EXHIBIT 10.21
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (this "Agreement") is made and entered
into as of this 24th day of September, 2001, by and between BioSource
International, Inc., a Delaware corporation (the "Company") and Xxxxxxx X.
Xxxxxxxxxxx ("Executive").
1. ENGAGEMENT AND DUTIES.
1.1 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.
1.2 Executive's duties and responsibilities shall be those which are
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 Ventura or Los Angeles 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 October 15, 2001, and shall terminate on the earliest to occur
of the following:
(a) the close of business on December 31, 2004;
(b) the death of Executive;
(c) delivery to Executive of written notice of termination by the
Company if Executive shall suffer a physical or mental disability which renders
Executive, in the reasonable judgment of the Board, unable to perform his duties
and obligations under this Agreement for 90 days in any 12-month period;
(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
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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 of drugs or consumption of alcoholic beverages;
(e) delivery to Executive of written notice of termination by the
Company "without cause;" or
(f) delivery to the Company of written notice of termination by
Executive upon the occurrence of a "change of control" (as defined below).
Promptly following any change of control, the Company shall provide written
notice of such fact to Executive. Executive shall have 30 days following his
receipt of such notice to elect to notify the Company that Executive is treating
such change of control as a termination of this Agreement.
For purposes of this Section 2, the following events shall
constitute a "change of control":
(i) any person or entity (or group of related persons or
entities acting in concert) shall acquire shares of capital stock of the Company
entitled to exercise 35% or more of the total voting power represented by all
shares of capital stock of the Company then outstanding; or
(ii) the Company shall enter into an agreement to sell or
otherwise transfer all or substantially all of its assets or enter into an
agreement to merge, consolidate or reorganize with any other corporation or
entity, as the result of which less than 75% of the total voting power
represented by the capital stock or other equity interests of the corporation or
entity to which the Company's assets are sold or transferred or surviving such
merger, consolidation or reorganization shall be held by the persons and
entities who were holders of common stock of the Company immediately prior to
such agreement; or
(iii)the Company shall issue or otherwise than on a pro rata
basis additional shares of capital stock representing (after giving effect to
such issuance) more than 35% of the total voting power of the Company; or
(iv) the persons who were the directors of the Company as of
October 15, 2001 shall cease to comprise a majority of the Board of Directors of
the Company.
3. COMPENSATION; EXECUTIVE BENEFIT PLANS.
3.1 The Company shall pay to Executive a base salary at an annual
rate of $250,000 during each fiscal year of this Agreement. 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) or Section 2(f), 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.
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3.2 In addition to the base salary to be paid to Executive hereunder,
for each fiscal year commencing January 1, 2002, the Company shall pay a bonus
to Executive (the "Bonus") determined in accordance with the Company's
management incentive plan for its executive officers with such "corporate goals"
and "individual goals" for Executive as the Board shall from time-to-time
approve, with Executive's target for such Bonus set at 60% of Executive's
then-current base salary upon achieving 100% of Executive's "corporate goals"
and "individual goals." In determining whether Executive has achieved any of the
"corporate goals" or "individual goals" established for Executive by the Board,
the Board shall consider any extraordinary events or circumstances which may
occur, the impact of those events on the "corporate goals" or "individual goals"
established for Executive by the Board, and the extent to which those events
were out of the control of Executive.
3.3 In addition to the base salary to be paid to Executive hereunder,
and the Bonus to be paid to Executive hereunder, the Company shall pay a one
time signing bonus to Executive in the amount of $90,000, payable upon
Executive's commencement of employment.
3.4 The Company agrees to grant to Executive a ten-year option to
purchase 280,000 shares of Common Stock of the Company. Such options shall be
non-statutory stock options, shall be exercisable at a per share exercise price
equal to the closing sales price of the Company's Common Stock on the last
trading day immediately preceding Executive's start date, and shall vest over a
period of four years as follows: 1/4 of the Options shall vest on the first
anniversary of Executive's start date, and the remaining options shall vest as
to 1/48th of the full amount of such options on the last day of each month
thereafter until fully vested. In the event such options are issued outside of
the Company's 2000 Stock Incentive Plan, the Company agrees to use its best
efforts to include such options in a registration statement on Form S-8 or other
appropriate form of registration statement on or before the date that is one
year from Executive's start date. In the event that Executive's employment is
terminated pursuant to Section 2(f), above, all remaining options shall
immediately vest, as of the date of such termination; provided, that if the
event giving rise to such termination is one of the events described in clause
(ii) or (iv) of the definition of a "change of control" set forth in Section
2(f), and the Company offers the position of Chief Executive Officer to
Executive following such event and continues such options or causes such options
to be assumed by a successor entity, then the remaining options shall continue
to vest in accordance with the original vesting schedule, not withstanding such
change of control.
3.5 Executive shall be entitled each year to vacation for a minimum
of three 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.
3.6 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.
3.7 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.
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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, now
in existence or hereafter developed or acquired by the Company or for its use,
relating to any and all products 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 which is
used in the Company's business which 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, 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 date of this
Agreement 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 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.
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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 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.
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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. 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
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connection with or resulting from the breach by Executive of any of his
covenants, agreements, duties or obligations hereunder.
10. MISCELLANEOUS.
10.1 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.
000 Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Board of Directors
If to Executive:
Xxxxxxx X. Xxxxxxxxxxx
0000 Xxxxx Xxxx
Xx Xxxxxx, XX 00000
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.
10.2 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 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.
10.3 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.
10.4 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.
10.5 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.
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10.6 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.
10.7 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:___________________________ _____________________________
Xxxx-Xxxxxx Xxxxx Xxxxxxx X. Xxxxxxxxxxx
Director and Interim Chairman
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