EXHIBIT 10.32
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of
January 1, 2002, by and between GENOMIC SOLUTIONS INC., a Delaware corporation
(the "Company"), and Xxxxx Xxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to continue the employment of the
Executive, and the Executive desires to continue to be employed by the Company,
on the terms and subject to the conditions set forth below, which terms
supercede and replace the terms and conditions of the Employment Agreement
between the Company and the Executive dated effective December 18, 2001;
NOW, THEREFORE, in consideration of the mutual promises contained in
this Agreement, the parties agree as follows:
1. Employment.
(a) The Company agrees to employ the Executive and the
Executive accepts the employment, on the terms and subject to the conditions set
forth below. During the term of employment hereunder, the Executive shall serve
in an executive capacity and shall do and perform diligently all such services,
acts and things as are customarily done and performed by an executive of a
similar business, together with such other duties as may be requested from time
to time by the Chief Executive Officer or the Board of Directors of the Company
(the "Board").
(b) For his service as an officer and employee of the Company,
the Executive shall be entitled to the full protection of the applicable
indemnification provisions of the Third Amended and Restated Certificate of
Incorporation and Bylaws of the Company, as they may be amended from time to
time. The Company agrees that the Executive will be named as an additional
insured under the Company's Directors' and Officers' Errors and Omissions
Insurance during his employment hereunder.
2. Term of Employment.
Subject to the provisions for termination provided below, the term of the
Executive's employment under this Agreement shall commence on the date of this
Agreement and shall continue thereafter for a period of two (2) years.
3. Devotion to the Company's Business.
The Executive shall devote his entire productive time, ability and attention to
the business of the Company during the term of this Agreement; however, the
expenditure of reasonable amounts of time to various charitable and other
community activities, or to the Executive's own personal investments and
projects, provided the amount of time so devoted does not materially impair,
detract or adversely affect the performance of the Executive's duties under this
Agreement, shall not be deemed a breach of this Agreement.
4. Compensation.
(a) During the term of this Agreement, the Company shall pay
or provide, as the case may be, to the Executive the compensation and other
benefits and rights set forth in Sections 4, 5 and 6 of this Agreement.
(b) Base Compensation. As compensation for the services to be
performed hereafter, the Company shall pay to the Executive, during his
employment hereunder, a base salary (the "Base Salary") payable in accordance
with the Company's usual pay practices (and in any event no less frequently than
monthly) at the annual rate of One Hundred Twenty Seven Thousand Dollars
($127,000.00).
(c) Annual Salary Increase. Executive's salary shall be
reviewed at least once annually and may be increased upon recommendation of the
Compensation Committee and ratification of the Board.
(d) Incentive Compensation. The Board, in its sole and
absolute discretion, may elect to pay the Executive one or more discretionary
bonuses, at such times and in such amounts as the Board deems appropriate.
(e) Commission. Executive shall be paid a sales commission of
0.16% of the worldwide net sales for the Company during the 2002 fiscal year.
Should the Company complete a merger, acquisition, or similar transaction during
the year that would materially increase the revenue outlook for the Company, the
Company retains the right to adjust the percentage commission formula so that
achieving 100% of budget net sales would result in a Fifty Three Thousand
Dollars ($53,000.00) commission payment to the Executive for fiscal 2002.
Commissions shall be paid quarterly by the end of the month during which the
previous quarter's financial results are made public.
(f) Car Allowance. The Executive shall be paid a monthly car
allowance of Seven Hundred Twenty Five Dollars ($725.00). The Executive
acknowledges responsibility for obtaining and maintaining his own vehicle,
including any and all costs, including gas, maintenance, mileage, upkeep,
insurance and any additional related costs.
