EXHIBIT (e)(3)
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is
made as of July 11, 2000, between CHIREX INC., a Delaware corporation (the
"Company"), and Francis Jackson Wright ("Executive").
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RECITALS
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The Company wishes to continue to employ Executive as its Executive
Vice President, Corporate Development. The parties hereto desire to set forth
in writing the terms of the Executive's employment relationship with the
Company.
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.
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(a) The Company hereby agrees to continue to employ Executive as its
Executive Vice President, Corporate Development to render exclusive and full
time services to the Company and to perform such other duties commensurate with
such office as Executive shall reasonably be directed by the Chief Executive
Officer and/or Board of Directors of the Company, for the period specified in
Section 2.
(b) Executive hereby accepts such employment and agrees to render the
services described above to the best of Executive's abilities in a diligent,
trustworthy, businesslike and efficient manner. Executive further agrees to
accept election and to serve during all or any part of the term of this
Agreement as an officer or director of the Company and of any subsidiary or
affiliate of the Company, without any compensation therefor, other than that
specified in this Agreement or as otherwise determined by the Board of Directors
of the Company or of any subsidiary or affiliate, as the case may be.
2. Term of Employment. The Employment Period of Executive by the
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Company shall commence on July 11, 2000 and shall end on July 11, 2003 (the
"Initial Term") unless further extended or sooner terminated as hereinafter
provided. Executive may terminate his employment during the Initial Term with
six months written notice to the Company. Commencing on July 11, 2003, and each
July 11 thereafter, the term of Executive's employment shall automatically be
extended for one additional year to, respectively, July 11, 2004 and each July
11 thereafter, unless, not later than six months prior to the end of any renewal
term, either party hereunder shall have given notice to the other party that it
does not wish to extend this Agreement. If the Company gives Executive notice
that it does not wish to extend this
Agreement during the Initial Term or any renewal term, Executive shall be
entitled to the severance payments provided in Section 4(d) hereof.
3. Base Salary and Benefits.
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(a) During the Employment Period, Executive's base salary shall be
$210,000 per annum or such higher rate as the Company may designate from time to
time (the "Base Salary"), which salary shall be payable in regular installments
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in accordance with the Company's general payroll practices and shall be subject
to customary withholding. 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 his 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 requirements with respect to reporting and documentation of such
expenses.
(c) In addition to the Base Salary, Executive shall be eligible to
receive a bonus payable at the end of each fiscal year during the Employment
Period, which bonus shall be based upon the Company's operating results during
such year and upon Executive achieving defined specific goals and objectives
during the twelve months prior to review.
(d) Executive may be awarded, from time to time, additional
compensation (such as stock options, stock appreciation rights, performance
shares, restricted stock or unrestricted stock) pursuant to the Company's 1997
Stock Incentive Plan or any additional or replacement incentive compensation
program established for the key employees of the Company. Any awards under such
programs shall be at such levels or in such amounts as the Board of Directors
deems, in its sole discretion, appropriate for the position occupied by
Executive and his performance therein. Subject to Section 4 herein, the terms,
conditions and rights with respect to any such grants will be subject to the
actual provisions and conditions applicable to such plans.
(e) The Executive will be entitled to participate in the Company's UK
benefit programs only to the extent permitted by the ChiRex Relocation Policy.
Executive shall continue to be entitled to be a member of the ChiRex UK Pension
Plan subject to and in accordance with its terms and conditions as amended from
time to time (the current terms and conditions include the right of the Company
to discontinue such plan). The Executive shall be entilted to participate in
the Company's US and UK health plans.
(f) Executive shall be entitled to a mobile phone including payment
of the cost of all charges relating to the rental or use thereof.
(g) Executive will be entitled to 28 working days paid vacation per
year (and any public/bank holidays). In addition, Executive shall also be
entitled to paid holidays when the corporate office is officially closed.
4. Termination and Change of Control
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(a) If the Executive shall die during the Employment Period, this
Agreement shall terminate, except that (i) Executive's surviving spouse or, if
none, his estate, shall be entitled to receive Executive's compensation
(including bonus) to the last day of the third calendar month following the date
of his death; and (ii) such termination shall not affect any rights which
Executive may have at the time of his death pursuant to any insurance or other
death benefit, retirement, stock option or other plans or arrangements of the
Company or of any subsidiary or affiliate of the Company, which rights shall
continue to be governed by the provisions of such plans and arrangements.
