Employment Agreement SYNTHETECH, INC. Gregory Robert Hahn
Exhibit
10.1
SYNTHETECH,
INC.
Xxxxxxx
Xxxxxx Xxxx
Dated
as of August
30, 2006
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This
Employment Agreement (this "Agreement"),
dated
as of August 30, 2006, is between Synthetech, Inc., an Oregon corporation
("Employer"),
and
Xxxxxxx Xxxxxx Xxxx ("Executive").
RECITALS
A. Employer
desires to retain the services of Executive upon the terms and conditions set
forth herein.
B. Executive
is willing to provide services to Employer upon the terms and conditions set
forth herein.
AGREEMENT
For
and
in consideration of the foregoing premises and for other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged,
Employer and Executive hereby agree as follows:
|
1.
|
EMPLOYMENT
|
Employer
will employ Executive and Executive will accept employment by Employer as its
President and Chief Operating Officer. Executive will have the authority,
subject to Employer's Articles of Incorporation and Bylaws, as may be granted
from time to time by the Board of Directors of Employer (the "Board
of Directors").
Executive will perform the duties assigned to the President and Chief Operating
Officer in Employer's Bylaws, the duties customarily performed by the President
and Chief Operating Officer of a corporation which is, in all material respects,
similar to Employer and such other duties as may be assigned from time to time
by the Board of Directors, which relate to the business of Employer or any
subsidiaries or parent company of Employer or any business ventures in which
Employer or any subsidiaries or parent company of Employer may
participate.
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2.
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ATTENTION
AND EFFORT
|
Executive
will devote the necessary time, ability, attention and effort to Employer's
business and will serve its interests during the term of this Agreement;
provided,
however,
that
Executive may devote reasonable periods of time to (a) engaging in personal
investment activities, (b) serving on the board of directors of other
corporations, and (c) engaging in charitable or community service
activities, so long as none of the foregoing additional activities (x)
materially interfere with Executive's duties under this Agreement or (y) violate
paragraph 8.
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3.
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TERM
|
Unless
otherwise terminated pursuant to paragraph 6 of this Agreement, Executive's
term
of employment under this Agreement shall commence on his first day of full-time
employment at Employer's headquarters in Albany, Oregon (such date being
referred to herein as the "Commencement
Date")
and
shall expire on the third anniversary of the Commencement Date; provided,
however, that,
commencing on the third anniversary of the Commencement Date and on each
anniversary thereafter on which the term of this Agreement may be scheduled
to
expire and
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subject
to paragraph 6, the expiration date of the term of Executive's employment
hereunder shall automatically be extended for two additional years unless,
not
later than the date 90 days prior to the expiration of the then existing term,
either party gives the other written notice that the expiration date shall
not
be so extended; and,
provided,
further,
that if
a Change in Control (as defined in paragraph 7.4) of Employer occurs less than
one year prior to the then applicable expiration date and Executive's employment
with Employer is not terminated in connection with such Change in Control,
the
term of this Agreement shall automatically extend until the first anniversary
of
the date on which the Change in Control occurs.
Notwithstanding
anything to the contrary, this Agreement shall terminate and be of no other
force and effect if Executive does not commence full-time employment at
Employer's headquarters in Albany, Oregon on or before October 1,
2006.
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4.
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COMPENSATION
|
Commencing
on the Commencement Date and continuing during the term of this Agreement,
Employer agrees to pay or cause to be paid to Executive, and Executive agrees
to
accept in exchange for the services rendered hereunder by him, the following
compensation:
| 4.1. |
Base
Salary
|
Executive's
compensation shall consist, in part, of an annual base salary. Up until the
first Anniversary of the Commencement Date, Executive’s annual base salary shall
be $190,000, before customary payroll deductions. Such annual base salary shall
be paid in substantially equal installments and at the same intervals as other
officers of Employer are paid, and shall be prorated for any partial years.
