**Exhibit 10.8**

 

**CHANGE OF CONTROL AGREEMENT**

 

ThisChange of Control Agreement (this “Agreement”), dated as of July 1, 2004,is between PROCYTE CORPORATION, a Washington corporation (the “Company”), andJOHN F. CLIFFORD (the “Executive”).

 

TheBoard of Directors of the Company (the “Board”) has determined that it is inthe best interests of the Company and its stockholders to ensure that theCompany will have the continued dedication of the Executive, notwithstandingthe possibility, threat or occurrence of a Change of Control (as defined inSection 1.1 below) of the Company. The Board believes it is imperative to diminish the inevitabledistraction of the Executive arising from the personal uncertainties and risks createdby a pending or threatened Change of Control, to encourage the Executive’s fullattention and dedication to the Company currently and in the event of anythreatened or pending Change of Control, and to provide the Executive withreasonable compensation and benefit arrangements upon a Change of Control.

 

Inorder to accomplish these objectives, the Board has caused the Company to enterinto this Agreement.

 

**1.****                                     ****DEFINITIONS**

 

1.1                                 “Change of Control” shall have thedefinition set forth in Appendix A to this Agreement, which is herebyincorporated by reference.

 

1.2                                 “Change of Control Date” shall meanthe first date on which a Change of Control occurs.

 

1.3                                 “Employment Period” shall mean thetwo-year period commencing on the Change of Control Date and ending on thesecond anniversary of such date.

 

**2.****                                     ****TERM**

 

Theterm of this Agreement (“Term”) shall be for a period of two (2) years from thedate of this Agreement as first entered above, at which time this Agreementshall terminate without further action by either the Company or the Executive;provided, however, that if a Change of Control occurs during the Term, the Termshall automatically extend for the duration of the Employment Period.

 

**3.****                                     ****EMPLOYMENT**

 

**3.1****                              ****Employment Period**

 

Duringthe Employment Period, the Company hereby agrees to continue the Executive inits employ or in the employ of its affiliated companies, and the Executivehereby agrees to remain in the employ of the Company or its affiliatedcompanies, in accordance with the terms and provisions of this Agreement;provided, however, that either the Company or the Executive may terminate theemployment relationship subject to the terms of this Agreement.

 

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**3.2****                              ****Position and Duties**

 

Duringthe Employment Period, the Executive’s position, authority, duties andresponsibilities shall be at least commensurate in all material respects withthe most significant of those held, exercised and assigned at any time duringthe 90-day period immediately preceding the Change of Control Date.

 

**3.3****                              ****Location**

 

Duringthe Employment Period, the Executive’s services shall be performed at theCompany’s headquarters on the Change of Control Date or any office which issubsequently designated as the headquarters of the Company and is less than 30miles from such location.

 

**3.4****                              ****Employment at Will**

 

TheExecutive and the Company acknowledge that, except as may otherwise be providedunder any other written agreement between the Executive and the Company, theemployment of the Executive by the Company or its affiliated companies is “atwill” and may be terminated by either the Executive or the Company or itsaffiliated companies at any time with or without cause.  Moreover, if prior to the Change of ControlDate, the Executive’s employment with the Company or its affiliated companiesterminates for any reason, then the Executive shall have no further rightsunder this Agreement; provided, however, that Company may not avoid liabilityfor any termination payments which would have been required during theEmployment Period pursuant to Section 8 below by terminating the Executiveprior to the Employment Period where such termination is carried out inanticipation of a Change of Control and the principal motivating purpose is toavoid liability for such termination payments.

 

**3.5****                              ****Board of Directors**

 

TheExecutive is currently a member of the Board but his continuation as such shallbe subject to the will of the Company’s stockholders and the Board, as providedin the Company’s by-laws and certificate of incorporation.  Removal of the Executive from, or nonelectionof the Executive to, the Board by the Company’s stockholders or the Board, asprovided in the Company’s by-laws and certificate of incorporation, shall in noevent be deemed a breach of this Agreement by the Company.

