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Exhibit 10.(i)
EMPLOYMENT AGREEMENT
This Agreement is entered into this 3 day of May, 2001 by and between
ICHOR CORPORATION, a Delaware corporation (hereinafter referred to as the
"COMPANY"), and Pierre-Xxxxxxxx Xxxxxx, an individual residing in France, 00
Xxxxxx Xxxxxxxx Xxxxxxxxxx, X-00000 Saint-Genis-Laval (hereinafter referred to
as "EXECUTIVE") under the following terms and conditions:
RECITALS:
WHEREAS, the Company and Executive desire to set forth the terms and
conditions on which (i) the Company shall employ Executive, (ii) Executive shall
render services to the Company, and (iii) the Company shall compensate Executive
for such services; and
WHEREAS, in connection with the employment of Executive by the Company,
the Company desires to restrict Executive's rights to compete with the business
of the Company;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. EMPLOYMENT.
The Company hereby employs Executive and Executive hereby accepts
employment with the Company upon the terms and conditions hereinafter set forth.
This contract shall be governed by the terms and the conditions of the National
Collective Bargaining Agreement for the Pharmaceutical Industry (Convention
Collective National de l'Industry Pharmaceutique).
2. PLACE OF WORK
2.1 Executive is hired to work at the registered offices of
the Company, and in all the sites where the Company is and may become active.
Executive, however, recognizes that he may be required, for the performance of
his employment contract, to travel abroad or in France, and Executive agrees to
travel, irrespective of duration.
3. TERM.
3.1 This Contract is entered into for an indefinite term,
subject, however, to termination as provided herein in Sections 7 and 8 below.
3.2 Each year, prior to the anniversary date, the Company and
Executive shall meet to determine additional compensation, if any.
3.3 The effective date of this Agreement shall be April 1,
2001 (the "EFFECTIVE DATE").
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4. COMPENSATION.
4.1 For all services rendered by Executive under this
Agreement, the Company shall pay or cause one or more of its subsidiaries to pay
Executive during the Executive's employment, a gross salary at the rate of fifty
thousand French Francs (50,000 FRF) per month from which the Company will
withhold all statutory withholdings. Such compensation shall be paid monthly to
Executive by Hippocampe, a wholly owned subsidiary of the Company, in accordance
with its standard practice for payment of compensation to its employees.
4.2 Executive shall be entitled to periodic cash bonuses in
addition to stock bonuses in accordance with the Company's stock option plans
now in effect or hereafter adopted, any other incentive bonus plans or other
forms of compensation, at the discretion of the Company's Board of Directors,
dependent upon Employee's performance.
4.3 Executive shall be entitled to normal benefits for all
Company employees and be entitled to participate in the Company's stock option
plan.
4.4 The compensation granted to Executive has been set
according to his functions and shall be considered as a lump sum compensation,
which includes Executive's overtime.
5. DUTIES AND RESPONSIBILITIES.
5.1 Executive shall, during the Term of this Agreement unless
otherwise agreed by management, devote his full attention and expend his best
efforts, energies, and skills on a full-time basis, to the business of the
Company and any corporation controlled by the Company (each, a "SUBSIDIARY").
The Company acknowledges that Executive may from time to time be engaged in
other business activities separate from and outside the scope of the business of
the Company. The Company agrees that the devotion of reasonable amounts of time
to such other business activities will not violate the terms of this Agreement
on the conditions that (i) such activities are not corporate opportunities of
the Company; and (ii) such activities do not interfere with the performance of
Executive's duties hereunder. For purposes of this Agreement, the term the
"COMPANY" shall mean the Company and all Subsidiaries.
5.2 During the Term of this Agreement, Executive shall serve
as the President and Chief Executive Officer of the Company or in such other
capacities as determined by the Board of Directors except as provided for under
Subsection 7.1. In the performance of all of his responsibilities hereunder,
Executive shall be subject to all of the Company's policies, rules, and
regulations applicable to its executive of comparable status and shall report
directly to, and shall be subject to, the direction and control of the Board of
Directors of the Company and shall perform such duties as shall be assigned to
him by the Board of Directors. In performing such duties, Executive will be
subject to and abide by, and will use his best efforts to cause other employees
of the Company to be subject to and abide by, all policies and procedures
developed by the Executive Committee or senior management of the Company.
