EXHIBIT 10.14
UroCor, Inc.
Xxxxxxx X. Xxxxxxxx
AGREEMENT
This Agreement (this "Agreement") is executed on this 17th day of
December, 1999 (the "Execution Date"), and is made effective for all purposes
and in all respects as of October 26, 1999 (the "Effective Date"), by and
between UroCor, Inc., a Delaware corporation (the "Company"), and Xxxxxxx X.
Xxxxxxxx (the "Executive").
WHEREAS, the Executive has served the Company as its chief executive
officer since 1989;
WHEREAS, in connection with executive succession planning in respect of
the executive services rendered by the Executive, the executive resigned as
chief executive officer as of October 26, 1999, and the Board of Directors of
the Company (the "Board") elected Xxxxxxx X. Xxxxxx as his successor;
WHEREAS, the Executive's knowledge, expertise, experience and skills
are valuable to the Company and will continue to be so after the date hereof;
NOW, THEREFORE, in view of the foregoing, and in recognition of the
Executive's valuable contributions to the success of the Company, the mutual
promises and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and the Executive, intending legally to be bound, agree as follows:
1. TERM. Subject to the specific provisions for termination set forth
herein, the term of this Agreement shall be for the period beginning on the date
hereof and ending on December 31, 2001. This Agreement shall terminate upon the
occurrence of any event specified in Section 8, or upon payment of all amounts
due hereunder after the death of the Executive. The Executive shall be engaged
by the Company in accordance with the provisions hereof during the period
beginning on the date hereof and ending on the date the Agreement terminates
under the preceding provisions of this Section 1 (the "Term"). The Term shall
consist of two periods, the Initial Period and the Subsequent Period (which
shall consist of two phases, the 2000 Phase and the 2001 Phase). The Initial
Period shall commence on the date hereof and terminate on December 31, 1999. The
Subsequent Period shall commence on January 1, 2000, and terminate on the date
of expiration of the Term. The 2000 Phase shall be calendar year 2000. The 2001
Phase shall be calendar year 2001.
2. NATURE OF RELATIONSHIP. During the Initial Period, the Executive
shall be an employee of the Company. During the Subsequent Period, the Executive
shall be an independent contractor of the Company.
3. DUTIES OF EXECUTIVE.
(a) INITIAL PERIOD. During the Initial Period, the Executive
shall continue to serve the Company as Chairman of the Board and shall perform
all the proper duties, functions and authorities of that office.
(b) SUBSEQUENT PERIOD. During the Subsequent Period, the
Executive shall serve as consultant to the Company in such advisory capacities
as reasonably may be designated by the Board or the chief executive officer of
the Company (the "CEO") from time to time during the remainder of the Term, and
shall render such advisory services as are reasonably consistent with such
capacities.
(c) OTHER ACTIVITIES. Notwithstanding the provisions of this
Section 3 or any other provisions hereof, it is understood that during the
Subsequent Period, the Executive may engage in such activities on such terms and
conditions for such other person as the Executive in his sole discretion shall
desire so long as such activities do not interfere materially with or detract
materially from the Executive's performance of his duties hereunder.
Notwithstanding the immediately preceding sentence, during the period commencing
on the Effective
Date and terminating on December 31, 2001, Employee will not, directly or
indirectly, either as an employee, employer, consultant, agent, principal,
partner, stockholder, corporate officer, director or in any other individual
or representative capacity, engage or participate in any business that is
engaged in diagnostic, therapeutic or information services regarding the
urology industry within the United States of America or in any other
geographic area of the world where the Company engages or proposes to engage
in business during the Term. Notwithstanding the immediately preceding
sentence, it is agreed by the Company that the Executive may acquire an
ownership interest, directly or indirectly, of not more than 1% of the
outstanding securities of any company that is engaged in a business
competitive with the Company and that is listed on any recognized securities
exchange or quotation system in the United States, provided that such
investment is of a totally passive nature and does not involve the Executive
devoting time to the management or operations of such company.
4. COMPENSATION DURING THE INITIAL PERIOD. For all the duties to be
performed by the Executive hereunder during the Initial Period, the Executive
shall receive a base salary at an annual rate of $248,500. Such base salary
shall be payable to the Executive in installments in accordance with the
Company's policy for the payment of executive salaries as in effect from time to
time during the Initial Period.
5. COMPENSATION DURING THE SUBSEQUENT PERIOD. For all the duties to be
performed by the Executive hereunder during the Subsequent Period, the Executive
shall receive consulting fees in an aggregate amount of $300,000, with $150,000
of such fees payable on January 4, 2000, and the remaining $150,000 of such fees
payable in installments during the duration of the 2000 Phase to the Executive
in accordance with the Company's policy for the payment of executive salaries as
in effect from time to time during the Subsequent Period.
6. BENEFITS DURING THE TERM.
(a) DISABILITY COVERAGE. During the Initial Period and the
2000 Phase, the Executive shall continue to participate in any disability
program maintained by the Company in which he is a participant on the date
hereof and shall be eligible to participate in any other disability program
generally offered to executive employees of the Company from time to time
after the date hereof, or, in the event and to the extent such participation
is not permitted pursuant to the terms thereof, the Company shall provide the
Executive with substantially the same benefits thereof, to the extent that
the Executive continues to contribute to the cost thereof to the same extent
that such contribution is required of executive officers of the Company,
until the first to occur of the following: (i) the date on which coverage
ceases under the terms of the program as a result of the Executive's failure
to make timely contributions or premium payments required under the program,
(ii) the date on which the disability program is terminated without the
establishment of a successor disability program, (iii) the Executive's
employment by an employer other than the Company that maintains a disability
program in which the Executive is eligible to participate or (iv) the
expiration of the Term.