 

**4.****                                     ****ATTENTION AND EFFORT**

 

Duringthe Employment Period, and excluding any periods of vacation and sick leave towhich the Executive is entitled, the Executive will devote all of hisproductive time, ability, attention and effort to the business and affairs ofthe Company and the discharge of the responsibilities assigned to himhereunder, and will use his reasonable best efforts to perform faithfully andefficiently such responsibilities.  Itshall not be a violation of this Agreement for the Executive to (a) serve oncorporate, civic or charitable boards or committees, (b) deliver lectures,fulfill speaking engagements or teach at educational institutions, and (c)manage personal investments, so long as such activities do not significantlyinterfere with the performance of the Executive’s responsibilities inaccordance with this Agreement.  It isexpressly understood and agreed that to the extent any such activities havebeen conducted by the Executive prior to the Employment Period, the continuedconduct of such activities (or the conduct of activities similar in nature andscope thereto) during the Employment Period shall not thereafter be deemed tointerfere with the performance of the Executive’s responsibilities to theCompany.

 

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**5.****                                     ****COMPENSATION**

 

Aslong as the Executive remains employed by the Company during the EmploymentPeriod, the Company agrees to pay or cause to be paid to the Executive, and theExecutive agrees to accept in exchange for the services rendered hereunder byhim, the following compensation:

 

**5.1****                              ****Salary**

 

TheExecutive shall receive an annual base salary (the “Annual Base Salary”), atleast equal to the annual salary established by the Board or the CompensationCommittee of the Board (the “Compensation Committee”) for the fiscal year inwhich the Change of Control Date occurs. The Annual Base Salary shall be paid in substantially equal installmentsand at the same intervals as the salaries of other executives of the Companyare paid.  The Board or the CompensationCommittee shall review the Annual Base Salary at least annually and shalldetermine in good faith and consistent with any generally applicable Companypolicy any increases for future years.

 

**5.2****                              ****Bonus**

 

Inaddition to Annual Base Salary, the Executive shall be awarded, for each fiscalyear ending during the Employment Period, an annual bonus (the “Annual Bonus”)in cash at least equal to the average annualized (for any fiscal yearconsisting of less than 12 full months) bonus paid or payable, including byreason of any deferral, to the Executive by the Company and its affiliatedcompanies in respect of the three fiscal years immediately preceding the fiscalyear in which the Change of Control Date occurs.  Each such Annual Bonus shall be paid no laterthan 90 days after the end of the fiscal year for which the Annual Bonus isawarded, unless the Executive shall elect to defer the receipt of such AnnualBonus.

 

**6.****                                     ****BENEFITS**

 

**6.1****                              ****Incentive, Retirement andWelfare Benefit Plans; Vacation**

 

Duringthe Employment Period, the Executive shall be entitled to participate, subjectto and in accordance with applicable eligibility requirements, in such fringebenefit programs as shall be generally made available to other executives ofthe Company and its affiliated companies from time to time during theEmployment Period by action of the Board (or any person or committee appointedby the Board to determine fringe benefit programs and other emoluments),including, without limitation, paid vacations; any stock purchase, savings orretirement plan, practice, policy or program; and all welfare benefit plans,practices, policies or programs (including, without limitation, medical,prescription, dental, disability, salary continuance, employee life, group life,accidental death and travel accident insurance plans or programs).

 

**6.2****                              ****Expenses**

 

Duringthe Employment Period, the Executive shall be entitled to receive promptreimbursement for all reasonable employment expenses incurred by him inaccordance with the policies, practices and procedures of the Company and itsaffiliated companies in effect for the executives of the Company and itsaffiliated companies during the Employment Period.

 

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**7.****                                     ****TERMINATION**

 

Duringthe Employment Period, employment of the Executive may be terminated as followsbut, in any case, the nondisclosure provisions set forth in Section 10hereof shall survive the termination of this Agreement and the termination ofthe Executive’s employment with the Company:

 

**7.1****                              ****By the Company or theExecutive**

 

Atany time during the Employment Period, the Company may terminate the employmentof the Executive with or without Cause (as defined below), and the Executivemay terminate his employment for Good Reason (as defined below) or for anyreason, upon giving Notice of Termination (as defined below).

