional
equity securities, debt securities convertible into equity, declares a
stock dividend, stock split, grants stock rights, or performs any other
action that would reasonably be expected to reduce the value of the
warrants, the Company shall immediately reduce the purchase price,
increase number of the warrants, or both, so that value of the warrants
granted to Executive remains unchanged.
vi. EXPIRATION DATE. The options to purchase shares shall expire ten
(10) years from the date each option becomes exercisable.
ARTICLE 4. TERMINATION OF EMPLOYMENT
A. DEFINITIONS. The following terms shall have the definitions as
described in this Section A:
i. "Benefit Period" shall mean:
a. the twenty-four (24) month period commencing on the Date of
Termination which occurs in connection with a termination of
employment described in the first sentence of Section 4(E)(i); or
b. the period consisting of the remainder, if any, of the then
current Term in which occurs a termination of employment described
in the first sentence of Section 4(E)(ii), plus the immediately
succeeding twenty-four (24) month period.
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ii. "Cause" shall mean any of the following:
a. any act or failure to act (or series or combination thereof) by
Executive done with the intent to harm in any material respect to
the interests of the Company;
b. the commission by Executive of a felony involving moral
turpitude;
c. the perpetration by Executive of a dishonest act or common law
fraud against the Company or any subsidiary thereof;
d. a grossly negligent act or failure to act (or series or
combination thereof) by Executive detrimental in any material
respect to the interests of the Company;
e. the material breach by Executive of her agreements or
obligations under this Agreement; or
f. the continued refusal to follow the directives of the President
or Board of Directors that are consistent with Executive's duties
and responsibilities identified in Section 1(A) hereof.
iii. A "Change of Control" shall mean any of the following:
a. a sale of all or substantially all of the assets of the
Company;
b. the acquisition of more than eighty percent (80%) of the Common
Stock of the Company (with all classes or series thereof treated
as a single class) by any person or group of persons, except a
Permitted Shareholder (as hereinafter defined), acting in concert.
A "Permitted Shareholder" means a holder, as of the date the Stock
Option Plan was adopted by the Company, of Common Stock;
c. a reorganization of the Company wherein the holders of Common
Stock of the Company receive stock in another company, a merger of
the Company with another company wherein there is an eighty
percent (80%) or greater change in the ownership of the Common
Stock of the Company as a result of such merger, or any other
transaction in which the Company (other than as the parent
corporation) is consolidated for federal income tax purposes or is
eligible to be consolidated for federal income tax purposes with
another corporation;
d. in the event that the Common Stock is traded on an established
securities market, a public announcement that any person has
acquired or has the right to acquire beneficial ownership of
fifty-one percent (51%) or more of the then-outstanding Common
Stock and for this purpose the terms "person" and
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"beneficial ownership" shall have the meanings provided in Section
13(d) of the Securities and Exchange Act of 1934 or related rules
promulgated by the Securities and Exchange Commission, or the
commencement of or public announcement of an intention to make a
tender offer or exchange offer for fifty-one percent (51%) or more
of the then outstanding Common Stock;
e. a majority of the Board of Directors is not comprised of
Continuing Directors. A "Continuing Director" means a director
recommended by the Board of Directors of the Company for election
as a director of the Company by the stockholders; or
f. the Board of Directors of the Company, in its sole and absolute
discretion, determines that there has been a sufficient change in
the share ownership of the Company to constitute a change of
effective ownership or control of the Company.
iv. "Good Reason" shall mean the occurrence of any one or more of the
following events during the Term:
a. the assignment to Executive of any duties inconsistent in any
respect with Executive's position (including status, offices,
title, and reporting requirements), authority, duties or other
responsibilities or any other action of the Company that results
in a diminishment in such position, authority, duties or
responsibilities, other than an insubstantial and inadvertent
action that is remedied by the Company promptly after receipt of
notice thereof given by Executive;
b. a reduction by the Company in Executive's Base Salary as in
effect on the Effective Date and as the same shall be increased
from time to time hereafter;
c. the Company's requiring Executive to be based at a location in
excess of fifteen (15) miles from the location of Executive's
principal residence without the consent of Executive;
d. the failure by the Company to: (a) continue in effect any
material compensation or benefit plan, program, policy or practice
in which Executive was participating during the Term of her
employment or at the time of a Change of Control; or (b) provide
Executive with compensation and benefits at least equal (in terms
of benefit levels and/or reward opportunities) to those provided
for under each employee benefit plan, program, policy and practice
as in effect immediately prior to a Change of Control (or as in
effect following the Change of Control, if greater);
e. the failure of the Company to obtain a satisfactory agreement
from any successor to the Company to assume and agree to perform
this Agreement; or
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f. any purported termination by the Company of Executive's
employment that is not effected pursuant to a Notice of
Termination (as defined below).
