THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
this 6th day of December 2004 (the "Effective Date"), by and between Tutogen
, a Florida
corporation (the "Employer"), and Guy L. Mayer
individual resident in Brookline, Massachusetts
, (the "Executive").
WHEREAS, the Employer desires to employ the Executive, and the Executive
desires to accept such employment upon the terms and conditions set forth in
this Agreement; and
WHEREAS, the Employer recognizes the need for the knowledge, talents and
assistance of Executive and desires to enter into this Agreement to secure the
NOW, THEREFORE, in consideration of the promises herein contained, the
parties, intending to be legally bound, agree as follows:
1. EMPLOYMENT, TERM, AND DUTIES
The Employer hereby employs the Executive, and the Executive
hereby accepts employment by the Employer, on the terms and conditions set forth
in this Agreement.
Subject to the provisions of Section 4 hereof, the term of the
Executive's employment under this Agreement will be indefinite, beginning
January 1, 2005 (the "Effective Date") and continuing until termination of
employment as provided in Section 4 below. The term of the Executive's
employment under this Agreement is hereinafter referred to as the "Employment
The Executive will initially serve as Chief Executive Officer of
the Employer, and shall retain the title thereof during the Employment Period.
The Executive will have such duties, and hereby agrees to perform such duties,
as are assigned or delegated to the Executive by the Board of Directors of the
Employer, consistent with those duties generally performed by an executive
officer of similar rank as the Executive in the Employer's industry. The
Executive agrees to subject himself at all times during the Employment Period to
the policies of the Board with respect to the duties to be performed. The
Executive will devote his full business time, attention, skill, and energy to
the performance of his duties to the Employer as its Chief Executive Officer
under this Agreement.
As further consideration for this Agreement, the Executive agrees to
comply with, and abide by, such rules and directives of the Employer, as may be
reasonably established from time to time, and recognizes the right of the
Employer, in its reasonable direction, to change, modify or adopt new policies
and practices affecting the employment relationship, not inconsistent with this
Agreement, as deemed appropriate by the Employer.
The Executive will not undertake any new business ventures,
partnerships, consulting arrangements or other enterprise or business other than
those on behalf of Employer, without Employer's prior written consent, PROVIDED
HOWEVER, that nothing in this Section 1.3 will prevent the Executive from
engaging in additional activities in connection with personal investments and
community affairs that are not inconsistent with this Agreement. The Executive
may serve on up to three (3) Boards of Directors of non-competing companies
provided that the service does not interfere with Executive's performance of
responsibilities with the Employer.
2.1 BASIC COMPENSATION.
(a) SALARY. The Executive will be paid a salary (the
"Salary") at the rate of Three Hundred Thousand Dollars ($300,000.00) per year,
of which Two Hundred Twenty-Five Thousand Dollars ($225,000.00) will be paid for
the period commencing January 1, 2005 and ending September 30, 2005, the
Employer's fiscal year-end. Salary will be payable in equal periodic
installments according to the Employer's customary payroll practices, but not
less frequently than monthly. At the end of each fiscal year, the Executive's
Salary will be reviewed by the Board or a compensation committee thereof and may
be adjusted upwards in the sole discretion of the Board or compensation
committee, as the case may be.
(b) BONUS: For the fiscal year ended September 30, 2005,
Executive will receive a bonus of sixty (60%) of his earned salary for that
fiscal year based on the following:
(i) Fifty percent (50%) of the bonus will be based
on the achievement of budgeted 2005 Revenue.
(ii) Fifty percent (50%) of the bonus will be based
on the achievement of budgeted 2005 Operating Income.
A diminished bonus payout of thirty percent (30%) of Executive's earned
salary for the fiscal year will be paid if the Company achieves at least eighty
percent (80%) of the Budgeted Revenue and Operating Income and an enhanced bonus
payout of ninety percent (90%) of Executive's earned salary will be paid if the
Company achieves at least one hundred and twenty percent (120%) of the Budgeted
Revenue and Operating Income, with a proration of the bonus between eighty
percent (80%) and one hundred twenty percent (120%) achievement.
For fiscal year ended September 30, 2006 and thereafter bonus and goals
will be determined at the beginning of each fiscal year.
