EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into this 27th day of May, 1999,
by and between EWOK ACQUISITION CORP., a Massachusetts corporation (hereinafter
"EWOK"), and XXXXXXXXX X. XXXXX (hereinafter "XXXXX").
WHEREAS, EWOK is proposing to acquire XXXXX' present employer, ENDOGEN,
Inc. (hereinafter "CORPORATION") in which event the operations of EWOK and
CORPORATION will merge; and
WHEREAS, assuming said merger is consummated and the contingencies set
forth in Section 8.2 below are satisfied, EWOK wishes to employ XXXXX as its
Vice President of Product Development and Technology under the terms and
conditions set forth in this Agreement; and
WHEREAS, in such event XXXXX wishes to be employed by EWOK as its Vice
President of Development and Technology under those same terms and conditions.
NOW, THEREFORE, in consideration of the above and the promises and
agreements set forth in this Agreement, the parties agree as follows:
1 EMPLOYMENT.
EWOK agrees to employ XXXXX and XXXXX accepts employment with
EWOK as its Vice President of Development and Technology.
2 DUTIES AND RESPONSIBILITIES.
As Vice President of Development and Technology, XXXXX will
devote her entire time, attention and energy to such duties, shall
perform the duties and assignments usually associated with that position
and such other duties and assignments, consistent with her position as
Vice President of Development and Technology of EWOK, as may be assigned
to her from to time-to-time by the Chairman of the Board of Directors of
EWOK or his
designee. The above notwithstanding, EWOK reserves the right
following the merger to change XXXXX' job title after the employment
date (as defined in Section 8.2 below) provided that such does not
result in a substantial diminution of XXXXX' job responsibilities as
they existed on the effective date of this Agreement.
XXXXX will not during the term of this Agreement be engaged in
any other business or employment (including self-employment) without the
express written consent of the chairman of the Board of Directors of
EWOK or his designee. However, with the advance approval of EWOK
(through the Chairman of its Board of Directors or his designee), XXXXX
may serve on the Boards of Directors of charitable organizations and/or
outside corporations provided such activities do not constitute an
actual or potential conflict of interest with and/or unduly interfere
with the performance of XXXXX' duties and responsibilities hereunder.
3 COMPENSATION.
3.1 Base Salary.
For all services rendered by XXXXX under this Agreement,
EWOK will pay an initial base salary of $144,000.00 per calendar
year (which shall be pro-rated for partial calendar years
hereunder), payable in equal installments on a schedule
consistent with EWOK's payroll practices for executive employees.
EWOK shall deduct from that base salary (as well as any
adjustments to base salary pursuant to Section 3.2 below) all
state and federal taxes and other assessments required by law.
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3.2 Adjustments to Base Salary.
The Chairman of the Board of Directors of EWOK or his
designee shall review XXXXX' salary and performance on an annual
basis (commencing on or about January 1, 2000, and on or about
January 1 of each succeeding year while XXXXX remains employed by
EWOK) and may, in his discretion, make increases to the base
salary based upon XXXXX' performance in the preceding year.
Adjustments to the base salary, if any, shall be effective as of
January 1 of the involved year. 3.3 Bonuses.
XXXXX shall be entitled to earn up to an additional
$36,000.00 per calendar year in keeping with the provisions of a
bonus plan which shall, hereafter, be mutually agreed upon by
XXXXX and EWOK. The terms of that bonus plan (including
eligibility factors therefor) shall be agreed upon by EWOK
(through the Chairman of its Board of Directors or his designee)
and XXXXX within ninety (90) days of the effective date of this
Agreement.
3.4 Vehicle Allowance.
XXXXX shall receive a vehicle allowance equivalent to the
sum of $6,000.00 per calendar year (which shall be pro-rated for
partial calendar years hereunder) which shall be payable as
income to XXXXX and, therefore, subject to the deduction of all
state and federal taxes and other assessments required by law.
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4 BENEFITS AND PERQUISITES.
