Employment Agreement SYNTHETECH, INC. Gregory Robert Hahn
Exhibit
10.1
SYNTHETECH,
INC.
Xxxxxxx
Xxxxxx Xxxx
Dated
as of November 30, 2007
This
Employment Agreement (this "Agreement"), dated as of November
30, 2007 (the "Commencement Date"), is between Synthetech,
Inc., an Oregon corporation ("Employer"), and Xxxxxxx Xxxxxx
Xxxx ("Executive").
RECITALS
A. Employer
desires to continue to retain the services of Executive upon the terms and
conditions set forth herein.
B. Executive
is willing to continue to provide services to Employer upon the terms and
conditions set forth herein.
AGREEMENT
For
and
in consideration of the foregoing premises and for other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged,
Employer and Executive hereby agree as follows:
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1.
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EMPLOYMENT
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Employer
will continue to employ Executive and Executive will accept continued employment
by Employer as its President and Chief Operating Officer. Executive
will have the authority, subject to Employer's Articles of Incorporation and
Bylaws, as may be granted from time to time by the Board of Directors of
Employer (the "Board of Directors"). Executive will
perform the duties assigned to the President and Chief Operating Officer in
Employer's Bylaws, the duties customarily performed by the President and Chief
Operating Officer of a corporation which is, in all material respects, similar
to Employer and such other duties as may be assigned from time to time by
Employer's Chief Executive Officer or the Board of Directors, which relate
to
the business of Employer or any subsidiaries or parent company of Employer
or
any business ventures in which Employer or any subsidiaries or parent company
of
Employer may participate.
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2.
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ATTENTION
AND EFFORT
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Executive
will devote the necessary time, ability, attention and effort to Employer's
business and will serve its interests during the term of this Agreement;
provided, however, that Executive may devote reasonable periods of
time to (a) engaging in personal investment activities, (b) serving on
the board of directors of other corporations, and (c) engaging in
charitable or community service activities, so long as none of the foregoing
additional activities (x) materially interfere with Executive's duties under
this Agreement or (y) violate paragraph 8.
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3.
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TERM
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Unless
otherwise terminated pursuant to paragraph 6 of this Agreement, Executive's
term
of employment under this Agreement shall commence on the Commencement Date
and
shall expire on March 31, 2010; provided, however, that,
commencing on March 31, 2010 and on each anniversary thereafter on which
the term of this Agreement may be scheduled to expire and subject to
paragraph 6, the expiration date of the term of Executive's employment
hereunder shall automatically be extended for two additional years unless,
not
later than the date 180 days prior to the expiration of the then existing term,
either party gives the other written notice that the expiration date shall
not
be so extended; and, provided, further, that if a Change in
Control (as defined in paragraph 7.4) of Employer occurs and Executive's
employment with Employer is not terminated in connection with such Change in
Control, the term of this Agreement shall automatically extend for an additional
two years from the date on which the Change in Control occurs.
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4. COMPENSATION
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Commencing
on the Commencement Date and continuing during the term of this Agreement,
Employer agrees to pay or cause to be paid to Executive, and Executive agrees
to
accept in exchange for the services rendered hereunder by him, the following
compensation:
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4.1 Base
Salary
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Executive's
compensation shall consist, in part, of an annual base salary. Until
March 31, 2009, Executive’s annual base salary shall be no less than $200,000,
before customary payroll deductions. Such annual base salary shall be
paid in substantially equal installments and at the same intervals as other
officers of Employer are paid, and shall be prorated for any partial
years. The Compensation Committee of the Board of Directors (the
"Compensation Committee") shall determine any increases in the annual base
salary in future years.
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4.2 Performance
Bonus
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Executive
may be entitled to receive, in addition to the annual base salary described
above, an annual bonus in an amount (up to 45% of Executive's base salary,
although in the case of exceptional performance, as determined by the
Compensation Committee in its sole discretion, a bonus of greater than 45%
may
be awarded) to be determined by the Compensation Committee, in its sole
discretion. The Compensation Committee shall determine the
performance objectives relating to the annual bonus for a given fiscal year
prior to the beginning of that year and shall determine achievement of
performance objectives in its sole discretion. Any annual bonus will
be paid to Executive no later than 30 days after completion of Employer's
audited financial statements for the fiscal year for which such bonus applies,
but in no event later than the end of Executive's taxable year. If
(a) Executive's employment with Employer terminates as a result of
expiration of the term of this Agreement or termination by Employer other than
for Cause (as defined in paragraph 7.5) or by Executive with Good
Reason (as defined in paragraph 7.6) or due to Executive's death or
total disability (as defined in paragraph 6.3) and (b) actual
performance
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for
the
fiscal year during which such termination occurs achieves the performance
objectives established by the Compensation Committee for such fiscal year,
Executive shall be entitled to receive (no later than 30 days after completion
of Employer's audited financial statements for the applicable fiscal year,
but
in no event later than the end of Executive's taxable year) an annual
performance bonus, the amount of which shall be prorated (based on the number
of
days during such fiscal year Executive was employed by Employer prior to such
termination).