(b) GROUP LIFE AND AD&D INSURANCE. During the Initial
Period and the 2000 Phase, the Executive shall continue to participate in any
group life and accidental death and dismemberment insurance program
maintained by the Company in which he is a participant on the date hereof and
shall be eligible to participate in any other group life and dismemberment
insurance program generally offered to executive employees of the Company
from time to time after the date hereof, or, in the event and to the extent
such participation is not permitted pursuant to the terms thereof, the
Company shall provide the Executive with substantially the same benefits
thereof, to the extent that the Executive continues to contribute to the cost
thereof to the same extent that such contribution is required of executive
officers of the Company, until the first to occur of the following: (i) the
date on which coverage ceases under the terms of the program as a result of
the Executive's failure to make timely contributions or premium payments
required under the program, (ii) the date on which the program is terminated
without the establishment of a successor group life insurance program, (iii)
the Executive's employment by an employer other than the Company that
maintains any group life and accidental death and dismemberment insurance
program in which the Executive is eligible to participate or (iv) the
expiration of the Term.
(c) MEDICAL, VISION AND DENTAL BENEFITS. During the Initial
Period and the 2000 Phase, the Executive and his eligible dependents shall
continue to participate in any medical, vision and dental benefit programs
maintained by the Company under which they are covered on the date hereof and
shall be eligible to
participate in any other medical, vision or dental benefit program generally
offered to executive employees of the Company from time to time after the
date hereof, or, in the event and to the extent such participation is not
permitted pursuant to the terms thereof, the Company shall provide the
Executive with substantially the same benefits thereof, to the extent that
the Executive continues to contribute to the cost thereof to the same extent
that such contribution is required of executive officers of the Company,
until the first to occur of the following: (i) the date on which coverage
ceases under the terms of a program as a result of the Executive's failure to
make timely contributions or premium payments required under the program,
(ii) the date on which a program is terminated without the maintenance of any
successor program, (iii) the Executive's employment by an employee other than
the Company that maintains medical, vision or dental benefit program in which
the Executive is eligible to participate or (iv) the expiration of the Term,
and, in addition, upon the expiration of such coverage under any such
medical, vision or dental benefit program, the Executive and his eligible
dependents will have the right to continue coverage under the program to the
extent required under the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended.
(d) LIFE INSURANCE. During the Initial Period, the Company
shall, at its own expense, continue in force the Executive's personal life
insurance policies, the expenses of which are currently borne by the Company.
(e) VACATION. During the Initial Period, the Executive shall
continue to accrue vacation benefits in accordance with the terms of the
Company's vacation policy in effect on the date hereof.
(f) SECTION 401(k) PLAN. During the Initial Period, at the
Executive's option, he may continue to participate in the Company's qualified
cash or deferred arrangement described in section 401(k) of the Internal Revenue
Code of 1986, as amended, in accordance with the terms of such plan.
(g) STOCK PURCHASE PLAN. During the Initial Period, the
Executive shall be eligible to participate in the UroCor, Inc. 1997 Employee
Stock Purchase Plan to the extent that he satisfies the eligibility requirements
of that plan.
7. MISCELLANEOUS PROVISIONS REGARDING DUTIES, COMPENSATION AND BENEFITS.
(a) SERVICE ON BOARD OF DIRECTORS. The Company shall take all
efforts reasonably within its control to cause the Executive to remain a member
of the Board and the Chairman of the Board of Directors during the Initial
Period, subject to any actions taken or not taken by any person in respect of
compliance with any applicable fiduciary duties.
(b) EXPENSES. The Executive shall be reimbursed for his
reasonable business and travel expenses in accordance with the general
reimbursement policy of the Company then in effect with respect to its
executives and as such policy may be changed from time to time thereafter by
the Company, until the expiration of the Term, provided that the expenses are
incurred in connection with the performance of services by the Executive that
were specifically requested in advance either by the Board or the CEO, the
Executive has submitted to the Company on a timely basis such documentation
as may be necessary to substantiate such expenses and the business purpose
thereof and the Executive has received the prior approval of the CEO or the
chief financial officer of the Company for the incurrence of any expenses
that either individually or in the aggregate exceed $1,000.
(c) DEDUCTIONS. All compensation of any nature whatsoever
payable to the Executive hereunder shall be subject to deductions by the Company
in accordance with all applicable laws for applicable social security taxes,
federal, state and municipal taxes and other charges as may now be in effect or
that may hereafter be enacted or required with respect to compensation paid to
an employee or a consultant, as the case may be.
(d) LEGAL STATUS. The parties acknowledge that the Company
makes no representation or warranty with respect to the status of the
compensation paid or benefits provided to Executive hereunder under any
applicable tax or other laws or regulations.
(e) EMPLOYEE COOPERATION. The Executive agrees that he will
cooperate with the Company in connection with any claims or litigation that have
arisen or may arise from activities of the Company that occurred during the
Executive's employment with the Company. The Executive agrees to contact the
Company immediately if the Executive is contacted by any third parties
concerning such litigation or claims. The Company will pay to the Executive
reasonable compensation and reimburse all reasonable expenses in connection with
such activities (other than attorneys fees and related expenses).
(f) PROHIBITION ON RECOVERY. The Executive agrees and
covenants that the Executive shall not share in or receive any monetary benefit
from any monetary recovery or recoveries, whether in the form of a settlement,
judgment or otherwise, if any, arising out of any claim or lawsuit pursuant to
31 USCS Section 3730, et. seq. (otherwise referred to as "qui tam" action)
against the Company.
