Unassociated Document


    TERMINATION
      AND CONSULTING AGREEMENT

    


    This
      Termination and Consulting Agreement (this "Agreement") is entered into on
      June
      5, 2008, by and between Cytomedix, Inc., a Delaware corporation (the "Company"),
      and Kshitij Mohan (the "Executive").

    


    WHEREAS,
      the
      Executive currently serves as the Company’s Chairman of the Board of Directors
      (the “Board”) and Chief Executive Officer pursuant to that certain Employment
      Agreement, dated as of April 20, 2004, as amended, by and between the Company
      and the Executive (the "Employment Agreement"); and

    


    WHEREAS,
      the
      parties have agreed to terminate the Employment Agreement effective as of the
      close of business on June 30, 2008 (the “Separation Date”) not for cause and by
      amicable settlement; and

    


    WHEREAS,
      the
      Company and the Executive desire that the Employment Agreement be terminated
      and
      superseded to the extent set forth herein; and

    


    WHEREAS,
      the
      Company desires that, following his departure from the Company, the Executive
      provide services to the Company as an independent contractor on an as needed
      and
      as available basis; and

    


    WHEREAS,
      the
      Executive desires to provide such services as an independent
      contractor.

    


    NOW,
      THEREFORE,
      in
      consideration of the mutual representations, promises and agreements contained
      herein, the receipt and sufficiency of which are hereby acknowledged, the
      Company and the Executive hereby agree as follows:

    


    1. Term
      of Agreement.
      The
      Company hereby engages the Executive as a consultant, subject to the terms
      and
      conditions hereof, for the period commencing as of the Separation Date and
      ending on June 30, 2010 (the "Consulting Period"), except as the Consulting
      Period may be extended by mutual written agreement of the parties hereto.


     

    2. Consulting
      Services.
      

     

    (a) During
      the Consulting Period, the Executive shall perform consulting services (the
      “Consulting Services”) for the Company on an “as needed” basis, subject to
      Executive’s availability to perform the Consulting Services. The Company’s
      request for Executive to perform Consulting Services shall be at the sole
      discretion of the Company, subject to advance notice and the Executive’s
      availability. The Executive shall perform the Consulting Services at times
      and
      places reasonable and convenient to Executive, subject to Executive’s sole
      discretion as to his availability to perform the Consulting
      Services.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    (b) The
      Executive agrees to exercise the highest degree of professionalism and utilize
      his expertise and talents in responding to the Company’s or the Board’s
      requests. Such Consulting Services
      are anticipated to include, without limitation, working with Company management
      at a strategic level with respect to the Company's development and product
      acquisition activities, capital structure, investor relations and reduction
      of
      production costs, and to follow up on clinical trials as well as any other
      matters and activities with respect to which the Company management may require
      Executive’s services. The Executive will devote such business time, subject to
      Executive’s availability, as is reasonably necessary or desirable to accomplish
      his duties and responsibilities under this Agreement.

     

    (c) It
      is
      acknowledged and agreed by the Company that Executive carries neither
      professional licenses nor memberships in any self-regulatory organizations.
      It
      is further acknowledged and agreed by the Company that the Executive is not
      rendering expert or legal advice or performing accounting services and is not
      acting and shall not act as an investment advisor or broker/dealer within the
      meaning of any applicable state or federal securities laws. No portion of the
      services rendered pursuant to this Agreement shall be provided in connection
      with the offer or sale of securities in a capital raising transaction or for
      the
      purpose of directly or indirectly promoting or maintaining a market for the
      Company’s securities. The Company shall not require Executive to perform any
      services inconsistent with the foregoing. The Company acknowledges and agrees
      that Executive is one of multiple sources of advice obtained by the Company
      and
      is not the sole source of advice nor the final decision maker for any aspect
      of
      the Company’s operations or actions. The Executive further acknowledges and
      agrees that the Company may or may not follow Executive’s advice, but if the
      Company does follow all or part of Executive’s advice, it shall be after
      independent legal or other appropriate validation and the Company takes full
      and
      sole responsibility for all decisions and actions of the Company regardless
      of
      whether or not they were related to the services provided by Executive.


     

    (d) The
      Company also acknowledges and agrees that the Executive will be free to take
      on
      any consulting projects, employment or any other activities, provided that
      it
      does not violate the confidentiality and non-competition provisions of this
      Agreement. While the Executive will attempt to make himself reasonably available
      to provide Consulting Services to the Company, such availability will be subject
      to the circumstances faced by the Executive at the time, including, but not
      limited to, conditions of his employment or professional activities, prior
      commitments or health status.

     

    3. Independent
      Contractor.
      

     

    (a) The
      Executive shall provide the Consulting Services described in Section 2 as an
      independent contractor without the power to bind or represent the Company for
      any purpose whatsoever. Nothing herein contained shall be construed to
      constitute the parties hereto as partners or as joint venturers, or either
      as
      agent of the other, or as employer and employee. During the Consulting Period,
      the Executive shall not present himself as an employee of the Company or any
      of
      its affiliates.