Executive recognizes that his duties shall evolve if the expansion and/or the
organization of the Company so requires.
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5.3 To induce the Company to enter into this Agreement,
Executive represents and warrants to the Company that (i) except for the
existing contracts with SCERICIA and GLES which do not conflict with Executive's
obligations under this Agreement (as described on Exhibit A) Executive is not a
party or subject to any employment agreement or arrangement with other person,
firm, company, corporation or other business entity, (ii) Executive is subject
to no restraint, limitation or restriction by virtue of any law or rule of law
or otherwise which would impair Executive's right or ability (a) to enter the
employ of the Company, or (b) to perform fully his duties and obligations
pursuant to this Agreement.
6. RESTRICTIVE COVENANTS.
6.1 Executive acknowledges that (i) he has a major
responsibility for the operation, administration, development and growth of the
Company's business, (ii) the Company's business has become international in
scope, (iii) his work for the Company has brought him and will continue to bring
him into close contact with confidential information of the Company and its
customers, and (iv) the agreements and covenants contained in this Subsection
6.1 are essential to protect the business interests of the Company and that the
Company will not enter into this Agreement but for such agreements and
covenants. Accordingly, Executive covenants and agrees as follows:
6.1.1 Except as otherwise provided for in this
Agreement, during the Term of this Agreement Executive shall not, directly or
indirectly, compete with respect to any services or products of the Company
which are either offered or are being developed by the Company as of the date of
termination; or, without limiting the generality of the foregoing, by or become,
or agree to be or become, interested in or associated with, in any capacity
(whether as a partner, shareholder, owner, officer, director, Executive,
principal, agent, creditor, trustee, consultant, co-venturer or otherwise) any
individual, corporation, firm, association, partnership, joint venture or other
business entity, which competes with respect to any services or products of the
Company which are either offered or are being developed by the Company as of the
date of termination; provided, however, that Executive may own, solely as an
investment, not more than one percent (1%) of any class of securities of any
publicly held corporation in competition with the Company whose securities are
traded on any securities exchange.
6.1.2 During the Term of this Agreement and, for two
years thereafter ("TERMINATION PERIOD"), Executive shall not, directly or
indirectly, (i) induce or attempt to influence any employee of the Company to
leave its employ, (ii) aid or agree to aid any competitor, customer or supplier
of the Company in any attempt to hire any person who shall have been employed by
the Company within the one (1) year period preceding such requested aid, or
(iii) induce or attempt to influence any person or business entity who was a
customer or supplier of the Company during any portion of said period to
transact business with a competitor of the Company in Company's business.
6.1.3 During the Term of this Agreement, the
Termination Period and any time thereafter, Executive shall not disclose to
anyone any information about the confidential or proprietary affairs of the
Company, including, without limitation, trade secrets, trade "know-how",
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inventions, customer lists, business plans, operational methods, pricing
policies, marketing plans, sales plans, identity of suppliers or customers,
sales, profits or other financial information, which is confidential to the
Company or is not generally known in the relevant trade, nor shall Executive
make use of any such information for his own benefit.
6.1.4. These non-competition provisions shall be
enforceable during a period of two years following the termination of
Executive's employment contract, and, in light of the world wide scope of the
agreement, will be enforceable in all countries.
6.1.5. In consideration for his compliance with the
non-competition provisions, the Executive shall receive a non-compete
compensation during the aforementioned Termination Period. If the Agreement is
terminated by the Company, this monthly compensation will amount to 33% of the
average monthly gross salary which had been paid to the Executive during the
first 2 years of the Agreement. If the Agreement is terminated by the Executive,
this monthly compensation will amount to 33% of the average monthly gross salary
which had been paid to the Executive during the last twelve (12) months of the
Agreement. In case of breach of the non compete provisions by Executive, the non
competition compensation shall no longer be payable to the Executive and the
Executive shall reimburse the Company for all the non competition compensation
which the Company already has paid to the Executive.
6.2 If Executive breaches Subsection 6.1 (the "RESTRICTIVE
COVENANTS"), the Company shall have the following rights and remedies, which
shall be enforceable, and is in addition to, and not in lieu of, any other
rights and remedies available to the Company at law or in equity.
