Exhibit 10.8


 


CHANGE OF CONTROL AGREEMENT


 


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


 


The
Board of Directors of the Company (the “Board”) has determined that it is in
the best interests of the Company and its stockholders to ensure that the
Company will have the continued dedication of the Executive, notwithstanding
the possibility, threat or occurrence of a Change of Control (as defined in
Section 1.1 below) of the Company. 
The Board believes it is imperative to diminish the inevitable
distraction of the Executive arising from the personal uncertainties and risks created
by a pending or threatened Change of Control, to encourage the Executive’s full
attention and dedication to the Company currently and in the event of any
threatened or pending Change of Control, and to provide the Executive with
reasonable compensation and benefit arrangements upon a Change of Control.


 


In
order to accomplish these objectives, the Board has caused the Company to enter
into this Agreement.


 


1.                                      DEFINITIONS


 


1.1                                 “Change of Control” shall have the
definition set forth in Appendix A to this Agreement, which is hereby
incorporated by reference.


 


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


 


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


 


2.                                      TERM


 


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


 


3.                                      EMPLOYMENT


 


3.1                               Employment Period


 


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


 


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3.2                               Position and Duties


 


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


 


3.3                               Location


 


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


 


3.4                               Employment at Will


 


The
Executive and the Company acknowledge that, except as may otherwise be provided
under any other written agreement between the Executive and the Company, the
employment of the Executive by the Company or its affiliated companies is “at
will” and may be terminated by either the Executive or the Company or its
affiliated companies at any time with or without cause.  Moreover, if prior to the Change of Control
Date, the Executive’s employment with the Company or its affiliated companies
terminates for any reason, then the Executive shall have no further rights
under this Agreement; provided, however, that Company may not avoid liability
for any termination payments which would have been required during the
Employment Period pursuant to Section 8 below by terminating the Executive
prior to the Employment Period where such termination is carried out in
anticipation of a Change of Control and the principal motivating purpose is to
avoid liability for such termination payments.


 


3.5                               Board of Directors


 


The
Executive is currently a member of the Board but his continuation as such shall
be subject to the will of the Company’s stockholders and the Board, as provided
in the Company’s by-laws and certificate of incorporation.  Removal of the Executive from, or nonelection
of the Executive to, the Board by the Company’s stockholders or the Board, as
provided in the Company’s by-laws and certificate of incorporation, shall in no
event be deemed a breach of this Agreement by the Company.


 


4.                                      ATTENTION AND EFFORT


 


During
the Employment Period, and excluding any periods of vacation and sick leave to
which the Executive is entitled, the Executive will devote all of his
productive time, ability, attention and effort to the business and affairs of
the Company and the discharge of the responsibilities assigned to him
hereunder, and will use his reasonable best efforts to perform faithfully and
efficiently such responsibilities.  It
shall not be a violation of this Agreement for the Executive to (a) serve on
corporate, 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 significantly
interfere with the performance of the Executive’s responsibilities in
accordance with this Agreement.  It is
expressly understood and agreed that to the extent any such activities have
been conducted by the Executive prior to the Employment Period, the continued
conduct of such activities (or the conduct of activities similar in nature and
scope thereto) during the Employment Period shall not thereafter be deemed to
interfere with the performance of the Executive’s responsibilities to the
Company.


 


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5.                                      COMPENSATION


 


As
long as the Executive remains employed by the Company during the Employment
Period, the Company agrees to pay or cause to be paid to the Executive, and the
Executive agrees to accept in exchange for the services rendered hereunder by
him, the following compensation:


 


5.1                               Salary


 


The
Executive shall receive an annual base salary (the “Annual Base Salary”), at
least equal to the annual salary established by the Board or the Compensation
Committee of the Board (the “Compensation Committee”) for the fiscal year in
which the Change of Control Date occurs. 
The Annual Base Salary shall be paid in substantially equal installments
and at the same intervals as the salaries of other executives of the Company
are paid.  The Board or the Compensation
Committee shall review the Annual Base Salary at least annually and shall
determine in good faith and consistent with any generally applicable Company
policy any increases for future years.