(g) RELEASE OF EMPLOYMENT CLAIMS. The Executive does hereby
for himself and his representatives, successors, heirs, executors,
administrators, legal representatives, trustees, and assigns remise, release and
forever discharge the Company and its representatives, successors, executors,
administrators, legal representatives, trustees, directors, officers and assigns
(collectively referred to herein as the "Released Parties"), of and from any and
all manner of liability, claims, demands, actions, causes of actions, suits,
debts, dues, sums of money, accounts, reckonings, bonds, bills, specialities,
covenants, contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, extends, executions, grievances, arbitrations,
administrative proceedings and all other claims of every kind and nature
whatsoever, whether in law or in equity, contract or tort, known or unknown,
arising out of the Executive's employment relationship with the Company, or
arising out of the cessation or termination of the Executive's employment or the
lack of the Company's re-employment of the Executive, including claims for
compensation or benefits, and any other claims for wrongful termination or
discrimination (the "Released Claims") from the beginning of the Executive's
employment through Execution Date. The Executive agrees and covenants that (a),
with respect to Released Claims arising after the Execution Date and on or
before the termination of the Initial Period, he shall execute and deliver to
the Company a release in the form of ANNEX A hereto and (b) he shall not xxx the
Released Parties in connection with any of the Released Claims.
(h) CORPORATE ETHICS. The Executive represents and warrants
that he is aware of, has read and has acted and conformed with the Company's
corporate ethics policy including without limitation thereto the obligation (i)
to conduct business in compliance with all applicable laws, rules and
regulations, including full compliance with the requirements for billing
government programs, (ii) to be honest in all public statements, advertising and
publicity, (iii) to avoid misrepresentation in any business dealings recognizing
that permanent business relationships can only be maintained on the basis of
honest and fair dealing, (iv) to respect the Company's obligations and the
individual's obligations, and neither express nor imply a promise or performance
which cannot reasonably be expected to fulfill, (v) to recognize that character
is a personal asset in business and give significant consideration to the
selection of individuals and companies with whom the Company does business, (vi)
to refrain from providing or accepting gifts, entertainment and other
remuneration in the guise of business expense where the intent, effect or
appearance of the gift is to influence a recipient with respect to his or her
business decision, (vii) to refrain from giving or receiving any bribes in the
form of money, favors, gifts or other items or services of value, including
so-called "kick backs" in any transaction, (viii) to avoid any real or potential
conflicts of interest and disclose any proprietary or financial interests in any
organization with which the Company does business or with which it is in
competition, which could adversely, or appear adversely to, influence the
Company's judgment, or preclude the Company from fulfilling its responsibility,
(ix) to insure that information received in confidence for the conduct of
business is not used for personal gain, or to divulge no such information with
the intent of giving or receiving personal gain, or the intent of giving or
receiving unfair advantage in a personal and competitive business situation or
transaction and (x) to recognize the dignity of all people, to be fair and
impartial in all relationships and to pursue in good faith the Company's
responsibility to offer equal opportunity in business to all people. In
connection herewith, the Executive has executed the statement of understanding
of and compliance with the corporate ethics policy and standards of conduct
attached hereto as ANNEX B. The Executive covenants and agrees that he will
continue to act and conform in accordance with the Company's corporate ethics
policy during the Term. The Executive also represents and warrants that he is
not aware of any violation of the Company's corporate ethics policy that has not
previously been reported to the Company's compliance officer for such policy.
8. TERMINATION FOR CAUSE. Upon an Event of Termination for Cause,
this Agreement shall terminate and the Company will pay to the Executive and
provide to the Executive only the compensation and benefits provided for
herein earned and due but unpaid through the date of such termination. An
"Event of Termination for Cause" shall have occurred if (a) the Executive has
been convicted by a court of competent jurisdiction of a crime involving
moral turpitude, including but not limited to fraud, theft, embezzlement or
any crime that results in or is intended to result in personal enrichment at
the expense of the Company or (b) the Executive has committed acts amounting
to gross negligence or willful misconduct to the material detriment of the
Company. Whether an Event of Termination of Cause has occurred shall be
determined by an independent arbitrator under the rules of the American
Arbitration Association.
9. SEVERABILITY. If any provision of this Agreement shall be held by
a court of competent jurisdiction invalid or unenforceable, the remainder of
this Agreement shall nevertheless remain in full force and effect. If any
provision is held by a court of competent jurisdiction invalid or
unenforceable with respect to particular circumstances, it shall nevertheless
remain in full force and effect in all other circumstances.
10. INUREMENT.
(a) This Agreement shall be binding upon, and shall inure
to the benefit of, the Company and the Executive and their respective heirs,
personal and legal representatives, successors and assigns.
(b) In the event of the death or permanent disability of
the Executive during the Term, the Company shall pay to the Executive's heirs
and personal and legal representatives all amounts that would have become
payable thereafter to the Executive pursuant to Sections 4, 5, 6 and 7(b)
hereof had he died or became permanently disabled prior to the end of the
Term and performed all services required hereunder.
11. GOVERNING LAW. This Agreement and the rights and obligations of
the parties hereunder shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Oklahoma and, to the extent
controlling, applicable federal laws of the United States of America.
12. NOTICES. Any notice required to be given shall be sufficient if
it is in writing, hand delivered or sent by certified or registered mail,
return receipt requested, first-class postage prepaid, in the case of the
Executive, to his residence at the address set forth on the signature page
hereof or such other address of which the Executive may hereafter notify the
Company, and, in the case of the Company, to the office address of the CEO
set forth on the signature page hereof or such other address of which the
Company may hereafter notify the Executive.
13. ENTIRE AGREEMENT. Except as specified herein, this Agreement
contains the entire agreement and understanding by and between the Company
and the Executive with respect to the subject matter hereof, and supersedes
all other representations, promises, agreements, and understandings or
negotiations between the parties regarding the subject matter hereof, whether
written or oral, not contained herein, including without limitation thereto,
that certain Employment Agreement dated as of January 1, 1990, between the
Company and the Executive and, effective as of December 31, 1999, that
certain Change in Control Agreement dated as of October 21, 1998, between the
Company and the Executive. Notwithstanding the foregoing, nothing in this
Agreement shall supersede the Non-Competition and Non-Disclosure Agreement,
dated as of January 1, 1990, between the Company and the Executive, which
agreement the Company and the Executive hereby (a) amend to delete Section
1(c) therefrom and (b), as so amended, acknowledge, confirm and agree is in
full force and effect, a true and complete copy of which is attached hereto
as ANNEX C. In addition, notwithstanding the foregoing, nothing in this
Agreement shall supersede the Indemnity Agreement dated as of February 17,
1998, between the Company and the Executive, which agreement the Company and
the Executive hereby confirm and agree is in full force and effect, a true
and complete copy of which is attached hereto as ANNEX D.
