EXHIBIT 10.1
EMPLOYMENT AND CONSULTING AGREEMENT
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EMPLOYMENT AND CONSULTING AGREEMENT (the "Agreement") dated as of December
15, 1994 between Intermagnetics General Corporation, a New York corporation (the
"Company"), and Xxxx X. Xxxxxx ("Employee").
WHEREAS, Employee has served as the President and Chief Executive Officer
of the Company under an Employment and Consulting Agreement dated September 22,
1992 between the Company and Employee (the "1992 Agreement");
WHEREAS, the employment provisions of the 1992 Agreement will expire on May
31, 1995 and the Company desires to assure the continued service of Employee for
an additional two years upon the terms and conditions hereinafter set forth;
and
WHEREAS, Employee and the Company desire that the 1992 Agreement be
superseded by this Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as
follows:
1. Employment. The Company hereby employs or retains Employee, and Employee
hereby accepts such employment or consulting assignment and agrees to perform
his duties and responsibilities hereunder, in accordance with the terms and
conditions hereinafter set forth.
1.1. Term. Employee shall be employed as a full-time employee of the
Company for the term (the "Employment Term") running three fiscal years
beginning retroactive to June 1, 1994 and ending on May 31, 1997. For the five
fiscal years immediately following the Employment Term (the "Consulting Term"),
Employee shall serve as a consultant to the Company as set forth in Section 1.7
hereof. The term of this Agreement (the "Agreement Term") shall commence
retroactively as of June 1, 1994 and shall continue for the Employment Term plus
the Consulting Term, unless terminated prior thereto in accordance with Section
8 or 9 hereof.
1.2. Duties and Responsibilities.
(a) During the Employment Term, Employee shall serve as President and Chief
Executive Officer of the Company and shall perform all duties and accept all
responsibilities incidental to such position or as may be assigned to him by the
Company's board of directors, and he shall
cooperate fully with the board of directors and other executive officers of the
Company. During the Employment Term, Employee shall also be available to perform
similar duties on behalf of subsidiaries or divisions of the Company. During the
Employment Term, employee shall at all times comply with policies and procedures
adopted by the Company for employees of the Company and its subsidiaries,
including without limitation the procedures and policies adopted by the Company
regarding conflicts of interest.
(b) During the Consulting Term, Employee shall provide consulting services
to the Company as an independent contractor and not as an employee of the
Company. Employee shall at all times during the Consulting Term act as an
independent contractor and during such period nothing hereunder shall create or
imply a relationship of employer-employee between the Company and Employee.
During the Consulting Term, Employee shall also be available to perform similar
duties on behalf of subsidiaries or divisions of the Company. During the
Consulting Term, Employee shall at all times comply with policies and procedures
adopted by the Company for consultants to the Company, including without
limitation the procedures and policies adopted by the Company regarding
conflicts of interest.
(c) Employee represents and covenants to the Company that he is not subject
or a party to any employment agreement, non-competition covenant, non-disclosure
agreement or any similar agreement, covenant, understanding or restriction which
would prohibit Employee from executing this Agreement and performing his duties
and responsibilities hereunder during both the Employment Term and the
Consulting Term, or which would in any manner, directly or indirectly, limit or
affect the duties and responsibilities which may now or in the future be
assigned to Employee by the Company or the scope of assistance to which he may
now or in the future provide to subsidiaries or divisions of the Company,
including without limitation any duties and responsibilities relating to the
development, production and/or sale of (i) superconductive wire and materials,
(ii) permanent and superconductive magnet systems used in MRI diagnostic imaging
systems, (iii) NMR spectroscopy systems, (iv) devices for separation of
materials by magnetic means, (v) cryogenic equipment and refrigeration systems,
(vi) permanent magnet applications as part of the U.S. strategic defense
initiative program, or (vii) CFC replacement products.
1.3. Extent of Service.
(a) During the Employment Term, Employee agrees to use his best efforts to
carry out his duties and responsibilities under Section 1.2(a) hereof and to
devote his full time, attention and energy thereto, provided, however, that
Employee shall not be required to transfer to a location other than the
metropolitan Albany, New York area without his prior consent. Employee further
agrees not to work either on a part time or independent contracting basis for
any other business or enterprise during the Employment Term without the prior
consent of the board of directors of the Company.