(b) At the sole discretion of the Board of Directors, Executive may
be terminated if the Executive is disabled (as defined below) and shall have
been absent from his duties with the Company on a full time basis for one
hundred and eighty (180) consecutive days, and, within thirty (30) days after
written notice by the Company to do so, the Executive shall not have returned to
the performance of his duties hereunder on a full time basis. In the event of
such termination, the Company shall make to Executive the payments specified in
Section 4(d). As used herein, the term "disabled" shall (i) mean that Executive
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is unable, as a result of a medically determinable physical or mental
impairment, to perform the duties and services of his position, or (ii) have the
meaning specified in any disability insurance policy maintained by the Company,
whichever is more favorable to the Executive.
(c) The Company may, by notice to Executive, terminate Executive's
employment hereunder for cause. In the event of a termination for cause, the
Company shall not be required to give any prior notice per Section 2 herein, and
Executive shall receive no severance benefits whatsoever. As used herein,
"cause" shall mean (i) the conviction of Executive of a felony or conviction of
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a misdemeanor if such misdemeanor involves moral turpitude; or (ii) Executive's
voluntary engagement in conduct constituting larceny, embezzlement, conversion
or any other act involving the misappropriation of Company funds in the course
of his employment; or (iii) the willful refusal to carry out specific directions
of the Board of Directors, which directions shall be consistent with the
provisions hereof; or (iv) Executive's committing any act of gross negligence or
intentional misconduct in the performance or non-performance of his duties as an
employee of the Company; or (v) any material breach by the Executive of any
material provision of this Agreement (other than for reasons related only to the
business performance of the Company or business results achieved by Executive).
For purposes of this Section 4(c), no act or failure to act on Executive's part
shall be considered to be reason for termination for cause if done, or omitted
to be done, by Executive in good faith and with the reasonable belief that the
action or omission was in the best interests of the Company.
(d) Executive's employment may be terminated at any time by the
Company without cause; provided, however, that in such event Executive shall be
entitled to receive (so long as Executive executes and delivers the Company's
standard form of release) 140% of Executive's then effective annual Base Salary;
provided further, however, that if such termination occurs within 90 days of a
Change in Control (as defined below), Executive shall instead be entitled to
receive the amounts referred to in Section 4(e). The foregoing amounts
shall be payable in one lump sum payment within five (5) days after Executive's
last day of active employment. In addition, Executive shall be entitled to
continue participation in the Company's health and other welfare benefit plans
for a period of one year or until Executive is covered by a successor employer's
benefit plans, whichever is sooner.
(e) If (i) Executive's employment is terminated pursuant to
subsections (a), (b), (d), (e) or (g) of this Section 4, or (ii) a "Change in
Control" of the Company (as defined in Section 4(f) below) occurs, then, in
either case, all stock options, restricted stock, deferred compensation and
similar benefits which have not yet become vested on the date of termination or
the date of a Change in Control, as the case shall be, will become vested upon
such event, and Executive shall be permitted to exercise all such rights in
accordance with the administrative provisions of those plans, and in the case of
a Change of Control, whether or not Executive remains employed with the Company
or terminates his employment in accordance with this subsection (e). If a
Change in Control event involves a tender offer for all or part of the Company's
shares, the vesting date for stock options and restricted stock pursuant to this
subsection (e) shall be a date which permits Executive to participate in such
tender offer with such stock options or restricted shares. In addition, if a
Change in Control occurs, Executive may, after such Change in Control, terminate
his employment with the Company for any reason within the period prior to the
expiry of ninety (90) days immediately following such Change in Control, in
which event Executive shall be entitled to receive the following: (i) a lump sum
payment within five days of such termination of employment, in the amount of
2.75 times the sum of (x) the Executive's Base Salary and (y) 40% of the
Executive's Base Salary; and (ii) continuation, for a period of two years after
the date of such termination of employment, for the benefit of the Executive and
his immediate family, of all welfare benefits (including but not limited to
medical, health and hospitalization, dental, life and disability insurance
benefits) provided to the Executive and his immediate family on the date
immediately prior to the Change in Control. For purposes of clarity, in the
event that the Executive receives benefits pursuant to this Section 4(e), he
shall not be eligible to receive benefits under Section 4(d) or Section 4(g) of
this Agreement (but he shall be eligible for such other rights as are described
elsewhere in this Agreement).