     

    
      
        
        

      

      
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    (b) Except
      as
      specified in this Agreement, the Executive shall not be entitled to participate
      in any employee benefit plans maintained on behalf of the Company or any of
      its
      affiliates during the Consulting Period. The Executive hereby acknowledges
      that
      if the Company compensates Executive for the Consulting Services, the Company
      shall not withhold income taxes or withhold or make payments for social
      security, make unemployment insurance or disability insurance contributions,
      or
      obtain worker’s compensation insurance on Executive’s (or his employees’ or
      agents’) behalf. The Executive hereby acknowledges his separate responsibility
      for all federal, state and local income taxes, Federal Insurance Contribution
      Act taxes, payroll, workers' compensation and unemployment compensation taxes
      and business license fees, if applicable, for all compensation and benefits
      under this Agreement. 

     

    (c) Subject
      only to such specific limitations as are contained in this Agreement, the
      manner, means, details or methods by which the Executive performs the Consulting
      Services shall be solely within the discretion of the Executive. The Company
      shall not have the authority to, nor shall it, supervise, direct or control
      the
      manner, means, details or methods utilized by the Executive to perform the
      Consulting Services and nothing in this Agreement shall be construed to grant
      the Company any such authority.

     

    4. Severance
      Pay and Compensation.

     

    (a) Severance
      Pay.
      In
      settlement of the severance pay requirements in the Employment Agreement related
      to termination “Not For Cause”, the Executive shall receive payments (each a
“Severance Payment”, collectively “Severance Payments”) in the amount equal to
      five hundred thousand dollars ($500,000) payable in twenty four (24) equal
      monthly installments in arrears at the end of each month. The Company shall
      make
      the first Severance Payment to Executive at the end of the first month after
      the
      Effective Date (as defined in Section 7 of this Agreement).

     

    (b) Outstanding
      Equity Awards.
      The
      Company and the Executive acknowledge and agree that all of the stock options
      previously awarded by the Company to the Executive and vested as of the date
      hereof as set forth in Exhibit
      A
      hereto
      (each an “Option”, and collectively referred to the “Options”),
      shall:

     

    
      	 	
              (i)

            	
              remain
                in full force and effect, and

            


    

     

    
      	 	
              (ii)

            	
              continue
                to be governed by the terms of the applicable stock option grant
                notices
                and agreements between the Company and the Executive regarding the
                Options.

            


    

     

    Notwithstanding
      the foregoing, Company represents, warrants and agrees that the Options are
      fully vested as set forth in Exhibit
      A
      and will
      not terminate (and Executive’s ability to exercise each Option will not expire)
      until the close of business on the expiration dates set forth in each respective
      option grant notice and agreement (such expiration dates are also set forth
      in
      Exhibit A), which is the last day of the tenth (10th)
      year
      following the date of grant of each Option. The Company further represents,
      warrants and agrees that, consistent with the terms and provisions of the
      Executive’s Employment Agreement, in the event of Executive’s death or
      disability, the Options will remain vested and exercisable by the Executive’s
      estate or the Executive (in case of his disability) until the close of business
      on the expiration dates set forth in each respective option grant notice and
      agreement (such expiration dates are also set forth in Exhibit A), which is
      the
      last day of the tenth (10th)
      year
      following the date of grant of each Option. Under no circumstances will the
      termination of Executive’s consulting with the Company affect the foregoing
      provisions. The Company hereby agrees to effect such changes and amendments
      to
      its agreements, plans and other written instruments setting forth the terms
      and
      provisions of the Options as it may deem necessary or appropriate to carry
      out
      the purposes of this Section 4(b). 

     

    
      
        
        

      

      
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    (c) Additional
      Payment for Counsel Fees and Costs.
      Within
      ten (10) days after the Separation Date, the Company shall make an additional
      payment to Executive to reimburse Executive for the fees and costs incurred
      by
      Executive’s counsel’s review of this Agreement; provided, however, that such
      reimbursement shall not exceed the sum of $5,000.

     

    (d) No
      Other Severance Pay.
      Except
      as set forth in this Agreement, the Executive acknowledges and agrees that
      he
      will not enforce the Company’s obligations to pay the other severance or
      termination pay or benefits under Section 5 of the Employment
      Agreement.

     

    (e) Vacation
      Pay.
      The
      Executive shall be reimbursed for all accrued but unused vacation time as of
      the
      Separation Date, which vacation time is not to exceed two hundred (200) hours
      on
      or before June 30, 2008.

