EXHIBIT 10.23
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (this "AGREEMENT") is made and
entered into as of this 8th day of October, 2003, by and between BioSource
International, Inc., a Delaware corporation (the "COMPANY") and ▇▇▇▇▇ ▇▇▇▇▇▇
("EXECUTIVE").
1. ENGAGEMENT AND DUTIES.
1.1 Commencing upon November 1st, 2003 (the "EFFECTIVE DATE"), and
upon the terms and subject to the conditions set forth in this Agreement, the
Company hereby engages and employs Executive as an officer of the Company, with
the title and designation of President and Chief Executive Officer of the
Company. Executive hereby accepts such engagement and employment. Executive
shall also be appointed to fill the current vacancy on the Board, and so long as
Executive serves in the capacity of President and Chief Executive Officer of the
Company, the Board shall nominate Executive to serve as a Director of the
Company, and shall use its commercially reasonable efforts to cause the
stockholders of the Company to so elect Executive.
1.2 Executive's duties and responsibilities shall be those
normally and customarily vested in the offices of President and Chief Executive
Officer of a corporation, subject to the supervision, direction and control of
the Board of Directors (the "BOARD") of the Company. In addition, Executive's
duties shall include those duties and services for the Company and its
affiliates as the Board shall from time to time reasonably direct. Executive
shall report directly to the Board.
1.3 Executive agrees to devote his primary business time,
energies, skills, efforts and attention to his duties hereunder, and will not,
without the prior written consent of the Company, which consent will not be
unreasonably withheld, render any material services to any other business
concern. Executive will use his best efforts and abilities faithfully and
diligently to promote the Company's business interests.
1.4 Except for routine travel incident to the business of the
Company, Executive shall perform his duties and obligations under this Agreement
principally from an office provided by the Company in Camarillo, California, or
such other location in Los Angeles or Ventura County, California, as the Board
may from time to time determine.
2. TERM OF EMPLOYMENT. Executive's employment pursuant to this Agreement
shall commence on the Effective Date and shall terminate on the earliest to
occur of the following:
(a) the close of business on December 31, 2007;
(b) the death of Executive;
(c) delivery to Executive of written notice of termination by the
Company if Executive shall suffer a "permanent disability,"
which for purposes of this Agreement shall mean a physical or
mental disability which, in the reasonable judgment of the
Board, is likely to render Executive unable to perform his
duties and obligations under this Agreement for 90 days in any
12-month period;
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(d) delivery to Executive of written notice of termination by the
Company "for cause," by reason of: (i) any act or omission
knowingly undertaken or omitted by Executive with the intent
of causing damage to the Company, its properties, assets or
business or its stockholders, officers, directors or
employees; (ii) any act of Executive involving a material
personal profit to Executive, including, without limitation,
any fraud, misappropriation or embezzlement, involving
properties, assets or funds of the Company or any of its
subsidiaries; (iii) Executive's consistent failure to perform
his normal duties or any obligation under any provision of
this Agreement, in either case, as directed by the Board; (iv)
conviction of, or pleading nolo contendere to, (A) any crime
or offense involving monies or other property of the Company;
(B) any felony offense; or (C) any crime of moral turpitude;
or (v) the chronic or habitual use or consumption of drugs or
alcoholic beverages; or
(e) delivery to Executive of written notice of termination by the
Company "without cause."
3. COMPENSATION; EXECUTIVE BENEFIT PLANS.
3.1 The Company shall pay to Executive a base salary at an annual
rate of $275,000 during each fiscal year of this Agreement, subject to
adjustment on an annual basis by the Board. The base salary shall be payable in
installments throughout the year in the same manner and at the same times the
Company pays base salaries to other executive officers of the Company. In the
event that Executive's employment is terminated pursuant to SECTION 2(E), above,
the Company shall continue to pay Executive's then-current base salary for a
period of 12 months following the effective date of such termination, and
Executive shall retain only those options described in SECTION 3.4, below, that
have vested prior to the effective date of such termination. Notwithstanding the
foregoing, the Company shall not be obligated to pay Executive any amounts
hereunder following the termination of Executive's employment pursuant to
SECTION 2(E), above, from and after any time that Executive accepts an
employment or consulting position with any person or entity that is determined
by the Board, in the exercise of its reasonable discretion, to be a competitor
of the Company.
3.2 In addition to the base salary to be paid to Executive
hereunder, the Company shall pay a bonus to Executive a signing bonus of Ninety
Thousand Dollars ($90,000), payable on the Effective Date, and a performance
bonus (the "BONUS") determined in accordance with a management incentive plan to
be agreed upon between Executive and the Board on an annual basis. The
management incentive plan will provide for the payment of a Bonus equal to fifty
percent (50%) of Executive's then-current base salary upon achieving the
"target" objectives set forth in the management incentive plan, and payments of
such lesser or greater amounts upon achieving results less than or greater than
the "target" objectives as shall be contained in the management incentive plan.
