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EXHIBIT 10.21
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the date last written below by and between
Genencor International, Inc. ("GCI"), a Delaware Corporation with a principal
office at 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000-0000 and _________
("Employee"), residing at ______________.
WHEREAS, GCI desires to employ the Employee and the Employee desires to
work for GCI, and GCI and the Employee desire to define the terms and conditions
under which GCI will employ the Employee.
NOW, THEREFORE, the parties hereby covenant and agree as follows:
1. GCI hereby employs the Employee as _________________________ to
perform such duties consistent with his title and position as may be determined
and assigned to him by the Chief Executive Officer or the Board of Directors of
GCI.
2. The Employee agrees to devote substantially all of his professional
employment time and effort to the performance of his duties as such
____________________ for GCI and to perform such other duties consistent with
his title and position as are reasonably assigned him from time to time by the
Chief Executive Officer or Board of Directors of GCI.
3. Unless terminated earlier by GCI or Employee in writing, as
hereinafter specifically provided, the term of this Agreement shall be one (1)
year from the last date written below and will be automatically renewed for
incremental one-year periods thereafter. A review of the Employee's total
compensation based on GCI's assessment of the Employee's contributions to GCI's
performance will be conducted at least each year following submission of GCI's
audited financial results to the Board of Directors of GCI.
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4. For all the services to be rendered by the Employee in any capacity
hereunder, including services as an officer, director, member of any committee
or any other duties assigned him by the Chief Executive Officer or Board of
Directors of GCI, GCI agrees to pay the Employee a salary of $_______ per annum,
payable in accordance with the customary payroll payment practices of GCI. The
foregoing annual compensation amount may be, from time to time, increased by
action of the Chief Executive Officer. Such action with respect to annual
compensation shall constitute an amendment to this Agreement. It is understood
and agreed that the granting of a cash bonus for performance in any given year
shall not constitute an amendment to this Agreement.
5. GCI and the Employee hereby agree that nothing contained herein is
intended to or shall be deemed to affect any of the Employee's rights as a
participant under any retirement, stock option, stock purchase, pension,
insurance, profit-sharing, bonus or similar plans of GCI now or hereafter
declared to be in effect. GCI recognizes that the Employee is induced to execute
this Agreement and to accept compensation at the rate set forth herein in part
because he expects to be a participant under such plans as are, from time to
time, in effect for the Company's executives and/or employees in general.
6. The Employee agrees to execute and be bound by an Employee
Confidentiality, Non-Disclosure, Non-Competition Agreement in the form attached
hereto as Exhibit A; the Invention Disclosure/Assignment Agreement attached as
Exhibit B; and Form of Confidentiality Agreement attached as Exhibit C; and
whether employed by GCI or not, agrees to execute Exhibit C at any time at the
direction of the Chief Executive Officer or Board of Directors of GCI in order
to avoid disclosure of confidential information [as defined in Exhibit A,
paragraph (1)] as this Exhibit is needed at a future date. The terms of each
Exhibit are hereby incorporated by reference and made a part hereof.
7. This Agreement may be terminated by GCI before the expiration of the
term provided for herein if, during the term of this Agreement, the Employee (a)
materially violates the provisions of Exhibits A and/or B as executed (exhibits
incorporated by reference herein); or (b) refuses to execute Exhibit C as
subsequently directed, (exhibit incorporated by reference herein); (c) is
convicted in a court of law of a felony or any crime involving misuse or
misappropriation of money or other property of GCI; (d) exhibits repeated
willful or wanton failure or refusal to perform
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his duties in furtherance of GCI's business interest or in accordance with this
Agreement which failure or refusal is not remedied by the Employee within thirty
(30) days after notice from the Company; (e) commits an intentional tort against
GCI; (f) commits any flagrant act of dishonesty or disloyalty or any act
involving gross moral turpitude which materially adversely affects the business
of GCI; or (g) exhibits immoderate use of alcohol or drugs which, in the opinion
of an independent physician, impairs the Employee's ability to perform his
duties hereunder (all of the foregoing clauses (a) through (g) constituting
reasons for termination "for cause") provided that unsatisfactory business
performance of GCI, or mere inefficiency, or good faith errors in judgment or
discretion by the Employee shall not constitute grounds for termination for
cause hereunder. In the event of such termination for cause, GCI may on ten (10)
days' notice then terminate his employment and, in that event, GCI shall be
obligated only to pay the Employee the compensation due him up to the date of
termination, all accrued, vested or earned benefits under any applicable benefit
plan and any other compensation to which the Employee is entitled under this
Agreement up to and ending on the date of the Employee's termination.