14. AMENDMENTS AND WAIVERS. No change or modification of this
Agreement shall be valid or binding unless it is in writing and signed by the
party to be charged thereby. No valid waiver of any provision of this
Agreement at any time shall be deemed a waiver of any other provision of this
Agreement at such time or at any
other time.
15. ASSIGNMENTS. This Agreement is a personal services contract. The
rights and obligations of the Executive hereunder may not be sold, transferred,
delegated, assigned, pledged or hypothecated and any attempted assignment,
transfer or sale shall be void.
16. CAPTIONS. The captions of the various sections and subsections of
this Agreement have been inserted only for purposes of convenience and shall not
be deemed in any manner to modify, explain, enlarge or restrict any of the
provisions of this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
effective as of the Effective Date.
"COMPANY"
UROCOR, INC.
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxx, President and
Chief Executive Officer
000 Xxxxxxxx Xxxxxxx
Xxxxxxxx Xxxx, XX 00000
Tel: (000) 000-0000
"EXECUTIVE"
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Tel: (000) 000-0000
UroCor, Inc.
Xxxxxxx X. Xxxxxxxx
ADDENDUM TO AGREEMENT
This Addendum to Agreement is made as of this 1st day of March, 2000, to that
certain Agreement dated effective October 26, 1999 (the "Agreement"), between
UroCor, Inc. ("Company") and Xxxxxxx X. Xxxxxxxx ("Consultant").
W I T N E S S E T H:
Pursuant to Section 3(b) of the Agreement, Company and Consultant wish to
designate certain responsibilities and obligations of the Consultant
thereunder that are consistent with the advisory capacities in which the
Consultant is to serve the Company thereunder.
Now, therefore, in view of the foregoing, it hereby is agreed that Consultant
shall devote such time as may reasonably be designated by the Chief Executive
Officer of Company to represent Company at various functions including trade
shows and seminars and to analyze technical and financial data to assist
executive officers of Company in strategic planning and forecasting. It is
acknowledged that the defining of specific responsibilities is not intended
to limit the activities of Consultant, but is intended to clarify specific
duties that can now be identified as requiring Consultant's efforts.
During the term of the Agreement, Consultant agrees that, on a quarterly
basis, he will provide to management of Company his views on trends in
Company's industry and make himself available to provide information to the
Company about issues that he has gleaned from various sources in Company's
industry.
This Addendum is executed pursuant to Section 14 of the Agreement and shall be
effective as of the date hereof.
UROCOR, INC.
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx, President and
Chief Executive Officer
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxxxx
ANNEX A
RELEASE OF EMPLOYMENT CLAIMS
The Executive does hereby for himself and his representatives,
successors, heirs, executors, administrators, legal representatives, trustees
and assigns remise, release and forever discharge the Released Parties of and
from any and all manner of Released Claims arising after the Execution Date
and on or before the date of termination of the Initial Period.
Defined terms used herein shall have meanings given them in that
certain Agreement made as of December 17, 1999, between UroCor, Inc. and the
undersigned.
IN WITNESS WHEREOF, the undersigned hereunto has executed this
Release of Employment Claims on the 31st day of December, 1999.
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxx
ANNEX B
UROCOR, INC. COMPLIANCE PROGRAM
STATEMENT OF UNDERSTANDING OF AND COMPLIANCE WITH
CORPORATE ETHICS POLICY, STANDARDS OF CONDUCT
AS WELL AS UROCOR'S COMPLIANCE PROGRAM
I CERTIFY THAT I HAVE READ AND UNDERSTAND THE CORPORATE ETHICS POLICY AND AGREE
TO ABIDE BY IT DURING MY EMPLOYMENT AT UROCOR. I ACKNOWLEDGE THAT I HAVE DUTY TO
REPORT ANY ALLEGED OR SUSPECTED VIOLATION OF THE CORPORATE ETHICS POLICY OR
STANDARDS OF CONDUCT TO THE COMPLIANCE OFFICER. UNLESS OTHERWISE NOTED BELOW, I
AM NOT AWARE OF ANY VIOLATION OF THE CORPORATE ETHICS POLICY OR STANDARDS OF
CONDUCT. I UNDERSTAND THAT COMPLIANCE WITH THE STANDARDS OF CONDUCT, ETHICS
POLICY, EMPLOYEE HANDBOOK, AND OTHER UROCOR POLICIES, ALTHOUGH REQUIRED FOR
EMPLOYMENT, DOES NOT IN ANY WAY PROMISE OR IMPLY A CONTRACT OF EMPLOYMENT.
Date ______________________ Session Attended (Time)_______________________
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Signature /s/ Xxxxxxx X. Xxxxxxxx 12/30/99
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Print Name Xxxxxxx X. Xxxxxxxx
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Job Title/Position___________________ Supervisor__________________________
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Location: (circle one) Department
Home Office Field Location __________________________________
Any concerns or questions - use back if necessary
UROCOR, INC. COMPLIANCE PROGRAM
STATEMENT OF CERTIFICATION
CORPORATE ETHICS POLICY, STANDARDS OF CONDUCT, AND COMPLIANCE
I CERTIFY THAT I HAVE READ AND UNDERSTAND THE CORPORATE ETHICS POLICY AND AGREE
TO ABIDE BY IT DURING MY EMPLOYMENT AT UROCOR. I ACKNOWLEDGE THAT I HAVE DUTY TO
REPORT ANY ALLEGED OR SUSPECTED VIOLATION OF THE CORPORATE ETHICS POLICY OR
STANDARDS OF CONDUCT TO THE COMPLIANCE OFFICER. UNLESS OTHERWISE NOTED BELOW, I
CERTIFY THAT I AM UNAWARE OF ANY UNREPORTED COMPLIANCE MATTER IN MY AREA OF
RESPONSIBILITY. I UNDERSTAND THAT COMPLIANCE WITH THE STANDARDS OF CONDUCT,
ETHICS POLICY, EMPLOYEE HANDBOOK, AND OTHER UROCOR POLICIES, ALTHOUGH REQUIRED
FOR EMPLOYMENT, DOES NOT IN ANY WAY PROMISE OR IMPLY A CONTRACT OF EMPLOYMENT.