3.3 Executive shall be entitled each year to vacation for a
minimum of four calendar weeks, plus such additional period or periods as the
Board may approve in the exercise of its reasonable discretion, during which
time his compensation shall be paid in full.
3.4 Executive shall be granted an option to purchase 285,000
shares of Common Stock at a per share exercise price equal to the "fair market
value" of such shares on the Effective Date (as defined in the Company's 2000
Stock Incentive Plan (the "STOCK PLAN")). The Options shall be issued pursuant
to the terms of the Stock Plan, and shall vest as to 25% of the Options on
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the first anniversary of the date of grant, and as to 1/48th of the Option on
the last day of each calendar month thereafter until fully vested. The option
agreement will provide for the acceleration of all vesting upon a change of
control, as defined in the option agreement.
3.5 Executive shall be entitled to reimbursement from the Company
for the reasonable costs and expenses which he incurs in connection with the
performance of his duties and obligations under this Agreement in a manner
consistent with the Company's practices and policies as adopted or approved from
time to time by the Board for executive officers. In addition, the Company will
pay to Executive, for the costs and expenses to be incurred in connection with
his relocation to California, an amount equal to $235,000 (the "RELOCATION
EXPENSE"). The Company will pay the Relocation Expense in cash at such time
following the Effective Date as may be requested by Executive, but in no event
later than sixty (60) days following such date.
3.6 The Company may deduct from any compensation payable to
Executive the minimum amounts sufficient to cover applicable federal, state
and/or local income tax withholding, old-age and survivors' and other social
security payments, state disability and other insurance premiums and payments.
4. OTHER BENEFITS. During the term of his employment hereunder, Executive
shall be eligible to participate in all operative employee benefit and welfare
plans of the Company then in effect from time to time and in respect of which
all executive officers of the Company generally are entitled to participate
("COMPANY EXECUTIVE BENEFIT PLANS"), including, to the extent then in effect,
group life, medical, disability and other insurance plans, all on the same basis
applicable to employees of the Company whose level of management and authority
is comparable to that of Executive.
5. CONFIDENTIALITY OF PROPRIETARY INFORMATION AND MATERIAL.
5.1 INDUSTRIAL PROPERTY RIGHTS. For the purpose of this Agreement,
"INDUSTRIAL PROPERTY RIGHTS" shall mean all of the Company's patents,
trademarks, trade names, inventions, copyrights, know-how or trade secrets,
formulas and science, now in existence or hereafter developed or acquired by the
Company or for its use, relating to any and all products and services which are
developed, formulated and/or manufactured by the Company.
5.2 TRADE SECRETS. For the purpose of this Agreement, "TRADE
SECRETS" shall mean any formula, pattern, device, or compilation of information
that is used in the Company's business and gives the Company an opportunity to
obtain an advantage over its competitors who do not know and/or do not use it.
This term includes, but is not limited to, information relating to the marketing
of the Company's products and services, including price lists, pricing
information, customer lists, customer names, the particular needs of customers,
information relating to their desirability as customers, financial information,
intangible property and other such information which is not in the public
domain.
5.3 TECHNICAL DATA. For the purpose of this Agreement, "TECHNICAL
DATA" shall mean all information of the Company in written, graphic or tangible
form relating to any and all products which are developed, formulated and/or
manufactured by the Company, as such information exists as of the Effective Date
or is developed by the Company during the term hereof.
5.4 PROPRIETARY INFORMATION. For the purpose of this Agreement,
"PROPRIETARY INFORMATION" shall mean all of the Company's Industrial Property
Rights, Trade Secrets and
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Technical Data. Proprietary Information shall not include any information which
(i) was lawfully in the possession of Executive prior to Executive's employment
with the Company, (ii) may be obtained by a reasonably diligent businessperson
from readily available and public sources of information, (iii) is lawfully
disclosed to Executive after termination of Executive's employment by a third
party which does not have an obligation to the Company to keep such information
confidential, or (iv) is independently developed by Executive after termination
of Executive's employment without utilizing any of the Company's Proprietary
Information.
5.5 AGREEMENT NOT TO COPY OR USE. Executive agrees, at any time
during the term of his employment and for a period of ten years thereafter, not
to copy, use or disclose (except as required by law after first notifying the
Company and giving it an opportunity to object) any Proprietary Information
without the Company's prior written permission. The Company may withhold such
permission as a matter within its sole discretion during the term of this
Agreement and thereafter.
