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EXHIBIT 10.21
AGREEMENT
THIS AGREEMENT between LifeCell Corporation, a Delaware corporation
(the "Company"), and Xxxxxxx X. Xxxxxxx (the "Employee") is dated as of July 1,
1997 (the "Effective Date").
W I T N E S S E T H:
WHEREAS, the Company and the Employee were parties to that certain
Employment Agreement executed in January 1992, that terminated in February
1997; and
WHEREAS, the parties desire to continue the 12-month severance
arrangement set forth in Section 2.2(iii) of that Employment Agreement; and
WHEREAS, the parties have set forth the substance of such severance
arrangement in this Agreement and desire to execute this Agreement for purposes
of continuing that severance arrangement;
NOW, THEREFORE, the parties agree as follows:
Section 1. Term of this Agreement. The term of this Agreement
shall begin on the Effective Date and, unless automatically extended pursuant
to the second sentence of this Section 1, shall expire on the first to occur
of:
(i) the Employee's death, the Employee's Disability (as
determined in accordance with the Company's disability policy at the
time in effect) or the Employee's Retirement (in accordance with the
Company's retirement policy at the time in effect), which events shall
also be deemed automatically to terminate Employee's employment by the
Company;
(ii) the termination by the Employee of the Employee's
employment by the Company; or
(iii) the date immediately preceding the first anniversary
of the Effective Date (the "Expiration Date") if no Termination
without Cause (as defined in Section 3 hereof) shall have occurred
during that one-year period (or any period for which the term of this
Agreement shall have been automatically extended).
If the term of this Agreement shall not have expired as a result of the
occurrence of one of the events described in clause (i) or (ii) of the
immediately preceding sentence and the Company shall not have given notice to
the Employee at least 30 days before the Expiration Date that the term of this
Agreement will expire on the Expiration Date, then the term of this Agreement
shall be automatically extended for successive one-year periods (the first such
period to begin on the day immediately following the Expiration Date) unless
the Company shall have given notice to the Employee at least 30 days before the
end of any one-year period for which the term of this Agreement shall have been
automatically extended that such term will expire at the end of that one-year
period.
Section 2. Event of Termination for Cause. An "Event of
Termination for Cause" shall have occurred if, after the Effective Date, the
Board of Directors of the Company in its good faith opinion concludes that any
of the following events has occurred: (i) Employee has been convicted of a
crime involving moral turpitude, including but not limited to fraud, theft,
embezzlement or any crime that results in or is intended to result in personal
enrichment at the expense of the Company, (ii) there has been a material breach
by Employee of this Agreement or of that certain Confidentiality, Inventions
and Discoveries and Non-Competition Agreement dated as of January 1992, between
Employee and the Company that substantially impairs the Company's interest
herein or therein, (iii) Employee has committed acts amounting to gross
negligence or willful misconduct to the material detriment of the Company or
(iv) Employee willfully or persistently fails to attend to the duties attendant
to his employment by the Company.
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Section 3. Benefits Payable. If the Employee's employment by
the Company is terminated by the Company otherwise than as a result of the
Employee's death, the Employee's Disability, the Employee's Retirement, or the
occurrence of an Event of Termination for Cause (a "Termination without
Cause"), then the Employee shall be entitled to the following benefits:
(i) the Company shall pay to the Employee, on the
first day of each calendar month occurring during the period
commencing on the effective date of such termination (the
"Termination Date") and ending on the first anniversary of the
Termination Date, an amount equal to one-twelfth (1/12th) of
the Employee's annual base salary as in effect immediately
before the Termination without Cause; and
(ii) during such 12-month period, the Company
shall either continue Employee's health and medical benefits
and life insurance coverage as in effect immediately before
the Termination Date or, if a continuation of such coverages
is not permitted pursuant to the terms of a plan or other
applicable instrument, the Company shall provide Employee with
substantially the same benefits that were provided under such
coverages.
Upon payment by the Company to the Employee of the amounts and other benefits
required to be paid pursuant to the foregoing provisions of this Section 3, the
Company shall no longer be obligated to pay any other amounts or benefits to
the Employee, other than benefits that, at the time of termination of the
Employee's employment by the Company, had vested in the Employee as a result of
the Employee's participation in any Company benefit plan.
Section 4. Notice. Notices required or permitted to be given by
either party pursuant to this Agreement shall be in writing and shall be deemed
to have been given when delivered personally to the other party or when
deposited with the United States Postal Service as registered mail with postage
prepaid and addressed:
(i) if to the Employee, at the Employee's address last
shown on the Company's records; and
(ii) if to the Company, at 0000 Xxxxxxxx Xxxxxx Xxxxx, Xxx
Xxxxxxxxx, Xxxxx 00000, directed to the attention of Chief Financial
Officer.
or, in either case, to such other address as the party to whom or which such
notice is to be given shall have specified by notice given to the other party.
Section 5. Withholding Taxes. The Company may withhold from all
payments to be paid to the Employee pursuant to this Agreement all taxes that,
by applicable federal or state law, the Company is required to so withhold.
Section 6. Amendment and Waiver. No provision of this
Agreement may be amended or waived (whether by act or course of conduct or
omission or otherwise) unless that amendment or waiver is by written instrument
signed by the parties hereto. No waiver by either party of any breach of this
Agreement shall be deemed a waiver of any other or subsequent breach.
Section 7. Governing Law. The validity, interpretation,
construction and enforceability of this Agreement shall be governed by the laws
of the State of Texas.
Section 8. Validity. The invalidity or unenforceability
of any provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
Section 9. Counterparts. This Agreement may be executed in
counterparts, each of which shall be
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deemed an original but all of which together will constitute the same
instrument.
Section 10. Assignment. This Agreement shall inure to the
benefit of and be enforceable by the Employee's legal representative. This
Agreement shall be binding upon and inure to the benefit of the Company and its
successors.
Section 11. Interpretation.
(a) In the event of the enactment of any successor provision to
any statute or rule cited in this Agreement, references in this Agreement to
such statute or rule shall be to such successor provision.
(b) The headings of Sections of this Agreement shall not control
the meaning or interpretation of this Agreement.
(c) References in this Agreement to any Section are to the
corresponding Section of this Agreement unless the context otherwise indicates.
IN WITNESS WHEREOF, the Company and the Employee have executed this
Agreement as of the Effective Date.
LIFECELL CORPORATION
By /s/ J. Xxxxxx Xxxxx
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Name: J. Xxxxxx Xxxxx
Title: Vice President
XXXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
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By
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