EXHIBIT 10.5
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") effective as of September
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1, 2000, between Dade Behring, Inc., a Delaware corporation (the "Company"), and
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Xxxxx Xxxx-Xxxxxxxx ("Executive").
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The Company is a wholly-owned subsidiary of Dade Behring Holdings,
Inc., a Delaware corporation ("Holding"). Holding and Executive are parties to
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an Executive Agreement dated as of the date hereof (the "Executive Agreement")
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pursuant to which Holding will grant Executive options to acquire shares of
Holding's capital stock.
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment. The Company shall employ Executive, and Executive
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hereby accepts employment with the Company, upon the terms and conditions set
forth in this Agreement for the period beginning on September 1, 2000 and ending
as provided in paragraph 4 hereof (the "Employment Period").
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2. Position and Duties.
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(a) During the Employment Period, Executive shall serve as the
President and Chief Executive Officer of the Company and shall have the normal
duties, responsibilities and authority of the President and Chief Executive
Officer, subject to the overall direction and authority of the Board of
Directors. In addition, so long as he is Chief Executive Officer of Holding,
the Executive shall be appointed to the board of directors of Holding and the
board of directors of the Company (so long as the Company remains the principal
operating subsidiary of Holding). At the time he ceases to be the Chief
Executive Officer of Holding, Executive shall resign from the board of directors
of Holding.
(b) Executive shall report to the Board of Directors, and Executive
shall devote his best efforts and his full business time and attention to the
business and affairs of the Company and its Subsidiaries; provided, that nothing
in this paragraph 2(b) shall prohibit Executive from devoting a reasonable
amount of business time and attention to directorships and charitable or other
activities.
(c) For purposes of this Agreement, "Subsidiaries" shall mean any
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corporation of which the securities having a majority of the voting power in
electing directors are, at the time of determination, owned by the Company,
directly or through one or more Subsidiaries.
3. Base Salary and Benefits.
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(a) During the Employment Period, Executive's base salary shall be
$600,000 per annum and shall be subject to review by the Board of Directors on
an annual basis commencing
July 1, 2001 (the "Base Salary"), which salary shall be payable in regular
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installments in accordance with the Company's general payroll practices and
shall be subject to customary withholding. In addition, during the Employment
Period, Executive shall be entitled to participate in all of the Company's
employee benefit programs for which senior executive employees of the Company
and its Subsidiaries are generally eligible.
(b) The Company shall reimburse Executive for all reasonable expenses
incurred by him in the course of performing his duties under this Agreement
which are consistent with the Company's policies in effect from time to time
with respect to travel, entertainment and other business expenses, subject to
the Company's reasonable requirements with respect to reporting and
documentation of such expenses.
(c) In addition to the Base Salary, during each year during the
Employment Period commencing with the fiscal year ending December 31, 2000,
Executive will be eligible to earn an annual target bonus of $500,000 to be
based upon specific bonus targets to be established on an annual basis by the
Board (with specific overachievement opportunities to be made available in the
sole discretion of the Board); provided that with respect to the fiscal year
ending December 31, 2000, Executive's annual target bonus will be based upon (x)
a pro rata portion of 80% of $450,000 for the period ending August 31, 2000 and
(y) a pro rata portion of $500,000 for the period from September 1, 2000 through
December 31, 2000 (subject to achievement of the annual targets for the year).
Such bonus targets will generally focus on EBITDA, capital expenditure levels
and working capital targets, as established on an annual basis by the Board.
(d) In addition, Executive will be entitled to (i) four (4) weeks
paid vacation each year during the Employment Period, in accordance with Company
policy, (ii) an annual sum of $24,000, payable monthly, as an allowance to cover
expenses for the use of Executive's own automobile for business purposes, and
(iii) reimbursement (including an appropriate tax gross-up) for business class
family leave travel and personal financial and legal consulting expense
reimbursement in line with Company's senior executive program.
(e) In addition, Executive will be considered for grants of stock
options by Holding for which senior executive employees of the Company and its
Subsidiaries are generally eligible, which grants will be at sole discretion of
the Board.