     

    (f) Health
      Benefits.
      The
      Company agrees to continue to make available and pay the same proportion of
      the
      deductible and portion of the premium as it currently does for participation
      for
      the Executive and his spouse, Mrs. Meenakshi Mohan, to the extent each is
      eligible under Maryland continuation of benefits laws, in the Company’s health
      benefit plans (including medical and dental plans) or programs equivalent to
      those that are offered to the key executive employees of Company as may be
      established from time to time by the Company management or its Board of
      Directors (the “Health Plans”) on substantially the same basis as is in effect
      for the Company’s active employees for a period of eighteen (18) months
      commencing on the first day of the month next-following the Separation Date
      (the
“Continuation Period”). If and to the extent Executive and his spouse cease to
      be eligible for coverage under the Health Plans, respectively, at any point
      after the commencement of the Continuation Period but prior to the end of the
      Continuation Period, continuation coverage under the Health Plans or any
      available alternate coverage shall be provided to the Executive and his spouse
      in accordance with the applicable requirements of Maryland law for up to
      eighteen (18) months (the “Continuation Coverage”); provided, that any such
      Continuation Coverage shall be provided at the same proportion of the deductible
      and portion of the premium, if available, as may then be in effect for the
      Company’s active employees generally. In the event the Executive’s or his
      spouse’s eligibility for Continuation Coverage ends prior to the expiration of
      the Continuation Period, the Company shall, upon the presentation of receipts
      or
      invoices, promptly reimburse the Executive and/or his spouse for the costs
      of
      any replacement coverage they may thereafter secure until the end of the
      Continuation Period; provided, that the amount of the Company’s reimbursement
      for such alternative coverage shall be no greater than hundred and fifty percent
      (150%) of the cost of coverage it otherwise would have provided to the Executive
      in connection with the Continuation Coverage (the “Coverage Maximum”). The
      Executive acknowledges and agrees that the Company’s obligations to pay or
      reimburse the costs of such Continuation Coverage or alternative coverage shall
      terminate at the end of the Continuation Period. The Executive acknowledges
      and
      agrees that the Company’s reimbursement for the alternative coverage
      contemplated hereunder shall be limited to the Coverage Maximum. The Executive
      further acknowledges and agrees to pay all federal, state and any other taxes
      in
      connection with or caused by the Company’s providing the Continuation Coverage
      (or alternative coverage) contemplated hereunder; provided, however, in the
      event that the Company reports any such Continuation Coverage as a taxable
      benefit to the Executive, the Company hereby agrees to provide the Executive
      written notice of any such report.

     

    
      
        
        

      

      
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    (g) Additional
      Benefits.
      In the
      event of the Executive’s death, benefits due to the Executive shall be paid in
      full to the Executive’s spouse, Mrs. Meenakshi Mohan, or if she predeceases him,
      to his son, Vivek Mohan, and daughter, Kavita Mohan, in equal
      shares.

     

    5. Reference
      Inquiries.
      In the
      event that any person or entity requests information regarding Executive’s
      employment with the Company, the Company will inform the inquiring party that
      Executive’s employment with the Company ended by mutual agreement and that
      Executive has transitioned from being an employee of the Company to an
      independent consultant to the Company. Notwithstanding the foregoing, the
      Company acknowledges that it terminated the Employment Agreement Not for Cause
      pursuant to Section 5.6 of the Employment Agreement. In addition, Executive
      may
      refer potential employers or clients to Andrew Maslan, Chief Financial Officer
      of the Company. 

     

    6. Intentionally
      deleted.

     

    7. Termination
      of the Employment Agreement; Mutual Release and Covenant Not To
      Sue.
      

     

    (a) Except
      as
      otherwise provided in this Agreement, the Company and the Executive hereby
      represent, warrant and agree that, except as expressly set forth in this
      Agreement, the Employment Agreement executed by such parties is hereby
      terminated and canceled, and is of no further force and effect, effective
      immediately upon the execution of this Agreement by each party thereto. Except
      for any agreements between the Company and the Executive regarding the Options,
      directors’ and officers’ (D&O) liability insurance coverage of Executive
      provided by the Company, or the indemnification
      rights to which Executive may be entitled from the Company, this Agreement
      supersedes and extinguishes any agreements or understandings, whether oral
      or
      written, made between the Company and the Executive at any time prior to the
      date of this Agreement, including, but not limited to, the Employment Agreement.
      The Executive hereby appoints the Chief Financial Officer of the Company as
      its
      agent and attorney-in-fact for the limited purpose of taking any and all action
      necessary or deemed advisable by such attorney and agent-in-fact to cause the
      Employment Agreement to be terminated and canceled, such appointment to be
      effective once this Agreement has been executed by the Company and delivered
      to
      the Executive.

     

    
      
        
        

      