The benefits and compensation outlined in this paragraph 7 are
likewise the only compensation and benefits which the Employee will receive if
the Employee voluntarily terminates his employment. Employee agrees to give GCI
three (3) months' notice prior to resignation, voluntarily quitting, etc., and
in exchange GCI agrees to pay Employee for this period.
8. Except for termination for cause as defined in paragraph 7 above (or
voluntary termination by the Employee), in the event the Employee is terminated
by GCI at any time prior to the end of the term of the Agreement, or prior to
the end of any renewal period, for any other reason(s), including but not
limited to a change in the ownership or control of GCI, such as may occur
through divestiture, merger, acquisitions, consolidation or takeover, or due to
the unilateral capricious action of the Chief Executive Officer, or due to a
substantial reduction in the duties to be performed by the Employee resulting in
actual or constructive removal from the position held by Employee on the
effective date of this Agreement, or due to substantial change in the financial
conditions of GCI as evidenced by GCI filing a petition for reorganization under
any bankruptcy, insolvency, reorganization or similar law or making an
assignment for the benefit of creditors, then the Employee shall, upon such
termination, receive Termination Compensation, including (a) the then current
salary (excluding non-recurring bonuses) paid the Employee payable for eighteen
(18) months, unless the Employee becomes employed by a competitor as defined in
Exhibit A (page 2) during that period lasting up to 24 months; and (b)
continuation of all company-paid benefits or additional compensation sufficient
for the Employee to acquire equivalent benefits for the same eighteen (18)
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month period; and (c) customary outplacement services limited to $12,000.
Notwithstanding the foregoing, GCI shall be entitled, by providing
notice in writing to the Employee, to terminate his employment under this
Agreement if the Employee shall become permanently disabled such that he is
unable to carry out his duties hereunder for four (4) consecutive calendar
months or for a period aggregating one hundred twenty (120) days in any period
of twelve (12) consecutive calendar months. If the Employee is approved to
receive benefits under GCI's LTD Plan, then GCI will pay the Employee additional
compensation so that the total equals the Termination Compensation described in
this paragraph 8 for the eighteen (18) month term. If the Employee is not
approved to receive benefits under GCI's LTD Plan, then he will, upon
termination of his employment, be entitled to receive the full Termination
Compensation as described in this paragraph 8. Any delay or forbearance by the
Company in exercising any such right to terminate this Agreement shall not
constitute a waiver thereof.
All Termination Compensation paid, if any, shall be payable in
accordance with the customary payroll practices of GCI unless GCI and the
Employee agree that GCI shall make one lump-sum payment at a time and in an
amount agreeable to both. The Employee's entitlement to Termination Compensation
payment as provided herein shall be in addition to any rights the Employee may
have to payments or participation under any retirement, stock option, stock
purchase, pension, insurance, profit-sharing, bonus or similar plans applicable
to the Employee or employees in general, as defined in the appropriate Plan
Documents. In addition, if GCI provides notice that this Agreement is
terminated, GCI shall have no additional obligations hereunder, other than to
pay to the Employee (a) any unpaid amount of accrued salary (as defined) in
paragraph 4 on page 2 herein); (b) any unpaid amount of accrued vacation pay in
accordance with GCI policy; (c) a pro rata amount of any vested incentive
compensation that shall be awarded the Employee pursuant to GCI policy; and (d)
other obligations which may be owed the Employee under a specific provision of
this agreement.