The
Compensation Committee of the Board of Directors (the "Compensation Committee")
shall determine any increases in the annual base salary in future
years.
| 4.2. |
Bonus
|
| 4.2.1 |
Signing
Bonus
|
Employer
shall pay to Executive a signing bonus of $76,758, with $35,000 to be paid
upon
the Commencement Date and, so
long
as Executive continues as an officer or employee of Employer, $21,000 on the
six-month anniversary of the Commencement Date and $20,858 on the first
anniversary of the Commencement Date. Notwithstanding the foregoing, all such
amounts shall become due and payable upon termination of Executive's employment
by Employer other than for Cause (as defined in paragraph 7.5) or by
Executive with "Good Reason" (as defined in paragraph 7.6) or upon the
closing of a Change in Control (as defined in paragraph 7.4).
| 4.2.2 |
Performance
Bonus
|
Executive
may be entitled to receive, in addition to the annual base salary described
above, an annual bonus in an amount (up to 45% of Executive's base salary,
although in the case of exceptional performance, as determined by the
Compensation Committee in its sole discretion, a bonus of greater than 45%
may
be awarded) to be determined by the Compensation Committee, in its sole
discretion. The Compensation Committee shall determine the performance
objectives relating to the annual
bonus
for a given fiscal year prior to the beginning of that year and shall determine
achievement of performance objectives in its sole discretion. Any annual bonus
will be paid to Executive no later than 30 days after completion of Employer's
audited financial statements for the fiscal year for which
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such
bonus applies. If (a) Executive's employment with Employer terminates as a
result of expiration of the term of this Agreement or termination by Employer
other than for Cause or by Executive with Good Reason or due to Executive's
death or total disability (as defined in paragraph 6.3) and (b) actual
performance for the fiscal year during which such termination occurs achieves
the performance objectives established by the Compensation Committee for such
fiscal year, Executive shall be entitled to receive, no later than 30 days
after
completion of Employer's audited financial statements for the applicable fiscal
year, an annual performance bonus, the amount of which shall be prorated (based
on the number of days during such fiscal year Executive was employed by Employer
prior to such termination). Notwithstanding the foregoing, the first performance
bonus objectives determined by the Compensation Committee shall cover the period
from the Commencement Date through March 31, 2007 and the amount of the
potential bonus shall be pro rated for such partial fiscal year.
| 4.3 |
Equity
Awards
|
| 4.3.1 |
Initial
Options
|
At
the
first meeting of the Compensation Committee after the Commencement Date,
Employer will grant incentive stock options ("Initial
Options")
to
purchase 300,000 shares of Employer's Common
Stock
under Employer's 2005 Equity Incentive Plan (the "Plan").
The
per
share exercise price of the Initial Options will be equal to the fair market
value per share of Employer's Common Stock as determined by the Compensation
Committee as of the grant date thereof. Unless otherwise agreed by Executive,
the Initial Options will be evidenced by a stock option agreement, in
substantially the form customarily used by Employer. Subject to accelerated
vesting described in the stock option agreement (a) 100,000 of the Initial
Options shall vest as of the Commencement Date and (b) so long as Executive
continues as an officer or employee of Employer, an additional 100,000 of the
Initial Options shall vest on each of the first and second anniversaries of
the
Commencement Date.
| 4.3.2 |
Additional
Equity Awards
|
The
Compensation Committee shall determine any grants of restricted stock,
additional options or other equity-based awards to be made to Executive under
the Plan or otherwise in future years.
| 4.4 |
Withholding
|
Employer
shall withhold from any payments under this Agreement all federal, state, city
or other taxes as may be required pursuant to any applicable law, governmental
regulation or ruling.
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5.