(f) For purposes of this Agreement, a "Change in Control" of the
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Company shall be deemed to have occurred if: (i) any person (as such term is
used in Sections 13(d) and 14(d)(2) of the Securities and Exchange Act of 1934)
becomes the beneficial owner, directly or indirectly, of Company securities
representing 30% or more of the capital stock of the Company; or (ii)
individuals who constitute the Company's Board of Directors as of the date of
this Agreement (the "Incumbent Board") cease for any reason to constitute at
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least a majority thereof, provided, however, that any person becoming a director
subsequent to the date of this Agreement whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at least 51%
of the directors comprising the Incumbent Board (either by a specific vote or by
approval of the proxy statement of the Company in which such person is named as
a nominee for director, without objection to such nomination) shall be, for the
purpose of this clause (ii), considered as though such person were a member of
the Incumbent Board; or (iii) the Company's shareholders approve a merger or
consolidation (where in either case the Company is not the survivor thereof) in
which shareholders of the Company cease to own at least 80% of the
surviving entity's voting power, or a sale or disposition of all or
substantially all of the Company's assets or a plan of partial or complete
liquidation of the Company.
(g) Executive's employment may be terminated by the Executive for Good
Reason. For purposes of this Agreement, "Good Reason" shall mean: (i) the
assignment to Executive of any duties inconsistent in any respect with
Executive's position (including status, offices, titles, and reporting
requirements), authority, duties or responsibilities as contemplated by Section
1(a) hereof, or any other action by the Company which results in a diminution in
such position, authority, duties or responsibilities, excluding for this purpose
an isolated, insubstantial and inadvertent action not taken in bad faith and
which is remedied by the Company promptly after receipt of notice thereof given
by Executive; (ii) any failure by the Company to comply with any of the
provisions of Section 3 hereof, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by Executive; (iii) the
Company's requiring Executive to be based at any office or location other than
as provided in Section 1(c) hereof; (iv) any purported termination by the
Company of Executive's employment otherwise than as expressly permitted by this
Agreement; or (v) any failure by the Company to obtain an express assumption of
this Agreement by a successor as required pursuant to Section 14 hereof. For
purposes of this Section 4(g), any good faith determination of "Good Reason"
made by Executive shall be conclusive. Upon any termination pursuant to this
subsection (g), Executive shall be entitled to the payment specified in Section
4(d) hereof and to the other rights described therein (subject to his compliance
therewith).
(h) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment, award, benefit or distribution
(or any acceleration of any payment, award, benefit or distribution) by the
Company (or any of its affiliated entities) or any entity which effectuates a
Change in Control (or any of its affiliated entities) to or for the benefit of
Executive (whether pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this Section
4(h) (the "Payments") would be subject to the excise tax imposed by Section 4999
of the Internal Revenue Code of 1986, as amended (the "Code"), or any interest
or penalties are incurred by Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Company shall pay to
Executive an additional payment (a "Gross-Up Payment") in an amount such that
after payment by Executive of all taxes (including any Excise Tax) imposed upon
the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal
to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product
of any deductions disallowed because of the inclusion of the Gross-up Payment in
Executive's adjusted gross income and the highest applicable marginal rate of
federal income taxation for the calendar year in which the Gross-up Payment is
to be made. For purposes of determining the amount of the Gross-up Payment, the
Executive shall be deemed to (i) pay federal income taxes at the highest
marginal rates of federal income taxation for the calendar year in which the
Gross-up Payment is to be made, and (ii) pay applicable state and local income
taxes at the highest marginal rate of taxation for the calendar year in which
the Gross-up Payment is to be made, net of the maximum reduction in federal
income taxes which could be obtained from deduction of such state and local
taxes.