5. Benefits.
(a) Insurance. The Company shall provide to the Executive
life, disability, medical, hospitalization and dental insurance for himself and
eligible family members as may be determined by the Board to be consistent with
industry standards
(b) Benefit Plans. The Executive, at his election, may
participate, during his employment hereunder, in all retirement plans, 401(K)
plans and other benefit plans of the Company generally available from time to
time to other executive employees of the Company and for which the Executive
qualifies under the terms of the plans (and nothing in this Agreement shall or
shall be deemed to in any way affect the Executive's right and benefits under
any such plan except as expressly provided herein). The Executive's
participation in and benefits under any plan shall be on the
2
terms and subject to the conditions specified in the governing document of the
particular plan.
(c) Annual Vacation. Effective as of January 1 of each year
hereunder, Executive shall be entitled to three (3) weeks of paid vacation time
for such year. In the event that the Executive is unable for any reason to take
the total amount of vacation time authorized herein during any year, the
vacation time expires and shall not be applied to a subsequent year. Upon any
termination of this Agreement for any reason whatsoever, unused paid vacation
time to which Executive is entitled to in that year shall be paid on a pro rata
basis to Executive within ten (10) days of such termination based on the Base
Salary in effect on the effective date of such termination.
6. Reimbursement of Business Expenses.
The Company shall reimburse the Executive during the term of this Agreement for
travel and other expenses reasonably and necessarily incurred by the Executive
in connection with the Company's business. The Executive shall furnish such
documentation with respect to reimbursement to be paid hereunder as the Company
shall reasonably request.
7. Termination of Employment.
(a) The Executive's employment under this Agreement may be
terminated:
(i) by the Executive at any time for any reason or for
no reason upon not less than three months (3) months written notice;
(ii) by the Company at any time for any reason, without
"cause", or for "cause" as defined below, without prior notice; and
(iii) upon the Executive's death.
(b) For purposes hereof, for "cause" shall mean the material breach of any
provision of this Agreement by Executive, or any action of Executive (or
Executive's failure to act), which, in the reasonable determination of the
Board, involves malfeasance, fraud, or moral turpitude, which, if generally
known, would have a material adverse effect on the Company.
8. Compensation Upon Termination.
(a) In the event that the Company terminates the Executive's employment under
this Agreement without "cause" pursuant to Section 7(a)(ii) hereof, the
Executive shall be entitled to any unpaid Base Salary, and benefits accrued and
earned by his hereunder up to and including the effective date of such
termination, which shall be paid by the Company to the Executive within thirty
(30) days of the effective date of such termination, and the Company shall pay
the Executive monthly an amount equal to one-twelfth (1/12) of the Base Salary
for a period of six (6) months (the "Severance Payment"), payable in accordance
with the Company's usual pay practices. Notwithstanding the foregoing, the
Company, in its sole discretion, may elect to make the Severance Payment to the
Executive in one lump sum due within thirty (30) days of the Executive's
termination of employment.
3
(b) In the event of termination of the Executive's employment under this
Agreement for "cause" pursuant to Section 7(a)(ii), or if the Executive
voluntarily terminates his employment hereunder, the Executive shall be entitled
to no further compensation or other benefits under this Agreement, except only
as to any unpaid Base Salary and benefits accrued and earned by his hereunder up
to and including the effective date of such termination.
(c) In the event of death of the Executive, Executive's successors and assigns
shall be entitled to a portion of any unpaid salary, bonus and benefits accrued
and earned by his hereunder up to and including the effective date of such
termination.
(d) Notwithstanding anything to the contrary in this Section 8, the Company's
obligation to pay, and the Executive's right to receive, any compensation under
this Section 8, shall terminate upon the Executive's breach of any provision of
Section 11 hereof. In addition, the Executive shall promptly forfeit the
Severance Payment received from the Company under this Section 8, upon the
Executive's breach of any provision of Section 11 hereof.
9. Treatment of Stock Options Upon Termination of Employment or
Death.
