EXHIBIT 10.3
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EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement") is entered into
effective as of October 23, 1998 (the "Effective Date") between Xxxxxx
Xxxxx (the"Executive") residing at 00 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000 and
Haemonetics Corporation (the "Company"), a Massachusetts corporation with
its principal executive offices at 000 Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx,
00000.
ARTICLE 1. EMPLOYMENT OF EXECUTIVE
1.1 Employment. Subject to the terms and conditions of this Agreement,
the Company agrees to employ Executive in a full time capacity to serve as
Corp. Vice President & General Counsel of the Company and to perform such
specific duties as may reasonably be assigned to Executive from time to
time by the Company's President for the period commencing on the Effective
Date and continuing until terminated as herein provided. Executive hereby
accepts such employment for the term hereof.
1.2 Full-Time Commitment. During the period of Executive's employment
with the Company, Executive will, unless prevented by ill-health, devote
his whole attention and business time to the performance of his duties
hereunder for the business of the Company.
ARTICLE 2. COMPENSATION
For all services to be rendered by Executive to the Company pursuant
to this Agreement, the Company shall pay to Executive the compensation and
provide for Executive the benefits set forth below:
2.1 Base Salary. The Company shall pay to Executive a base salary at the
rate of $190,000 per annum until May 1, 1999 and at that time will be
reviewed for a potential change. In addition, the executive will have a
bonus plan. For FY99, the 100% performance and payout is set at $70,000.
This will be reviewed annually to correspond with the date of the base
salary review.
2.2 Fringe Benefits. During the term of Executive's employment hereunder
the Company shall provide Executive with such benefits as are generally
made available by the Company to its other full time executive employees,
including reasonable travel expenses incurred while engaged in Company
business.
2.3 Participation in Share Option Plan. Executive shall be entitled to
participate in the Company's Non-Qualified Stock Option Plan (the "Plan")
as approved from time to time by the Board of Directors.
2.4 Option Grant. Upon execution of this Agreement, Executive shall
receive 25,000 non-qualified stock option for common stock of the Company
at the price of $18.9375 per share which is the NYSE close price on
February 3, 1999. All such options shall vest 25% per year over four years,
with the first 25% to vest 12 months after the date of grant, and
additional 25% vesting to occur on each of the next three 12 month
anniversaries of the date of grant.
ARTICLE 3. TERMINATION
3.1 Term. Unless earlier terminated as herein provided, Executive's
employment shall commence on the Effective Date and continue for an initial
period ending on January 30, 2001. Executive's employment with the Company
shall automatically be renewed on a year-to-year basis unless either party
notifies the other party otherwise at least ninety (90) days prior to
termination of the initial term or of any renewal term.
3.2 Termination for Cause -by the Company. The Company may terminate
Executive's employment for "Cause" upon the occurrence of any of the
following events:
(i) Executive shall have willfully failed or continued to fail
substantially to perform his duties hereunder (other than any failure
resulting from Executive's incapacity due to physical or mental
illness) for 30 days after a written demand for performance is
delivered to Executive on behalf of the Company which specifically
identifies the manner in which it is alleged that Executive has not
substantially performed his duties; provided that the Company's
economic performance or failure to meet any specific projection shall
not, in and of itself, constitute "Cause."
(ii) Executive shall have engaged in (A) any misappropriation of
funds,properties or assets of the Company, (B) any malicious damage
or destruction of any property or assets of the Company, whether
resulting from Executive's willful action or omissions or negligence,
or (C) any falsification of any books, records, documents or systems
of the Company.
(iii) Executive shall (A) have been convicted of a crime involving
moral turpitude or constituting a felony, or (B) commit or knowingly
allow to be committed any illegal action on any premises of, or
involving any property or assets of, the Company.
3.3 Termination for Cause -by Executive. Executive may terminate his
employment with the Company for "Cause" upon the occurrence of any of the
following events:
(i) the Company shall breach any of the material provisions of this
Agreement and such breach shall remain uncured by or on behalf of the
Company within thirty (30) days following its receipt of notice from
Executive which specifically identifies the manner in which it is
alleged that Company be committed such breach;
(ii) the Company shall fail to obtain a satisfactory agreement from
any successor to assume and agree to perform this Agreement, as
contemplated in Section 5.4;
(iii) a materially adverse change in the responsibilities assigned to
Executive by the Company or in the compensation and benefits paid by
Company to the Executive shall have occurred such material adverse
change shall remain uncured by or on behalf of the Company within
thirty (30) days following its receipt of notice from Executive
specifically identifying such material adverse change; or
(iv) a materially adverse change in Executive's title shall have
occurred. Executive's right to terminate his employment pursuant to
this section shall not be affected by his incapacity due to physical
or mental illness. Executive's continued employment shall not
constitute consent to, or a waiver of rights with respect to, any
circumstance constituting a Cause for termination by the Executive or
the Company.