Subject to applicable federal and state tax regulations, XXXXX
shall receive the following benefits and perquisites from EWOK:
4.1 Insurance.
XXXXX shall be eligible for medical insurance (including
coverage for eligible dependents), disability insurance and life
insurance coverages under the same terms and conditions as those
benefits are made available to similarly-situated executive
employees of EWOK. 4.2 Vacation.
XXXXX shall be entitled to paid vacation under the same
terms and conditions as those benefits are made available to
similarly-situated executive employees of EWOK. The use and
scheduling of that vacation by XXXXX shall be consistent with
requirements of her position and shall not interfere with the
performance of her responsibilities as Vice President of
Development and Technology of EWOK.
4.3 Expense Account.
EWOK agrees to pay on XXXXX' behalf all reasonable and
customary business-related expenses incurred by her in the
provision of services under this Agreement. Included within this
obligation are all customer entertainment, business travel and
other expenses reasonably attributable to the provision of
services under this Agreement. Payment of expense account items
are subject to the approval of the
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Chairman of the Board of Directors (or his designee) of EWOK and
should be submitted by XXXXX for approval on a monthly basis.
5 NON-DISCLOSURE/NON-COMPETITION.
5.1 Non-Disclosure.
XXXXX recognizes and acknowledges that information
obtained by her during the course of her employment with EWOK,
its trade secrets, business and customers, is confidential
information. The parties to this Agreement further stipulate that
the information referred to in Section 5 of this Agreement is
sufficiently secret that EWOK derives economic value from the
information remaining confidential and not being generally known
to other persons who can obtain economic value from its
disclosure or use. XXXXX also acknowledges that EWOK has taken
precautions, such as this Agreement, to keep such information
confidential. XXXXX will not, both during and after the
termination of this Agreement (for whatever reason), disclose or
communicate to any person, firm, corporation or other entity, in
any manner, any trade secrets, proprietary or confidential
information of EWOK, CORPORATION and/or PerBio Science AB. Such
information includes, but is not limited to, the following:
Technical or Non-Technical Data, Formula, Patterns,
Compilations, Devices, Methods, Techniques, Drawings,
Processes, Customer Lists, Business and/or Marketing
Development Plans or Information or other data of a
similar nature or description.
The above provisions shall be inapplicable to the
disclosure of information which (1) was part of the public domain
prior to the effective date of this Agreement, (2) is required as
part of a legal proceeding (but only to the extent that the
disclosure of the
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information is legally compelled) and/or (3) information that
becomes part of the public domain as the result of the disclosure
of such information by third parties through no fault, direct or
indirect, of XXXXX.
5.2 Non-Competition.
XXXXX acknowledges the substantial time and effort
expended by EWOK and CORPORATION in establishing the
long-standing relationships they have with their customers. XXXXX
agrees that during her employment with EWOK and for a period of
one (1) year following termination of her employment with EWOK
(for whatever reason), she will not, directly or indirectly,
either for herself or for any other person, firm, partnership,
agency, corporation or other entity, compete in their lines of
business with EWOK, CORPORATION, PerBio Science AB and/or its or
their respective subsidiaries or affiliates for which XXXXX had
material responsibility during the course of her employment with
EWOK or CORPORATION or solicit, call upon, divert or take away or
attempt to solicit, divert or take away from EWOK, CORPORATION,
PerBio Science AB and/or its or their respective subsidiaries or
affiliates for which XXXXX had material responsibility during the
course of her employment with EWOK or CORPORATION any of their
actual or potential customers nor assist any other person or
entity in doing so within the United States of America. XXXXX
represents that her experience and capabilities are such that she
can obtain employment in a non-competitive area and that, in the
event of the termination of this Agreement, enforcement of this
covenant by way of injunction will not impair or prevent XXXXX
from earning a livelihood.