v. "Date of Termination" shall mean the date specified in the Notice of
Termination (as hereinafter defined) (except in the case of Executive's
death, in which case Date of Termination shall be the date of death);
provided, however, that if Executive's employment is terminated by the
Company other than for Cause, the date specified in the Notice of
Termination shall be at least thirty (30) days from the date the Notice
of Termination is given to Executive and if Executive's employment is
terminated by Executive for Good Reason, the date specified in the
Notice of Termination shall not be more than sixty (60) days from the
date the Notice of Termination is given to the Company.
vi. "Notice of Termination" shall mean a written notice either from the
Company to Executive, or Executive to the Company, that indicates
Section 2 or the specific provision of Section 4 of this Agreement
relied upon as the reason for such termination or non-renewal, the Date
of Termination, and, in reasonable detail, the facts and circumstances
claimed to provide a basis for termination or non-renewal pursuant to
Section 2 or this Section 4 of this Agreement.
B. TERMINATION UPON DEATH OR DISABILITY. This Agreement, and Executive's
employment hereunder, shall terminate automatically and without the necessity of
any action on the part of the Company upon the death of Executive. In addition,
if at any time during the Term Executive shall become physically or mentally
disabled, whether totally or partially, so that she is unable substantially to
perform her duties and services hereunder for:
i. a period of six (6) consecutive months; or
ii. for shorter periods aggregating six (6) months during any twelve
(12) month period;
then, the Company may at any time after the last day of the sixth consecutive
month of disability or the day on which the shorter periods of disability shall
have equaled an aggregate of six (6) months, by written notice to Executive (but
before Executive has recovered from such disability), terminate this Agreement
and Executive's employment hereunder.
C. COMPANY'S AND EXECUTIVE'S RIGHT TO TERMINATE PRIOR TO CHANGE OF CONTROL.
Prior to a Change of Control, this Agreement and Executive's employment
hereunder may be terminated at any time by the Company, with or without Cause,
upon thirty (30) days prior written notice to Executive, and by Executive, at
any time, upon thirty (30) days prior written notice to the Company. Any
termination of Executive's employment by the Company without Cause prior to a
Change of Control that occurs at the request or insistence of any person (other
than the
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Company) relating to such Change of Control shall be deemed to have
occurred after the Change of Control for the purposes of this Agreement.
D. COMPANY'S AND EXECUTIVE'S RIGHT TO TERMINATE FOLLOWING A CHANGE OF CONTROL.
Following a Change of Control, this Agreement and Executive's employment
hereunder may be terminated at any time:
i. by the Company, with or without Cause, upon thirty (30) days prior
written notice to Executive, or
ii. by Executive for Good Reason upon thirty (30) days prior written
notice to the Company. Executive's right to terminate her employment
pursuant to this Section 4(D) shall not be affected by incapacity due
to physical or mental illness. Executive's continued employment
following a Change of Control shall not constitute consent to, or a
waiver of, rights with respect to, any circumstance constituting Good
Reason hereunder.
E. COMPENSATION UPON TERMINATION.
i. TERMINATION PRIOR TO CHANGE OF CONTROL. In the event the Company
terminates (or elects not to renew) this Agreement without Cause, and
such termination (or non-renewal) without Cause occurs prior to any
Change of Control, Executive shall be entitled to receive her Base
Salary through the Date of Termination, the welfare benefits described
in Section 3(A)(iii) for the Benefit Period, and not later than thirty
(30) days after the Date of Termination, a lump sum severance payment
equal to the product of two (2) times the sum of Executive's
then-current Base Salary plus the arithmetic average of payments made
to Executive pursuant to the Company's Executive Bonus Compensation
Program with respect to the three (3) fiscal years immediately
preceding the fiscal year in which the Date of Termination occurs. In
addition to the foregoing, to the extent not otherwise required under
the Company's Stock Option Plan or any award agreement with Executive,
any unvested stock option awards theretofore awarded to Executive shall
vest and become exercisable on the Date of Termination. In the event
this Agreement is terminated (or not renewed) for any reason other than
by the Company without Cause, and such termination (or non-renewal)
occurs prior to a Change of Control, Executive shall not be entitled to
the continuation of any compensation, bonuses or benefits provided
hereunder, or any other payments following the Date of Termination,
other than Base Salary earned through such Date of Termination.