(b) During the Consulting Term, Employee agrees to devote 50% of his time,
attention and energy thereto; provided, however, that (i) Employee shall have
complete discretion to select the specific dates required for the performance of
consulting activities hereunder, and (ii) Employee shall not be required to
perform such consulting services outside the metropolitan Albany, New York area
without his prior consent.
(c) Except as provided in Section 5 hereof, neither subsection (a) nor (b)
hereof shall be construed as preventing Employee from making investments in
other businesses or enterprises, or from serving as a director of any other
business or enterprise, provided that Employee agrees not to become engaged in
any other business activity which may interfere with his ability to discharge
his duties and responsibilities to the Company as an employee or consultant.
1.4. Base Compensation During Employment Term. For all the services
rendered by Employee during the Employment Term, the Company shall pay Employee
an annual salary at the rate of $275,000 for each full year of the Employment
Term, plus unused vacation at the end of each year and such additional amounts,
if any, as may be approved by the Company's board of directors, less withholding
required by 1aw or agreed to by Employee, payable in installments at such times
as the Company customarily pays its other senior officers (but in any event no
less often than monthly). The board of directors of the Company, or its
Compensation Committee, shall annually review Employee's salary to determine if
an increase is appropriate. During the Employment Term, Employee shall also be
(i) entitled to participate in such vacation pay, life insurance, pension
benefits and other fringe benefit plans as may exist from time to time for the
senior officers of the Company (subject to payment of such portion of the costs
thereof as the Company requires from its senior officers); (ii) provided with
one social club membership as chosen by Employee; (iii) provided with a term
life insurance policy payable to Employee's designated beneficiary or
beneficiaries in the face amount of $500,000 less any amount currently provided
under the Company's group life insurance coverage; and (iv) entitled to be
reimbursed for the reasonable expenses incurred by him in obtaining advice and
services related to financial and retirement planning. Notwithstanding the
foregoing, during the Employment Term, the Company shall purchase a disability
insurance policy for Employee with minimum coverage equal to 60% of his base
salary adjusted annually for inflation, payable for the periods set forth on
Schedule 1 hereto, with a waiting period not to exceed 26 weeks, subject to
reductions for Social Security disability and worker's compensation payments, if
any, received by Employee. The disability policy shall define "disability" to be
Employee's inability to perform all of his material duties on a full-time basis,
and shall provide for partial disability coverage in the event the Employee is
unable to perform those duties on a full-time basis and his income is reduced
because of such disability.
1.5. Incentive Compensation. In addition to the compensation set forth
above, during the Employment Term Employee shall be entitled to participate in
such incentive compensation or bonus plans, if any, as may be adopted by the
board of directors of the Company from time to time (without any obligation to
the board of directors of the Company to do so). Notwithstanding the foregoing,
Employee shall receive in respect of each of the three fiscal years during the
Employment Term a minimum cash bonus equal to not less than 1% of the Company's
income before taxes for such fiscal year. The bonus shall be paid to Employee as
soon as possible after the audited financial statements for such fiscal year are
available, but in no event later than 90 days after the end of the fiscal year.
1.6. Stock Options. In consideration for Employee's continued employment
under this Agreement, the Company on June 1, 1997 will grant to Employee, if he
elects to begin the Consulting Term and if the Company at such date continues to
be a publicly held company whose shares of Common Stock are registered under the
Securities Exchange Act of 1934 (the "1934 Act"), a non-qualified option to
purchase 75,000 shares (subject to adjustment for future stock dividends or
splits) of Common Stock of the Company, with the option vesting at a rate of
33-1/3% on each of June 1, 1998, June 1, 1999 and June 1, 2000. The grant will
be made pursuant to the 1990 Stock Option Plan of the Company, or any successor
plan qualified under the rules and regulations pursuant to Section 16 of the
1934 Act, and adopted by the Company's shareholders as required by Rule 16b-3 of
the 1934 Act, and a stock option agreement for non-qualified options in the form
used generally by the Company. The exercise price of the option will be equal to
the fair market value of the Company's common stock on the date of grant, and
the term of the stock option is five years.