9. This Agreement shall be construed and performed in accordance to the
laws of the State of California.
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10. All notices provided for or permitted to be given pursuant to this
Agreement must be in writing. All notices shall be personally delivered or sent
by registered or certified mail to GCI or the Employee at the address set forth
above or to such other address as GCI or the Employee may notify the other in
accordance with the provisions of this section, or the last known permanent
residence. Any such notice so sent by mail shall be deemed made or given upon
mailing.
11. This Agreement contains the sole and entire agreement of the parties
and supersedes all prior agreements and understandings between the Employee and
GCI and cannot be modified or changed by any oral or verbal promise or statement
by whomsoever made; nor shall any written modification of it be binding upon GCI
until such written modification shall have been approved in writing by the Chief
Executive Officer or Chairman of the Board of Directors of GCI.
12. In the event any term or condition contained in this Agreement
should be breached by any party and thereafter waived or consented to by the
other party, such waiver or consent shall be limited to the particular breach so
waived or consented to and shall not be deemed to waive or consent to any other
breach occurring prior or subsequent to the breach so waived or consented to.
13. If any provisions of this Agreement or the application thereof to
any person or circumstances shall be invalid or unenforceable to any extent, the
remainder of this Agreement and the application of such provisions to other
persons or circumstances shall not be affected thereby and shall be enforced to
the extent permitted by law.
14. The provisions hereof, including without limitation those
incorporated herein pursuant to Section 6, which are to be performed or observed
after the termination of this Agreement, and the representations, covenants and
agreements of the parties contained herein with respect thereto shall survive
the termination of this Agreement and be effective according to their terms.
15. All of the terms and provisions of this Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by and against the
parties to this Agreement and the respective heirs, executors, and successors in
interest; provided, however, that the duties of the Employee hereunder are
personal in nature and may not be delegated without a written consent of the
Company.
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16. This Agreement, including its existence and the terms thereof, is
considered confidential business information by GCI and the Employee agrees for
the period of his employment hereunder and for twenty-four (24) months
thereafter not to disclose same to any other person or entity. The foregoing
confidentiality restriction shall be subject to the same exceptions as are set
forth in Exhibit A, section 1.
17. This Agreement, and the rights and benefits contained herein, may
not be assigned by either party hereto.
18. The Employee shall be based in Palo Alto, California. The Employee
may be transferred at any time as the Company shall determine, upon six months'
prior written notice to the Employee.
IN WITNESS WHEREOF, GCI has caused this Agreement to be executed by its
President, and the Employee has hereunto set his hand as of the day and year
last written below.
GENENCOR INTERNATIONAL, INC.
By:
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W. Xxxxxx Xxxxxxxx, President
By:
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Employee
Date:
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EXHIBIT A
OFFICER CONFIDENTIALITY, NON-DISCLOSURE
AND NON-COMPETITION AGREEMENT
THIS AGREEMENT is made as of the date last written below by and between
Genencor International, Inc. ("GCI"), a Delaware Corporation having a principal
office at 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000-0000 and __________
("Employee"), residing at _________________.
