EXHIBIT 10.5
EMPLOYMENT AGREEMENT made as of the 1st day of November, 2002 by and between
BIOLIFE SOLUTIONS, INC., a Delaware corporation (hereinafter referred to as the
"Company"), and XXXX X. XXXX, residing at 0 Xxxxxxx Xxxx, Xxxxx Xxxxxxx, XX
00000 (hereinafter referred to as "Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company desires to employ Employee, and Employee is willing to
accept such employment, all on the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the terms and conditions hereinafter set
forth, the parties hereto agree as follows:
1. Employment
The Company hereby employs Employee, and Employee hereby accepts
employment with the Company, as Vice President of Sales and Marketing, on the
terms and conditions herein set forth.
2. Term of Agreement
Unless terminated sooner pursuant to the express provisions hereof, the
term of employment hereunder shall commence on the date hereof (the
"Commencement Date"), shall continue through October 31, 2004 (the "Original
Term"). The Original Term shall be automatically extended for two additional
one-year periods upon the terms and subject to the conditions contained herein,
unless the Company notifies Employee, in writing, not less than 90 days prior to
the commencement of any such one-year period, that the term of employment shall
not be extended. The period commencing with the Commencement Date through the
end of the term of Employee's employment hereunder is hereinafter referred to as
the "Employment Period."
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3. Duties
During the Employment Period, Employee shall perform such functions as
are normally carried out by the Vice President of Sales and Marketing of a
business of the type in which the Company is engaged, and such other functions
as the President and CEO (the "CEO") and the Board of Directors of the Company
(the "Board") shall from time to time reasonably determine. Employee shall
devote his energies and abilities exclusively to the Company's business pursuant
to, and in accordance with, reasonable business policies and procedures, as
fixed from time to time by the CEO and the Board. Employee covenants and agrees
that he will faithfully adhere to and fulfill such policies as are established
from time to time by the CEO and the Board of Directors. Employee shall not be
assigned, by the CEO or the Board of Directors, responsibilities, in any
material manner, inconsistent with his position as Vice President of Sales and
Marketing.
4. Compensation
4.1 During the Employment Period, Employee's base salary shall be in
the amount of $150,000 per annum, payable bi-weekly or, in the event the Company
changes its current payroll period, in accordance with the Company's changed
payroll procedures.
4.2 During the Employment Period, in addition to Employee's base
salary, Employee shall be entitled to quarterly commissions of four percent
(4%), payable within thirty (30) days of the end of each quarter with respect to
monies received during such quarter, on (a) the sale of products, and (b) the
receipt of new contracts, including government contracts, for the purchase of
products or optimization services ("Commissionable Contracts"); provided,
however, that there shall be excluded from Commissionable Contracts existing
contracts that are renewed prior to January 1, 2003. No commission shall be paid
with respect to grants (government or otherwise) received by the Company to
further research and development.
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4.3 During the Employment Period, the Company will provide Employee
with a non-accountable automobile allowance of $600.00 per month.
4.4 During the Employment Period, the Company will provide Employee
with family coverage for Blue Cross/Blue Shield (or equivalent thereof) and
major medical insurance coverage.
4.5 Employee shall also be eligible, to the extent he qualifies, to
participate in such fringe benefit plans (including retirement, pension, life or
other similar employee benefit plans), if any, which the Company may from time
to time make available to its employees, provided that the Company shall have
the right from time to time to modify, terminate or replace any and all of such
plans.
4.6 The Company shall reimburse Employee for all reasonable business
expenses incurred by Employee in connection with the performance of his duties
hereunder, provided Employee submits supporting vouchers for such expenses.
4.7 Employee shall be entitled to a four-week paid vacation each year
during the Employment Period, to be taken at such time as is consistent with the
needs of the Company and the convenience of Employee.
5. Stock Options
On the Commencement Date, Employee shall be granted a 10 year Stock
Option ("Option"), under the Company's 1998 Stock Option Plan, to purchase
400,000 shares of the Company's common stock, par value $.001 per share, at a
price of $.25 per share. The Option shall vest over a 4-year period to the
extent of 100,000 shares commencing with the first anniversary date of the
Commencement Date and an additional 100,000 shares commencing with each of the
next three anniversary dates thereof; provided, however, that in the event of a
sale of all or substantially all of the assets or all of the outstanding shares
of capital stock of the Company or the merger of the Company with or into
another entity involving a "change of control" (i.e. an ownership change of more
than 50%), in addition to that part of the Option which already has vested,
there shall vest, immediately prior to the consummation of such event, all
remaining Options.
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6. Termination
The Employment Period shall terminate upon the happening of any of the
following events:
6.1 Automatically and without notice upon the death of Employee.
6.2 Employee leaves the employ of the Company.
6.3 Upon written notice of termination from the Board of the Company to
Employee in the event that Employee becomes physically or mentally disabled
("Disability") during the Employment Period such that (a) in Board's good faith
judgment, Employee is permanently incapable of properly performing the duties
customarily performed by him hereunder, or (b) such Disability lasts for a
period of 60 consecutive days or 90 days in any 150 day period and the Board
elects to treat such Disability as being permanent in nature;
6.4 Upon discharge of Employee, on written notice, by the Board for
cause. For purposes of this Agreement, "cause" shall mean the following: the
commission of a felony or crime involving moral turpitude or other act causing
material harm to the Corporation's standing and reputation, failure to carry
out, after reasonable written notice of such failure, the reasonable policies of
the Board as they may relate to Employee's duties hereunder (other than for
reasons beyond his control), persistent absenteeism, a material default or
breach of any of the covenants made by Employee in this Agreement, a breach of
Employee's duty of loyalty to the Company or any act of dishonesty or fraud with
respect to the Company, failure to make, in the sole and exclusive opinion of
the Board, satisfactory progress toward the Milestones set forth in Annex A
hereto, or the Employee's willful engaging in misconduct injurious to the
Company.