1.7. Consulting Term. For all services rendered by Employee as a consultant
to the Company during the Consulting Term, the Company shall pay Employee
compensation at the annual rate of 50% of his annual salary at the end of the
Employment Term for each full year of the Consulting Term, plus an incentive
bonus in respect of each of the five fiscal years during the Consulting Term
equal to not less than 1/2% of the Company's income before taxes for such fiscal
year. The bonus shall be paid to Employee as soon as possible after the audited
financial statements for such fiscal year are available, but in no event later
than 90 days after the end of the fiscal year, plus such additional amounts, if
any, as may be approved by the Company's board of directors, payable in
installments at such time as the Company customarily pays its senior officers.
During the Consulting Term, Employee shall also be entitled to life, disability
and health insurance benefits provided generally to senior officers of the
Company during such periods of time (subject to payment of such portion of the
costs thereof as the Company requires from its senior officers). During the
Consulting Term, Employee shall be solely responsible for the payment of all
federal, state and local taxes or contributions imposed or required under
unemployment insurance, social security and income tax laws that pertain to the
compensation paid to Employee for his performance of consulting services.
2. Expenses. Employee shall be reimbursed for the reasonable business
expenses incurred by him in connection with his performance of services
hereunder during the Agreement Term upon presentation of an itemized account in
accordance with Company policies.
3. Developments. All developments (including inventions, whether patentable
or otherwise, trade secrets, discoveries, improvements, ideas and writings)
which either directly or indirectly relate to or may be useful in the business
of the Company or any of its affiliates (the "Developments") which Employee,
either by himself or in conjunction with any other person or persons, has
conceived, made, developed, acquired or acquired knowledge of while an employee
of the Company or which Employee, either by himself or in conjunction with any
other person or persons, shall conceive, make, develop, acquire or acquire
knowledge of during the Agreement Term, shall become and remain the sole and
exclusive property of the Company. Employee hereby assigns, transfers and
conveys, and agrees to so assign, transfer and convey, all of his right, title
and interest in and to any and all such Developments and to disclose fully as
soon as practicable, in writing, all such Developments to the board of directors
of the Company. At any time and from time to time, upon the request and at the
expense of the Company, Employee will execute and deliver any and all
instruments, documents and papers, give evidence and do any and all other acts
which, in the opinion of counsel for the Company, are or may be necessary or
desirable to document such transfer or to enable the Company to file and
prosecute applications for and to acquire, maintain and enforce any and all
patents, trademark registrations or copyrights under United States or foreign
law with respect to any such Developments or to obtain any extension,
validation, re-issue, continuance or renewal of any such patent, trademark or
copyright. The Company will be responsible for the preparation of any such
instruments, documents and papers and for the prosecution of any such
proceedings and will reimburse Employee for all reasonable expenses incurred by
him in compliance with the provisions of this Section.
4. Confidential Information. Employee recognizes and acknowledges that by
reason of his employment by the Company, he has had, and, by reason of his
continued employment by and consulting to the Company, he will continue to have,
access to confidential information of the Company and its affiliates, including,
without limitation, information and knowledge pertaining to products,
inventions, innovations, designs, ideas, plans, trade secrets, proprietary
information, manufacturing, packaging, advertising, distribution and sales
methods and systems, sales and profit figures, customer and client lists, and
relationships between the Company and its affiliates and dealers, distributors,
wholesalers, customers, clients, suppliers and others who have had or will have
business dealings with the Company and its affiliates ("Confidential
Information"). Employee acknowledges that such Confidential Information is a
valuable and unique asset and covenants that he will not, either during or after
the Agreement Term, disclose any such Confidential Information to any person for
any reason whatsoever (except as his duties during the Agreement Term may
require) without the prior written authorization of the Company's board of
directors, unless such information is in the public domain through no fault of
Employee or except as may be required by law.
