EMPLOYMENT AGREEMENT
This Employment Agreement (Agreement) is made and entered into between
Techne Corporation, a Minnesota corporation, (hereinafter "Techne"), and
Xxxxxxx Xxxxxxx (hereinafter "Executive") (each may be referred to
individually as a "Party" and collectively as the "Parties").
RECITALS
Whereas, Techne wishes to employ Executive under the terms and
conditions set forth in this Agreement, and Executive wishes to accept such
employment under the terms and conditions set forth in this Agreement
including, but not limited to, the restrictive covenants as more fully
described herein;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants contained herein, Techne and Executive agree as follows:
SECTION 1
EMPLOYMENT AND TERMS OF AGREEMENT
1.1 Parties. The parties to this Agreement are Xxxxxxx Xxxxxxx
("Executive") and Techne Corporation ("Techne"). As used herein, Techne
refers to Techne Corporation and its subsidiaries including Research and
Diagnostic Systems, Inc. ("R&D"), unless specifically provided otherwise.
All of the rights and obligations created by this Agreement may be performed
by or enforced by or against Techne or R&D or other appropriate subsidiary.
1.2 Employment and Term. Techne hereby employs Executive and
Executive hereby accepts employment as Chief Executive Officer ("CEO") of
Techne on the terms and conditions set forth in this Agreement. Executive's
employment hereunder will commence on April 1, 2013 and will terminate when
terminated by either Party pursuant to Section 3 hereof. Any position that
Executive may hold on the Techne Board of Directors and any other position
with Techne automatically will terminate simultaneously with termination of
his employment hereunder.
1.3 Duties.
a. During the term of his employment, Executive shall serve
Techne faithfully and to the best of his ability and shall devote his full
business and professional time, energy, and diligence to the performance of
the duties of the position of CEO. Executive shall perform such service and
duties in connection with the business and affairs of Techne (i) as are
customarily incident to the position of CEO and (ii) as may reasonably be
assigned or delegated to him by the Board of Directors of Techne and/or its
designee.
b. Executive agrees to be subject to Techne's control, rules,
regulations, policies and programs. Executive further agrees that he will
carry on all correspondence, publicity and advertising in Techne's name and
he shall not enter into any contract on behalf of Techne except as expressly
authorized by Techne.
c. Notwithstanding 1.3(a) and (b), Techne agrees that Executive
may serve as a member of the Board of Directors for for-profit or nonprofit
entities, provided that those entities would not qualify as competitive
businesses under Section 4.5 of this Agreement.
SECTION 2
COMPENSATION, BENEFITS AND OTHER ENTITLEMENTS
2.1 Base Salary. As compensation for his services to Techne and as
compensation for his confidentiality, nonsolicitation, noncompetition and
other agreements provided in Section 4 of this Agreement, Executive will be
paid an annual base salary of Five Hundred, Seventy-Five Thousand and 00/100
Dollars ($575,000.00), to be paid in accordance with the usual payroll
practices of Techne. The base salary amount will be reviewed and adjusted by
Techne's Executive Compensation Committee from time to time but no less than
annually in its sole discretion. The base annual salary will be inclusive of
all applicable income, Social Security, and other taxes and charges that are
required by law to be withheld by Techne or that are requested to be withheld
by Executive.
2.2 Cash Bonus. In addition to the base salary payable to Executive
pursuant to Section 2.1 hereof, unless Executive has terminated his
employment voluntarily for reasons other than death or disability prior to
June 30, 2013, Techne will pay Executive, prior to July 31, 2013, a cash
bonus of One Hundred Seven Thousand, Eight Hundred Twelve and 50/100 Dollars
($107,812.50), which shall be taxed at the bonus rate for the fiscal year
ending June 30, 2013.
2.3 Cash Incentive Bonus. During each fiscal year of Executive's
employment beginning July 1, 2013 and continuing each fiscal year during the
term of Executive's employment, Executive will be eligible to earn a cash
incentive bonus. The amount of such incentive bonus shall be as defined in
the incentive bonus plan established by Techne's Executive Compensation
Committee in its sole discretion from time-to-time; provided, however, that
for fiscal 2014, the target cash incentive bonus amount shall be seventy-five
percent (75%) of his then-current annual base salary. The performance
standards for earning such incentive bonus will be established annually by
Techne's Executive Compensation Committee and it will determine whether the
standards have been met in its sole discretion.