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BENEFITS;
KEY-MAN LIFE INSURANCE;
INDEMNIFICATION
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| 5.1 |
Benefits;
Vacation
|
Commencing
on the Commencement Date and continuing during the term of this Agreement,
Executive will be entitled to participate, subject to and in accordance with
applicable eligibility requirements, in fringe benefit programs as shall be
available generally to officers and employees of Employer or which may be
provided specifically for Executive from time to time by action of the
Compensation Committee (or any other person or committee appointed by the Board
of Directors to
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determine
fringe benefit programs). Executive shall be entitled to four weeks of vacation,
in addition to paid holidays offered by Employer generally to its employees,
on
an annual basis.
| 5.2 |
Vehicle
|
Employer
will secure a lease for a mutually agreed upon automobile that Executive will
utilize during the term of his employment with Employer, and Employer shall
pay
all expenses related to the use of such automobile, including, but not limited
to, financing, operation and maintenance of the automobile and all standard
liability, collision and comprehensive insurance for the use of such automobile.
| 5.3 |
Moving
and Commuting Expenses
|
Employer
will pay up to $ 50,000 of Executive's reasonable out-of-pocket moving expenses
incurred in connection with Executive's relocation to Oregon and item (a) below.
Employer will also pay Executive's reasonable expenses incurred until the later
of August 2007 and the first anniversary of the Commencement Date for (a)
temporary accommodation in connection with his relocation to Oregon. Employer
will pay for his commuting expense between his current residence and Oregon
prior to his relocation to Oregon; provided, however, that Employer will not
pay
for more than (b) above, two such commuting trips per 30-day period or for
air
travel other than coach class, in each case without the prior approval of
Employer's Chairman.
| 5.4 |
Key-Man
Life Insurance
|
At
Employer's request, Executive shall cooperate with Employer in obtaining, at
Employer's expense, key-man life insurance policies on Executive's life, with
Employer to be the beneficiary
of any
such policies. Employer's inability to obtain such insurance due to lack of
insurability of Executive shall not be deemed a breach of this
Agreement.
| 5.5 |
Indemnification
|
Employer
agrees that it will indemnify Executive against liability as an officer of
Employer and, to the extent he acts in such capacity, as a director or an
officer of any of Employer's affiliates, to the fullest extent permitted by
applicable law. To the fullest extent permitted by applicable law, Employer
agrees to advance and pay all reasonable legal fees and costs on behalf of
Executive to defend Executive against any and all claims against Executive
relating to his position as an officer and director of Employer, and Executive
shall have the right to select his legal counsel to defend him against any
and
all such claims, provided that such counsel must be reasonably acceptable to
Employer
| 5.6 |
Individual
Life Insurance
|
Subject
to Executive's eligibility therefore, Employer shall secure and maintain during
the term of Executive’s employment with Employer a standard term life insurance
policy in the aggregate amount of $190,000 for the benefit of Executive and
his
designated beneficiaries.
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6.
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TERMINATION
|
In
addition to the termination of this Agreement pursuant to the final paragraph
of
paragraph 3, employment of Executive pursuant to this Agreement may be
terminated as follows, but in any
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case,
the
provisions of paragraph 8 hereof shall survive the termination of this Agreement
and the termination of Executive's employment hereunder:
| 6.1. |
By
Employer
|
With
or
without Cause (as defined below), Employer may terminate the employment of
Executive at any time during the term of employment upon giving Executive at
least thirty (30) days' prior written notice thereof. The effective date of
the
termination of Executive's employment shall
be
the date on which such applicable 30-day period expires; provided,
however,
that
Employer may, upon notice to Executive and without reducing Executive's annual
base salary during such 30-day period, excuse Executive from any or all of
his
duties during such period and request Executive to immediately resign as a
Director, if applicable, and officer of Employer, whereupon, if requested to
so
resign, Executive shall immediately resign.
| 6.2. |
By
Executive
|
Executive
may terminate his employment at any time upon giving Employer, in the case
of
termination by Executive (a) other than with Good Reason, at least 90 days'
prior written notice thereof and (b) with Good Reason, at least 30 days' prior
written notice thereof. The effective date of the termination of Executive's
employment shall
be
the date on which such applicable 90 or 30-day period expires; provided,
however,
that
Employer may, upon notice to Executive and without reducing Executive's annual
base salary during such 90 or 30-day period, excuse Executive from any or all
of
his duties during such period and request Executive to immediately resign as
a
Director, if applicable, and officer of Employer, whereupon, if requested to
so
resign, Executive shall immediately resign. Any such resignation at Employer's
request following Executive's notice of termination other than with Good Reason
shall not be deemed to represent termination of Executive's employment by
Employer for purposes of this Agreement or otherwise, but shall be deemed
voluntary termination by Executive of his employment without Good
Reason.
