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EXHIBIT 10.22
EMPLOYMENT AGREEMENT
Agreement made this 1st day of August, 1995, by and between XXXXXX
SCIENCES, INC. ("Employer") and XXXXXXX XXXXXX ("Employee").
1. EMPLOYMENT.
A. Employer hereby offers to Employee and Employee
hereby accepts continued employment by Employer on the conditions set forth
herein.
2. DUTIES.
A. Employee has been appointed and shall continue to
serve Employer as Chairman and Chief Executive Officer, reporting in such
capacity directly to the Employer's Board of Directors ("Board").
B. Employee's duties and powers in such capacity shall
be as determined, from time to time, by the Board.
3. TERM.
A. The term of this Agreement shall be three (3) years
beginning August 1, 1995, which term shall be automatically extended one (1)
year on August 1, 1996 and on August 1 of each year thereafter, unless Employer
shall have given:
(1) not less than six (6) months written notice
of termination to Employee where there has been no change in control
of Employer; or
(2) where there has been a change in control of
Employer, not less than twelve (12) months written notice of
termination to Employee.
B. This Agreement shall be automatically earlier
terminated and the earlier termination shall supersede the later effective date
of an Employer written notice of termination of Agreement provided for in
Paragraph 3.A., only in the following manner:
(1) Upon the death of Employee; or
(2) Upon Employee's resignation, at any time,
after ninety (90) calendar days written notice to Employer where there
has been no change in control of Employer, in which event Employee
shall not be entitled to any additional compensation or benefits; or
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(3) Upon Employee's disability whereby Employee
is unable to perform the essential duties of his assigned position for
a period exceeding one hundred eighty (180) calendar days within a one
(1) year period; or
(4) Upon Employer's termination of Employee,
without cause, at any time, after Employer has given ninety (90)
calendar days written notice of termination to Employee, in which
event Employee shall become eligible for termination compensation as
set forth in Paragraph 4.C below; or
(5) Upon Employee's resignation within one (1)
year of a change in control of Employer, after ninety (90) calendar
days written notice to Employer, in which event Employee shall become
eligible for termination compensation in the amount as determined in
Paragraph 4.C below; or
(6) Upon Employer's termination of Employee for
violating any of the provisions of Paragraph 7 below, in which event
Employee shall not be entitled to any additional compensation or
benefits.
4. COMPENSATION.
A. Employer shall pay, and Employee shall accept, as
base compensation for all services rendered, not less than the amount received
per annum effective as of August 1, 1995, less appropriate payroll taxes
("salary"), payable in equal installments in accordance with Employer's normal
payroll periods, with annual reviews and adjustments, if any, at the discretion
of the Employer's Board.
B. Employee shall, following the conclusion of each full
Employer fiscal year of active employment, become eligible for an incentive
bonus, established at the discretion of the Board, which incentive bonus
effective for the Employer's 1996 fiscal year and the fiscal years thereafter,
shall consist of an amount equal to:
(1) Fifty percent (50%) of the Employee's current
annual salary for achieving the corporate goals, established at the
discretion of Board; or
(2) Seventy-five percent (75%) of the Employee's
current annual salary for exceeding the corporate stretch goals,
established at the discretion of the Board.
Incentive bonus, if any, shall be payable to Employee
on or before the seventieth (70th) calendar day after the Employer's fiscal
year end.
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C. If this Agreement is earlier terminated pursuant to
Paragraph , 3.B.(4) or 3.B.(5), Employee shall become eligible for termination
compensation as follows:
(1) Where there has been no change in control of
Employer, and:
(a) the Employer is achieving or
exceeding the projected performance plan as approved by the
Board, a severance amount equal to the amount of base
compensation and incentive bonus the Employee would have
received in the year of termination, for the greater of the
remaining balance of the contract or two (2) years;
(b) the Employer is not achieving the
projected performance plan as approved by the Board, a
severance amount equal to the amount of base compensation the
Employee would have received in the year of termination, for
the greater of the remaining balance of the contract or two
(2) years;
(2) Where there has been a change in control of
Employers, and:
(a) the Employer is achieving or
exceeding the projected performance plan as approved by the
Board, a severance amount equal to the amount of base
compensation and incentive bonus the Employee would have
received in the year of termination, for the remaining balance
of the contract plus two (2) years;
(b) the Employer is not achieving the
projected performance plan as approved by the Board, a
severance amount equal to the amount of base compensation the
Employee would have received in the year of termination, for
the remaining balance of the contract plus two (2) years;
(c) immediate vesting of all stock
options and awards; and,
(d) immediate payment of all incentive
awards earned.
