Exhibit 10.28
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CONSULTING AGREEMENT
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This Consulting Agreement (this "Agreement") is entered into as of May
1, 2000 (the "Effective Date") between ▇▇▇▇▇▇ International Inc., a Delaware
corporation (the "Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D. (the "Consultant").
WHEREAS, the Company desires to obtain the benefit of the Consultant's
knowledge and experience by retaining the Consultant, and the Consultant desires
to accept such position, upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, the adequacy and sufficiency of which are hereby acknowledged,
the Company and the Consultant hereby agree as follows:
1. Term of Agreement. The Company hereby agrees to retain the Consultant
as a consultant, and the Consultant hereby agrees to be retained by the Company,
upon the terms and subject to the conditions hereof for the period (the
"Consulting Period") commencing on the Effective Date and ending on the date
which is the tenth annual anniversary of the Effective Date, unless earlier
terminated pursuant to Section 5 hereof.
2. Consulting Services. During the Consulting Period, the Consultant
shall make himself available to perform consulting services with respect to the
businesses conducted by the Company. Such consulting services shall be related
to such matters as the Chief Executive Officer of the Company may designate from
time to time. The Consultant shall comply with reasonable requests for the
Consultant's consulting services and shall devote reasonable time and his
reasonable best efforts, skill and attention to the performance of such
consulting services, including travel reasonably required in the performance of
such consulting services.
3. Independent Contractor Status. The Consultant shall perform the
consulting services described in Section 2 hereof as an independent contractor
without the power to bind or represent the Company for any purpose whatsoever.
The Consultant shall not, by virtue of being a consultant hereunder, be eligible
to receive any employee benefits for which officers or other employees of the
Company are eligible at any time. The Consultant hereby acknowledges his
separate responsibility for all federal and state withholding taxes, Federal
Insurance Contribution Act taxes and workers' compensation and unemployment
compensation taxes, if applicable, and agrees to indemnify and hold the Company
harmless from any claim or liability therefor.
4. Compensation. As compensation for the consulting services to be
performed by the Consultant hereunder, the Consultant shall upon the completion
of each year during the Consulting Period earn the right to receive, subject to
Section 4 of the Restricted Stock Award Agreement attached hereto as Exhibit 1
(the "Restricted Stock"), 1,000 of the restricted shares of Company common stock
described in the Restricted Stock Award on the anniversary of the Effective
Date. The Company shall reimburse the Consultant, in accordance with the
Company's policies and procedures,
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for all proper expenses incurred by the Consultant in providing consulting
services hereunder.
5. Termination.
(a) This Agreement may be terminated at any time by the Company upon
written notice to the Consultant, or by the Consultant upon written notice
to the Company at which time the Restricted Stock earned by the Consultant
shall vest or be forfeited as specified in Section 4 of the Restricted
Stock Award Agreement.
(b) In the event of termination by the Company pursuant to paragraph (a)
above or termination due to Disability (as defined in the Restricted Stock
Award Agreement) or death, the Consultant shall earn for the year in which
such termination occurred a pro rata share of the 1,000 shares which would
have been earned by the Consultant pursuant to Section 4 hereof upon the
completion of such year, and the Company shall reimburse the Consultant for
expenses incurred by the Consultant pursuant to Section 4 hereof prior to
the date of such termination. Such pro rata share shall be determined by
multiplying 1,000 by a fraction, the numerator of which is the number of
months beginning on May 1 and ending on the date the Company terminates the
Consultant's employment (rounding up to the next month), and the
denominator of which is 12.
6. Noncompetition; Nonsolicitation.
(a) The Consultant acknowledges that during the Consulting Period he will
become familiar with trade secrets and other confidential information
concerning the Company and its subsidiaries and that his services will be
of special, unique and extraordinary value to the Company and its
subsidiaries.
(b) The Consultant agrees that during the Consulting Period he shall not
(i) in any manner, directly or indirectly, induce or attempt to induce any
employee of the Company or any of its subsidiaries to terminate or abandon
his or her employment for any purpose whatsoever or (ii) in connection with
any business, in which the Consultant was involved or had knowledge, being
conducted by, or contemplated by, the Company or any of its subsidiaries
during the Consulting Period in any geographic area in which the Company or
any of its subsidiaries is then conducting such business, call on, service,
solicit or otherwise do business with any customer of the Company or any of
its subsidiaries.