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4.3 Equity
Awards
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The
Compensation Committee shall determine any grants of restricted stock, stock
options or other equity-based awards to be made to Executive.
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4.4 Withholding
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Employer
shall withhold from any payments under this Agreement all federal, state, city
or other taxes as may be required pursuant to any applicable law, governmental
regulation or ruling.
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5. BENEFITS;
KEY-MAN LIFE INSURANCE;
INDEMNIFICATION
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5.1 Benefits;
Vacation
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During
the term of this Agreement, Executive will be entitled to participate, subject
to and in accordance with applicable eligibility requirements, in fringe benefit
programs as shall be available generally to officers and employees of Employer
or which may be provided specifically for Executive from time to time by action
of the Compensation Committee (or any other person or committee appointed by
the
Board of Directors to determine fringe benefit programs). Executive
shall be entitled to four weeks of vacation, in addition to paid holidays
offered by Employer generally to its employees, on an annual basis.
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5.2 Vehicle
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Employer
will secure a lease for a mutually agreed upon automobile that Executive will
utilize during the term of his employment with Employer, and Employer shall
pay
all expenses related to the use of such automobile, including, but not limited
to, financing, operation and maintenance of the automobile and all standard
liability, collision and comprehensive insurance for the use of such
automobile.
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5.3 Moving
and Commuting Expenses
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Employer
will pay up to $ 25,000 of Executive's reasonable out-of-pocket moving expenses
incurred prior to September 11, 2009 in connection with Executive's
relocation to Oregon.
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5.4 Key-Man
Life Insurance
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At
Employer's request, Executive shall cooperate with Employer in obtaining, at
Employer's expense, key-man life insurance policies on Executive's life, with
Employer to be the beneficiary of any such policies. Employer's
inability to obtain such insurance due to lack of insurability of Executive
shall not be deemed a breach of this Agreement.
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5.5 Indemnification
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Employer
agrees that it will indemnify Executive against liability as an officer of
Employer and, to the extent he acts in such capacity, as a director of Employer
or as a director or an officer of any of Employer's affiliates, to the fullest
extent permitted by applicable law. To the fullest extent permitted by
applicable law, Employer agrees to advance and pay all reasonable legal fees
and
costs on behalf of Executive to defend Executive against any and all claims
against Executive relating to his position as an officer and director of
Employer, and Executive shall have the right to select his legal counsel to
defend him against any and all such claims, provided that such counsel must
be
reasonably acceptable to Employer.
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5.6 Individual
Life Insurance
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Subject
to Executive's eligibility therefore, Employer shall secure and maintain during
the term of Executive’s employment with Employer a standard term life insurance
policy in the aggregate amount of $200,000 for the benefit of Executive and
his
designated beneficiaries.
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6. TERMINATION
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Employment
of Executive pursuant to this Agreement may be terminated as follows, but in
any
case, the provisions of paragraph 8 hereof shall survive the termination of
this
Agreement and the termination of Executive's employment hereunder:
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6.1 By
Employer
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With
or
without Cause (as defined below), Employer may terminate the employment of
Executive at any time during the term of employment upon giving Executive at
least 90 days' prior written notice thereof. The effective date of
the termination of Executive's employment shall be the date on which such
applicable 90-day period expires;provided, however, that Employer
may, upon notice to Executive and without reducing Executive's annual base
salary during such 90-day period, excuse Executive from any or all of his duties
during such period and request Executive to immediately resign as a Director,
if
applicable, and officer of Employer, whereupon, if requested to so resign,
Executive shall immediately resign.