5. Non-Competition.
(a) During such time as Employee is employed by the Company as an employee
or consultant and until the later of (x) June 1, 1998 or (y) one year after
termination of Employee's employment or consulting relationship with the Company
(whether such termination is during or after the Agreement Term), Employee will
not, unless acting pursuant hereto or with the prior written consent of the
board of directors of the Company, directly or indirectly, own, manage, operate,
join, control, finance or participate in the ownership, management, operation,
control or financing of, or be connected as a director, officer, employee,
partner, principal, agent, representative, consultant or otherwise with or use
or permit his name to be used in connection with, any business or enterprise
engaged in the development, production, sale, rental or repair of (i)
superconductive wire and materials, (ii) permanent and superconductive magnet
systems used in MRI diagnostic imaging systems, (iii) NMR spectroscopy systems,
(iv) devices for separation of materials by magnetic means, (v) cryogenic
equipment and refrigeration systems, (vi) permanent magnet applications as part
of the U.S. strategic defense initiative program, or (vii) CFC replacement
products. It is recognized by Employee that the business of the Company and the
other subsidiaries or divisions of the Company which provide similar products or
services and Employee's connection therewith is or will be international in
scope, and that geographical limitations on this non-competition covenant (and
the non-solicitation covenant set forth in Section 6 hereof) are therefore not
appropriate.
(b) The foregoing restriction shall not be construed to prohibit the
ownership by Employee of not more than five percent (5%) of any class of
securities of any corporation which is engaged in any of the foregoing
businesses having a class of securities registered pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act"), provided that such ownership
represents a passive investment and that neither Employee nor any group of
persons including Employee in any way, either directly or indirectly, manages or
exercises control of any such corporation, guarantees any of its financial
obligations, otherwise takes any part in its business (other than exercising
his rights as a shareholder), or seeks to do any of the foregoing.
6. No Solicitation. Employee agrees that until the later of (x) June 1,
1998 or (y) one year after termination of Employee's employment or consulting
relationship with the Company (whether such termination is during or after the
Agreement Term) he will not call on or solicit, either directly or indirectly,
any person, firm, corporation or other entity who or which at the time of such
termination was, or within two years prior to the termination of Employee's
employment or consulting relationship with the Company had been, a customer of
the Company or any of its affiliates with respect to the activities prohibited
by Section 5 hereof.
7. Equitable Relief.
(a) Employee acknowledges that the restrictions contained in Sections 4, 5
and 6 hereof are reasonable and necessary to protect the legitimate interests
of the Company and its affiliates, that the Company would not have entered into
this Agreement in the absence of such restrictions, and that any violation of
any provision of those Sections will result in irreparable injury to the Company
for which there would be no adequate remedy at law. Employee also acknowledges
that the Company shall be entitled to preliminary and permanent injunctive
relief, without the necessity of proving actual damages, as well as an equitable
accounting of all earnings, profits and other benefits arising from any such
violation, which rights shall be cumulative and in addition to any other rights
or remedies to which the Company may be entitled. Employee agrees that in the
event of any such violation, an action may be commenced by the Company for any
such preliminary and permanent injunctive relief and other equitable relief in
any court of competent jurisdiction within the State of New York or in a court
of competent jurisdiction in any other state. Employee hereby waives any
objections on the grounds of improper jurisdiction or venue to the commencement
of an action in the State of New York and agrees that effective service of
process may be made upon him by mail under the notice provisions contained in
Section 16 hereof. In the event that any of the provisions of Sections 4, 5 or 6
hereof should ever be adjudicated to exceed the time, geographic, product or
other limitations permitted by applicable law in any jurisdiction, then such
provisions shall be deemed reformed in such jurisdiction to the maximum time,
geographic, product or other limitations permitted by applicable law.
(b) Employee agrees that until the expiration of the covenants contained in
Sections 3, 4, 5 and 6 of this Agreement, he will provide, and that the Company
may similarly provide, a copy of the covenants contained in such Sections to any
business or enterprise (i) which he may directly or indirectly own, manage,
operate, finance, join, control or participate in the ownership, management,
operation, financing or control of, or (ii) with which he may be connected with
as a director, officer, employee, partner, principal, agent, representative,
consultant or otherwise, or in connection with which he may use or permit his
name to be used.
