EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is intended to be the operative
agreement by and between American Blood Institute, Inc., AVRE, Inc., and Binary
Associates, Inc. AKA SeraCare (referred to collectively herein as the
"Corporation") and Xxxxx X. Xxxxxxx ("Xxxxxxx"). This Agreement is conditional
upon confirmation of a Plan of Reorganization for the Corporation and approval
of such Plan of Reorganization by the Federal Bankruptcy Court. The effective
date of this Agreement shall be the Effective Date of the Plan of
Reorganization.
1. EMPLOYMENT AS VICE PRESIDENT OF FINANCE. The Corporation hereby
agrees to retain Xxxxxxx and Xxxxxxx hereby agrees to be employed as Vice
President and of Finance for the Plasma Operations to be acquired by the
Corporation via the Plan of Reorganization regarding American Blood Institute,
Inc., AVRE, Inc. and Binary Associates, Inc. In such capacities, Xxxxxxx shall
perform all of the normal duties and responsibilities of a Vice President of
Finance. In the performance of his duties and responsibilities, Xxxxxxx shall
at all times be under the direction of the President and the Board of Directors
of the Corporation. Xxxxxxx shall perform his duties and responsibilities in
accordance with all reasonable rules, regulations and policies adopted by the
Board of Directors of the Corporation.
2. INDEMNIFICATION; INSURANCE AGREEMENT. The Corporation warrants and
assures Xxxxxxx that the Charter of the Corporation contains a provision which
provides for indemnification of officers by the corporation to the maximum
extent permissible under the laws of the jurisdiction in which the Corporation
is incorporated. Further, the Corporation agrees to either or both of the
following: (A) Enter into an Indemnification Agreement provided that such
Indemnification Agreement shall be modified if necessary to conform with the
laws of the jurisdiction in which the Corporation is incorporated; (B) Obtain
and maintain in full force and effect at Corporation's sole expense, such
director's and officer's liability insurance for errors and omissions of such
type and in such amount as is customary for similarly situated companies, if
available at reasonable cost.
3. EXTENT OF SERVICES. Xxxxxxx agrees to devote all of his efforts on
behalf of the business of the Corporation. Without limiting the foregoing,
during the term of this Agreement, Xxxxxxx shall make written request to the
Board of Directors and must obtain written approval from such Board if Xxxxx
wishes to devote any of his time to any other business effort, whether or not
such business effort is in direct competition with the Corporation.
4. COMPENSATION. On the effective date of this contract, Xxxxxxx shall
be paid at the rate of $125,000 per year payable bi-weekly. There shall be a
quarterly salary adjustment whereby any pre-tax earnings over $100,000 per
quarter shall be paid to the officers of the Reorganized Debtor (SeraCare) up to
a maximum annual amount of $25,000 to Xxxxxx X. Xxxxx, Xx. And $10,000 each for
Xxxxx X. Xxxxxxx and Xxxxx Xxxxx. The distribution of the quarterly salary
adjustment shall be on a pro rata basis.
-1-
5. PERFORMANCE BONUS. There shall also be a Management Bonus Pool which
will allocate ten percent (10%) of pre-tax earnings which are in excess of
$920,549 in year one following the Effective Date of the Reorganization Plan,
$2,590,160 in year two, $4,384,187 in year three, $6,244,536 in year four, and
$8,166,626 in year five to a bonus pool to paid pro rata to management on the
basis of salaries. Xxxxxxx shall be a participant in this Management Bonus Pool
during the term of this agreement.
6. FRINGE BENEFITS. Xxxxxxx shall receive four (4) weeks paid vacation
per year during the course of this Agreement. Xxxxxxx will also receive company
paid: sick pay, group health insurance, dental care, vision care, disability
insurance, life insurance and such other benefits in the amounts and as may be
provided in the ordinary course to the Corporation's other senior executives.
