AMENDED AND RESTATED EMPLOYMENT AGREEMENT
DATE: November 30, 2012
PARTIES: Techne Corporation, a "Company"
Minnesota corporation
000 XxXxxxxx Xxxxx X.X.
Xxxxxxxxxxx, Xxxxxxxxx 00000
Xxxxxxx X. Xxxxxx "Employee"
RECITALS:
A. Employee has been employed by the Company in the position of Vice
President of Finance and Chief Financial Officer pursuant to the terms of a
written Employment Agreement, as amended and/or restated from time to time
("the Prior Employment Agreement"); and
B. The Company and Employee have agreed to several changes with respect
to Employee's employment. At the same time, the Company and Employee desire to
continue many of the same terms and conditions in the Prior Employment
Agreement. Rather than enter into an amendment regarding each changed
provision of the Prior Employment Agreement, Employer and Employee desire to
amend and restate the Prior Employment Agreement in its entirety in the form of
this Amended and Restated Employment Agreement (hereinafter "Agreement"), and
include herein all of the changes that have been agreed to.
AGREEMENTS:
ARTICLE 1.
TERM OF EMPLOYMENT: DUTIES AND SUPERVISION
1.1) Parties. The parties to this Agreement are Xxxxxxx X. Xxxxxx
("Employee") and Techne Corporation ("Company"). As used herein, Company
refers to Techne Corporation and its subsidiaries including Research and
Diagnostic Systems, Inc. ("R&D"), unless specifically provided otherwise.
All of the rights and obligations created by this Agreement may be performed
by or enforced by or against the Company or R&D or other appropriate
subsidiary.
1.2) Term of Employment. The Company hereby agrees to employ Employee
as Chief Executive Officer of the Company on an interim basis, effective
December 1, 2012 and continuing until the date that the Company appoints a
full-time Chief Executive Officer (the "Interim CEO End Date"), unless
earlier terminated as provided in Article 5 hereof. Such employment is in
addition to Employee's continued employment as the Company's Chief Financial
Officer and Vice President of Finance through June 30, 2014, unless earlier
terminated as provided in Article 5 hereof.
1.3) Duties and Supervision. During the term of this Agreement,
Employee agrees to devote his full time and best efforts to the business and
affairs of the Company. Employee shall report to, and at all times shall be
subject to the direction of the Company's Board of Directors or its designee.
ARTICLE 2.
COMPENSATION
2.1) Salary. During the period of December 1, 2012 through the later
of (i) June 30, 2013 and (ii) the Interim CEO End Date, the Company will pay
Employee as base compensation for services to be rendered hereunder such
amount as is commensurate with an annualized salary of $425,000, to be paid
bi-weekly or in accordance with the usual payroll practices of the Company.
Each subsequent fiscal year (July 1 - June 30) during the term of Employee's
employment by the Company under this Agreement, Employee's annual base salary
shall be reviewed and adjusted by Company's Compensation Committee in its
sole discretion; provided, that no such adjustment will be effective prior to
the Interim CEO End Date; provided, further, that Employee's annual base
salary immediately following the later of (i) June 30, 2013 and (ii) the
Interim CEO End Date will be mutually determined by Employee and the
Company's Compensation Committee and will be no less than $327,500.
2.2) Cash Bonus. On June 30, 2013, the Company will pay Employee a
cash bonus of $225,000, by cash, check or wire transfer of immediately
available funds, which shall be taxed at the bonus rate. Unless Employee has
terminated his employment voluntarily for reasons other than death or
disability, the cash bonus is to be paid regardless of Employee's employment
status with the Company on June 30, 2013.
2.3) Options. On the date of execution of this Agreement by both
parties, the Company shall issue to Employee, pursuant to the Company's 2010
Equity Incentive Plan, incentive stock options to purchase an aggregate of
15,000 shares of the Company's common stock. Except as otherwise provided in
the agreement governing the award, the options will have a seven-year term
and will vest on the one-year anniversary of the grant date. The exercise
price of the options will be equal to the fair market value of the Company's
shares on the date the options are granted. If the number of shares vesting
for a Participant in any single year exceeds the limit established by Section
422 of the Internal Revenue Code for incentive stock option treatment, the
option shall be deemed an incentive stock option to the extent of the number
of shares within the limit and a nonqualified stock option to the extent of
the number of shares that exceed the limit.
