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Exhibit 10 (3)
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made and entered
into by HYCOR BIOMEDICAL INC., a Delaware corporation ("Company"), and XXXXXXXX
X. XXXXX ("Xxxxx").
WHEREAS, an employment agreement between the Company and Xxxxx was entered into
effective June 20, 1997;
WHEREAS, the parties hereto desire to amend and restate the terms of the
Agreement in its entirety,
NOW, THEREFORE, in consideration of the promises and covenants set forth in this
Agreement and for other valuable consideration, the parties agree as follows:
Employment: Xxxxx shall be employed as a Vice President of the Company
reporting to the President, and shall faithfully and diligently perform all
duties and responsibilities required of such position or assigned by the
President from time to time, including service on behalf of the Company's
subsidiary and affiliated companies and as a member of the Board of Directors.
Term: This Agreement and Xxxxx' employment shall be for a term of three
(3) years commencing on June 20, 1997 and expiring on June 19, 2000, but shall
be automatically renewed for successive one-year periods thereafter unless
either party gives written notice to the other party of nonrenewal at least
three (3) months in advance of the expiration date.
Compensation: In consideration for all services to be performed under
this Agreement, Xxxxx shall receive the following compensation:
Salary: Xxxxx shall be paid base salary at the rate of One
Hundred Eighty-Four Thousand One Hundred Dollars ($184,100) per year. Annually,
the Board of Directors, upon the recommendation of the President, shall review
Xxxxx' performance with a view toward increasing his salary.
Bonus: Xxxxx shall be entitled to participate in the Company's
Annual Executive Incentive Plan and the Long Term Executive Incentive Plan,
subject to all of the terms and conditions set forth in said plans, as amended
from time to time, as long as such plans remain in effect, and to participate in
any successor or similar incentive plan available to management personnel of
comparable status with the Company or its affiliates. Nothing herein or in said
plans shall constitute a guarantee of Xxxxx' employment by the Company, or a
limitation on the Company's rights under this Agreement, or limitation on the
Company's rights to amend or terminate any plan.
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Employee Benefit Plans: Xxxxx shall be entitled to participate
in all employee benefit plans, including group medical, dental, visual, and life
insurance, pension, profit sharing, group and individual disability income,
stock option, vacation, and other benefit plans, on terms commensurate with the
benefits awarded management personnel of comparable status with the Company or
any affiliate of the Company, but subject, on any termination, to Section 4(e)
below.
Expense Reimbursement: The Company shall reimburse Xxxxx for
all reasonable expenses that he necessarily incurs in connection with his
employment and for which he presents adequate documentation in accordance with
Company policies in effect from time to time.
Termination: This Agreement and Xxxxx' employment are subject to
immediate termination at any time as follows:
Death: This Agreement shall terminate immediately upon Xxxxx'
death, in which event the Company's only obligations shall be (i) to pay all
compensation owing for services rendered by Xxxxx prior to the date of his
death; (ii) to continue paying Xxxxx' base salary to his estate for a period of
thirty (30) days after his death; and (iii) to make periodic recoverable
advances to Xxxxx' estate equivalent to Xxxxx' base salary for ninety (90) days
after said thirty (30) day period has lapsed, or until the proceeds from the
life insurance policy on Xxxxx' life referred to in this Agreement become
available, whichever occurs first, with such advances to be repaid when said
insurance proceeds become available.