5.3 Rights and Remedies.
The parties further stipulate that the matters covered in
this Agreement are important, material, confidential and gravely
affect the successful conduct, business and
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good-will of EWOK and/or PerBio Science AB. The parties agree that
EWOK and/or PerBio Science AB may enforce this Agreement by
seeking equitable and injunctive relief, as well as monetary
damages, attorneys' fees and costs of suit. The obligations set
forth in this Section 5 shall survive the "term" or the
termination of this Agreement pursuant to the provisions of
Sections 6 or 7 below, for whatever reason.
5.4 Separability.
EWOK and XXXXX agree that the character, duration and
geographic scope of the provisions set forth in this Section 5
are reasonable in light of the circumstances as they exist on the
date hereof. Should a decision, however, be made at a later date
by a court of competent jurisdiction that the character, duration
or geographic scope of said provisions is unreasonable, it is the
intention and the agreement of XXXXX and EWOK that the provisions
of this Section 5 shall be construed by the court in such a
manner as to impose only those restrictions on XXXXX' conduct
that are reasonable in light of the circumstances and as are
necessary to assure to EWOK and/or PerBio Science AB the benefits
provided under Section 5. If, in a judicial proceeding, a court
shall refuse to enforce all of the separate promises included
therein because taken together they are more extensive than
necessary to assure EWOK and/or PerBio Science AB the intended
benefits of Section 5, it is expressly understood and agreed by
the parties hereto that the provisions of Section 5 that, if
eliminated, would permit the remaining separate provisions to be
enforced in such proceeding shall be deemed eliminated for
purposes of such proceeding from Section 5.
6 TERM.
The initial term of this Agreement is for a period of two (2)
years, commencing on the "employment date" (as defined in Section 8.2
below) and terminating two (2) years hence, unless
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sooner terminated pursuant to the provisions of this Agreement. In the
event that EWOK does not intend to renew this agreement upon the
completion of its initial term, EWOK shall provide XXXXX with a minimum
of ninety (90) days advance written notice prior to the expiration date
of this Agreement's initial term; in the event of such advance written
notice, EWOK may, in its discretion, place XXXXX on a leave of absence
for all or any portion of that ninety (90) day period. Provided, however,
that the failure to provide the notice required hereunder shall not
result in the extension of the term of this Agreement unless the parties
have mutually agreed, in writing, to such an extension.
7 TERMINATION.
7.1 Term.
The Agreement shall expire upon the expiration of its term
unless otherwise sooner terminated by the parties' written mutual
agreement or pursuant to the remaining provisions of this Section
7.
7.2 Termination for Cause.
EWOK may terminate this Agreement prior to the expiration
of its term for cause without further obligation to XXXXX
hereunder. For purposes of this Agreement, "for cause" includes
the following:
(a) an intentional act of fraud, embezzlement, theft or any
other material violation of the law including those
involving dishonesty in connection with XXXXX' duties or
in the course of her employment with EWOK or the
commission of a felony; or
(b) intentional wrongful damage to material assets of EWOK; or
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(c) intentional wrongful disclosure of material confidential
information of EWOK;
or
(d) intentional conduct by XXXXX which has resulted or may
result in financial loss and legal liability to EWOK which
is materially injurious to EWOK.
No act, or failure to act, on the part of XXXXX, shall be deemed
"intentional" if it was due primarily to an error in judgment or
negligence, but shall be deemed "intentional" only if done, or
omitted to be done, by XXXXX not in good faith and without
reasonable belief that her action or omission was in the best
interests of EWOK. In the event of a termination "for cause"
under the provisions of this Section 7.2, XXXXX shall not be
entitled to the salary continuation provided in Section 7.6
below.
7.3 Termination Without Cause.
XXXXX may terminate this Agreement upon the provision of
six (6) months written notice to EWOK. Similarly, EWOK may, in
its discretion, terminate this Agreement without cause upon the
provision of six (6) months written notice to XXXXX provided that
EWOK thereafter complies with the applicable provisions of
Section 7.6 below.
In the event of written notice of termination by XXXXX or
EWOK under this Section, EWOK may, in its discretion, place XXXXX
on a leave of absence for all or any portion of that six (6)
month notice period up to and including the effective date of
XXXXX' termination from employment.
