Exhibit 10.16
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made as of December 1, 1997, by and between
COMMONWEALTH BIOTECHNOLOGIES, INC., a Virginia corporation (the "Employer"), and
Xxxxx X. Xxxxxxx (the "Employee").
In consideration of the mutual covenants contained herein, the Employer
and the Employee agree as follows:
1. Employment. The Employer agrees to employ the Employee and the
Employee agrees to enter into the employ of the Employer on the terms and
conditions hereinafter set forth. The Employee shall serve the Employer in such
capacities as may be prescribed from time to time by the President of the
Employer.
2. Effective Date and Term. The commencement date of this Agreement
shall be as of December 1, 1997 (the "Commencement Date"). Subject to the
provisions of Section 5, the term of the Employee's employment hereunder shall
be for one year from the Commencement Date; provided, however, that the term
shall be extended automatically for as additional period of one year commencing
on the first anniversary of the Commencement Date and on each subsequent
anniversary thereafter, unless either the Employee or the Employer gives written
notice to the other, at least 30 days prior to the date of any such anniversary,
of such party's election not to extend the terms of this Agreement. The last day
of such term as so extended from tune to lima, is herein sometimes referred to
as the "Expiration Date."
3. Compensation and Benefits. The regular compensation and benefits
payable to the Employee under this Agreement shall be as follows:
(a) For all services rendered by the Employee under this Agreement
the Employer shall pay the Employee a total salary at the rate of $65,000 per
year, subject to increase from time to time in accordance with the usual
practice of the Employer with respect review of compensation of its employees.
The Employee's salary shall be payable in periodic installments in accordance
with the Employer's usual practice for its employees.
(b) Stock Options. The Employee shall be eligible for Stock Options,
if any, in an amount to be determined as recommended by the Employer Management
(the Employee Directors), but at the sole discretion of the Compensation
Committee of the Employer's Board of Directors.
(c) Annual Bonus. For each complete calendar year ending during the
term hereof, the Employee shall be entitled to a cash bonus (the "Bonus") (the
"Bonus's equal to 0.5% of the cumulative earnings before taxes ("Pre-Tax
Earnings") (as defined below) of the Employer during each complete calendar year
hereof, commencing with the calendar year, 1998.
(i) Calculation of Payment. The Employer shall calculate and pay
the Bonus for each year within 30 days after the Company's receipt from its
independent auditor of
audited financial statements for each calendar year (the "Audit Release Date"),
should any Bonus be due.
The Employer shall provide to the Employee concurrently with the payment of the
Bonus or, if the Employer determines that no Bonus is due in respect of a year
during the term of this Agreement, then within 30 days following the Audit
Release Date, a statement of its Chief Financial Officer (or other appropriate
Officer of the Company designated by the President), regarding the calculation
of the Bonus payable with respect to such year. Such statement shall provide
such computations and set forth such detail as is reasonably necessary to
substantiate the calculation of Pre-Tax Earnings and the amount of the Bonus
payable with respect to such year.
(ii) Pre-Tax Earnings. Pretax earnings shall mean for any year
of the Employer, the net income of the Employer for such year determined by the
Employer's auditors on a stand-alone basis in accordance with generally accepted
accounting principles consistently applied plus, to the extent deducted in
determining net income and without duplication, total income tax expenses,
including for this purpose any amounts paid under a tax-sharing or similar
agreement or arrangement in lieu of such taxes; minus to the extent including in
determining net income and without duplication, any extraordinary gains.
(d) Regular Benefits. The Employee shall also be entitled to
participate in any and all employee benefit plans from time to time in effect
for employees of the Employer. Such participation shall be subject to (i) the
terms of the applicable plan documents, (ii) generally applicable policies of
the Employer and (iii) the discretion of the Management and Board of Directors
of the Employer or any administrative or other committee provided for in or
contemplated by such plan.
(e) Business Expenses. The Employer shall reimburse the Employer for
all reasonable, pre-approved travel and other business expenses incurred by him
in the performance of his duties and responsibilities, subject to such
reasonable requirements with respect to substantiation and documentation as may
be specified by the Employer.
(f) Vacation. The Employee shall be entitled to such number of weeks
of vacation per year as shall be provided for in the Employer's employee
handbook as the same shall be modified from time to time, to be taken at such
times and intervals as shall be determined by the Employee with the approval of
the Employer, which approval shall not be unreasonably withheld.
4. Extent of Service. During his employment hereunder, the Employee
shall, subject to the direction and supervision of the President of the
Employer, devote his full business time, best efforts and business judgment,
skill and knowledge to the advancement of the Employer's interests and to the
discharge of his duties and responsibilities hereunder. He shall not engage in
any other business activity, except as may be approved by the President of the
Employer.