2.4 Benefits. In addition to the compensation and benefits provided
to Employee in Sections 2.1 through 2.3 hereof, Executive will be entitled to
participate in other employee benefit plans from time to time established by
Techne and made available generally to all employees to the extent that
Executive's age, tenure and title make him eligible to receive those
benefits. Executive may participate in such benefit plans on an appropriate
and comparable basis determined by Techne's Board of Directors by reference
to all other employees eligible for participation. With regard to all
insured benefits to be provided to Executive, benefits shall be subject to
due application by Executive. Techne has no obligation to pay insured
benefits directly and such benefits are payable to Executive only by the
insurers in accordance with their policies. Nothing in this Agreement is
intended to or shall in any way restrict Techne's right to amend, modify or
terminate any of its benefits or benefit plans during the Term of Executive's
employment.
2.5 Long-term Equity Awards. Upon commencement of employment under
Section 1.2 of this Agreement, Techne will grant to Executive a time-vested
stock option to purchase an aggregate of 65,000 shares of common stock of
Techne, a performance-vested stock option to purchase an aggregate of 50,000
shares of Techne' common stock, and a time-vested restricted stock award in
the aggregate amount of 15,000 shares of Techne's common stock. These equity
grant awards shall be in substantially the forms attached as Exhibits A, B
and C, respectively, to this Agreement. Executive also will be eligible to
participate in and receive additional grants commensurate with his position
and level in any equity-based or equity related compensation plan, programs
or agreements of Techne made available generally to its senior executives;
provided that the amount, timing, and other terms of any future grant shall
be determined by the Techne Board of Directors, or its designated committees,
in its sole discretion.
2.6 Miscellaneous Benefits. Techne will provide Executive the
following additional benefits during the course of his employment with Techne
under the terms of this Agreement:
a. Reimbursement in accordance with Techne's standard
reimbursement policies in effect from time to time for ordinary, necessary
and reasonable out-of-pocket business expenses incurred by Executive in
performing his duties for Techne so long as properly substantiated.
b. Paid vacation of four weeks per calendar year, prorated for
partial years of service, to be taken at such times as selected by Executive
and as approved by the Board of Directors and/or its designee. Carryover,
forfeiture or payout of unused vacation time from period to period or upon
termination of employment shall be in accordance with Techne's policies that
may be in effect from time to time.
c. Reimbursement for reasonable annual premium costs paid by
Executive for Executive to have supplemental life insurance coverage in a
maximum amount that when aggregated with the life insurance coverage provided
to Executive under Techne's benefit plans is three times Executive's base
salary or less. Such reimbursement amount shall include an additional
reasonable gross up amount to cover taxes incurred by Executive from receipt
of the payment under this Section 2.6c.
d. Reimbursement for reasonable annual premium costs paid by
Executive for Executive to have supplemental long-term and short-term
disability insurance coverage in a maximum amount that when aggregated with
the disbility insurance coverage provided to Executive under Techne's benefit
plans is 60% and 70%, respectively, of Executive's base salary or less. Such
reimbursement amount shall include an additional reasonable gross up amount
to cover taxes incurred by Executive from receipt of the payment under this
Section 2.6d.
SECTION 3
TERMINATION OF EMPLOYMENT
3.1 Termination. Notwithstanding any other provision of this
Agreement to the contrary or appearing to be to the contrary, Executive's
employment may be terminated as follows:
A. By mutual written agreement of the parties.
B. Upon Executive's death.
C. Upon Executive's inability to perform the essential
functions of his position due to physical or mental disability, with or
without reasonable accommodation, as determined in the good faith judgment
of the Techne Board of Directors, and such inability continues for a period of
ninety (90) calendar days or as may otherwise be required by applicable law.
Nothing in this Section 3.1(C) shall limit the right of either Party to
terminate Executive's employment under one of the other sections of this
Section 3.1.
D. Upon ninety (90) calendar days' written notice to the other
Party. In the event that Techne desires to terminate Executive's employment
under this Section 3.1(D) with less than ninety (90) calendar days' notice,
Techne will pay Executive an amount equal to his regular base salary and cost
of benefits (but not incentive bonus) for such 90-day period in lieu of
giving all or a portion of the notice provided in this Section.
E. Upon the insolvency or bankruptcy of Techne.
F. In the event of a Change of Control, as set forth in Section
3.4, provided that the severance provisions of Section 3.4 of this Agreement
are met.