(c) BENEFITS. The Executive will, during the Employment
Period, be permitted to participate in such pension, profit sharing, bonus, life
insurance, hospitalization, major medical, and other employee benefit plans of
the Employer, as may be in effect from time to time (collectively, the
"Benefits"), on a basis at least as favorable as applicable to other senior
(d) COMPREHENSIVE MANAGEMENT COMPENSATION. Prior to October
1, 2005, Employer will adopt, with assistance from Executive, a comprehensive
management compensation structure for officers and key employees.
(e) FEES. The Company will reimburse the Executive for his
legal fees incurred in connection with entering into this Agreement to a maximum
of Ten Thousand Dollars ($10,000.00).
2.2 STOCK OPTIONS.
Upon commencement of employment (January 1, 2005), Employer
shall grant Executive an option (the "Option") substantially in the form
attached hereto as EXHIBIT A, (the "Option Agreement") to purchase Two Hundred
Fifty Thousand (250,000) shares of its common stock, $.001 par value (the
"Common Stock"), of Employer at an exercise price equal to the closing price of
Employer's Common Stock on the American Stock Exchange on the date of grant.
The Option Agreement shall provide that twenty-five percent
(25%) of the shares of Common Stock underlying the Option shall vest on the date
of grant and twenty-five percent (25%) on each of the first, second and third
anniversaries of the initial date of grant, PROVIDED HOWEVER, that the Option
shall become fully vested and exercisable upon a "Change in Control" as defined
below. The Option Agreement shall also provide that the Option will expire on
the tenth anniversary of the Effective Date hereof.
In addition to the above, at the beginning of the next fiscal
business year, on or about October 1, 2005, the Employer will grant to Executive
an additional option to purchase Fifty Thousand (50,000) shares of its Common
Stock, the terms of which will be similar to the initial Option. Thereafter,
additional grants shall be as provided by the Board.
The transfer of any shares of Common Stock purchased by the
Executive upon the exercise of an option shall be subject to the federal and
state securities laws, and each stock certificate evidencing such shares will
bear the applicable restrictive legends. The Company shall make reasonable
efforts to register the shares subject to the Option and any subsequent stock
option granted to Executive.
3. WORKING FACILITIES AND EXPENSES
Employer will furnish Executive with shared office space in the
metropolitan Boston, Massachusetts
's area, secretarial service, and equipment
and supplies as needed. Employer will make available an apartment in Alachua,
for the Executive's use. At such time that the Board, in its sole
discretion, determines that the continued job function of the Executive requires
him to relocate to the Alachua, Florida
vicinity, the principal location of the
Employer's U.S. operations, the Board will so notify Executive, and Executive
thereafter will conduct operations out of the Alachua office. Executive will
then have six months to affect a change of residence. Employer will pay (or
reimburse Executive for) expenses incurred in connection with such relocation on
a basis consistent with customary executive relocation programs.
(a) The Employer will reimburse the Executive for reasonable
expenses actually incurred by the Executive at the request of, or on behalf of,
the Employer in the performance of the
Executive's duties pursuant to this Agreement, and in accordance with the
Employer's employment policies, including, but not limited to, telephone calls
(including business related calls on the Executive's cellular phone and business
related long distance calls), appropriate business entertainment activities,
reasonable expenses incurred by the Executive in attending conferences,
conventions and institutes previously approved by the Employer, and other
business meetings, PROVIDED HOWEVER, proper itemization of said expenses is
furnished to the Employer by the Executive in accordance with the Employer's
policies. All such expenditures shall be subject to the reasonable control of
the Employer and further subject to prior notice to Executive of any change in
4.1 EVENTS OF TERMINATION.
The Employment Period will terminate (except as otherwise
provided in this Section 4):
(a) upon the death of the Executive;
(b) upon the disability of the Executive (as defined in
Section 4.3) immediately upon notice from either party to the other;
(c) for "Cause" (as defined in Section 4.4), immediately
upon notice from the Employer to the Executive, or at such later time as such
notice may specify; or
(d) for "Good Reason" (as defined in Section 4.5) upon not
less than thirty (30) days prior notice from the Executive to the Employer.