6.2.1 Executive acknowledges and agrees that in the
event of a violation or threatened violation of any of the provisions of
Subsection 5.1.1, the Company shall have no adequate remedy at law and shall
therefore be entitled to enforce each such provision by temporary or permanent
injunctive or mandatory relief obtained in any court of competent jurisdiction
without the necessity of proving damages, posting any bond or other security,
and without prejudice to any other rights and remedies which may be available at
law or in equity.
6.3 If any of the Restrictive Covenants, or any part thereof,
is held to be invalid or unenforceable, the same shall not affect the remainder
of the covenant or covenants, which shall be given full effect, without regard
to the invalid or unenforceable portions. Without limiting the generality of the
foregoing, if any of the Restrictive Covenants, or any part thereof, is held to
be unenforceable because of the duration of such provision or the area covered
thereby, the parties hereto agree that the court making such determination shall
have the power to reduce the duration and/or area of such provision and, in its
reduced form, such provision shall then be enforceable.
6.4 The parties hereto intend to and hereby confer
jurisdiction to enforce the Restrictive Covenants upon the courts of any
jurisdiction within the geographical scope of such Restrictive Covenants. In the
event that the courts of any one or more of such jurisdictions shall hold such
Restrictive Covenants wholly unenforceable by reason of the breadth of such
scope or otherwise, it is the intention of the parties hereto that such
determination not bar or in any way
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affect the Company's right of the relief provided above in the courts of any
other jurisdictions within the geographical scope of such Restrictive Covenants,
as to breaches of such covenants in such other respective jurisdictions, the
above covenants as they relate to each jurisdiction being, for this purpose,
severable into diverse and independent covenants.
7. TERMINATION.
7.1 The Company and Executive may each terminate this
employment at any time, with a 3 months notice period, except in case for
dismissal for Cause. Upon election to terminate the Agreement, the Company may
exercise two options:
(i) it may ask Executive to leave the day-to-day
employ of the Company and remain as a consultant; or
(ii) sever all relationships with the Company
whatsoever.
In either case, the Executive shall be entitled to
compensation, as defined in Sections 4 (base salary) of twenty-four (24) months
gross salary; this amount shall include any other compensation and allowance
granted by the aforesaid Collective Bargaining Agreement and by the provisions
of law applicable in this case.
7.2 The Company also may terminate Executive's employment
under this Agreement at any time for Cause. "CAUSE" shall exist for such
termination if Executive (i) is adjudicated guilty of illegal activities
involving moral turpitude by a court of competent jurisdiction, (ii) commits any
act of fraud or intentional misrepresentation intended to harm the Company,
(iii) has engaged in serious misconduct, which conduct has, or would, if
generally known, materially adversely affect the good will or reputation of the
Company and which conduct Executive has not cured or altered within ten (10)
days following written notice by the Board to Executive regarding such conduct,
(iv) is in material breach under this Agreement, or (v) Executive habitually
fails to perform the duties and responsibilities of his employment as set forth
in Section 4 of this Agreement or as may be assigned or delegated to him from
time to time by the Company, or the Board, and, with regard to grounds (iv) and
(v) the Board has given Executive thirty (30) days written notice of the grounds
for the termination and the conduct required by Executive to cure such failure,
with such conduct outlined with reasonable specificity, and Executive has not
cured such failure, within the thirty (30) day period provided in the written
notice to Executive.
7.3 If the Company terminates Executive's employment under
this Agreement pursuant to the provisions of Subsections 7.2, Executive shall
not be entitled to receive any severance pay.
7.4 If Executive's employment with the Company is terminated
due to the death, the spouse of the Executive, the estate of Executive or the
Executive, as the case may be, shall continue to receive compensation as
determined in Section 8 below.
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7.5 If Executive's employment with the Company is terminated
as the result of Executive's purely voluntary resignation for reasons other than
those set forth in Section 7 below, Executive shall not be entitled to
compensation after the effective date of such resignation other than as provided
for in Section 6.1.5. For purposes of this subsection 7.5, a voluntary
termination does not include termination initiated by the Executive in such
circumstances as an unfavorable change in his duties and responsibilities or
reporting responsibilities, or a reduction in base salary proposed by the Board.