 

**7.2****                              ****Automatic Termination**

 

ThisAgreement and the Executive’s employment during the Employment Period shallterminate automatically upon the death or Total Disability of theExecutive.  The term “Total Disability”as used herein shall mean the Executive’s inability (with such accommodation asmay be required by law and which places no undue burden on the Company), as determinedby a physician selected by the Company and acceptable to the Executive, toperform the duties set forth in Section 3.2 hereof for a period or periodsaggregating 120 calendar days in any 12-month period as a result of physical ormental illness, loss of legal capacity or any other cause beyond theExecutive’s control, unless the Executive is granted a leave of absence by theBoard.  The Executive and the Companyhereby acknowledge that the duties specified in Section 3.2 hereof areessential to Executive’s position and that Executive’s ability to perform thoseduties is the essence of this Agreement.

 

**7.3****                              ****Notice of Termination**

 

Anytermination by the Company or by the Executive during the Employment Periodshall be communicated by Notice of Termination to the other party given inaccordance with Section 12 hereof. The term “Notice of Termination” shall mean a written notice which (a)indicates the specific termination provision in this Agreement relied upon and(b) to the extent applicable, sets forth in reasonable detail the facts and circumstancesclaimed to provide a basis for termination of the Executive’s employment underthe provision so indicated.  The failureby the Executive or the Company to set forth in the Notice of Termination anyfact or circumstance which contributes to a showing of Good Reason or Causeshall not waive any right of the Executive or the Company hereunder or precludethe Executive or the Company from asserting such fact or circumstance inenforcing the Executive’s or the Company’s rights hereunder.

 

**7.4****                              ****Date of Termination**

 

Duringthe Employment Period, “Date of Termination” means (a) if the Executive’semployment is terminated by reason of death, at the end of the calendar monthin which the Executive’s death occurs, (b) if the Executive’s employment isterminated by reason of Total Disability, immediately upon a determination bythe Company of the Executive’s Total Disability, and (c) in all other cases,five days after the date of personal delivery or mailing of the Notice ofTermination.  The Executive’s employmentand performance of services will continue during such five-day period; provided,however, that the Company may, upon notice to the Executive and withoutreducing the Executive’s compensation during such period, excuse the Executivefrom any or all of his duties during such period.

 

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**8.****                                     ****TERMINATION PAYMENTS**

 

Inthe event of termination of the Executive’s employment during the EmploymentPeriod, all compensation and benefits shall terminate except as specificallyprovided in this Section 8.

 

**8.1****                              ****Termination by the CompanyOther Than for Cause or by the Executive for Good Reason**

 

Ifduring the Employment Period the Company terminates the Executive’s employmentother than for Cause or the Executive terminates his employment for GoodReason, the Executive shall be entitled to:

 

(a)                                  receive payment of the following accrued obligations(the “Accrued Obligations”):

 

(i)                                     the Executive’s Annual Base Salary through the Date of Termination to theextent not theretofore paid;

 

(ii)                                  the product of (x) the Annual Bonus payablewith respect to the fiscal year in which the Date of Termination occurs and (y)a fraction, the numerator of which is the number of days in the current fiscalyear through the Date of Termination, and the denominator of which is 365; and

 

(iii) any compensationpreviously deferred by the Executive (together with accrued interest orearnings thereon, if any) and any accrued vacation pay which would be payableunder the Company’s standard policy, in each case to the extent not theretoforepaid;

 

(b)                                 for one year after the Date of Termination,the Company shall pay the Executive’s premiums for health insurance benefitcontinuation for Executive and his family members, if applicable, which theCompany provides to the Executive under the provisions of the federalComprehensive Omnibus Budget Reconciliation Act of 1986, as amended (“COBRA”)to the extent that the Company would have paid such premiums had the Executiveremained employed by the Company (such continued payment is hereinafterreferred to as “COBRA Continuation”); and

 

(c)                                  an amount as severance pay equal to two (2)times the Annual Base Salary for the fiscal year in which the Date ofTermination occurs.

 

**8.2****                              ****Termination for Cause orOther Than for Good Reason**

 

Ifduring the Employment Period the Executive’s employment shall be terminated bythe Company for Cause or by the Executive for other than Good Reason, thisAgreement shall terminate without further obligation on the part of the Companyto the Executive, other than the Company’s obligation to pay the Executive (a)his Annual Base Salary through the Date of Termination, (b)  the amount of any compensation previouslydeferred by the Executive, and (c) any accrued vacation pay which would be payableunder the Company’s standard policy, in each case to the extent theretoforeunpaid.