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5. Termination and Termination Benefits.
Notwithstanding the provisions of Section 2, the Employee's
employment hereunder shall terminate under the following circumstances and shall
be subject to the follow provisions:
(a) Death. In the event of the Employee's death during the
Employee's employment hereunder, the Employee's employment shall terminate on
the date of his death.
(b) Termination by the Employer for Cause. The Employee's employment
hereunder may be terminated without further liability on the part of the
Employer effective immediately by a vote of the Management of the Employer for
Cause by written notice to the Employee setting forth in reasonable detail the
nature of such Cause. Only the following shall constitute "Cause" for such
termination:
(i) gross incompetence, gross negligence, willful misconduct in
office or breach of a material fiduciary duty owed to the Employer or any
subsidiary or affiliate thereof;
(ii) conviction of a felony, a crime of moral turpitude or
commission of an act of embezzlement or fraud against the Employer or any
subsidiary or affiliate thereof;
(iii) any material breach by the Employee of a material term of
this Agreement, including without limitation material failure to perform a
substantial portion of his duties and responsibilities hereunder; or
(iv) deliberate dishonesty of the Employee with respect to the
Employer or any subsidiary or affiliate thereof.
(c) Termination by the Employer Without Cause. The Employee's
employment with the Employer may be terminated without Cause by the Management
of the Employer effective 30 days after the giving of written notice to the
Employee.
(d) Termination Benefits. Except as expressly provided in Section 6
with respect to disability, or as may be required by applicable law, the
Employee shall not be entitled to any benefits in connection with the
termination of this Agreement.
(e) Litigation and Regulatory Cooperation. During the term of this
Agreement and the period in which the Employee is subject to the obligations in
Section 7, the Employee shall cooperate fully with the Employer in the defense
or prosecution of any claims or actions now in existence or which may be brought
in the future against or on behalf of the Employer which relate to events or
occurrences that transpired while the Employee was employed by the Employer. The
Employee's full cooperation in connection with such claims or actions shall
include, but not be limited to, being available to meet with counsel to prepare
for discovery or trial and to act as a witness on behalf of the Employer at
mutually convenient times. The Employee shall also cooperate fully with the
Employer in connection with any examination
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or review of any federal or state regulatory authority as any such examination
or review relates to events or occurrences that transpired while the Employee
was employed by the Employer. If such cooperation is required after the Employee
ceases to receive cash compensation from the Employer under Section 3 or Section
6, the Employer shall pay the Employee for such cooperation a fee of twenty five
dollars ($25.00) per hour, payable monthly in arrears, and will reimburse the
Employee for any reasonable out-of-pocket expenses incurred in connection
therewith.
6. Disability. If, due to physical or mental illness, the Employee
shall be disabled so as to be unable to perform substantially all of his duties
and responsibilities hereunder, which disability lasts for as uninterrupted
period of at least 90 days or a total of at least 180 days in any calendar year
(as determined by the opinion of an independent physician selected by the
Employer), the Employer may designate another Employee to act in his place
during the period of such disability. Notwithstanding any such designation, the
Employee shall continue to receive his full salary and benefits under Section 3
of this Agreement until he becomes eligible for disability income under the
Employer's disability income plan.
7. Noncompetition and Confidential Information.
(a) Noncompetition. During the term of this Agreement and a period
of six months following the date of termination of the Employee's employment
with the Employer by the Employee, the Employee will not, directly or
indirectly, whether individually or as an owner, partner, shareholder,
consultant, agent, employee, or co-venturer, work in a biotechnology service and
support facility, in the United States of America, which is in documentable
direct commercial competition with the Employer's business of providing
analytical services to the biotechnology, pharmaceutical and agricultural
industries or any other business conducted by the Employer during the period of
his employment hereunder, nor will he attempt to hire any employee of the
Employer, assist in or recommend such hiring by any other Person, encourage any
such employee to terminate his or her relationship with the Employer, or solicit
or encourage any customer of the Employer to terminate its relationship with the
Employer or to conduct with any other Person any business or activity which such
customer conducts or could conduct with the Employer. This Section 7 shall not
preclude the Employee from owning 5% or less of the outstanding stock of any
company that has securities registered under Section 12 of the Securities
Exchange Act of 1934, as amended.