4. Term.
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(a) The Employment Period (i) shall terminate upon Executive's
resignation without Good Reason (as defined below), death or Disability (as
defined below), (ii) may be terminated by the Company at any time for Cause (as
defined below) or without Cause and (iii) may be terminated upon Executive's
resignation for Good Reason.
(b) If the Employment Period is terminated by the Company without
Cause or by Executive for Good Reason during the term of this Agreement,
Executive shall be entitled to (i) receive his Base Salary described in Section
3(a) above, (ii) receive the benefits described in Sections 3(d)(ii) and
3(d)(iii) above and (iii) participate in the Company's health program for which
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senior executive employees of the Company and its Subsidiaries are generally
eligible, in each case, for 24 months after the date of such termination. In
addition, if the Employment Period is terminated by the Company without Cause,
by Executive for Good Reason or due to Executive's death or Disability during
the term of this Agreement, Executive shall be entitled to receive a bonus equal
to the bonus Executive would had received had he remained employed for the
entire bonus period (the amount to be determined by the Board in good faith),
pro rated based on the number of days that have elapsed during the year through
the date of termination (and payable in accordance with normal Company policy).
Any such amounts payable under this Section 4(b) will be payable at such times
and in such amounts as would have been payable had Executive not been
terminated. Notwithstanding anything in this Agreement to the contrary, the
Company shall have no obligation to pay any amounts payable under this Section
4(b) during such times as Executive is in material breach of any provision of
this Agreement (including, without limitation, that certain Employment Agreement
Addendum dated as of the date hereof between the Company and Executive (the
"Employment Agreement Addendum")) or any provision of the Executive Agreement.
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As a condition to the Company's obligations (if any) to make severance payments
pursuant to this paragraph 4(b), Executive will execute and deliver a general
release in form and substance satisfactory to the Company, except that the
Company shall be obligated to pay amounts due and owing to Executive as
expressly provided by this Agreement. In addition to the amounts described
above, in the event the Employment Period is terminated by the Company without
Cause, by Executive for Good Reason or due to Executive's death or Disability,
with respect to any time-based stock options issued to Executive by Holding, the
date of Executive's termination for purposes of all vesting schedules shall be
deemed to be immediately after the next succeeding vesting date. Notwithstanding
anything in Holding's option plans to the contrary, solely in the case of
Executive's death or Disability, the exercise period for each of Executive's
options shall be extended to the earlier of (x) the 12-month anniversary of the
date of termination of Executive's employment, and (y) the date on which each
such option otherwise would have expired had Executive remained employed with
the Company (including, without limitation, any acceleration event required by
the plan such as a change in control event).
(c) If the Employment Period is terminated by the Company for Cause
or is terminated pursuant to clause (a)(i) above, Executive shall be entitled to
receive his Base Salary through the date of termination.
(d) Except as otherwise provided in this Agreement, all of
Executive's rights to fringe benefits and bonuses hereunder (if any) which
accrue or become payable after the termination of the Employment Period shall
cease upon such termination. The Company may offset any amounts Executive owes
it or its Subsidiaries against any amounts it owes Executive hereunder.
(e) For purposes of this Agreement, "Disability" (i) shall mean any
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physical or mental incapacitation which results in Executive's inability to
perform his duties and responsibilities for the Company for a total of 180 days
during any twelve-month period, as determined by the Board in its good faith
judgment and (ii) shall be deemed to have occurred on the 180th day of such
inability to perform.
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(f) For purposes of this Agreement, "Cause" shall mean (i) the
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intentional disregard of a written direction from the Board of Directors to
Executive to which Executive has not objected within ten (10) business days of
receiving such written direction, which intentional disregard is materially
injurious to the Company or any of its affiliates, (ii) the knowing and
intentional theft by Executive of property of the Company or any of its
affiliates, which property has a substantial value, (iii) the commission by
Executive of an act of moral turpitude which is materially injurious to the
Company or any of its affiliates or (iv) any material breach of this Agreement
(including, without limitation, the Employment Agreement Addendum) or any
material breach of the Executive Agreement.