A termination of the nature described in the preceding sentence shall be
considered a termination by the Board of Directors of the Company without
"Cause" for purposes of this Agreement.
8. TERMINATION COMPENSATION.
8.1 Compensation as defined in Sections 4.1 (base salary)
above shall continue for a period of twenty-four (24) months following the date
of termination in the event: (i) the Company terminates the Agreement pursuant
to Section 7.1; (ii) the death of Executive, said amount being paid to his
spouse or estate as the case may be; (iii) the Executive resigns due to a
substantial change in ownership or Board membership as defined below.
8.2 A substantial change in ownership shall mean: (i) the sale
of over 50% of the corporation's assets, or (ii) a change in ownership of over
30% of the outstanding stock of the Company; or (iii) the replacement or change
of over 65% of the Board in one fiscal year.
8.3 In the event Executive is requested to resign, employment
is terminated for any reason by the Company, including termination under
Sections 6 or 7 or in the event Executive voluntarily resigns as a result of any
of the events set forth in Section 7.1 above, then, and in any of such events,
all of the Executive's rights under the Company's Stock Option Plan and all
other incentive bonus plans shall fully and completely vest upon the date of
such termination and any early termination provisions provided for in such plans
shall not apply to rights or options granted to Executive.
9. EXPENSES.
9.1 Executive shall be entitled to reimbursement of all
reasonable expenses actually incurred in the course of his employment. Executive
shall submit to the Company a standardized expense report form, provided by the
Company, and shall attach thereto receipts for all expenditures. Expenses shall
include business travel, automobile expenses, and temporary lodging.
9.2 The Company shall reimburse Executive within fifteen (15)
days after submission by Executive of his expense report.
10. THE COMPANY'S AUTHORITY.
Executive agrees to observe and comply with the reasonable
rules and regulations of the Company as adopted by the Company's Board of
Directors, either orally or in writing,
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respecting performances of his duties and to carry out and perform orders,
directions, and policies stated by the Board of Directors, to him from time to
time, either orally or in writing.
11. PAID VACATION; SICK LEAVE; INSURANCE.
11.1 Executive shall be entitled to a paid vacation each year
equal to all paid holidays in accordance and set forth in the law and in the
applicable Collective Bargaining Agreement, but this paid vacation shall not be
less than six (6) weeks per year in addition to the statutory paid holidays on
which the Company's offices are closed.
11.2 Executive shall be entitled to reasonable periods of paid
sick leave during the Term of the Agreement in accordance with the Company's
policy regarding such sick leave.
12. LEGAL DEFENSE; AND INDEMNIFICATION.
The Company acknowledges that the Biotech industry is a
litigious industry whereby many regulatory fines, penalties and third-party
suits are directed at the individuals involved in ownership and operations. The
Company agrees to pay all legal fees, judgments, awards, bonds, fines, penalties
and costs related to the defense and outcome whereby Executive was acting in his
corporate capacity. The Company acknowledges that from time to time the
Executive becomes contingently liable for obligations of the Company. The
Company will make whole the Executive in case such contingent obligations
becomes direct. Also, in the event that Executive leaves the employ of the
Company for any reason, the Company will use its best efforts to remove the
Executive from such liabilities, whether contingent or direct.
13. MISCELLANEOUS.
13.1 The Company may, from time to time, apply for and take
out, in its own name and at its own expense, life, health, accident, disability
or other insurance upon Executive in any sum or sums that it may deem necessary
to protect its interests, and Executive agrees to aid and cooperate in all
reasonable respects with the Company in procuring any and all such insurance,
including without limitation, submitting to the usual and customary medical
examinations, and by filling out, executing and delivering such applications and
other instruments in writing as may be reasonably required by an insurance
company or companies to which an application or applications for such insurance
may be made by or for the Company.
