Exhibit 10.26
EMPLOYMENT AGREEMENT
AGREEMENT dated as of the 1st day of February, 2000 between Xxxx
Laboratories, Inc., a New York corporation having its principal executive
offices at Xxx Xxxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000 (the "Company"), and
Xxxxxxxxx X. Xxxxxxx (the "Employee").
WITNESSETH:
WHEREAS, the Company wishes to assure itself of the services of the
Employee and provide an inducement for the Employee to enter into its employ;
and
WHEREAS, the Employee is willing to serve in the employ of the Company for
the period and on the other terms and conditions hereafter set forth;
NOW, THEREFORE, the Company and the Employee hereby agree as follows:
1. Employment. The Company agrees to employ the Employee, and the Employee
agrees to enter into and remain in the employ of the Company, during the term of
this Agreement and on the other terms and conditions hereafter set forth.
2. Term. The term of this Agreement shall commence on February 1, 2000,
(the "Commencement Date") and shall terminate at the close of business on the
third anniversary of the Commencement Date unless sooner terminated in
accordance with the terms of this Agreement or extended as hereinafter provided.
The term of this Agreement shall be extended automatically, without further
action by the Company or the Employee, on the date which is six months before
the third anniversary of the Commencement Date and on the date which is six
months before each subsequent anniversary of the Commencement Date (the
"Extension Date") for successive periods of twelve months each, unless either
party shall have given written notice to the other party, in the manner set
forth in paragraph 8(e) or (f) below, prior to the Extension Date in question,
that the term then in effect is not to be extended or further extended, as the
case may be.
3. Positions and Responsibilities; Place of Performance. During the term
of this Agreement, the Employee agrees to serve the Company and the Company
agrees to employ the Employee as its Vice President, Quality and Regulatory
Counsel, reporting to the President and Chief Operating Office ("COO") . In that
capacity, she shall be responsible for managing and supervising, and shall have
responsibility for, the day-to-day management of the quality program of the
Company, subject to the authority of the COO, and the Board, and shall have all
the powers, authority, duties and responsibilities usually incident to the
position and role of Vice President, Quality and Regulatory Counsel, including
but not limited to responsibility for and authority with respect to and
performing such other reasonable duties, consistent with the position of Vice
President, Quality and Regulatory Counsel, as may lawfully be assigned to her by
the COO, or the
Board of Directors of the Company (the "Board"). In connection with her
employment by the Company, the Employee shall be based at the principal
executive offices of the Company in Blauvelt, New York. During the term of this
Agreement, the Employee shall devote all her business time, attention, skill and
efforts to the faithful performance of her duties hereunder.
4. Compensation. For all services rendered by the Employee in any capacity
during the term of this Agreement, and for her undertakings with respect to
confidential information set forth in paragraph 6 below, the Employee shall be
entitled to the following:
(a) a salary, payable in installments not less frequent than monthly,
at the annual rate of $180,000.00, with increases in such rate in accordance
with the Company's regular administrative practices applicable to senior
officers from time to time during the term of this Agreement (the annual salary
rate as increased from time to time during the term of this Agreement being
hereafter referred to as the "Base Salary"); and
(b) participation in the Company's annual executive incentive or bonus
plan as in effect from time to time, with the opportunity to receive an award in
accordance with the terms and conditions of such plan, for each fiscal year of
the Company that commences or terminates during the term of this Agreement, of
up to 40% of the Base Salary earned during such year (or such higher percentage
as the Board or a committee of the Board may prescribe from time to time during
the term of this Agreement), it being understood that any award for the fiscal
year of the Company in which the term of this Agreement commences or terminates
pursuant to the terms hereof shall be prorated based on the portion of such
fiscal year that coincides with the term of this Agreement, and that any award
for the fiscal year of the Company in which the term of this Agreement
terminates pursuant to the terms hereof shall be made at the same time as awards
(if any) are made to other participants with respect to such fiscal year; and
(c) participation in the Company's stock incentive plan as from time to
time in effect, subject to the terms and conditions of such plan;
(d) the business and personal use of an automobile at Company expense
including, without limitation, payment or reimbursement of automobile insurance
and maintenance expenses in accordance with the Company's automobile policy
applicable to senior officers on the date of this Agreement; and
(e) participation in all Company health, welfare, savings and other
employee benefit and fringe benefit plans (including vacation pay plans or
policies and life and disability insurance plans) in which other senior officers
of the Company participate during the term of this Agreement, subject in all
events to the terms and conditions of such plans as in effect from time to time.