(c) If, at any time of enforcement of this Section 6, a court or an
arbitrator holds that the restrictions stated herein are unreasonable under
circumstances then existing, the parties hereto agree that the maximum
period, scope or geographical area reasonable under such circumstances
shall be substituted for the stated period, scope or area and that the
court or arbitrator shall be allowed to revise the restrictions contained
herein to cover the maximum period, scope and area permitted by law. This
Agreement shall not authorize a court or arbitrator to increase or broaden
any of the restrictions in this Section.
7. Confidentiality. The Consultant shall not, at any time during the
Consulting Period or thereafter, make use of or disclose, directly or
indirectly, any (i) trade secret or other confidential or secret information of
the Company or of any of its
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subsidiaries or (ii) other technical, business, proprietary or financial
information of the Company or of any of its subsidiaries not available to the
public generally or to the competitors of the Company or to the competitors of
any of its subsidiaries ("Confidential Information"), except to the extent that
such Confidential Information (a) becomes a matter of public record or is
published in a newspaper, magazine or other periodical available to the general
public, other than as a result of any act or omission of the Consultant, (b) is
required to be disclosed by any law, regulation or order of any court or
regulatory commission, department or agency, provided that the Consultant gives
prompt notice of such requirement to the Company to enable the Company to seek
an appropriate protective order, or (c) is necessary to perform properly the
Consultant's duties under this Agreement. Promptly following the termination of
the Consulting Period, the Consultant shall surrender to the Company all
records, memoranda, notes, plans, reports, computer tapes and software and other
documents and data which constitute Confidential Information which he may then
possess or have under his control (together with all copies thereof).
8. Enforcement. The parties hereto agree that the Company and its
subsidiaries would be damaged irreparably in the event that any provision of
Section 6 or 7 of this Agreement were not performed in accordance with its terms
or were otherwise breached and that money damages would be an inadequate remedy
for any such nonperformance or breach. Accordingly, the Company and its
successors and permitted assigns shall be entitled, in addition to other rights
and remedies existing in their favor, to an injunction or injunctions to prevent
any breach or threatened breach of any of such provisions and to enforce such
provisions specifically (without posting a bond or other security). The
Consultant agrees that he will submit himself to the personal jurisdiction of
the courts of the State of Illinois in any action by the Company to enforce an
arbitration award against him or to obtain interim injunctive or other relief
pending an arbitration decision.
9. Representations. The Consultant represents and warrants to the Company
that (i) the execution, delivery and performance of this Agreement by the
Consultant does not and will not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to
which the Consultant 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 the Consultant, enforceable in accordance
with its terms.
10. Survival. Sections 7 and 8 of this Agreement shall survive and
continue in full force and effect in accordance with their respective terms,
notwithstanding any termination of the Consulting Period.
11. Arbitration. Any dispute or controversy between the Company and the
Consultant, whether arising out of or relating to this Agreement, the breach of
this Agreement, or otherwise, shall be settled by arbitration in Chicago
administered by the American Arbitration Association, with any such dispute or
controversy arising under this Agreement being so administered in accordance
with its Commercial Rules then in effect, and judgment on the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof. The
arbitrator shall have the authority to award any remedy or relief that a court
of competent jurisdiction could order or grant, including,
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without limitation, the issuance of an injunction. However, either party may,
without inconsistency with this arbitration provision, apply to any court having
jurisdiction over such dispute or controversy and seek interim provisional,
injunctive or other equitable relief until the arbitration award is rendered or
the controversy is otherwise resolved. Except as necessary in court proceedings
to enforce this arbitration provision or an award rendered hereunder, or to
obtain interim relief, neither a party nor an arbitrator may disclose the
existence, content or results of any arbitration hereunder without the prior
written consent of the Company and the Consultant. The Company and the
Consultant acknowledge that this Agreement evidences a transaction involving
interstate commerce. Notwithstanding any choice of law provision included in
this Agreement, the United States Federal Arbitration Act shall govern the
interpretation and enforcement of this arbitration provision.
12. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed given when (i) delivered
personally or by overnight courier to the following address of the other party
hereto (or such other address for such party as shall be specified by notice
given pursuant to this Section) or (ii) sent by facsimile to the following
facsimile number of the other party hereto (or such other facsimile number for
such party as shall be specified by notice given pursuant to this Section), with
the confirmatory copy delivered by overnight courier to the address of such
party pursuant to this Section:
If to the Company, to:
General Counsel
▇▇▇▇▇▇ International Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Consultant, to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
13. Severability. Whenever possible, each provision of this 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 applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this
Agreement or the validity, legality or enforceability of such provision in 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.
14. Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter hereof and
supersedes and preempts any prior understandings, agreements or representations
by
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or between the parties, written or oral, which may have related in any manner to
the subject matter hereof.
15. Successors and Assigns. This Agreement shall be enforceable by the
Consultant and his heirs, executors, administrators and legal representatives,
and by the Company and its successors and assigns.
16. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Illinois without
regard to principles of conflict of laws.
17. Amendment and Waiver. The provisions of this Agreement may be amended
or waived only by the written agreement of the Company and the Consultant, 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. Counterparts. This Agreement may be executed in two counterparts,
each of which shall be deemed to be an original and both of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
▇▇▇▇▇▇ INTERNATIONAL INC.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr.
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Title: Chairman and Chief Executive Officer
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, PH.D.
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D.
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EXHIBIT 1
▇▇▇▇▇▇ INTERNATIONAL INC.
RESTRICTED STOCK AWARD AGREEMENT
▇▇▇▇▇▇ International Inc., a Delaware corporation (the "Company"),
hereby grants to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D. (the "Holder") as of July 13, 2000 (the
"Grant Date"), pursuant to the provisions of the ▇▇▇▇▇▇ International Inc. 2000
Incentive Compensation Program (the "Plan"), a Restricted Stock Award (the
"Award") of 10,000 shares of ▇▇▇▇▇▇ International Inc. common stock, upon and
subject to the restrictions, terms and conditions set forth below. Capitalized
terms not defined herein shall have the meanings specified in the Plan.
1. Execution of Stock Powers. The Holder agrees to execute and
return such irrevocable stock powers as may be requested by the Company in order
to facilitate the transfer to the Company (or its assignee or nominee) of all or
a portion of the shares subject to the Award, if shares are not earned pursuant
to Section 4 of the Consulting Agreement, if forfeited pursuant to Paragraph 4
hereof or if required under applicable laws or regulations. As soon as
practicable after the Holder has executed such stock powers and returned them to
the Company, the Company shall cause to be issued in the Holder's name a stock
certificate or certificates representing the total number of shares subject to
the Award. Such certificates shall be held by the Company until delivered to
the Holder pursuant to Section 3 below.
2. Rights as a Stockholder. The Holder shall have the right to vote
the shares subject to the Award and to receive dividends and other distributions
thereon unless and until, and only to the extent, such shares are forfeited
pursuant to Paragraph 4 hereof; provided, however, that a dividend or other
distribution with respect to such shares (including, without limitation, a stock
dividend or stock split), other than a regular cash dividend, shall be delivered
to the Company (and the Holder shall, if requested by the Company, execute and
return one or more irrevocable stock powers related thereto) and shall be
subject to the same restrictions as the shares with respect to which such
dividend or other distribution was made.
3. Custody and Delivery of Certificates Representing Shares. The
Company shall hold the certificate or certificates representing the shares
subject to the Award until the shares have been earned pursuant to Section 4 of
the Consulting Agreement and vested pursuant to Paragraph 4 hereof, and the
Company shall as soon thereafter as practicable deliver the certificate or
certificates for the earned and vested shares to the Holder and destroy the
stock power or powers relating to such shares.
4. Restriction Period and Vesting. (a) The shares earned under
Section 4 of the Consulting Agreement shall vest on the earlier of May 1, 2010
and the date specified by Section 4(b) hereof (relating to involuntary
termination or termination due to death or disability) or Section 11.10 of the
Plan (relating to vesting upon a Change in Control) (the period beginning on the
Grant Date and ending on the date on which the shares vest shall be referred to
as the "Restriction Period").
(b) If the Holder's services to the Company terminate by reason of
disability (as determined under the terms of the Baxter Long-Term Disability
Plan) ("Disability"), death or involuntary termination by the Company, the
earned shares under the Award shall become fully vested as of the effective date
of the Holder's termination of service.
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(c) If the Holder's services to the Company terminate for any reason
other than Disability, death or involuntary termination by the Company, the
entire Award (including earned shares) is forfeited by the Holder and shall be
cancelled by the Company.
5. Termination of Award. In the event that the Holder forfeits the
shares subject to the Award, the Award shall terminate.