      
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    (b) Except
      for claims arising under any agreement between the Company and the Executive
      regarding the Options, the Company’s directors’ and officers’ (D&O)
      liability insurance coverage of Executive, and the indemnification rights to
      which Executive may be entitled from the Company, the Executive, for himself
      and
      his respective heirs, executors, representatives, beneficiaries and assigns,
      irrevocably and unconditionally releases and discharges the Company, together
      with its officers, directors, shareholders, partners, employees, administrators,
      representatives, beneficiaries, attorneys and assigns (the "Released Persons"),
      from any and all claims, demands, causes of action, actions, judgments, liens,
      indebtedness, costs, damages, obligations, attorneys’ fees, losses and liability
      of whatever kind and character, that are known to the Executive as of the
      Effective Date, in law or equity, liquidated or unliquidated, whether asserted
      personally, derivatively or in any other capacity, arising from, referring
      to,
      relating to or in connection with events, acts or conduct at any time prior
      to
      and including the execution date of this Agreement, including, without limiting
      the foregoing, (i) any claims relating to or arising out of the Employment
      Agreement including, but not limited to breach of contract, breach of covenant
      of good faith and fair dealing, fraud, promissory or equitable estoppel,
      misrepresentation, violation of public policy, wrongful discharge, unfair
      dismissal, or any other common law claim now or hereafter recognized; (ii)
      any
      claims for unpaid or withheld wages, vacation, paid time off, sick and/or
      personal time pay, severance pay, notice, bonuses, and/or other compensation
      or
      benefits of any kind; (iii) any and all claims of discrimination in employment
      arising before the execution of this Agreement, including, but not limited
      to
      claims for discrimination or harassment on the basis of age, sex, race,
      religion, color, creed, handicap, disability, citizenship, national origin,
      sexual orientation or any other factor protected by Title VII of the Civil
      Rights Act of 1964, The Americans with Disabilities Act, The Age Discrimination
      in Employment Act (29 U.S.C.A.§621, et seq.) (“ADEA”), and/or any other similar
      employment-related federal, state and local laws, and any claims for retaliation
      thereunder; (iv) any claims under the Sarbanes-Oxley Act; (v) any claims arising
      under the Executive Retirement Income Security Act; (vi) any claims under the
      Federal Family and Medical Leave Act of 1993 or similar state law; (vii) all
      claims for attorneys’ fees, costs and expenses except as otherwise provided in
      this Agreement (all of the foregoing being collectively referred to herein
      as
      the "Claims"). The Executive hereby declares that he voluntarily accepts the
      above-mentioned consideration for the purpose of making a full and final
      compromise, adjustment, release and settlement of the Claims. 

     

    (c) The
      Executive acknowledges that he is knowingly and voluntarily waiving and
      releasing any rights he may have under the ADEA, as amended. Executive
      acknowledges that he has been advised by this writing, as required by the ADEA,
      that: (a) his waiver and release does not apply to any rights or claims that
      may
      arise after the execution date of this Agreement; (b) he has been advised hereby
      to consult with an attorney prior to executing this release; (c) he has
      twenty-one (21) days to consider this Agreement (although he may choose to
      voluntarily execute this Agreement earlier); (d) he has seven (7) days following
      the execution of this Agreement by the parties to revoke the Agreement, which
      can be done by sending a certified letter to that effect to Andrew Maslan,
      Chief
      Financial Officer, 416 Hungerford Drive, Suite 330, Rockville, MD 20850; and
      (e)
      this Agreement shall not be effective until the date upon which the revocation
      period has expired, which shall be the eighth (8th) day after this Agreement
      is
      executed by Executive (“Effective Date”). 

     

    
      
        
        

      

      
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    (d) The
      Executive covenants and agrees not to sue or bring any action in law, or in
      equity, including, but not limited to, an action in any court, forum, or
      arbitration proceeding whether by original process or demand, counterclaim,
      cross-claim, third-party process, impleader, claim for indemnity or contribution
      or otherwise against the Company and its successors and assigns, arising from,
      referring to, relating to, or in connection with in any way the Claims, except
      as otherwise provided for in this Agreement.

     

    (e) The
      Company and its officers and directors, and the Released Persons, irrevocably,
      unconditionally, fully, and forever releases and discharges the Executive,
      together with his heirs, executors, administrators, attorneys, agents, personal
      representatives, family members, successors, and assigns, from any and all
      claims, demands, causes of action, actions, judgments, liens, indebtedness,
      costs, damages, obligations, attorneys’ fees, losses and liability, contingent
      or accrued, that are known to the Company and its directors, officers, agents,
      subsidiaries and affiliates as of the Effective Date. This release does not
      include any claims that arise after the execution date of this
      Agreement.

     

    8. Resignation.
      The
      Executive will resign, effective on the Separation Date, as Chief Executive
      Officer and as a member of the Board as well as from his memberships, if any,
      on
      the Board’s standing committees. 

     

    9. Return
      of Property.
      The
      Executive agrees that he will return prior to the Effective Date any and all
      documents (including all copies) and other property he may have which belongs
      to
      the Company, except for documents which the Company agrees are requested for
      him
      to perform his consulting duties or are related to his fiduciary
      responsibilities as an officer and director of the Company that may be necessary
      for him to protect himself against any legal or regulatory liability in the
      future. The Executive further agrees to return to the Company any of its
      documents and property that is permitted during the Term upon request by the
      Company. The Executive may retain the computer and cellular telephone currently
      in his possession. The Executive shall also be entitled to retain his personal
      documents produced by the Executive prior to or outside of his work for the
      Company. 

     

    10. Expenses.
      The
      Company shall pay or reimburse the Executive for all reasonable expenses
      incurred by the Executive in connection with the performance of his services
      under this Agreement including, without limitation, travel and lodging expenses,
      consistent with the Company’s expense policies following
      receipt of appropriate documentation.