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6.2 By
Executive
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Executive
may terminate his employment at any time upon giving Employer, in the case
of
termination by Executive (a) other than with Good Reason, at least 90 days'
prior written notice thereof and (b) with Good Reason, at least 30 days' prior
written notice thereof. The effective date of the termination of
Executive's employment shall be the date on which such applicable 90 or 30-day
period expires;provided, however, that Employer may, upon notice
to Executive and without reducing Executive's annual base salary during such
90
or 30-day period, excuse Executive from any or all of his duties during such
period and request Executive to immediately resign as a Director, if applicable,
and officer of Employer, whereupon, if requested to so resign, Executive shall
immediately resign. Any such resignation at Employer's request
following Executive's notice of termination other than with Good Reason shall
not be deemed to represent termination of Executive's employment by Employer
for
purposes of this Agreement or otherwise, but shall be deemed voluntary
termination by Executive of his employment without Good Reason.
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6.3 Automatic
Termination
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This
Agreement and Executive's employment hereunder shall terminate automatically
upon the death or total disability of Executive. The term
"total disability" as used herein shall mean Executive's
inability to perform the duties set forth in paragraph 1 hereof, with or without
reasonable accommodation, for a period or periods aggregating 120 calendar
days in any 12-month period as a result of physical or mental
illness, loss of legal capacity or any other cause beyond Executive's control,
unless Executive is granted a leave of absence by the Board of
Directors. Executive and Employer hereby acknowledge that Executive's
ability to perform the duties specified in paragraph 1 hereof is of the
essence of this Agreement. Termination hereunder shall be deemed to be effective
immediately upon Executive's death or a determination by the Board of Directors
of Executive's total disability, as defined herein.
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7. TERMINATION
PAYMENTS
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In
the
event of termination of the employment of Executive, all compensation and
benefits set forth in this Agreement shall terminate except as specifically
provided in this paragraph 7:
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7.1 Termination
by
Employer Without Cause or by Executive With Good Reason, or Upon
Change in
Control of Employer
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If
Employer terminates Executive's employment without Cause, or if Executive
terminates his employment with Good Reason, or if Executive's employment is
terminated upon a Change in Control of Employer (as defined in paragraph 7.4
below), in each case prior to the end of the term of this Agreement, Executive
shall be entitled to receive immediately and in a lump sum payment:
(a) termination payments equal to 200% of Executive's then-current annual
base salary, (b) any unpaid annual base salary and unpaid fringe benefits
under paragraph 5.1 that have accrued as of the date termination of
Executive's employment becomes effective (or, if applicable, up to the end
of
the 90 or 30-
6
day
period referenced in paragraphs 6.1 or 6.2) and (c) performance bonus
payments pursuant to paragraph 4.2, except such performance bonus payments
shall
be made by Employer in accordance with payment provisions and terms set forth
in
paragraph 4.2 (e.g. payment shall be no later than 30 days after completion
of
Employer's audited financial statements for the applicable fiscal year, but
in
no event later than the end of Executive's taxable year, and shall be calculated
based upon prorated calculations, if applicable, as provided for by paragraph
4.2). Executive shall also be entitled to receive reimbursement of
expenses actually incurred for continuation coverage under a group health plan
of the Employer for a period of twelve months following termination of
employment. If Executive is terminated by Employer for Cause,
Executive shall not be entitled to receive any of the foregoing benefits, other
than any accrued but unpaid annual base salary and other benefits set forth
in
clause (b) above.
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7.2
Termination
by
Executive Without Good Reason; Termination Because of Death or Total
Disability
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In
the
case of the termination of Executive's employment by Executive without Good
Reason or because of his death or total disability, Executive (or his personal
representative, as applicable) shall not be entitled to receive any payments
hereunder other than (a) any accrued but unpaid annual base salary and other
benefits set forth in clause (b) of paragraph 7.1 hereof and
(b) solely with respect to termination of Executive's employment because of
his death or total disability, any annual bonus payments pursuant to clause
(c)
of paragraph 7.1 hereof.
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7.3
Expiration
of
Term; Termination Pursuant to Paragraph
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Notwithstanding
anything to the contrary, in the case of a termination of Executive's employment
as a result of the expiration of the term (as the same may be extended pursuant
to paragraph 3) of this Agreement, Executive shall not be entitled to
receive any payments hereunder other than those set forth in clauses (b) and
(c)
of paragraph 7.1 hereof.