G. Techne shall have the right to terminate Executive's
employment immediately for "Cause." For purposes of this Agreement, "Cause"
is defined as the following:
i. Habitual neglect of, or the willful or material failure
to perform the duties of employment hereunder, as determined in
good faith by the Board of Directors of Techne and/or its
designee;
ii. Embezzlement or any act of fraud;
iii. Commission of acts that can be charged as a felony,
whether or not committed during the term hereof or in the course
of employment hereunder;
iv. Dishonesty in dealing between Executive and Techne or
between Executive and other employees of Techne;
v. Use of or dependence on any controlled substance
without a prescription, or any illegal or narcotic drug; or use
of alcohol in a manner, regardless of time or place, which
either adversely affects Executive's job performance or
otherwise reflects negatively on Techne or Executive;
vi. Habitual absenteeism; or
vii. Willfully acting in a manner materially adverse to the
best interests of Techne.
3.2 Return of Property. At such time that Executive's employment with
Techne ends (the "Termination Date") or at such earlier time as Techne may
notify Executive, Executive will immediately cease doing business upon
Techne's premises and will immediately deliver to Techne all of its property
and all property to be held by Techne in his possession or control,
including, but not limited to, all work in progress, data, equipment,
originals and copies of documents and software, customer and supplier
information and lists, financial information, and all other materials. In
addition, if Executive has used any personal computer, server, or email system
(including, but not limited to, computers, Blackberries, PDA's, cell phones,
Smart Phones, iphones, ipads, etc.) to receive, store, review, prepare or
transmit any Techne information, including but not limited to Confidential
Information (as defined below), Executive agrees to provide Techne with a
computer-useable copy of all such Confidential Information and then permanently
delete and expunge such information from those systems. Executive also agrees
to certify, within ten (10) days after the Termination Date, in writing to
Techne that he has complied with his obligation to return Techne property.
3.3 Payment Upon Termination. Upon (i) termination of Executive's
employment other than by Techne for Cause as defined in Section 3.1(G) or
upon Executive's death or disability as provided in Sections 3.1(B) and (C),
or (ii) Executive's resignation for Good Reason, as defined below, Executive
will be paid an amount equal to one (1) year of his then-current base annual
salary (but not any cash or incentive bonus) (hereinafter referred to as the
"Termination Severance Payment"); provided, however, that Executive shall be
entitled to the Termination Severance Payment set forth in this Section 3.3
only if he executes, does not rescind, and fully complies with a release
agreement in a form supplied by Techne, which will include, but not be
limited to, a comprehensive release of claims against Techne and its
directors, officers, employees and all related parties, in their official and
individual capacities; provided, however, that the release will not include
amounts owed under any deferred compensation program or any worker's
compensation claims. As used in this Agreement, "Good Reason" means a good
faith determination by Executive that any one or more of the following events
have occurred; provided, however, that such event shall not constitute "Good
Reason" if Executive has expressly consented to such event in writing or if
Executive fails to provide written notice of his decision to terminate within
sixty (60) calendar days of the occurrence of such event:
A. A change in Executive's reporting responsibilities, titles or
offices, or any removal of Executive from any of such positions, which has
the effect of diminishing Executive's responsibility or authority;
B. A material reduction by Techne in Executive's total
compensation from that provided to him under this Agreement;
C. A requirement imposed by Techne on Executive that results in
Executive being based at a location that is outside a fifty (50) mile radius
of Techne; or
D. The existence of physical working conditions or requirements
that a reasonable person in Executive's position would find to be
intolerable; provided, however, that Techne has received written notice of
such "intolerable" conditions and Techne has failed within thirty (30)
calendar days after receipt of such notice to cure or otherwise appropriately
address such "intolerable" conditions.
Termination for "Good Reason" shall not include Executive's termination
as a result of death, disability, retirement or a termination for any reason
other than the events specified in clauses (A) through (D) in this Section
3.3.
3.4 Payment Upon Termination for Change in Control. If there is a
Change in Control, as defined below, and Executive's employment is terminated
upon consummation of such Change in Control or within one (1) year
thereafter, Executive will be paid an amount equal to two (2) years of his
then-current base annual salary plus the pro-rated value of any incentive
compensation earned through the date of such termination pursuant to Section
2.3 above and the automatic acceleration of any vesting requirements of the
equity grants awarded under Section 2.5 above (hereinafter referred to as the
"CIC Severance Payment"); provided, however, that Executive shall be entitled
to the CIC Severance Payment set forth in this Section 3.4 only if he
executes, does not rescind, and fully complies with a release agreement in a
form supplied by Techne, which will include, but not be limited to, a
comprehensive release of claims against Techne and its directors, officers,
employees and all related parties, in their official and individual
capacities; provided, however, that the release will not include amounts owed
under any deferred compensation program or any worker's compensation claims.