 


5.2                               Bonus


 


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


 


6.                                      BENEFITS


 


6.1                               Incentive, Retirement and
Welfare Benefit Plans; Vacation


 


During
the Employment Period, the Executive shall be entitled to participate, subject
to and in accordance with applicable eligibility requirements, in such fringe
benefit programs as shall be generally made available to other executives of
the Company and its affiliated companies from time to time during the
Employment Period by action of the Board (or any person or committee appointed
by the Board to determine fringe benefit programs and other emoluments),
including, without limitation, paid vacations; any stock purchase, savings or
retirement 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


 


During
the Employment Period, the Executive shall be entitled to receive prompt
reimbursement for all reasonable employment expenses incurred by him in
accordance with the policies, practices and procedures of the Company and its
affiliated companies in effect for the executives of the Company and its
affiliated companies during the Employment Period.


 


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7.                                      TERMINATION


 


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


 


7.1                               By the Company or the
Executive


 


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


 


7.2                               Automatic Termination


 


This
Agreement and the Executive’s employment during the Employment Period shall
terminate automatically upon the death or Total Disability of the
Executive.  The term “Total Disability”
as used herein shall mean the Executive’s inability (with such accommodation as
may be required by law and which places no undue burden on the Company), as determined
by a physician selected by the Company and acceptable to the Executive, to
perform the duties set forth in Section 3.2 hereof for a period or periods
aggregating 120 calendar days in any 12-month period as a result of physical or
mental illness, loss of legal capacity or any other cause beyond the
Executive’s control, unless the Executive is granted a leave of absence by the
Board.  The Executive and the Company
hereby acknowledge that the duties specified in Section 3.2 hereof are
essential to Executive’s position and that Executive’s ability to perform those
duties is the essence of this Agreement.


 


7.3                               Notice of Termination


 


Any
termination by the Company or by the Executive during the Employment Period
shall be communicated by Notice of Termination to the other party given in
accordance 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 circumstances
claimed to provide a basis for termination of the Executive’s employment under
the provision so indicated.  The failure
by the Executive or the Company to set forth in the Notice of Termination any
fact or circumstance which contributes to a showing of Good Reason or Cause
shall not waive any right of the Executive or the Company hereunder or preclude
the Executive or the Company from asserting such fact or circumstance in
enforcing the Executive’s or the Company’s rights hereunder.


 


7.4                               Date of Termination


 


During
the Employment Period, “Date of Termination” means (a) if the Executive’s
employment is terminated by reason of death, at the end of the calendar month
in which the Executive’s death occurs, (b) if the Executive’s employment is
terminated by reason of Total Disability, immediately upon a determination by
the 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 of
Termination.  The Executive’s employment
and performance of services will continue during such five-day period; provided,
however, that the Company may, upon notice to the Executive and without
reducing the Executive’s compensation during such period, excuse the Executive
from any or all of his duties during such period.


 


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8.                                      TERMINATION PAYMENTS


 


In
the event of termination of the Executive’s employment during the Employment
Period, all compensation and benefits shall terminate except as specifically
provided in this Section 8.


 


8.1                               Termination by the Company
Other Than for Cause or by the Executive for Good Reason


 


If
during the Employment Period the Company terminates the Executive’s employment
other than for Cause or the Executive terminates his employment for Good
Reason, 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 the
extent not theretofore paid;


 


(ii)                                  the product of (x) the Annual Bonus payable
with 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 fiscal
year through the Date of Termination, and the denominator of which is 365; and


 


(iii) any compensation
previously deferred by the Executive (together with accrued interest or
earnings thereon, if any) and any accrued vacation pay which would be payable
under the Company’s standard policy, in each case to the extent not theretofore
paid;


 


(b)                                 for one year after the Date of Termination,
the Company shall pay the Executive’s premiums for health insurance benefit
continuation for Executive and his family members, if applicable, which the
Company provides to the Executive under the provisions of the federal
Comprehensive Omnibus Budget Reconciliation Act of 1986, as amended (“COBRA”)
to the extent that the Company would have paid such premiums had the Executive
remained employed by the Company (such continued payment is hereinafter
referred 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 of
Termination occurs.