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Signature /s/ Xxxxxxx X.
---------------------------------------
Print Name Xxxxxxx X. Xxxxxxxx
---------------------------------------
Title Chairman
---------------------------------------
Date 11-4-99
---------------------------------------
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What to do if you know of an UN-reported concern---Attach In-take form (s)
Use template and print out and send as attachment to this document-do not e-mail
Purpose of Policy
Each Quarter Managers and supervisors are required to complete a certification
that they are UN-aware of any unreported compliance concern in their area of
responsibility. As employees are required to report--manager's are required to
certify. In this way managers and employees work together to make sure that any
are of compliance is surfaced and worked so that the company can move
productively toward resolution and early correction of any error, mistake or
system problem.
DO NOT E-MAIL THIS DOCUMENT--PRINT AND MAIL TO CO
Check One:
X No Attachments Attachments included
------------------ -----------------------
ANNEX C
CYTODIAGNOSTICS, INC.
NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
THIS AGREEMENT ("Agreement"), made and entered into effective as of
the 1st day of January, 1990, by and between CytoDiagnostics, Inc.
("Employer"), a Delaware corporation with its principal office and principal
place of business located at 0000 Xxxxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxx,
XX 00000, and Xxxxxxx X. Xxxxxxxx ("Employee"), as resident of Oklahoma City,
Oklahoma.
WITNESSETH:
WHEREAS, Employer desires to employ Employee, and Employee desires to
accept employment with Employer upon and subject to the terms, conditions and
provisions hereinafter set forth; and
WHEREAS, Employer in its line of business has developed valuable
technical information and know-how, which information and know-how are used
in its business and in licensed operations; and
WHEREAS, Employee, by virtue of his assigned responsibilities or
responsibilities to be assigned by Employer and through his activities in the
employ of Employer has become or may become acquainted therewith;
NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual covenants and
agreements hereinafter contained, the parties hereto covenant and agree as
follows:
SECTION 1. As a condition of employment, or continued employment, as
the case may be, of Employee by Employer, and of the disclosure by Employer
to Employee of Employer's confidential and/or proprietary information, which
disclosure may include any one or more of the areas involving trade secrets,
business plans, products manufactured by Employer, processes therefor,
apparatus and maintenance thereof, research, research programs, sales plans
and sales and marketing information of Employer, customer, vendor, supply and
price lists, and lists of key employees or potential key employees, including
similar information with respect to any subsidiary and related companies, it
is agreed by Employer and Employee that:
(a) All such confidential and/or proprietary information including any
information relating to manufacturing techniques, processes, formulas,
developments or experimental work, work in process or business trade
secrets, are the property of Employer and shall be held by Employee in
trust therefor, and shall not be used except for the benefit of
Employer or disclosed by Employee to any person, firm or corporation
either during or after his employment without the express, written
consent of an executive officer of Employer.
(b) Employee shall promptly disclose to Employer or its nominee any and
all inventions, discoveries and improvements conceived or made by
Employee alone or in concert with others during the period of his
employment and related to the then current or contemplated business or
activities of Employer, and Employee assigns and agrees to assign all
his interest therein to Employer or its nominee and whenever requested
to do so, Employee shall execute any and all applications, assignments
or other instruments which Employer shall deem necessary to apply for
and obtain Letters Patent of the United States or any foreign country
or to otherwise protect Employer's interests therein. These
obligations shall continue beyond the termination of employment with
respect to inventions, discoveries and improvements conceived or made
by Employee alone or in concert with others during the period of his
employment, and shall be binding upon Employee, his assigns,
executors, administrators and other legal representatives.
(c) Employee, upon termination of employment, shall not take with him,
without first obtaining the express, written consent of an executive
officer of Employer, any drawings, blueprints, notes, memoranda,
specifications, devices, documents or any other material containing or
disclosing any of the matter referred to herein, whether an original
or reproduction, or any
tangible evidence of confidential and/or proprietary
information or data belonging to or under the control of Employer.
(d) The covenants and agreements of Employee set forth in this Section 1
shall survive the termination of the Agreement and the termination of
Employee's employment by Employer and inure to the benefit of the
Company and its assigns and successors.
SECTION 2. Employee will strictly adhere to any obligations which he
may have to former employers insofar as the use or disclosure of confidential
and/or proprietary information is concerned.
SECTION 3. In the event that any one or more but not all of the
provisions of this Agreement are declared unlawful and/or unenforceable by a
court of competent jurisdiction, such court determination shall not affect the
legality and/or enforceability of the other provisions hereof.
SECTION 4. No omission of Employer to require performance by Employee
of any of the terms of this Agreement shall in any manner affect Employer's
right to require full performance by Employee of any or all of the obligations
of this Agreement, nor shall any such omission be construed as a waiver of any
of the terms herein.
SECTION 5. This Agreement contains the entire Agreement between
Employer and Employee relating to the subject matter hereof and supersedes any
and all prior agreements, if any, between Employer and Employee relating to such
subject matter.
SECTION 6. This Agreement may not be modified or amended except by a
written instrument signed by the parties hereto.