 

**8.3****                              ****Expiration of Term**

 

Inthe case of a termination of the Executive’s employment as a result of theexpiration of the Term of this Agreement, this Agreement shall terminatewithout further obligation on the part of the

 

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Companyto the Executive, other than the Company’s obligation to pay the Executive theAccrued Obligations.

 

**8.4****                              ****Termination Because of Deathor Total Disability**

 

Ifduring the Employment Period the Executive’s employment is terminated by reasonof the Executive’s death or Total Disability, this Agreement shall terminateautomatically without further obligation on the part of the Company to the Executiveor his legal representatives under this Agreement, other than the Company’sobligation to pay the Executive the Accrued Obligations (which shall be paid tothe Executive’s estate or beneficiary, as applicable in the case of theExecutive’s death), and to provide COBRA Continuation.

 

**8.5****                              ****Payment Schedule**

 

Allpayments of Accrued Obligations, or any portion thereof payable pursuant tothis Section 8, shall be made to the Executive within ten working days ofthe Date of Termination.  Any paymentspayable to the Executive pursuant to Section 8.1(c) shall be made to theExecutive, at the Company’s option, either (a) in a lump sum within ten workingdays of the Date of Termination; or (b) in two equal payments, the first ofwhich is made within ten working days of the Date of Termination and the secondof which is made within six months of the Date of Termination.

 

**8.6****                              ****Cause**

 

Forpurposes of this Agreement, “Cause” means cause given by the Executive to theCompany and shall include, without limitation, the occurrence of one or more ofthe following events:

 

(a)                                  A clear refusal to carry out any materiallawful duties of the Executive or any directions of the Board or seniormanagement of the Company, all reasonably consistent with those dutiesdescribed in Section 3.2 hereof ;

 

(b)                                 Persistent failure to carry out any lawfulduties of the Executive described in Section 3.2 hereof or any directionsof the Board or senior management reasonably consistent with those dutiesherein set forth to be performed by the Executive, provided Executive has beengiven reasonable notice and opportunity to correct any such failure;

 

(c)                                  Violation by the Executive of a state orfederal criminal law involving the commission of a crime against the Company orany other criminal act involving moral turpitude;

 

(d)                                 Current abuse by the Executive of alcohol orcontrolled substances; deception, fraud, misrepresentation or dishonesty by theExecutive; or any incident materially compromising the Executive’s reputationor ability to represent the Company with investors, customers or the public; or

 

(e)                                  Any other material violation of any provisionof this Agreement by the Executive, subject to the notice and opportunity tocure requirements of Section 11.

 

**8.7****                              ****Good Reason**

 

Forpurposes of this Agreement, “Good Reason” means

 

(a)                                  The assignment to the Executive of any dutiesmaterially inconsistent with the Executive’s position, authority, duties orresponsibilities as contemplated by Section 3.2 hereof or any

 

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otheraction by the Company which results in a material diminution in such position,authority, duties or responsibilities, excluding for this purpose an isolatedand inadvertent action not taken in bad faith and which is remedied by theCompany promptly after receipt of notice thereof given by the Executive;

 

(b)                                 Any failure by the Company to comply with anyof the provisions of Section 5 or Section 6 hereof, other than anisolated and inadvertent failure not taken in bad faith and which is remediedby the Company promptly after receipt of notice thereof given by the Executive;

 

(c)                                  The Company’s requiring the Executive to bebased at any office or location other than that described in Section 3.3hereof;

 

(d)                                 Any failure by the Company to comply with andsatisfy Section 13 hereof, provided that the Company’s successor hasreceived at least ten days’ prior written notice from the Company or theExecutive of the requirements of Section 13 hereof; or

 

(e)                                  Any other material violation of any provisionof this Agreement by the Company, subject to the notice and opportunity to curerequirements of Section 11.

 

**8.8****                              ****Excess Parachute Limitation**

 

Ifeither the Company or the Executive receives confirmation from the Company’sindependent tax counsel or its certified public accounting firm, or such otheraccounting firm retained as independent certified public accountants for theCompany (the “Tax Advisor”), that any payment by the Company to the Executiveunder this Agreement or otherwise would be considered to be an “excessparachute payment” within the meaning of Section 280G of the InternalRevenue Code of 1986, as amended, or any successor statute then in effect (the“Code”), then the aggregate payments by the Company pursuant to this Agreementshall be reduced to the highest amount that may be paid to the Executive by theCompany under this Agreement without having any portion of any amount payableto the Executive by the Company or a related entity under this Agreement orotherwise treated as such an “excess parachute payment”, and, if permitted byapplicable law and without adverse tax consequence, such reduction shall bemade to the last payment due hereunder. Any payments made by the Company to the Executive under this Agreementwhich are later confirmed by the Tax Advisor to be “excess parachute payments”shall promptly be repaid by the Executive to the Company.

