THIS EMPLOYMENT
AGREEMENT (“Agreement”) is entered into and becomes
effective as of June 1, 2004 (the “Effective
Date”) by and between Artes Medical USA, Inc.
(“Employer” or “Company”) and Lawrence
Braga (“Employee”).
A. Employer
is a Delaware corporation and is qualified to do business in the
State of California.
B. Both
Employer and Employee desire that Employee serve Employer in the
capacity of Director of 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:
1.
Employment . Employer hereby engages Employee to serve as
Director of 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 four
(4) 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 1,
2008, 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 Director of
Manufacturing and shall perform such duties as are customarily
performed by a Director of Manufacturing and such other duties as
the Chief Executive Officer assigns from time to time. Such duties
shall include those duties identified on Exhibit A, which is
incorporated herein by this reference. Employee acknowledges that
he will report to the VP Manufacturing & Engineering 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) Except as set forth otherwise below, 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. The parties acknowledge that Employee will be
permitted to continue consulting one day per week at his current
consulting position with THRASYS, INC, of Oakland, CA. in the San
Francisco Bay area, until such time that the current project is
complete, but that such consulting position shall be terminated on
or before October l, 2004, unless
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mutually
extended by the parties to this Agreement in writing. Until such
time that such consulting project is completed, Employee shall
devote 4 (four) days per week on a Monday through Thursday
schedule. After such time, Employee shall devote full time (five
days per week) to fulfill the terms of this Agreement.
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 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 B 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
Fifteen Thousand Dollars ($15,000.00) 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,
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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 provisions in Employer’s personnel policies and
procedures differ with the terms of this Agreement, the terms of
this Agreement shall apply. Any employees subject to the direction
and supervision of Employee shall be hired or terminated only upon
consultation with Employee.
a.
Salary . Employee shall be paid an annual base salary, less
income taxes and other applicable withholdings, of One Hundred and
Fifteen Thousand Dollars ($115,000.00).
b.
Stock Options . As consideration for services rendered and
in lieu of additional salary, Employee shall be granted options to
purchase 100,000 shares of common stock on a vesting schedule set
forth in that certain Stock Option Agreement, in the form attached
hereto as Exhibit C and incorporated herein by this
reference.
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 shall
receive medical insurance, dental insurance and long-term
disability benefits as currently provided to full-time employees of
Employer.
b.
Life Insurance . Employee shall receive whole life insurance
in amounts currently provided by Employer. Such life insurance
shall stay in effect during Employee’s employment with
Employer. If Employee desires that the Employer increase the amount
of life insurance currently provided to Employee, Employee shall
agree to pay the difference between the current premiums and those
required to be paid in order to increase the current coverage of
said policy. Such amounts shall be paid by Employee as a payroll
deduction.
c.
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 . From and after such time that Employer
shall receive notice from the FDA that its product
Artecoll/Artefill is approved for commercial sale and distribution,
Employee shall be entitled to three (3) weeks of paid vacation
per year and personal leave time (including sick days) which must
be used during the year in which such time is accrued or such time
shall be forfeited. Notwithstanding the foregoing, Employee shall
be permitted to take one
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