| 6.3. |
Automatic
Termination
|
This
Agreement and Executive's employment hereunder shall terminate automatically
upon the death or total disability of Executive. The term "total
disability"
as used
herein shall mean Executive's inability to perform the duties set forth in
paragraph 1 hereof, with or without reasonable accommodation, 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 Executive's control, unless Executive is granted a leave
of
absence by the Board of Directors. Executive and Employer hereby acknowledge
that Executive's ability to perform the duties specified in paragraph 1
hereof is of the essence of this Agreement. Termination hereunder shall be
deemed to be effective immediately upon Executive's death or a determination
by
the Board of Directors of Executive's total disability, as defined
herein.
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7.
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TERMINATION
PAYMENTS
|
In
the
event of termination of the employment of Executive, all compensation and
benefits set forth in this Agreement shall terminate except as specifically
provided in this paragraph 7:
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7.1.
|
Termination
by Employer Without Cause or by Executive With Good Reason, or Upon
Change
in Control of Employer
|
If
Employer terminates Executive's employment without Cause, or if Executive
terminates his employment with Good Reason, or if Executive's employment is
terminated upon a Change in Control of Employer (as defined in paragraph 7.4
below), in each case prior to the end of the term of this Agreement, Executive
shall be entitled to receive immediately and in a lump sum payment:
(a) termination payments equal to (i) $570,000 if such termination
occurs prior to the first anniversary of the Commencement Date, or
(ii) 200% of Executive's then-current annual base salary if such
termination occurs after the first anniversary of the Commencement Date and
(b) any unpaid annual base salary and unpaid fringe benefits under
paragraph 5.1 that have accrued as of the date termination of Executive's
employment becomes effective (or, if applicable, up to the end of the 90 or
30-day period referenced in paragraphs 6.1 or 6.2) and (c) performance
bonus payments pursuant to paragraph 4.2.2, except such performance bonus
payments shall be made by Employer in accordance with payment provisions and
terms set forth in paragraph 4.2.2 (e.g. payment shall be no later than 30
days
after completion of Employer's audited financial statements for the applicable
fiscal year and shall be calculated based upon prorated calculations, if
applicable, as provided for by paragraph 4.2.2). If Executive is terminated
by
Employer for Cause, Executive shall not be entitled to receive any of the
foregoing benefits, other than any accrued but unpaid annual base salary and
other benefits set forth in clause (b) above.
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7.2
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Termination
by Executive Without Good Reason; Termination Because of Death or
Total
Disability
|
In
the
case of the termination of Executive's employment by Executive without Good
Reason or because of his death or total disability, Executive (or his personal
representative, as applicable) shall not be entitled to receive any payments
hereunder other than any accrued but unpaid annual base salary and other
benefits set forth in clause (b) of paragraph 7.1 hereof and performance
bonus payments pursuant to paragraph 4.2.2, except that such performance bonus
payments shall be made in accordance with the payment provisions and terms
set
forth in paragraph 4.2.2 (e.g. payment shall be made no later than 30 days
after
completion of Employer’s audited financial statements for the applicable fiscal
year and shall be calculated based upon prorated calculations, if applicable,
as
provided for by paragraph 4.2.2).
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7.3.
|
Expiration
of Term; Termination Pursuant to Paragraph
3
|
Notwithstanding
anything to the contrary, in the case of a termination of Executive's employment
as a result of the expiration of the term (as the same may be extended pursuant
to paragraph 3) of this Agreement, Executive shall not be entitled to
receive any payments hereunder other than those set forth in clause (b) of
paragraph 7.1 hereof.