To the extent the termination compensation and any
other amounts received as a result of termination are subject to the excise tax
of Internal Revenue Code Section 4999 (or any successor statute), the severance
amount shall be increased by a one (1) time calculation (without a pyramid
effect) of the product derived by multiplying
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the "excess parachute payments" (as defined in Code Section 4999) as initially
calculated by the applicable excise tax rate (currently twenty percent (20%)).
Change in control of the Employer means:
i) the acquisition of beneficial
ownership by any person or entity (or more than one
(1) person or entity acting as a group) of a majority
of the outstanding voting shares of Employer,
accomplished without consent of the Board; or
ii) a tender offer made and
consummated for at least thirty-three percent (33%)
of Employer's common stock, accomplished without
consent of the Board; or
iii) the acquisition of beneficial
ownership by any person or entity (or more than one
(1) person or entity acting as a group) of more than
fifty-one percent (51%) of the total fair market
value of the Employer's assets, accomplished without
consent of the Board; or
iv) a majority of the members of
the Board are replaced within a one (1) year period,
by persons whose appointment or election is not
endorsed by a majority of the Board prior to the date
of the appointment or election.
The severance amount shall be payable in equal annual
installments to the Employee, which annual installments shall be further
divided into equal payments made at the same frequency as Employee's salary,
less appropriate payroll taxes, commencing with the first payroll period
following Employee's termination, conditioned on Employee's execution of a
release agreement acknowledging that Employee is entitled to no other
compensation and benefits, except as provided in this Agreement, and
effectively waiving any and all claims against Employer, its officers,
directors, employees, affiliates, subsidiaries, successors and assigns arising
out of Employee's employment or separation from employment with Employer. The
Employer shall have the right, at its option and without penalty, to accelerate
payments owed to the Employee.
5. EXPENSES.
A. Employer shall reimburse Employee, upon presentation
of proper documentation, for reasonable expenses incurred by Employee in the
performance of his assigned duties.
B. Employer shall provide Employee with an automobile
befitting Employee's status among other executive employees as Chairman and
Chief Executive Officer, by which to perform his assigned duties, at no cost to
the Employee.
6. BENEFITS.
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A. Employee shall be eligible to participate in all
benefit programs that Employer makes available, from time to time, to executive
employees, including such benefit programs as medical, dental, life, long-term
disability, 401(k), and others, on the same terms and conditions as other
executive employees.
B. Employee shall be eligible for up to six (6) weeks
paid vacation annually, scheduled at the discretion of Employee, and not
inconsistent with the best interest of the Employer.
C. Employer shall, during the term of this Agreement,
pay the dues and assessments required for Employee to maintain full membership
privileges at Xxxxxx Pointe Country Club.
7. UNDERTAKINGS OF EMPLOYEE.
A. The parties acknowledge that Employer is engaged in
the business of manufacturing, distributing and selling microporous membranes,
filters and microfiltration products, worldwide. Employee, because of his
position with Employer, will obtain, or have access to, highly confidential,
proprietary information and trade secrets and, as a result, Employee agrees
that:
(1) Employee will execute, and at all times honor
and comply with all of the conditions set forth in, the
Confidentiality and Patent Protection Agreement attached hereto and
made a part hereof as Exhibit A; and
(2) At all times during Employee's employment,
and for three (3) years following the termination of Employee's
employment, Employee will not, directly or indirectly, without the
express written consent of Employer's Board, perform service for, aid,
assist, own, operate, have any financial interest in, or serve as
employee, officer, director, agent, partner, consultant, part-owner,
shareholder, or engage in, any microporous filter business which is
competitive with Employer, or with microporous products provided by
Employer, or with microporous products provided by Employer, and among
the remedies set forth in the above-referenced Confidentiality and
Patent Protection Agreement.
