Exhibit 10.119
EMPLOYMENT AGREEMENT
This agreement is made as of June 1, 1999 between EcoScience Corporation (the
"Company") with its principal place of business at 00 Xxxxx Xxxxx, X. Xxxxxxxxx,
XX 00000 ("Corporate Headquarters") and XXXXXXX X. XXXXXXXXX (the "Employee.")
Whereas, the Company desires to hire the Employee upon the terms set forth in
this Agreement and the Employee desires to be employed by the Company based on
the terms of this Agreement, the Company and the Employee agree to the following
terms and conditions of this Employment Agreement:
Section 1. EMPLOYMENT DUTIES
The Employee shall serve as Senior Vice President and Chief Financial Officer of
the Company and report directly to the President/Chief Executive Officer. He
shall perform such duties and functions which are consistent with this position
and such duties and functions as the President/Chief Executive Officer of the
Company may reasonably require. The Employee will perform his duties primarily
at the Company's Corporate Headquarters location but may, from time to time, be
required to travel to other Company locations or locations of customers or
suppliers. Specific duties shall include, but may not be limited to, the
following: 1) responsibility for all internal and external financial reporting
as may be required by the SEC or other public agencies; 2) responsibility and
accountability for overall management of the Company's accounting and finance
departments; 3) responsibility for assisting the President/CEO and others in the
development and execution of ongoing corporate financial strategies which may
include, but not be limited to, debt restructuring, public and/or private
offering, mergers and acquisitions, etc.; 4) responsibility for maintaining
professional working relationships with the Company's auditors, legal advisors,
communications and public relations firms, etc.; 6) responsibility for assisting
the President/CEO in ongoing cost reduction reviews and implementation of cost
reduction programs; and 7) all other responsibilities which are consistent with
the position of Chief Financial Officer of a public company.
Section 2. COMMENCEMENT AND TERM OF EMPLOYMENT
The date of commencement of the Employee's employment will be June 1, 1999 (the
"Commencement Date"). The term of this Agreement shall run indefinitely, unless
sooner terminated as provided in this Agreement.
Section 3. PERFORMANCE
During the term of this Agreement the Employee shall devote suitable time and
effort to the business of the Company and will not engage in consulting work or
any other activity on his own behalf or on behalf of another company without the
express written concurrence of the Company's President/CEO, except that the
Employee shall be entitled to provide consulting services to HumaScan Inc. or
any successor company provided that it does not interfere with the Employee's
responsibilities to the Company.
Section 4. COMPENSATION AND BENEFITS
The Company agrees to compensate the Employee as follows:
(a) The Employee's starting salary, effective June 1, 1999, will be
$140,000 per year, paid semi-monthly at the gross rate of
$5,833.33 per pay period. The Company agrees that the Employee
will receive a pay increase of at least 10% ($14,000) after
successfully completing one year of service with the Company.
Subsequent salary increases will be at the discretion of the
President/CEO.
(b) The Company will pay the Employee a one-time bonus of between
$20,000 and $25,000 for fiscal year 1999 upon successful
completion of all required financial reporting matters and the
achievement of certain qualitative measures, to wit: efficiency
achieved in the Accounting Department, the morale of the staff
and cost effective management of the job, all to the reasonable
satisfaction of the President/CEO.
(c) In the fiscal year 2000, and beyond, the Company will pay the
Employee an annual bonus based on attainment of the Company's
Profit Plan. If 80% of this Plan is achieved the bonus will equal
15% of the Employee's then current base pay; if 100% of this Plan
is achieved the bonus will equal 25% of the Employee's then
current base pay; and if 120% of this Plan is achieved the bonus
will equal 30% of the Employee's then current base pay. All such
bonuses shall be calculated and paid upon completion of the
fiscal year audit for that specific year. In the event the
minimum target (80%) is not met the President/CEO may, at his
sole discretion, choose to pay the Employee a bonus based on
certain qualitative issues (see above) or other quantitative
issues such as an increase in shareholder value as defined by a
rise in the price of common stock or other financial benefits
which may accrue to the Company. The Company's Profit Plan will
be established by senior management prior to or at the
commencement of the relevant fiscal year and will be communicated
to the Employee within a reasonable period of time after it is so
established.
(d) The Company shall, concurrent with the Commencement Date, issue
to the Employee incentive stock options ("ISOs") for 100,000
shares of the Company's common stock. These ISOs will vest as
follows: 20% (20,000) after six (6) months of service; another
20% (20,000) after one (1) year of service; another 30% (30,000)
after two (2) years of service; and the final 30% (30,000) after
three (3) years of service. All options will vest immediately in
the event of a change in control of the Company.
(e) The Company will pay the Employee a "signing bonus" of $20,000.
This bonus will be paid as follows: 50% ($10,000) will be payable
no later than fifteen (15) days after the Commencement Date and
the remaining 50% ($10,000) will be payable no later than thirty
(30) days after the Commencement Date.