2.4) Management Incentive Bonus Plan. During each fiscal year of the
term of Employee's employment, Employee shall be eligible to earn a bonus
pursuant to any management incentive plan adopted by the Company's
Compensation Committee from time-to-time. The performance standards for
earning such bonus and the bonus amount shall be established annually by the
Compensation Committee of the Company and whether the standards have been met
shall be determined by the Compensation Committee. Company may, but is not
required to, pay some or all of any bonus earned by Employee in the form of
stock options. Such options are to be granted after the receipt of the
Company's final audit report of the applicable fiscal year and the exercise
price is to be based on the market price of the Company's Common Stock at the
close of the market on the day they are granted.
2.5) Other Employee Compensation and Benefits. In addition to the
compensation and benefits provided to Employee in Sections 2.1 through 2.4
hereof, Employee shall be entitled to participate in other employee
compensation and benefit plans from time to time established by the Company
and made available generally to all employees to the extent that Employee's
age, tenure and title make him eligible to receive those benefits. Employee
shall participate in such compensation and benefit plans on an appropriate
and comparable basis determined by the Board of Directors by reference to all
other employees eligible for participation. With regard to all insured
benefits to be provided to Employee, benefits shall be subject to due
application by Employee. The Company has no obligation to pay insured
benefits directly and such benefits are payable to Employee only by the
insurers in accordance with their policies. Employee shall not be reimbursed
for unused personal days or sick days upon his termination from employment
regardless of the reason, whether voluntary or involuntary.
ARTICLE 3.
PAYMENT OF CERTAIN EXPENSES
3.1) Business Expenses. In order to enable Employee to better perform
the services required of him hereunder, the Company shall pay or reimburse
Employee for business expenses in accordance with policies to be determined
from time to time by the Board of Directors. Employee agrees to submit
documentation of such expenses as may be reasonably required by Company.
ARTICLE 4.
INVENTIONS, PROPRIETARY INFORMATION AND COMPETITION
4.1) Prior Agreement. Neither the execution of this Agreement nor any
provision in it shall be interpreted as rescinding or revoking the Employee
Agreement With Respect To Inventions, Proprietary Information, and Unfair
Competition previously entered into between the Company and Employee as of
December 17, 2004 (the "Prior Inventions, Proprietary Information, and Unfair
Competition Agreement"). The Company and Employee hereby agree that the
terms and conditions of such Prior Inventions, Proprietary Information, and
Unfair Competition Agreement shall continue in full force and effect and
shall apply to all businesses of the Company, including not only business
conducted by the Company but also to business conducted through Techne or any
subsidiary or venture of Techne now existing or hereafter created. The
termination of this Agreement or Employee's employment shall not terminate
Employee's obligations under the Prior Inventions, Proprietary Information,
and Unfair Competition Agreement, the terms and conditions of which shall
survive termination of this Agreement and termination of Employee's
employment for any reason, whether voluntary or involuntary.
ARTICLE 5.