"Change of Control" shall mean the occurrence, in a single transaction or in
a series of related transactions, of any one or more of the events in
subsections (i) through (iii) below. For purposes of this definition, a
person, entity or group shall be deemed to "Own," to have "Owned," to be the
"Owner" of, or to have acquired "Ownership" of securities if such person,
entity or group directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise, has or shares voting power, which
includes the power to vote or to direct the voting, with respect to such
securities.
(i) Any person, entity or group becomes the Owner, directly or
indirectly, of securities of Techne representing more than fifty percent
(50%) of the combined voting power of Techne's then outstanding securities
other than by virtue of a merger, consolidation or similar transaction.
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur (A) on account of the acquisition of securities of Techne by an
investor, any affiliate thereof or any other person, entity or group from
Techne in a transaction or series of related transactions the primary purpose
of which is to obtain financing for Techne through the issuance of equity
securities or (B) solely because the level of Ownership held by any person,
entity or group (the "Subject Person") exceeds the designated percentage
threshold of the outstanding voting securities as a result of a repurchase or
other acquisition of voting securities by Techne reducing the number of
shares outstanding, provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the acquisition of voting
securities by Techne, and after such share acquisition, the Subject Person
becomes the Owner of any additional voting securities that, assuming the
repurchase or other acquisition had not occurred, increases the percentage of
the then outstanding voting securities Owned by the Subject Person over the
designated percentage threshold, then a Change in Control shall be deemed to
occur;
(ii) There is consummated a merger, consolidation or similar
transaction involving (directly or indirectly) Techne and, immediately after
the consummation of such merger, consolidation or similar transaction, the
stockholders of Techne immediately prior thereto do not Own, directly or
indirectly, either (A) outstanding voting securities representing more than
fifty percent (50%) of the combined outstanding voting power of the surviving
entity in such merger, consolidation or similar transaction or (B) more than
fifty percent (50%) of the combined outstanding voting power of the parent of
the surviving entity in such merger, consolidation or similar transaction, in
each case in substantially the same proportions as their Ownership of the
outstanding voting securities of Techne immediately prior to such
transaction; or
(iii) There is consummated a sale, lease, exclusive license or
other disposition of all or substantially all of the total gross value of the
consolidated assets of Techne and its subsidiaries, other than a sale, lease,
license or other disposition of all or substantially all of total gross value
of the consolidated assets of Techne and its subsidiaries to an entity, more
than fifty percent (50%) of the combined voting power of the voting
securities of which are Owned by stockholders of Techne in substantially the
same proportions as their Ownership of the outstanding voting securities of
Techne immediately prior to such sale, lease, license or other disposition
(for purposes of this Section 1(d)(iii), "gross value" means the value of the
assets of Techne or the value of the assets being disposed of, as the case
may be, determined without regard to any liabilities associated with such
assets).
For the avoidance of doubt, the term Change in Control shall not
include a sale of assets, merger or other transaction effected exclusively
for the purpose of changing the domicile of Techne. To the extent required,
the determination of whether a Change of Control has occurred shall be made
in accordance with Internal Revenue Code Section 409A and the regulations,
notices and other guidance of general applicability issued thereunder.
3.5 Timing of Cash Payments Pursuant to Section 3.3 or 3.4. Any cash
payments pursuant to Section 3.3 or 3.4 will be paid to Executive monthly
over the course of a one-year period, beginning after expiration of any
applicable rescission periods set forth in the required release agreement;
provided, however, that notwithstanding anything in this Agreement to the
contrary, if any of the payments described in Section 3.3 or 3.4 are subject
to the requirements of Section 409A of the Internal Revenue Code of 1986, as
amended ("Code Section 409A") and Techne determines that Executive is a
"specified employee" as defined in Code Section 409A as of the date of
Executive's termination of employment, such payments shall not be paid or
commence earlier than the first day of the seventh month following the date
of Executive's termination of employment and on such date any amounts that
would have been made during the first six months following termination but
for operation of this proviso will be paid in one lump sum with the remaining
payments made monthly over the remainder of the specified one-year period.