(f) The Employee shall be entitled to all other benefits normally
accorded to full time executive level employees of the Company.
These benefits presently include:
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(1) A Medical Insurance Plan provided by the Company for its
employees. This plan is currently underwritten by Blue
Cross/Blue Shield of Texas. The Company pays 80% of the
premium cost for individual employee coverage; the Company
pays 50% of the premium costs for dependent coverage in this
Plan. A mandatory ninety (90) day waiting period is required
for all new employees.
(2) A Dental Insurance Plan provided by the Company for its
employees, currently underwritten by Delta Dental of NJ.
This plan is administered in a manner similar to the Medical
Plan.
(3) The Company will provide, at no cost to the Employee, life
insurance, accidental death and dismemberment insurance and
long term disability insurance. The Employee will be
eligible for these benefits immediately upon commencement of
work for the Company. The Human Resources Department will
provide details on these benefits as soon as the Employee
begins work.
(4) A 401(k) plan sponsored by the Company, which is managed by
Franklin Xxxxxxxxx. The Employee is immediately eligible to
participate in this plan; however, enrollment dates are
restricted to the first calendar day of each calendar
quarter.
(g) The Employee shall develop and adhere to an annual budget for
business expenses. All business expenses will be reimbursed to
the Employee through the Company's expense reporting process and
must be approved by the Employee's supervisor. Receipts for all
expenses are requested and are mandatory for any expense above
$25.00. The Company currently reimburses employees at the rate of
$0.27/mile for use of personal vehicles on Company business.
(h) The Employee shall be entitled to two (2) weeks (10 business
days) of paid vacation in 1999. Thereafter, the Employee shall be
entitled to three (3) weeks (15 business days) of paid vacation
per year. Company policy allows for the carryover of a maximum of
five (5) unused vacation days from one year to the next.
(i) The Company will withhold taxes from the Employee's salary in
accordance with its normal payroll procedures.
Section 5. TERMINATION
The following rules shall apply with respect to the termination of the
Employee's employment with the Company:
(a) In the event of the Employee's death this Agreement will
terminate at the end of the calendar month in which the death
occurs.
(b) If the Employee becomes disabled, either physically or mentally,
and is unable to perform his duties and functions as described
herein for a continuous period of six
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(6) months, this Agreement may be terminated by either party upon
written notice to the other. If any questions arise as to whether
the Employee has become so disabled as to be unable to perform
the duties the position requires due to physical or mental
illness the Employee shall submit to an examination by a
physician jointly selected by the Company and the Employee and to
whom the Employee has no reasonable objection. Following such
examination the physician shall submit to the Company and the
Employee a report in reasonable detail setting forth the
physician's opinion as to whether the Employee is so disabled.
Such report shall, for the purposes of this Agreement, be
conclusive of the issue. If any such question shall arise, and
the Employee fails to submit to such a physical examination, a
determination by the Board of Directors of the Company as to the
Employee's disability for the purposes of this Agreement shall be
conclusive.
(c) If the Employee's employment is terminated by the Company for
Cause, this Agreement may be terminated by written notice to the
Employee by the President/CEO or the Board of Directors detailing
such Cause. In the event of termination of the Employee for
Cause, the Company shall pay the Employee all accrued but unpaid
salary through the date of termination, and the Company shall
have no further obligations to the Employee under this Agreement.
"Cause", for these purposes, shall be defined as:
(1) dishonesty detrimental to the Company, its subsidiaries or
affiliates or its employees;
(2) a conviction of the Employee for a crime involving an act of
moral turpitude;
(3) incompetent performance or substantial and continuing
inattention to or neglect of the duties and responsibilities
assigned to the Employee pursuant to this Agreement,
including failure to comply with reasonable requests made by
the President/CEO or the Board of Directors, and failure of
the Employee to cure the same within thirty (30) days after
notice is given, in writing, to the Employee of these
circumstances; or
(4) a material breach of the provisions of this Agreement and
the failure of Employee to cure the same within thirty (30)
days of written notice of such breach.
(d) If the Employee is terminated without Cause, the Employee will be
given written notice at least thirty (30) days prior to the
effective date of the termination. In such event the Employee
will receive severance pay equal to six (6) months of his then
current regular base salary ("Severance Pay"). The Employee will
be required to sign a release agreement in the form attached
hereto as Exhibit A ("Release Agreement") in order to receive
this Severance Pay.
(e) In the event of any termination of the Employee's employment, the
exercisability of any stock options granted to the Employee shall
be governed by the provisions of
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the option agreements relating to such stock options and the
plan, if any, pursuant to which such options were granted.
(f) Any termination by the Company shall be effected by a "Notice of
Termination" to the Employee given in accordance with Section 10
of this Agreement. For purposes of this Agreement a Notice of
Termination means a written notice (i) indicating the specific
termination provisions in this Agreement relied upon by the
Company; (ii) setting forth in reasonable detail the facts and
circumstances claimed by the Company to provide a basis for the
termination of the Employee and (iii) a proposed termination date
not less than thirty (30) days after the date of the notice.
