EXHIBIT 10.20
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the date last written below by and between
Genencor International, Inc. ("GCOR"), a Delaware Corporation with a principal
office at 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000-0000 and Xxxx Xxxxxxx
Xxxxxxxx ("Employee"), residing at 000 Xxxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx
00000.
WHEREAS, GCOR desires to employ the Employee and the Employee desires
to work for GCOR, and GCOR and the Employee desire to define the terms and
conditions under which GCOR will employ the Employee.
NOW, THEREFORE, the parties hereby covenant and agree as follows:
1. GCOR agrees to employ the Employee as Chief Executive Officer
(CEO) and President upon appointment to those offices by GCOR's Board of
Directors (the "Board") on or about November 15, 2002 to perform such duties
consistent with his title and position as may be determined and assigned to him
by the Board.
2. The Employee agrees to devote substantially all of his
professional employment time and effort to the performance of his duties as such
CEO and President for GCOR and to perform such other duties consistent with his
title and position as are reasonably assigned him from time to time by the
Board.
3. Unless terminated earlier by GCOR or Employee in writing, as
hereinafter specifically provided, the tenn of this Agreement shall be two (2)
years from the last date written below and will be automatically renewed for
incremental one-year periods thereafter.
4. For all the services to be rendered by the Employee in any
capacity hereunder, including services as an officer, director, or member of any
committee or any other duties assigned him by the Board, GCOR agrees to pay the
Employee a base salary of $525,000 per annum, payable in accordance with the
customary payroll payment practices of GCOR. The foregoing annual salary amount
may be, from time to time, increased by action of the Board or appropriate
Committee of such Board. Such action with respect to annual compensation shall
constitute an amendment to this Agreement.
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5. GCOR 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 GCOR now or hereafter
declared to be in effect. GCOR 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. GCOR and the Employee further agree that he will receive an initial
stock option grant of 550,000 non-qualified options at a xxxxx xxxxx determined
in accordance with the 2002 Omnibus Incentive Plan and vesting ratably over the
next three years, an award of 75,000 shares of restricted stock with three year
cliff vesting, and a $350,000 sign-on bonus payable one-half during the first
week of employment and one-half on March 1, 2003 (which amount shall be
repayable in the event the Employee voluntarily resigns within one year of
employment).
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 GCOR or not, agrees to execute Exhibit C at any time at the
direction of the Company 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 GCOR 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) subsequently
refuses to execute Exhibit C as 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 GCOR; (d) exhibits
repeated willful or wanton failure or refusal to perform his duties in
furtherance of GCOR'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 GCOR; (f)
commits any flagrant act of dishonesty or disloyalty or any act involving gross
moral turpitude which materially adversely affects the business of GCOR; 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
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cause") provided that unsatisfactory business performance of GCOR, 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, GCOR may on ten (10) days' notice then terminate
his employment and, in that event, GCOR 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 outline in this paragraph 7 are likewise
the only compensation and benefits that the Employee will receive if the
Employee voluntarily terminates his employment. Employee agrees to give GCOR
three (3) months' notice prior to resignation, voluntarily quitting, etc., and
in exchange GCOR 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 GCOR at any time prior to the end of the term of the Agreement,
for any other reason(s), including but not limited to a change in the ownership
or control of GCOR, such as may occur through divestiture, merger, acquisitions,
consolidation or takeover, or due to the unilateral capricious action of the
Board, 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 GCOR as evidenced by GCOR 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
twenty-four (24) months, unless the Employee becomes employed by a competitor or
engages in conduct inimical to GCOR as referred to in Exhibit A during that
period lasting up to twenty-four (24) months; and (b) continuation of all
company-paid benefits or additional compensation sufficient for the Employee to
acquire equivalent benefits for the same period; and (c) customary outplacement
services limited to $12,000.
Notwithstanding the foregoing, GCOR shall be entitled by providing
written notice to the Employee, to terminate his employment under this Agreement
if the Employee shall become permanently disabled such that he 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 GCOR's
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Long Term Disability Plan, then GCOR will pay the Employee additional
compensation so that the total equals the Termination Compensation set forth in
this paragraph 8. If the Employee is not approved to receive benefits under such
Plan, then he will upon termination of his employment for permanent disability
be entitled to receive the full Termination Compensation. Any delay or
forbearance by GCOR 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 GCOR unless GCOR and the
Employee agree that GCOR 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 GCOR provides notice that this Agreement is
terminated, GCOR 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 GCOR policy; (c) a pro rata amount of any vested incentive
compensation that shall be awarded the Employee pursuant to GCOR 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.
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 GCOR or the Employee at the address set
forth above or to such other address as GCOR 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 GCOR 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 GCOR until such written modification shall have been approved
in writing by the Company.
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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 paragraph 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.
16. This Agreement, including its existence and the terms thereof,
is considered confidential business information by GCOR 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.
