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 Russell
Anderson (“Employee”).
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:
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
1
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
2
provisions in
Employer’s personnel policies and procedures differ with the
terms of this Agreement, the terms of this Agreement shall
apply.
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 t
|