In addition, all payments made to Executive pursuant to Section 3.3 or 3.4
shall be reduced by amounts (i) required to be withheld in accordance with
federal, state and local laws and regulations in effect at the time of
payment, or (ii) owed to Techne by Executive for any amounts advanced, loaned
or misappropriated. Such offset shall be made in the manner permitted by and
shall be subject to the limitations of all applicable laws, including but not
limited to Code Section 409A, and the regulations, notices and other guidance
of general applicability issued thereunder.
3.6 No Other Payments. Except as provided in Sections 3.3 and 3.4,
including but not limited to if Executive is terminated with Cause or
voluntarily terminates his employment at any time without Good Reason,
Executive will not be entitled to any compensation or benefits other than
that which was due to him as of the date of termination, regardless of any
claim by Executive for compensation, salary, bonus, severance benefits or
other payments.
3.7 Board Resignation. If at the time of any termination of
Executive's service to Techne, Executive is a member of Techne's Board of
Directors, Executive agrees to immediately submit his resignation from
Techne's Board of Directors effective upon such termination of service unless
otherwise determined by Techne's Board of Directors in its sole discretion.
SECTION 4
CONFIDENTIALITY, RESTRICTIVE COVENANTS,
INVENTIONS AND COPYRIGHTS
4.1 Definition. For purposes of this Agreement, "Confidential
Information" means information which is not generally known and which Techne
holds in confidence, including, without limitation, the following: all
information and data developed or acquired by Executive in the course of
employment with Techne; data or conclusions or opinions formed by Executive
in the course of employment; policies and procedures; manuals; trade secrets;
methods, procedures, or techniques pertaining to the business of Techne or
any customer of Techne; specifications for products or services; systems;
price lists; marketing plans; sales or service analyses; financial
information; customer names or other information; vendor names or other
information; employee names or other information; research and development
data; diagrams; drawings; media; notes, memoranda, notebooks, and all other
records or documents that are handled, seen, or used by Executive in the
course of employment.
Notwithstanding anything to the contrary, "Confidential
Information" does not include any information that is (A) in the public
domain or enters the public domain through no violation of obligations
Executive owes to Techne; (B) disclosed to Executive other than as a result
of Executive's capacity as an employee of Techne by a third-party not subject
to maintain the information in confidence; or (C) already known by Executive
other than as a result of Executive's past relationship with Techne (or its
predecessors) and is evidenced by written documentation existing prior to
such disclosure. Specific technical and business information shall not be
deemed to be within the preceding exceptions merely because it is embraced by
more general technical or business information within such exceptions, nor
shall a combination of features be deemed to be within such exceptions merely
because the individual features are within such exceptions.
4.2 Agreement. Executive agrees at all times to use all reasonable
means to keep Confidential Information secret and confidential. Executive
will not at any time use, disclose, duplicate, record, or in any other manner
reproduce in whole or in part any Confidential Information, except as
ordinarily necessary for the performance of Executive's duties on behalf of
Techne. The Confidential Information shall not be removed from the location
of Executive's employment except as permitted or directed by Techne's Board
of Directors and/or its designee. Upon termination of Executive's employment
with Techne, all copies of Confidential Information and other Techne
materials and property in Executive's possession, whether physical or
electronic, shall be immediately returned to Techne. Executive acknowledges
that disclosure of any of Techne's Confidential Information other than for
the sole benefit of Techne would have a materially detrimental effect upon
Techne, the monetary loss from which would be difficult, if not impossible,
to measure.
4.3 Nonsolicitation of Employees. During the term of this Agreement
or any successor employment relationship between Executive and Techne, and
for the one (1)-year period following his termination from employment
regardless of the reason for termination and whether initiated by Techne or
Executive, Executive agrees that he will not solicit, directly or indirectly,
or accept as an individual or through a partnership, corporation, or any
other entity, any then-current employee of Techne or consultant under
contract with Techne for employment or any other arrangement for compensation
to perform services.
4.4 Nonsolicitation of Customers. During the term of this Agreement
or any successor employment relationship between Executive and Techne, and
for the one (1)-year period following his termination from employment
regardless of the reason for termination and whether initiated by Techne or
Executive, Executive agrees that he will not directly or indirectly solicit,
encourage or advise, on his own behalf or on behalf of another, any of
Techne's then-current customers or any known prospective customers for the
purpose of curtailing or canceling any of their business or relations, or
prospective business or relations, with Techne.
