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EXHIBIT 10.26
EMPLOYMENT AGREEMENT
DATED JANUARY 1, 1997
BETWEEN XXXX X. XXXXXXXX AND NABI
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NABI
0000 XXXX XX XXXXXXXX XXXXXXXXX, X.X.
XXXX XXXXX, XXXXXXX 00000
EFFECTIVE AS OF JANUARY 1, 1997
Xx. Xxxx X. Xxxxxxxx
10401 Reo Lindo
Xxxxxx Xxxxx, Xxxxxxx 00000
Dear Xxxx:
You have agreed to serve as Executive Vice President, Chief Operating Officer
for NABI. The following are the terms of such employment:
1. TERM: You will serve as Executive Vice President, Chief Operating
Officer of NABI a period beginning as of the date hereof and ending on
December 31, 1999, unless your employment is sooner terminated as provided
below (the "Employment Period").
2. SALARY: Your salary will be $240,000.00 per year, payable bi-weekly
during the Employment Period. Your salary will be subject to
discretionary annual increases as determined by NABI's Board of Directors.
3. BONUS: You will be entitled to participate in NABI's VIP Management
Incentive Program.
Unless the Employment Period is terminated for "cause" pursuant to Section
7(B)(b) below, bonus compensation shall be pro rated in respect of any
calendar year during which the Employment Period terminates based on the
amount of bonus compensation which would have been payable with respect to
such year based on your original VIP Management Incentive Program
participation, divided by 12, times the number of full calendar months
during the relevant year you were employed prior to the termination of the
Employment Period. If the Employment Period is terminated pursuant to
Section 7(B)(b) below, no bonus compensation is payable with respect to
the calendar year during which it is terminated.
Bonus payments shall be payable within 120 days after the end of the
relevant calendar year.
4. AUTO ALLOWANCE: You, while an employee under the terms of this
Agreement, shall receive an auto allowance of not less than $900.00 per
month.
5. BENEFITS: You will be eligible to participate in NABI's 401(k),
medical/dental insurance, life insurance, executive long term disability
program, Supplemental Executive Retirement Plan (SERP), and other benefit
programs upon the effective date of this Agreement. You will accrue Paid
Leave Bank (PLB) time at the rate of 18.67 hours per month.
6. DUTIES AND EXTENT OF SERVICES:
(A) During the Employment Period, you agree to devote substantially all of
your working time, and such energy, knowledge, and efforts as is necessary
to the discharge and performance of your duties provided for in this
Agreement and such other reasonable duties and responsibilities consistent
with your position as are assigned to you from time to time by the person
to whom you report. You shall be located primarily in NABI's Boca Raton,
Florida, facilities, but shall travel to other locations from time to time
as shall be reasonably required in the course of performance of your
duties.
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(B) During the Employment Period, you shall serve as NABI's Executive Vice
President, Chief Operating Officer. You shall have such duties as are
delegated to you by the person to whom you report provided that such duties
shall be reasonably consistent with those duties assigned to executive
officers having similar titles in organizations comparable to NABI.
7. TERMINATION:
(A) The Employment Period shall terminate upon your death. You may also
terminate the Employment Period upon 180 days' prior written notice to
NABI. Any termination pursuant to this Section 7(A) shall not affect any
bonus compensation applicable to the year of such termination, provided
that any bonus compensation payable pursuant to Section 3 of this Agreement
shall be pro rated as provided for in Section 3.
(B) NABI may terminate the Employment Period in the event of (a) your
disability that prevents you from performing your obligations pursuant to
this Agreement for any three (3) consecutive months or (b) for "cause",
which is defined as (i) commission of fraud or embezzlement or other
felonious acts by you, (ii) your refusal to comply with reasonable
directions in connection with the performance of your duties as provided
for in Section 6 of this Agreement after notice of such failure is
delivered to you, (iii) failure to comply with the provisions of Section 8
or 9 of this Agreement or (iv) your gross negligence in connection with the
performance of your duties as provided for in this Agreement, which gross
negligence causes material damage to NABI, provided that, in the event of
termination under this clause (B), you shall receive ten (10) days notice
of such failure prior to termination and a determination must be made by
NABI's Board of Directors or a duly appointed committee of the Board, after
you are afforded an opportunity to be heard, that it is, at the date of
such termination, reasonable to conclude that grounds for such termination
under this clause (B) still exists.