Anything herein to the contrary notwithstanding, the Executive's
employment hereunder may be terminated by either party, at any time, and for any
reason, upon not less than thirty (30) days prior notice to the other party. It
is understood and hereby acknowledged that Employer shall have the right to
terminate the Executive at will, without Cause (subject to the provisions of
Section 4.2(a)), and the Executive shall have the right to terminate his
employment with the Employer at will, without Good Reason, and any such
termination, without Cause or without Good Reason, as the case may be, shall be
effective as of the end of such thirty (30) day period.
4.2 SEVERANCE PROVISIONS.
Effective upon the termination of this Agreement, the Employer
will be obligated to pay the Executive (or, in the event of death, his
designated beneficiary as defined below) only such compensation as is provided
in this Section 4.2, and in lieu of all other amounts and in settlement and
complete release of all claims Executive may have against Employer.
(a) TERMINATION BY THE EXECUTIVE FOR GOOD REASON OR BY THE
EMPLOYER WITHOUT CAUSE. During the period commencing six (6) months from the
Effective Date of this Agreement and ending on the first anniversary of the
Effective Date, if the Executive terminates this Agreement for Good Reason or
the Employer terminates this Agreement without Cause, the Employer will pay the
Executive and the Executive will be entitled to receive severance at a rate
equal to the Executive's then-current Salary for a period of six (6) months
subsequent to termination (the "Severance Pay") and shall continue to provide
the benefits described in Section 2.1(c) for the lesser of such six (6) month
period or until the Executive obtains coverage from subsequent employment. After
the first anniversary of the Effective date, if the Executive terminates this
Agreement for Good Reason or the Employer terminates this
Agreement without Cause, the Employer will pay the Executive and the Executive
will be entitled to receive Severance Pay at a rate equal to the Executive's
then-current Salary for a period one (1) year subsequent to termination and
shall continue to provide the benefits described in Section 2.1(c) for the
lesser of such one (1) year period or until the Executive obtains coverage from
subsequent employment. The Executive's other rights, including but not limited
to rights in respect of stock options, shall be as determined under the
provisions of any applicable plan, program or arrangement.
(b) TERMINATION BY THE EMPLOYER FOR CAUSE OR BY THE
EXECUTIVE WITHOUT GOOD REASON. If the Employer terminates this Agreement for
Cause or if the Executive terminates this Agreement without Good Reason, the
Executive's basic compensation, benefits, stock options and any and all other
rights of the Executive under this Agreement or otherwise as an employee of the
Employer will terminate, and the Executive will be entitled to receive his
Salary and any other compensation or benefits as accrued through the date such
termination is effective. The Executive's other rights, including but not
limited to rights in respect of stock options, shall be as determined under the
provisions of any applicable plan, program or arrangement.
(c) TERMINATION UPON DISABILITY. If this Agreement is
terminated by either party as a result of the Executive's disability, as
determined under Section 4.3, the Employer will pay the Executive and the
Executive will be entitled to receive only his Salary through the remainder of
the calendar month during which such termination is effective, and for the
lesser of (i) three (3) consecutive months thereafter, or (ii) the period of
time until disability insurance benefits commence under disability insurance
coverage of the Executive, if any. The Executive's other rights, including but
not limited to rights in respect of stock options, shall be as determined under
the provisions of any applicable plan, program or arrangement.
(d) TERMINATION UPON DEATH. If this Agreement is terminated
because of the Executive's death, the Executive's Designated Beneficiary (as
defined below) will be entitled to receive the Executive's then-current Salary
for the remainder, if any, of the calendar month in which such termination is
effective. The Executive's other rights, including but not limited to rights in
respect of stock options, shall be as determined under the provisions of any
applicable plan, program or arrangement.
For purposes of this Section 4.2, the Executive's "Designated
Beneficiary" will be such individual beneficiary or trust, located at such
address, as the Executive may designate by notice to the Employer from time to
time or, if the Executive fails to give notice to the Employer of such
Designated Beneficiary, the Executive's estate. Notwithstanding the preceding
sentence, the Employer will have no duty, in any circumstances, to attempt to
open an estate on behalf of the Executive, to determine the existence of any
trust, to determine whether any person or entity purporting to act as the
Executive's personal representative (or the trustee of a trust established by
the Executive) is duly authorized to act in that capacity, or to locate or
attempt to locate any beneficiary, personal representative, or trustee.