(b) Confidential Information. The Employee agrees and acknowledges
that, by reason of his employment by and service to the Employer, he has had and
will have access to confidential information of the Employer (and its
affiliates, vendors, customers, and others having business dealings with it)
including, without limitation, information and knowledge pertaining to products
and services, sales and profit figures, customer and client lists and
information related to relationships between the Employer and its affiliates,
customers, vendors, and others having business dealings with it (collectively,
the "Confidential Information"). The Employee acknowledges that the Confidential
Information is a valuable and unique asset of the Employer (and its affiliates,
venders, customers, and others having business dealing, with it) and covenants
that, both during and after the term of his employment by the Employer, he will
not
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disclose any Confidential Information to any person or use any Confidential
Information (except as his duties as an employee of the Employer may require)
without the prior written authorization of the Board of Directors of the
Employer. The Employee further agrees that all files, computer programs and
files, letters, memoranda, reports, records, data, sketches, drawings, program
listings or other written, photographic, or other tangible material containing
Confidential Information, whether created by the Employee or others, which shall
come into his custody or possession, shall be and are the exclusive property of
the Employer to be used by the Employee only in the performance of his duties
for the Employer. All such records or copies thereof and all tangible property
of the Employer in the custody or possession of the Employee shall be delivered
to the Employer, upon the earlier of (i) a request by the Employer or (ii)
termination of the Employee's employment. After such delivery, the Employee
shall not retain any such records or copies thereof or any such tangible
property. The obligation of confidentiality imposed by this Section shall not
apply to information that is required by law, regulation or judicial or
governmental authorities to be disclosed or that otherwise becomes part of the
public domain by means not involving a breach of a covenant of confidentiality
owed to the Employer.
(c) Rights and Remedies Upon Breach. If the Employee breaches, or
threatens to commit a breach of, any of provisions of Section 7 hereof
(collectively, the "Restrictive Covenants"), the Employer shall have the
following rights and remedies, each of which rights and remedies shall be
independent of the other and severally enforceable, and all of which rights and
remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to Employer under law or in equity:
(i) Specific Performance. The Employee recognizes and agrees
that the violation of the Restrictive Covenants may not be reasonably or
adequately compensated in damages and that, in addition to any other relief to
which the Employer may be entitled by reason of such violation, it shall also be
entitled to permanent and temporary injunctive and equitable relief and, pending
determination of any dispute with respect to such violation, no bond or security
shall be required in connection therewith. Without limiting the generality of
the foregoing, the Employee specifically acknowledges that showing by the
Employer of any breach of any provision of any Restrictive Covenant shall
constitute, for the purposes of all judicial determinations of the issue of
injunctive relief, conclusive proof of all of the elements necessary to entitle
the Employer to interim and permanent injunctive relief against the Employee
with respect to such breach. If any dispute arises with respect to this Section
7, without limiting in any way any other rights or remedies to which the
Employer may be entitled, the Employee agrees that the Restrictive Covenants
shall be enforceable by a decree of specific performance.
(ii) Accountings. The Employer shall have the right and remedy
to require the Employee to account for and pay over to the Employer all
compensation, profits, monies, accruals, increments or other benefits
(collectively, "Benefits") derived or received by the Employee as the result of
any transactions constituting a breach of any of the Restrictive Covenants, and
the Employee shall account for and pay overall such Benefits to the Employer.
(d) Severability of Covenants. If any of the Restrictive Covenants,
or any part thereof, or any of the other provisions of this Section 7 is held by
a court of competent
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jurisdiction or any other governmental authority to be invalid, void,
unenforceable or against public policy for any reason, the remainder of the
Restrictive Covenants or such other provision shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and such court
or authority shall be empowered to substitute, to the extent enforceable,
provisions similar thereto or other provisions so as to provide to the Employer
to the fullest extent permitted by applicable law, the benefits intended by such
provisions.
(e) Enforceability in Jurisdictions. The parties intend to and
hereby confer jurisdiction to enforce the Restrictive Covenants and the other
provision of this Section 7 upon the courts of any jurisdiction within the
geographical scope of such Restrictive Covenants or other provisions, as the
case may be. If the courts of any one or more of such jurisdictions hold the
Restrictive Covenants or other provisions, as the case may be, wholly invalid or
unenforceable by reason of the breadth or scope or otherwise, it is the
intention of the parties that such determination not bar or in any way affect
the Employer's right to the relief provided above in the courts of any other
jurisdiction within the geographical scope of such Restrictive Covenant or other
provisions, as the case maybe, as they relate to each jurisdiction being, for
this purpose, severable into diverse and independent covenants.
(f) Definition and Survival. For purposes of this Section 7 only,
the term "Employer" shall mean Commonwealth Biotechnologies, Inc. and any of its
subsidiaries and affiliates. All provisions of this Section 7 shall survive
termination of this Agreement.