ii. TERMINATION FOLLOWING CHANGE OF CONTROL. If this Agreement is
terminated (or not renewed)
a. by the Company without Cause; or
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b. by the Executive for Good Reason during the twelve (12) month
period immediately following a Change of Control, and such
termination (or non-renewal) occurs following a Change of Control;
then, the Executive shall be entitled to receive her full Base Salary
through the Date of Termination, the welfare benefits described in
Section 3(A)(iii) for the Benefit Period and, not later than thirty
(30) days after the Date of Termination, a lump sum severance payment
equal to the sum of the Base Salary which would otherwise have been
payable for the remainder (if any) of the then current Term, plus an
amount equal the product of two (2) times the sum of Executive's then
current annual Base Salary plus the arithmetic average of payments made
to Executive pursuant to the Company's Executive Bonus Compensation
Program with respect to the three (3) fiscal years immediately
preceding the fiscal year in which the Date of Termination occurs.
In addition to the foregoing, to the extent not otherwise required
under the Company's Stock Option Plan or any other award agreement with
Executive, any unvested stock option awards theretofore awarded to
Executive shall vest and become immediately exercisable in full. In the
event this Agreement is terminated (or not renewed) for any reason
other than by the Company without Cause, or by Executive for Good
Reason, and such termination (or non-renewal) occurs following a Change
of Control, Executive shall not be entitled to the continuation of any
compensation, bonuses or benefits provided hereunder, or any other
payments following the Date of Termination, other than Base Salary
earned through the Date of Termination.
iii. At Executive's option to be exercised by written notice to the
Company, the severance benefits payable under this Section 4(E) shall
be paid in accordance with the Company's normal payroll procedures in
installments over a twenty-four (24) month period corresponding to the
amount of the payments instead of in a lump sum.
iv. Anything to the contrary contained herein notwithstanding, as a
condition to Executive receiving severance benefits to be paid pursuant
to this Section 4(E), Executive shall execute and deliver to the
Company a general release in form and substance reasonably satisfactory
to the Company releasing the Company and its officers, directors,
employees and agents from all liabilities, claims and obligations of
any nature whatsoever, excepting only the Company's obligations under
this Agreement, under any Stock Option Award Agreements, and under any
other employee benefit plans or programs in which Executive
participates under Section 3 hereof, subject to all terms and
conditions of such plans or programs and this Agreement.
ARTICLE 5. EMPLOYMENT COVENANTS
A. TRADE SECRETS AND CONFIDENTIAL INFORMATION. Executive agrees that she shall,
during the course of her employment and for a period of five (5) years
thereafter, hold inviolate and keep secret all documents, materials, knowledge
or other confidential business or technical
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information of any nature whatsoever disclosed to or developed by her or to
which she had access as a result of her employment (hereinafter referred to as
"Confidential Information"). Such Confidential Information shall include
technical and business information, including, but not limited to, inventions,
research and development, engineering, products, designs, manufacture, methods,
systems, improvements, trade secrets, formulas, processes, marketing,
merchandising, selling, licensing, servicing, customer lists, records or
financial information, manuals or Company strategy concerning its business,
strategy or policies. Executive agrees that all Confidential Information shall
remain the sole and absolute property of the Company. During the course of her
employment, Executive shall not use, disclose, disseminate, publish, reproduce
or otherwise make available such Confidential Information to any person, firm,
corporation or other entity, except for the purpose of conducting business on
behalf of the Company. Following the Term, Executive shall not use, disclose,
disseminate, publish, reproduce, or otherwise make available such Confidential
Information to any person, firm, corporation, or other entity. Upon termination
of her employment with the Company, Executive will leave with or deliver to the
Company all records and any compositions, articles, devices, equipment and other
items which disclose or embody Confidential Information including all copies or
specimens thereof, whether prepared by her or by others. The foregoing
restrictions on disclosure of Confidential Information shall apply so long as
the information has not properly come into the public domain through no action
of Executive.