TERMINATION
5.1) Events of Termination. Employee's employment shall terminate as
follows:
(A) By mutual written agreement of the parties;
(B) Upon death of Employee;
(C) Employee may terminate his employment at any time upon
written notice provided to the Board of Directors at least 90 days
prior to the effective date of termination;
(D) The Company may terminate Employee's employment as follows:
(i) Upon written notice provided to Employee at least 90
days prior to the effective date of termination. In the event
that Company elects, in its sole discretion to terminate
Employee's employment under this Section 5.1(D)(i) with less than
ninety (90) days' notice, Company shall pay Employee an amount
equal to the base salary and benefits (but not management
incentive bonus) in lieu of giving all or a portion of the notice
provided in this Section;
(ii) In the event of the merger, sale of the business, or
change in control of the Company, provided that the salary and
bonus continuation provisions of Article 6.1 of this Agreement are
met;
(iii) By written notice to Employee, the Company may
terminate Employee's employment immediately with cause. For
purposes of this Agreement, "cause" shall mean material dishonesty
or gross misconduct on the part of Employee in the performance of
Employee's duties hereunder, serious breach of Company policies or
failure on the part of Employee to perform material duties
assigned to Employee by the Company's President or Board of
Directors; and
(iv) Upon the occurrence of physical or mental disability of
Employee to such an extent that Employee is unable to carry on the
essential functions of Employee's position, with or without
reasonable accommodation, and such inability continues for a
period of three months or such other period as may be required by
applicable law. Nothing in this Section 5.1(D)(iv) shall limit
the right of either Party to terminate Employee's employment under
one of the other provisions of this Section 5.1.
5.2) Records and Files. In the event of termination of employment of
Employee, possession of each corporate file and record shall be retained by
the Company, and Employee or his heirs, assigns and legal representatives
shall have no right whatsoever in any such material, information or property.
ARTICLE 6.
TERMINATION BENEFITS
6.1) Termination Benefits. During the three-year period beginning upon
the execution of this Agreement by both parties, upon termination by the
Company of Employee's employment other than for "Cause" or resignation by
Employee for "Good Reason" (in each case, as defined below), Employee will be
entitled to (i) cash severance compensation equal to 12 months of base salary
payable ratably over the subsequent 12-month period, (ii) the pro-rated value
of any incentive compensation earned and any unpaid retention cash bonus
(defined above) through the date of such termination or resignation, (iii)
the acceleration of vesting of the option granted pursuant to Section 2.3
above, and (iv) the continuation of health care coverage for a period of 12
months, whether through the Company's health care plans or reimbursement of
expenses of the Employee to obtain COBRA. Notwithstanding anything in this
Agreement to the contrary, if any of the payments described in this Section
6.1 are subject to the requirements of Section 409A of the Internal Revenue
Code of 1986, as amended ("Code Section 409A") and the Company determines
that Employee is a "specified employee" as defined in Code Section 409A as of
the date of Employee's termination of employment, such payments shall not be
paid or commence earlier than the first day of the seventh month following
the date of Employee's termination of employment. As a condition to
Employee's receipt of such payments, Employee shall be required to execute,
return, comply with and not rescind a full and final release of any and all
claims in favor of the Company. Such release agreement shall be prepared by
the Company.
(A) "Cause" shall be defined to include the following concepts:
(i) Negligent or willful misconduct by Employee with
respect to the material duties, requirements and responsibilities
of his employment;
(ii) Negligent or intentional engagement by Employee in any
other conduct that is materially injurious (or would be reasonably
likely to be materially injurious) to the reputation or business
of the Company, including, but not limited to, professional or
personal conduct of Employee which is dishonest, disloyal, or
inconsistent with federal and state laws respecting harassment of,
or discrimination against, one or more of the Company's employees;
or
(iii) Commission by or conviction of Employee of, or a guilty
or nolo contendere plea by Employee with respect to, any crime
punishable as a felony.
(B) "Good Reason" shall be defined to include the following
concepts:
(i) a material change in the status, authority or
employment responsibilities of Employee, excluding any such change
related to Employee's relinquishment of the duties of Chief
Executive Officer;
(i) the failure by the Company to obtain an assumption of
its obligations under this Agreement by any successor to the
Company;
(i) a material breach of this Agreement by the Company or
its successor, including but not limited to a material failure by
the Company to pay Employee's base salary or the other
compensation described in the Amendment;
(i) the relocation of Employee's place of employment by
more than fifty (50) miles from Employee's place of employment
during the preceding fiscal year.
ARTICLE 7.
