EXHIBIT 10.1
EMPLOYMENT AGREEMENT made as of the 1st day of July, 2002 by and
between CRYOMEDICAL SCIENCES, INC., a Delaware corporation (hereinafter referred
to as the "Company"), and Xxxx X. Xxxxx, residing at c/o BioLife Solutions,
Inc., Xxxxx 000, XXX 0, XXXX Xxxx, Xxxxxxxxxx, XX 00000 (hereinafter referred to
as "Employee").
W I T N E S S E T H:
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WHEREAS, the Company desires to employ Employee, and Employee is
willing to accept such employment, all on the terms and subject to the
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the terms and conditions
hereinafter set forth, the parties hereto agree as follows:
1. Employment
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The Company hereby employs Employee, and Employee hereby
accepts employment with the Company, as President and Chief Executive Officer,
on the terms and conditions herein set forth.
2. Term of Agreement
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Unless terminated sooner pursuant to the express provisions
hereof, the term of employment hereunder shall commence on the date hereof (the
"Commencement Date"), shall continue through June 30, 2004 (the "Original
Term"), and shall be automatically extended for two additional one-year periods
upon the terms and subject to the conditions contained herein, unless (a) the
Original Term is terminated pursuant to Section 6 hereof (or otherwise), or (b)
not less than 90 days prior to the commencement of any such one-year period the
Company notifies Employee, in
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writing, that the term of employment shall not be extended. The period
commencing with the Commencement Date through the end of the term of Employee's
employment hereunder is hereinafter referred to as the "Employment Period."
3. Duties
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During the Employment Period, Employee shall perform such
functions as are normally carried out by the President and Chief Executive
Officer of a business of the type in which the Company is engaged, and such
other functions as the Board of Directors of the Company (the "Board") shall
from time to time reasonably determine. Employee shall devote his energies and
abilities exclusively to the Company's business pursuant to, and in accordance
with, reasonable business policies and procedures, as fixed from time to time by
the Board; provided, however, that Employee may continue to devote his time,
energies and abilities to his position at SUNY-Binghamton to the same extent as
Employee is currently doing so. Employee covenants and agrees that he will
faithfully adhere to and fulfill such policies as are established from time to
time by the Board of Directors. Employee shall not be assigned, by the Board of
Directors, responsibilities, in any material manner, inconsistent with his
position as President and Chief Executive Officer.
4. Compensation
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4.1 Upon the Commencement Date, Employee will be paid a
"signing" bonus of $50,000.
4.2 During the Employment Period, Employee's base salary shall
be in the amount of $240,000 per annum, payable in accordance with the Company's
normal payroll procedures.
4.3 During the Employment Period, in addition to Employee's
base salary, Employee shall be entitled to annual bonuses of up to $100,000
based upon specific milestones
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to be accomplished by the Company for the ensuing year as agreed to by the Board
and Employee.
4.4 During the Employment Period, Employee shall be entitled
to a non-accountable automobile allowance of $600.00 per month.
4.5 During the Employment Period, Employee shall be entitled
to family coverage for Blue Cross/Blue Shield (or equivalent thereof) and major
medical insurance coverage.
4.6 Employee shall also be eligible, to the extent he
qualifies, to participate in such fringe benefit plans (including retirement,
pension, life or other similar employee benefit plans), if any, which the
Company may from time to time make available to its employees, provided that the
Company shall have the right from time to time to modify, terminate or replace
any and all of such plans.
4.7 The Company shall reimburse Employee for all reasonable
business expenses incurred by Employee in connection with the performance of his
duties hereunder , provided Employee submits supporting vouchers for such
expenses.
4.8 Employee shall be entitled to a four-week paid vacation
each year during the Employment Period, to be taken at such time as is
consistent with the needs of the Company and the convenience of Employee.
5. Stock Options
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On the Commencement Date, Employee shall be granted a 10 year
Stock Option, under the Company's 1998 Stock Option Plan, to purchase 1,000,000
shares of the Company's common stock, par value $.001 per share (the "Common
Stock"), at a price of $.25 per share. The Stock Option shall be exercisable
over a 10-year period to the extent of 200,000 shares commencing with the first
anniversary date of the Commencement Date and an additional 200,000 shares
commencing with each of the next four anniversary dates thereof.
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6. Termination
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The Employment Period shall terminate upon the happening of
any of the following events:
6.1 Automatically and without notice upon the death of
Employee.
6.2 Employee leaves the employ of the Company.
6.3 Upon written notice of termination from the Board of the
Company to Employee in the event that Employee becomes physically or mentally
disabled ("Disability") during the Employment Period such that (a) in Board's
good faith judgment, Employee is permanently incapable of properly performing
the duties customarily performed by him hereunder, or (b) such Disability lasts
for a period of 60 consecutive days or 90 days in any 150 day period and the
Board elects to treat such Disability as being permanent in nature;
6.4 Upon discharge of Employee, on written notice, by the
Board for cause. For purposes of this Agreement, "cause" shall mean the
following: the commission of a felony or crime involving moral turpitude or
other act causing material harm to the Corporation's standing and reputation,
failure to carry out, after reasonable written notice of such failure, the
reasonable policies of the Board as they may relate to Employee's duties
hereunder (other than for reasons beyond his control), persistent absenteeism, a
material default or breach of any of the covenants made by Employee in this
Agreement, a breach of Employee's duty of loyalty to the Company or any act of
dishonesty or fraud with respect to the Company, or the willful engaging by
Employee in misconduct materially injurious to the Company.