 

**9.****                                     ****REPRESENTATIONS, WARRANTIESAND OTHER CONDITIONS**

 

Inorder to induce the Company to enter into this Agreement, the Executive representsand warrants to the Company as follows:

 

**9.1****                              ****Health**

 

TheExecutive is in good health and knows of no physical or mental disabilitywhich, with any accommodation which may be required by law and which places noundue burden on the Company, would prevent him from fulfilling his obligationshereunder.  The Executive agrees, if theCompany requests, to submit to reasonable periodic medical examinations by aphysician or physicians designated by, paid for and arranged by theCompany.  The Executive agrees that theexamination’s medical report shall be provided to the Company.

 

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**9.2****                              ****No Violation of OtherAgreements**

 

TheExecutive represents that neither the execution nor the performance of thisAgreement by the Executive will violate or conflict in any way with any otheragreement by which the Executive may be bound.

 

**10.****                              ****NONDISCLOSURE; RETURN OFMATERIALS**

 

**10.1****                       ****Nondisclosure**

 

Exceptas required by his employment with the Company, the Executive will not, at anytime during the term of employment by the Company, or at any time thereafter,directly, indirectly or otherwise, use, communicate, disclose, disseminate,lecture upon or publish articles relating to any confidential, proprietary ortrade secret information without the prior written consent of the Company.  The Executive understands that the Companywill be relying on this covenant in continuing the Executive’s employment,paying his compensation, granting him any promotions or raises, or entrustinghim with any information which helps the Company compete with others.

 

**10.2****                       ****Return of Materials**

 

Alldocuments, records, notebooks, notes, memoranda, drawings or other documentsmade or compiled by the Executive at any time while employed by the Company, orin his possession, including any and all copies thereof, shall be the propertyof the Company and shall be held by the Executive in trust and solely for thebenefit of the Company, and shall be delivered to the Company by the Executiveupon termination of employment or at any other time upon request by theCompany.

 

**11.****                              ****NOTICE AND CURE OF BREACH**

 

Whenevera breach of this Agreement by either party is relied upon as justification forany action taken by the other party pursuant to any provision of this Agreement,other than clause (a), (b), (c) or (d) of Section 8.6 hereof, before suchaction is taken, the party asserting the breach of this Agreement shall givethe other party at least ten days’ prior written notice of the existence andthe nature of such breach before taking further action hereunder and shall givethe party purportedly in breach of this Agreement the opportunity to correctsuch breach during the ten-day period.

 

**12.****                              ****FORM OF NOTICE**

 

Everynotice required by the terms of this Agreement shall be given in writing byserving the same upon the party to whom it was addressed personally or byregistered or certified mail, return receipt requested, at the address setforth below or at such other address as may hereafter be designated by noticegiven in compliance with the terms hereof:

 
| If  to the Executive: |   | John  F. Clifford                     |
|-----------------------|--------|---------------------------------------|
|                  |   |                                  |
|                  |   |                                  |
|                  |   |                                  |
| If  to the Company:   |   | ProCyte  Corporation                  |
|                  |   | 8511  154th Avenue N.E., Bldg. A      |
|                  |   | Redmond,  Washington  98052-3557 |
|                  |   | Attn:  Corporate Secretary       |

 

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| With  a copy to: |   | Perkins  Coie LLP               |
|------------------|--------|---------------------------------|
|             |   | Attn:  James R. Lisbakken  |
|             |   | 1201  Third Avenue, 40th Floor  |
|             |   | Seattle,  Washington 98101-3099 |

 

or such other address as shall be provided inaccordance with the terms hereof.  Exceptas set forth in Section 7.4 hereof, if notice is mailed, such notice shallbe effective upon mailing.

 

**13.****                              ****ASSIGNMENT**

 

ThisAgreement is personal to the Executive and shall not be assignable by theExecutive.

