EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (this "AGREEMENT") is made and
entered into by and between Biopool International, Inc., a Delaware corporation
(the "COMPANY") and Xxxxxxx X. Xxxx, Ph.D. ("EXECUTIVE"), as of this 7th day of
July, 1999, to be effective on the earlier to occur of (i) the date upon which a
Chief Executive Officer satisfactory to the Board of Directors of the Company
commences employment with the Company, or (ii) the date of a Change of Control
(as defined in Section 2(f), below) (the "EFFECTIVE DATE"). Prior to the
Effective Date, the terms and conditions of Executive's employment shall
continue on the same basis as that which existed prior to the date of this
Agreement.
1.1 Upon the terms and subject to the conditions set forth in
this Agreement, the Company hereby engages and employs Executive as an officer
of the Company, with the title and designation of Chairman of the Board.
Executive hereby accepts such engagement and employment.
1.2 Executive shall report directly to the Chief Executive
Officer of the Company, or in the absence of a Chief Executive Officer, to the
Board of Directors (the "Board"), and Executive's duties and responsibilities
shall be those which are normally and customarily vested in the office of
Chairman of the Board of a corporation, subject to the supervision, direction
and control of the Chief Executive Officer of the Company. In particular,
Executive's duties shall include the following services and performance:
(a) Chair all Board meetings, and work together
with the CEO to develop an agenda for Board meetings;
(b) Attend meetings, and engage in discussions
at the reasonable request of the Chief Executive Officer relating to strategic
initiatives of the Company, including but not limited to, capital raising
transactions, partnering, reorganizations, mergers or business combinations,
strategic planning, research and product development, etc.
(c) If requested, appear and speak at Annual
Meetings of Shareholders;
(d) Assist in the transition of management to
the new Chief Executive Officer;
(e) Refrain from engaging in any Company
business activity which the Chief Executive Officer reasonably requests; and
(f) At the reasonable request of the Board,
perform any special project, which is mutually agreeable to the Board and the
Executive.
1.3 Executive agrees to devote such amount of his business
time, energies, skills, efforts and attention to his duties hereunder as
Executive reasonably believes are required to fulfill such duties. During the
term hereof, Executive shall not, without the prior written consent of the
Company, which consent may be withheld for any reason or for no reason, render
any services to any other person or business entity who or which is engaged in
any segment of the hemostasis business which, in the reasonable judgment of the
Board, competes with any part of the Company's business. Notwithstanding the
foregoing, Executive shall not be obligated to devote more than 50 hours per
month to the performance of services hereunder. Executive will use his best
efforts and abilities faithfully and diligently to carry out his obligations
hereunder and to act in accordance with the Company's business interests.
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1.4 Except for routine travel incident to the business of the
Company, Executive shall perform his duties and obligations under this Agreement
principally in Ventura, California, or such other location in Ventura or Los
Angeles County, California, as the Board may from time to time determine.
2. TERM OF EMPLOYMENT AND TERMINATION. Executive's employment
pursuant to this Agreement shall be for a three-year period commencing on the
Effective Date, and shall terminate on the earliest to occur of the following:
(a) The close of business on the date which is three
years from the Effective Date;
(b) The death of Executive;
(c) Delivery to Executive of written notice of termination by
the Company if Executive shall suffer a physical or mental disability, which
renders Executive, in the reasonable judgment of the Board, unable to perform
his duties and obligations under this Agreement for 90 days in any 12-month
period;
(d) Delivery to Executive of written notice of termination by
the Company "for cause," by reason of: (i) any act or omission knowingly
undertaken or omitted by Executive with the intent of causing damage to the
Company, its properties, assets or business or its stockholders, officers,
directors or employees; (ii) any act of Executive involving a material personal
profit to Executive, including, without limitation, any fraud, misappropriation
or embezzlement, involving properties, assets or funds of the Company or any of
its subsidiaries; (iii) Executive's consistent failure to perform his normal
duties or any obligation under any provision of this Agreement, in either case,
as directed by the Board following written notice of such failure and an
opportunity of not less than 30 days to cure such breach; or (iv) conviction of,
or pleading NOLO CONTENDERE to, (A) any crime or offense involving monies or
other property of the Company; (B) any felony offense; or (C) any crime of moral
turpitude;
(e) Delivery to Executive of written notice of termination by
the Company "without cause, " in which case the Company shall pay Executive the
balance of compensation owed under this Agreement, as specified in Section 3
below;
(f) Delivery to the Company of written notice of termination
by Executive upon the occurrence of a "change of control; " but only if such
change of control results in Executive having to perform services for the
Company that are materially different from the services performed by Executive
prior to the change of control. Promptly following any change of control, the
Company shall provide written notice of such fact to Executive. Executive shall
have a period of 90 days following his receipt of such notice to elect to notify
the Company that Executive is treating such change of control as requiring a
material change in his duties, and therefore, a termination of this Agreement.