4.5 Noncompetition. During the term of this Agreement or any
successor employment relationship between Executive and Techne, and for the
one (1)-year period following his termination from employment regardless of
the reason for termination and whether initiated by Techne or Executive,
Executive agrees that he will not become the owner of, nor engage, directly
or indirectly, either as proprietor, partner, employee, agent, greater than
five percent (5%) shareholder, partner, officer, director, independent
contractor, or otherwise, in any business which is substantially similar to
or competes with the business of Techne, unless Techne has first consented in
writing thereto.
4.6 Inventions. Executive agrees to communicate promptly and fully to
Techne all inventions, discoveries, improvements or designs conceived or
reduced to practice by Executive during the period of his employment with
Techne (alone or jointly with others), and, Executive will and hereby does
assign to Techne and/or its nominees all of Executive's right, title and
interest in such inventions, discoveries, improvements or designs and all of
his right, title and interest in any patents, patent applications or
copyrights based thereon without obligation on the part of Techne to make any
further compensation, royalty or payment to Executive. Executive further
agrees to assist Techne and/or its nominee (without charge but at no expense
to Executive) at any time and in every proper way to obtain and maintain for
its and/or their own benefit, patents for all such inventions, discoveries
and improvements and copyrights for all such designs. Notwithstanding the
foregoing, this Section 4.6 shall not apply to an invention for which no
equipment, supplies, facility or trade secret information of Techne was used
and which was developed entirely on Executive's own time, and (A) which does
not relate (i) directly to the business of Techne or (ii) to Techne's actual
or demonstrably anticipated research or development, or (B) which does not
result from any work performed by Executive for Techne.
4.7 Copyrights. Executive hereby acknowledges that any computer
software, program, or other work of authorship that he prepares within the
scope of his employment is a "work made for hire" under U.S. copyright laws
and that, accordingly, Techne exclusively owns all copyright rights in such
computer software, program, and other works of authorship. For purposes of
this Agreement, "scope of employment" means that the computer software,
programs, and other works of authorship (A) relate to any subject matter
pertaining to Executive's employment with Techne, (B) relate to or are
directly or indirectly connected with the business, products, projects or
Confidential Information of Techne, or (C) involve the use of any time,
material or facility of Techne.
4.8 Remedies. The Parties acknowledge and agree that if Executive
breaches any of the terms of this Section 4, Techne, in addition to any other
remedies available at law or equity, shall be entitled, as a matter of right,
to injunctive relief in any court of competent jurisdiction. The prevailing
party in any such litigation shall be entitled to recover reasonable
attorneys' fees, costs and expenses incurred therein but hereby specifically
waives any right to a jury trial in connection with the recovery of, or
attempt to recover, any attorneys' fees, costs and/or expenses.
4.9 Survival of Provisions. The Parties agree that the obligations of
this Section 4 shall survive termination of this Agreement and termination of
Executive's employment for any reason.
4.10 Understandings. Executive hereby acknowledges that (A) Techne
informed him, as part of the offer of employment and prior to his accepting
employment with Techne under the terms and conditions set forth in this
Agreement, that confidentiality, nonsolicitation, noncompetition, invention
and copyright agreements would be required as part of the terms and
conditions of his employment with Techne; (B) he has carefully considered the
restrictions contained in this Agreement and determined that they are
reasonable; and (C) the restrictions in this Agreement will not unduly
restrict him in securing other suitable employment in the event of his
termination from Techne.
SECTION 5
ARBITRATION
5.1 Arbitration. Any dispute arising out of or relating to (A) this
Agreement or the alleged breach of it, or the making of this Agreement,
including claims of fraud in the inducement, or (B) Executive's application
or candidacy for employment, employment and/or termination of employment with
Techne including, but not limited to, any and all disputes, claims or
controversies relating to discrimination, harassment, retaliation, wrongful
discharge, and any and all other claims of any type under any federal or
state constitution or any federal, state, or local statutory or common law
shall be discussed between the disputing parties in a good faith effort to
arrive at a mutual settlement of any such controversy. If, notwithstanding,
such dispute cannot be resolved, such dispute shall be settled by binding
arbitration. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The arbitrator shall be a
retired state or federal judge or an attorney who has practiced employment,
securities or business litigation for at least 10 years. If the Parties
cannot agree on an arbitrator within 20 days, any Party may request that the
chief judge of the District Court for Hennepin County, Minnesota, select an
arbitrator. Arbitration will be conducted pursuant to the provisions of this
Agreement, and the commercial arbitration rules of the American Arbitration
Association, unless such rules are inconsistent with the provisions of this
Agreement, but without submission of the dispute to such Association.