13.2 This Agreement is a personal contract, and the rights and
interests of Executive hereunder may not be sold, transferred, assigned, pledged
or hypothecated except as otherwise expressly permitted by the provisions of
this Agreement. Executive shall not under any circumstances have any option or
right to require payment hereunder otherwise than in accordance with the terms
hereof. Except as otherwise expressly provided herein, Executive shall not have
any power of anticipation, alienation or assignment of payments contemplated
hereunder, and all rights and benefits of Executive shall be for the sole
personal benefit of Executive, and no other person shall acquire any right,
title or interest hereunder by reason of any sale, assignment, transfer, claim
or judgment or bankruptcy proceedings against Executive; provided, however, that
in the event of Executive's death, Executive's estate, legal representative
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or beneficiaries (as the case may be) shall have the right to receive all of the
benefit that accrued to Executive pursuant to, and in accordance with, the terms
of this Agreement.
13.3 The Company shall have the right to assign this Agreement
to any successor of substantially all of its business or assets, and any such
successor and Executive shall be bound by all of the provisions hereof.
14. NOTICES.
All notices, requests, demands and other communications
provided for by this Agreement shall be in writing and (unless otherwise
specifically provided herein) shall be deemed to have been given three (3) days
after having been mailed in any general or branch United States Post office,
enclosed in a registered or certified postpaid envelope, addressed to the
parties stated below or to such changed address as such party may have fixed by
notice:
TO THE COMPANY: ICHOR CORPORATION
00 Xxxx Xxxxxx
Xxxxxx 0, Xxxxxxx
COPY TO: Xxxxx X. Xxxxxxxxx, Esq.
Xxxxx & Xxxxxxx, P.C.
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
EXECUTIVE: 00-00 Xxxxxx Xxxxxxxx Xxxxxxxxxx
00000 Xxxxx-Xxxxx-Xxxxx
Xxxxxx
15. ENTIRE AGREEMENT.
This Agreement supersedes any and all Agreements, whether oral
or written, between the parties hereto, with respect to the employment of
Executive by the Company and contains all of the covenants and Agreements
between the parties with respect to the rendering of such services in any manner
whatsoever. Each party to this Agreement acknowledges that no representations,
inducements, promises or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not embodied herein,
and that no other agreement, statement or promise with respect to such
employment not contained in this Agreement shall be valid or binding. Any
modification of this Agreement will be effective only if it is writing and
signed by the parties hereto.
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16. PARTIAL INVALIDITY.
If any provision in this Agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remaining
provisions shall nevertheless continue in full force and effect without being
impaired or invalidated in any way.
17. ATTORNEYS FEES.
Except with respect to paragraphs 6.3 and 6.4 which issues are
reserved for the court, any dispute regarding the negotiations leading up to the
execution of this Release and/or the interpretation or application of this
Agreement or the alleged breach hereof, or any act which allegedly has, or
would, violate any provision of this Agreement must be submitted to arbitration
before a neutral arbitrator. The arbitration shall be conducted in accordance
with the rules of American Arbitration Association. A written demand for
arbitration pursuant to Section 638 of the Code of Civil Procedure must be made
within sixty (60) days of the alleged breach. The results of arbitration will be
the exclusive, final and binding remedy for such claim or dispute.
18. GOVERNING LAW.
This Agreement will be governed by and construed in accordance
with the laws of the State of Delaware.
19. BINDING NATURE.
This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective representatives, heirs, successors
and assigns.
20. WAIVER.
No waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
21. CORPORATE APPROVALS.
The Company represents and warrants that the execution of this
Agreement by its corporate officer named below has been duly authorized by the
Board of Directors of the Company, is not in conflict with any Bylaw or other
agreement and will be a binding obligation of the Company, enforceable in
accordance with its terms.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement in two original copies as of the date above written.
THE COMPANY:
By: /s/ M. Xxxx Xxxxxxxx
---------------------------------------
Member of Board of Directors
EXECUTIVE:
/s/ Pierre-Xxxxxxxx Xxxxxx
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Pierre-Xxxxxxxx Xxxxxx
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EXHIBIT A
1. Description of Agreement with SCERICIA
Executive acted as general manager for SCERICIA. Executive represents that
SCERICIA is an inactive company.
2. Description of Agreement with GLES
Group Lyonnais of Specific Epuration is an active company (Therapeutic
Cartridges) which is pursuing complementary research in the biotechnology field
with Hippocampe. Executive acts as Vice President of GLES and represents that
there are no conflicts with this engagement and his engagements under the
Agreement.
NB: The patents of Pr. J XXXXXXX President of GLES were bought by HIPPOCAMPE.
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