7. STOCK AND WARRANT GRANT. Xxxxxxx shall be granted 63,165 shares of
common stock of SeraCare (SeraCare is herein defined as AVRE, Inc., Binary
Associates, Inc., American Blood Institute, Inc. and any post emergence
replacement or successor corporation or entity into which the Plasma Operations
of Avre, Inc. and Binary Associates, Inc. are transferred, placed, controlled,
merged or which are acquired by) and stock options to purchase 42,110 shares of
common stock in SeraCare for a calculated price which is the mean average
between $.74 and the weighted average of the closing bid price for the Company's
stock for the thirty trading days prior to the vesting date. The vesting date
is defined as the anniversary date of the Effective date of the Reorganization
Plan for SeraCare. The options will vest at the rate of one-third per year and
are contingent upon the company achieving the projected operating results
reflected in the Confidential Memorandum attached herewith except that if the
indicated funding is not provided in timely fashion for the acquisition of the
indicated centers reflected in the Confidential Memorandum, then a calculation
will be made utilizing the projected results of the base six centers (which
includes corporate overhead) plus a pro rated calculation of the projected
operating results of the acquisition centers based upon the percentage of the
secondary financing actually received by SeraCare. For example, the projections
contemplate the acquisition of twelve centers during year one. Accordingly, at
the rate of $200,000 per center this acquisition program would require
$2,400,000. If $1,200,000 or 50% is actually funded, then a calculation will be
made utilizing 100% of the year one operating results projected for the base six
centers ($365,556) plus 50% of the year one projected operating results for the
acquisition centers (50% X $450,198 = $225,099) with the summation of two being
($365,556 + $225,099 = $590,655). Accordingly, $590,655 will be the objective
criteria for vesting of one third of the options if $1,200,000 of secondary
financing is actually received by SeraCare in year one. If SeraCare is sold,
merged, consolidated with another company or reorganized to the extent that
there is a 50% or more change in ownership, the options will become immediately
vested and exercisable.
8. TERM. This Agreement is conditional upon confirmation of the Plan of
Reorganization for American Blood Institute, Inc., AVRE, Inc. and Binary
Associates, Inc. and approval by the Federal Bankruptcy Court. The term shall
be for the three year period beginning on the "Effective Date" of the Confirmed
Plan of Reorganization and ending thirty six month after the "Effective Date"
unless this Agreement is terminated at an earlier date as provided in Section 9
below.
9. TERMINATION.
A. FOR "CAUSE". The Corporation may terminate this Agreement upon
thirty days notice for cause. "Cause" is defined for the purpose of this
agreement as: death; dishonesty; theft; conviction of a felony; alcohol or
drug abuse; unethical business conduct; and a material breach of this
Agreement by Xxxxxxx. If Xxxxxxx is terminated for "Cause" as herein
defined,
-2-
Xxxxxxx shall receive thirty days notice with pay, and no other
compensation other than the receipt of any options which have already
vested.
B. FOR "ACTIONS DEEMED NOT IN THE BEST INTERESTS". The Corporation
may also terminate this Agreement if Xxxxxxx fails for any reason, within
ten days after receipt by Xxxxxxx of written notice thereof from the Board
of Directors, to correct, disassociate, cease or otherwise alter any
actions, associations, insubordination, failure to comply with
instructions, failure or other action or omission to act which, in the
opinion of the Board of Directors, materially affects or may materially
affect the Corporations' business operations. "Actions Deemed Not in the
Best Interests" shall also include the association by Xxxxxxx with
individuals, companies, organizations or activities which the Board of
Directors has a reasonable basis for believing does or could have a
material negative affect on the Corporations operations, it's market price
per share, or the Corporation's ability to raise additional capital. If
Xxxxxxx is terminated for "Actions Deemed Not in the Best Interests" as
herein defined, Xxxxxxx shall receive twelve months severance pay and no
other compensation other than the receipt of any options which have already
vested as of the termination date.
C. OTHER EVENTS. Other events which will result in the termination of
this contract are:
1. The date on which Xxxxxxx agrees to terminate this Agreement.
2. The disability of Xxxxxxx. Disability herein is defined as being
unable to perform the duties hereunder due to a physical and/or mental
condition or impairment for one hundred eighty (180) consecutive days
during the term of this Agreement or 120 consecutive days in any 365 day
period during the term.