 

TheCompany shall assign to and require any successor (whether direct or indirect,by purchase, merger, consolidation or otherwise) to all or substantially allthe business and/or assets of the Company to assume expressly and agree toperform this Agreement in the same manner and to the same extent that the Companywould be required to perform it if no such succession had taken place.  As used in this Agreement, “Company” shallmean ProCyte Corporation and any affiliated company or successor to itsbusiness and/or assets as aforesaid which assumes and agrees to perform thisAgreement by contract, operation of law, or otherwise; and as long as suchaffiliated company or successor assumes and agrees to perform this Agreement,the termination of Executive’s employment by one such entity and the immediatehiring and continuation of the Executive’s employment by the Company or otheraffiliated company or successor shall not be deemed to constitute a terminationor trigger any obligation under this Agreement. All the terms and provisions of this Agreement shall be binding upon andinure to the benefit of and be enforceable by the parties hereto and theirrespective successors and permitted assigns.

 

**14.****                              ****WAIVERS**

 

Nodelay or failure by any party hereto in exercising, protecting or enforcing anyof its rights, titles, interests or remedies hereunder, and no course ofdealing or performance with respect thereto, shall constitute a waiverthereof.  The express waiver by a partyhereto of any right, title, interest or remedy in a particular instance orcircumstance shall not constitute a waiver thereof in any other instance orcircumstance.  All rights and remediesshall be cumulative and not exclusive of any other rights or remedies.

 

**15.****                              ****AMENDMENTS IN WRITING**

 

Noamendment, modification, waiver, termination or discharge of any provision ofthis Agreement, nor consent to any departure therefrom by either party hereto,shall in any event be effective unless the same shall be in writing,specifically identifying this Agreement and the provision intended to beamended, modified, waived, terminated or discharged and signed by the Companyand the Executive, and each such amendment, modification, waiver, terminationor discharge shall be effective only in the specific instance and for thespecific purpose for which given.  Noprovision of this Agreement shall be varied, contradicted or explained by anyoral agreement, course of dealing or performance or any other matter not setforth in an agreement in writing and signed by the Company and the Executive.

 

**16.****                              ****APPLICABLE LAW**

 

ThisAgreement shall in all respects, including all matters of construction,validity and performance, be governed by, and construed and enforced inaccordance with, the laws of the State of Washington, without regard to anyrules governing conflicts of laws.

 

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**17.****                              ****ARBITRATION; ATTORNEYS’ FEES**

 

Exceptin connection with enforcing Section 10 of this Agreement, for which legaland equitable remedies may be sought in a court of law, any dispute arisingunder this Agreement shall be subject to arbitration.  The arbitration proceeding shall be conductedin accordance with the Commercial Arbitration Rules of the American ArbitrationAssociation then in effect, conducted by one arbitrator either mutually agreedupon or selected in accordance with the AAA Rules.  The arbitration shall be conducted in KingCounty, Washington under the jurisdiction of the Seattle office of the AmericanArbitration Association.  The arbitratorshall have authority only to interpret and apply the provisions of thisAgreement, and shall have no authority to add to, subtract from, or otherwisemodify the terms of this Agreement.  Anydemand for arbitration must be made within sixty (60) days of the event(s)giving rise to the claim that this Agreement has been breached.  The arbitrator’s decision shall be final andbinding, and each party agrees to be bound to by arbitrator’s award subjectonly to an appeal therefrom in accordance with the laws of the State of Washington.  Either party may obtain judgment upon thearbitrator’s award in the Superior Court of King, County, Washington.

 

Ifit becomes necessary to pursue or defend any legal proceeding, whether inarbitration or court, in order to resolve a dispute arising under thisAgreement, the prevailing party in any such proceeding shall be entitled torecover its reasonable costs and attorneys’ fees.

 

**18.****                              ****SEVERABILITY**

 

Ifany provision of this Agreement shall be held invalid, illegal or unenforceablein any jurisdiction, for any reason, including, without limitation, theduration of such provision, its geographical scope or the extent of theactivities prohibited or required by it, then, to the full extent permitted bylaw, (a) all other provisions hereof shall remain in full force and effect insuch jurisdiction and shall be liberally construed in order to carry out theintent of the parties hereto as nearly as may be possible, (b) such invalidity,illegality or unenforceability shall not affect the validity, legality orenforceability of any other provision hereof, and (c) any court or arbitratorhaving jurisdiction thereover shall have the power to reform such provision tothe extent necessary for such provision to be enforceable under applicable law.