SECTION 7. This Agreement shall be binding upon the Employee and upon
his heirs, executors, administrators and other legal representatives.
IN WITNESS WHEREOF, each of the Employer and Employee has executed this
Agreement as of the date and year first above written.
Employer:
CYTODIAGNOSTICS, INC.
By /s/ Xxx X. Xxxxxxxx
-------------------------------
Xxx X. Xxxxxxxx
Chairman of the Board
Employee:
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxxx
ANNEX D
INDEMNITY AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of the 17th day of
February, 1998, between UroCor, Inc., a Delaware corporation (the
"Corporation"), and Xxxxxxx X. Xxxxxxxx ("Indemnified Party").
WITNESSETH:
WHEREAS, Indemnified Party is, or is about to become, an officer or a
member of the Board of Directors of the Corporation and in such capacity is
performing a valuable service for Corporation;
WHEREAS, Indemnified Party may from time to time serve as a director,
officer, employee, agent or fiduciary of other corporations, partnerships, joint
ventures, trusts or other enterprises, entities or plans at the request of the
Corporation in order to pursue the Corporation's interests;
WHEREAS, the Bylaws (the "Bylaws") of Corporation provide for the
mandatory indemnification of the officers, directors, agents and employees of
the Corporation to the maximum extent authorized by Section 145 of the Delaware
General Corporation Statute, as amended hereafter (the "State Statute");
WHEREAS, such Bylaws and the State Statute specifically provide that
they are not exclusive and thereby contemplate that contracts or other
arrangements not inconsistent with the State Statute may be entered into between
the Corporation and the members of its Board of Directors and its officers with
respect to indemnification of such directors and officers;
WHEREAS, in accordance with the authorization provided by the State
Statute, Corporation has purchased and will maintain a policy of Directors' and
Officers' Liability Insurance ("D&O Insurance"), covering certain liabilities
that may be incurred by its directors and officers in the performance of their
services for Corporation, possibly including certain liabilities for which
indemnification by the Corporation is not authorized or permitted under the
State Statute;
WHEREAS, uncertainties with respect to the terms and availability of
D&O Insurance and with respect to the application, amendment and enforcement of
statutory and by-law indemnification provisions make it desirable to supplement
and enhance the adequacy and reliability of the protection afforded to directors
and officers thereby; and
WHEREAS, to supplement and enhance the protection afforded Indemnified
Party and to induce Indemnified Party to continue to serve as a member of the
Board of Directors or as an officer of the Corporation, the Corporation has
determined and agreed to enter into this Agreement with Indemnified Party, which
has been approved and adopted by the Corporation's Board of Directors;
NOW, THEREFORE, in consideration of Indemnified Party's continued service as a
director or an officer of the Corporation after the date hereof the parties
hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
"Litigation Costs" means costs, charges, expenses and obligations,
including, without limitation, all bonds, expenses of investigation, fees and
expenses of experts, accountants or other professionals, travel and lodging
expenses, court costs, transcript costs, duplicating costs, printing and
binding costs, telephone charges, postage, delivery fees and attorneys' fees,
retainers and expenses, reasonably incurred or contracted for in the
investigation, defense or prosecution of or other involvement in any
Proceeding and any appeal therefrom, and all costs of appeal, attachment,
supersedeas and other bonds that may be relevant to any Proceeding.
"Losses" means the total of all amounts which Indemnified Party
becomes, or may become, legally obligated to pay in connection with any
Proceeding, including (without limitation) judgments, penalties, fines, court
or investigative costs, amounts paid in settlement, amounts lost or ordered
forfeited pursuant to injunctive sanctions, and all Litigation Costs.
"Proceeding" means any threatened, pending or completed action,
suit, arbitration, mediation, alternative dispute resolutions mechanism,
proceeding, subpoena compliance, inquiry or investigation, whether civil,
criminal, administrative or investigative (whether external and involving
outside parties or internal to the Corporation, including, but not limited
to, an action by or in the right of the Corporation and any internal
investigation conducted by the Board of Directors or any committee or other
designee thereof or any other person), and whether formal or informal.
2. INDEMNITY OF INDEMNIFIED PARTY. The Corporation hereby agrees to
indemnify Indemnified Party to the fullest extent authorized or permitted by
the provisions of the State Statute, including, but not limited to, (a) the
maximum extent permitted by the provisions of the State Statute which provide
that the State Statute is not the exclusive basis for indemnification of
directors and officers and (b) the maximum extent authorized or permitted by
any amendment thereof or other statutory provision authorizing or permitting
such indemnification which is adopted after the date hereof.
3. ADDITIONAL INDEMNITY. In addition to and not in substitution for
or diminution of the obligations of indemnification set forth in Section 2
hereof, the Corporation hereby further agrees to indemnify Indemnified Party
to the fullest extent permitted by law against any and all Litigation Costs
and Losses of Indemnified Party in connection with any Proceeding to which
Indemnified Party is, was or at any time becomes a party, or is threatened to
be made a party or otherwise becomes involved (other than as plaintiff except
where being a plaintiff or intervenor is necessary to avoid RES JUDICATA or
collateral estoppel or other estoppel or other result as to matters which may
adversely impact Indemnified Party) by reason of the fact that Indemnified
Party is, was or at any time becomes a director, officer, employee, agent or
fiduciary of the Corporation, or is or was serving or at any time serves at
the request of the Corporation as a director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture, trust or other
enterprise or any benefit plan related to the business and affairs of the
Corporation, and specifically including any Proceeding brought pursuant to
the provisions of Section 16(b) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or any other provision under the Exchange Act
and the Securities Act of 1933, as amended, and the rules and regulations
thereunder.