4.3 DEFINITION OF "DISABILITY".
For the purposes of this Section 4, "Disability" shall mean a
physical or mental disability or infirmity that entitles the Executive to
long-term disability benefits under any applicable plan of the Employer or, in
the absence of such a plan, prevents the performance of the Executive's
employment-related duties lasting (or likely to last, based on competent medical
evidence presented to the Board of Directors of the Employer) for a period of
six (6) months or longer, and within thirty (30) days after the Employer
notifies the Executive in writing that it intends to replace him, the Executive
shall not have returned to the performance of his employment-related duties on a
full-time basis. The Employer's
reasoned and good faith judgment of disability shall be based on such competent
medical evidence as shall be presented to the Board of Directors of the Employer
(the "Board") by the Executive or by any physician or group of physicians or
other competent medical expert employed by the Executive or the Employer to
advise the Board.
4.4 DEFINITION OF "CAUSE".
For the purposes of Section 4, the word "Cause" means any of the
(a) the Executive's material breach of this Agreement
provided, however, that Executive shall be given written notice of such breach
and an opportunity to cure such breach during the ten (10) day period preceding
termination of this Agreement;
(b) the Executive's failure to adhere to any written
Employer policy, if the Executive has been given a reasonable opportunity to
comply with such policy or cure his failure to comply (which reasonable
opportunity must be granted during the ten (10) day period preceding termination
of this Agreement);
(c) the Executive's appropriation (or attempted
appropriation) of a material business opportunity of the Employer, including
attempting to secure or securing any personal profit in connection with any
transaction entered into on behalf of the Employer;
(d) the Executive's willful misappropriation (or attempted
misappropriation) of any of the Employer's funds or property;
(e) the Executive's conviction of, the indictment (or its
procedural equivalent) for, or the entering of a guilty plea or plea of no
contest with respect to, a felony, or the equivalent crime,
(f) the Executive's knowing and willful failure to comply in
all material respects with the federal and state laws, rules and regulations
relating to any of Executive's responsibilities and duties with Employer.
(g) the Executive's knowing and willful failure to relocate
to the Alachua, Florida
vicinity if requested by Employer. See Section 3.1.
4.5 DEFINITION OF "GOOD REASON".
For the purposes of Section 4, the phrase "Good Reason" means
any of the following:
(a) the Employer's material breach of this Agreement
provided, however, that Employer shall be given written notice of such breach
and given an opportunity to cure such breach during the ten (10) day period
preceding termination of this Agreement;
(b) the assignment of the Executive without his consent to a
position, responsibilities, or duties of a materially lesser status or degree of
responsibility than his position, responsibilities, or duties at the Effective
(c) a "Change in Control", if any successor of the Employer
fails to assume this Agreement in its entirety.
For purposes of this Agreement, "Change in Control" shall mean
the first to occur of any of the following events after the Effective Date
(i) the acquisition by any person, entity or "group"
(as defined in Section 13(d) of the Securities Exchange Act of
1934, as amended, (the "Exchange Age")) of fifty percent (50%)
or more of the combined voting power of the Employer's then
outstanding voting securities;
(ii) the merger or consolidation of the Employer with
any person, entity, or group, if as a result of such merger or
consolidation persons who were shareholders of the Employer
immediately prior to such merger or consolidation, do not,
immediately thereafter, own, directly or indirectly, more than
fifty percent (50%) of the combined voting power entitled to
vote generally in the election of directors of the merged or
(iii) the liquidation or dissolution of the Employer;
(iv) the sale, transfer or other disposition of all
or substantially all of the assets of the Employer to one or
more persons or entities that are not, immediately prior to such
sale, transfer or other disposition, controlled by, controlling
or under common control with the Employer.
5. NON-DISCLOSURE COVENANT; EXECUTIVE'S WORK PRODUCT
5.1 ACKNOWLEDGMENTS BY THE EXECUTIVE.
The Executive acknowledges that (i) during the Employment Period
and as a part of his employment, the Executive will be afforded access to
Confidential Information, as defined in Section 5.5, which Confidential
Information is Employer's exclusive property, (ii) disclosure of such
Confidential Information could have an adverse effect on the Employer and its
business, (iii) because the Executive possesses substantial expertise and skill
the Employer desires to obtain exclusive ownership of all of the Executive's
Work Product (as defined in Section 5.3), and (iv) the provisions of this
Section 5 are reasonable and necessary to prevent the improper use or disclosure
of Confidential Information.