B. Employer relies upon Employee's representation that
Employee will:
(1) competently perform all assigned duties;
(2) carry out all policies, directives and
decisions of Employer's Board;
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(3) not withhold from Employer's Board any
information which may affect Employer's business;
(4) refrain from any conduct which is illegal,
dishonest, fraudulent, or detrimental to Employer's business, as
determined by Employer's Board; and
(5) devote his entire time, attention and
energies to the operations of Employer and shall not, during the term
of this Agreement, without consent of the Board, be engaged in any
other business activity requiring any amount of his business time,
whether or not such business activity is pursued for gain, profit or
pecuniary advantage.
8. ENTIRE AGREEMENT.
This Agreement supersedes and cancels all prior agreements,
whether verbal or written, between Employer and Employee and constitutes the
entire Agreement between the parties. Any amendment or agreement supplemental
hereto shall not be binding upon either party unless executed in writing by
Employer and the Employee.
9. MISCELLANEOUS.
A. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective heirs, successors, personal
representatives and assigns.
B. This Agreement shall be interpreted in accordance
with and governed by the laws of the State of Michigan.
C. Any and all notices or any other communication
provided for herein shall be given in writing by certified mail, return receipt
requested, which shall be addressed to the addresses shown immediately below
each party's signature unless notice of a change of address is furnished to the
other parties in the manner provided in this paragraph.
D. This Agreement will be executed simultaneously in two
(2) or more counterparts, each of which shall be deemed an original but all of
which shall constitute one (1) and the same instrument and agreement.
E. Each paragraph of this Agreement or portion thereof
shall be treated as severable, to the end that if any paragraph or portion
thereof shall be declared illegal, invalid or unenforceable, this Agreement
shall be interpreted so that part only is invalid,
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without invalidating the remainder of this Agreement, which shall remain in
full force and effect as though such paragraph or portion thereof had never
been contained in this Agreement, and the affected part shall be interpreted,
consistent with the law, to carry out the intent of the parties.
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IN WITNESS WHEREOF, the parties have signed this Employment Agreement
as of the date first above written.
WITNESSES: XXXXXX SCIENCES, INC.
By
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Its
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000 Xxxxx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000-0000
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XXXXXXX XXXXXX
[home address]
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EXHIBIT A
CONFIDENTIALITY AND PATENT PROTECTION AGREEMENT
This Agreement entered into as of the date last hereinafter written by
and between the undersigned employee (hereinafter "Employee") and XXXXXX
SCIENCES, INC., a Michigan corporation (herein "Employer"), pertaining to the
employment of the Employee by the Employer:
WHEREAS, the Employer requires that all employees, as a condition of
their employment, covenant and agree with the Employer to hold its Trade
Secrets in utmost respect and confidence and not to use or disclose such
information in any way in conflict with the Employer's interest.
NOW, THEREFORE, in consideration of the premises upon which this
Agreement is based and of the engagement of the Employee as an employee of the
Employer, the Employee hereby expressly covenants and agrees as follows:
10. The Employer is engaged in the manufacture, distribution and
sale of microporous membranes, textiles and microfiltration products,
worldwide. In conducting such business, the Employer has developed, collected,
compiled, organized, analyzed and/or systematized certain information including
(but not necessarily limited to) customer information, market studies and
research, marketing methods and techniques, operating and pricing policies,
product formulae, product designs and technologies, operating and pricing
policies, product formulae, product designs and technologies, manufacturing
processes and technologies, innovative research and development, and certain
computer software, which information is used by the Employer in conducting its
said business, gives the Employer an advantage or the opportunity to gain an
advantage over its competitors and potential competitors who do not know or use
it, and is not public information and is not generally known in the industry;
such information being collectively and individually referred to herein as
"Trade Secrets". The Employer expects to develop, collect, compile, organize,
analyze and/or systematize the same or similar kinds of information and to
conceive and invent new products, devices, manufacturing processes, software
and technologies, continually and in the future, which information and
inventions shall become Trade Secrets belonging to the Employer and shall be
protected by this Agreement.