(i) Subject to the provisions of Section 4(h), all determinations
required to be made under this Section 4, including whether and when a Gross-Up
Payment is required, the amount of such Gross-Up Payment and the assumptions to
be utilized in arriving at such determinations, shall be made by the public
accounting firm that is retained by the Company as of the date immediately prior
to the Change in Control (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and Executive within fifteen (15)
business days of the receipt of notice from the Company or the Executive that
there has been a Payment, or such earlier time as is requested by the Company
(collectively, the "Determination"). In the event that the Accounting Firm is
serving as accountant or auditor for the individual, entity or group effecting
the Change in Control, Executive may appoint another nationally recognized
public accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm hereunder).
All fees and expenses of the Accounting Firm shall be borne solely by the
Company and the Company shall enter into any agreement requested by the
Accounting Firm in connection with the performance of the services hereunder.
The Gross-up Payment under this Section 4 with respect to any Payments shall be
made no later than thirty (30) days following such Payment. If the Accounting
Firm determines that no Excise Tax is payable by Executive, it shall furnish
Executive with a written opinion to such effect, and to the effect that failure
to report the Excise Tax, if any, on Executive's applicable federal income tax
return will not result in the imposition of a negligence or similar penalty.
The Determination by the Accounting Firm shall be binding upon the Company and
Executive. As a result of the uncertainty in the application of Section 4999 of
the Code at the time of the Determination, it is possible that Gross-up Payments
which will not have been made by the Company should have been made
("Underpayment") or Gross-up Payments are made by the Company which should not
have been made ("Overpayment"), consistent with the calculations required to be
made hereunder. In the event that the Executive thereafter is required to make
payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code) shall be promptly paid by the Company to or for the
benefit of Executive. In the event the amount of the Gross-up Payment exceeds
the amount necessary to reimburse the Executive for his Excise Tax, the
Accounting Firm shall determine the amount of the Overpayment that has been made
and any such Overpayment (together with interest at the rate provided in Section
1274(b)(2) of the Code) shall be promptly paid by Executive (to the extent he
has received a refund if the applicable Excise Tax has been paid to the Internal
Revenue Service) to or for the benefit of the Company. Executive shall
cooperate, to the extent his expenses are reimbursed by the Company, with any
reasonable requests by the Company in connection with any contests or disputes
with the Internal Revenue Service in connection with the Excise Tax..
5. Confidential Information.
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(a) Executive acknowledges and agrees that the information,
observations and data obtained by him while employed by the Company and its
subsidiaries concerning the business or affairs of the Company or any other
subsidiary ("Confidential Information") are the property of the Company or such
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subsidiary. Therefore, Executive agrees to keep secret and retain in the
strictest confidence all Confidential Information, including without limitation,
trade "know-how" secrets, customer lists, pricing policies, operational methods,
technical processes,
formulae, inventions and research projects and other business affairs of the
Company, learned by his prior to or after the date of this Agreement, and not to
disclose them to anyone outside the Company, either during or after his
employment with the Company, except (i) in the course of performing his duties
hereunder; (ii) with the Company's express written consent; (iii) to the extent
that the Confidential Information becomes generally known to and available for
use by the public other than as a result of Executive's acts or omissions; or
(iv) where required to be disclosed by court order, subpoena or other government
process. If Executive shall be required to make disclosure pursuant to the
provisions of clause (iv) of the preceding sentence, Executive promptly, but in
no event more than 48 hours after learning of such subpoena, court order or
other governmental process, shall notify the Company, by personal delivery or
fax (pursuant to Section 9 hereof), and, at the Company's expense, shall take
all reasonably necessary steps requested by the Company to defend against the
enforcement of such subpoena, court order or other governmental process and
permit the Company to intervene and participate with counsel of its own choice
in any related proceeding.
(b) Executive shall deliver to the Company at the termination of his
employment, or at any other time the Company may request, all memoranda, notes,
plans, records, reports, computer tapes, printouts and software and other
documents and data (and copies thereof) relating to the Confidential
Information, Work Product (as defined below) or the business of the Company or
any subsidiary which Executive may then possess or have under his control.