3.4 Change in Control. If, following a "Change in Control" (as defined
below), Executive's full time position with the Company is eliminated or
permanently transferred to a location other than its present location, and
following such elimination or transfer, the Company does not offer to
employ Executive in a comparable or better position in her current
location, on a full-time basis, at a comparable or better rate of pay, then
Executive shall be entitled to severance payments and benefits in
accordance with Article 4 below, provided however that severance payments
shall be made in lump sum, and in an amount which equals two (2) times then
current Base Salary.
For purposes of this Agreement, a "Change in Control" shall mean a
change in control of the company of a nature that would be required to be
reported in response to Item 6( e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), whether or not the Company is, in fact, required to comply
therewith; provided that, without limitation, such a change in control for
purposes of this Agreement shall be deemed to have occurred if:
(i) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act), other than the Company, any trustee or other
fiduciary holding securities under an employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the
stockholder of the Company in substantially the same proportions as
their ownership of stock of the Company is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under. the Exchange Act), directly
or indirectly, of securities of the company representing 51 % or more
of the combined voting power of the Company's then outstanding
securities;
(ii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than
(A) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least
50% of the combined voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation, or (B) a merger or consolidation effected to implement
a
recapitalization of the company (or similar transaction) in which
no "person" (as herein above defined) acquires 50% or more of the
combined voting power of the Company's then outstanding securities;
or
(iii) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company's assets.
3.5 Death. In the event of the death of Executive, Executive's
employment by the Company shall automatically terminate as of the date of
his death.
3.6 Disability. In the event of the Disability of the Executive, as
defined herein, the Company may terminate Executive's employment hereunder
upon written notice to Executive. The term "Disability" shall mean the
inability of Executive to perform substantially his material duties
hereunder due to physical or mental disablement which continues for a
period of one hundred eighty (180) consecutive days, as determined by an
independent qualified physician mutually acceptable to the Company and
Executive (or his personal representative) or, if the Company and
Executive(or such representative) are unable to agree on an independent
qualified physician, as determined by a panel of three physicians, one
designated by the Company, one designated by Executive (or his personal
representative) and one designated by the two physicians so designated.
ARTICLE 4. SEVERANCE PAYMENTS AND BENEFITS
4.1 Termination Events Resulting in Severance Payments. In the event of
the termination of the Executive's employment:
(i) by the company without "Cause", or
(ii) under Section 3.3 or 3.4,
then the Company shall pay Executive, as a severance payment, an amount
equal to Executive's annual base salary as set forth in Section 2.1 and
such payment shall be made in twelve (12) equal monthly payments during the
period commencing on the date such termination occurs (the "Termination
Date") and ending one (1) year thereafter (the "Severance Period").
4.2 Benefits. If Section 4.1 is applicable, the Company shall also
provide to Executive during the Severance Period, at the Company's expense,
such benefits as are in effect and applicable to Executive as of the
Termination Date, except to the extent expressly prohibited by the terms of
such benefits.
4.3 Comparable Benefits: Continuation of Benefits. If by operation of
law or under the terms of the relevant plan, program or policy, Executive
is not eligible to receive any of the payments or benefits described in the
foregoing Section 4.2 during the Severance Period, then the Company shall
provide to Executive substantially equivalent benefits or, at Executive's
election, the cash value of equivalent benefits.
ARTICLE 5. PROPRIETARY INFORMATION AND NON-COMPETITION
5.1 For the purposes of this Article 5, the following shall have the
designated meanings.
5.1.1. Proprietary Information: Information of value to the Company
and not generally available to the public of whatever kind or nature
disclosed to the Executive or known by the Executive (whether or not
invented, discovered or developed by the Executive) as a consequence
of or through the Executive's employment with the Company.
Proprietary Information shall include information relating to the
design, manufacture, application, know-how,research and development
relating to the Company's products, sources of supply and material,
operating and other cost data, lists of present, past, or prospective
customers, customer proposals, price lists and data relating to
pricing of the Company's products or services, and shall specifically
include all information contained in manuals, memoranda,
formulae,plans, drawings and designs, specifications, supply sources,
and records of the Company legended or otherwise identified by the
Company as Proprietary Information, whether learned by the Executive
prior to or after the date hereof.
5.1.2. Concepts and Ideas: Those concepts and ideas known to the
Executive relating to the Company's present and prospective
activities and products.
5.1.3. Inventions: Discoveries and developments, whether or not
patentable. Such terms shall not be limited to the meaning of
"invention" under the United States Patent Laws.
5.2 All Inventions which are at any time "made" i.e., conceived or
reduced to practice by the Executive, acting alone or in conjunction with
others, during or in connection with the Executive's employment (or, if
based on or related to Proprietary Information, "made" by the Executive
within twelve (12) months after the termination of such employment) and all
Concepts and Ideas held by the Executive shall be the property of the
Company, free of any reserved or other rights of any kind on the
Executive's part in respect thereof.