B. TRANSFER OF INVENTIONS. Executive, for herself and her heirs and
representatives, will promptly communicate and disclose to the Company, and upon
request will, without additional compensation, execute all papers reasonably
necessary to assign to the Company or the Company's nominees, free of
encumbrance or restrictions, all inventions, discoveries, improvements, whether
patentable or not, conceived or originated by Executive solely or jointly with
others, at the Company's expense or at the Company's facilities, or at the
Company's request, or in the course of her employment, or based on knowledge or
information obtained through her employment during the Term. All such
assignments shall include the patent rights in this and all foreign countries.
Notwithstanding the foregoing, this Section 5(B) shall not apply to any
invention for which no equipment, supplies, facilities or trade secret
information of the Company was used and which was developed entirely on
Executive's own time; and
i. that does not relate:
a. directly to the business of the Company, or
b. to the Company's actual or demonstrably anticipated research
or development; or
ii. that does not result from any work performed by Executive for the
Company.
C. EXCLUSIVITY OF EMPLOYMENT. During the Term, Executive shall not directly or
indirectly engage in any activity competitive with or adverse to the Company's
business or welfare or render a material level of services of a business,
professional or commercial nature to any other
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person or firm, whether for compensation or otherwise, except for serving as a
director of another firm.
D. COVENANT NOT TO COMPETE. Executive agrees to be bound and abide by the
following covenants not to compete:
i. TERM AND SCOPE. During her employment with the Company and for a
period of two (2) years after the Term, Executive will not render to
any Conflicting Organization (as hereinafter defined), services,
directly or indirectly, anywhere in the world in connection with any
Conflicting Product, except that Executive may accept employment with a
large Conflicting Organization whose business is diversified (and which
has separate and distinct divisions) if Executive first certifies to
the Board of Directors in writing that she has provided a copy of
Section 5 of this Agreement to such prospective employer, that such
prospective employer is a separate and distinct division of the
Conflicting Organization and that Executive will not render services
directly or indirectly in respect of any Conflicting Product (as
hereinafter defined). Such two-year time period shall be tolled during
any period that Executive is engaged in activity in violation of this
covenant.
ii. JUDICIAL ACTION. Executive and the Company agree that, if the
period of time or the scope of the restrictive covenant not to compete
contained in this Section 5(D) shall be adjudged unreasonable in any
court proceeding, then the period of time and/or scope shall be reduced
accordingly, so that this covenant may be enforced in such scope and
during such period of time as is judged by the court to be reasonable.
In the event of a breach or violation of this Section 5(D) by
Executive, the parties agree than in addition to all other remedies,
the Company shall be entitled to equitable relief for specific
performance, and Executive hereby agrees and acknowledges that the
Company has no adequate remedy at law for the breach of the covenants
contained herein.
iii. DEFINITIONS. For purposes of the covenants contained in this
Section 5(D), the following terms shall have the following meanings:
a. "Conflicting Product" means any product, method or process,
system or service of any person or organization other than the
Company, in existence or under development at the time
Executive's employment with the Company terminates, that is
the same as or substantially or directly competes with a
product, method or process, system or service of or provided
by the Company or any of its affiliates or about which
Executive acquires Confidential Information.
b. "Conflicting Organization" means any person or organization
which is engaged in or about to become engaged in, research on
or development, production, marketing, licensing, selling or
servicing of a Conflicting Product.
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iv. DISCLOSURE TO PROSPECTIVE EMPLOYERS. Executive will disclose to any
prospective employer, prior to accepting employment, the existence of
Section 5 of this Agreement. The obligation imposed by this Section
5(D) shall terminate two (2) years after termination of Executive's
employment with the Company; provided, however, the running of such
two-year period shall be tolled to the extent the covenant not to
compete contained in Section 5(D) hereof is tolled.
ARTICLE 6. MISCELLANEOUS
A. NOTICES. Any notice required or permitted to be delivered hereunder shall be
in writing and shall be deemed to be delivered on the earlier of
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i. the date received; or
ii. the date of delivery, refusal or non-delivery indicated on the
return receipt, if deposited in a United States Postal Service
depository, postage prepaid, sent registered or certified mail, return
receipt requested, addressed to the party to receive the same at the
address of such party set forth below:
If to the Company: If to the Executive:
Autologous Wound Therapy, Inc. Robin Lee Geller, Ph.D.