6. RETURN OF CORPORATE PROPERTY AND TRADE SECRETS. Upon any termination of
this Agreement, Executive shall turn over to the Company all property, writings
or documents then in his possession or custody belonging to or relating to the
affairs of the Company or comprising or relating to any Proprietary Information.
7. DISCOVERIES AND INVENTIONS.
7.1 DISCLOSURE. Executive will promptly disclose in writing to the
Company complete information concerning each and every invention, discovery,
improvement, device, design, apparatus, practice, process, method, product or
work of authorship, whether patentable or not, made, developed, perfected,
devised, conceived or first reduced to practice by Executive, whether or not
during regular working hours (hereinafter referred to as "Developments"), either
solely or in collaboration with others, (a) prior to the term of this Agreement
while working for the Company, (b) during the term of this Agreement or (c)
within six months after the term of this Agreement, if relating either directly
or indirectly to the business, products, practices, techniques or confidential
information of the Company.
7.2 ASSIGNMENT. Executive, to the extent that he has the legal
right to do so, hereby acknowledges that any and all Developments are the
property of the Company and hereby assigns and agrees to assign to the Company
any and all of Executive's right, title and interest in and to any and all of
such Developments; PROVIDED, HOWEVER, that, in accordance with California Labor
Code Sections 2870 and 2872, the provisions of this SECTION 7.2 shall not apply
to any Development that the Executive developed entirely on his own time without
using the Company's equipment, supplies, facilities or trade secret information
except for those Developments that either:
(a) relate at the time of conception or reduction to
practice of the Development to the Company's
business, or actual or demonstrably anticipated
research or development of the Company; or
(b) result from any work performed by Executive for the
Company.
7.3 ASSISTANCE OF EXECUTIVE. Upon request and without further
compensation therefor, but at no expense to Executive, and whether during the
term of this Agreement or thereafter, Executive will do all reasonable lawful
acts, including, but not limited to, the execution of papers and lawful oaths
and the giving of testimony, that, in the reasonable opinion of the
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Company, its successors and assigns, may be necessary or desirable in obtaining,
sustaining, reissuing, extending and enforcing United States and foreign Letters
Patent, including, but not limited to, design patents, on any and all
Developments and for perfecting, affirming and recording the Company's complete
ownership and title thereto, subject to the proviso in SECTION 7.2 hereof, and
Executive will otherwise reasonably cooperate in all proceedings and matters
relating thereto.
7.4 RECORDS. Executive will keep complete and accurate accounts,
notes, data and records of all Developments in the manner and form requested by
the Company. Such accounts, notes, data and records shall be the property of the
Company, subject to the proviso in SECTION 7.2 hereof, and, upon request by the
Company, Executive will promptly surrender the same to it or, if not previously
surrendered upon its request or otherwise, Executive will surrender the same,
and all copies thereof, to the Company upon the conclusion of his employment.
7.5 OBLIGATIONS, RESTRICTIONS AND LIMITATIONS. Executive
understands that the Company may enter into agreements or arrangements with
agencies of the United States Government and that the Company may be subject to
laws and regulations which impose obligations, restrictions and limitations on
it with respect to inventions and patents which may be acquired by it or which
may be conceived or developed by employees, consultants or other agents
rendering services to it. Executive agrees that he shall be bound by all such
obligations, restrictions and limitations applicable to any such invention
conceived or developed by him during the term of this Agreement and shall take
any and all further action which may be required to discharge such obligations
and to comply with such restrictions and limitations.
8. NON-SOLICITATION COVENANT.
8.1 NONSOLICITATION AND NONINTERFERENCE. During the term of this
Agreement and for a period of two years thereafter, Executive shall not (a)
induce or attempt to induce any employee of the Company to leave the employ of
the Company or in any way interfere adversely with the relationship between any
such employee and the Company, (b) induce or attempt to induce any employee of
the Company to work for, render services or provide advice to or supply
confidential business information or trade secrets of the Company to any third
person, firm or corporation or (c) induce or attempt to induce any customer,
supplier, licensee, licensor or other business relation of the Company to cease
doing business with the Company or in any way interfere with the relationship
between any such customer, supplier, licensee, licensor or other business
relation and the Company.
8.2 INDIRECT SOLICITATION. Executive agrees that, during the term
of this Agreement and the period covered by SECTION 8.1 hereof, he will not,
directly or indirectly, assist or encourage any other person in carrying out,
directly or indirectly, any activity that would be prohibited by the provisions
of SECTION 8.1 if such activity were carried out by Executive, either directly
or indirectly; and, in particular, Executive agrees that he will not, directly
or indirectly, induce any employee of the Company to carry out, directly or
indirectly, any such activity.