6.5 In the event any one of the foregoing events referred to
in Sections 6.1 through 6.4 hereof shall occur, the Company shall be obligated
to pay to Employee the compensation due him under Section 4.2 hereof up to the
date of termination only and Employee shall not be entitled to receive any
additional compensation of any nature whatsoever.
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6.6 In the event that Employee's employment with the Company
is terminated by the Board during the Employment Period for a reason other than
as is set forth above in Sections 6.1 through 6.4 hereof, the Company shall be
required to continue to pay Employee the salary provided for in Section 4.2
hereof for a period of one (1) year.
7. Non-Competition
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7.1 In view of the unique and valuable services that Employee
has rendered and is expected to render to the Company, and Employee's knowledge
of the business of the Company and proprietary information relating to the
business of the Company and similar knowledge regarding the Company that
Employee has obtained and is expected to obtain during the course of his
employment with the Company and in consideration of the compensation to be
received by Employee hereunder, Employee agrees that during the Employment
Period and for a period of twenty four months immediately following the
termination or expiration thereof (the Employment Period he will not compete
with, or, directly or indirectly, own, manage, operate, control, loan money to,
or participate in the ownership, operation or control of, or be connected with
as a director, partner, consultant, agent, independent contractor or otherwise,
or acquiesce in the use of his name in any other business or organization which
is in competition with the Company in any geographical area in which the Company
is then conducting business or any geographical area in which, to the knowledge
of Employee at the time of cessation of employment, the Company plans to conduct
business within twenty four months from the date thereof
7.2 Employee will not, during the twenty-four months following
termination, solicit or interfere with, or endeavor to entice away from the
Company, any of its employees or customers without the written consent of the
Company or unless such employee is Employee's personal secretary.
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7.3 Since a breach of the provisions of this Section 7 could
not adequately be compensated by money damages and will cause irreparable injury
to the Company, the Company shall be entitled, in addition to any other right or
remedy available to it, to an injunction or restraining order restraining such
breach or a threatened breach, and no bond or other security shall be required
in connection therewith, and Employee hereby consents to the issuance of any
such injunction or restraining order. Employee agrees that the provisions of
this Section 7 are reasonable and necessary to protect the Company and its
business. It is the desire and intent of the parties that the provisions of this
Section 7 shall be enforced to the fullest extent permitted under the public
policies and laws applied in each jurisdiction in which enforcement is sought.
If any restriction contained in this Section 7 shall be deemed to be invalid,
illegal or unenforceable by reason of the extent, duration or geographical scope
thereof, or otherwise, then the court making such determination shall have the
right to reduce such extent, duration, geographical scope or other provision
hereof and in its reduced form such restriction shall then be enforceable in the
manner contemplated hereby.
7.4 No provision of this Agreement shall be deemed to preclude
Employee from serving as a director on the board of companies not in competition
with the Company or of charitable organizations, provided, that any such
directorship or consulting activities do not reduce Employee's ability to attend
to his duties on behalf of the Company.
8. Entire Agreement
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The provisions hereof and the agreements referred to herein
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede any prior oral understanding, and no modification,
supplement or discharge hereof shall be effective unless in writing and executed
on behalf of the Company and Employee.
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9. Assignability
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This Agreement, and its rights and obligations may not be
assigned by Employee. The Company may assign any of its rights and obligations
hereunder to a successor or surviving corporation resulting from a merger or
consolidation of the Company, the sale by the Company of all or substantially
all of its assets or other similar corporate reorganization, upon condition that
the assignee shall assume, either expressly or by operation of law, all of the
Company's obligations hereunder.
10. Waiver
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No waiver by either party of any condition, term or provision
of this Agreement shall be deemed to be a waiver of any prior or succeeding
breach of the same or of any other condition, term or provision thereof.
11. Notices
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All notices required or permitted to be given by either party
hereunder shall be in writing and mailed by registered mail, return receipt
requested, to the other party at the address set forth above or such different
address as may be given by notice as provided for herein. Any notice mailed as
provided above shall be deemed given seven (7) days after the date of mailing or
on the date of receipt, whichever is sooner.
12. Counterparts
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This Agreement may be executed in several counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
13. Construction
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This Agreement shall be construed in accordance with the laws
of the State of Delaware.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
/s/ Xxxx X. Xxxxx
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XXXX X. XXXXX
CRYOMEDICAL SCIENCES, INC.
By:/s/ Xxxxxx Xxx Xxxxxxx
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Authorized Signatory
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