Limited civil discovery shall be permitted for the production of documents
and taking of depositions. Unresolved discovery disputes may be brought to
the attention of the arbitrator who may dispose of such dispute. The
arbitrator shall have the authority to award any remedy or relief that a
court of this state could order or grant; provided, however, that punitive or
exemplary damages shall not be awarded. The arbitrator may award to the
prevailing party, if any, as determined by the arbitrator, all of its costs
and fees, including the arbitrator's fees, administrative fees, travel
expenses, out-of-pocket expenses and reasonable attorneys' fees. Unless
otherwise agreed by the parties, the place of any arbitration proceedings
shall be Hennepin County, Minnesota. This agreement to arbitrate does not
include worker's compensation claims, claims for unemployment compensation,
or any injunctive or other relief to which Techne may be entitled in
accordance with Section 4 herein.
SECTION 6
MISCELLANEOUS PROVISIONS
6.1 Other Benefits. This Agreement shall not be construed to be in
lieu or to the exclusion of any other rights, benefits, and privileges to
which Executive may be entitled as an employee of Techne under any
retirement, pension, profit-sharing, insurance, or other plans or benefits
that may now be in effect or that may hereafter be adopted.
6.2 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Minnesota, without regard to
conflicts of law principles that would require the application of any other
law.
6.3 Entire Agreement. This Agreement constitutes the entire
understanding of Techne and Executive with respect to its subject matter,
supersedes any prior agreement or arrangement relative to Executive's
employment by Techne, whether oral or written, and no modification,
supplement, or amendment of any provision hereof shall be valid unless made
in writing and signed by the Parties.
6.4 Successors and Assigns. This Agreement is personal to Executive
and Executive may not assign or transfer any part of his rights or duties
hereunder, or any compensation due to him hereunder, to any other person.
This Agreement may be assigned by Techne. This Agreement is binding on any
successors or assigns of Techne.
6.5 Captions. The captions set forth in this Agreement are for
convenience only and shall not be considered as part of this Agreement or as
in any way limiting or amplifying the terms and conditions hereof.
6.6 No Conflicting Obligations; Indemnification; Duty to Defend.
Executive represents and warrants to Techne that other than Executive's
Noncompetition Agreement with Thermo Xxxxxx dated August 3, 2011 (the "Thermo
Xxxxxx Agreement"), he is not under, or bound to be under in the future, any
obligation to any person, firm, or corporation that is or would be
inconsistent or in conflict with this Agreement or would prevent, limit, or
impair in any way the performance by him of his obligations hereunder. With
respect to the Thermo Xxxxxx Agreement, Executive makes no representations
regarding its impact on his ability to fully perform the obligations under
this Agreement. Techne agrees to indemnify, defend, and hold harmless
Executive for all losses, damages, liabilities, payments and expenses
incurred or arising out of or in connection with Executive's status as an
officer or director of Techne, whether or not the claim is asserted during
Executive's period of employment, including but not limited to all losses,
damages, liabilities, payments and expenses incurred or arising out of or in
connection with the Thermo Xxxxxx Agreement. If Executive possesses any
information that he knows or should know is considered by any third party, such
as a former employer of Executive's, including but not limited to Thermo
Xxxxxx, to be confidential, trade secret, or otherwise proprietary, Executive
shall not disclose such information to Techne or use such information to
benefit Techne in any way. Notwithstanding the foregoing, Techne's obligations
under this Section 6.6 will not apply if Executive has acted in bad faith
(including, but not limited to, intentional misconduct, willful neglect or
material misrepresentation of fact) and will not apply to any loss of severance
or other monetary payment from Thermo Xxxxxx to which Executive may be entitled
by way of a severance agreement or otherwise.
6.7 Waivers. The failure of any Party to require the performance or
satisfaction of any term or obligation of this Agreement, or the waiver by
any Party of any breach of this Agreement, shall not prevent subsequent
enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
6.8 Severability. In the event that any provision hereof is held
invalid or unenforceable by a court of competent jurisdiction, Techne and
Executive agree that that part should modified by the court to make it
enforceable to the maximum extent possible. If the part cannot be modified,
then that part may be severed and the other parts of this Agreement shall
remain enforceable.