If
this
Agreement is terminated pursuant to the final paragraph of paragraph 3,
Executive shall be entitled to no compensation of any kind.
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7.4.
|
Definition
of Change in Control
|
A
"Change
in Control"
of
Employer shall mean: (a) any consolidation or merger of Employer in which
Employer is not the continuing or surviving corporation or pursuant to which
shares of Employer's Common Stock would be converted into the right to receive
cash, securities or other property, other than a merger of Employer in which
the
holders of Common Stock immediately
-7-
prior
to
the merger have the same proportionate ownership of common stock of the
surviving corporation immediately after the merger; (b) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all the assets of Employer; (c) the
acquisition by any person (as such term is defined in Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"),
excluding, for this purpose, Employer) of any shares of Common Stock (or
securities convertible into Common Stock), if after making such acquisition,
such person is the beneficial owner (as such term is defined in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of 30% or more
of
the outstanding Common Stock (calculated as provided in paragraph (d) of
such Rule 13d-3 in the case of rights to acquire common stock); or (d) the
failure, for any reason, of the persons comprising the Board of Directors as
of
the date hereof (the "Incumbent
Board")
to
constitute at least a majority of the Board of Directors; provided,
however,
that
any person whose election or nomination for election was approved by a majority
of the persons then comprising the Incumbent Board (other than an election
or
nomination of a person whose initial assumption of office is in connection
with
an actual or threatened election contest relating to the election of directors,
as such terms are used in Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act) shall be, for purposes of this Agreement, deemed to
be a
member of the Incumbent Board.
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7.5.
|
Definition
of Cause
|
Whenever
reference is made in this Agreement to termination being with or without Cause,
"Cause"
shall
mean cause given by Executive to Employer and shall include the occurrence
of
one or more of the following events:
(a) Willful
failure or refusal to carry out the lawful duties of Executive described in
paragraph 1 hereof or lawful directions of the Board of Directors of
Employer, which directions are reasonably consistent with the duties herein
set
forth to be performed by Executive.
(b) Conviction
of or entering a plea of guilty or no contest to a violation by Executive of
a
state or federal criminal law involving the commission of a crime against
Employer or its employees or a felony;
(c) Continuous
misuse of alcohol or controlled substances or illegal substances that materially
interferes with Executive's performance of his duties to Employer; deception,
fraud, misrepresentation or dishonesty by Executive; any incident materially
compromising Executive's reputation or ability to represent Employer with the
public; any act or omission by Executive that materially impairs Employer's
business, good will or reputation; or any other misconduct; or
(d) Any
material violation of any provision of this Agreement that is not cured by
Executive within 30 days after receipt of written notice thereof given by
Employer.
|
7.6
|
Definition
of Good Reason
|
Whenever
reference is made in this Agreement to termination being with Good Reason,
"Good
Reason"
means
the occurrence, without Executive's written consent, of one or more of the
following events:
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(a) Action
by
Employer which results in a material diminution in the position held by
Executive, or the assignment to Executive of duties materially inconsistent
with
his position with Employer, excluding for this purpose isolated and inadvertent
action not taken in bad faith and that is remedied by Employer within 30 days
after receipt of written notice thereof given by Executive;
(b) Failure
by Employer to promptly pay Executive any installment or portion of his
compensation from Employer when earned and due (excluding for this purpose
any
inadvertent action not taken in bad faith and that is remedied by Employer
promptly after receipt of written notice thereof given by Executive).
(c) Employer
requiring Executive generally to perform his duties to Employer at a location
more than 75 miles outside the Albany, Oregon area, excluding for this purpose
travel outside such area reasonably required in connection with fulfilling
his
duties and responsibilities to Employer; or
(d) Any
other
material breach by Employer of this Agreement that is not cured by Employer
within 30 days after receipt of written notice thereof from
Executive.