In the event of termination of the Executive's employment
under this Agreement for "cause", any stock options to purchase the Company's
stock, vested or unvested, shall be treated in accordance with the 1998 Stock
Option Plan, as amended. In the event that the Company terminates the
Executive's employment under this Agreement without "cause", any stock option to
purchase the Company's stock may be exercised, but only to the extent it was
otherwise exercisable on the termination date, within ninety (90) days after the
date the Executive's employment was terminated. In the event of Executive's
death, all unexpired stock options to purchase the Company's stock shall
accelerate and immediately vest, and shall accrue as of the date of death and
Executive's successors and assigns shall be entitled to exercise the unexpired
options at any time within one year after the date of Executive's death.
Notwithstanding anything to the contrary, such options to purchase the Company's
stock shall be automatically forfeited upon the Executive's breach of any of the
provisions of Section 11. Any stock option agreements between the Company and
the Executive shall be amended to conform to the provisions of this Section 9.
10. Effect of the Company's Merger, Sale or Transfer of Assets.
In the event of any acquisition of the Company by means of merger or
other form of corporate reorganization in which outstanding shares of the
Company are exchanged for securities or other consideration issued by the
acquiring corporation or its subsidiary (other than a mere reincorporation
transaction), a sale, conveyance or disposition of all or substantially all of
the assets of the Company, or the effectuation by the Company of a transaction
or series of related transactions in which more than 50% of the voting power is
disposed of (other than the Company's sale of its common stock pursuant to a
registration statement filed under the Securities Act of 1933, as amended), the
Company shall pay to the Executive, an amount equal to the sum of (a) the
portion of any unpaid salary, bonus and benefits accrued and earned by Executive
hereunder up to and including the effective date of such change in control; and
(b) an amount equal to six (6)
4
months of the Executive's Base Salary. In addition, all unexpired stock options,
granted to the Executive at least six (6) months prior to the change of control,
shall immediately vest and become fully exercisable. Notwithstanding the
foregoing, if Executive remains employed by the Company or is retained by the
acquiring company, the Executive shall not receive the benefits provided in
subsections (a) and (b) of this Section 9, but shall receive an amount equal to
three (3) months of Executive's Base Salary and all unexpired stock options
granted at least six (6) months prior to the change of control, shall
immediately vest and become fully exercisable. Any stock option agreements
between the Company and the Executive shall be amended to conform to the
provisions of this Section 10.
11. Covenant Not To Compete and Confidentiality.
(a) The Executive acknowledges the Company's reliance and
expectation of the Executive's continued commitment to performance of his duties
and responsibilities under this Agreement. In light of such reliance and
expectation on the part of the Company, the Executive agrees that:
(i) for a period commencing on the date of this Agreement and ending
six (6) months after the expiration of the Executive's employment under
this Agreement for any reason, the Executive shall not, directly or
indirectly, engage in, or have an interest in or be associated with
(whether as an officer, director, employee, consultant or otherwise)
any entity which is engaged in any activity which is materially similar
to or which is competitive with the activities then or at any time
during the term of this Agreement conducted or actively proposed to be
conducted by the Company, or any company owned or controlled by the
Company or under common control with the Company ("Affiliate"),
anywhere within the Detroit, Michigan and Ann Arbor, Michigan
metropolitan area; and
(ii) the Executive executed a separate Confidentiality Agreement upon
commencing employment with the Company and hereby incorporates the
duties and obligations of the Executive under such Confidentiality
Agreement hereto.
(b) The Executive agrees and understands that upon breach of
Section 11(a)(i) and 11(a)(ii), any Severance Payment or payment of benefits due
to Executive shall terminate immediately.
(c) The Executive agrees and understands that the remedy at
law for any breach by his of this Section 11 will be inadequate and that the
damages flowing from such breach are not readily susceptible to being measured
in monetary terms. Accordingly, it is acknowledged that, upon adequate proof of
the Executive's violation of any legally enforceable provision of this Section
11, the Company shall be entitled to immediate injunctive relief and may obtain
a temporary order restraining any threatened or further breach. Nothing in this
Section 11 shall be deemed to limit the Company's remedies at law or in equity
for any breach by the Executive of any of the provisions of this Section 11
which may be pursued or availed of by the Company.