8. Termination. This Agreement shall terminate prior to the expiration of
the Agreement Term upon the occurrence of any one of the following events:
8.1. Disability. In the event that Employee is unable fully to perform his
duties and responsibilities hereunder to the full extent required by the board
of directors of the Company by reason of illness, injury or incapacity for 26
consecutive weeks, during which time he shall continue to be compensated as
provided in Section 1.4 or 1.7 hereof, as applicable (less any payments due
Employee under disability benefit programs, including Social Security
disability, worker's compensation and disability retirement benefits), this
Agreement may be terminated by the Company, and the Company shall have no
further liability or obligation to Employee for compensation hereunder;
provided, however, that Employee will be entitled to receive, in addition to
amounts due him in such circumstances under any pension or benefit plans of the
Company (including, without limitation, the Company's Retirement Plan,
Supplemental Retirement Plan, Supplemental Income Plan and Savings Plan), (i)
during the Employment Term, the payments prescribed under any disability benefit
plan which may be in effect for employees of the Company and in which he
participated (subject, however, to the minimum disability benefit provisions set
forth in Section 1.4 hereof), and a pro rata portion of the incentive
compensation, if any, referred to in Section 1.5 hereof in respect of the period
prior to the date on which Employee first became disabled, and (ii) during the
Consulting Term, an equivalent level of benefits as provided by Section 1.7
hereof. Employee agrees, in the event of any dispute under this Section 8.1, to
submit to a physical examination by a licensed physician selected by the board
of directors of the Company.
8.2. Death. In the event that Employee dies during the Agreement Term, the
Company shall pay to his executors, legal representatives or administrators an
amount equal to the installment of his salary or compensation referred to in
Section 1.4 or 1.7 hereof, as applicable, for the month in which he dies plus a
further amount equal to three months, salary or compensation referred to in
Section 1.4 or 1.7 hereof, as applicable, and thereafter the Company shall have
no further liability or obligation hereunder to his executors, legal
representatives, administrators, heirs or assigns or any other person claiming
under or through him; provided, however, that Employee's estate or designated
beneficiaries shall be entitled to receive, in addition to amounts due him in
such circumstances under any pension or benefit plans of the Company (including,
without limitation, the Company's Retirement Plan, Supplemental Retirement Plan,
Supplemental Income Plan and Savings Plan), (i) during the Employment Term, the
payments prescribed for such recipients under any death benefit plan which may
be in effect for employees of the Company and in which Employee participated
(subject, however, to the minimum life insurance provisions set forth in Section
1.4 hereof), and a pro rata portion of the incentive compensation, if any,
referred to in Section 1.5 hereof in respect of the year during which Employee
died, and (ii) during the Consulting Term, an equivalent level of benefits as
provided by Section 1.7 hereof.
8.3. Voluntary Termination. In the event that subsequent to June 1, 1997
Employee voluntarily terminates the Consulting Term at any time upon 30 days
prior written notice to the Company.
8.4. Cause. Nothing in this Agreement shall be construed to prevent its
termination by the Company at any time for "cause." For purposes of this
Agreement, "cause" shall mean the willful and intentional failure of Employee
to perform or observe any of the material terms or provisions of this Agreement,
dishonesty, conviction of a crime involving moral turpitude, habitual
insobriety, substance abuse or misappropriation of funds. The Company's
liability, if any, for payments to Employee by virtue of any wrongful
termination of Employee's employment or consulting relationship pursuant to this
Agreement shall be reduced by and to the extent of any earnings received by or
accrued for the benefit of Employee during any unexpired part of the Agreement
Term.
9. Extraordinary Termination. In the event of an Extraordinary Termination
during the Agreement Term, as defined in Section 9.1(b), the following
provisions shall apply.