WHEREAS, the Employee is an employee of GCI who, during the course of such
employment, will be working upon and have access to certain confidential
information, processes, technical data, trade secrets, know-how and other
business information of a confidential nature belonging to GCI; and
WHEREAS, GCI and the Employee wish to enter into certain covenants to
preserve and xxxxxx their respective business interests and, in certain
respects, their future cooperation with their fellow employees; and
WHEREAS, employees similarly situated as the Employee are separately
covenanting and agreeing not to compete with GCI should they leave the
employment of GCI under certain defined circumstances; and
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants herein contained, and in consideration of GCI's employment of the
Employee for such period or periods as may from time to time be mutually agreed
upon, and of the wages or salary paid or agreed to be paid to the Employee, and
other good and valuable consideration, the adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. Confidentiality and Non-Disclosure. The Employee agrees and covenants
that he will not, at any time during his employment by GCI and for a period of
five (5) years after his employment without the prior written authorization of
GCI, disclose to any unauthorized person any formulas, methods, compositions,
trade secrets, secret processes, technical data, confidential business
information or other know-how or matters of a secret, proprietary or
confidential nature
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relating to GCI or its business which the Employee gained access to or knowledge
of during or by reason of his employment with GCI. The foregoing obligations
regarding non-disclosure shall not apply to information which: (a) was in the
Employee's possession before receipt from GCI; or (b) is or becomes a matter of
public knowledge through no fault of the Employee; (c) is disclosed by GCI to a
third party without duty of confidentiality on the third party; or (d) is
disclosed under operation of law, if possible in conformity with Exhibit C.
2. Non-competition.
A. In the event of the Employee's voluntary withdrawal from GCI's
employment or GCI's discharge of the Employee for cause as defined in paragraph
7 of the Employment Agreement to which this Exhibit A is appended, until the
expiration of a 24 month period commencing on the date of the termination of his
employment, the Employee shall not engage or compete directly or indirectly, as
a principal, on his own account, or as a shareholder in, or employee of, any
corporation or legal entity selling, manufacturing or developing products in the
field of Industrial Enzymes which are or may be competitive with those marketed
or being developed by GCI on the date of the termination of his employment. (If
the Employee is unaware of GCI's development of any projects at the time of the
termination of his employment, GCI retains the discretion as to whether to
inform the Employee of products it is then developing or considering to develop,
but if GCI chooses not to inform the Employee of the development of any project
currently being pursued or considered by GCI, all of which are unknown by the
Employee, this will not bar the Employee from obtaining employment with a
competitor.) The foregoing non-compete restrictions shall likewise apply to
employment or competition in any other field of business in which, on the date
of employment termination, GCI is manufacturing or selling products in commerce,
or for use in commerce, in excess of 10.0 Million U.S. Dollars annually or has
committed to commercialize with internal resource expenditures in excess of 5.0
Million U.S. Dollars or has signed a binding contract with a third party
concerning such other field of business in which the value to be received by GCI
is in excess of 5.0 Million U.S. Dollars. The Employee, further, shall not
extend credit or lend money for the purpose of establishing or operating any
such business, nor furnish any information (including the information subject to
the restriction in paragraph l above) or give advice, either directly or
indirectly, to any such third party, corporation or business entity of any kind.
The non-compete
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restrictions of this paragraph A shall apply, in the case of a large corporation
conducting business in diverse business fields, only to employment or
competition in that unit, division, subsidiary or other part of such corporation
(or other legal entity) in competition with GCI in the fields defined herein and
shall not preclude Employee from being engaged or employed by such corporation
in other non-competitive fields as provided for in paragraph 4.
If the Employee is involuntarily terminated without cause, he will
receive Termination Compensation for the period specified unless he becomes
employed by a competitor as previously defined herein. At that time, all
compensation from GCI ceases.
For a period of twenty-four (24) months following the Employee's
termination from GCI, the Employee agrees to disclose the name of any employer
to the Chief Executive Officer two weeks in advance of his employment with any
competitor, non-competitor, business or his embarking upon self-employment or
consulting.
B. It is recognized by GCI and the Employee that his efforts, and
those of his fellow employees are critically important to the overall
profitability of GCI. The future profitability of GCI is also linked to the
continuing services of the Employee and the covenant of the Employee not to
compete with GCI should he choose to leave the employ of GCI.
C. It is understood and agreed that the present and proposed business
of GCI is becoming increasingly competitive and that there is an ever increasing
risk that competing companies may seek to hire the employees of GCI who are
critical to its continued success, not only because of the abilities of such
employees, but also because of the proprietary knowledge acquired by such
employees while at GCI.