5.2 AGREEMENTS OF THE EXECUTIVE.
In consideration of the compensation and benefits to be paid or
provided to the Executive by the Employer under this Agreement, the Executive
covenants as follows:
(i) During and at all times following the Employment
Period, the Executive will hold in confidence the Confidential
Information and will not disclose it to any person, directly or
indirectly, or use such Confidential Information other than in
the ordinary course of Executive's employment, except with the
specific prior written consent of the Employer or except as
otherwise expressly permitted by the terms of this Agreement.
(ii) Any trade secrets of the Employer will be
entitled to all protections and benefits under the State of
's trade secret laws and any other applicable law. If
any information that the Employer deems to be a trade secret is
found by a court of competent jurisdiction not to be a trade
secret for purposes of this Agreement, such information will,
nevertheless, be considered Confidential Information for
purposes of this Agreement. The Executive hereby waives any
requirement that the Employer submit proof of the economic value
of any trade secret or post a bond or other security.
(iii) None of the foregoing obligations and
restrictions applies to (i) any disclosures made by the
Executive in good faith pursuant to the performance of his
duties hereunder, or (ii) any part of Confidential Information
that the Executive demonstrates was or became generally
available to the public other than as a result of a disclosure
by the Executive in violation hereof.
(iv) The Executive will not remove from the
Employer's premises (except to the extent such removal is for
purpose of the performance of the Executive's duties at home or
while traveling, or except as otherwise specifically authorized
by the Employer) any document, record, notebook, plan, model,
component, device, or computer software or code, whether
embodied in a disk or otherwise contained in electronic or
digital form, or in any other form (collectively, the
"Proprietary Items"). The Executive recognizes that, as between
the Employer and the Executive, all of the Proprietary Items,
whether or not developed by the Executive, are the exclusive
property of the Employer. Upon termination of this Agreement by
either party, or upon request of the Employer during the
Employment Period, the Executive will return to the Employer all
of the Proprietary Items in the Executive's possession or
subject to the Executive's control, and the Executive shall not
retain any copies, abstracts, sketches, or other physical
embodiment of any of the Proprietary Items.
5.3 EXECUTIVE'S WORK PRODUCT.
All of the Executive's Work Product (as defined below) will
belong exclusively to the Employer. The Executive acknowledges that all of the
documents, writings, and other works created or developed by the Executive,
either solely or in conjunction with others, during the Employment Period, that
relates in any way to, or is useful in any manner in, the business then being
conducted or proposed to be conducted by the Employer, are works made for hire
and are the exclusive property of the Employer. Such documents, writings, and
other work of the Executive is hereinafter referred to as the Executive's "Work
Product." If it is determined that any such documents, writings, and other works
of the Executive are works for hire, the Executive hereby assigns to the
Employer all of the Executive's right, title, and interest in or to such works,
and the Executive covenants that he will execute and deliver to the Employer
such assignments and other documents as the Employer may request in order to
carry out the above obligations.
5.4 DISPUTES OR CONTROVERSIES.
The Executive recognizes that should a dispute or controversy
arising from or relating to this Agreement be submitted for adjudication to any
court, arbitration panel, or other third party, the preservation of the secrecy
of Confidential Information may be jeopardized. All pleadings, document,
testimony, and records relating to any such adjudication will be maintained in
secrecy and will be available for inspection by the Employer, the Executive, and
their respective attorneys and experts, who will agree, in advance and writing,
to receive and maintain all such information in secrecy, except as may be
limited by them in writing.
5.5 DEFINITION OF "CONFIDENTIAL INFORMATION".
For the purposes of this Section 5, the term "Confidential
Information" shall mean any and all:
(a) trade secrets concerning the business and affairs of the
Employer, specifications, data, know-how, formulae, compositions, processes,
designs, graphs, inventions and ideas, past, current, and planned research and
development, current and planned marketing and distribution methods and
processes, customer and stockholder lists (including names, addresses, phone
numbers, amount of investments and similar information), current and anticipated
customer requirements, price lists, market studies, business plans, computer
software, programs, database technologies, systems, and structures, and any
other information, however documented, that is a trade secret within the meaning
of the State of Florida
's applicable trade secret laws;
(b) information concerning the business and affairs of the
Employer (which includes historical financial statements, financial projections
and budgets, historical and projected sales, capital spending budgets and plans,
the names and backgrounds of key personnel, and personnel training and
techniques and materials, however documented; and
(c) notes, analysis, compilations, studies, summaries, and
other material prepared by or for the Employer containing or based, in whole or
in part, on any information including the foregoing.
