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
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.