 


8.2                               Termination for Cause or
Other Than for Good Reason


 


If
during the Employment Period the Executive’s employment shall be terminated by
the Company for Cause or by the Executive for other than Good Reason, this
Agreement shall terminate without further obligation on the part of the Company
to 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 previously
deferred by the Executive, and (c) any accrued vacation pay which would be payable
under the Company’s standard policy, in each case to the extent theretofore
unpaid.


 


8.3                               Expiration of Term


 


In
the case of a termination of the Executive’s employment as a result of the
expiration of the Term of this Agreement, this Agreement shall terminate
without further obligation on the part of the


 


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


 


8.4                               Termination Because of Death
or Total Disability


 


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


 


8.5                               Payment Schedule


 


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


 


8.6                               Cause


 


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


 


(a)                                  A clear refusal to carry out any material
lawful duties of the Executive or any directions of the Board or senior
management of the Company, all reasonably consistent with those duties
described in Section 3.2 hereof ;


 


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


 


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


 


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


 


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


 


8.7                               Good Reason


 


For
purposes of this Agreement, “Good Reason” means


 


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


 


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


 


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


 


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


 


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


 


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


 


8.8                               Excess Parachute Limitation


 


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


 


9.                                      REPRESENTATIONS, WARRANTIES
AND OTHER CONDITIONS


 


In
order to induce the Company to enter into this Agreement, the Executive represents
and warrants to the Company as follows:


 


9.1                               Health


 


The
Executive is in good health and knows of no physical or mental disability
which, with any accommodation which may be required by law and which places no
undue burden on the Company, would prevent him from fulfilling his obligations
hereunder.  The Executive agrees, if the
Company requests, to submit to reasonable periodic medical examinations by a
physician or physicians designated by, paid for and arranged by the
Company.  The Executive agrees that the
examination’s medical report shall be provided to the Company.


 


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9.2                               No Violation of Other
Agreements


 


The
Executive represents that neither the execution nor the performance of this
Agreement by the Executive will violate or conflict in any way with any other
agreement by which the Executive may be bound.


 


10.                               NONDISCLOSURE; RETURN OF
MATERIALS


 


10.1                        Nondisclosure


 


Except
as required by his employment with the Company, the Executive will not, at any
time 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 or
trade secret information without the prior written consent of the Company.  The Executive understands that the Company
will be relying on this covenant in continuing the Executive’s employment,
paying his compensation, granting him any promotions or raises, or entrusting
him with any information which helps the Company compete with others.


 


10.2                        Return of Materials


 


All
documents, records, notebooks, notes, memoranda, drawings or other documents
made or compiled by the Executive at any time while employed by the Company, or
in his possession, including any and all copies thereof, shall be the property
of the Company and shall be held by the Executive in trust and solely for the
benefit of the Company, and shall be delivered to the Company by the Executive
upon termination of employment or at any other time upon request by the
Company.


 


11.                               NOTICE AND CURE OF BREACH


 


Whenever
a breach of this Agreement by either party is relied upon as justification for
any 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 such
action is taken, the party asserting the breach of this Agreement shall give
the other party at least ten days’ prior written notice of the existence and
the nature of such breach before taking further action hereunder and shall give
the party purportedly in breach of this Agreement the opportunity to correct
such breach during the ten-day period.


 


12.                               FORM OF NOTICE


 


Every
notice required by the terms of this Agreement shall be given in writing by
serving the same upon the party to whom it was addressed personally or by
registered or certified mail, return receipt requested, at the address set
forth below or at such other address as may hereafter be designated by notice
given 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 in
accordance with the terms hereof.  Except
as set forth in Section 7.4 hereof, if notice is mailed, such notice shall
be effective upon mailing.


 


13.                               ASSIGNMENT


 


This
Agreement is personal to the Executive and shall not be assignable by the
Executive.


 


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


 


14.                               WAIVERS


 


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


 


15.                               AMENDMENTS IN WRITING


 


No
amendment, modification, waiver, termination or discharge of any provision of
this 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 be
amended, modified, waived, terminated or discharged and signed by the Company
and the Executive, and each such amendment, modification, waiver, termination
or discharge shall be effective only in the specific instance and for the
specific purpose for which given.  No
provision of this Agreement shall be varied, contradicted or explained by any
oral agreement, course of dealing or performance or any other matter not set
forth in an agreement in writing and signed by the Company and the Executive.