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IN WITNESS WHEREOF, GCOR has caused this Agreement to be executed by the Board,
and the Employee has hereunto set his hand as of the day and year last written
below.
GENENCOR INTERNATIONAL, INC.
By: /s/ W. Xxxxxx Xxxxxxxx CHAIRMAN
----------------------
By: /s/ Xxxx Xxxxxxx Xxxxxxxx, Employee
-------------------------
Date: October 17, 2002.
EXHIBIT A
CONFIDENTIALITY, NON-DISCLOSURE
AND NON-COMPETITION AGREEMENT
THIS AGREEMENT is made as of the date last written below by and between
Genencor International, Inc. ("GCOR"), a Delaware Corporation having a principal
office at 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000-0000 and ("Employee"),
residing at 000 Xxxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000.
WHEREAS, the Employee is an employee of GCOR 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 GCOR; and
WHEREAS, GCOR 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 GCOR should they leave the
employment of GCOR under certain defined circumstances; and
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants herein contained, and in consideration of GCOR'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 GCOR and for a
period of five (5) years after his employment without the prior written
authorization of GCOR, 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 relating to GCOR or its business which the
Employee gained access to or knowledge of during or by reason of his employment
with GCOR. The foregoing obligations
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regarding non-disclosure shall not apply to information which: (a) was in the
Employee's possession before receipt from GCOR; or (b) is or becomes a matter of
public knowledge through no fault of the Employee; (c) is disclosed by GCOR 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 GCOR's employment or GCOR'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 12 month period commencing on the date of the
termination of his employment, the Employee shall not engage in or compete
directly or indirectly, as a principal, on his own account, or as a shareholder
in, or be an employee of or consultant to, any corporation or other legal
entity, including limited or general partnerships, or carry out any activities
which are competitive with or would be inimical to the technology or business
interests of GCOR. 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 1
above) or give advice, either directly or indirectly, to any such third party,
corporation or business entity of any kind. The non-compete 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 GCOR.
If the Employee is involuntarily terminated without cause, he will
receive Termination Compensation for the period specified above unless he
becomes employed by a competitor or otherwise violates the terms of this
agreement. At that time, all compensation from GCOR ceases.
B. It is recognized by GCOR and the Employee that his
efforts, and those of his fellow employees are critically important to the
overall profitability of GCOR. The future profitability of GCOR is also linked
to the continuing services of the Employee and the covenant of the Employee not
to compete with GCOR should he choose to leave the employ of GCOR.
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C. It is understood and agreed that the present and
proposed business of GCOR is becoming increasingly competitive and that there is
an ever increasing risk that competing companies may seek to hire the employees
of GCOR 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 GCOR.
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
GCOR so long as the confidentiality, non-disclosure and non-compete covenants
herein are honored by the Employee and such business entities, customers or
suppliers.
5. Equitable and Legal Remedies. The parties hereto agree that no
remedy of law will be adequate to compensate GCOR 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, GCOR 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 GCOR and the
Employee.
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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 GCOR 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 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: /s/ W. Xxxxxx Xxxxxxxx CHAIRMAN
----------------------
By: /s/ Xxxx Xxxxxxx Xxxxxxxx, Employee
-------------------------
Date: 10-17-02
EXHIBIT B
INVENTION DISCLOSURE/ASSIGNMENT AGREEMENT
It is my understanding that Genencor International, Inc., (hereinafter
called "GCOR") is engaged in the business of industrial biotechnology, including
research, development and manufacturing. I also understand that, as is generally
customary, GCOR 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 GCOR 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
GCOR during such time as I may be employed by GCOR, 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 GCOR 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 GCOR, 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 GCOR or arising out of any
information regarding the business of GCOR which has been or may be received by
me while in GCOR's employment.
I will fully disclose to GCOR as promptly as available all information
known or possessed by me concerning the rights mentioned in the preceding
paragraph; and, upon request of GCOR and without further remuneration to me by
GCOR, but at the expense of GCOR, I will execute all applications for patents
and for copyright registration, assignments thereof and other instruments, and
do all things which GCOR 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 GCOR with respect to my
present and future period of employment by GCOR. It shall inure to the benefit
of the successors and assigns of GCOR, 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: 10-17-2002
/s/ Xxxx Xxxxxxx Xxxxxxxx
-------------------------
(Signature of Employee)
000 Xxxxxxxx Xxxxxx, Xxxx Xxxx, XX 00000
----------------------------------------
(Address)
[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 "GCOR")
and (hereinafter referred to as "Employee").
WHEREAS the Employee desires to obtain or elicit confidential testimony
or documents from GCOR for the purpose of litigation or arbitration between or
among and GCOR 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 GCOR 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 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
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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:____________
GENENCOR INTERNATIONAL, INC.
By: _______________________
Name: _____________________
Title: ____________________
___________________
Employee