(g) For purposes of this Agreement, "Good Reason" shall mean (i) any
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substantial reduction of Executive's duties, without Executive's written
consent, (ii) a reduction by the Company of Executive's Base Salary, as in
effect on the date hereof or as the same may be increased from time to time,
(iii) the Executive's removal (without his consent) from the board of directors
of Holding or the board of directors of the Company (so long as the Company
remains the principal operating subsidiary of Holding) or (iv) the Executive
being required, without his consent, to move his primary place of business
outside of the greater Chicago area.
(h) Executive shall have the benefit of indemnification for acts
undertaken on behalf of the Company to the fullest extent provided under the
Company's bylaws and the laws of the State of Delaware. In addition, the
Company agrees to maintain D&O insurance coverage during the Employment Period
for the benefit of Executive, in amounts not less than the coverage in effect on
the date hereof. In addition, the Company shall provide supplemental disability
coverage under the same co-payment conditions as the Company's group plan for
Executive such that his aggregate annual disability benefit from the Company is
equal to (x) 70% of his most recent base salary, plus (y) his annual target
bonus, subject to the terms of the supplemental LTD benefits coverage the
Company is able to obtain on Executive's behalf and the ability of the Company
to obtain the coverage on reasonable terms.
5. Employment Agreement Addendum. Each of the parties hereto
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acknowledges and agrees that the Employment Agreement Addendum which is attached
hereto and is made a part hereof is an integral part of this Agreement and that
the Company would not be willing to enter into this Agreement and provide
Executive with the substantial benefits provided herein without Executive's
agreement to enter into and become bound by the terms and conditions of the
Employment Agreement Addendum, including the Conflict of Interest,
Confidentiality, Non-Competition and Intellectual Property Rights provisions
thereof.
6. Executive's Representations. Executive hereby represents and
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warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Executive does not and will not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (ii) Executive is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Executive, enforceable in accordance with
its terms. Executive hereby acknowledges and represents
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that he has consulted with independent legal counsel regarding his rights and
obligations under this Agreement and that he fully understands the terms and
conditions contained herein.
7. Survival. The terms and conditions of the Employment Agreement
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Addendum shall survive and continue in full force in accordance with their terms
notwithstanding any termination of the Employment Period.
8. Notices. Any notice provided for in this Agreement shall be in
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writing and shall be either personally delivered, sent by reputable overnight
courier or mailed by first class mail, return receipt requested, to the
recipient at the address below indicated:
Notices to Executive:
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Xxxxx Xxxx-Xxxxxxxx
0000 Xxxxx Xxxxxxxx Xxxx
Xxxx Xxxxxx, XX 00000
Notices to the Company:
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Dade Behring, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Xxxx Xxxxxxxxxxx
Xxxxxx Maple
With a copy to:
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Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so
delivered, deposited with such courier or mailed.
9. Severability. Whenever possible, each provision of this
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Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
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10. Complete Agreement. This Agreement, those documents expressly
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referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
11. No Strict Construction. The language used in this Agreement
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shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
12. Counterparts. This Agreement may be executed in separate
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counterparts, any one of which may be by facsimile and each of which is deemed
to be an original and all of which taken together constitute one and the same
agreement.
13. Successors and Assigns. This Agreement is intended to bind and
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inure to the benefit of and be enforceable by Executive, the Company and their
respective heirs, successors and assigns, except that Executive may not assign
his rights or delegate his obligations hereunder without the prior written
consent of the Company.
14. Choice of Law. All issues and questions concerning the
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construction, validity, enforcement and interpretation of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Illinois, without giving effect to any choice of
law or conflict of law rules or provisions (whether of the State of Illinois or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Illinois.
15. Amendment and Waiver. The provisions of this Agreement may be
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amended or waived only with the prior written consent of the Company and
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
DADE BEHRING, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Its: __________________________
/s/ Xxxxx Xxxx-Xxxxxxxx
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