 

**19.****                              ****ENTIRE AGREEMENT**

 

ThisAgreement on and as of the date hereof constitutes the entire agreement betweenthe Company and the Executive with respect to the subject matter hereof and allprior or contemporaneous oral or written communications, understandings oragreements between the Company and the Executive with respect to such subjectmatter, including, but not limited to, that certain Change of Control Agreementbetween the Company and the Executive dated as of February 19, 1997 andall amendments thereto, are hereby superseded and nullified in their entireties,except that the Proprietary Information and Invention Agreement between theExecutive and the Company shall continue in full force and effect to the extentnot superseded by Section 10 hereof.

 

**20.****                              ****COORDINATION WITH SEVERANCEAGREEMENT**

 

TheKey Executive Severance Agreement that the parties are entering intocontemporaneously with this Agreement (the “Severance Agreement”) provides forcertain forms of severance and benefit payments in the event of termination ofthe Executive’s employment.  This Agreementis in addition to the Severance Agreement and in no way supersedes or nullifiesthe Severance Agreement.  Nevertheless,it is possible that termination of employment by the Company or by theExecutive may fall within the 

 

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scope of both agreements.  In such event, payments made to the Executiveunder Section 8.1 hereof shall be coordinated with payments made to theExecutive under Section 5.1 of the Severance Agreement as follows:

 

(a)                                  Accrued Obligations under this Agreementshall be paid first, in which case Accrued Obligations need not be paid underthe Severance Agreement;

 

(b)                                 COBRA Continuation under this Agreement shallbe provided first, in which case COBRA Continuation need not be provided underthe Severance Agreement; and

 

(c)                                  The severance payment required underSection 8.1(c) hereof shall be paid first, in which case the severancepayment required under Section 5.1(c) of the Severance Agreement need notbe provided.

 

**21.****                              ****WITHHOLDING**

 

TheCompany may withhold from any amounts payable under this Agreement suchfederal, state or local taxes as shall be required to be withheld pursuant toany applicable law or regulation.

 

**22.****                              ****COUNTERPARTS**

 

ThisAgreement may be executed in counterparts, each of which counterpart shall bedeemed an original, but all of which together shall constitute one and the sameinstrument.

 

INWITNESS WHEREOF, the parties have executed and entered into this Agreementeffective on the date first set forth above.

 
|   |   | **EXECUTIVE**              |
|--------|--------|----------------------------|
|   |   |                       |
|   |   |                       |
|   |   | /s/  John F. Clifford |   |
|   |   | John  F. Clifford          |
|   |   |                       |
|   |   | **PROCYTE CORPORATION**    |
|   |   |                       |
|   |   |                       |
|   |   | By:                        | /s/  Matt  L. Leavitt |   |
|   |   | Name:                      | Matt  L. Leavitt |   |
|   |   |                       | Chair  of Compensation Committee |   |
|        |        |                            |  |  |  |

 

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**APPENDIX A TO**

 

**CHANGE OF CONTROL AGREEMENT**

 

Forpurposes of this Agreement, a “Change of Control” shall mean:

 

(a)                                  A “Board Change” which, for purposes of thisAgreement, shall have occurred if a majority (excluding vacant seats) of theseats on the Company’s Board are occupied by individuals who were neither (i)nominated by a majority of the Incumbent Directors nor (ii) appointed bydirectors so nominated.  An “Incumbent Director” is a member of theBoard who has been either (i) nominated by a majority of the directors of theCompany then in office or (ii) appointed by directors so nominated, butexcluding, for this purpose, any such individual whose initial assumption ofoffice occurs as a result of either an actual or threatened election contest(as such terms are used in Rule 14a-11 of Regulation 14A promulgated under theSecurities Exchange Act of 1934, as amended (the “Exchange Act”)) or otheractual or threatened solicitation of proxies or consents by or on behalf of aPerson (as hereinafter defined) other than the Board; or

 