During the thirty (30) day period following the date of such
notice the Company shall give the Employee the opportunity to
appear before the Board of Directors to be heard. The meeting
will give the Employee an opportunity to cure or dispute any
alleged basis for the termination.
(g) Should the Employee voluntarily terminate his employment without
Good Reason (as hereinafter defined) he will be required to
provide notice of termination at least thirty (30) days prior to
the effective date of the termination. In such event, any
severance pay provided to the Employee will be determined by the
President/CEO and the Board of Directors and the amount of such
severance pay will be at their sole discretion. The Employee will
be required to sign a Release Agreement in order to receive any
such severance pay.
(h) If the Employee voluntarily terminates his employment with the
Company for Good Reason, the Company shall pay to the Employee
the Severance Pay that would have been payable by the Company to
the Employee under Section 5(d) of this Agreement if the
Employee's employment by the Company had been terminated by the
Company without Cause. The Employee will be required to sign a
Release Agreement in order to receive this Severance Pay. "Good
Reason," for these purposes, shall be defined as:
(1) the assignment to the Employee of any material duties
inconsistent in any material respect with the Employee's
duties as defined hereunder or any other action by the
Company that results in a material diminution in the
Employee's position, authority, duties or responsibilities
from those contemplated by Section 1 of this Agreement that
is not remedied by the Company within thirty (30) days after
receipt of written notice from the Employee of the same;
(2) the Company's requiring the Employee to be regularly based
at any office or location more than 60 miles outside of East
Brunswick, NJ, except for travel reasonably required in the
performance of the Executive's responsibilities; or
(3) any failure by the Company to comply with any of the
provisions of Section 4 of this Agreement that is not
remedied by the Company within thirty (30) days after
receipt of written notice from the Employee of the same.
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Section 6. CONFIDENTIALITY
The Employee is required to sign, as a condition of employment, a confidential
information and invention assignment agreement in the form attached hereto as
Exhibit B (the "Confidentiality Agreement"), the terms of which are incorporated
herein by reference. The Employee's obligation under such Confidentiality
Agreement shall extend beyond the termination of this Employment Agreement as
set forth in the Confidentiality Agreement.
Section 7. CONFLICTING AGREEMENTS
The Employee represents and warrants that he is free to enter into this
Agreement; he has not made, and will not make, any agreements in conflict with
this Agreement; he will not disclose to the Company any trade secrets or
confidential information that are the property of any former employer(s).
Section 8. ASSIGNMENTS
(a) Neither this agreement nor any right or interest hereunder shall
be assignable by the Employee without prior written consent of
the Company or by the Company without prior written consent of
the Employee, except that the Company may assign its rights
hereunder in connection with the sale or disposition of the
business and assets of the Company in whole or in substantial
part.
(b) Except as required by law, no right to receive payments under
this Agreement shall be subject to assignment, encumbrance,
charge, pledge or assignment by operation of law, and any attempt
to effect such action will be void and of no effect.
(c) This Agreement shall be binding upon and inure and to the benefit
of the Company and the Employee and their respective heirs,
administrators, executors, successors and assigns.
Section 9. SEVERABILITY
If any provision of this Agreement shall be declared invalid or unenforceable
the remainder of this Agreement, or the application of such provision in
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each provision of this Agreement shall be
valid and be enforceable to the fullest extent permitted by law.
Section 10. NOTICE
All notices to be sent under this Agreement shall be given in writing and shall
be sufficient when delivered by hand or by recognized courier (such as Federal
Express) or three (3) business days after deposit in the United States Mail, by
registered or certified mail, addressed to the Company, or to the Employee, at
their respective addresses, or to any such other address as may be designated in
writing by each party to the other party hereto.
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Section 11. WAIVERS
The failure of any party to require the performance of any term or obligation of
this Agreement, or the waiver by any party of any breach of this Agreement,
shall not be deemed a waiver of any subsequent breach of this Agreement or such
term or obligation.
Section 12. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding of the Employee and the
Company with respect to the Employee's employment. No modification or waiver of
any provisions of this Agreement shall be made unless made in writing and signed
by the Employee and by such person on behalf of the Company and as the Board of
Directors may designate for such purposes.
Section 13. GOVERNING LAW
The interpretation, construction and application of this Agreement and the
Confidentiality Agreement shall be governed by the internal laws of the State of
New Jersey.
Section 14. CAPTIONS
The captions set forth in this Agreement are for convenience only and shall not
be considered as part of the Agreement or in any way limiting or amplifying the
terms and provisions hereof.
IN WITNESS WHEREOF, the parties have signed, sealed and delivered this Agreement
as of the date first stated above.
ECOSCIENCE CORPORATION
By:________________________
Xxxxxxx X. XxXxxxxx
Chief Executive Officer
EMPLOYEE
By:________________________
Xxxxxxx X. Xxxxxxxxx
[exhibits omitted]
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