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7.4 Definition
of
Change in Control
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A
"Change in Control" of Employer shall
mean: (a) any consolidation or merger of Employer in which
Employer is not the continuing or surviving corporation or pursuant to which
shares of Employer's Common Stock would be converted into the right to receive
cash, securities or other property, other than a merger of Employer in which
the
holders of Common Stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving corporation immediately
after the merger; (b) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all
the
assets of Employer; (c) the acquisition by any person (as such term is
defined in Section 13(d) of the Securities Exchange Act of 1934, as amended
(the
"Exchange Act"), excluding, for this purpose, Employer) of any
shares of Common Stock (or securities convertible into Common Stock), if after
making such acquisition, such person is the beneficial owner (as such term
is
defined in Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of 30% or more of the outstanding Common Stock (calculated as
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provided
in paragraph (d) of such Rule 13d-3 in the case of rights to acquire common
stock); or (d) the failure, for any reason, of the persons comprising the
Board of Directors as of the date hereof (the "Incumbent
Board") to constitute at least a majority of the Board of Directors;
provided, however, that any person whose election or nomination
for election was approved by a majority of the persons then comprising the
Incumbent Board (other than an election or nomination of a person whose initial
assumption of office is in connection with an actual or threatened election
contest relating to the election of directors) shall be, for purposes of this
Agreement, deemed to be a member of the Incumbent Board.
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7.5 Definition
of
Cause
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Whenever
reference is made in this Agreement to termination being with or without Cause,
"Cause" shall mean cause given by Executive to Employer and
shall include the occurrence of one or more of the following
events:
(a) Willful
failure or refusal to carry out the lawful duties of Executive described in
paragraph 1 hereof or lawful directions of Employer's Chief Executive
Officer or the Board of Directors of Employer, which directions are reasonably
consistent with the duties herein set forth to be performed by
Executive;
(b) Conviction
of or entering a plea of guilty or no contest to a violation by Executive of
a
state or federal criminal law involving the commission of a crime against
Employer or its employees or a felony;
(c) Continuous
misuse of alcohol or controlled substances or illegal substances that materially
interferes with Executive's performance of his duties to Employer; deception,
fraud, misrepresentation or dishonesty by Executive; any incident materially
compromising Executive's reputation or ability to represent Employer with the
public; any act or omission by Executive that materially impairs Employer's
business, good will or reputation; or any other misconduct; or
(d) Any
material violation of any provision of this Agreement or any noncompetition
agreement with Employer that is not cured by Executive within 30 days after
receipt of written notice thereof given by Employer.
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7.6 Definition
of
Good Reason
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Whenever
reference is made in this Agreement to termination being with Good Reason,
"Good Reason" means the occurrence, without Executive's written
consent, of one or more of the following events:
(a) Action
by Employer which results in a material diminution in the position held by
Executive, or the assignment to Executive of duties materially inconsistent
with
his position with Employer, excluding for this purpose inadvertent action not
taken in bad faith and that is remedied by Employer within 30 days after receipt
of written notice thereof, which written notice must be given by Executive
within 90 days of the breach by Employer;
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(b) Failure
by Employer to promptly pay Executive any installment or portion of his
compensation from Employer when earned and due, excluding for this purpose
any
inadvertent action not taken in bad faith and that is remedied by Employer
within 30 days after receipt of written notice thereof, which written notice
must be given by Executive within 90 days of the breach by
Employer;
(c) Employer
requiring Executive generally to perform his duties to Employer at a location
more than 75 miles outside the Albany, Oregon area, excluding for this purpose
travel outside such area reasonably required in connection with fulfilling
his
duties and responsibilities to Employer and excluding for this purpose any
inadvertent action not taken in bad faith and that is remedied by Employer
within 30 days after receipt of written notice thereof, which written notice
must be given by Executive within 90 days of the breach by Employer;
or
(d) Any
other material breach by Employer of this Agreement that is not cured by
Employer within 30 days after receipt of written notice thereof, which written
notice must be given by Executive within 90 days of the breach by
Employer.
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7.7 Payment
Schedule
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Notwithstanding
anything to the contrary, to the extent necessary to comply with the deferred
compensation requirements of section 409A of the Internal Revenue Code of 1986,
as amended, all payments under this paragraph 7 shall be deferred during the
six
months immediately following the termination date (other than payments for
accrued but unpaid annual base salary or annual bonus) and paid promptly
following the end of such six-month period.