Disability: In the event that Xxxxx is disabled from
performing his assigned duties under this Agreement due to illness or injury for
a period in excess of one hundred eighty (180) days, the Company may place Xxxxx
on an unpaid leave of absence for a period not to exceed six (6) months, in
which case the Company's only obligation shall be (i) to continue Xxxxx' group
medical and life insurance for the duration of the leave; (ii) to pay the bonus,
if any, that Xxxxx would be entitled to under the terms of the bonus plans
referred to in Section 3(b) of this Agreement; and (iii) to allow Xxxxx to
continue receiving benefits under the disability insurance and other employee
benefit plans in effect at the time of his disability in accordance with the
terms and conditions of such plans. The granting of a leave of absence does not
guarantee that Xxxxx will be returned to employment, and the Company reserves
the right to replace Xxxxx or to take other action in his absence due to
business necessity. If Xxxxx is certified to return to work before his leave of
absence expires, and desires to do so, the following provisions shall apply: (i)
the Company will attempt to return Xxxxx to his same or similar position,
provided this does not result in undue hardship to the Company; and (ii) if the
Company is unable to reinstate Xxxxx because his position has been filled, then
as a special severance benefit, the Company shall pay a lump-sum severance
payment equal to twelve (12) months of Xxxxx' base salary as in effect
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immediately prior to the commencement of Xxxxx' leave of absence. If Xxxxx is
not certified to return to work before his leave of absence expires, or does not
desire to return, his employment and this Agreement shall terminate upon the
expiration of his leave of absence.
Termination For Cause: The Company may terminate this
Agreement for cause immediately upon written notice to Xxxxx in the event Xxxxx
(i) engages in any material misconduct, willful breach, or habitual neglect of
his duties as an officer or director of the Company, or (ii) is finally
convicted of a felony. In either event, the Company's sole obligation to Xxxxx
in lieu of all claims for compensation or damages shall be to pay all
compensation owing for services rendered by Xxxxx prior to the date of
termination under this subsection.
Termination Without Cause: The Company in its sole discretion
may terminate this Agreement without cause or prior warning immediately upon
written notice to . For purposes of this Section 4(d), any resignation following
a substantial reduction in Xxxxx' salary, benefits (including the failure of
Company to include as a participant in its executive or management bonus plans),
duties or responsibilities shall constitute an involuntary termination without
cause. In the event of a termination under this Section 4(d), the Company shall
pay all compensation owing for services rendered by prior to the date of
termination, shall pay a lump-sum severance benefit equal to (i) the number of
months remaining of the term of this Agreement or (ii) twelve (12) months,
whichever is less, of Xxxxx' base salary at the time of termination, and shall
continue to provide at Company expense all medical, disability and insurance
benefits available to him at the time of termination for the same number of
months as used to calculate the lump-sum severance benefit. As an additional
severance payment, if the Company has in effect at the time of any termination
without cause under this Section 4(d) any bonus or incentive plan which provides
for awards in cash and is based on the Company's revenues or results of
operations for a fiscal year, shall be entitled to an amount equal to a pro rata
award based on the period of the fiscal year for which he was employed if a
termination under this Section 4(d) occurs after the completion of three fiscal
quarters. Such severance shall be payable at the same time, and computed on the
same terms, as awards under the plan in question, except for periods of service.
Such payments and benefits shall not entitle to any other benefits or
compensation program available to Company employees
Change In Control:
If the Company undergoes a change in control, and
Xxxxx is at such time employed by the Company, Xxxxx shall immediately be
entitled to a payment from the Company equal to 300 percent of the sum of his
current base salary and most recent bonus (the "Change Payment").
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In the event that Xxxxx is terminated by the
Company within ninety (90) days before a change in control, Xxxxx shall receive
(i) the Change Payment, (ii) at Company expense, all medical, disability and
insurance benefits available to him at the time of such termination for a period
of twenty four (24) months after such termination or, if shorter, the maximum
period allowed under the Company's policies as then in effect or under
applicable law, (iii) acceleration of the vesting of all unvested stock options
granted to Xxxxx under the Company's stock option or other benefit plans so that
all such stock options will vest and be fully exercisable on the date of such
termination, (iv) extension of the post-termination exercise period for all
stock options granted to Xxxxx under the Company's stock option and other
benefit plans so that all such stock options will be exercisable for a period of
three months after the date of such termination (except that with respect to any
stock options having a post-termination exercise period in excess of three
months, such longer post-termination exercise period shall remain in effect),
and (v) a consulting agreement that entitles him to perform services for at
least three years after the change in control, at a minimum payment of $2,500
per day for a minimum of 20 days per year after the change in control, with
payments to him being made at least semiannually in advance.