3. The date on which Xxxxxxx voluntarily ceases to perform his
duties hereunder, other than by reason of physical or mental condition
prior to the time that a disability occurs. In the event that the
Corporation shall be sold, merged, devolved, consolidated or materially
reorganized (within the term of this Agreement and Xxxxxxx'x position is
eliminated, the Company will pay to Xxxxxxx within Thirty (30) days of such
event the balance of the compensation which would be due to complete the
term of this agreement. In addition, all then unvested stock options shall
become immediately vested and exercisable.
Any unilateral termination of Xxxxxxx by the Corporation other than for
"Cause", "Actions Deemed Not in the Best Interests", or the reasons indicated in
9.(C)(1) through 9.(C)(3) above shall be considered a material breach of this
agreement, the pre-agreed remedy for which is the payment in cash within thirty
(30) days of such termination, the full compensation which would be due to
complete the three year term of this agreement, including any and all
compensation, warrants, options or bonus compensation, plus the continuation of
benefits for a period of twelve months. If terminated for "Actions Deemed Not
in the Best Interests", the Corporation must show that it has a reasonable basis
for believing that the actions or associations are or could be materially
detrimental to the Corporation.
10. NO SOLICITATION OF EMPLOYEES. During the period of this Agreement and
for two (2) full years following termination of this Agreement, Xxxxxxx shall
not, for any reason either directly or indirectly, solicit for employment or
employ for any other entity any employee of the Corporation.
11. AGREEMENT NOT TO COMPETE. During the period of this Agreement and for
two (2) full years following termination of this Agreement (a total of five
years), Xxxxxxx shall not, for any reason either directly or indirectly, compete
with SeraCare either directly through owning and operating
-3-
a plasma center, or by being a significant investor, officer or key employee of
any company which competes with the Corporation. On a geographic basis, compete
is defined to mean being in the plasma collection business within a fifty mile
radius of an existing SeraCare collection center.
12. WITHHOLDING. Xxxxxxx authorizes the Corporation to withhold and/or
deduct from his compensation (including, without limitation, salary and wages),
deductions to recover any amounts loaned by the Corporation to Xxxxxxx or paid
on Xxxxxxx'x behalf which, under the terms of said loan or payment, must be
repaid to the Corporation including, without limitation, loans of money and the
value of any of the Corporations property taken but not returned by Xxxxxxx.
Corporation shall also have the expressed right to deduct all sums required for
federal, state, or local income, Social Security or other taxes now applicable
or that may be enacted in the future.
13. NOTICE. Any notice provided to be given pursuant to this Agreement
shall be in writing and shall be deemed duly given three days after deposited in
the mail, certified mail, return receipt requested, to the party to receive such
notice at the address specified below:
The Corporation: American Blood Institute, Inc.
DBA - SeraCare
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Board of Directors
For Xxxxxxx: Xxxxx X. Xxxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
14. GOVERNING LAW. The validity of this Agreement and the interpretation
and performance of all of its terms shall be controlled exclusively by the
substantive law of California, including California law concerning the
interpretation and performance of contracts.
15. ENFORCEABILITY. Any provision of this Agreement which is invalid,
illegal, or unenforceable shall be ineffective only to the extent of such
invalidity, illegality, or unenforceability, without affecting in any way the
remaining provisions hereof or rendering the remaining provisions hereof
invalid, illegal, or unenforceable.
16. WAIVER. The failure of either party hereto to insist upon strict
compliance with any of the terms, covenants or conditions of this Agreement by
the other party shall not be deemed a waiver of that or any other term,
covenant, or condition, nor shall any waiver or relinquishment of any right or
power at any one time or times be deemed a waiver or relinquishment of that
right or power for all or any other times.