6. NON-COMPETITION AND NON-INTERFERENCE
6.1 ACKNOWLEDGMENTS BY THE EXECUTIVE.
The Executive acknowledges that: (a) the services to be
performed by him under this Agreement are of a special, unique, unusual,
extraordinary, and intellectual character; (b) the Employer's business is
national in scope and its products are marketed throughout the United States;
(c) the Employer competes with other businesses that are or could be located in
any part of the United States; and (d) the provisions of this Section 6 are
reasonable and necessary to protect the Employer's business.
6.2 COVENANTS OF THE EXECUTIVE.
In consideration of the acknowledgments by the Executive, and in
consideration of the compensation and benefits to be paid or provided to the
Executive by the Employer, the Executive covenants that he will not, directly or
indirectly, at any time during the Employment Period or the Post-Employment
Period (as defined below):
(a) engage or invest in, own, manage, operate, finance,
control, or participate in the ownership, management, operation, financing, or
control of, be employed by, associated with, or in any manner connected with,
lend the Executive's name or any similar name to, lend the Executive's credit to
or render services or advice to, any business whose products, services or
activities compete in whole or in part with the products, services, or
activities of the Employer anywhere in the United States, PROVIDED HOWEVER, that
the Executive may purchase or otherwise acquire up to (but not more than) one
percent (1%) of any class of securities of any enterprise (but without otherwise
participating in the activities of such enterprise), if such securities are
listed on any national or regional securities exchange or have been registered
under Section 12(g) of the Exchange Act;
(b) whether for the Executive's own account or for the
account of any other person, directly or indirectly, solicit business of the
same or similar type being carried on by the Employer from any person known by
the Executive to be a customer of the Employer, whether or not the Executive had
personal contact with such person during and by reason of the Executive's
employment with the Employer;
(c) whether for the Executive's own account or the account
of any other person, directly or indirectly, (i) solicit as an employee,
independent contractor, or otherwise, any person who is or was an employee of
the Employer at any time during the Employment Period and the Post-Employment
Period, or in any manner induce or attempt to induce any employee of the
Employer to terminate his or her employment with the Employer, or (ii) interfere
with the Employer's relationship with any person who at anytime during the
Employment Period was an employee, contractor, supplier, or customer of the
Employer, provided however, that nothing in this Section 6.2(c) shall prohibit
the Executive from maintaining personal contacts with employees of the Employer;
(d) in order to receive the Severance Pay provided in
Section 4, Executive will agree not to disparage the Employer or any of its
shareholders, directors, officers, employees, or agents.
For the purposes of this Section 6.2, the term "Post-Employment
Period" means the two (2) year period beginning on the date of termination of
the Executive's employment with the Employer.
If any covenant, or portion thereof, of this Section 6.2 is held
to be unreasonable, arbitrary, or against public policy, such covenant, or
portion thereof, will be considered to be divisible with respect to scope, time,
and geographic area, and such a lesser scope, time, or geographic area, or all
of them, as a court of competent jurisdiction may determine to be reasonable,
not arbitrary, and not against public policy, will be effective, binding, and
enforceable against the Executive.
For the purposes of this Section 6.2, the business of the
Employer shall include the existing business of Employer, which is the
processing and distribution of biological implant products made from human
(allograft) and animal (xenograph) tissue, and any new areas of business into
which the Employer or any subsidiary of Employer expands during the Executive's
The period of time applicable to any covenant of this Section
6.2 will be extended by the duration of any violation by the Executive of such
The provisions of this Section 6.2 shall not apply if the
Executive's employment is terminated by Employer without Cause or by the
Executive for Good Reason.
7 GENERAL PROVISIONS
7.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDIES.