9.1. Definitions. The following terms shall have the meanings indicated for
purposes of this Section 9:
(a) "Control Transaction" means a change in control of the Company of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Exchange Act, as in effect
on the date of this Agreement, in a Form 8-K filed under the Exchange Act or in
any other filing by the Company with the Securities and Exchange Commission;
provided that, without limitation, such a Control Transaction shall be deemed to
have occurred if:
(1) any "Person" (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act) is or becomes a "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing 30% or more of the voting power of the then
outstanding securities of the Company;
(2) during any period of two consecutive calendar years there is a
change of 25% or more in the composition of the board of directors of the
Company in office at the beginning of the period except for changes
approved by at least two-thirds of the directors then in office who were
directors at the beginning of the period.
(b) "Extraordinary Termination" means (i) termination by the Company of the
employment of Employee with the Company, or termination of the retention of
Employee as a consultant, or in either case for any reason other than as set
forth in Section 8 hereof, within three years after a Control Transaction, or
(ii) resignation of Employee upon the occurrence of any of the following events
within three years after a Control Transaction:
(A) an assignment to Employee of any duties inconsistent with, or a
significant change in the nature or scope of Employee's authority or duties
from, those held by Employee immediately prior to the Control Transaction;
(B) a reduction in Employee's annual salary, consulting payment or
incentive compensation opportunities, as in effect immediately prior to the
Control Transaction or as the same may be increased thereafter;
(C) a relocation of the site of employment of Employee (or the site to
which Employee regularly reports to work as a consultant) more than 15
miles from his site of employment or work at the time of the Control
Transaction, or, if Employee consents to his relocation, the failure of the
Company to pay (or promptly fully reimburse him for) all reasonable moving
expenses incurred by him relating to a change of his principal residence in
connection with such relocation and to indemnify him against any loss
realized in the sale of his principal residence in connection with any
change of residence;
(D) during the Employment Term, the failure by the Company to provide
Employee with a reasonable number of paid vacation days at least equal to
the number of paid vacation days to which he was entitled in the last full
calendar year prior to the Control Transaction;
(E) the failure of the Company to provide Employee with substantially
the same fringe benefits that were provided to him immediately prior to the
Control Transaction, or with a package of fringe benefits that, though one
or more of such benefits may vary from those in effect immediately prior to
the Control Transaction, is substantially at least as beneficial to
Employee in all material respects to such fringe benefits taken as a whole;
or
(F) the failure of the Company to obtain the express written
assumption of and agreement to perform this Agreement by any successor as
and to the extent required by Section 12 of this Agreement.
9.2. Termination Payments.
(a) In the event of an Extraordinary Termination during the Agreement Term,
the Company shall, in addition to any amounts due for periods prior to the
Extraordinary Termination, pay to Employee in cash within ten days after the
Extraordinary Termination an amount equal to the sum of:
(i) three times the greater of (A) Employee's annual salary or
consulting compensation at the time of the Control Transaction or (B)
Employee's annual salary or consulting compensation immediately prior to
the Extraordinary Termination; plus
(ii) if the Extraordinary Termination occurs during the Employment
Term, three times the greater of (A) the most recent annual bonus paid to
Employee prior to the Extraordinary Termination or (B) the estimated amount
of his bonus for the year that includes the date of the Extraordinary
Termination; plus
(iii) at the option of Employee and in lieu of his exercising any
stock options that he might hold at the time, an amount equal to the excess
of the aggregate market price at the close of business on the date of the
Extraordinary Termination of the Company's shares subject to all stock
options outstanding and unexercised, whether vested or unvested, over the
aggregate exercise price of all such stock options; plus
(iv) if the Extraordinary Termination occurs during the Employment
Term, payment in lieu of all unused vacation or sick time.
(b) Employee may elect to defer the payment of all or part of the amount to
be paid to him under subsection (a) for up to twelve months after the
Extraordinary Termination, or to have all or part of such amount paid to him in
installments over a period not to exceed twelve months after the Extraordinary
Termination.
(c) In addition to payment of the amounts specified in subsection (a), for
a period of twelve months following an Extraordinary Termination during the
Employment Term, the Company will continue or cause to be continued, at no cost
to Employee, medical care and life insurance benefits substantially comparable
to those furnished to Employee by the Company immediately prior to the
Extraordinary Termination.