Nothing in this paragraph (e)
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shall preclude the Company from amending or terminating any such plan at any
time. The plans covered by this paragraph (e) shall not include the annual
incentive or stock option plans, which are covered by paragraphs (b) and (c)
above.
5. Termination of Employment.
(a) Termination by the Company without Good Cause or by the Employee
for Good Reason. If during the term of this Agreement the Employee's employment
with the Company is terminated by the Company without Good Cause or is
terminated by the Employee for Good Reason other than at the expiration of the
original or any extended term of this Agreement, the Company, subject to
compliance by the Employee with the provisions of paragraph 6 below, relating to
confidential information, shall pay the Employee, as liquidated damages, and as
additional consideration for the Employee's undertakings under paragraph 6
below, a lump sum amount of money equal to 1.5 times her Base Salary. Payment
under this paragraph (a) shall be in lieu of any severance pay that may be
payable under any plan or practice of the Company.
(b) Termination by the Company for Good Cause or by the Employee
without Good Reason. If, during the term of this Agreement, the Employee's
employment by the Company is terminated by the Company for Good Cause or by the
Employee without Good Reason, the Employee shall not be entitled to receive any
compensation under paragraph 4 above acruing after the date of such termination
or any payment under paragraph 5(a) above. The provisions of this paragraph 5(b)
shall be in addition to, and not in lieu of, any other rights and remedies the
Company may have at law or in equity in respect of such termination of
employment.
(c) Good Cause Defined. For purposes of this Agreement, the Company
shall have "Good Cause" to terminate the Employee's employment during the term
of this Agreement if:
(i) the Employee materially fails to substantially perform her
duties hereunder for any reason or fails to devote substantially all her
business time to the affairs of the Company, and such failure is not
discontinued within a reasonable period of time, in no event to exceed 30 days,
after the Employee receives written notice from the Company of such failure; or
(ii) the Employee commits a material act of dishonesty resulting or
intended to result directly or indirectly in gain or personal enrichment at the
expense of the Company; or
(iii) the Employee is grossly negligent or engages in willful
misconduct or insubordination in the performance of her duties hereunder; or
(iv) the Employee breaches her obligations under paragraph 6 below,
relating to confidential information.
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(d) Good Reason Defined. For purposes of this Agreement, the Employee
shall have "Good Reason" to terminate her employment during the term of this
Agreement if:
(i) the Company fails to provide compensation or benefits that the
Company is obligated to provide under paragraph 4 above and the failure is not
remedied within 30 days after the Company receives written notice from the
Employee of such failure; or
(ii) the Company assigns the Employee duties, responsibilities or
reporting relationships not contemplated by paragraph 3 above without her
consent, or limits her duties or responsibilities contemplated by paragraph 3
above in any respect materially detrimental to her, and in either case the
situation is not remedied within 30 days after the Company receives written
notice from the Employee of the situation;
(iii) she is removed from, or not elected or reelected to, the
office of Vice President, Quality or Regulatory Counsel, or
(iv) the Company requires the Employee to relocate outside the
Metropolitan area of New York City and the Employee declines to do so.
