Exhibit 10.2
AGREEMENT
THIS AGREEMENT between LifeCell Corporation, a Delaware corporation (the
"Company"), and Xxxx X. Xxxxxx (the "Employee") is dated as of October 5, 1998
(the "Effective Date").
W I T N E S S E T H:
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WHEREAS, the Employee has been elected President and Chief Executive
Officer of the Company on the Effective Date; and
WHEREAS, the parties desire to implement a 12-month severance arrangement set
forth in connection with such election; 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 implementing that severance arrangement;
NOW, THEREFORE, the parties agree as follows:
Section 1. Term of this Agreement. The term of this Agreement shall
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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 4 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 90 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
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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 Employee Confidentiality,
Inventions, Discoveries and Non-Competition Agreement dated as of September 8,
1998, between Employee and the Company that substantially impairs the Company's
interest herein or therein, or (iii) Employee has committed acts that in the
judgment of the Company's Board of Directors constitutes willful misconduct to
the material detriment of the Company.
Section 3. An Event of Termination for Good Reason. An Event of
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"Termination for Good Reason" shall have occurred if, after the Effective Date,
the Company shall:
(i) assign to the Employee any duties inconsistent with the Employee's
position (including offices, titles and reporting requirements), authority,
duties or responsibilities with the Company;
(ii) remove the Employee from, or fail to re-elect or appoint the
Employee to, any duties or positions with the Company or any of its Affiliates
that were assigned or held by the Employee immediately after the Effective Date,
except that a nominal change in the Employee's title that is merely descriptive
and does not affect rank or status shall not constitute such an event;
(iii) reduce the Employee's annual base salary as in effect
immediately after the Effective Date or as the Employee's annual base salary may
be increased from time to time thereafter;
(iv) fail to continue to provide the Employee with benefits
substantially similar to those enjoyed by the Employee under any of the
Company's employee benefits plans, policies, programs and arrangements,
including, but not limited to, life insurance, medical, dental, health,
hospital, accident or disability plans, in which the Employee was a participant
immediately after the Effective Date; or
(v) fail to continue to provide the Employee with office space,
related facilities and support personnel (including, but not limited to,
administrative and secretarial assistance) (a) that are both commensurate with
Employee's responsibilities to and position with the Company immediately after
the Effective Date and not materially dissimilar to the office space, related
facilities and support personnel provided to other employees of the Company
having comparable responsibility to the Employee, or (b) that are physically
located at the Company's principal executive offices; or
(vi) relocate the Employee's principal office outside of the
metropolitan area of Houston, Texas
Section 4. Benefits Payable on Termination Without Cause. If the
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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, or if the
employee's employment by the Company is terminated by the Employee as a result
of an Event of Termination for Good Reason ("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 sum of Employee's annual base salary as in
effect immediately before the Termination Date plus the amount of the
bonus paid to the Employee in respect of the fiscal year immediately
preceding the Termination Date; 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 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. The provisions of this
Section 4 shall survive any termination of this Agreement.
Section 5. Certain Benefit Payable Upon Certain Terminations. If
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the Employee's employment by the Company is terminated otherwise than as a
result of a Termination without Cause, then the Company shall pay to the
Employee within ten calendar days after the Termination Date an amount equal to
the product of (i) the bonus paid by the Company to the Employee in respect of
the fiscal year immediately preceding the Termination Date and (ii) a fraction,
the numerator of which is the number of days in the current fiscal year of the
Company through the Termination Date and the denominator which is 365. The
provisions of this Section 5 shall survive any termination of this Agreement.
Section 6. Notice. Notices required or permitted to be given
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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 7 Withholding Taxes. The Company may withhold from all
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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 8. Amendment and Waiver. No provision of this Agreement may be
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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 9. Governing Law. The validity, interpretation, construction
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and enforceability of this Agreement shall be governed by the laws of the State
of Texas.
Section 10. Validity The invalidity or unenforceability of any
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provision of this Agreement shall not affect the validity or enforceability of
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any other provision of this Agreement which shall remain in full force and
effect.
Section 11. Counterparts. This Agreement may be executed in
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counterparts, each of which shall be deemed an original but all of which
together will constitute the same instrument.
Section 12. Assignment. This Agreement shall insure to the benefit of
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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 13. Interpretation
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(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/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Chairman of the Board
By /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Chairman of the Compensation Committee of the
Board of Directors
Xxxx X. Xxxxxx
By /s/ Xxxx X. Xxxxxx
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