4. LIMITATIONS ON INDEMNITY. No amounts of Indemnity pursuant to
Section 2 or 3 hereof shall be paid by the Corporation:
(a) except to the extent that the aggregate of Litigation
Costs and Losses in any Proceeding or group of related Proceedings to
be indemnified hereunder exceeds the amount of Litigation Costs and
Losses for which the Indemnified Party actually receives
indemnification payments or on whose behalf indemnification payments
are made pursuant to any D&O Insurance policy or from any other source;
(b) on account of any payments required to be paid by an
Indemnified Party as a result of any Proceeding in which a final,
non-appealable judgment is rendered against Indemnified Party for an
accounting or disgorgement of profits made from the purchase or sale by
Indemnified Party of securities of the Corporation pursuant to the
provisions of Section 16(b) of the Exchange Act;
(c) on account of Indemnified Party's conduct which is finally
adjudged in any Proceeding to have been knowingly fraudulent,
deliberately dishonest or an act or omission involving willful
misconduct; or
(d) if a final non-appealable decision by a court having
jurisdiction over the parties and the subject matter shall determine
that such indemnification is not lawful.
5. CONTINUATION OF INDEMNITY. All agreements and obligations of the
Corporation contained herein shall continue during the period Indemnified
Party is a director, officer, employee, agent or fiduciary of the Corporation
(or is or was serving at the request of the Corporation as a director,
officer, employee, agent or fiduciary of another corporation, partnership,
joint venture, trust or other enterprise or any benefit plan related to the
business and affairs of the Corporation or of any of its affiliates,
subsidiaries, associates or other entities in which it is interested) and
shall continue thereafter so long as Indemnified Party shall be subject to
any possible Litigation Costs or Losses in any Proceeding by reason of the
fact that Indemnified Party was a director, officer, employee, agent or
fiduciary of the Corporation (or is or was serving at the request of the
Corporation as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, trust or other enterprise or any
such benefit plan).
6. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by
Indemnified Party of notice of the commencement of any Proceeding,
Indemnified Party shall, if a claim in respect thereof is to be made against
the Corporation under this Agreement, give written notice to the Corporation
of the commencement thereof as promptly as practicable; but the omission so
to notify the Corporation will not relieve the Corporation from any liability
that it may have to Indemnified Party unless the Corporation can demonstrate
by clear and convincing evidence that it was materially prejudiced by the
failure to receive such notice. With respect to any such Proceeding as to
which Indemnified Party becomes involved:
(a) the Corporation will be entitled to participate therein
at its own expense;
(b) except as otherwise provided below, to the extent that it
may wish, the Corporation may, jointly with any other indemnifying
party, assume the defense thereof, with outside counsel that must be
reasonably satisfactory to Indemnified Party. After notice from the
Corporation to Indemnified Party of its election so to assume the
defense thereof (and consent of Indemnified Party as to the
Corporation's choice of outside counsel, which consent will not be
unreasonably withheld), the Corporation will be liable to Indemnified
Party under this Agreement for all Litigation Costs (subject to Section
4 above and other than as provided below with respect to attorneys'
fees) incurred in connection therewith. Indemnified Party shall have
the right to employ personal counsel in such Proceeding, but the fees
and expenses of such counsel incurred after notice from the Corporation
of its assumption of the defense thereof (and consent of Indemnified
Party as to the Corporation's choice of outside counsel) shall be at
the expense of Indemnified Party, unless (i) the employment of counsel
for Indemnified Party has been authorized by the Corporation, (ii)
Indemnified Party shall have concluded in good faith that there may be
a conflict of interest between the Corporation and Indemnified Party in
the conduct of the defense (or part of the defense) of such action, or
(iii) the Corporation in fact shall not have employed counsel to assume
the defense of such action, in each of which cases the fees and
expenses of counsel shall be at the expense of the Corporation. The
Corporation shall not be entitled to assume the defense of any
Proceeding brought by or on behalf of the Corporation or as to which
Indemnified Party shall have made the conclusion provided for in clause
(ii) of this Section 6(b); and
(c) the Corporation shall not be liable to indemnify
Indemnified Party under this Agreement for any Losses paid in
settlement of any Proceeding or claim effected without its written
consent. The Corporation shall not settle any Proceeding or claim in
any manner that would impose any penalty, sanction or limitation on
Indemnified Party, or otherwise effectively indicate the existence of
any wrongful act by Indemnified Party, without Indemnified Party's
written consent. Neither the Corporation nor Indemnified Party shall
unreasonably withhold its consent to any proposed settlement. Without
intending to limit the circumstances in which it would be unreasonable
for the Corporation to withhold its consent to a settlement, the
parties hereto agree it would be unreasonable for the Corporation to
withhold its consent to a settlement in an amount that did not exceed,
in the business judgment of the Board of Directors of the Corporation,
the estimated amount of Litigation Costs of Indemnified Party to
litigate the Proceeding to conclusion, provided that there is no other
materially adverse consequence to the Corporation from such settlement.
7. NO PRESUMPTIONS. The termination of any Proceeding by judgment,
order, settlement, conviction or upon a plea of NOLO CONTENDERE or its
equivalent, shall not, of itself, create a presumption that (a) Indemnified
Party did not act in good faith, (b) with respect to any criminal action or
proceeding, Indemnified Party had reasonable cause to believe that his or her
conduct constituted a criminal violation or (c) Indemnified Party was
knowingly fraudulent, deliberately dishonest or committed an act, or made an
omission, involving willful misconduct.
8. MANDATORY ADVANCEMENT OF EXPENSES. At the request of Indemnified
Party, Litigation Costs incurred or contracted for by him or her in any
Proceeding shall be paid by the Corporation on a continuing and current
basis, in advance of the final disposition of such matter, with the
undertaking which Indemnified Party makes hereby that if it shall be
ultimately determined that Indemnified Party was not entitled to be
indemnified therefor, or was not entitled to be fully indemnified therefor,
Indemnified Party shall repay to the Corporation the amount, or appropriate
portion thereof, so advanced. Such advancement and current payment of
Litigation Costs by the Corporation shall be made promptly (but in any event
within 10 days) after receipt by the Corporation of Indemnified Party's
request therefor.
