10.9
EXECUTION COPY
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is
made as of July 1, 1998, between CHIREX INC., a Delaware corporation ("ChiRex")
and its wholly owned subsidiary, CHIREX (Holdings ) Limited., a U.K. company
("Holdings", ChiRex and Holdings referred to collectively herein as the
"Company"), and David Frank Raynor ("Executive").
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RECITALS
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Executive is presently Vice President, Dudley Operations and
previously entered into a Service Agreement dated March 11, 1996 with a
predecessor of the Company known as Crossco (157) Limited (the"Original
Agreement"). Effective as of July 1, 1998, Executive has taken on additional
responsibilities. The parties hereto desire to set forth in writing the terms of
Executive's employment relationship with the Company in light of his new
responsibilities.
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. (a) The Company hereby agrees continue to employ
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Executive to render exclusive and full-time services to the Company as its Vice
President, Dudley Operations, and to perform such other duties commensurate with
such office as he shall reasonably be directed by the Office of the Chief
Executive, Chief Operating 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 his 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 parent, 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 parent, subsidiary or affiliate, as the case may be.
(c) The duties to be performed by Executive hereunder shall be
performed within the Company's U.K. facilities. Executive agrees that he shall
also travel and work outside the U.K. during the Employment Period as may be
required by the Company from time to time.
2. TERM OF EMPLOYMENT. The term of Executive's employment by the
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Company shall commence as of July 1, 1998 and end on December 31, 1999 unless
sooner terminated as hereinafter provided (the "Employment Period"). If the
Company gives Executive notice that it does not wish to extend this Agreement
during its term, Executive shall be entitled to the severance payments provided
in Section 4(d) hereof.
3. BASE SALARY AND BENEFITS. (a) From the period of July 1, 1998
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through June 30, 1999, Executive's base salary shall be (Pounds)90,000 per
annum. From the period of July 1, 1999 through December 31, 1999, Executive's
base salary shall be paid at the rate of (Pounds)105,000 per annum, which salary
shall be payable in regular installments in accordance with the Company's
general payroll practices and shall be subject to customary tax 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
based in the U.K. of the Company and its subsidiaries are generally eligible.
Executive agrees that the Company may pay all or any part of Executive's base
salary or benefits through one or more of its affiliated companies.
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(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 requirements with respect to reporting and documentation of such
expenses.
(c) In addition to the base salary, Executive shall be entitled to a
bonus following 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. The bonus shall be on the basis that the
Executive is entitled, subject to achievement of such goals and objectives, to a
payment of a sum equivalent to an additional 20% of his base salary beginning
for calendar year 1998.
(d) Per an Incentive Stock Option Agreement dated April 17, 1997 (the
"Stock Option Agreement") Executive has been awarded 60,000 options to purchase
shares of ChiRex Common Stock under the Company's 1995 Stock Incentive Plan. On
or before August 15, 1998, Executive and the Office of the Chief Executive shall
agree in writing upon specific goals Executive must meet on certain dates during
the Employment Period, and shall attach such list to this Agreement so that it
shall become a part hereof. In the event Executive is employed by the Company
and attains all goals required to be completed by July 1, 1999, the Company
shall amend the Stock Option Agreement so that an additional 18,000 options of
the aforementioned 60,000 will vest upon such date. In the event Executive
attains all goals required to be completed by his retirement on December 31,
1999, the Company shall likewise amend the Stock Option Agreement to accelerate
the vesting of the remaining 18,000 unvested options so that Executive shall be
permitted to exercise all options awarded under the Stock Option Agreement on or
before March 31, 2000. After March 31, 2000, all unexercised vested options
shall become void.
(e) Executive shall continue to receive a motor car (together with
petrol and running cost benefits) as specified in the Company's U.K. car policy.
(f) Executive shall continue to be entitled to be a member of the
ChiRex U.K. 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.
(g) Executive shall be entitled to benefits under the Company's U.K.
Private Health Care Scheme or to a scheme offering broadly equivalent benefits
to the Executive as the Company shall determine. In addition, the Executive
shall be entitled to an annual private medical examination at the cost of the
Company.
(h) Executive shall be entitled to a mobile phone including payment of
the cost of all charges relating to the rental or use thereof.
(i) Executive shall be entitled to 28 working days holiday (and any
public/bank holidays) in each holiday year such holidays to be taken at such
time or times as the Board shall agree. The Company's holiday year runs from 1
January. The Executive may not carry any unused part of his holiday entitlement
to a subsequent holiday year or claim pay in lieu thereof without the prior
consent of the Board. In the event Executive's employment terminates for any
reason other than cause, the Executive shall be entitled to a ratable proportion
of his annual holiday entitlement.