MODIFICATIONS
7.1 Modifications. Except as provided in Section 4.1 above, this
Agreement supersedes all prior agreements and understandings between the
parties relating to the employment of Employee by the Company and it may not
be changed or terminated orally. No modification, termination, or attempted
waiver of any of the provisions of this Agreement shall be valid unless in
writing signed by the party against whom the same is sought to be enforced.
Notwithstanding anything in this Agreement to the contrary, the Company
expressly reserves the right to amend this Agreement without Employee's
consent to the extent necessary to comply with Code Section 409A, as it may
be amended from time to time, and the regulations, notices and other guidance
of general applicability issued thereunder.
ARTICLE 8.
GOVERNING LAW AND SEVERABILITY
8.1) Governing Law. The validity, enforceability, construction and
interpretation of this Agreement shall be governed by the laws of the State
of Minnesota.
8.2) Severability. If any term of this Agreement is deemed
unenforceable, void, voidable, or illegal, such unenforceable, void, voidable
or illegal term shall be deemed severable from all other terms of this
Agreement, which shall continue in full force and effect and the Company and
Employee expressly acknowledge that a court of competent jurisdiction may, at
the Company's request, modify and thereafter enforce any of the terms,
conditions, and covenants contained in this Agreement.
ARTICLE 9.
BINDING EFFECT
9.1) Binding Effect. The breach by the Company of any other agreement
or instrument between the Company and Employee shall not excuse or waive
Employee's performance under, or compliance with, this Agreement. This
Agreement shall be assignable by the Company and shall be binding upon and
inure to the benefit of Company, its successors and assigns. The rights of
Employee hereunder are personal and may not be assigned or transferred except
as may be agreed to in writing by the Company.
ARTICLE 10.
ARBITRATION
10.1) Arbitration. Any dispute arising out of or relating to (i) this
Agreement or the alleged breach of it, or the making of this Agreement,
including claims of fraud in the inducement, or (ii) Employee's application
or candidacy for employment, employment and/or termination of employment with
Company including, but not limited to, any and all disputes, claims or
controversies relating to discrimination, harassment, retaliation, wrongful
discharge, and any and all other claims of any type under any federal or
state constitution or any federal, state, or local statutory or common law
shall be discussed between the disputing parties in a good faith effort to
arrive at a mutual settlement of any such controversy. If, notwithstanding,
such dispute cannot be resolved, such dispute shall be settled by binding
arbitration. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The arbitrator shall be a
retired state or federal judge or an attorney who has practiced securities or
business litigation for at least 10 years. If the parties cannot agree on an
arbitrator within 20 days, any party may request that the chief judge of the
District Court for Hennepin County, Minnesota, select an arbitrator.
Arbitration will be conducted pursuant to the provisions of this Agreement,
and the commercial arbitration rules of the American Arbitration Association,
unless such rules are inconsistent with the provisions of this Agreement, but
without submission of the dispute to such Association. Limited civil
discovery shall be permitted for the production of documents and taking of
depositions. Unresolved discovery disputes may be brought to the attention
of the arbitrator who may dispose of such dispute. The arbitrator shall have
the authority to award any remedy or relief that a court of this state could
order or grant; provided, however, that punitive or exemplary damages shall
not be awarded. The arbitrator may award to the prevailing party, if any, as
determined by the arbitrator, all of its costs and fees, including the
arbitrator's fees, administrative fees, travel expenses, out-of-pocket
expenses and reasonable attorneys' fees. Unless otherwise agreed by the
parties, the place of any arbitration proceedings shall be Hennepin County,
Minnesota. This agreement to arbitrate does not include worker's
compensation claims, claims for unemployment compensation, or any injunctive
or other relief to which the Company may be entitled in accordance with the
Prior Inventions, Proprietary Information, and Unfair Competition Agreement
referred to in Section 4.1 herein.
IN WITNESS WHEREOF, the parties have executed this Agreement and caused
it to be dated as of the day and year first above written.
TECHNE CORPORATION
By /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx, M.D., Ph.D., Chair of
the Executive Compensation Committee
"Company"
/s/ Xxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxx X. Xxxxxx
"Employee"
