Termination and General
Release
This Termination
Agreement and General Release (this “Agreement”) is
made and given by Gottfried Lemperle, M.D. (the “Professor
Lemperle”) and Artes Medical, Inc. (the “C
ompany ”), effective as of May 11, 2006 (the
“ Effective Date ”), and inures to the benefit
of each of the Company’s current, former and future parents,
subsidiaries, related entities, employee benefit plans and each of
their respective fiduciaries, predecessors, successors, officers,
directors, stockholders, attorneys, agents, employees and
assigns.
A. Professor
Lemperle was for a period of time an employee of the Company,
including serving most recently as the Company’s Chief
Scientific Officer.
B. In
connection with the Professor Lemperle’s retirement from the
Company, the Company and Professor Lemperle entered into a
Separation Agreement, dated March 16, 2006 (the
“Separation Agreement”), that provides for the
Professor Lemperle to continue to provide consulting services to
the Company for up to twenty-four (24) months from the
Retirement Date as defined in the Separation Agreement.
C. Pursuant
to Section 10.3 of the Separation Agreement, the Company has
determined to terminate Professor Lemperle’s consulting
relationship with the Company and to pay the remaining Three
Hundred Thirty-Six Thousand Six Hundred Sixty-six Dollars
($336,666.00) consulting fees payable to Professor Lemperle under
the Separation Agreement in a lump sum payment (the
“Termination Payment”) contingent upon Professor
Lemperle’s execution and delivery of this
Agreement.
D. Professor
Lemperle acknowledges the sufficiency of the consideration to be
received by him, and in return desires to release the Company from
any and all claims which Professor Lemperle has, or might have,
against the Company as of the date of execution of this
Agreement.
NOW, THEREFORE,
for and in consideration of the Company’s payment to him
under the terms of this Agreement and for other valuable
consideration the receipt of which is hereby acknowledged,
Professor Lemperle agrees as follows:
1.
Payment of Termination Payment . Pursuant to
Section 10.3 of the Separation Agreement, the Company hereby
terminates Professor Lemperle’s consulting relationship
effective as of the date of this Agreement. Within two business
days of Professor Lemperle’s delivery to the Company of
(a) an executed copy of this Agreement and (b) an
executed copy of the lock-up agreement attached hereto as
Exhibit A , the Company shall pay the Termination
Payment to Professor Lemperle by check or wire transfer. Professor
Lemperle acknowledges and agrees that upon his receipt of the
Termination Payment, Professor Lemperle will have received all
consideration due to him under the Separation Agreement or
otherwise from the Company except as otherwise set forth herein,
and Professor Lemperle shall have no relationship with the Company
other than as a stockholder of the Company. Professor Lemperle
acknowledges and agrees that notwithstanding the termination of his
consulting relationship with the Company, certain obligations of
Professor Lemperle under the Separation Agreement shall remain in
full force and effect as set forth herein below. Pursuant to
Section 3.2 of the Separation Agreement, Professor Lemperle
shall be solely responsible for any and all of his tax obligations
related to
the Termination
Payment, including but not limited to, all city, state and federal
income taxes, social security withholding tax and other self
employment tax.
2. No
Representation of Affiliation with the Company . From and
after Effective Date, Professor Lemperle agrees that he will not
make any voluntary statements, written or verbal, or cause or
encourage others to make any statements that reference the Company,
its products, proprietary information or intellectual property
without the prior written consent of the President of the Company
if such statements would lead a reasonable person to conclude that
Professor Lemperle was affiliated with the Company, or an agent or
representative of the Company. This provision shall apply to
scientific publications, articles and papers, oral and written
presentations at conferences or symposia, or any other public
dissemination of information that references Artes Medical, its
business, products, patents, trademarks or any other intellectual
or proprietary information of the Company, which shall be submitted
to the President for review and written approval prior to any such
publication or presentation.
3.
Prohibitions on Use of Injectible Products of the
Company . From and after the Effective Date until the
Company is in receipt of final FDA approval to market its product,
ArteFill, Professor Gottfried Lemperle agrees that he shall not
engage in the use of any injectible medical products or devices of
the Company or holding the trademark of the Company, including
Artecoll and Artefill, on any persons world-wide.
(a)
Lock-Up Period; Agreement . In connection with the initial
public offering of the Company’s common stock, Professor
Lemperle agrees not to sell, make any short sale of, loan, grant
any option for the purchase of, or otherwise dispose of any
securities of the Company he now or hereafter owns (whether
directly or indirectly and whether of record or beneficially)
without the prior written consent of the Company or such
under
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