12. Acknowledgement of Securities Rules and Restrictions.
The Executive acknowledges that shares of the Company's stock
held by the Executive will be subject to the restrictions of Rule 144 of the
Securities Act of
5
1933, as amended, which governs the public sale in ordinary trading transactions
of "restricted securities" and of securities owned by affiliates.
13. No Conflicting Agreements.
The Executive represents and warrants that he is not a party to any agreements,
contracts, understandings or arrangements, whether written or oral, in effect
which would prevent his from rendering exclusive services to the Company during
the term hereof, and that he has not made and will not make any commitment to do
any act in conflict with this Agreement.
14. Arbitration.
Any dispute or controversy arising out of or relating to this
Agreement shall be settled finally and exclusively by arbitration in the State
of Michigan in accordance with the rules of the American Arbitration Association
then in effect. Such arbitration shall be conducted by an arbitrator(s)
appointed by the American Arbitration Association in accordance with its rules
and any finding by such arbitrator(s) shall be final and binding upon the
parties. Judgment upon any award rendered by the arbitrator(s) may be entered in
any court having jurisdiction thereof, and the parties consent to the
jurisdiction of the Xxxxx County, Michigan Circuit Court for this purpose.
Nothing contained in this Section 14 shall be construed to preclude the Company
from obtaining injunctive or other equitable relief to secure specific
performance or to otherwise prevent a breach or contemplated breach of this
Agreement by the Executive as provided in Section 11 hereof.
15. Notice.
All notices, requests, consents and other communications, required or permitted
to be given hereunder to be given under this Agreement shall be personally
delivered in writing or shall have been deemed duly given when received after it
is posted in the United States mail, postage prepaid, registered or certified,
return receipt requested addressed as follows:
If to the Company:
Genomic Solutions Inc.
0000 Xxxxxxx Xxxxx, Xxxxx X
Xxx Xxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
If to the Executive:
Xxxxx Xxxxxx
0000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
In all events, with a copy to:
Jaffe, Raitt, Heuer & Xxxxx,
Professional Corporation
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Sugar
6
16. Miscellaneous.
(a) The provisions of this Agreement are severable and if any
one or more provisions may be determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions and any partially
unenforceable provision to the extent enforceable in any jurisdiction
nevertheless shall be binding and enforceable.
(b) The rights and obligations of the Company under this
Agreement shall inure to the benefit of, and shall be binding on, the Company
and its successors and assigns, and the rights and obligations (other than
obligations to perform services) of the Executive under this Agreement shall
inure to the benefit of, and shall be binding upon, the Executive and his heirs,
personal representatives and assigns. This Agreement is personal to Executive
and he may not assign his obligations under this Agreement in any manner
whatsoever.
(c) The failure of any party to enforce any provision or
protections of this Agreement shall not in any way be construed as a waiver of
any such provision or provisions as to any future violations thereof, nor
prevent that party thereafter from enforcing each and every other provision of
this Agreement. The rights granted the parties herein are cumulative and the
waiver of any single remedy shall not constitute a waiver of such party's right
to assert all other legal remedies available to it under the circumstances.
(d) This Agreement supersedes all agreements and
understandings between the parties and may not be modified or terminated orally.
No modification, termination or attempted waiver shall be valid unless in
writing and signed by the party against whom the same is sought to be enforced.
(e) This Agreement shall be governed by and construed
according to the laws of the State of Michigan.
(f) Captions and section headings used herein are for
convenience and are not a part of this Agreement and shall not be used in
construing it.
(g) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
on the date first written above.
EXECUTIVE: The Company:
GENOMIC SOLUTIONS INC.,
a Delaware corporation
/s/ Xxxxx Xxxxxx By: /s/Xxxxxxx X. Xxxxxxxx,
---------------- ----------------------
Its: President and Chief Executive Officer
7
