EXHIBIT 10AE
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement") is entered into
effective as of April 1, 2003 (the "Effective Date") between Xxxx Xxxxxx
(the "Executive") a resident at 00 Xxxx Xxxxx Xxxx, Xxxxxxxxx Xxxxxxx, 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
President and Chief Executive Officer, based at the Company's corporate
offices in Braintree, Massachusetts, and to perform such specific duties
commensurate with such position as may reasonably be assigned to Executive
from time to time by the Company's Board of Directors for the period
commencing on the Effective Date and continuing until terminated as herein
provided. Subject to the terms and conditions of this Agreement, 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 and Bonus. The Company shall pay to Executive a base
salary at the rate of $500,000, per annum. Beginning May 2004, and
annually thereafter, the Executive's base salary will be reviewed for a
potential increase. In addition, the Executive will be eligible to receive
bonus payments based on
performance against objectives mutually agreed between Executive and the
Board of Directors. For 100% performance, the bonus payout is set at
$250,000 annually.
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 employees including
reasonable travel expenses incurred while engaged in Company business, all
in accordance with the Company's benefit plans, policies and procedures
from time to time in effect. The Executive will be eligible for four weeks
vacation per annum.
2.3 Option Plan. Executive shall be entitled to participate in the
Company's stock option plans (the "Plans"), as approved from time to time
by the Company's Board of Directors and stockholders.
2.4 Option Grant. Executive shall be granted 300,000 non-qualified
stock options for common stock of the Company at the NYSE average of the
high and low price on Executive's first day of employment, subject to the
terms of the Company's 2000 Long Term Incentive Plan and a Stock Option
Agreement. All such options shall vest twenty five percent (25%) per year
beginning one year after the date of grant.
ARTICLE 3. TERMINATION
3.1 Term. Unless earlier terminated as herein provided, Executive's
employment pursuant to this Employment Agreement shall commence on April 1,
2003 and shall continue for a period ending on March 31, 2008.
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 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, or (D) any deliberate violation of Company policy.
(ii) 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 the
Agreement and such breach shall not have been cured by or on behalf
of the Company within thirty (30) days following its receipt of
notice from the Executive, which specifically identifies the manner
in which it is alleged that Company 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 3.4;
(iii) a materially adverse change in Executive's title, or in the
responsibilities assigned to Executive by the Company or in the
compensation and benefits paid by Company to the Executive shall have
occurred and such material adverse change shall not have been cured
by or on behalf of the Company within thirty (30) days following its
receipt of notice from Executive specifically identifying such
material adverse change.
Executive's continued employment shall not constitute consent to, or 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 and
following such elimination, the Company does not offer to employ Executive
in a comparable or better position in his then 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 payment shall be made in lump sum,
payable within thirty (30) days, and in an amount which is equal to 2.99
times the amount identified in Section 4.1, and provided further that in no
event shall the total of all payments and benefits to the Executive, under
this Agreement or otherwise, that are contingent on a change in ownership
or control within the meaning of Section 280G of the Internal Revenue Code
of 1986, as amended (the "Code") and any proposed or final regulations
promulgated thereunder, exceed 2.99 times the "base amount" described in
Section 280G(b)(3) of the Code ("Maximum Amount"). If the total of such
payments and benefits to the Executive would exceed the Maximum Amount,
then the payments and benefits to the Executive shall be reduced to the
Maximum Amount. The determination of the Maximum Amount and the amount of
such reduction shall be made by an accounting firm of the Company or the
Company's successor and such
determination shall be final and binding on all parties. The Company or
its successor will then determine what payments and benefits, from whatever
source, will be reduced based on the accounting firm's analysis. 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
stockholders 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 prior to the expiration of
the term of this Agreement:
(i) by the Company without "Cause," or
(ii) under Section 3.3 ,
then the Company shall pay Executive, as a severance payment, an amount
equal to Executive's annual base salary, such payment to 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 law or by
the terms of any plan, program or policy which govern any 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 continued life insurance coverage, health insurance
coverage, long term disability coverage or the Company's matching
contribution, if any, under its 401(k) Plan , then the Company shall
provide to Executive substantially equivalent benefits or, at Executive's
election, the cash value of equivalent benefits within thirty (30) days of
any determination of ineligibility by the Company.
4.4 Exclusivity. Except as otherwise provided in the foregoing sections
of this Article 4 and in Section 3.4 (if applicable), Executive shall not
be entitled to compensation from the Company for any period following
termination of his employment.
ARTICLE 5. PROPRIETARY INFORMATION AND NON-COMPETITION
5.1 For the purposes of this Article, 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 materials,
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 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 in connection with 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 reason 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 way
adverse to the Company, will not be removed from the Company's premises
except in connection with the Executive's normal duties 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, on his own
behalf or on the behalf of another (i) engage in any activity which is in
the field of medical devices or solutions similar to those then marketed,
or planned to be marketed, by the Company, or (ii) solicit or endeavor to
entice away from the Company any employee.
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 if there is no such designee, to his estate.
6.3 Assignment. Except as otherwise provided in Section 6.4 below,
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 a manner
and to the same extent that the Company would be required to perform it if
no such succession had taken place.
6.5 Notices. All notices, requests, demands 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
Attention: Xxx Xxxxxxxxxx, Chairman of the Board
With a copy to: Xxxx Xxxxx, General Counsel
Haemonetics Corporation
000 Xxxx Xxxx, Xxxxxxxxx XX 00000
If to Executive, to: 00 Xxxx Xxxxx Xxxx
Xxxxxxxxx Xxxxxxx, XX 00000
or such other address as either party hereto shall have designated by
notice in writing to the other party.
6.6 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 the Chairman of the Board of Directors.
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 the
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.
6.7 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.
6.8 Dispute Resolution. Any dispute, controversy or claim arising out of
or relating to the Agreement or the performance by the parties of its
terms, shall be settled by binding arbitration held in Boston,
Massachusetts in accordance with the Employment Arbitration Rules of the
American Arbitration Association then in effect. The arbitrator shall have
the authority to award relief under legal or equitable principles,
including interim or preliminary relief. Each party shall bear its/his own
attorneys fees and expenses.
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
or foreign law.
6.11 Entire Agreement. This Agreement sets for 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. 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.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Agreement under seal as of the date first above written.
Haemonetics Corporation
/s/ Xxxx Xxxxxx By: /s/ Xxxxxx X. Matricaria
----------------------------------- ------------------------------------
Xxxx Xxxxxx Xxxxxx X. Matricaria, Chairman of
the Board
Date: March 30, 2003
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