5.3 The Executive will promptly make full disclosure to the Company in
writing to the Manager of Engineering or the Manager of Research &
Development of any such Inventions and Concepts and Ideas. Further, the
Executive will, at the Company's costs and expense, promptly execute formal
applications for patents and also do all other acts and things (including,
among other, the execution and delivery of instruments of further assurance
or confirmation) deemed by the Company to be necessary or desirable at any
time or times in order to effect the full assignment to the Company of all
right and title to such Inventions and Concepts and Ideas, without, during
the term of this Agreement, further compensation. The absence of a request
by the Company for information, or for the making of an oath, or for the
execution of any document, shall in no way be construed to constitute a
waiver of the Company's rights under this Agreement.
5.4 Except as required by the Executive's duties hereunder, the Executive
will not, directly or indirectly, use, publish, disseminate, or otherwise
disclose any Proprietary Information, Concepts and Ideas or Inventions
without the prior written consent of the Company.
5.5 All documents, procedural manuals, guides, specifications,
plans,drawings, designs and similar materials, lists of present, past or
prospective customers, customer proposals, invitations to submit proposals,
price lists and data relating to pricing of the Company's products and
services, records, notebooks and similar repositories of or containing
Proprietary Information and Inventions, including all copies thereof, that
come into the Executive's possession or control by reasons of the
Executive's employment, whether prepared by the Executive or others, are
the property of the Company, will not be used by the Executive in any was
adverse to the Company, will not be removed from the Company's premises
except as the Executive's normal duties require and, at the termination of
the Executive's employment with the Company, will be left with or forthwith
returned by the Executive to the Company.
5.6 During the time the Executive is an employee of the Company and for a
period of one (1) year thereafter, the Executive will not engage in any
activity, on his own behalf or on behalf of any competitor of the Company,
which is in the field of blood processing and involves activities similar
to those performed at the Company, nor will the Executive endeavor to
entice away from the Company any employee whether on the Executive's behalf
or on the behalf of another while the Executive is an employee and for a
period of one (1) year thereafter.
ARTICLE 6 MISCELLANEOUS
6.1 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to be one and the same instrument.
6.2 Binding Effect. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, successors and
assigns. If Executive should die while any amount due to him at such time
remains unpaid, such amount, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to his devisee, legatee
or other designee or of there is no such designee, to his estate.
6.3 Assignment. Except as otherwise provided in Section 5.4, neither
this Agreement nor any rights or obligations hereunder shall be assignable
by either party hereto without the prior written consent of the other
party.
6.4 Obligation of the Company's Successors. Any successor to the
business of the Company, whether directly or indirectly by merger,
consolidation, recapitalization, combination, purchase of stock, purchase
of assets or otherwise, shall succeed to the rights and obligations of the
Company
hereunder. The company will require any such successor to expressly assume
and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such
succession had taken place.
6.5 Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration
conducted before a panel of three arbitrators in the Commonwealth of
Massachusetts in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's
award in any court having jurisdiction.
6.6 Notices. All notices, requests, demand and other communications to
be given pursuant to this Agreement shall be in writing and shall be deemed
to have been duly given if delivered by hand or mailed by registered or
certified mail, return receipt requested, postage prepaid, as follows:
If to the Company, to:
Haemonetics Corporation
000 Xxxx Xxxx Xxxxxxxxx, XX 00000
If to Executive, to:
00 Xxxxxxx Xxxxxx Xxxxxx, XX 00000
or such other address as either party hereto shall have designated by
notice in writing to the other party.
6.7 Amendments. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by Executive and such officer as may be specifically
designated by the Board. No waiver by either party hereto at any time of
any breach by the other party hereto of, or compliance with, any condition
or provision of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time.
6.8 Governing Law. This Agreement and the legal relations between the
parties hereto shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts.
6.9 Severability. In case any provision hereof shall, for any reason, be
held to be invalid or unenforceable in any respect, such invalidity or
unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid or unenforceable provision
had not been included herein. If any provision hereof shall, for any
reason, be held by a court to be excessively broad as to duration,
geographical scope, activity or subject matter, it shall be construed by
limiting and reducing it to make it enforceable to the extent compatible
with applicable law then in effect.
6.10 Withholding. Any payments provided for hereunder shall be paid after
deducting any applicable withholding required under federal, state or local
law.
6.11 Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supersedes the provisions of all prior agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral
or written, by any officer, employee or representative of any party hereto
with respect to the subject matter hereof. A certain Patent, Trade Secrets
and Confidential Information Agreement between the Company and the
Executive dated October 1, 1979 is hereby terminated and canceled in its
entirety. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement.
6.12 Confidentiality. This Agreement, including the terms thereof, shall
not be disclosed by Executive other than to Executive's a) spouse, b) legal
counselor c) financial advisor, or d) if required by law or court order,
but only if Company is first notified of Executive's reasonable belief that
such disclosure is necessary and given an opportunity to secure a
protective order prohibiting or limiting disclosure.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Agreement under seal as of the date first above written.
s/ Xxxxxx Xxxxx s/Xxxxx X. Xxxxxxxx
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Xxxxxx Xxxxx Xxxxx X. Xxxxxxxx
Date: 2/1/99