 


16.                               APPLICABLE LAW


 


This
Agreement shall in all respects, including all matters of construction,
validity and performance, be governed by, and construed and enforced in
accordance with, the laws of the State of Washington, without regard to any
rules governing conflicts of laws.


 


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17.                               ARBITRATION; ATTORNEYS’ FEES


 


Except
in connection with enforcing Section 10 of this Agreement, for which legal
and equitable remedies may be sought in a court of law, any dispute arising
under this Agreement shall be subject to arbitration.  The arbitration proceeding shall be conducted
in accordance with the Commercial Arbitration Rules of the American Arbitration
Association then in effect, conducted by one arbitrator either mutually agreed
upon or selected in accordance with the AAA Rules.  The arbitration shall be conducted in King
County, Washington under the jurisdiction of the Seattle office of the American
Arbitration Association.  The arbitrator
shall have authority only to interpret and apply the provisions of this
Agreement, and shall have no authority to add to, subtract from, or otherwise
modify the terms of this Agreement.  Any
demand 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 and
binding, and each party agrees to be bound to by arbitrator’s award subject
only to an appeal therefrom in accordance with the laws of the State of Washington.  Either party may obtain judgment upon the
arbitrator’s award in the Superior Court of King, County, Washington.


 


If
it becomes necessary to pursue or defend any legal proceeding, whether in
arbitration or court, in order to resolve a dispute arising under this
Agreement, the prevailing party in any such proceeding shall be entitled to
recover its reasonable costs and attorneys’ fees.


 


18.                               SEVERABILITY


 


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


 


19.                               ENTIRE AGREEMENT


 


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


 


20.                               COORDINATION WITH SEVERANCE
AGREEMENT


 


The
Key Executive Severance Agreement that the parties are entering into
contemporaneously with this Agreement (the “Severance Agreement”) provides for
certain forms of severance and benefit payments in the event of termination of
the Executive’s employment.  This Agreement
is in addition to the Severance Agreement and in no way supersedes or nullifies
the Severance Agreement.  Nevertheless,
it is possible that termination of employment by the Company or by the
Executive may fall within the 


 


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


 


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


 


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


 


(c)                                  The severance payment required under
Section 8.1(c) hereof shall be paid first, in which case the severance
payment required under Section 5.1(c) of the Severance Agreement need not
be provided.


 


21.                               WITHHOLDING


 


The
Company may withhold from any amounts payable under this Agreement such
federal, state or local taxes as shall be required to be withheld pursuant to
any applicable law or regulation.


 


22.                               COUNTERPARTS


 


This
Agreement may be executed in counterparts, each of which counterpart shall be
deemed an original, but all of which together shall constitute one and the same
instrument.


 


IN
WITNESS WHEREOF, the parties have executed and entered into this Agreement
effective 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


 


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


 


(a)                                  A “Board Change” which, for purposes of this
Agreement, shall have occurred if a majority (excluding vacant seats) of the
seats on the Company’s Board are occupied by individuals who were neither (i)
nominated by a majority of the Incumbent Directors nor (ii) appointed by
directors so nominated.  An “Incumbent Director” is a member of the
Board who has been either (i) nominated by a majority of the directors of the
Company then in office or (ii) appointed by directors so nominated, but
excluding, for this purpose, any such individual whose initial assumption of
office 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 the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or other
actual or threatened solicitation of proxies or consents by or on behalf of a
Person (as hereinafter defined) other than the Board; or


 


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


 


(c)                                  Approval by the stockholders of the Company
of a reorganization, merger or consolidation, in each case, unless, immediately
following such reorganization, merger or consolidation, (i) more than 60% of,
respectively, the then outstanding shares of common stock of the corporation
resulting from such reorganization, merger or consolidation and the combined
voting power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and the Outstanding Company Voting Securities immediately
prior to such reorganization, merger or consolidation in substantially the same
proportion as their ownership immediately prior to such reorganization, merger
or consolidation of the Outstanding Company Common Stock and the Outstanding
Company Voting Securities, as the case may be, (ii) no Person (excluding the
Company, any employee benefit plan (or related trust) of the Company or such
corporation resulting from such reorganization, merger or consolidation and any
Person beneficially owning, immediately prior to such


 


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


 


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


 


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