3. Exception for Publicly-Traded Companies. The foregoing agreement not to
compete shall not prohibit any Employee from owning stock as an investment,
debentures, warrants or similar instruments in any company whose stock is traded
on a national securities exchange or over-the-counter so long as such ownership
interest is less than five percent (5%) of the outstanding and traded stock,
debentures or warrants, as the case may be.
4. Alternative Employment. The foregoing covenant and agreement is not
intended to and shall not prevent the Employee from seeking or accepting
alternative employment with other business entities, customers or suppliers of
GCI so long as such business entities, customers or suppliers are not in the
business of selling, manufacturing or developing products in the field of
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Xxxxxxxxxx Xxxxxxx or products in other field(s) of business as referred to
above which are or may be competitive with those being marketed, developed or
proposed for development by GCI within two (2) years after the date of the
termination of the Employee's employment.
5. Equitable and Legal Remedies. The parties hereto agree that no remedy of
law will be adequate to compensate GCI for a violation of this Agreement; and
the Employee hereby agrees that in addition to any legal or other rights that
may be available in the event of a breach hereunder, GCI may seek equitable
relief to enforce this Agreement in any court of competent jurisdiction. Any
actions or proceedings brought regarding this Agreement shall be venued in the
Northern District of California.
6. Miscellaneous.
A. This Agreement and all rights and obligations hereunder shall be
governed and construed in accordance with the laws of the State of California.
B. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective legal representatives, successor and
assigns.
C. This Agreement shall not be modified, amended, assigned, canceled
or superseded except in writing signed by GCI and the Employee.
D. This Agreement contains the entire agreement between the parties
relating to the subject matter hereof and supersedes and cancels all prior or
collateral agreements, proposals and understandings, whether written or oral,
relating to the subject matter hereof.
E. No failure on the part of GCI or of the Employee to exercise, and
no delay in exercising any right or remedy hereunder shall operate as a waiver
thereof or of any other right or remedy; nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or of any right
or remedy.
F. If any provision of this Agreement shall be prohibited by or be
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or
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invalidity without invalidating the remainder of such provision or the remaining
provisions of this Agreement.
G. All notices, requests and demands shall be in writing by certified
mail, return receipt requested, addressed to the respective parties hereto at
their respective addresses first hereinabove set forth or to such other address
as either party shall designate in a written notice similarly given to the other
party.
H. The masculine pronoun, wherever used herein, shall be construed to
include the feminine and the neuter, where appropriate. The singular form,
wherever used herein, shall be construed to include the plural, where
appropriate.
I. This Agreement may be executed in two counterparts, each of which
shall be deemed an original and constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date last written below.
GENENCOR INTERNATIONAL, INC.
By:
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W. Xxxxxx Xxxxxxxx, President
By:
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Employee
Date:
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EXHIBIT B
INVENTION DISCLOSURE/ASSIGNMENT AGREEMENT
It is my understanding that Genencor International, Inc., (hereinafter
called "GCI") is engaged in the business of industrial biotechnology, including
research, development and manufacturing. I also understand that, as is generally
customary, GCI requires its employees to assign to it all right, title and
interest in and to all inventions, discoveries, improvements and copyrightable
subject matter (hereinafter separate or collectively called "rights") in the
field of employment of its various employees and that it is essential for the
full protection of the business of GCI that employees shall not disclose
classified or confidential or proprietary Company information regarding such
business, with which information they have or may become acquainted during the
period of their employment.
Therefore, in consideration of my employment or continued employment by
GCI during such time as I may be employed by GCI, and of the wages or salary and
other benefits to be received by me in respect to such employment, it is
understood and agreed as follows:
I hereby do and will sell, assign and transfer to GCI all of my
right, title and interest in and to all said rights which, during, or within two
years after the termination of, my employment by GCI, have been or may be made
or conceived by me, alone or with others, and within or arising out of any field
of employment in which I have worked or shall work for GCI or arising out of any
information regarding the business of GCI which has been or may be received by
me while in GCI's employment.