9. REPAYMENT OF EXPENSES. Indemnified Party agrees that Indemnified
Party will reimburse the Corporation for all Litigation Costs paid by the
Corporation in connection with any Proceeding in which Indemnified
Party is involved in the event and only to the extent that it shall be
ultimately determined by final non-appealable judgment of a court of
competent jurisdiction that Indemnified Party is not entitled to be
indemnified by the Corporation for such Litigation Costs under the provisions
of the State Statute, the Bylaws and this Agreement.
10. PROCEDURE.
(a) Indemnification hereunder shall be made promptly and in
any event within 30 days of Indemnified Party's written request
therefor, unless (i) an affirmative determination is made reasonably
and within such 30-day period by the Corporation in the manner provided
in Section 10(b) below that Indemnified Party is not entitled to
indemnity hereunder for any reason other than as contemplated by clause
(ii) of this Section 10(a), or (ii) an affirmative determination is
required by the State Statute or other applicable law that the
Indemnified Party met an applicable standard of conduct, in which case
the Corporation will cause such determination to be made within 60 days
from the date of the written request for indemnity.
(b) The determination to be made by the Corporation under
Section 10(a) above shall be based on the facts known at the time and
shall be made (i) by the Board of Directors of the Corporation, by a
majority vote of a quorum consisting of directors who are not parties
to the Proceeding ("disinterested directors"), or (ii) if such a quorum
is not obtainable, by independent legal counsel in a written opinion,
or (iii) even if such a quorum is obtainable, by independent legal
counsel in a written opinion if the Board of Directors of the
Corporation, by a majority vote of a quorum consisting of disinterested
directors, so directs, or (iv) by the stockholders of the Corporation.
Any such determination may be contested by Indemnified Party as
hereinafter contemplated.
(c) A failure to make any required determination within the
period of time specified shall be deemed to be a determination
favorable to the Indemnified Party.
11. ENFORCEMENT.
(a) The Corporation expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on the
Corporation hereby and has obtained the approval of its Board of
Directors to induce Indemnified Party to serve or continue serving as a
director or an officer of Corporation and acknowledges that Indemnified
Party is relying upon this Agreement in agreeing to serve or continue
serving in such capacity.
(b) In the event Indemnified Party is required to bring any
action to enforce rights or to collect moneys due under this Agreement,
the Corporation shall reimburse Indemnified Party, on a continuing and
current basis, for all of Indemnified Party's reasonable fees and
expenses in bringing and pursuing such action and Indemnified Party
shall have no obligation to reimburse the Corporation therefor unless
Indemnified Party is not successful in such action after rendition of a
final, non-appealable judgment by a court of competent jurisdiction.
(c) The right to indemnification hereunder shall be
enforceable by Indemnified Party in any court of competent jurisdiction
if Indemnified Party's claim therefor is denied, in whole or in part,
in the manner provided herein, or if no disposition of such claim is
made within 60 days from the receipt by the Corporation of Indemnified
Party's request for indemnification hereunder.
12. SEVERABILITY. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others so that if any
provision hereof shall be held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof. To the extent necessary to
give effect to this Agreement, should any provision hereof be held invalid or
unenforceable, this Agreement shall be reformed in such a manner as to
provide the maximum indemnity contemplated hereby to Indemnified Party, it
being the intention of the parties hereto that this Agreement be otherwise
given its maximum effect consistent with the laws and, to the extent
applicable, public policies of the State of Delaware.
13. OBLIGATION TO AMEND. The Corporation agrees to take all actions
necessary to amend this Agreement in the future to increase or otherwise
maximize the indemnity protections intended to be afforded hereby to the
extent then permitted by law.
14. NOTICE. Any notice, request or other communication hereunder to
the Corporation or Indemnified Party shall be in writing and delivered or
sent by postage prepaid first class mail or by hand delivery or express mail
service or by facsimile transmission as follows: (a) if to the Corporation,
addressed to UroCor, Inc., 000 Xxxxxxxx Xxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx
00000, facsimile 405/290-4059, and (b) if to Indemnified Party, to the
address shown on the signature page hereof or to such other address as
Indemnified Party shall designate from time to time to the Corporation in
writing.
15. GOVERNING LAW; BINDING EFFECT; AMENDMENT AND TERMINATION.
(a) This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Delaware.
(b) This Agreement shall be binding upon Indemnified Party and
upon the Corporation, its successors and assigns, and shall inure to
the benefit of Indemnified Party, his or her heirs, personal
representatives and assigns and to the benefit of the Corporation, its
successors and assigns. The Corporation shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or any substantial part of the business or assets of
the Corporation, by agreement in form and substance satisfactory to
Indemnified Party, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the
Corporation would be required to perform it if no such succession had
taken place. Failure of the Corporation to obtain such agreement prior
to effectiveness of any succession shall be a breach of this Agreement
and shall entitle Indemnified Party to appropriate equitable relief or
monetary damages from the Corporation in an amount necessary to provide
Indemnified Party with the protections to which he or she would be
entitled hereunder. As used in this Agreement, the "Corporation" shall
mean the Corporation as hereinbefore defined and any successor to its
business or assets as aforesaid that executes and delivers the
agreement provided for by this Section 15(b) or that otherwise becomes
bound by all of the terms and provisions of this Agreement by operation
of law.
(c) No amendment, modification, termination or cancellation of
this Agreement shall be effective unless in writing signed by both
parties hereto.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding between the parties relating to the subject
matter hereof and supersedes all prior agreements between the parties
relating to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
UroCor, Inc.
By: /s/ Xxxxxxx X. XxXxxxxx
-------------------------------------
Xxxxxxx X. XxXxxxxx
Vice President and
Chief Financial Officer
[Name of Indemnified Party]
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxx
Address: 000 Xxxxxxxx Xxxxxxx
Xxxxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