     

    
      
        
        

      

      
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    11. Work
      Product.
      It is
      agreed that all information and materials produced specifically for the Company
      and in connection with the services rendered by Executive under this Agreement
      shall be the property of the Company, free and clear of all claims thereto
      by
      Executive, and Executive has no claim of ownership rights thereto; provided,
      however, that Executive may retain one copy of the work product for personal
      use. 

     

    12. Non-competition.
      

     

    (a) The
      term
“Competing Business” shall refer to any person or entity engaged in (i) the use
      of products or technology similar to Autologel(TM) or the Autologel(TM) System
      involving the use of releasates from platelets to treat chronic wounds or other
      indications for which the Company has obtained or would be in the process of
      obtaining any applicable regulatory clearance during the Consulting Period,
      (ii)
      any use of products or technology similar to that which the Company may develop
      or otherwise obtain marketable rights during the Consulting Period, or (iii)
      the
      direct competition with either (i) or (ii) above. The term “Non-Competition
      Period” shall be the duration of the Consulting Period. The geographic
      restriction of this covenant not to compete shall include the cities, counties,
      states of the United States, and each country outside of the United States
      where
      the Company does business during the Consulting Period. 

     

    (b) The
      Executive shall not, at any time during the Non-Competition Period, either
      directly or indirectly, or solely or jointly with other persons or
      entities:

     

    (i)
       own,
      manage, operate, join, control, consult with, render services for or participate
      in the ownership, management, operation or control of, or be connected as an
      officer, director, employee, partner, principal, agent, consultant or other
      representative with, or permit his name to be used in connection with any profit
      or nonprofit business, organization or entity, other than the Company and its
      affiliates, which operates or engages in a Competing Business,

     

    (ii) lend
      any
      credit or money for the purposes of establishing or operating any Competing
      Business or otherwise give aid or advice to any person, firm, association,
      corporation, or entity engaging in any Competing Business, or

     

    (iii) solicit,
      contract, divert, or take away or attempt to solicit, divert, or take away
      any
      of the customers, potential customers, business or patrons of the Company and
      its affiliates or any of their respective successors and assigns, directly
      or
      indirectly, by or for himself or as the agent of any other person or entity
      or
      through others as an agent or on behalf of a competitor of the
      Company.

     

    The
      Company and Executive acknowledge and agree that the duration, scope, and
      geographic area for which the covenant not to compete is to be effective are
      reasonable. 

     

    (c) Notwithstanding
      the foregoing covenant not to compete, the Executive shall not be restricted
      from accepting employment with a Competing Business provided that the scope
      of
      such employment, and the duties involved thereunder do not involve (i) the
      use
      of products or technology similar to Autologel(TM) or the Autologel(TM) System
      involving the use of releasates from platelets to treat chronic wounds or other
      indications for which the Company has obtained or would be in the process of
      obtaining any applicable regulatory clearance during the Consulting Period,
      (ii)
      any use of products or technology similar to that which the Company may develop
      or otherwise obtain marketable rights during the Consulting Period, or (iii)
      the
      direct competition with either (i) or (ii) above. Further, the Executive may
      own
      publicly-traded securities issued by a Competing Business provided that
      Executive shall not own more than three percent (3%) of the value of any class
      of such securities outstanding at such time. 

     

    
      
        
        

      

      
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    (d) The
      Executive is free to license or economically exploit any patents, inventions
      or
      ideas regarding products that he has developed prior to his employment with
      the
      Company or that he may develop in the future through expenditure of his personal
      time and resources, as long as any such future developments shall not involve
      (i) the use of products or technology similar to Autologel(TM) or the
      Autologel(TM) System involving the use of releasates from platelets to treat
      chronic wounds or other indications for which the Company has obtained or would
      be in the process of obtaining any applicable regulatory clearance during the
      Consulting Period, (ii) any use of products or technology similar to that which
      the Company may develop or otherwise obtain marketable rights during the
      Consulting Period, or (iii) the direct competition with either (i) or (ii)
      above.

     

    13. Confidential
      Information; Non-Solicitation; Non-Disparagement.
      

     

    (a) The
      parties hereto recognize that a major need of the Company is to preserve its
      specialized knowledge, trade secrets, and confidential information. The strength
      and good will of the Company is derived from the specialized knowledge, trade
      secrets, and confidential information generated from experience with the
      activities undertaken by the Company and its subsidiaries. The disclosure of
      this information and knowledge to competitors would be beneficial to them and
      detrimental to the Company, as would the disclosure of information about the
      marketing practices, pricing practices, costs, profit margins, design
      specifications, analytical techniques, and similar items of the Company and
      its
      subsidiaries. The Executive acknowledges that the proprietary information,
      observations and data obtained by him while employed by the Company and during
      the Consulting Period concerning the business or affairs of the Company are
      the
      property of the Company. By reason of his having been a senior executive of
      the
      Company and through his providing services under this Agreement, the Executive
      has or will have access to, and has obtained or will obtain, specialized
      knowledge, trade secrets and confidential information about the Company's
      operations and the operations of its subsidiaries, which operations extend
      worldwide, including the United States. For purposes of this Section 11, “the
      Company” shall mean the Company and each of its subsidiaries, if any. Therefore,
      the Executive hereby agrees as follows, recognizing that the Company is relying
      on these agreements in entering into this Agreement:

     

    
      
        
        

      

      
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              (i)

            	
              The
                Executive will not use, disclose to others, or publish or otherwise
                make
                available to any other party any inventions or any confidential business
                information about the affairs of the Company, including but not limited
                to
                confidential information concerning the Company's products. "Confidential
                Information" shall include commercial or trade secrets about Company’s
                products, methods, engineering designs and standards, analytical
                techniques, technical information, customer information, employee
                information, or financial and business records, any of which contains
                proprietary information created or acquired by the Company and which
                information is held in confidence by Company. Confidential Information
                does not include information which: (x) becomes generally available
                to the
                public, unless said Confidential Information was disclosed in violation
                of
                a confidentiality agreement; or (y) becomes available to the Executive
                on
                a non-confidential basis from a source other than the Company or
                its
                agents, provided that such source is not bound by a confidentiality
                agreement with the Company.

            


    

     

    
      	 	
              (ii)

            	
              During
                the Consulting Period and for 12 months thereafter, the Executive
                will not
                directly or indirectly through another entity (x) induce any employee
                of
                the Company to leave the Company's employ (unless the Board of Directors
                shall have authorized such employment and the Company shall have
                consented
                thereto in writing) or in any way interfere with the relationship
                between
                the Company and any employee thereof or (y) tortiously interfere
                with the
                Company’s business relationship with any customer, supplier, licensee,
                licensor or other business relation of the Company with whom Executive
                had
                contact or whose identity Executive learned as a result of his employment
                by the Company.

            


    

     

    (b) The
      Executive will not disparage, portray in a negative light, or take any action
      that is intended to disparage or portray in a negative light the Company, its
      executive officers, directors, employees, shareholders, agents, successors
      or
      assigns, subsidiaries or counsel (collectively the “Company Parties”), whether
      such disparagement, portrayal, communication or action is made publicly or
      privately, including without limitation, in any and all interviews, oral
      statements, written materials, electronically-displayed materials, and materials
      or information displayed on Internet-related sites. Similarly, the Company
      Parties will not disparage, portray in a negative light, or take any action
      that
      is intended to disparage or portray in a negative light the Executive together
      with his heirs, executors, administrators, attorneys, personal representatives,
      family members, successors, and assigns (collectively, the “Executive Parties”),
      whether such disparagement, portrayal, communication or action is made publicly
      or privately, including without limitation, in any and all interviews, oral
      statements including any statements made to Company employees, written
      materials, electronically-displayed materials, and materials or information
      displayed on Internet-related sites. Notwithstanding anything in this Section
      13(b) to the contrary, neither Executive Parties nor the Company Parties will
      be
      prevented from making statements required by law, or that are otherwise
      appropriate to make in any governmental investigation or a legal proceeding
      or
      to which such person is a party and which such person believes are truthful
      and
      are supportable by evidence, including complying with any court order, subpoena,
      or government investigation, or from complying with the requirements of any
      applicable law or common law duty.

     

    
      
        
        

      

      
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    14. Representations.
      

     

    (a) The
      Executive hereby represents and warrants to the Company that as of the Effective
      Date: (x) the execution, delivery and performance of this Agreement by the
      Executive do not and shall not conflict with, breach, violate or cause a default
      under any contract, agreement, instrument, order, judgment or decree to which
      the Executive is a party or by which he is bound, and (y) upon the execution
      and
      delivery of this Agreement by the Company, this Agreement shall be the valid
      and
      binding obligation of the Executive enforceable in accordance with its terms.
      The Executive hereby acknowledges and represents that he has consulted with
      legal counsel regarding his rights and obligations under this Agreement and
      that
      he fully understands the terms and conditions contained herein. 

     

    (b) The
      Company hereby represents and warrants to the Executive that (x) the execution,
      delivery and performance of this Agreement by the Company do not and shall
      not
      conflict with, breach, violate or cause a default under any contract, agreement,
      instrument, order, judgment or decree to which the Company is a party or by
      which it is bound; and (y) upon the execution and delivery of this Agreement
      by
      the Executive , this Agreement shall be the valid and binding obligation of
      the
      Company, enforceable in accordance with its terms.

     

    15. Insurance
      Coverage and Indemnification.
      

     

    (a) The
      Company shall continue to provide Executive with directors’ and officers’
(D&O) liability insurance coverage (through tail coverage or otherwise) as
      required by the Employment Agreement and the Company shall, at all times, carry
      no less than $5 million in such D&O insurance. The Company’s obligation to
      provide Executive coverage under the D&O policy referred to in the
      Employment Agreement and this Section 15 (through tail coverage or otherwise)
      and the Company’s obligation to indemnify the Executive as provided in this
      Agreement and the Employment Agreement shall survive expiration of this
      Agreement until both: (a) the expiration of any statute of limitations
      applicable to a claim brought against Executive because he is or was an officer
      and/or director of the Company; and (b) if applicable, the Company’s insolvency
      as necessary to adequately protect Executive.