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8. NONSOLICITATION
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8.1 Applicability
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This
paragraph 8 shall survive the termination of Executive's employment with
Employer or the expiration of the term of this Agreement.
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8.2 Nonsolicitation
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Executive
agrees that he will not, directly or indirectly, during his employment and
for a
period of two years from the later of (a) the date on which his employment
with Employer terminates for any reason and (b) the date this Agreement
expires, solicit, influence or entice, or attempt to solicit, influence or
entice, any employee or consultant of Employer to cease his relationship with
Employer or solicit, influence, entice or in any way divert any customer,
distributor, partner, joint venture or supplier of Employer to do business
or in
any way become associated with any Competitor. A "Competitor" shall
include any entity which, directly or indirectly, competes with Employer or
produces, markets, distributes or otherwise derives benefit from the production,
marketing or distribution of products that compete with products then produced
by Employer or the feasibility for production of which Employer is then actually
studying, or which is preparing to market or is developing products
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that
will
be in competition with the products then produced or being studied or developed
by Employer, in each case anywhere within such geographic areas as Employer
sells or markets its products at the time of termination of Executive's
employment with Employer, unless released from such obligation in writing by
the
Board of Directors.
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8.3 Assignment
of
Intellectual Property
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All
concepts, designs, machines, devices, uses, processes, technology, trade
secrets, works of authorship, customer lists, plans, embodiments, inventions,
improvements or related work product (collectively "Intellectual
Property") which Executive develops, conceives or first reduces to
practice during the term of his employment hereunder or within one year after
the termination of his employment hereunder or the expiration of this Agreement,
whether working alone or with others, shall be the sole and exclusive property
of Employer, together with any and all Intellectual Property rights, including,
without limitation, patent or copyright rights, related thereto, and Executive
hereby assigns to Employer all of such Intellectual
Property. "Intellectual Property" shall include only
such concepts, designs, machines, devices, uses, processes, technology, trade
secrets, customer lists, plans, embodiments, inventions, improvements and work
product which (a) relate to Executive's performance of services under this
Agreement, to Employer's field of business or to Employer's actual or
demonstrably anticipated research or development, whether or not developed,
conceived or first reduced to practice during normal business hours or with
the
use of any equipment, supplies, facilities or trade secret information or other
resource of Employer or (b) are developed, in whole or in part, on
Employer's time or developed using Employer's equipment, supplies, facilities
or
trade secret information, or other resources of Employer, whether or not the
work product relates to Employer's field of business or Employer's actual or
demonstrably anticipated research.
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8.4 Disclosure
and
Protection of Inventions
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Executive
shall disclose in writing all concepts, designs, processes, technology, plans,
embodiments, inventions or improvements constituting Intellectual Property
to
Employer promptly after the development thereof. At Employer's
request and at Employer's expense, Executive will assist Employer or its
designee in efforts to protect all rights relating to such Intellectual
Property. Such assistance may include, without limitation, the
following: (a) making application in the United States and in
foreign countries for a patent or copyright on any work products specified
by
Employer; (b) executing documents of assignment to Employer or its designee
of all of Executive's right, title and interest in and to any work product
and
related intellectual property rights; and (c) taking such additional action
(including, without limitation, the execution and delivery of documents) to
perfect, evidence or vest in Employer or its designee all right, title and
interest in and to any Intellectual Property and any rights related
thereto.
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8.5 Nondisclosure;
Return of Materials
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During
the term of his employment by Employer and following termination of such
employment, he will not disclose (except as required by his duties to Employer),
any
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concept,
design, process, technology, trade secret, customer list, plan, embodiment,
or
invention, any other Intellectual Property or any other confidential information
(including, without limitation, customer information), whether patentable or
not, of Employer of which Executive becomes informed or aware during his
employment, whether or not developed by Executive. In the event of
the termination of his employment with Employer or the expiration of this
Agreement, Executive will return all documents, data and other materials of
whatever nature, including, without limitation, drawings, specifications,
research, reports, embodiments, software and manuals to Employer which pertain
to his employment with Employer or to any Intellectual Property and shall not
retain or cause or allow any third party to retain photocopies or other
reproductions of the foregoing.