(C) NABI may otherwise terminate the Employment Period upon thirty (30)
days' prior notice to you. In the event of such termination based on the
effective date of such termination, NABI will pay you severance pay of
twelve (12) months of your annual base salary as in effect at the time of
such termination ("Severance Pay") and maintain in effect for a twelve (12)
month period all then existing benefits, (subject to the limitations of the
applicable plans), including but not limited to, the auto allowance, life
insurance, short and long term disability programs, health care coverages,
and SERP benefits. Severance Pay provided for in this paragraph shall be
made in twelve (12) equal monthly installments. If you terminate your
employment with NABI within thirty (30) days of the expiration of the
Employment Period, you shall be entitled to receive Severance Pay under
Section 7C unless during the thirty (30) day period prior to the expiration
of the Employment Period, NABI offered to renew this Agreement on terms no
less favorable to you than the terms then in effect.
(D) If your employment terminates pursuant to Section 7B(a) or Section 7C,
all non-vested stock options, restricted stock or similar incentive equity
instruments pursuant to the Company's 1990 Equity Incentive Plan and/or
successor plans (the "Options") shall immediately vest. All such "Options"
shall be exercisable for one (1) year past termination date, except that no
"Options" shall be exercisable beyond the original "Option" expiration
date. To the extent the terms of any "Options" are inconsistent with this
Agreement, the terms of this Agreement shall control.
(E) Your confidentiality and non-competition agreements set forth in
Sections 8 and 9 below shall survive the termination of your employment
regardless of the reasons therefor.
8. CONFIDENTIALITY: You acknowledge that your duties as described in
Section 6 of this Agreement will give you access to trade secrets and
other confidential information of NABI and/or its affiliates, including
but not limited to information concerning production and marketing of
their respective products, customer lists, and other information relating
to their present or future operations (all of the foregoing, whether or not
it qualifies as a "trade secret" under applicable law, is collectively
called "Confidential Information"). You recognize that Confidential
Information is proprietary to each such entity and gives each of them
significant competitive advantage.
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Accordingly, you shall not use or disclose any of the Confidential
Information during or after the Employment Period, except for the sole and
exclusive benefit of the relevant company. Upon any termination of the
Employment Period, you will return to the relevant company's office all
documents, computer tapes, and other tangible embodiments of any
Confidential Information. You agree that NABI would be irreparably injured
by any breach of your confidentiality agreement, that such injury would not
be adequately compensable by monetary damages, and that, accordingly, the
offended company may specifically enforce the provisions of this Section by
injunction or similar remedy by any court of competent jurisdiction without
affecting any claim for damages.
9. NON-COMPETITION:
(A) You acknowledge that your services to be rendered are of a special and
unusual character and have a unique value to NABI the loss of which cannot
adequately be compensated by damages in an action at law. In view of the
unique value of the services, and because of the Confidential Information
to be obtained by or disclosed to you, and as a material inducement to NABI
to enter into this Agreement and to pay to you the compensation referred to
above and other consideration provided, you covenant and agree that you
will not, during the term of your employment by NABI and for a period of
one (1) year after termination of such employment for any reason
whatsoever, you will not, directly or indirectly, (a) engage or become
interested, as owner, employee, consultant, partner, through stock
ownership (except ownership of less than five percent of any class of
securities which are publicly traded), investment of capital, lending of
money or property, rendering of services, or otherwise, either alone or in
association with others, in the operations, management or supervision of
any type of business or enterprise engaged in any business which is
competitive with any business of NABI (a "Competitive Business"), (b)
solicit or accept orders from any current or past customer of NABI for
products or services offered or sold by, or competitive with products or
services offered or sold by, NABI, (c) induce or attempt to induce any such
customer to reduce such customer's purchase of products or services from
NABI, (d) disclose or use for the benefit of any Competitive Business the
name and/or requirements of any such customer or (e) solicit any of NABI's
employees to leave the employ of NABI or hire or negotiate for the
employment of any employee of NABI.