     

    (b) The
      Company will indemnify (and advance the reasonable costs of defense of) and
      hold
      harmless the Executive (and his legal representatives) to the fullest extent
      permitted by the laws of the state in which the Company is incorporated, as
      in
      effect at the time of the subject act or omission, or by the Certificate of
      Incorporation and Bylaws of the Company, as in effect at such time or on the
      date of this Agreement, whichever affords greater protection to the Executive,
      and the Executive shall be entitled to the protection of any insurance policies
      the Company may elect to maintain generally for the benefit of its executive
      officers and directors, against all judgments, damages, liabilities, costs,
      charges and expenses whatsoever incurred or sustained by him or his legal
      representative in connection with any action, suit or proceeding to which he
      (or
      his legal representatives or other successors) may be made a party by reason
      of
      his performing services under this Agreement or having been an officer or
      director of the Company or any of its subsidiaries.

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

       

    

    16. Agreement.
      This
      Agreement has been negotiated at arms-length and in good faith, is entered
      into
      by the parties’ free acts and deeds and shall not be construed against any party
      as its draftsman.

     

    17. Remedies.
      In the
      event of the Executive’s noncompliance or violation, as the case may be, of
      Sections 12 and 13, the Company may alternatively apply to a court of competent
      jurisdiction for a temporary restraining order, injunctive relief, and/or such
      other legal and equitable remedies as may be appropriate because the Company
      would have no adequate remedy at law for such violation or noncompliance. Should
      such court hold any provisions thereof to be invalid, Executive agrees that
      it
      shall be construed and/or reformed by such court as to be judged reasonable
      and
      enforceable.

     

    18. Successors;
      Binding Agreement.
      This
      Agreement shall inure to the benefit of and be enforceable by the Executive
      and
      by his personal or legal representatives, executors, administrators, heirs,
      distributees, devisees and legatees and by the Company and its respective
      successors and assigns.

     

    19. Notices.
      All
      notices and other communications required or permitted under this Agreement
      shall be in writing and shall be deemed to have been duly given when personally
      delivered, when delivered by courier or overnight express service or five days
      after having been sent by certified or registered mail, postage prepaid,
      addressed (x) if to the Executive, to the Executive's address set forth in
      the
      records of the Company, or if to the Company, then to Mr. Andrew Maslan, Chief
      Financial Officer, 416 Hungerford Drive, Suite 330, Rockville, MD 20850 or
      (y)
      to such other address as any party may have furnished to the other parties
      in
      writing in accordance herewith, except that notices of change of address shall
      be effective only upon receipt thereof.

     

    20. Governing
      Law.
      The
      interpretation, construction and performance of this Agreement shall be governed
      by and construed and enforced in accordance with the internal laws of the State
      of Delaware without regard to any conflict of laws principles. The parties
      consent to the jurisdiction of the state courts of Delaware for the resolution
      of any dispute, claim, or controversy arising or relating to this
      Agreement.

     

    21. Waiver.
      Executive hereby acknowledges and agrees that, for good and valuable
      consideration, the receipt and sufficiency of which is hereby acknowledged,
      the
      Executive hereby expressly and irrevocably waives and relinquishes the right
      to
      the thirty (30) days’ written notice contemplated under Section 5.6 of the
      Employment Agreement.

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

       

    

    22. Severability.
      In case
      any one or more of the provisions or part of a provision contained in this
      Agreement shall for any reason be held to be invalid, illegal or unenforceable
      in any respect in any jurisdiction, such invalidity, illegality or
      unenforceability shall be deemed not to affect any other jurisdiction or any
      other provision or part of a provision of this Agreement, nor shall such
      invalidity, illegality or unenforceability affect the validity, legality or
      enforceability of this Agreement or any provision or provisions hereof in any
      other jurisdiction; and this Agreement shall be reformed and construed in such
      jurisdiction as if such provision or part of a provision held to be invalid
      or
      illegal or unenforceable had never been contained herein and such provision
      or
      part reformed so that it would be valid, legal and enforceable in such
      jurisdiction to the maximum extent possible. In furtherance and not in
      limitation of the foregoing, the Company and the Executive each intend that
      the
      covenants contained in Sections 12 and 13 shall be deemed to be a series of
      separate covenants, one for each and every state of the United States and any
      foreign country set forth therein. If, in any judicial proceeding, a court
      shall
      refuse to enforce any of such separate covenants, then such unenforceable
      covenants shall be deemed eliminated from the provisions hereof for the purpose
      of such proceedings to the extent necessary to permit the remaining separate
      covenants to be enforced in such proceedings. If, in any judicial proceeding,
      a
      court shall refuse to enforce any one or more of such separate covenants because
      the total time, scope or area thereof is deemed to be excessive or unreasonable,
      then it is the intent of the parties hereto that such covenants, which would
      otherwise be unenforceable due to such excessive or unreasonable period of
      time,
      scope or area, be enforced for such lesser period of time, scope or area as
      shall be deemed reasonable and not excessive by such court. 