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8.
|
NONCOMPETITION
AND NONSOLICITATION
|
|
8.1.
|
Applicability
|
This
paragraph 8 shall survive the termination of Executive's employment with
Employer or the expiration of the term of this Agreement.
|
8.2.
|
Scope
of Competition
|
Executive
agrees that he will not, directly or indirectly, during his employment
and
for a
period of two years from the later of (a) the date on which his employment
with Employer terminates for any reason and (b) the date this Agreement
expires, be employed by, consult with or otherwise perform services for, own,
manage, operate, join, control or participate in the ownership, management,
operation or control of or be connected with, in any manner, any Competitor.
A
"Competitor" shall include any entity which, directly or indirectly, competes
with Employer or produces, markets, distributes or otherwise derives benefit
from the production, marketing or distribution of products that compete with
products then produced by Employer or the feasibility for production of which
Employer is then actually studying, or which is preparing to market or is
developing products that will be in competition with the products then produced
or being studied or developed by Employer, in each case anywhere within such
geographic areas as Employer sells or markets its products at
the
time of termination of Executive's employment with Employer, unless released
from such obligation in writing by the Board of Directors. Executive shall
be
deemed to be related to or connected with a Competitor if such Competitor is
(a) a partnership in which he is a general or limited partner or employee,
(b) a corporation or association of which he is a shareholder, officer,
employee or director, or (c) a partnership, limited liability company,
corporation or association of which he is a member, manager, consultant or
agent; provided, however, that nothing herein shall prevent the
purchase or ownership by Executive of shares which constitute less than five
percent of the outstanding equity securities of a publicly held corporation,
if
Executive has no other relationship with such corporation.
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|
8.3.
|
Scope
of Nonsolicitation
|
Executive
shall not, directly or indirectly, solicit, influence or entice, or attempt
to
solicit, influence or entice, any employee or consultant of Employer to cease
his relationship with Employer or solicit, influence, entice or in any way
divert any customer, distributor, partner, joint venture or supplier of Employer
to do business or in any way become associated with any Competitor. This
subparagraph 8.3 shall apply during the time period and geographical area
described in subparagraph 8.2 hereof.
|
8.4.
|
Assignment
of Intellectual Property
|
All
concepts, designs, machines, devices, uses, processes, technology, trade
secrets, works of authorship, customer lists, plans, embodiments, inventions,
improvements or related work product (collectively "Intellectual
Property")
which
Executive develops, conceives or first reduces to practice during the term
of
his employment hereunder or within one year after the termination of his
employment hereunder or the expiration of this Agreement, whether working alone
or with others, shall be the sole and exclusive property of Employer, together
with any and all Intellectual Property rights, including, without limitation,
patent or copyright rights, related thereto, and Executive hereby assigns to
Employer all of such Intellectual Property. "Intellectual
Property"
shall
include only such concepts, designs, machines, devices, uses, processes,
technology, trade secrets, customer lists, plans, embodiments, inventions,
improvements and work product which (a) relate to Executive's performance
of services under this Agreement, to Employer's field of business or to
Employer's actual or demonstrably anticipated research or development, whether
or not developed, conceived or first reduced to practice during normal business
hours or with the use of any equipment, supplies, facilities or trade secret
information or other resource of Employer or (b) are developed, in whole or
in part, on Employer's time or developed using Employer's equipment, supplies,
facilities or trade secret information, or other resources of Employer, whether
or not the work product relates to Employer's field of business or Employer's
actual or demonstrably anticipated research.
|
8.5.
|
Disclosure
and Protection of
Inventions
|
Executive
shall disclose in writing all concepts, designs, processes, technology, plans,
embodiments, inventions or improvements constituting Intellectual Property
to
Employer promptly after the development thereof. At Employer's request and
at
Employer's expense, Executive will assist Employer or its designee in efforts
to
protect all rights relating to such Intellectual Property. Such assistance
may
include, without limitation, the following: (a) making application in the
United States and in foreign countries for a patent or copyright on any work
products specified by Employer; (b) executing documents of assignment to
Employer or its designee of all of Executive's right, title and interest in
and
to any work product and related intellectual property rights; and
(c) taking such additional action (including, without limitation, the
execution and delivery of documents) to perfect, evidence or vest in Employer
or
its designee all right, title and interest in and to any Intellectual Property
and any rights related thereto.
