EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this 3rd
day of September 1996 by and between SeraCare, Inc. (referred herein as the
"Corporation") and Xxxx Xxxx ("Xxxx").
1. EMPLOYMENT AS AN EXECUTIVE OF THE CORPORATION . The Corporation hereby agrees
to retain Xxxx and Xxxx hereby agrees to be employed as an Executive of the
Corporation. In the performance of his duties and responsibilities, Xxxx shall
at all times be under the direction of the President of the Corporation. Xxxx
shall perform his duties and responsibilities in accordance with all reasonable
rules, regulations and policies of the Corporation. It is further agreed that
Xxxx'x office and primary place of business shall be in Clearfield, Utah for the
duration of this Agreement.
2. EXTENT OF SERVICES. Xxxx agrees to devote all of his efforts on behalf of the
business of the Corporation. Without limiting the foregoing, during the term of
this Agreement, Xxxx shall not, directly or indirectly, either as an employee,
consultant, stockholder or in any other capacity, engage or participate in any
business that is in competition in any manner with the Corporation. At such time
as Xxxx is appointed as Chief Operating Officer by the Corporation, the
President of the Corporation will use his best efforts to get Xxxx elected to
the Board of Directors of the Corporation.
3. INDEMNIFICATION; INSURANCE AGREEMENT. The Corporation warrants and assures
Xxxx that the Charter of the Corporation contains a provision which provides for
indemnification of officers by the Corporation to the maximum extent permissible
under the laws of the jurisdiction in which the Corporation is incorporated.
Further, the Corporation agrees to either or both of the following:
A. Enter into an Indemnification Agreement provided that such Indemnification
Agreement shall be modified if necessary to conform with the laws of the
jurisdiction in which the Corporation is incorporated.
B. Obtain and maintain in full force and effect at Corporation's sole expense,
such director's and officer's liability insurance for errors and omissions of
such type and in such amount as is customary for similarly situated
companies, if available at reasonable cost.
4. NO COMPETING AFFILIATIONS. During the term of this agreement, Xxxx will not
serve as a consultant, employee or other paid assistant or in any like role
or capacity with any other competing or potentially competing company with
like operations, business strategies, or objectives. In addition, for a
period of one year after termination of this agreement Xxxx may work within
the industry but shall not engage in any employment or activities which are
or could reasonably be expected to have an adverse affect upon the operations
of the Corporation.
5. COMPENSATION. Beginning with the pay period beginning on September 1, 1996,
Xxxx shall be compensated at the rate of $100,000 per year. During the period
beginning
September 1, 1996 through December 31, 1996, Xxxx shall be compensated through
the issuance of Common Shares of the Corporation. The number of shares to be
issued shall be determined by dividing the compensation due Xxxx by $1.50. All
shares to be issued pursuant to this provision shall be issued at one time after
December 31, 1996, but not later than February 28, 1997. Xxxx'x compensation for
the period January 1, 1997 through February 5, 1999 shall be in accordance with
the normal payroll procedures and cycle of the Corporation.
6. NABI BONUS. As additional compensation, Xxxx shall receive $25,000 in cash,
or at Xxxx'x option 16,667 shares of common stock, (but not both) which North
American Biologicals, Inc. ("NABI") Bonus ( the "NABI Bonus") shall be
payable upon the signing of a multi-year contract between NABI and SeraCare,
Inc. for the purchase of Source Plasma for all SeraCare, Inc. startup
operations at a price of at least $50.00 per liter.
7. PERFORMANCE BONUS. Xxxx shall also share in the Management Bonus Pool on the
same basis as other executives of the Corporation during the term of this
agreement.
8. FRINGE BENEFITS. Xxxx shall receive four (4) weeks paid vacation per year
during the course of this Agreement. Xxxx will also receive company paid:
sick pay, group health insurance, dental care, vision care, disability
insurance, life insurance and such other benefits in the amounts and as may
be provided in the ordinary course to the Corporation's other executives.
9. TERM. This Agreement shall be for the period beginning on September 1, 1996
and ending on February 5, 1999.
10. TERMINATION.
10.1 TERMINATION FOR CAUSE. The Corporation may terminate this Agreement
immediately and without notice for cause. "Cause" for the purpose of this
agreement shall include, but not be limited to: death; dishonesty; theft;
conviction of a felony; alcohol or drug abuse; unethical business conduct; and a
material breach of this Agreement by Xxxx. "Cause" shall also include the
failure of Xxxx for any reason, within ten days after receipt by Xxxx of written
notice thereof from the President and Board of Directors, to cease or otherwise
alter any insubordination, failure to comply with instructions, or other action
or omission to act which, in the sole opinion of the President, materially
affects or may materially affect the Corporations' business operations. Other
events which will result in the termination of this Agreement are:
A. The date on which Xxxx agrees to terminate this Agreement.
B. The disability of Xxxx. Disability herein is defined as being unable to
perform the duties hereunder due to a physical and/or mental condition or
impairment for ninety (90) consecutive days during the term of this
Agreement or 60 consecutive days in any 365 day period during the term.
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C. The date on which Xxxx voluntarily ceases to perform his duties hereunder,
other than by reason of a physical or mental condition prior to the time
that a disability occurs.
If this agreement is terminated for "Cause" as herein defined, Xxxx shall not be
entitled to any termination or severance specific to this agreement. This will
have no affect on his entitlement to Additional Consideration as defined in that
certain Asset Purchase Agreement attached hereto as Exhibit A.