     

    23. IRC
      Section 409A Compliance.
      The
      parties hereto agree and acknowledge that they have and will endeavor to
      implement the terms and conditions of this Agreement in reasonable, good faith
      compliance with the provisions of Section 409A of the Internal Revenue Code
      of
      1986, as amended (the “Code”) and provisions of any applicable guidance
      published thereunder, including Notice 2005-1, the proposed regulations and
      the
      final regulations issued under Section 409A of the Code. All payments and
      benefits provided for under this Agreement shall be made and provided in a
      manner that is intended to comply with Section 409A of the Code, to the extent
      applicable. The Executive understands and expressly agrees that he has relied
      on
      his own counsel, and has not relied on any tax or legal advice provided by
      the
      Company in entering into this Agreement.

     

    24. Counterparts.
      This
      Agreement may be executed in one or more counterparts, each of which shall
      be
      deemed to be an original and all of which together shall constitute one and
      the
      same instrument.

     

    25. Miscellaneous.
      No
      provision of this Agreement may be modified or waived unless such modification
      or waiver is agreed to in writing and executed by the Executive and by a duly
      authorized officer of the Company. No waiver by any party hereto at any time
      of
      any breach by another party hereto of, or failure to comply with, any condition
      or provision of this Agreement to be performed or complied with by such other
      party shall be deemed a waiver of any similar or dissimilar conditions or
      provisions at the same or at any prior or subsequent time. Failure by the
      Executive or the Company to insist upon strict compliance with any provision
      of
      this Agreement or to assert any right which the Executive or the Company may
      have hereunder shall not be deemed to be a waiver of such provision or right
      or
      any other provision of or right under this Agreement.

     

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        13

        
          

        

      

      
        
        

      

    

    


    IN
      WITNESS WHEREOF,
      the
      parties hereto have executed this Agreement as of the day and year first above
      written.

    
      
        	 	 	 
	 	EXECUTIVE
	 
 	 
 	 
 
	 	By:	/s/
                Kshitij
                Mohan
	 	Name:	Kshitij Mohan
	 	 	 
	 	APPROVED ON BEHALF
                OF
                COMPANY
	 	 	 
	 	By:	/s/
                James Benson
	 	Name:	James Benson
	 	Title:	Chair of Compensation Committee
                of
                  the Board of Directors

              
	 	 	 
	 	CORPORATE
                OFFICER
	 	
              	 
	 	By:	/s/
                Andrew Maslan
	 	Name:	Andrew Maslan
	 	Title:	Chief Financial
                Officer


      

       

    

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    


    Exhibit
      A

    


    Executive’s
      Stock Options as of June 5, 2008

    


    
      	
              ISSUANCE

               DATE

            	
              GRANT

              TYPE

            	
              AMOUNT OF
                SHARES OF COMMON STOCK OF COMPANY

            	
              EXERCISE

              PRICE

            	
              VESTING

            	
              EXPIRATION
                

              DATE

            
	
              04/20/04

            	
              NQO

            	
              990,000

            	
              $1.50

              ($2.24
                as amended on 07/11/07 for the option to purchase 250,000 shares
                which
                vested on 4/20/05 and the option to purchase 250,000 shares which
                vested
                on 4/20/06)

            	
              990,000
                fully vested

              (500,000
                vested immediately upon grant; 250,000 - on 04/20/05 and 250,000
                - on
                04/20/06; does not include 10,000 options which have been exercised
                by the
                Executive as of the date hereof)

            	
              04/20/2014

            
	
              06/06/05

            	
              NQO

            	
              100,000

            	
              $1.50

              ($2.24
                as amended on 07/10/07)

            	
              100,000
                fully vested

              (immediately
                upon grant )

            	
              06/06/2015

            
	
              08/17/06

            	
              NQO

            	
              100,000

            	
              $1.50

              ($2.24
                as amended on 07/10/07)

            	
              100,000
                fully vested

              (immediately
                upon grant)

            	
              08/17/2016

            
	
              01/25/08

            	
              NQO

            	
              555

            	
              $1.50

            	
              555
                fully vested

              (immediately
                upon grant)

            	
              01/25/2018

            
	
              NQO

            	
              13,095

            	
              $1.50

            	
              13,095
                fully vested

              (immediately
                upon grant)

            	
              01/25/2018

            
	
              NQO

            	
              10,735

            	
              $1.50

            	
              10,735
                fully vested

              (immediately
                upon grant)

            	
              01/25/2018

            
	
              NQO

            	
              34,925

            	
              $1.50

            	
              34,925
                fully vested

              (immediately
                upon grant)

            	
              01/25/2018

            
	
              ISO

            	
              30,000

            	
              $1.50

            	
              30,000
                fully vested

              (immediately
                upon grant)

            	
              01/25/2018

            


    

    


    
      
        
        

      

      
        15