(B) You have carefully read and considered the provisions of this Section
and Section 8 and having done so, agree that the restrictions set forth
(including but not limited to the time period of restriction and the world
wide areas of restriction) are fair and reasonable (even if termination is
at our request and without cause) and are reasonably required for the
protection of the interest of NABI, its officers, directors, and other
employees. You acknowledge that upon termination of this Agreement for any
reason, it may be necessary for you to relocate to another area, and you
agree that this restriction is fair and reasonable and is reasonably
required for the protection of the interests of NABI, its officers,
directors, and other employees.
(C) In the event that, notwithstanding the foregoing, any of the
provisions of this Section or Section 8 shall be held to be invalid or
unenforceable, the remaining provisions thereof shall nevertheless continue
to be valid and enforceable as though invalid or unenforceable parts had
not been included therein. In the event that any provision of this Section
relating to time period and/or areas of restriction shall be declared by a
court of competent jurisdiction to exceed the maximum time period or areas
such court deems reasonable and enforceable, said time period and/or areas
of restriction shall be deemed to become, and thereafter be, the maximum
time period and/or area which such court deems reasonable and enforceable.
(D) With respect to the provisions of this Section, you agree that
damages, by themselves, are an inadequate remedy at law, that a material
breach of the provisions of this Section would cause irreparable injury to
the aggrieved party, and that provisions of this Section 9 may be
specifically enforced by injunction or similar remedy in any court of
competent jurisdiction without affecting any claim for damages.
10. MISCELLANEOUS: This Agreement and the rights and obligations of the
parties pursuant to it and any other instruments or documents issued
pursuant to it shall be construed, interpreted and enforced in accordance
with the laws of the State of Florida, exclusive of its choice-of-law
principles. This
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Agreement shall be binding upon and inure to the benefit of the parties
hereto, and their respective successors and assigns. The provisions of
this Agreement shall be severable and the illegality, unenforceability or
invalidity of any provision of this Agreement shall not affect or impair
the remaining provisions hereof, and each provision of this Agreement shall
be construed to be valid and enforceable to the full extent permitted by
law. In any suit, action or proceeding arising out of or in connection
with this Agreement, the prevailing party shall be entitled to receive an
award of the reasonable related amount of attorneys' fees and disbursements
incurred by such party, including fees and disbursements on appeal. This
Agreement is a complete expression of all agreements of the parties
relating to the subject matter hereof, and all prior or contemporaneous
oral or written understandings or agreements shall be null and void except
to the extent set forth in this Agreement.
This Agreement cannot be amended orally, or by any course of conduct or
dealing, but only by a written agreement signed by the party to be charged
therewith. All notices required and allowed hereunder shall be in writing,
and shall be deemed given upon deposit in the Certified Mail, Return
Receipt Requested, first-class postage and registration fees prepaid, and
correctly addressed to the party for whom intended at its address set forth
under its name below, or to such other address as has been most recently
specified by a party by one or more counterparts, each of which shall
constitute one and the same agreement. All references to genders or number
in this Agreement shall be deemed interchangeably to have a masculine,
feminine, neuter, singular or plural meaning, as the sense of the context
required.
If the foregoing confirms your understanding of our agreements, please so
indicate by signing in the space provided below and returning a signed copy
to us.
NABI
0000 XXXX XX XXXXXXXX XXXXXXXXX, X.X.
XXXX XXXXX, XXXXXXX 00000
BY: /s/ XXXXX X. XXXX
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XXXXX X. XXXX
CHIEF EXECUTIVE OFFICER
ACCEPTED AND AGREED:
/s/ XXXX X. XXXXXXXX
-----------------------------------
XXXX X. XXXXXXXX
10401 REO LINDO
XXXXXX XXXXX, XXXXXXX 00000
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