6. Confidential Information. The Employee agrees not to disclose, either
while in the Company's employ or at any time thereafter, to any person not
employed by the Company, or not engaged to render services to the Company,
except with the prior written consent of an authorized officer of the Company or
as necessary or appropriate for the performance of her duties hereunder, any
material confidential information obtained by her while in the employ of the
Company, including, without limitation, information relating to any of the
inventions, processes, formulae, plans, devices, compilations of information,
research, methods of distribution, suppliers, customers, client relationships,
marketing strategies or trade secrets of the Company or any subsidiary thereof;
provided, however, that this provision shall not preclude the Employee from use
or disclosure of information known generally to the public or of information not
considered confidential by persons engaged in the businesses conducted by the
Company, or otherwise disclosed by the Company to any third parties, any
subsidiary of the Company, or from disclosure required by law or court order.
The Employee also agrees that upon leaving the Company's employ she will not
take with her, without the prior written consent of an authorized officer of the
Company, and she will surrender to the Company, any record, list, drawing,
blueprint, specification or other document or property of the Company or any
subsidiary thereof, together with any copy or reproduction thereof, mechanical
or otherwise, which is of a confidential nature relating to the Company or any
subsidiary thereof, or without limitation, relating to its or their methods of
distribution, suppliers, customers, client relationships, marketing strategies
or any description of any formulae or secret processes, or which was obtained by
her or entrusted to her during the course of her employment with the Company.
7. Severability
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(a) In the event that any provision of this Agreement shall be
determined to be invalid or unenforceable for any reason, the remaining
provisions of this Agreement not so invalid or unenforceable shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law; and
(b) Any provision of the Agreement which may for any reason be invalid
or unenforceable in any jurisdiction shall remain in effect and be enforceable
in any jurisdiction in which such provision shall be valid and enforceable.
8. General Provisions.
(a) No right or interest to or in any payments to be made under this
Agreement shall be subject to anticipation, alienation, sale, assignment,
encumbrance, pledge, charge or hypothecation or to execution, attachment, levy
or similar process, or assignment by operation of law.
(b) To the extent that the Employee acquires a right to receive
payments from the Company under this Agreement, such right shall be no greater
than the right of an unsecured general creditor of the Company. All payments to
be made hereunder shall be paid from the general funds of the Company and no
special or separate fund shall be established and no segregation of assets shall
be made to assure payment of any amount hereunder.
(c) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York applicable to contracts
performed wholly within the State of New York, without giving effect to the
principles of conflicts of laws of that State.
(d) This Agreement shall be binding upon and inure to the benefit of
the Company, its successors and assigns, and the Employee, her heirs, legatees,
distributees and legal representatives.
(e) Any notice or other communication to the Company pursuant to any
provision of this Agreement shall be given in writing and will be deemed to have
been delivered:
(i) when delivered in person to the Corporate Secretary or Chief
Executive Officer of the Company; or
(ii) one week after it is deposited in the United States certified
or registered mail, postage prepaid, addressed to the Corporate Secretary of the
Company at Xxx Xxxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000 or at such other address of
which the Company may from time to time give the Employee written notice in
accordance with paragraph 8(f) below.
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(f) Any notice or other communication to the Employee pursuant to any
provision of the Agreement shall be given in writing and will be deemed to have
been delivered:
(i) when delivered to the Employee in person, or
(ii) one week after it is deposited in the United States certified
or registered mail, postage prepaid, addressed to the Employee at 000 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 or at such other address of which the
Employee may from time to time give the Company written notice in accordance
with paragraph 8(e) above.
(g) No provision of this Agreement may be amended, modified or waived
unless such amendment, modification or waiver shall be agreed to in a writing
signed by the Employee and an authorized officer of the Company.
(h) This instrument contains the entire agreement of the parties
relating to the subject matter of this Agreement and supersedes and replaces all
prior agreements and understandings with respect to such subject matter, and the
parties have made no agreements, representations or warranties relating to the
subject matter of this Agreement which are not set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
XXXX LABORATORIES, INC.
By:
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[SEAL]
Attest:
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Secretary
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Employee
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