I will fully disclose to GCI as promptly as available all information
known or possessed by me concerning the rights mentioned in the preceding
paragraph; and, upon request of GCI and without further remuneration to me by
GCI, but at the expense of GCI, I will execute all applications for patents and
for copyright registration, assignments thereof and other instruments, and do
all things which GCI may deem necessary to vest and maintain in it my entire
right, title and interest in and to all such rights.
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This agreement replaces all previous agreements relating to the same or
similar matters which I may have entered into with GCI with respect to my
present and future period of employment by GCI. It shall inure to the benefit of
the successors and assigns of GCI, and shall be binding upon my heirs, assigns,
administrators and representatives. No oral agreement, statement or
representation shall alter the provisions of this agreement.
Date: , 19
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(Signature of Employee)
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(Address)
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[TO BE SIGNED ONLY IF LATER
REQUESTED TO DO SO PURSUANT
TO PAR. 6 OF THE AGREEMENT.]
EXHIBIT C
FORM OF CONFIDENTIALITY AGREEMENT
Confidentiality Agreement between Genencor International, Inc., a
corporation incorporated and existing under the laws of Delaware and having a
principal office in Palo Alto, California (hereinafter referred to as "GCI") and
_______________ (hereinafter referred to as "Employee").
WHEREAS the Employee desires to obtain or elicit confidential testimony
or documents from GCI for the purpose of litigation or arbitration between or
among _____________ and GCI who desires to maintain the confidentiality of said
testimony or documents.
THEREFORE, in consideration of the foregoing and of the mutual promises
hereinafter set forth, and of other good and valuable considerations the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. All testimony or documents generated, produced, referred to, or
elicited in the course of the litigation or arbitration may, as appropriate, be
designated by either GCI or the Employee to be confidential ("Confidential
Material"). The party producing a document may designate it as Confidential
Material by marking it with the notation "CONFIDENTIAL." The party may designate
testimony as Confidential Information at the time of the deposition or testimony
of a representative of a party. Testimony so designated shall be transcribed
separately from the rest of the deposition. Alternatively, a party may designate
testimony as Confidential Information by written advice to all parties of the
pages and lines of the transcript so designated, within thirty (30) days of the
receipt by counsel of such transcript, in which event the portion designated
confidential shall be removed from the transcript and transcribed separately.
During said thirty (30) day period, all testimony shall be deemed and treated as
Confidential Information unless otherwise instructed by designating counsel or
the court or arbitration panel.
2. Confidential Material and any information derived therefrom which
tends to reveal the contents of Confidential Material may be inspected or used
only for the purposes of this
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action and only by: (a) the attorneys for the parties and persons regularly
employed by them; (b) the parties; (c) any person employed to assist the
aforementioned persons in connection with the preparation and trial or
arbitration of this action and any appellate or judicial review; and (d) the
respective court or arbitration panel before which this action is pending, court
or arbitration employees, court reporters, stenographic reporters and members of
the jury or arbitration panel. No other person shall have access to Confidential
Material or be informed of the contents thereof. If appellate or judicial review
is pursued, Confidential material may be included in the record under appeal or
review, but is, if at all possible, to be "sealed," marked CONFIDENTIAL, and not
made available for public review.
3. Confidential Material in the form of testimony or documents,
including any copies thereof, shall be returned to the party who produced or
generated them either within 30 days following the completion of the trial or
arbitration, or, if appellate or judicial review is pursued, within 30 days
following entry of a final order dispositive of the matter and the time for any
further appeal has expired or the order is otherwise unappealable.
Dated:
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GENENCOR INTERNATIONAL, INC.
By:
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Name:
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Title:
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