(d) It is the intention of the parties that the payments under this Section
9 shall not constitute "excess parachute payments" within the meaning of Section
280G of the Internal Revenue Code of 1986, as amended, and any regulations
promulgated by the Internal Revenue Service thereunder. In the event that the
independent accountants acting as auditors for the Company on the date of a
Control Transaction (or another accounting firm designated by them) determine
that the payments under this Section constitute "excess parachute payments," the
amounts payable under this Section shall be reduced to the maximum amount which
may be paid without constituting the payments "excess parachute payments." Such
determination shall take into account (i) whether the payments under this
Agreement are "parachute payments" within the meaning of Section 28OG and, if
so, (ii) the amount of payments under this Section that constitutes reasonable
compensation within the meaning of Section 280G. The fees and expenses of the
accountants performing this calculation shall be paid in full by the Company.
Nothing contained in this Agreement shall prevent the Company after a Control
Transaction from agreeing to pay Employee compensation or benefits in excess of
those provided in this Agreement.
9.3. Interest and Expenses. If the Company shall fail or refuse to pay any
amount due under this Section 9 within the time required, the Company shall pay
to Employee, in addition to the payment of any other sums required under this
Section.
(1) interest, compounded daily, on any amount remaining unpaid from
the date payment is required under this Section until payment to Employee,
at the rate from time to time announced by Meridian Bank as its prime rate
plus 1.5%, each change in the rate of interest hereunder to take effect on
the effective date of the change in such prime rate; and
(2) on demand, the amount necessary to reimburse Employee for all
expenses (including reasonable attorneys' fees and disbursements) incurred
by Employee in enforcing any of the obligations of the Company under this
Section.
9.4. Payment Obligations Absolute. The obligation of the Company to pay
Employee the compensation and to make the arrangements provided herein shall be
absolute and unconditional and shall not be affected by any circumstances,
including, without limitation, any setoff, counterclaim, recoupment, defense or
other right that the Company may have against him or anyone else. All amounts
payable by the Company hereunder shall be paid without notice or demand. The
Company waives all rights which it may now have or may hereafter have conferred
upon it, by statute or otherwise, to terminate, cancel or rescind this Section,
or any other section of this Agreement, in whole or in part. Each and every
payment made hereunder by the Company shall be final and the Company will not
seek to recover all or any part of such payment from Employee or from whomsoever
may be entitled thereto, for any reason whatsoever, except as provided in
Section 9.2(d) hereof. Employee shall not be required to mitigate the amount of
any payment provided for in this Section by seeking other employment or
otherwise.
10. Withholding of Taxes. The Company may withhold from any payments under
this Agreement ail federal, state or local taxes as shall be required pursuant
to any law, regulation or ruling.
11. Non-alienation. Employee shall not have any right to pledge,
hypothecate, anticipate or in any way create a lien upon any amounts provided
under this Agreement, and no benefit payable hereunder shall be assignable in
anticipation of payment either by voluntary or involuntary acts, or by operation
of law.
12. Successor Company. The Company shall require any successor or
successors (whether direct or indirect, by purchase, merger, consolidation or
otherwise, and whether in one transaction or a series of transactions) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance satisfactory to Employee, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement. As used in this
Agreement, the "Company" shall mean the Company as hereinbefore defined and any
such successors to its business and/or assets.
13. Survival. Notwithstanding the termination of this Agreement by reason
of Employee's disability under Section 8.1, for cause under Section 8.3 or upon
an Extraordinary Termination of Employment under Section 9, his obligations
under Sections 3, 4, 5 and 6 hereof shall survive and remain in full force and
effect indefinitely, or for such shorter period therein provided, and the
provisions for equitable relief against Employee in Section 7 hereof shall
likewise continue in force.
14. Governing Law. This Agreement shall be governed by and interpreted
under the laws of the State of New York without giving effect to any conflict of
laws provisions.
15. Litigation Expenses. In the event of a lawsuit by either party to
enforce the provisions of this Agreement, the prevailing party shall be entitled
to recover reasonable costs, expenses and attorneys' fees from the other party.