17. ARBITRATION. Any controversy between the Corporation and Xxxxxxx
involving the construction, application or breach of any of the terms,
provisions, or conditions of this Agreement shall be settled by arbitration in
accordance with the rules of the American Arbitration Association then in effect
(the AAA Rules). Such arbitration shall take place in Los Angeles, California
and shall be conducted by three arbitrators, one of which shall be selected by
each party, and the third of which shall be selected by the two arbitrators
within the time limits established in the AAA Rules. The decision of the
arbitrators may be enforced in any court having jurisdiction over the party
against which
-4-
enforcement is sought or its assets. The cost of such arbitration including the
associated attorney fees, arbitrator fees, filing fees, AAA fees and other legal
costs shall be borne by the losing party.
18. TRADE SECRETS, CONFIDENTIAL, AND PROPRIETARY INFORMATION.
X. Xxxxxxx and Corporation acknowledge and agree that during the
term of this Agreement and in the course of the discharge of his duties
hereunder, Xxxxxxx shall have access to and become acquainted with
information owned by the Corporation concerning its operation, which
information derives independent economic value from not being generally
known to the public or competitors, and which includes, without limitation:
(1) manufacturing processes, research, and engineering, (2) marketing data
and techniques, (3) trademarks, tradenames, and servicemarks, (4) customer
and client bases and lists, and (5) financial and personnel information.
Said information constitutes Employer's trade secret, confidential and
proprietary information.
X. Xxxxxxx agrees that he shall not at any time (during the period
of this agreement or any future time) disclose any such trade secret,
confidential, or proprietary information, directly or indirectly, to any
other person or use it in any way other than as required in the ordinary
course of his employment under this agreement.
X. Xxxxxxx further agrees that all files, records, documents,
equipment, and similar items relating the Corporation's business
(including, without limitation, items containing trade secret, confidential
or proprietary information), whether prepared by Xxxxxxx or others,
including all originals and copies, are and shall be returned to the
Corporation upon Xxxxxxx'x termination.
X. Xxxxxxx further agrees that during the period of his employment
by the Corporation and after termination thereof, he will not disrupt,
damage, disparage, impair, or interfere with the Corporation's business or
its reputation, whether by way of interfering with or soliciting its
employees, disrupting its relationships with or soliciting clients or
customers, agents, representatives, or vendors, aiding competitors, or by
way of any other conduct.
19. NON-ASSIGNABILITY. Xxxxx may not assign any of his rights or
responsibilities under this Agreement.
20. ENTIRE AGREEMENT. This Amended Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the employment of Xxxxxxx by the Corporation and contains all of the
covenants and agreements between the parties with respect to that employment in
any manner whatsoever. Each party to this Agreement acknowledges that no
representation, inducements, promises, or agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not
embodied herein, and that no other agreement, statement, or promise not
contained in this Agreement shall be valid or binding on either party.
21. MODIFICATIONS. Any modification of this Agreement shall be effective
only if it is in writing and signed by both parties to this Agreement.
22. LEGAL ACTION. In the event of any litigation or arbitration between
or among the parties hereto respecting or arising out of this Agreement, the
successful or prevailing party shall be entitled to recover reasonable
attorney's fees incurred after a judgement has been rendered by a court of
competent jurisdiction. Any judgement shall include an attorneys' fees clause
which shall entitle the judgement creditor to recover attorneys' fees incurred
to enforce a judgement hereon, which attorneys'
-5-
fees shall be an element of post-judgement costs; the parties agree that this
attorneys' fee provision shall not merge into any judgement.
IN WITNESS WHEREOF, the parties hereto, effective as of November 14, 1995
do hereby authorize and acknowledge that this Agreement be the effective
agreement between the parties. It is understood that this Agreement will be
filed as an amendment to the Reorganization Plan for the Corporation and will
become effective on the Effective Date of such Plan of Reorganization.
Accepted By:
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
First Equity Capital Securities, Inc.
On behalf of the investment group
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxx, Xx.
------------------- -------------------------
Xxxxx X. Xxxxxxx Xxxxxx X. Xxxxx, Xx.
An individual President & Chairman
American Blood Institute, Inc.
-6-