|
8.6.
|
Nondisclosure;
Return of Materials
|
During
the term of his employment by Employer and following termination of such
employment, he will not disclose (except as required by his duties to Employer),
any concept, design, process, technology, trade secret, customer list, plan,
embodiment, or invention, any other Intellectual Property or any other
confidential information (including, without limitation, customer information),
whether patentable or not, of Employer of which Executive becomes informed
or
aware during his
-10-
employment,
whether or not developed by Executive. In the event of the termination of his
employment with Employer or the expiration of this Agreement, Executive will
return all documents, data and other materials of whatever nature, including,
without limitation, drawings, specifications, research, reports, embodiments,
software and manuals to Employer which pertain to his employment with Employer
or to any Intellectual Property and shall not retain or cause or allow any
third
party to retain photocopies or other reproductions of the foregoing.
|
8.7.
|
Equitable
Relief
|
Executive
acknowledges that the provisions of this paragraph 8 are essential to Employer,
that Employer would not enter into this Agreement if it did not include this
paragraph 8 and that damages sustained by Employer as a result of a breach
of this paragraph 8 cannot be adequately remedied by damages, and Executive
agrees that Employer, notwithstanding any other provision of this Agreement,
including paragraph 13 hereof, and in addition to any other remedy it may have
under this Agreement or at law, shall be entitled to injunctive and other
equitable relief to prevent or curtail any breach of any provision of this
Agreement, including this paragraph 8.
|
8.8.
|
Effect
of Violation
|
Executive
and Employer acknowledge and agree that additional consideration has been given
for Executive entering into this paragraph 8, such additional consideration,
including, certain provisions for termination payments pursuant to paragraph
7
of this Agreement. Violation by Executive of this paragraph 8 shall relieve
Employer of any obligation it may have to make such termination payments, but
shall not relieve Executive of his obligations under this
paragraph 8.
|
8.9.
|
Definition
of Employer
|
For
purposes of subparagraph 8.2 and subparagraph 8.3 hereof, "Employer"
shall
include Employer and any of its subsidiaries or parent corporation and any
business ventures in which Employer or any of its subsidiaries or parent
corporation may participate.
|
9.
|
REPRESENTATIONS
AND WARRANTIES
|
In
order
to induce Employer to enter into this Agreement, Executive represents and
warrants to Employer as follows:
|
9.1
|
No
Violation of Other
Agreements
|
Subject
to the terms of the agreement between Executive and FMC Corporation, a true
and
complete copy of which Executive has delivered to Employer, neither the
execution nor the performance of this Agreement by Executive will violate or
conflict in any way with any other agreement by which Executive may be bound,
or
with any other duties imposed upon Executive by corporate or other statutory
or
common law.
|
9.2
|
Patents,
Etc.
|
Executive
has prepared and attached hereto as Schedule A
a list
of all inventions, patent applications and patents made or conceived by
Executive prior to the date hereof, which are subject to prior agreement or
which Executive desires to exclude from this Agreement, or, if no such list
is
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attached,
Executive hereby represents and warrants to Employer that there are no such
inventions, patent applications or patents.
|
10.
|
FORM
OF NOTICE
|
All
notices given hereunder shall be given in writing, shall specifically refer
to
this Agreement and shall be personally delivered or sent by telecopy or other
electronic facsimile transmission, by overnight delivery by a nationally
recognized carrier service 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 Executive:
|
Xxxxxxx
Xxxxxx Xxxx
|
|
0000
Xxxxxxxxxx Xxxxx Xxxxx
|
|
Xxxxxxxx,
XX 00000
|
|
If
to Employer:
|
Synthetech,
Inc.