For purposes of this Agreement, the following events
shall constitute a "change of control":
(i) Any person or entity (or group of related
persons or entities acting in concert) shall acquire shares of capital stock of
the Company entitled to exercise 50% or more of the total voting power
represented by all shares of capital stock of the Company then outstanding; or
(ii) The Company shall sell or otherwise transfer
all or substantially all of its assets or merge, consolidate or reorganize with
any other corporation or entity, as the result of which less than 50% of the
total voting power represented by the capital stock or other equity interests of
the corporation or entity to which the Company's assets are sold or transferred
or surviving such merger, consolidation or reorganization shall be held by the
persons and entities who were holders of common stock of the Company immediately
prior to such transaction; or
(iii) The Company shall issue or otherwise than on
a pro rata basis additional shares of capital stock representing (after giving
effect to such issuance) more than 50% of the total voting power of the Company;
or
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(iv) The persons who were the directors of the
Company as of the Effective Date shall cease to comprise a majority of the Board
of Directors of the Company.
3. COMPENSATION; EXECUTIVE BENEFIT PLANS.
3.1 The Company shall pay to Executive a base salary at an
annual rate of $140,400 during each contract year of this Agreement. The base
salary shall be payable in installments throughout the year in the same manner
and at the same times the Company pays base salaries to other executive officers
of the Company. In the event that Executive's employment is terminated pursuant
to Section 2(e) or Section 2(f), above, the Company shall continue to pay to
Executive all of the compensation provided for in this Section 3 until the
expiration of the term of this Agreement.
3.2 Executive shall be entitled to reimbursement from the
Company for the reasonable costs and expenses which he incurs in connection with
the performance of his duties and obligations under this Agreement in a manner
consistent with the Company's practices and policies as adopted or approved from
time to time by the Board for executive officers. Executive shall be entitled to
reimbursement for business-class travel expenses for any flight in excess of
1,000 miles.
3.3 The Company shall provide Executive with a monthly
automobile allowance of $420, and shall pay an aggregate of $380 per month for
Executive's membership in one or more country, professional or social clubs.
3.4 The Company may deduct from any compensation payable to
Executive the minimum amounts sufficient to cover applicable federal, state
and/or local income tax withholding, old-age and survivors' and other social
security payments, state disability and other insurance premiums and payments.
4. OTHER BENEFITS. During the term of his employment hereunder,
Executive shall be eligible to participate in all operative employee benefit and
welfare plans of the Company then in effect from time to time and in respect of
which all executive officers of the Company generally are entitled to
participate ("COMPANY EXECUTIVE BENEFIT PLANS"), including, to the extent then
in effect, 401(k), group life, medical, disability and other insurance plans,
all on the same basis applicable to employees of the Company whose level of
management and authority is comparable to that of Executive.
5. CONFIDENTIALITY OF PROPRIETARY INFORMATION AND MATERIAL.
5.1 INDUSTRIAL PROPERTY RIGHTS. For the purpose of this
Agreement, "INDUSTRIAL PROPERTY RIGHTS" shall mean all of the Company's patents,
trademarks, trade names, inventions, copyrights, know- how or trade secrets, now
in existence or hereafter developed or acquired by the Company or for its use,
relating to any and all products which are developed, formulated and/or
manufactured by the Company.
5.2 TRADE SECRETS. For the purpose of this Agreement, "TRADE
SECRETS" shall mean any formula, pattern, device, or compilation of information
which is used in the Company's business which gives the Company an opportunity
to obtain an advantage over its competitors who do not know and/or do not use
it. This term includes, but is not limited to, information relating to the
marketing of the Company's products, including price lists, pricing information,
customer lists, customer names, the particular needs of customers, information
relating to their desirability as customers, financial information, intangible
property and other such information which is not in the public domain.
5.3 TECHNICAL DATA. For the purpose of this Agreement,
"TECHNICAL DATA" shall mean all information of the Company in written, graphic
or tangible form relating to any and all products which are developed,
formulated and/or manufactured by the Company, as such information exists as of
the date of this Agreement or is developed by the Company during the term
hereof.
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5.4 PROPRIETARY INFORMATION. For the purpose of this
Agreement, "PROPRIETARY INFORMATION" shall mean all of the Company's Industrial
Property Rights, Trade Secrets and Technical Data. Proprietary Information shall
not include any information which (i) was lawfully in the possession of
Executive prior to Executive's employment with the Company, (ii) may be obtained
by a reasonably diligent businessperson from readily available and public
sources of information, (iii) is lawfully disclosed to Executive after
termination of Executive's employment by a third party which does not have an
obligation to the Company to keep such information confidential, or (iv) is
independently developed by Executive after termination of Executive's employment
without utilizing any of the Company's Proprietary Information.