6. Inventions and Patents. Executive acknowledges that all
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inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (whether or not
patentable) which relate to the Company's or any of its subsidiaries' actual or
anticipated business, research and development or existing or future products or
services and which are conceived, developed or made by Executive while employed
by the Company or its predecessor and its subsidiaries ("Work Product") belong
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to the Company or such subsidiary. Executive shall promptly disclose such Work
Product to the Board and perform all actions reasonably requested by the Board
(whether during or after his employment) to establish and confirm such ownership
(including, without limitation, assignments, consents, powers of attorney and
other instruments).
7. Indemnification. The Company will indemnify Executive and his
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legal representatives, to the fullest extent permitted by the laws of the State
of Delaware and the existing by-laws of the Company or any other applicable laws
or the provisions of any other corporate document of the Company, and Executive
shall be entitled to the protection of any insurance policies the Company may
elect to obtain generally for the benefit of its directors and officers, against
all costs, charges and expenses whatsoever incurred or sustained by him or his
legal representatives in connection with any action, suit or proceeding to which
he or his legal representatives may be made a party by reason of his being or
having been a director or officer of the Company or of any of its subsidiaries
or affiliates or actions taken purportedly on behalf of the Company or of any of
its subsidiaries or affiliates.
8. 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
do not and shall 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, and (ii) 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 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.
9. Notices. Any notice provided for in this Agreement shall be in
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writing and shall be deemed to have been duly given if delivered personally with
receipt acknowledged or sent by registered or certified mail or equivalent, if
available, postage prepaid, or by fax (which shall be confirmed by a writing
sent by registered or certified mail or equivalent on the same day that such fax
was sent), addressed to the parties at the following addresses or to such other
address as such party shall hereafter specify by notice to the other:
Notices to Executive: Francis Jackson Wright:
-------------------- Copies to each of the following addresses:
[REDACTED]
Notices to the Company: ChiRex Inc.
---------------------- 300 Atlantic Street
Suite 402
Stamford, Connecticut 06901
(Phone) (203) 351-2300
(Fax) (203) 425-9996
Attention: General Counsel
10. 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.
11. Complete Agreement. This Agreement constitutes the complete
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agreement and understanding among the parties and supersedes and preempts 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.
12. 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.
13. Counterparts. This Agreement may be executed in separate
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counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
14. 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. The Company will require any successor to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
15. 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 New York, without giving effect to any choice of
law or conflict of law rules or provisions that would cause the application of
the laws of any jurisdiction other than the State of New York.
16. 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.
17. Arbitration. Any controversy or claim arising out of or relating
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to this Agreement, the making, interpretation or the breach thereof, other than
(a) a claim solely for injunctive relief for any alleged breach of the
provisions of Section 5 as to which the parties shall have the right to apply
for specific performance to any court having equity jurisdiction; and (b) the
determination of Excise Tax and Gross-Up Payment pursuant to Section 4 herein;
shall be settled by arbitration in New York City by one arbitrator in accordance
with the Commercial Arbitration Rules of the American Arbitration Association
and judgement upon the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof and any party to the arbitration may, if he
elects, institute proceedings in any court having jurisdiction for the specific
performance of any such award. The powers of the arbitrator shall include, but
not be limited to, the awarding of injunctive relief.
18. Legal Fees and Expenses. The Company shall reimburse Executive
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for all reasonable legal fees and expenses incurred by Executive in connection
with (a) review and/or any claims made regarding the Company's determination of
Excise Tax and Gross-Up
Amount pursuant to Section 4 herein, or (b) any arbitration proceeding brought
under this Agreement pursuant to Section 17, where the arbitration is concluded
in Executive's favor.
19. No Mitigation or Set-Off. The provisions of this Agreement are
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not intended to, nor shall they be construed to require that Executive mitigate
the amount of any payment provided for in this Agreement by seeking or accepting
other employment, nor shall the amount of any payment provided for in this
Agreement be reduced by any compensation earned by Executive as a result of his
employment by another employer or otherwise. The Company's obligations to make
the payments to Executive required under this Agreement, and otherwise to
perform its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action that the
Company may have against Executive.
* * * * * * * * * * * * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
CHIREX INC.
/s/ Michael A. Griffith
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By: Michael A. Griffith
Chairman and Chief Executive Officer
/s/ Francis Jackson Wright
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Francis Jackson Wright