10.2 TERMINATION FOR WITHOUT CAUSE. If this Agreement is terminated by the
Corporation for any reason other than "Cause" as herein defined, Xxxx shall
be entitled to receive the balance of the amount due under this Agreement.
Such payments shall be payable in accordance with the normal payroll cycle
over the remaining term of this Agreement.
In addition, if the Agreement is terminated Without Cause, Xxxx shall receive
125,000 shares of stock less any Additional Consideration shares already
received in connection with that certain Asset Purchase Agreement (Attached
hereto as Exhibit A), in complete and final settlement of any and all claims
Xxxx may have against the Corporation in connection with such Asset Purchase
Agreement. As a condition to receiving such shares, Xxxx shall provide the
Corporation with a written "1542 Release" releasing the Corporation of any
further obligation under that certain Asset Purchase Agreement and this
Employment Agreement other than paying out the cash payments indicated in this
section 10.2.
11. NO SOLICITATION OF EMPLOYEES. During the period of this Agreement and for
two (2) full years following termination of this Agreement, Xxxx shall not, for
any reason either directly or indirectly, solicit for employment or employ for
any other entity any employee of the Corporation.
12. WITHHOLDING. Xxxx authorizes the Corporation to withhold and/or deduct from
his compensation (including, without limitation, salary and wages), deductions
to recover any amounts loaned by the Corporation to Xxxx or paid on Xxxx'x
behalf which, under the terms of said loan or payment, must be repaid to the
Corporation including, without limitation, loans of money and the value of any
of the Corporations property taken but not returned by Xxxx. Corporation shall
also have the expressed right to deduct all sums required for federal, state or
local income, Social Security or other taxes now applicable or that may be
enacted in the future.
13. NOTICE. Any notice provided to be given pursuant to this Agreement shall be
in writing and shall be deemed duly given three days after deposited in the
mail, certified mail, return receipt requested, to the party to receive such
notice at the address specified below:
The Corporation: SeraCare, Inc.
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
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For Xxxx: Xxxx Xxxx
0000 Xxxx 0000 Xxxxx
Xxxxxx, Xxxx 00000
14. GOVERNING LAW. The validity of this Agreement and the interpretation and
performance of all of its terms shall be controlled exclusively by the
substantive law of California, including California law concerning the
interpretation and performance of contracts.
15. ENFORCEABILITY. Any provision of this Agreement which is invalid, illegal,
or unenforceable shall be ineffective only to the extent of such invalidity,
illegality, or unenforceability, without affecting in any way the remaining
provisions hereof or rendering the remaining provisions hereof invalid, illegal,
or unenforceable.
16. WAIVER. The failure of either party hereto to insist upon strict compliance
with any of the terms, covenants or conditions of this Agreement by the other
party shall not be deemed a waiver of that or any other term, covenant, or
condition, nor shall any waiver or relinquishment of any right or power at any
one time or times be deemed a waiver or relinquishment of that right or power
for all or any other times.
17. TRADE SECRETS, CONFIDENTIAL. AND PROPRIETARY INFORMATION.
X. Xxxx and Corporation acknowledge and agree that during the term of this
Agreement and in the course of the discharge of his duties hereunder,
Xxxx shall have access to and become acquainted with information owned
by the Corporation concerning its operation, which information derives
independent economic value from not being generally known to the public
or competitors, and which includes, without limitation: (1)
manufacturing processes, research, and engineering, (2) marketing data
and techniques, (3) trademarks, tradenames, and servicemarks, (4)
customer and client bases and lists, and (5) financial and personnel
information. Said information constitutes Employer's trade secret,
confidential and proprietary information.
X. Xxxx agrees that he shall not at any time (during the period of this
agreement or any future time) disclose any such trade secret,
confidential, or proprietary information, directly or indirectly, to any
other person or use it in any way other than as required in the ordinary
course of his employment under this agreement.
X. Xxxx further agrees that all files, records, documents, equipment, and
similar items relating to the Corporation's business (including, without
limitation, items containing trade secret, confidential or proprietary
information), whether prepared by Xxxx or others, including all
originals and copies, are and shall be returned to the Corporation upon
Xxxx'x termination.
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X. Xxxx further agrees that during the period of his employment by the
Corporation and after termination thereof, he will not disrupt, damage,
disparage, impair, or interfere with the Corporation's business or its
reputation, whether by way of interfering with or soliciting its
employees, disrupting its relationships with or soliciting clients or
customers, agents, representatives, or vendors, aiding competitors, or
by way of any other conduct.
18. NON-ASSIGNABILITY. Xxxx may not assign any of his rights or responsibilities
under this Agreement.
19. ENTIRE AGREEMENT. This Agreement supersedes any and all other agreements,
either oral or in writing, between the parties hereto with respect to the
employment of Xxxx by the Corporation and contains all of the covenants and
agreements between the parties with respect to that employment in any manner
whatsoever. Each party to this Agreement acknowledges that no representation,
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 not contained in this
Agreement shall be valid or binding on either party.
20. MODIFICATIONS. Any modification of this Agreement shall be effective only if
it is in writing and signed by both parties to this Agreement.
IN WITNESS WHEREOF, the parties hereto do hereby authorize and
acknowledge that this Agreement be the effective agreement between the parties.
SeraCare, Inc.: Xxxx Xxxx:
By: /s/ XXXXX X. XXXXX /s/ XXXX XXXX
------------------------- ----------------------------
Xxxxx X. Xxxxx Xxxx Xxxx
President and CEO An individual
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