|
|
0000
Xxxxxxxxxx Xxx
|
|
Xxxxxx,
XX 00000-0000
|
|
Fax
No. (000) 000-0000
|
|
Attention:
Chairman, Board of Directors
|
|
Copy
to:
|
Xxxxxxx
Coie LLP
|
|
0000
XX Xxxxx Xxxxxx, Xxxxx Xxxxx
|
|
Xxxxxxxx,
XX 00000-0000
|
|
Attention:
Xxxxx Xxxxxxxx
|
|
Facsimile
No.: 000-000-0000
|
If
notice
is mailed, such notice shall be effective upon mailing, if such notice is sent
by overnight delivery, such notice shall be effective upon the next business
day
following delivery to the courier service, or if notice is personally delivered
or sent by telecopy or other electronic facsimile transmission, it shall be
effective upon receipt.
|
11.
|
ASSIGNMENT
|
This
Agreement is personal to Executive and shall not be assignable by Executive.
Employer may assign its rights hereunder to (a) any corporation resulting
from any merger, consolidation or other reorganization to which Employer is
a
party or (b) any corporation, partnership, association or other person to
which Employer may transfer all or substantially all of the assets and business
of Employer existing at such time. All of the terms and provisions of this
Agreement shall be binding upon and shall inure to the benefit of and be
enforceable by the parties hereto and their respective successors, heirs, legal
representatives and permitted assigns.
|
12.
|
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.
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|
13.
|
ARBITRATION
|
Subject
to the provisions of subparagraph 8.7 hereof, any controversies or claims
arising out of or relating to this Agreement shall be fully and finally settled
by arbitration in Portland, Oregon, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in effect (the
"AAA Rules"), conducted by one arbitrator either mutually agreed upon by
Employer and Executive or chosen in accordance with the AAA Rules, except that
(a) the parties thereto shall have any right to discovery as would be permitted
by the Federal Rules of Civil Procedure for a period of 90 days following the
commencement of such arbitration and the arbitrator thereof shall resolve any
dispute which arises in connection with such discovery and (b) the arbitration
may be conducted by AAA or by such other arbitration service as the parties
agree. The prevailing party shall be entitled to costs, expenses and reasonable
attorneys' fees, and judgment upon the award rendered by the arbitrator may
be
entered in any court having jurisdiction thereof.
|
14.
|
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 Employer
and
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 Employer and Executive.
|
15.
|
APPLICABLE
LAW; VENUE
|
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 Oregon, without regard to any rules governing conflicts
of laws. Subject to paragraph 13, the parties irrevocably consent to the
exclusive jurisdiction and venue of the state and federal courts located
in
Multnomah County, Oregon in connection with any action relating to this
Agreement.
|
16.
|
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.
|
17.
|
HEADINGS
|
All
headings used herein are for convenience only and shall not in any way affect
the construction of, or be taken into consideration in interpreting, this
Agreement.
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|
18.
|
COUNTERPARTS
|
This
Agreement, and any amendment or modification entered into pursuant to paragraph
14 hereof, may be executed in any number of counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an original
and all of which counterparts, taken together, shall constitute one and the
same
instrument.
|
19.
|
ENTIRE
AGREEMENT
|
This
Agreement on and as of the date hereof constitutes the entire agreement between
Employer and Executive with respect to the subject matter hereof and all prior
or contemporaneous oral or written communications, understandings or agreements
between Employer and Executive with respect to such subject matter are hereby
superseded and nullified in their entireties.
[Remainder
of This Page Intentionally Left Blank.]
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IN
WITNESS WHEREOF, the parties have executed and entered into this Employment
Agreement on the date set forth above.
EXECUTIVE:
/s/
XXXXXXX
XXXXXX XXXX
Name:
Xxxxxxx Xxxxxx Xxxx
EMPLOYER:
SYNTHETECH,
INC.
By:
/s/ XX. XXXXXX X. XXXXX
Title:
Chairman of the Board of Directors
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Schedule
A
to
NONE
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