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6.5 In the event any one of the foregoing events referred to in
Sections 6.1 through 6.4 hereof shall occur, the Company shall be obligated to
pay to Employee the compensation due him under Section 4.1 hereof up to the date
of termination only and Employee shall not be entitled to receive any additional
compensation of any nature whatsoever.
6.6 In the event that Employee's employment with the Company is
terminated by the Board during the Employment Period for a reason other than as
is set forth above in Sections 6.1 through 6.4 hereof, the Company shall be
required to continue to pay Employee the salary provided for in Section 4.1
hereof for a period of six (6) months; provided, however, that the Employee
shall have affirmative obligation to seek comparable employment and mitigate the
Company's damages.
7. Non-Competition
7.1 In view of the unique and valuable services that Employee has
rendered and is expected to render to the Company, and Employee's knowledge of
the business of the Company and proprietary information relating to the business
of the Company and similar knowledge regarding the Company that Employee has
obtained and is expected to obtain during the course of his employment with the
Company and in consideration of the compensation to be received by Employee
hereunder, Employee agrees that during the Employment Period and for a period of
(twenty-four) months immediately following the termination or expiration
thereof, Employee will not compete with, or, directly or indirectly, own,
manage, operate, control, loan money to, or participate in the ownership,
operation or control of, or be connected with as a director, partner,
consultant, agent, independent contractor or otherwise, or acquiesce in the use
of his name in any other business or organization which is in competition with
the Company in any geographical area in which the Company is then conducting
business or any geographical area in which, to the knowledge of Employee at the
time of cessation of employment, the Company plans to conduct business within
twenty four months from the date thereof.
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7.2 Employee will not, during the twenty-four months following
termination, solicit or interfere with, or endeavor to entice away from the
Company, any of its employees or customers without the written consent of the
Company or unless such employee is Employee's personal secretary.
7.3 Since a breach of the provisions of this Section 7 could not
adequately be compensated by money damages and will cause irreparable injury to
the Company, the Company shall be entitled, in addition to any other right or
remedy available to it, to an injunction or restraining order restraining such
breach or a threatened breach, and no bond or other security shall be required
in connection therewith, and Employee hereby consents to the issuance of any
such injunction or restraining order. Employee agrees that the provisions of
this Section 7 are reasonable and necessary to protect the Company and its
business. It is the desire and intent of the parties that the provisions of this
Section 7 shall be enforced to the fullest extent permitted under the public
policies and laws applied in each jurisdiction in which enforcement is sought.
If any restriction contained in this Section 7 shall be deemed to be invalid,
illegal or unenforceable by reason of the extent, duration or geographical scope
thereof, or otherwise, then the court making such determination shall have the
right to reduce such extent, duration, geographical scope or other provision
hereof and in its reduced form such restriction shall then be enforceable in the
manner contemplated hereby.
7.4 No provision of this Agreement shall be deemed to preclude Employee
from serving as a director on the board of companies not in competition with the
Company or of charitable organizations, provided, that any such directorship or
consulting activities do not reduce Employee's ability to attend to his duties
on behalf of the Company.
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8. Entire Agreement
The provisions hereof and the agreements referred to herein constitute
the entire agreement between the parties with respect to the subject matter
hereof and supersede any prior oral understanding, and no modification,
supplement or discharge hereof shall be effective unless in writing and executed
on behalf of the Company and Employee.
9. Assignability
This Agreement, and its rights and obligations may not be assigned by
Employee. The Company may assign any of its rights and obligations hereunder to
a successor or surviving corporation resulting from a merger or consolidation of
the Company, the sale by the Company of all or substantially all of its assets
or other similar corporate reorganization, upon condition that the assignee
shall assume, either expressly or by operation of law, all of the Company's
obligations hereunder.
10. Waiver
No waiver by either party of any condition, term or provision of this
Agreement shall be deemed to be a waiver of any prior or succeeding breach of
the same or of any other condition, term or provision thereof.
11. Notices
All notices required or permitted to be given by either party hereunder
shall be in writing and mailed by registered mail, return receipt requested, to
the other party at the address set forth above or such different address as may
be given by notice as provided for herein. Any notice mailed as provided above
shall be deemed given seven (7) days after the date of mailing or on the date of
receipt, whichever is sooner.
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12. Counterparts
This Agreement may be executed in several counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument.
13. Construction
This Agreement shall be construed in accordance with the laws of the
State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
/s/ Xxxx X. Xxxx
___________________________________
XXXX X. XXXX
BIOLIFE SOLUTIONS, INC.
By: /s/ Xxxx X. Xxxxx
________________________________
XXXX X. XXXXX
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