9. INJUNCTIVE RELIEF. Executive hereby recognizes, acknowledges and agrees
that in the event of any breach by Executive of any of his covenants,
agreements, duties or obligations contained in SECTIONS 5, 6, 7 AND 8 of this
Agreement, the Company would suffer great and irreparable harm, injury and
damage, the Company would encounter extreme difficulty in attempting to prove
the actual amount of damages suffered by the Company as a result of such breach,
and the Company would not be reasonably or adequately compensated in damages in
any action at law.
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Executive therefore covenants and agrees that, in addition to any other remedy
the Company may have at law, in equity, by statute or otherwise, in the event of
any breach by Executive of any of his covenants, agreements, duties or
obligations contained in SECTIONS 5, 6, 7 AND 8 of this Agreement, the Company
shall be entitled to seek and receive temporary, preliminary and permanent
injunctive and other equitable relief from any court of competent jurisdiction
to enforce any of the rights of the Company, or any of the covenants,
agreements, duties or obligations of Executive hereunder, and/or otherwise to
prevent the violation of any of the terms or provisions hereof, all without the
necessity of proving the amount of any actual damage to the Company or any
affiliate thereof resulting therefrom; provided, however, that nothing contained
in this SECTION 9 shall be deemed or construed in any manner whatsoever as a
waiver by the Company of any of the rights which the Company may have against
Executive at law, in equity, by statute or otherwise arising out of, in
connection with or resulting from the breach by Executive of any of his
covenants, agreements, duties or obligations hereunder.
10. MISCELLANEOUS.
10.1 ARBITRATION. The parties agree that they will use their best
efforts to amicably resolve any dispute arising out of or relating to this
Agreement. Any controversy, claim or dispute that cannot be so resolved shall be
settled by final binding arbitration in accordance with the rules of the
American Arbitration Association and judgment upon the award rendered by the
arbitrator or arbitrators may be entered in any court having jurisdiction
thereof. Any such arbitration shall be conducted in Los Angeles County or
Ventura County, California, or such other place as may be mutually agreed upon
by the parties. Within fifteen (15) days after the commencement of the
arbitration, each party shall select one person to act arbitrator, and the two
arbitrators so selected shall select a third arbitrator within ten (10) days of
their appointment. Each party shall bear its own costs and expenses and an equal
share of the arbitrator's expenses and administrative fees of arbitration.
10.2 NOTICES. All notices, requests and other communications
(collectively, "NOTICES") given pursuant to this Agreement shall be in writing,
and shall be delivered by personal service or by United States first class,
registered or certified mail (return receipt requested), postage prepaid,
addressed to the party at the address set forth below:
If to Company:
BioSource International, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Board of Directors
If to Executive, at the address maintained for Executive in
the Company's payroll records.
Any Notice shall be deemed duly given when received by the
addressee thereof, provided that any Notice sent by registered or certified mail
shall be deemed to have been duly given three days from date of deposit in the
United States mails, unless sooner received. Either party may from time to time
change its address for further Notices hereunder by giving notice to the other
party in the manner prescribed in this section.
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10.3 ENTIRE AGREEMENT. This Agreement contains the sole and entire
agreement and understanding of the parties with respect to the entire subject
matter of this Agreement, and any and all prior agreements, discussions,
negotiations, commitments and understandings, whether oral or otherwise, related
to the subject matter of this Agreement are hereby merged herein. No
representations, oral or otherwise, express or implied, other than those
contained in this Agreement have been relied upon by any party to this
Agreement.
10.4 ATTORNEYS' FEES. If any action, suit or other proceeding is
instituted to remedy, prevent or obtain relief from a default in the performance
by any party of its obligations under this Agreement, the prevailing party shall
recover all of such party's costs and reasonable attorneys' fees incurred in
each and every such action, suit or other proceeding, including any and all
appeals or petitions therefrom.
10.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES THEREOF.
10.6 CAPTIONS. The various captions of this Agreement are for
reference only and shall not be considered or referred to in resolving questions
of interpretation of this Agreement.
10.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
10.8 BUSINESS DAY. If the last day permissible for delivery of any
Notice under any provision of this Agreement, or for the performance of any
obligation under this Agreement, shall be other than a business day, such last
day for such Notice or performance shall be extended to the next following
business day (provided, however, under no circumstances shall this provision be
construed to extend the date of termination of this Agreement).
In witness whereof, the parties have executed this Agreement as of the
date first set forth above.
Company: Executive:
BIOSOURCE INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇
Chairman of the Board
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