5.5 AGREEMENT NOT TO COPY OR USE. Executive agrees, at any
time during the term of his employment and for a period of ten years thereafter,
not to copy, use or disclose (except as required by law after first notifying
the Company and giving it an opportunity to object) any Proprietary Information
without the Company's prior written permission. The Company may withhold such
permission as a matter within its sole discretion during the term of this
Agreement and thereafter.
6. RETURN OF CORPORATE PROPERTY AND TRADE SECRETS. Upon any termination
of this Agreement, Executive shall turn over to the Company all property,
writings or documents then in his possession or custody belonging to or relating
to the affairs of the Company or comprising or relating to any Proprietary
Information.
7. DISCOVERIES AND INVENTIONS.
7.1 DISCLOSURE. Executive will promptly disclose in writing to
the Company complete information concerning each and every invention, discovery,
improvement, device, design, apparatus, practice, process, method, product or
work of authorship, whether patentable or not, made, developed, perfected,
devised, conceived or first reduced to practice by Executive, whether or not
during regular working hours (hereinafter referred to as "Developments"), either
solely or in collaboration with others, (a) prior to the term of this Agreement
while working for the Company, (b) during the term of this Agreement or (c)
within six months after the term of this Agreement, if relating either directly
or indirectly to the business, products, practices, techniques or confidential
information of the Company.
7.2 ASSIGNMENT. Executive, to the extent that he has the legal
right to do so, hereby acknowledges that any and all Developments are the
property of the Company and hereby assigns and agrees to assign to the Company
any and all of Executive's right, title and interest in and to any and all of
such Developments; PROVIDED, HOWEVER, that, in accordance with California Labor
Code Sections 2870 and 2872, the provisions of this Section 7.2 shall not apply
to any Development that the Executive developed entirely on his own time without
using the Company's equipment, supplies, facilities or trade secret information
except for those Developments that either:
(a) Relate at the time of conception or
reduction to practice of the Development to the Company's business, or actual or
demonstrably anticipated research or development of the Company; or
(b) Result from any work performed by Executive
for the Company.
7.3 ASSISTANCE OF EXECUTIVE. Upon request and without further
compensation therefor, but at no expense to Executive, and whether during the
term of this Agreement or thereafter, Executive will do all reasonable lawful
acts, including, but not limited to, the execution of papers and lawful oaths
and the giving of testimony, that, in the reasonable opinion of the Company, its
successors and assigns, may be necessary or desirable in obtaining, sustaining,
reissuing, extending and enforcing United States and foreign Letters Patent,
including, but not limited to, design patents, on any and all Developments and
for perfecting, affirming and recording the Company's complete ownership and
title thereto, subject to the proviso in Section 7.2 hereof, and Executive will
otherwise reasonably cooperate in all proceedings and matters relating thereto.
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7.4 RECORDS. Executive will keep complete and accurate
accounts, notes, data and records of all Developments in the manner and form
requested by the Company. Such accounts, notes, data and records shall be the
property of the Company, subject to the proviso in Section 7.2 hereof, and, upon
request by the Company, Executive will promptly surrender the same to it or, if
not previously surrendered upon its request or otherwise, Executive will
surrender the same, and all copies thereof, to the Company upon the conclusion
of his employment.
7.5 OBLIGATIONS, RESTRICTIONS AND LIMITATIONS. Executive
understands that the Company may enter into agreements or arrangements with
agencies of the United States Government and that the Company may be subject to
laws and regulations which impose obligations, restrictions and limitations on
it with respect to inventions and patents which may be acquired by it or which
may be conceived or developed by employees, consultants or other agents
rendering services to it. Executive agrees that he shall be bound by all such
obligations, restrictions and limitations applicable to any such invention
conceived or developed by him during the term of this Agreement and shall take
any and all further action, which may be required to discharge such obligations
and to comply with such restrictions and limitations.
8. NON-SOLICITATION COVENANT.
8.6 NONSOLICITATION AND NONINTERFERENCE. During the term of
this Agreement and for a period of two years thereafter, Executive shall not (a)
induce, attempt to induce any employee of the Company to leave the employ of the
Company or in any way interfere adversely with the relationship between any such
employee and the Company, (b) induce or attempt to induce any employee of the
Company to work for, render services or provide advice to or supply confidential
business information or trade secrets of the Company to any third person, firm
or corporation, (c) hire any employee of the Company to work for, render
services or provide advice to any third person, firm or corporation, or (d)
induce or attempt to induce any customer, supplier, licensee, licensor or other
business relation of the Company to cease doing business with the Company or in
any way interfere with the relationship between any such customer, supplier,
licensee, licensor or other business relation and the Company.