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8.6 Equitable
Relief
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Executive
acknowledges that the provisions of this paragraph 8 are essential to Employer,
that Employer would not enter into this Agreement if it did not include this
paragraph 8 and that damages sustained by Employer as a result of a breach
of this paragraph 8 cannot be adequately remedied by damages, and Executive
agrees that Employer, notwithstanding any other provision of this Agreement,
including paragraph 13 hereof, and in addition to any other remedy it may have
under this Agreement or at law, shall be entitled to injunctive and other
equitable relief to prevent or curtail any breach of any provision of this
Agreement, including this paragraph 8.
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8.7 Effect
of Violation
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Executive
and Employer acknowledge and agree that additional consideration has been given
for Executive entering into this paragraph 8, such additional consideration,
including, certain provisions for termination payments pursuant to paragraph
7
of this Agreement. Violation by Executive of this paragraph 8 shall
relieve Employer of any obligation it may have to make such termination
payments, but shall not relieve Executive of his obligations under this
paragraph 8.
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8.8 Definition
of
Employer
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For
purposes of subparagraph 8.2 hereof, "Employer" shall include
Employer and any of its subsidiaries or parent corporation and any business
ventures in which Employer or any of its subsidiaries or parent corporation
may
participate.
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9. REPRESENTATIONS
AND WARRANTIES
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In
order
to induce Employer to enter into this Agreement, Executive represents and
warrants to Employer as follows:
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9.1 No
Violation of Other
Agreements
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Neither
the execution nor the performance of this Agreement by Executive will violate
or
conflict in any way with any other agreement by which Executive may be bound,
or
with any other duties imposed upon Executive by corporate or other statutory
or
common law.
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9.2 Patents,
Etc.
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Executive
has prepared and attached hereto as Schedule A a list of all
inventions, patent applications and patents made or conceived by Executive
prior
to the date hereof, which are subject to prior agreement or which Executive
desires to exclude from this Agreement, or, if no such list is attached,
Executive hereby represents and warrants to Employer that there are no such
inventions, patent applications or patents.
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10. FORM
OF
NOTICE
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All
notices given hereunder shall be given in writing, shall specifically refer
to
this Agreement and shall be personally delivered or sent by telecopy or other
electronic facsimile transmission, by overnight delivery by a nationally
recognized carrier service or by registered or certified mail, return receipt
requested, at the address set forth below or at such other address as may
hereafter be designated by notice given in compliance with the terms
hereof:
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If
to Executive:
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Xxxxxxx
Xxxxxx Xxxx
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000
Xxxxx Xxxxxx
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Xxxxxx,
XX 00000
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If
to Employer:
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Synthetech,
Inc.
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0000
Xxxxxxxxxx Xxx
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Xxxxxx,
XX 00000-0000
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Fax
No. (000) 000-0000
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Attention: Chairman,
Board of Directors
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Copy
to:
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Xxxxxxx
Coie LLP
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0000
XX Xxxxx Xxxxxx, Xxxxx Xxxxx
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Xxxxxxxx,
XX 00000-0000
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Attention: Xxxxx
Xxxxxxxx
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Facsimile
No.: 000-000-0000
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If
notice
is mailed, such notice shall be effective upon mailing, if such notice is sent
by overnight delivery, such notice shall be effective upon the next business
day
following delivery to the courier service, or if notice is personally delivered
or sent by telecopy or other electronic facsimile transmission, it shall be
effective upon receipt.
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11. ASSIGNMENT
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This
Agreement is personal to Executive and shall not be assignable by
Executive. Employer may assign its rights hereunder to (a) any
corporation resulting from any merger, consolidation or other reorganization
to
which Employer is a party or (b) any corporation, partnership, association
or other person to which Employer may transfer all or substantially all of
the
assets and business of Employer existing at such time. All of the
terms and provisions of this Agreement shall be binding upon and shall inure
to
the benefit of and be enforceable by the parties hereto and their respective
successors, heirs, legal representatives and permitted assigns.
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12. WAIVERS
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No
delay
or failure by any party hereto in exercising, protecting or enforcing any of
its
rights, titles, interests or remedies hereunder, and no course of dealing or
performance with respect thereto, shall constitute a waiver
thereof. The express waiver by a party hereto of any right, title,
interest or remedy in a particular instance or circumstance shall not constitute
a waiver thereof in any other instance or circumstance. All rights
and remedies shall be cumulative and not exclusive of any other rights or
remedies.