7.4 Termination Upon Death or Disability.
EWOK may terminate this Agreement without further
obligation to XXXXX hereunder upon the death or permanent
disability of XXXXX. For purposes of this Agreement, the
"permanent disability" of XXXXX shall be deemed to occur if the
Board
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of Directors of EWOK determines, based upon competent
medical evidence, that XXXXX is unable to substantially perform
the services required of her, hereunder, with or without a
reasonable accommodation, for a continuous period of ninety (90)
days or more. XXXXX shall cooperate with EWOK in providing
medical information necessary for EWOK to assess the parties'
respective duties and obligations under the provisions of this
Section.
7.5 Termination by XXXXX for "Good Reason"
XXXXX' employment under this Agreement may be terminated
for good reason (as set forth below) by written notice from her
to the Chairman of the Board of Directors of EWOK at least thirty
(30) days prior to a date of termination subsequent to the
occurrence of any of the following events:
(a) a reasonable determination by XXXXX in good faith that
there has been a significant adverse change in the nature
or scope of XXXXX' responsibilities, authorities, powers,
functions or duties; or
(b) a reduction in XXXXX' monetary compensation; or
(c) the relocation of XXXXX' offices at which XXXXX is
principally employed to a location more than 50 miles from
the location where XXXXX is principally employed; or
(d) the failure by EWOK to pay to XXXXX any portion of her
current compensation or the failure by EWOK to continue in
effect any material compensation, incentive, bonus or
benefit plan in which XXXXX participates pursuant to the
provisions of this Agreement unless an equitable
arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to such plan,
or the failure by EWOK to continue XXXXX' participation
therein (or in such
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substitute or alternative plan) on a basis not materially
less favorable, both in terms of the amount of benefits
provided and the level of XXXXX' participation, relative
to the other participants.
The above provisions notwithstanding, "good reason" shall not be
deemed to exist if any or all of the events noted in this Section
7.5 have been agreed upon in advance by XXXXX and EWOK.
7.6 Salary Continuation.
Subject to the provisions of this Section 7.6, XXXXX will
be provided with salary continuation upon termination of this
Agreement prior to its term as specified below. If a termination
during the term of this Agreement occurs pursuant to the
provisions of Section 7.3 above due to notice of termination
provided by EWOK, or in the event that this Agreement is not
renewed and XXXXX' employment is terminated at the expiration of
its initial term (as provided in Section 6 above), XXXXX' salary
(as provided in Section 3.1 above) shall be continued for a
period of twelve (12) months from the effective date of
termination; provided, however, that in no event shall XXXXX
receive salary continuation if she has provided notice of
termination to EWOK pursuant to the provisions of Section 7.3 or
if the Agreement has been terminated "for cause" as specified in
Section 7.2 above. Further, in the event of XXXXX' termination of
this Agreement for "good reason" (as specified in Section 7.5
above), XXXXX' salary (as provided in Section 3.1 above) shall be
continued for a period of twelve (12) months from the effective
date of termination.
The above notwithstanding, XXXXX shall not be entitled to
the salary continuation provided in this Section 7.6 unless and
until she has signed and delivered to EWOK a binding agreement in
a form acceptable to EWOK setting forth a release of
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any and all claims arising from her employment, termination from
employment and termination of this Agreement with EWOK. During
the period of salary continuation (regardless of duration), XXXXX
shall not be entitled to continuation of the other benefits or
perquisites provided in this Agreement unless otherwise required
by law or by the mutual agreement of the parties hereto. Further,
in no event shall XXXXX be entitled to receive multiple payments
of salary continuation under the provisions of this Section 7.6
should her termination from employment with EWOK be claimed or
determined to be attributable, in whole or in part, to two or
more of the reasons specified in this Section.