11. All Trade Secrets belonging to the Employer and all records
pertaining thereto, including (without limitation) those which may be created
or developed by the Employee, are and shall be and remain the property of the
Employer. The Employee will not ever utilize any Trade Secret belonging to the
Employer or any record pertaining thereto for his benefit or for the benefit of
others, or for any purpose other than in the ordinary course of and in the
furtherance of the Employer's business.
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12. The Employee will not ever publish or disclose, nor permit to
be published or disclosed, any Trade Secrets belonging to the Employer to
anyone not authorized to have access thereto without the prior written consent
of the Employer's Board of Directors ("Board"). Moreover, the Employee agrees
to report forthwith to the Employer's Board any violation of this or any other
policy of the Employer applicable to its Trade Secrets, known to or which may
come to the knowledge of the Employee.
13. The Employee will have no obligation of confidentiality as to
any information which is or hereafter becomes generally known among the
Employer's competitors or to the public otherwise than by an unauthorized
disclosure by the Employee or by other improper means. Neither shall the
Employee be held to violate this Agreement by receiving any Trade Secret of the
Employer from a third party having the right to transmit the same, but in such
case the obligations or confidentiality, non-use and non-disclosure set forth
in Paragraphs 2 and 3 above shall apply to all such information so received.
14. The Employee shall promptly disclose to the Employer's Board
all inventions, discoveries and improvements which the Employee may make,
either solely or jointly with others, while in the employ of the Employer,
relating to products, manufacturing technologies or software used, manufactured
or sold by the Employer during the period of the Employee's employment with the
Employer, or the use, manufacture, development or sale of which was in
contemplation by the Employer during the period of the Employee's employment
with the Employer, and the Employee hereby agrees to assign to the Employer all
of the Employee's interest in and to the same, including the Employee's
interest in and to any domestic and foreign patent rights therein and any
renewals thereof. All expenses of filing any patent applications shall be
borne solely by the Employer, but the Employee shall cooperate in filing and
supporting any such applications.
15. This Agreement shall survive the termination of employment of
the Employee and shall continue with respect to each and all of the Employer's
Trade Secrets in conception or existence as of the date of termination, until
the same shall have become generally known among the Employer's competitors and
potential competitors or to the public at large, other than by unauthorized
disclosure by the Employee or other improper means. The Employee agrees that
upon the termination of his employment he will immediately return to the
Employer all materials, records and drawings provided to the Employee by the
Employer or any of its customers, or generated by the Employee relative to the
Trade Secrets of the Employer.
16. In the event of a breach of threatened breach by the Employee
of this Agreement, it is agreed that the Employer would suffer immediate and
irreparable injuries of such a nature and magnitude that money damages would
not adequately compensate the Employer and that injunctive relief would be
essential for its protection. Such relief
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shall be without prejudice to any other remedy which the Employer may have or
be entitled to receive at law or in equity. To the extent permitted by law,
the Employee waives the requirement of bond as a precondition to issuance of
any such injunction.
17. If any of the provisions of this Agreement shall be held to be
unenforceable for any reason by any Court having jurisdiction of the same, such
provision shall be deemed amended by giving to it that construction most
consistent with this writing which such Court may find to be enforceable in the
matter before it, and all remaining terms and provisions of this Agreement
shall not fall, but this Agreement shall be deemed amended by such holding for
purposes only of the jurisdiction of such Court, and as so amended shall remain
in full force and effect.
18. This Agreement is a prerequisite of employment of the
Employee, and need not be signed or otherwise formally accepted by the Employer
in order to become binding upon the Employee, but shall be deemed and held so
binding and enforceable from and after the date the Employee was first engaged
as an employee of the Employer. The Employee acknowledges receipt of a true
and correct copy of this Agreement and acknowledges that he has read and
understands all of the terms and provisions hereof.
Executed this 1st day of August, 1995.
EMPLOYEE:
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XXXXXXX XXXXXX
SS Number
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Address
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