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EXHIBIT 10.h
The EMPLOYMENT AGREEMENT originally dated October 1, 2000, is hereby
amended and restated in its entirety as of the 1st day of October, 2000 by and
between CRYOMEDICAL SCIENCES, INC., a Delaware corporation (hereinafter
referred to as the "Company"), and Xxxx X. Xxxxx, residing at 000 Xxxxx Xxxx
Xxxx, Xxxxxx, XX 00000 (hereinafter referred to as "Employee").
W I T N E S S E T H:
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
The Company hereby employs Employee, and Employee hereby accepts
employment with the Company, as Senior Vice President and Chief Scientific
Officer, on the terms and conditions herein set forth.
2. Term of Agreement
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 September 30, 2001 (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
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Employee, in 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
During the Employment Period, Employee shall perform such
functions as are normally carried out by the Senior Vice President
and Chief Scientific Officer of a business of the type in which the
Company is engaged, and such other functions as the Chairman and CEO
shall from time to time reasonably determine. Employee shall devote
his time, energies and abilities 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. Nothing contained
herein shall preclude the Employee from devoting his time, energies
and abilities to his position at SUNY-Binghamton. Employee covenants
and agrees that he will faithfully adhere to and fulfill such
policies as are established from time to time by the Chairman and
CEO. Employee shall not be assigned, by the Chairman and CEO,
responsibilities, in any material manner, inconsistent with his
position as Senior Vice President and Chief Scientific Officer.
4. Compensation
4.1 During the Employment Period, Employee's base salary shall
be in the amount of $180,000 per annum, payable in accordance with
the Company's normal payroll procedures.
4.2 During the Employment Period, in addition to Employee's
base salary, Employee shall be entitled to bonuses as follows:
(a) Upon commercial shipment of the "800" Series-$15,000
(b) Upon receipt of 510(k) approval for abdominal organ
solutions-$15,000
(c) Upon receipt of 510(k) approval for islet preservation
solution-$15,000.
4.3 During the Employment Period, Employee shall be entitled
to a non
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accountable automobile allowance of $600.00 per month.
4.4 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.
4.5 The Company shall reimburse Employee on a timely basis 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.
4.6 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
Employee shall be entitled to stock options as may from time to time
be granted by the Board of Directors of the Company in their sole and absolute
discretion.
6. Termination
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 Chairman and CEO
and the Board of Directors of the Company to Employee in the event that
Employee becomes physically or mentally disabled ("Disability") during the
Employment Period such that (a) in the Chairman's and CEO's and the 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
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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 Chairman
and CEO and the Board for cause. For purposes of this Agreement, "cause"
shall mean the following: the commission of a felony, 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 Chairman and CEO 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 wilful engaging by Employee in misconduct materially injurious to the
Company.
6.5 In the event any one of the foregoing events shall occur, the
Company shall be obligated to pay to Employee the compensation due him under
Section 4 hereof up to the date of termination only and Employee shall not be
entitled to receive any additional compensation of any nature whatsoever.
6.6 In the event that Employee's employment with the Company is
terminated by the Chairman and CEO and the Board during the Employment Period
for a reason other than as is set forth above in Sections 6.1 through 6.4, the
Company shall be required to continue to pay Employee the salary provided for
in Section 4.1 hereof for a period of one (1) year.
7. Non Competition
7.1 In view of the unique and valuable services that Employee has
rendered and is expected to render to the Company, the 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
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his employment with the Company and in consideration of the compensation to be
received by Employee hereunder, Employee agrees that (a) during the Employment
Period and for a period of twenty four months immediately following the
termination or expiration thereof (the Employment Period and the subsequent
twenty four month period being hereinafter collectively referred to as the
"Covenant 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; provided, however, that Employee
shall be permitted after the cessation of his employment but during the
Covenant Period to own less than a 5% interest as a shareholder in any company
which is listed on any national securities exchange even though it may be in
competition with the Company, and (b) during the Covenant Period, he will not,
directly or indirectly (through the use of students or otherwise), perform
services that in any manner benefits a competitor of the Company in the field
of tissue, cell or organ preservation; provided that Employee may participate
in University sponsored lectures that may indirectly have the effect of
benefiting competitors of the Company.
7.2 Employee will not, during the Covenant Period, 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.
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
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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
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
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) Biolife Solutions, Inc., an affiliate of the Company, and (b) 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 (i) the assignee
shall assume, either expressly or by operation of law, all of the Company's
obligations hereunder, and (ii) in the event the shareholders of the Company do
not own more than fifty percent (50%) of the voting rights of the new entity,
the Employee shall have consented to such assignment.
10. Waiver
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
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
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
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:
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XXXXXXX X. XXXXXXXX
CHAIRMAN AND CEO
APPROVED
FOR THE BOARD OF DIRECTORS
BY:
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