6. Additional Terms and Conditions of Award.
6.1. Nontransferability of Award. During the Restriction Period, the
shares subject to the Award may not be transferred by the Holder other than by
will, the laws of descent and distribution or pursuant to beneficiary
designation procedures approved by the Company. Except to the extent permitted
by the foregoing, during the Restriction Period, the shares subject to the Award
may not be sold, transferred, assigned, pledged, hypothecated, encumbered or
otherwise disposed of (whether by operation of law or otherwise) or be subject
to execution, attachment or similar process. Upon any attempt to so sell,
transfer, assign, pledge, hypothecate or encumber, or otherwise dispose of such
shares, the Award shall immediately become null and void.
6.2. Adjustment. In the event of any stock split, stock dividend,
recapitalization, reorganization, merger, consolidation, combination, exchange
of shares, liquidation, spin-off or other similar change in capitalization or
event, or any distribution to holders of shares other than a regular cash
dividend, the number and class of securities subject to the Award shall be
appropriately adjusted by the Committee. If any adjustment would result in a
fractional security being subject to the Award, the Company shall pay the Holder
in connection with the vesting, if any, of such fractional security, an amount
in cash determined by multiplying (i) such fraction (rounded to the nearest
hundredth) by (ii) the fair market value on the vesting date. The decision of
the Committee regarding any such adjustment shall be final, binding and
conclusive.
6.3. Compliance with Applicable Law. The Award is subject to the
condition that if the listing, registration or qualification of the shares
subject to the Award upon any securities exchange or under any law, or the
consent or approval of any governmental body, or the taking of any other action
is necessary or desirable as a condition of, or in connection with, the vesting
or delivery of shares hereunder, the shares subject to the Award shall not vest
or be delivered, in whole or in part, unless such listing, registration,
qualification, consent or approval shall have been effected or obtained, free of
any conditions not acceptable to the Company. The Company agrees to use
reasonable efforts to effect or obtain any such listing, registration,
qualification, consent or approval.
6.4. Delivery of Certificates. Upon the vesting of the Award, the
Company shall deliver or cause to be delivered one or more certificates
representing the number of earned vested shares. The Company shall pay all
original issue or transfer taxes and all fees and expenses incident to such
delivery.
6.5. Award Confers No Rights to Employment. In no event shall the
granting of the Award or its acceptance by the Holder give or be deemed to give
the Holder any right to employment by the Company or any affiliate of the
Company.
6.6. Decisions of Board or Committee. The Board or the Committee
shall have the right to resolve all questions which may arise in connection with
the Award. Any interpretation, determination or other action made or taken by
the Board or the Committee regarding the Plan or this Agreement shall be final,
binding and conclusive.
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6.7. Agreement Subject to the Plan. This Agreement is subject to the
provisions of the Plan and shall be interpreted in accordance therewith. The
Holder hereby acknowledges receipt of a copy of the Plan.
7. Miscellaneous Provisions.
7.1. Meaning of Certain Terms. As used herein, the term "vest" shall
mean no longer subject to forfeiture. References in this Agreement to sections
of the Code shall be deemed to refer to any successor section of the Code or any
successor internal revenue law.
7.2. Successors. This Agreement shall be binding upon and inure to
the benefit of any successor or successors of the Company and any person or
persons who shall, upon the death of the Holder, acquire any rights hereunder in
accordance with this Agreement or the Plan.
7.3. Notices. All notices, requests or other communications provided
for in this Agreement shall be made, if to the Company, to the Company, or its
designated representative at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
Human Resources, and if to the Holder, to the address set forth for the Holder
on the records of the Company. All notices, requests or other communications
provided for in this Agreement shall be made in writing either (a) by personal
delivery to the party entitled thereto, (b) by facsimile with confirmation of
receipt, (c) by mailing in the United States mails to the last known address of
the party entitled thereto or (d) by express courier service. The notice,
request or other communication shall be deemed to be received upon personal
delivery, upon confirmation of receipt of facsimile transmission, or upon
receipt by the party entitled thereto if by United States mail or express
courier service; provided, however, that if a notice, request or other
communication is not received during regular business hours, it shall be deemed
to be received on the next succeeding business day of the Company.
7.4. Governing Law. This Agreement, the Award and all determinations
made and actions taken pursuant hereto and thereto, to the extent not otherwise
governed by the laws of the United States, shall be governed by the laws of the
State of Illinois and construed in accordance therewith without giving effect to
conflicts of laws principles.
▇▇▇▇▇▇ INTERNATIONAL INC.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr.
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