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13. ARBITRATION
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Subject
to the provisions of subparagraph 8.6 hereof, any controversies or claims
arising out of or relating to this Agreement shall be fully and finally settled
by arbitration in Portland, Oregon, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in effect (the
"AAA Rules"), conducted by one arbitrator either mutually agreed upon by
Employer and Executive or chosen in accordance with the AAA Rules, except that
(a) the parties thereto shall have any right to discovery as would be permitted
by the Federal Rules of Civil Procedure for a period of 90 days following
the commencement of such arbitration and the arbitrator thereof shall resolve
any dispute which arises in connection with such discovery and (b) the
arbitration may be conducted by AAA or by such other arbitration service as
the
parties agree. The prevailing party shall be entitled to costs,
expenses and reasonable attorneys' fees, and judgment upon the award rendered
by
the arbitrator may be entered in any court having jurisdiction
thereof.
|
14. AMENDMENTS
IN
WRITING
|
No
amendment, modification, waiver, termination or discharge of any provision
of
this Agreement, nor consent to any departure therefrom by either party hereto,
shall in any event be effective unless the same shall be in writing,
specifically identifying this Agreement and the provision intended to be
amended, modified, waived, terminated or discharged and signed by Employer
and
Executive, and each such amendment, modification, waiver, termination or
discharge shall be effective only in the specific instance and for the specific
purpose for which given. No provision of this Agreement shall be
varied, contradicted or explained by any oral agreement, course of dealing
or
performance or any other matter not set forth in an agreement in writing and
signed by Employer and Executive.
|
15. APPLICABLE
LAW;
VENUE
|
This
Agreement shall in all respects, including all matters of construction, validity
and performance, be governed by, and construed and enforced in accordance with,
the laws of the State of Oregon, without regard to any rules governing conflicts
of laws. Subject to paragraph 13, the parties irrevocably consent to
the exclusive jurisdiction and venue of the state and federal courts located
in
Multnomah County, Oregon in connection with any action relating to this
Agreement.
13
|
16. SEVERABILITY
|
If
any
provision of this Agreement shall be held invalid, illegal or unenforceable
in
any jurisdiction, for any reason, including, without limitation, the duration
of
such provision, its geographical scope or the extent of the activities
prohibited or required by it, then, to the full extent permitted by law
(a) all other provisions hereof shall remain in full force and effect in
such jurisdiction and shall be liberally construed in order to carry out the
intent of the parties hereto as nearly as may be possible, (b) such
invalidity, illegality or unenforceability shall not affect the validity,
legality or enforceability of any other provision hereof, and (c) any court
or arbitrator having jurisdiction thereover shall have the power to reform
such
provision to the extent necessary for such provision to be enforceable under
applicable law.
|
17. HEADINGS
|
All
headings used herein are for convenience only and shall not in any way affect
the construction of, or be taken into consideration in interpreting, this
Agreement.
|
18. COUNTERPARTS
|
This
Agreement, and any amendment or modification entered into pursuant to paragraph
14 hereof, may be executed in any number of counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an original
and all of which counterparts, taken together, shall constitute one and the
same
instrument.
|
19. ENTIRE
AGREEMENT
|
This
Agreement on and as of the date hereof constitutes the entire agreement between
Employer and Executive with respect to the subject matter hereof and all prior
or contemporaneous oral or written communications, understandings or agreements
between Employer and Executive with respect to such subject matter are hereby
superseded and nullified in their entireties, including, without limitation,
all
provisions of the Employment Agreement dated as of August 30, 2006 (the
"Prior Agreement") except for the noncompetition provisions set
forth in Section 8.2 thereof; provided, however, that, notwithstanding the
foregoing, Employer and Executive agree that the noncompetition provisions
set
forth in Section 8.2 of the Prior Agreement, which was entered into prior
to the commencement of Executive's employment with Employer, shall remain in
full force and effect.
[Remainder
of This Page Intentionally Left Blank.]
14
IN
WITNESS WHEREOF, the parties have executed and entered into this Employment
Agreement on the date set forth above.
|
EXECUTIVE:
|
|||
| /s/ Xxxxxxx Xxxxxx Xxxx | |||
| Name: Xxxxxxx Xxxxxx Xxxx | |||
| EMPLOYER: | |||
| SYNTHETECH, INC. | |||
|
By:
|
/s/ Xxxxxx X. Xxxxx | ||
| Title: Chairman and Chief Executive Officer | |||
Schedule
A
to
NONE
