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U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB/A
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 2000
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[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ___________ to ___________
Commission file number 0-28443
CYTOMEDIX, INC.
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(Name of small business issuer as specified in its charter)
Delaware 23-2958959
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1523 Bowman Road, Suite A, Little Rock, Arkansas 72211
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(Address of principal executive offices) (Zip Code)
(501) 225-8400
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Issuer's telephone number
Autologous Wound Therapy, Inc.
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(Former name, former address, and former fiscal year,
if changed since last report)
Check whether the issuer: (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. YES [X] NO [ ]
APPLICABLE ONLY TO CORPORATE ISSUERS
State the number of shares outstanding of each of the issuer's classes of common
equity, as of the latest practicable date:
COMMON STOCK, $.0001 PAR VALUE: 10,500,934
AS OF MAY 12, 2000
Transitional Small Business Disclosure Format (check one): YES [ ] NO [X]
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SIGNATURES
In accordance with the requirements of the Securities Exchange Act of
1934, the registrant has caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
CYTOMEDIX, INC.
Dated: May 24, 2000 /s/ James A. Cour
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James A. Cour
President and Chief Executive Officer
(Principal Executive Officer)
Dated: May 24, 2000 /s/ Glenn M. Charlesworth
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Glenn M. Charlesworth
Chief Financial Officer
(Principal Financial and Accounting Officer)
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EXHIBIT LIST
*10.1 Securities Purchase Agreement, dated as of January 25, 2000, between
AuTologous Wound Therapy, Inc. and Lancer Offshore, Inc.
*10.2 Form of Securities Purchase Agreement, dated as of March 1, 2000, among
AuTologous Wound Therapy, Inc. and the investor parties thereto
*10.3 Consulting Agreement, dated as of January 12, 2000, between AuTologous
Wound Therapy, Inc. and The Kriegsman Group
*10.4 First Amendment to Consulting Agreement, dated as of February 22, 2000,
between AuTologous Wound Therapy, Inc. and The Kriegsman Group
10.5 Employment Agreement, dated as of March 3, 2000, between AuTologous Wound
Therapy, Inc. and James A. Cour
*10.6 Employment Agreement, dated as of March 3, 2000, between AuTologous Wound
Therapy, Inc. and Robin L. Geller
*10.7 Employment Agreement, dated as of March 3, 2000, between AuTologous Wound
Therapy, Inc. and Christopher J. Caywood
*10.8 Employment Agreement, dated as of March 3, 2000, between AuTologous Wound
Therapy, Inc. and David C. Demarest
*10.9 Lease, dated as of April 19, 2000, between Cytomedix, Inc. and
CarrAmerica Capital Corporation
*99.1 Press Release, dated April 6, 2000
*27 Financial Data Schedule
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* Previously filed
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EXHIBIT 10.5
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 JAMES A. COUR ("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 President and Chief Executive Officer. In this capacity,
Executive shall have the full authority and be responsible to manage the
operations of the Company consistent with the Company's annual and strategic
business plans, such plans to set forth guidelines related to budgeting, capital
expenditures, hiring and other initiatives, and to be formulated by Executive
and approved by the Company's Board of Directors. Executive shall have the
authority to bind the Company to contracts that are consistent with the
Executive's duties and responsibilities, subject only to specific limitations
imposed by the Company's Board of Directors. During the Term of his employment,
Executive's authority and responsibilities to manage the operations of the
Company shall not be materially diminished without his prior consent. Executive
hereby accepts such employment and agrees to render such services on behalf of
the Company. Executive shall perform his duties and carry out his
responsibilities hereunder in a diligent manner, and shall devote his exclusive
and full working time, attention and effort to the affairs of the Company, shall
use all reasonable efforts to promote the interests of the Company and shall be
just and faithful in the performance of his duties and in carrying out his
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.
C. BOARD OF DIRECTORS. Executive agrees to accept election and to serve during
all or any part of the Term as a director of the Company and of any subsidiary
or affiliate of the Company, without any compensation therefor other than that
specified herein, if elected to any such position by the Board of Directors or
by the stockholders of the Company or of any subsidiary or
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affiliate, as the case may be. The Company will use its best efforts to cause
and maintain the election of Executive to the Company's Board of Directors. In
connection therewith, the Company shall use its best efforts to include
Executive in the management slate for election as a director at every annual
meeting of shareholders of the Company at which his term as a director would
otherwise expire. Upon the termination of this Agreement or Executive's
employment hereunder for any reason, Executive shall resign from the Board and
from all other positions as an officer or director of any of the Company's
subsidiaries or affiliates.
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 Two
Hundred and Twenty-Five Thousand Dollars ($225,000), 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 him 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
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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 him in the
performance of his 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 his duties
hereunder 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 one million (1,000,000)
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
three hundred thirty-four thousand (334,000) shares on December 31, 2000;
with respect to the next three hundred thirty-three thousand (333,000)
shares on December 31, 2001, and with respect to the final three hundred
thirty-three thousand (333,000) 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.
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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 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.
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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.
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 his 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
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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 "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;
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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 his 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
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 he is unable substantially to
perform his duties and services hereunder for:
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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 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 his 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 his 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
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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
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 his 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
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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 he shall,
during the course of his 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 information of any nature whatsoever
disclosed to or developed by him or to which he had access as a result of his
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 his 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 his 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 his 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 himself and his 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 his employment, or based on knowledge or
information obtained through his 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
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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 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 his 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 he 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:
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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.
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
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. James A. Cour
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.
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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.
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 him and his rights
and interest hereunder may not be assigned, nor may his 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
Executive AuTologous Wound Therapy, Inc.
/s/ James Cour By: /s/ Dennis G. Hendren
-------------------------- ---------------------------
James A. Cour Title: 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 One Hundred Fifty
Thousand Dollars ($150,000). 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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