16. Notices. All notices and other communications required or permitted
hereunder or necessary or convenient in connection herewith shall be in writing
and shall be deemed to have been given when hand delivered or mailed by
registered or certified mail, as follows (provided that notice of change of
address shall be deemed given only when received):
If to the Company, to:
Intermagnetics General Corporation
New Xxxxxx Road
P.O. 3ox 566
Guilderland, N.Y. 12084
Attention: Board of Directors
With a required copy to:
Xxxxxx, Xxxxx & Bockius
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxx, Esquire
If to Employee, to:
Xxxx X. Xxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
or to such other names or addresses as the Company or Employee, as the case may
be, shall designate by notice to each other person entitled to receive notices
in the manner specified in this Section.
17. Contents of Agreement; Amendment and Assignment.
(a) This Agreement supersedes all prior agreements (including the 1992
Agreement) and sets forth the entire understanding among the parties hereto with
respect to the subject matter hereof and cannot be changed, modified, extended
or terminated except upon written amendment approved by the board of directors
of the Company and executed on its behalf by a duly authorized officer;
provided, however, that (i) the provisions of Sections 3, 4 and 7 shall be in
addition to, and not in limitation of, any other invention assignment,
confidentiality or similar agreement between the Company and Employee, and (ii)
the representations of Employee set forth in Section 1.2(b) of the Employment
Agreement dated January 12, 1988 between the Company and Employee, Section
1.2(c) of the Employment Agreement dated February 14, 1990 between the Company
and the Employee and section 1.2(c) of the 1992 Agreement shall continue in full
force and effect. Without limitation, nothing in this Agreement shall be
construed as giving Employee any right to be retained in the employ of the
Company or as a consultant to the Company except as specifically provided
herein during the Agreement Term.
(b) Employee acknowledges that from time to time, the Company may
establish, maintain and distribute employee manuals or handbooks or personnel
policy manuals, and officers or other representatives of the Company may make
written or oral statements relating to personnel policies and procedures. Such
manuals, handbooks and statements are intended only for general guidance. No
policies, procedures or statements of any nature by or on behalf of the Company
(whether written or oral, and whether or not contained in any employee manual or
handbook or personnel policy manual), and no acts or practices of any nature,
shall be construed to modify this Agreement or to create express or implied
obligations of any nature to Employee.
(c) All of the terms and provisions of this Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective heirs,
executors, administrators, legal representatives, successors and assigns of the
parties hereto, except that the duties and responsibilities of Employee
hereunder are of a personal nature and shall not be assignable or delegable in
whole or in part by Employee.
18. Severability. If any provision of this Agreement or application thereof
to anyone or under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provision or application of this Agreement which can be given
effect without the invalid or unenforceable provision or application and shall
not invalidate or render unenforceable such provision or application in any
other jurisdiction.
19. Remedies Cumulative; No Waiver. No remedy conferred upon the company by
this Agreement is intended to be exclusive of any other remedy, and each and
every such remedy shall be cumulative and shall be in addition to any other
remedy given hereunder or now or hereafter existing at law or in equity. No
delay or omission by the Company in exercising any right, remedy or power
hereunder or existing at law or in equity shall be construed as a waiver
thereof, and any such right, remedy or power may be exercised by the Company
from time to time and as often as may be deemed expedient or necessary by the
Company in its sole discretion.
IN WITNESS WHEREOF, the undersigned have executed this Employment and
Consulting Agreement as of the date first above written.
Attest: INTERMAGNETICS GENERAL CORPORATION
/s/ XXXXXXXXX X. XXXXXXX By /s/ XXXXXXX X. XXXXXXX
------------------------ ----------------------------------
Corporate Secretary Xxxxxxx X. Xxxxxxx
Xx. Vice President, Finance
and Chief Financial officer
Witness: XXXX X. XXXXXX
/s/ XXXXXXXXX X. XXXXXXX /s/ XXXX X. XXXXXX
------------------------ -------------------------------------
Xxxx X. Xxxxxx
SCHEDULE 1
Maximum Benefit Period
Age at Disability Maximum Benefit Period
Less than age 60 To age 65 but not less than 60 months
60 60 months
61 48 months
62 42 months
63 36 months
64 30 months
65 24 months
66 21 months
67 18 months
68 15 months
69 and over 12 months