7.7 Property of the Business.
Upon XXXXX' termination of employment (for any reason),
all memoranda, notes, lists, records and other documents or
papers (and all copies thereof) including items stored in
computer memories, on microfiche or by any other means, made or
compiled by or on behalf of XXXXX, or made available to XXXXX
relating to the business of EWOK, are and shall be EWOK's
property and shall, if in the possession of XXXXX, be promptly
delivered to EWOK.
8 MODIFICATION; CONTINGENCIES AND ASSIGNMENT.
8.1 Modification.
This Agreement may not be modified except in writing
signed by both parties.
8.2 Contingencies and Assignment.
The obligations of XXXXX and EWOK under this Agreement are
contingent upon EWOK's consummation of its merger with
CORPORATION as set forth below. For purposes of this Agreement,
the consummation of that merger and XXXXX' "employment date"
shall be deemed to have occurred on the date, if any, on which
EWOK accepts for
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payment shares tendered pursuant to EWOK's tender offer for all
of the issued and outstanding common stock of CORPORATION. In the
event that said contingency is not fully satisfied and the tender
offer is not consummated, all obligations pursuant to this
Agreement and the provisions of this Agreement shall be null,
void and no longer in force or effect.
It is expressly agreed that the duties, rights and
obligations of EWOK and XXXXX under this Agreement shall be
transferred to any entity with which EWOK may merge on or
following the "employment date" as set forth above. Additionally,
EWOK or that entity may further assign such duties, rights and
obligations to other entities following said merger provided said
assignment is to a subsidiary of PerBio Science AB. EWOK or that
entity shall provide XXXXX with written notice of said
assignments; in that event, the obligations of XXXXX and EWOK as
set forth in this Agreement shall, thereafter, be applicable to
the entity identified in that notice. Except as specifically
provided in this Section 8.2, the duties, rights and obligations
set forth in this Agreement shall not otherwise be assignable by
EWOK or XXXXX to any other corporation or other entity without
the other party's approval, in writing.
9 GOVERNING LAW.
The performance and interpretation of this Agreement shall be
construed in accordance with the laws of the State of Massachusetts.
10 WAIVER.
Waiver of any breach of the terms and conditions of this
Agreement shall not be construed to be a waiver of any preceding or
succeeding breach of the same or different term or condition of this
Agreement, and this Agreement shall continue and remain in full for and
effect as if no waiver had occurred.
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11 NOTICE.
Notices shall be deemed delivered and received as of the date of
the U.S. Postal Service postmark. Any notice required by this Agreement
shall be sent by certified mail, return receipt requested, to the
following addresses:
To: EWOK
c/o Chairman of the Board
c/o Endogen, Inc.
00 Xxxxxxxx Xxx
Xxxxxx, XX 00000
with a copy to:
Xx. Xxxx Xxxxxxxx
Xxxxxx Chemical Co.
0000 Xxxxxxxx Xx.
Xxxxxxxx, XX 00000
To: XXXXXXXXX X. XXXXX
0 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
12 SEVERABILITY.
In the event any of the terms and provisions of this Agreement
are determined to be invalid or unlawful, the remaining provisions of
this Agreement will continue in full force and effect to the fullest
extent permitted by law. The parties expressly agree that a court of
competent jurisdiction may modify the provisions of this Agreement so as
to make the Agreement enforceable.
13 WARRANTY.
XXXXX hereby warrants that neither the entry into this Employment
Agreement nor its performance by XXXXX will conflict with or result in a
breach of the terms, conditions or
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privileges of any agreement or other obligation of any nature to which
XXXXX is a party, or by which XXXXX is bound, including without
limitation, any employment agreements, non-competition agreements or
confidentiality agreements previously entered into by XXXXX. EXECUTED on
the 27th day of May, 1999.
EWOK ACQUISITION CORP., a Massachusetts
corporation
By: /s/ XXXX X. XXXXXXXX /s/ XXXXXXXXX X. XXXXX
Its: President --------------------------
------------------------------- XXXXXXXXX X. XXXXX
ATTEST:
/s/
------------------------------------
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