The Executive acknowledges that the injury that would be
suffered by the Employer as a result of a breach of the provisions of this
Agreement (including any provision of Section 6) would be irreparable, and that
an award of monetary damages to the Employer for such a breach would be an
inadequate remedy. Consequently, the Employer will have the right, in addition
to any other right it may have, to obtain injunctive relief to restrain any
breach or threatened breach or otherwise to specifically enforce any provision
of this Agreement, and the Employer will not be obligated to post bond or other
security in seeking such relief. Without limiting the Employer's rights under
this Section 7 or any of the
provisions of Sections 6, the Employer will have the right to cease making any
payments otherwise due to the Executive under this Agreement.
7.2 COVENANTS OF SECTIONS 5 AND 6 ARE ESSENTIAL AND INDEPENDENT
The covenants by the Executive in Sections 5 and 6 are essential
elements of this Agreement, and without such covenants, the Employer would not
have entered into this Agreement or employed the Executive. The Employer and the
Executive have independently consulted their respective counsel and have been
advised in all respects concerning the reasonableness and propriety of such
covenants, with specific regard to the nature of the business conducted by the
If the Executive's employment hereunder expires or is
terminated, this Agreement will continue in full force and effect as is
necessary or appropriate to enforce the covenants and agreements of the
Executive in Sections 5 and 6.
The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by either
party in exercising any right, power, or privilege under this Agreement will
operate as a waiver of such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege will preclude any other or
further exercise of such right, power, or privilege or the exercise of any other
right, power, or privilege. To the maximum extent permitted by applicable law,
(a) no claim or right arising out of this Agreement can be discharged by one
party, in whole or in part, by a waiver or renunciation of the claim or right
unless in writing signed by the other party; (b) no waiver that may be given by
a party will be applicable except in the specific instance for which it was
given; and (c) no notice to or demand on one party will be deemed to be a waiver
of any obligation of such party or of the right of the party giving such notice
or demand to take further action without notice or demand as provided in this
7.4 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED.
This Agreement shall inure to the benefit of, and shall be
binding upon, the parties hereto and their respective successors, assigns,
heirs, and legal representatives, including any entity with which the Employer
may merge or consolidate or to which all or substantially all of its assets may
be transferred. The duties and covenants of the Executive under this Agreement,
being personal, may not be delegated.
All notices, consents, waivers, and other communications under
this Agreement must be in writing and will be deemed to have been given when (a)
delivered by hand (with written confirmation of receipt), (b) sent by facsimile
(with written confirmation of receipt), PROVIDED that a copy is mailed by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
If to Executive: Guy L. Mayer
1 Dudley Street
Facsimile No.: (617) 730-5593
With a copy to: Stephan G. Bachelder, Esq.
Bachelder & Dowling, P.A.
22 Free Street, Suite 201
Facsimile No.: (207) 775 6441
If to Employer: Roy D. Crowninshield
11115 Burnhill Court
Fort Wayne, Indiana
Facsimile No.: (260) 625-5264
With a copy to: William J. Schifino, Sr., Esquire
Williams Schifino Mangione & Steady, P.A.
One Tampa City Center, Suite 2600
Facsimile No.: (813) 221-7335
7.6 VOLUNTARY AGREEMENT.
The Executive hereby represents that he has not been pressured,
misled or induced to enter this Agreement based upon any representation by the
Employer not contained herein.
7.7 ENTIRE AGREEMENT; AMENDMENTS.
This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof, and supercedes all prior agreements
and understandings, oral or written, between the parties hereto with respect to
the subject matter hereof. This Agreement may not be amended orally, but only by
and agreement in writing signed by the parties hereto.
7.8 GOVERNING LAW.
This Agreement will be governed by the laws of the State of
without regard to conflicts of laws principles.
7.9 SECTION HEADINGS, CONSTRUCTION.
The headings of Sections in this Agreement are provided for
convenience only and will not affect its construction or interpretation. All
references to "Section" or "Sections" refer to the corresponding Section or
Sections of this Agreement unless otherwise specified. All words used in this
Agreement will be construed to be of such gender or number, as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms.
If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any
provision of this Agreement held invalid or unenforceable only in part or degree
will remain in full force and effect to the extent not held invalid or
This Agreement may be executed in one or more counterparts, each
of which will be deemed to be an original copy of this Agreement and all of
which, when taken together, will be deemed to constitute one and the same
SIGNATURE PAGE TO FOLLOW
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement to be effective as of the date first written above.
Guy L. Mayer
Tutogen Medical, Inc.
Roy D. Crowninshield
, Chief Executive
Form of Stock Option Grant