1523 Bowman Road, Suite A c/o Michael J. Caywood, Esq.
Little Rock, Arkansas Dresser, Dresser, Gilbert & Haas, PC
72211 USA 112 South Monroe Street
Sturgis, Michigan
49091 USA
A Party may change its address from time to time by Notice addressed to
the other Party.
B. HEADINGS. The headings of the articles and sections of this Agreement are
inserted for convenience only and shall not be deemed a part of or affect the
construction or interpretation of any provision hereof.
C. MODIFICATIONS & WAIVER. No modification of any provision of this Agreement or
waiver of any right or remedy herein provided shall be effective for any purpose
unless specifically set forth in a writing signed by the party to be bound
thereby. No waiver of any right or remedy in respect of any occurrence or event
on one occasion shall be deemed a waiver of such right or remedy in respect of
such occurrence or event on any other occasion.
D. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties
with respect to the subject matter hereof and supersedes all other agreements;
oral or written, heretofore made with respect thereto.
E. SEVERABILITY. Any provision of this Agreement prohibited by or unlawful or
unenforceable under any applicable law of any jurisdiction shall as to such
jurisdiction be ineffective without affecting any other provision hereof. To the
full extent, however, that the provisions of such applicable law may be waived,
they are hereby waived, to the end that this Employment Agreement be deemed to
be a valid and binding agreement enforceable in accordance with its terms.
F. GOVERNING LAW AND JURISDICTION. This Agreement shall be deemed to have been
entered into by the parties in the State of Illinois and shall be continued and
enforced in accordance with the laws of that State. Any disputes arising under
the terms and conditions of this Agreement shall be resolved in a court of
competent jurisdiction of that State and the parties hereto irrevocably submit
to such jurisdiction.
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G. ASSIGNMENTS. The Company shall have the right to assign this Agreement and to
delegate all rights, duties and obligations hereunder to any entity that
controls the Company, that the Company controls or that may be the result of the
merger, consolidation, acquisition or reorganization of the Company and another
entity. Executive agrees that this Agreement is personal to her and her rights
and interest hereunder may not be assigned, nor may her obligations and duties
hereunder be delegated (except as to delegation in the normal course of
operation of the Company), and any attempted assignment or delegation in
violation of this provision shall be void. Notwithstanding any of the foregoing,
all of Executive's rights and interest hereunder shall be assignable to
Executive's legal representatives, executors or conservators in the event of
Executive's Death or Disability.
H. ATTORNEY FEES. In the event of litigation between the parties, to enforce
their respective rights under this Agreement, the prevailing party shall be
entitled to receive from the non-prevailing party reimbursement of the
prevailing party's reasonable attorney's fees and costs at all levels of trial
and appeal.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
Executive Autologous Wound Therapy, Inc.
/s/ Robin Lee Geller By: /s/ Dennis G. Hendren
-------------------- ---------------------
Robin Lee Geller, Ph.D.
Title: /s/ President/CEO
-----------------
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APPENDIX I
Part A - Bonus and Incentive Plans
1. ANNUAL BONUS. In addition to Executive's Base Salary, the Company shall
pay to the Executive an annual bonus in an initial amount of
Seventy-Five Thousand Dollars ($75,000). The bonus shall be payable
depending on the achievement of the Executive and the Company of a
specified list of performance and payment criteria to be agreed to
between the Executive and the Company and approved by the Company's
Board of Directors. In accordance with the Executive's annual salary
review, the Executive's annual bonus shall be reviewed and increased by
the Company's Board of Directors as may be appropriate.
2. LONG TERM INCENTIVE PROGRAM. During the Term of Executive's employment
by the Company, Executive shall be entitled to participate in the
Company's Executive Long Term Incentive Program which will be
established by the Company's Board of Director's in accordance with a
strategic plan developed for the Company and on appropriate terms and
conditions.
Part B - Employee Benefit Plans and Programs
1. INSURANCE PROGRAM. The Company shall establish for the benefit of the
Executive an insurance program, which shall include, among other
things, life, health, dental and long-term disability coverage. Such
insurance program shall be no less competitive than similar benefit
programs that are established for other health care companies or
comparable industries.
2. PENSION OR PROFIT-SHARING PROGRAMS. In addition to the insurance
program, the Company shall establish a suitable pension, (401(k)) or
other profit sharing program, which shall be no less competitive than
similar pension or profit-sharing programs that are established for
other health care companies or comparable industries.
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