6.9 Code Section 409A. Notwithstanding any other provision of this
Agreement to the contrary, the Parties to this Agreement intend that this
Agreement will satisfy the applicable requirements, if any, of Code Section
409A in a manner that will preclude the imposition of additional taxes and
interest imposed under Code Section 409A. The Parties agree that this
Agreement will be amended (as determined by Techne in its sole discretion) to
the extent necessary to comply with Code Section 409A, as amended from time
to time, and the notices and other guidance of general applicability issued
thereunder. Further, if any of the payments described in this Agreement are
subject to the requirements of Code Section 409A and Techne determines that
Executive is a "specified employee" as defined in Code Section 409A as of the
date of Executive's termination of employment (which will have the same
meaning as "separation from service" as defined in Code Section 409A), all or
a portion of such payments will not be paid or commence earlier than the
first day of the seventh month following the date of Executive's termination
of employment, but only to the extent such delay is required for compliance
with Code Section 409A.
6.10 Notices. All notices given or made pursuant to this Agreement
shall be in writing and shall be deemed effectively given, delivered and
received (A) upon personal delivery to the Party to be notified; (B) when
sent by facsimile if sent during normal business hours of the recipient, and
if not sent during normal business hours then on the next business day; (C)
five (5) calendar days after having been sent by registered or certified
mail, return receipt requested, postage prepaid; or (D) one (1) business day
after the business day of deposit with a nationally recognized overnight
courier, specifying next-day delivery, with written verification of receipt.
All communications shall be sent to the respective parties at their addresses
set forth below, or to such facsimile numbers, or addresses as subsequently
modified by written notice given in accordance with this Section:
(a) If to Techne:
Techne Corporation
Attention: Chair, Board of Directors
000 XxXxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
(b) If to the Executive:
Xxxxxxx Xxxxxxx
0000 00xx Xxxxxx Xxxx Xxxxx
Xxxx Xxxx, XX 00000
6.11 Construction. The Parties agree that the terms and provisions of
this Agreement embody their mutual intent, each Party has had the opportunity
to negotiate its provisions and contribute to its drafting, and therefore, it
is not to be construed more liberally in favor of, or more strictly against,
any Party hereto.
6.12 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement. Electronically transmitted (e.g., by facsimile
or pdf) signed copies of this Agreement shall be deemed to be original signed
versions of this Agreement.
6.13 Section 280G. Notwithstanding anything to the contrary contained
in this Agreement, to the extent that any of the payments and benefits
provided for under this Agreement or any other agreement or arrangement
between the Executive and the Company (collectively, the "Payments")
constitute a "parachute payment" within the meaning of Section 280G of the
Code and (ii) but for this Section 5(b), would be subject to the excise tax
imposed by Section 4999 of the Code, then the Payments shall be payable
either (i) in full or (ii) as to such lesser amount which would result in no
portion of such Payments being subject to excise tax under Section 4999 of
the Code; whichever of the foregoing amounts, taking into account the
applicable federal, state and local income taxes and the excise tax imposed
by Section 4999, results in the Executive's receipt on an after-tax basis, of
the greatest amount of economic benefits under this Agreement,
notwithstanding that all or some portion of such benefits may be taxable
under Section 4999 of the Code. Unless the Executive and the Company
otherwise agree in writing, any determination required under this Section
6.13 shall be made in writing by the Company's independent public accountants
(the "Accountants"), whose reasonable determination shall be conclusive and
binding upon the Executive and the Company for all purposes. For purposes of
making the calculations required by this Section 6.13, the Accountants may
make reasonable assumptions and approximations concerning applicable taxes
and may rely on reasonable, good faith interpretations concerning the
application of the Sections 280G and 4999 of the Code. The Executive and the
Company shall furnish to the Accountants such information and documents as
the Accountants may reasonably request in order to make a determination under
this Section 6.13.
THE PARTIES HAVE executed this Employment Agreement in the manner
appropriate to each as of the dates set forth below.
/s/ Xxxxxxx Xxxxxxx March 16, 2013
Xxxxxxx Xxxxxxx Date
TECHNE CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx, M.D., Ph.D. March 15, 2013
Its: Director and Chair, Executive Date
Compensation Committee