In the event that Xxxxx resigns or is terminated
by the Company within twenty four (24) months on or after a change in control,
Xxxxx shall receive, in addition to the Change Payment described in Section
4(e)(i), (i) at Company expense, all medical, disability and insurance benefits
available to him at the time of such termination or resignation for a period of
twenty four (24) months after such termination or resignation, or, if shorter,
the maximum period allowed under the Company's policies as then in effect or
under applicable law, (iii) acceleration of the vesting of all unvested stock
options granted to Xxxxx under the Company's stock option or other benefit plans
so that all such stock options will vest and be fully exercisable on the date of
such termination or resignation, (iv) extension of the post-termination exercise
period for all stock options granted to Xxxxx under the Company's stock option
and other benefit plans so that all such stock options will be exercisable for a
period of three months after the date of such termination or resignation (except
that with respect to any stock options having a post-termination exercise period
in excess of three months, such longer post-termination exercise period shall
remain in effect), and (v) a consulting agreement that entitles him to perform
services for at least three years after the change in control, at a minimum
payment of $2,500 per day for a minimum of 20 days per year after the change in
control, with payments to him being made at least semiannually in advance.
For purposes of this subsection, the term "change in control"
shall mean any change in control that the Company would be required to report in
response to Item 5(f) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). With-out
limiting the foregoing, a
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change in control shall also be deemed to have occurred if (i) any "person" as
defined in Section 13(d) and 14(d) of the Exchange Act is or becomes, directly
or indirectly, the "beneficial owner" as defined in Rule 13 (d-3) under the
Exchange Act of securities of the Company which represent 25% or more of the
combined voting power of the Company's then outstanding securities; or (ii)
during any period of two consecutive years, individuals who at the beginning of
said two year period constituted the Board of Directors of the Company cease for
any reason to constitute at least a majority of the Board unless the election or
nomination of each new director was approved by a vote of at least two-thirds of
the directors who were in office at the beginning of said two year period.
Xxxxx shall not be entitled to the benefits of this Section
4(e) if this Agreement and his employment are, prior to a Change of Control,
terminated pursuant to Section 4(a), (b) or (c).
In consideration for the benefits related to a change in
control described in this Section 4(e), Xxxxx agrees that upon the occurrence of
a potential change in control, he will not voluntarily terminate his employment
with the Company for a period of six (6) months after the potential change in
control. For purposes of this Agreement, a "potential change in control" shall
mean any of the following: (i) the execution of an agreement by the Company that
will result in a change in control, (ii) the Company announces an intention to
take action that will result in a change in control, or (iii) with respect to
this Agreement, the Board of Directors of the Company declares that a potential
change in control has occurred. In addition, if following a change in control
any dispute arises between the Company and Xxxxx as to the terms or
interpretation of this Agreement, including any action that Xxxxx may take to
enforce or defend himself against the terms of this Agreement, Xxxxx shall be
reimbursed for all costs, expenses, and attorneys' fees arising from such
dispute, provided that he obtains either a final judgment or settlement
substantially in his favor.
Company's Obligations Under This Agreement Exclusive: The
benefits set forth in subsections (a) through (e) above (which benefits, in the
event of termination pursuant to subsections (a), (c), (d) or (e), include
payment for services rendered prior to termination as provided in such
subsections), as applicable, constitute the sole obligations of the Company to
Xxxxx upon a termination and are in lieu of any damages or other compensation
that Xxxxx may claim under other Company policies in connection with this
Agreement. The benefits on termination in this Agreement are in substitution for
any severance or termination benefits otherwise available under Company policies
of general application. Xxxxx expressly acknowledges that certain Company
benefit or incentive plans provide for vesting in, or award of, benefits based
on employment on or through particular dates and that nothing in this Agreement
entitles him to partial vesting or partial awards under such plans. Any payments
under Section 4(d) relating to any incentive or bonus plan are expressly
acknowledged to be
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benefits under this Agreement and not an interpretation or modification of any
such plan.