8. Conflicting Agreements. The Employee hereby represents and warrants
that the execution of this Agreement and the performance of his obligations
hereunder will not breach or be in conflict with any other agreement to which he
is a party or by which he is bound, and that he is not subject to any covenants
against competition or similar covenants which would affect the performance of
his obligations hereunder.
9. Definition of "Person". For all purposes of this Agreement, the
term "Person" shall mean an individual, a corporation, an association, a
partnership, an estate, a trust and any other entity or organization.
10. Withholding. All payments made by the Employer under this Agreement
shall be net of any tax or other amounts required to be withheld by the Employer
under applicable law.
11. Arbitration of Disputes. Any controversy or claim arising out of or
relating to employment relationship between the Employee and the Employer, this
Agreement or any breach thereof other than a controversy or claim relating to
Section 7 of this Agreement, shall be settled by arbitration in accordance with
the laws of the Commonwealth of Virginia by three arbitrators, one of whom shall
be appointed by the Employer, one by the Employee and the third by the first two
arbitrators. If the first two arbitrators cannot agree on the appointment of a
third arbitrator, then the third arbitrator shall be appointed by the American
Arbitration Association in the City of Richmond. Such arbitration shall be
conducted in the City of Richmond in accordance with the rules of the American
Arbitration Association, except with respect to the selection of arbitrators
which shall be as provided in this Section 11. Judgment upon the award rendered
by the
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arbitrators maybe entered in any court having jurisdiction thereof. The party
against whom the arbitrators shall render as award shall pay the other party's
reasonable attorneys' fees and other reasonable costs and expenses is connection
with the enforcement of its rights under this Agreement (including the
enforcement of any arbitration award in court), unless and to the extent the
arbitrators shall determine that under the circumstances recovery by the
prevailing party of all or a part of any such fees and costs and expenses would
be unjust.
12. Assignment; Successors and Assigns, etc. Neither the Employer nor
the Employee may make any assignment of this Agreement or any interest herein,
by operation of law or otherwise, without the prior written consent of the other
party; provided, however, that the Employer may assign its rights under this
Agreement without the consent of the Employee in the event that the Employer
shall hereafter effect a reorganization, consolidate with or merge info any
other Person, or transfer all or substantially all of its properties or assets
to any other Person. This Agreement shall inure to the benefit of and be binding
upon the Employer and the Employee, their respective successors, executors,
administrators, heirs and permitted assigns. In the event of the Employee's
death prior to the completion by the Employer of all payments due him under this
Agreement, the Employer shall continue such payments to the Employee's
beneficiary designated in writing to the Employer prior to his death (or to his
estate, if he fails to make such designation).
13. Enforceability. If any portion or provision of this Agreement shall
to any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
14. Waiver. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
15. Notices. Any notices, request, demands and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by registered or certified mail, postage prepaid (in which
case notice shall be deemed to have been given on the third day after mailing),
or by overnight delivery by a reliable overnight courier service (in which case
notice shall be deemed to have been given on the day after delivery to such
courier service) to the Employee at the last address the Employee has filed in
writing with the Employer or, in the case of the Employer, at its main offices,
attention of the President.
16. Entire Agreement, Amendment. This Agreement may be amended or
modified only by a written instrument approved by the Management or the Board of
Directors of the Employer and the Compensation Committee thereof, signed by the
Employee and by a duly authorized representative of the Employer who is the
Chairman of the Board or President or an
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Employee Vice President of the Employer and who is not the Employee. This
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof and 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.
17. Governing Law. This is a Virginia contract and shall be construed
under and be governed in all respects by the laws of the Commonwealth of
Virginia, without giving effect to the choice of law principles of any state.
18. Legal Counsel. This Agreement has been prepared by the Company,
with the consent of the Employee. The Employee has reviewed the contents of this
Agreement and fully understands its terms. The Employee acknowledges that he is
fully aware of his right to the advice of counsel independent from that of the
Company, that the Company has advised him of such right and disclosed to him the
risks in not seeking such independent advice, and that he understands the
potentially adverse interests of the parties with respect to this Agreement. The
Employee further acknowledges that no representations have been made with
respect to the income or estate tax or other consequences of this Agreement to
him and that he has been advised of the importance of seeking independent advice
of counsel with respect to such consequences.
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IN WITNESS WHEREOF, this Agreement has been executed 85 a sealed
instrument by the Employer, by its duly authorized officer, and by the Employee,
as of the date first above written.
COMMONWEALTH BIOTECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Title: President
Date: 11/18/97
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/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Date: 11/21/97
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Address: 0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
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