4. TERMINATION AND RETIREMENT. (a) If Executive shall die during
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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
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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 written notice to Executive, terminate
Executive's employment hereunder for cause, which termination shall be effective
as of the date of receipt of such notice by Executive. 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
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of a felony or conviction of 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 the 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 upon written notice; provided, however, that in such event
Executive shall be entitled to receive (so long as he executes and delivers the
Company's standard form of release), 120% of Executive's then effective annual
base salary. The foregoing amount 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 up to one (1) year or
until Executive is covered by a successor employer's benefit plans, whichever is
sooner.
(e) Unless Executive's employment is terminated sooner per subsections
(a) through (d) above, at the end of the Employment Period, Executive shall
retire from the Company. Upon Executive's retirement, the Company shall (i)
consent to Executive's early entry to the ChiRex Senior Executive Pension Plan
of which he is a member; (ii) pay Executive (Pounds)20,000 (subject to tax
withholding required by Inland Revenue) which Executive may use towards purchase
of an automobile; and (iii) on or about 90 days after delivery of ChiRex share
certificates to the Company's General Counsel, arrange to have restrictive
legends on such certificates lifted. Executive acknowledges and agrees that upon
retirement he shall have no claim to any additional payments or any other
consideration from the Company other than as set forth above.
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5. CONFIDENTIAL INFORMATION. (a) Executive acknowledges and agrees
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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
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the Company or such 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 him 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 10 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 he 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. ORIGINAL AGREEMENT. Clauses 3.3, 3.4, 9.1, 9.2, 9.3, 9.4, 9.5,
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9.6, 12.3, 12.4, and 12.6 of the Original Agreement shall continue as therein
written in full force and effect.
8. 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.
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9. EXECUTIVE'S REPRESENTATIONS. Executive hereby represents and
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warrants to the Company that (a) 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 (b) 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 fully
understands the terms and conditions contained in this Agreement.
10. 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: David Frank Raynor
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[DELETED]
Notices to the Company: ChiRex Inc.
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300 Atlantic Street
Suite 402
Stamford, Connecticut 06901
(203) 351-2300 (Phone)
(203) 425-9996 (Fax)
Attention: General Counsel
11. 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.
12. COMPLETE AGREEMENT. Except as set forth in Section 7 herein,
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this Agreement constitutes the complete 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, including without limitation, the
Original Agreement. Notwithstanding the foregoing, except as set forth in
Section 3(d), the Stock Option Agreement shall remain in full force and effect.
13. 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.
14. 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.
15. 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
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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.
16. 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.
17. 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.
18. 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 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, shall be settled by
arbitration in London, England by one arbitrator in accordance with the
Commercial Arbitration Rules of the American Arbitration Association and
judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof (in the U.S and in the U.K.) 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. The Company shall reimburse Executive for all expenses incurred by
Executive in connection with any arbitration, including reasonable attorney's
fees, to the extent 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
CHIREX INC. and its subsidiary
CHIREX (HOLDINGS) LTD.
/s/ Michael A. Griffith
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MICHAEL A. GRIFFITH
CHIEF FINANCIAL OFFICER
/s/ David Frank Raynor
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DAVID FRANK RAYNOR
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SCHEDULE 1
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WRITTEN STATEMENT OF MAIN TERMS AND CONDITIONS OF EMPLOYMENT AS REQUIRED BY THE
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EMPLOYMENT RIGHTS ACT 1996
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1. Parties: The names and addresses of the Company and Executive are set out on
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page 1 of this Agreement and in Section 10 of this Agreement.
2. Commencement of Continuity of Employment. The Executive's continuous period
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commenced on 12 July 1965. The previous employment of the Executive with
previous employers counts as part of the Executive's employment.
3. Job Title. The job title of the Executive is set out on page 1 of this
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Agreement.
4. Place of Work. The Executive's place of work is set out in Section 1(c) of
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this Agreement.
5. Remuneration. See Section 3 of this Agreement.
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6. Hours of Work. The hours of work shall be such hours as may be required for
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the proper performance of the Executive's duties under this Agreement.
7. Holidays. See Section 3(i) of this Agreement.
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8. Notice Period. See Section 2 of this Agreement.
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9. Sick Pay. See Section 4(b) of this Agreement.
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10. Retirement. The normal age of retirement is 60.
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11. Pensions. See Section 4(f) of this Agreement. A contracting out
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certificate is in force in respect of the Employment.
12. Grievance Procedure. The Executive should refer any grievance he may have
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about his employment or about any disciplinary decision relating to him to
the Chairman of the Board in writing. The reference will be dealt with by a
majority present at a Board meeting whose decision shall be final.
13. Disciplinary Rules. Any appeal against disciplinary action will be dealt
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with by the Board.
14. Miscellaneous. There are no collective agreements in force which affect the
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terms and conditions of Executive's employment.
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