8.7 INDIRECT SOLICITATION. Executive agrees that, during the
term of this Agreement and the period covered by Section 8.1 hereof, he will
not, directly or indirectly, assist or encourage any other person in carrying
out, directly or indirectly, any activity that would be prohibited by the
provisions of Section 8.1 if such activity were carried out by Executive, either
directly or indirectly; and, in particular, Executive agrees that he will not,
directly or indirectly, induce any employee of the Company to carry out,
directly or indirectly, any such activity.
9. INJUNCTIVE RELIEF. Executive hereby recognizes, acknowledges and
agrees that in the event of any breach by Executive of any of his covenants,
agreements, duties or obligations contained in Sections 5, 6, 7 and 8 of this
Agreement, the Company would suffer great and irreparable harm, injury and
damage, the Company would encounter extreme difficulty in attempting to prove
the actual amount of damages suffered by the Company as a result of such breach,
and the Company would not be reasonably or adequately compensated in damages in
any action at law. Executive therefore covenants and agrees that, in addition to
any other remedy the Company may have at law, in equity, by statute or
otherwise, in the event of any breach by Executive of any of his covenants,
agreements, duties or obligations contained in Sections 5, 6, 7 and 8 of this
Agreement, the Company shall be entitled to seek and receive temporary,
preliminary and permanent injunctive and other equitable relief from any court
of competent jurisdiction to enforce any of the rights of the Company, or any of
the covenants, agreements, duties or obligations of Executive hereunder, and/or
otherwise to prevent the violation of any of the terms or provisions hereof, all
without the necessity of proving the amount of any actual damage to the Company
or any affiliate thereof resulting therefrom; PROVIDED, HOWEVER, that nothing
contained in this Section 9 shall be deemed or construed in any manner
whatsoever as a waiver by the Company of any of the rights which the Company may
have against Executive at law, in equity, by statute or otherwise arising out
of, in connection with or resulting from the breach by Executive of any of his
covenants, agreements, duties or obligations hereunder.
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10. MISCELLANEOUS.
10.8 NOTICES. All notices, requests and other communications
(collectively, "Notices") given pursuant to this Agreement shall be in writing,
and shall be delivered by personal service or by United States first class,
registered or certified mail (return receipt requested), postage prepaid,
addressed to the party at the address set forth below:
If to Company:
Biopool International
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Board of Directors
If to Executive:
Xxxxxxx X. Xxxx, Ph.D.
0000 Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Any Notice shall be deemed duly given when received by the addressee thereof,
provided that any Notice sent by registered or certified mail shall be deemed to
have been duly given three days from date of deposit in the United States mails,
unless sooner received. Either party may from time to time change its address
for further Notices hereunder by giving notice to the other party in the manner
prescribed in this section.
10.9 ENTIRE AGREEMENT. This Agreement contains the sole and
entire agreement and understanding of the parties with respect to the entire
subject matter of this Agreement, and any and all prior discussions,
negotiations, commitments and understandings, whether oral or otherwise, related
to the subject matter of this Agreement are hereby merged herein. No
representations, oral or otherwise, express or implied, other than those
contained in this Agreement have been relied upon by any party to this
Agreement.
10.10 ATTORNEYS' FEES. If any action, suit or other proceeding
is instituted to remedy, prevent or obtain relief from a default in the
performance by any party of its obligations under this Agreement, the prevailing
party shall recover all of such party's costs and reasonable attorneys' fees
incurred in each and every such action, suit or other proceeding, including any
and all appeals or petitions therefrom.
10.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
10.12 CAPTIONS. The various captions of this Agreement are for
reference only and shall not be considered or referred to in resolving questions
of interpretation of this Agreement.
10.13 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
10.14 BUSINESS DAY. If the last day permissible for delivery
of any Notice under any provision of this Agreement, or for the performance of
any obligation under this Agreement, shall be other than a business day, such
last day for such Notice or performance shall be extended to the next following
business day (PROVIDED, HOWEVER, under no circumstances shall this provision be
construed to extend the date of termination of this Agreement).
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
COMPANY: EXECUTIVE:
BIOPOOL INTERNATIONAL, INC.
By: /S/ N. PRICE XXXXXXXX /S/ XXXXXXX X. XXXX, PH.D.
------------------------------------- --------------------------
N. Price Xxxxxxxx, Xxxxxxx X. Xxxx, Ph.D.
Director
By: /S/ XXXXXXX XXXX
-------------------------------------
Xxxxxxx Xxxx,
Director
By: /S/ XXXXX X. XXXXXXXXXXX
-------------------------------------
Xxxxx X. Xxxxxxxxxxx,
Director
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