Resignation As Officer and Director: In the event of any
termination pursuant to this Section 4, Xxxxx shall be deemed to have resigned
as an officer and director of the Company if he was serving in such capacity at
the time of termination.
Confidentiality: Xxxxx acknowledges and agrees that he has been and
will continue to be entrusted with trade and proprietary information regarding
the products, processes, methods of manufacture and delivery, know-how, designs,
formula, work in progress, research and development, computer software and data
bases, copyrights, trademarks, patents, marketing techniques, and future
business plans, as well as customer lists and information concerning the
identity, needs, and desires of actual and potential customers of the Company
and its subsidiaries, joint venturers, partners, and other affiliated persons
and entities ("Confidential Information"), all of which derive significant
economic value from not being generally known to others outside the Company.
During the entire term of his employment with the Company and
for two years thereafter, Xxxxx shall not disclose or exploit any Confidential
Information except for the sole benefit of the Company or with its express
written consent.
During the entire term of his employment by the Company and
for one year thereafter, Xxxxx shall not directly or indirectly solicit any
actual or potential customer of the Company or its subsidiary and affiliated
companies for any business that competes directly or indirectly with the
Company, except for the sole benefit of the Company or with its express written
consent.
During the entire term of his employment by the Company and
for one year thereafter, Xxxxx shall not induce or attempt to induce any
employee of the Company to leave the Company's employ except for the sole
benefit of the Company or with its express written consent.
In the event any provision in this Section 5 is more
restrictive than allowed by the law of any jurisdiction in which the Company
seeks enforcement, such provision shall be deemed amended and shall then be
fully enforceable to the extent permitted by such law.
Xxxxx acknowledges and agrees that any violation of this
Section 5 would cause immediate irreparable damage to the Company, and that it
would be extremely difficult or impossible to determine the amount of damage
caused to the Company. Xxxxx therefore agrees that the Company's remedies at law
are inadequate, and hereby consents to issuance of a temporary restraining
order, preliminary and permanent
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injunction, and other appropriate relief to restrain any actual or threatened
violation of this Section, without limiting any remedies the Company may have at
law or in equity.
Inventions: Any and all patents, copyrights, trademarks, inventions,
discoveries, developments, or trade secrets developed or perfected by Xxxxx
during or as the result of his employment with the Company shall constitute the
sole and exclusive property of the Company. Xxxxx shall disclose all such
matters to the Company, assign all right, title and interest he may have in
them, and cooperate with the Company in obtaining and perfecting any patent,
copyright, trademark, or other legal protection. This Section 6 shall not apply
to any invention which qualifies fully under California Labor Code Section 2870,
a true copy of which is attached to this Agreement as Exhibit A.
Conflict Of Interest: During the term of this Agreement, Xxxxx shall
devote his time, ability, and attention to the business of the Company, and
shall not accept other employment or engage in any other outside business
activity which interferes with the performance of his duties and
responsibilities under this Agreement or which involves actual or potential
competition with the business of the Company, except with the express written
consent of the President.
Employee Benefit Plans: All of the employee benefit plans referred to
or contemplated by this Agreement shall be governed solely by the terms of the
underlying plan documents and by applicable law. Nothing in this Agreement shall
impair the Company's right to amend, modify, replace and terminate any and all
such plans in its sole discretion as provided by law, or to terminate this
Agreement in accordance with its terms. This Agreement is for the sole benefit
of Xxxxx and the Company, and is not intended to create an employee benefit plan
or to modify the term of existing plans.