(b)                                 The acquisition by any individual, entity orgroup (within the meaning of Section 13(d)(3) or 14(d)(2) of the ExchangeAct) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3promulgated under the Exchange Act) of (i) 20% or more of either (A) the thenoutstanding shares of Common Stock of the Company (the “Outstanding CompanyCommon Stock”) or (B) the combined voting power of the then outstanding votingsecurities of the Company entitled to vote generally in the election ofdirectors (the “Outstanding Company Voting Securities”), in the case of either(A) or (B) of this clause (i), which acquisition is not approved in advance bya majority of the Incumbent Directors, or (ii) 33% or more of either (A) theOutstanding Company Common Stock or (B) the Outstanding Company VotingSecurities, in the case of either (A) or (B) of this clause (ii), whichacquisition is approved in advance by a majority of the Incumbent Directors; provided,however, that the following acquisitions shall not constitute a Changeof Control:  (x) any acquisition by theCompany, (y) any acquisition by any employee benefit plan (or related trust)sponsored or maintained by the Company or any corporation controlled by theCompany or (z) any acquisition by any corporation pursuant to a reorganization,merger or consolidation, if, following such reorganization, merger orconsolidation, the conditions described in clauses (i), (ii) and (iii) ofsubsection (c) of this Appendix A are satisfied; or

 

(c)                                  Approval by the stockholders of the Companyof a reorganization, merger or consolidation, in each case, unless, immediatelyfollowing such reorganization, merger or consolidation, (i) more than 60% of,respectively, the then outstanding shares of common stock of the corporationresulting from such reorganization, merger or consolidation and the combinedvoting power of the then outstanding voting securities of such corporationentitled to vote generally in the election of directors is then beneficiallyowned, directly or indirectly, by all or substantially all the individuals andentities who were the beneficial owners, respectively, of the OutstandingCompany Common Stock and the Outstanding Company Voting Securities immediatelyprior to such reorganization, merger or consolidation in substantially the sameproportion as their ownership immediately prior to such reorganization, mergeror consolidation of the Outstanding Company Common Stock and the OutstandingCompany Voting Securities, as the case may be, (ii) no Person (excluding theCompany, any employee benefit plan (or related trust) of the Company or suchcorporation resulting from such reorganization, merger or consolidation and anyPerson beneficially owning, immediately prior to such

 

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reorganization,merger or consolidation, directly or indirectly, 33% or more of the OutstandingCompany Common Stock or the Outstanding Voting Securities, as the case may be)beneficially owns, directly or indirectly, 33% or more of, respectively, thethen outstanding shares of common stock of the corporation resulting from suchreorganization, merger or consolidation or the combined voting power of thethen outstanding voting securities of such corporation entitled to vote generallyin the election of directors, and (iii) at least a majority of the members ofthe board of directors of the corporation resulting from such reorganization,merger or consolidation were the Incumbent Directors at the time of theexecution of the initial agreement providing for such reorganization, merger orconsolidation; or

 

(d)                                 Approval by the stockholders of the Companyof (i) a complete liquidation or dissolution of the Company or (ii) the sale orother disposition of all or substantially all the assets of the Company, otherthan to a corporation with respect to which immediately following such sale orother disposition, (A) more than 60% of, respectively, the then outstandingshares of common stock of such corporation and the combined voting power of thethen outstanding voting securities of such corporation entitled to votegenerally in the election of directors is then beneficially owned, directly orindirectly, by all or substantially all the individuals and entities who werethe beneficial owners, respectively, of the Outstanding Company Common Stockand the Outstanding Company Voting Securities immediately prior to such sale orother disposition in substantially the same proportion as their ownership,immediately prior to such sale or other disposition, of the Outstanding CompanyCommon Stock and the Outstanding Company Voting Securities, as the case may be,(B) no Person (excluding the Company, any employee benefit plan (or relatedtrust) of the Company or such corporation and any Person beneficially owning,immediately prior to such sale or other disposition, directly or indirectly,33% or more of the Outstanding Company Common Stock or the Outstanding CompanyVoting Securities, as the case may be) beneficially owns, directly orindirectly, 33% or more of, respectively, the then outstanding shares of commonstock of such corporation and the combined voting power of the then outstandingvoting securities of such corporation entitled to vote generally in theelection of directors and (C) at least a majority of the members of the boardof directors of such corporation were approved by a majority of the IncumbentDirectors at the time of the execution of the initial agreement or action ofthe Board providing for such sale or other disposition of assets of theCompany.

 

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