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Exhibit 10.2
This
Employment Agreement (this " Agreement "),
dated as of November 30, 2007 (the " Commencement
Date "), is between Synthetech, Inc., an Oregon
corporation (" Employer "), and Gary A. Weber
(" Executive ").
RECITALS
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A.
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Employer
desires to continue to retain the services of Executive upon the
terms and conditions set forth herein.
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B.
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Executive
desires to continue to provide services to Employer upon the terms
and conditions set forth herein.
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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:
Employer
will continue to employ Executive and Executive accepts
continued employment by Employer as its Vice President of
Finance and Administration, Chief Financial Officer,
Secretary, Treasurer. Executive will have the
authority, subject to Employer's Articles of Incorporation and
Bylaws, as may be granted from time to time by Employer's
Chief Executive Officer (" CEO ") or its
President and Chief Operating Officer. Executive
will perform the duties assigned to him from time to time by
Employer's CEO or President and Chief Operating Officer, 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.
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.
Unless
otherwise terminated pursuant to paragraph 6 of this
Agreement, Executive's term of employment under this Agreement
shall begin on the Commencement Date and shall expire on
March 31, 2009; provided , however, that,
commencing on March 31, 2009 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 one additional
year 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 7.5) 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 18 months from the date on
which the Change in Control occurs.
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:
Executive's
compensation shall consist, in part, of an annual base salary
of no less than $145,000 plus any increases thereto, 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. The Compensation Committee shall solicit
from Employer's CEO recommendations for any such annual base
salary increases.
Executive
may be entitled to receive, in addition to the annual base
salary described above, an annual bonus in an amount to be
determined by the Compensation Committee, in its sole
discretion. The Compensation Committee shall
solicit from Employer's CEO recommendations for any such
annual bonus. The Compensation Committee shall,
with input from Employer's CEO, determine the performance
objectives for a given fiscal year prior to the beginning of
that year and shall, following the Compensation Committee's
review of the CEO's assessment as to achievement of those
performance objectives, determine achievement by Executive of
those 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 the 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 (i) by Employer other than for
Cause (as defined in paragraph 7.6); (ii) by Executive with
Good Reason (as defined in paragraph 7.7); or (iii) due to
Executive's death or total disability (as defined in paragraph
6.3) and (b) actual performance 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 the Executive's taxable year) an annual
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).
The
Compensation Committee shall determine any grants of
restricted stock, stock options or other equity-based awards
to be made to Executive under Employer's equity compensation
plans or otherwise. The Compensation Committee
shall solicit from Employer's CEO recommendations for any such
grants and awards.
4.4
Withholding
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.
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).
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:
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 ninety (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 an officer of Employer, whereupon, if requested to
so resign, Executive shall immediately resign.
Executive
may terminate his employment at any time upon giving Employer,
in the case of termination by Executive (a) other than with
Good Reason (as defined below), 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 an 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
Employer's 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 Employer's Board of Directors of Executive's
total disability, as defined herein.
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
a 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 7.5 below), Executive
shall be entitled to receive immediately and in a lump sum
payment: (a) a termination payment equal to 100% of
Executive’s then current annual base salary;
(b) any unpaid annual base salary and unpaid fringe
benefits under paragraph 5 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 day period
referenced in paragraph 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.
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7.2 Termination
by Executive Without Good Reason; Expiration of Term; Termination
Because of Death or Total Disability
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In
the case of the termination of Executive's employment (a) by
Executive without Good Reason or (b) as a result of the
expiration of the term (as the same may be extended pursuant
to paragraph 3) of this Agreement or because of
Executive's death or total disability (as defined in
paragraph 6.3), Executive (or his personal
representative, as applicable) shall not be entitled to
receive any payments hereunder other than (x) any accrued but
unpaid annual base salary and other benefits set forth in
clause (b) of paragraph 7.1 hereof and (y) solely with
respect to termination of employment as a result of the
expiration of the term of this Agreement or because of
Executive's death or total disability, any annual bonus
payments pursuant to clause (c) of paragraph 7.1
hereof.
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7.3 Termination
of Employment With Cause
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Notwithstanding
anything to the contrary, if Employer terminates Executive's
employment for Cause, Executive shall not be entitled to
receive any payments hereunder other than those set forth in
clause (b) of paragraph 7.1 hereof.
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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7.5 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 conve
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