Parachute Limitation: The payments and benefits Xxxxx is entitled to
under this Agreement and all other contracts, arrangements, or programs shall
not, in the aggregate, exceed the maximum amount that may be paid to Xxxxx
without triggering golden parachute penalties under Section 280G and related
provisions of the Internal Revenue Code, as determined in good faith by the
Company's independent auditors. If Xxxxx'x benefits must be cut back to avoid
triggering such penalties, Xxxxx'x benefits shall be cut back in the priority
order designated by Xxxxx or, if Xxxxx fails promptly to designate an order, in
the priority order designated by the Company. If an amount in excess of the
limit set forth in this Section is paid to Xxxxx, Xxxxx must repay the excess
amount to the Company upon demand, with interest at the rate provided for in
Internal Revenue Code Section 1274(b)(2)(B). Xxxxx and the Company agree
reasonably to cooperate with each other in connection with any administrative or
judicial proceedings concerning the existence or amount of golden parachute
penalties with respect to payments or benefits Xxxxx receives. No part of this
Agreement is made in contemplation of, or anticipates any presently impending
change in, ownership or
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control. Further, no payment to be made to Xxxxx in accordance with any
provision of this Agreement, except Paragraph 4(e) entitled "Termination
Following Change in Control," is contingent upon a change in ownership or
control of the Company. This Agreement does not provide for payments to Xxxxx
which are significantly different in amount, timing, terms, or conditions from
those provided under contracts entered into by the Company and individuals
performing comparable services.
Assignment: This Agreement may not be assigned by Xxxxx, but may be
assigned by the Company to any successor in interest to its business. In the
event the Company does not survive any merger, acquisition, or other
reorganization, it shall make a reasonable effort to obtain an assumption of
this Agreement by the surviving entity in such merger, acquisition, or other
reorganization, but the failure to obtain such assumption shall not prevent or
delay such merger, acquisition, or other reorganization or relieve the Company
of its other obligations under this Agreement. This Agreement shall bind and
inure to the benefit of the Company's successors and assigns, as well as Xxxxx'
heirs, executors, administrators, and legal representatives.
Notices: All notices required by this Agreement may be delivered by
first class mail at the following addresses:
To the Company: Hycor Biomedical Inc.
00000 Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
To Xxxxx: Xxxxxxxx X. Xxxxx
26891 Venado
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Amendment: This Agreement may be modified only by written agreement
signed by the party against whom any amendment is to be enforced.
Choice Of Law: This Agreement shall be governed by the laws of the
State of California.
Partial Invalidity: In the event any provision of this Agreement is
void or unenforceable, the remaining provisions shall continue in full force and
effect.
Waiver: No waiver of any breach of this Agreement shall constitute a
waiver of any subsequent breach.
Complete Agreement: This Agreement contains the entire agreement
between the parties, and supersedes any and all prior and contemporaneous oral
and written agreements, including Xxxxx' previous employment contracts, which
shall have no further force and effect.
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"Xxxxx" "Company"
XXXXXXXX X. XXXXX HYCOR BIOMEDICAL INC.
/s/ Xxx Xxxxx By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Dated: 4/30/00 Dated: 4/30/00
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EXHIBIT A
CALIFORNIA LABOR CODE SECTION 2870
EMPLOYMENT AGREEMENTS; ASSIGNMENT OF RENTS
(a) Any provision in an employment agreement which provides that an employee
shall assign, or offer to assign, any of his or her rights in an invention to
his or her employer shall not apply to an invention that the employee developed
entirely on his or her own time without using the employer's equipment,
supplies, facilities, or trade secret information except for those inventions
that either:
(1) Relate at the time of conception or reduction to practice
of the invention to the employer's business, or actual or
demonstrably anticipated research or development of the
employer; or
(2) Result from any work performed by the employee for the
employer.
(b) To the extent a provision in an employment agreement purports to require an
employee to assign an invention otherwise excluded from being required to be
assigned under subdivision (a), the provision is against the public policy of
this state and is unenforceable.
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