Exhibit 13
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 XXXX X. XXXXXXX (hereinafter "XXXXXXX").
WHEREAS, EWOK is proposing to acquire XXXXXXX'x 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 XXXXXXX as its
President under the terms and conditions set forth in this Agreement; and
WHEREAS, in such event XXXXXXX wishes to be employed by EWOK as its
President 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 XXXXXXX and XXXXXXX accepts employment with
EWOK as its President.
2 DUTIES AND RESPONSIBILITIES.
As President, XXXXXXX will devote his 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 his position as President of EWOK, as may be assigned
to him 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 XXXXXXX'x job title after the employment date (as
defined in Section 8.2 below) provided that such does not result in a
substantial diminution of XXXXXXX'x job responsibilities as they
existed on the effective date of this Agreement.
XXXXXXX 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),
XXXXXXX 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 XXXXXXX'x duties and
responsibilities hereunder.
3 COMPENSATION.
3.1 BASE SALARY.
For all services rendered by XXXXXXX under this Agreement,
EWOK will pay an initial base salary of $160,000.00 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.
3.2 ADJUSTMENTS TO BASE SALARY.
The Chairman of the Board of Directors of EWOK or his
designee shall review XXXXXXX'x salary and performance on an
annual basis (commencing on or
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about January 1, 2000, and on or about January 1 of each
succeeding year while XXXXXXX remains employed by EWOK) and may,
in his discretion, make increases to the base salary based upon
XXXXXXX'x 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.
XXXXXXX shall be entitled to earn up to an additional
$60,000.00 per calendar year in keeping with the provisions of a
bonus plan which shall, hereafter, be mutually agreed upon by
XXXXXXX 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 XXXXXXX within ninety (90) days of the effective date of this
Agreement.
3.4 VEHICLE ALLOWANCE.
XXXXXXX shall receive a vehicle allowance equivalent to the
sum of $10,000.00 per calendar year (which shall be pro-rated for
partial calendar years hereunder) which shall be payable as income
to XXXXXXX and, therefore, subject to the deduction of all state
and federal taxes and other assessments required by law.
4 BENEFITS AND PERQUISITES.
Subject to applicable federal and state tax regulations, XXXXXXX
shall receive the following benefits and perquisites from EWOK:
4.1 INSURANCE.
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XXXXXXX 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.
XXXXXXX 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 XXXXXXX shall be consistent with
requirements of his position and shall not interfere with the
performance of his responsibilities as President of EWOK.
4.3 EXPENSE ACCOUNT.
EWOK agrees to pay on XXXXXXX'x behalf all reasonable and
customary business-related expenses incurred by him 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 Chairman of the Board of
Directors (or his designee) of EWOK and should be submitted by
XXXXXXX for approval on a monthly basis.
5 NON-DISCLOSURE/NON-COMPETITION.
5.1 NON-DISCLOSURE.
XXXXXXX recognizes and acknowledges that information obtained
by him during the course of his employment with EWOK, its trade
secrets, business and
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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. XXXXXXX also
acknowledges that EWOK has taken precautions, such as this
Agreement, to keep such information confidential. XXXXXXX 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 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 XXXXXXX.
5.2 NON-COMPETITION.
XXXXXXX acknowledges the substantial time and effort expended
by EWOK and CORPORATION in establishing the long-standing
relationships they have with their customers. XXXXXXX agrees that
during his employment with EWOK and for a period of
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one (1) year following termination of his employment with EWOK
(for whatever reason), he will not, directly or indirectly, either
for himself 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 XXXXXXX had
material responsibility during the course of his 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 XXXXXXX had material responsibility during
the course of his 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. XXXXXXX
represents that his experience and capabilities are such that he
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 XXXXXXX
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 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.
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EWOK and XXXXXXX 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 XXXXXXX 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 XXXXXXX'x
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 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 XXXXXXX 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 XXXXXXX 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
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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 XXXXXXX
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 XXXXXXX'x duties or in the
course of his employment with EWOK or the commission of a
felony; or
(b) intentional wrongful damage to material assets of EWOK; or
(c) intentional wrongful disclosure of material confidential
information of EWOK.; or
(d) intentional conduct by XXXXXXX 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 XXXXXXX, 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 XXXXXXX not in good faith and without
reasonable belief that his 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, XXXXXXX shall not be entitled
to the salary continuation provided in Section 7.6 below.
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7.3 TERMINATION WITHOUT CAUSE.
XXXXXXX 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
XXXXXXX provided that EWOK thereafter complies with the
applicable provisions of Section 7.6 below.
In the event of written notice of termination by XXXXXXX or
EWOK under this Section, EWOK may, in its discretion, place
XXXXXXX 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
XXXXXXX'x termination from employment.
7.4 TERMINATION UPON DEATH OR DISABILITY.
EWOK may terminate this Agreement without further obligation
to XXXXXXX hereunder upon the death or permanent disability of
XXXXXXX. For purposes of this Agreement, the "permanent
disability" of XXXXXXX shall be deemed to occur if the Board of
Directors of EWOK determines, based upon competent medical
evidence, that XXXXXXX is unable to substantially perform the
services required of him, hereunder, with or without a reasonable
accommodation, for a continuous period of ninety (90) days or
more. XXXXXXX 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 XXXXXXX FOR "GOOD REASON"
XXXXXXX'x employment under this Agreement may be terminated
for good reason (as set forth below) by written notice from him 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:
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(a) a reasonable determination by XXXXXXX in good faith that
there has been a significant adverse change in the nature or
scope of XXXXXXX'x responsibilities, authorities, powers,
functions or duties; or
(b) a reduction in XXXXXXX'x monetary compensation; or
(c) the relocation of XXXXXXX'x offices at which XXXXXXX is
principally employed to a location more than 50 miles from
the location where XXXXXXX is principally employed; or
(d) the failure by EWOK to pay to XXXXXXX any portion of his
current compensation or the failure by EWOK to continue in
effect any material compensation, incentive, bonus or benefit
plan in which XXXXXXX 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
XXXXXXX'x participation therein (or in such substitute or
alternative plan) on a basis not materially less favorable,
both in terms of the amount of benefits provided and the
level of XXXXXXX'x 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 XXXXXXX and EWOK.
7.6 SALARY CONTINUATION.
Subject to the provisions of this Section 7.6, XXXXXXX 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
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Agreement is not renewed and XXXXXXX'x employment is terminated at
the expiration of its initial term (as provided in Section 6
above), XXXXXXX'x 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
XXXXXXX receive salary continuation if he 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 XXXXXXX'x termination
of this Agreement for "good reason" (as specified in Section 7.5
above), XXXXXXX'x salary (as provided in Section 3.1 above) shall
be continued for a period of six (6) months from the effective
date of termination.
The above notwithstanding, XXXXXXX shall not be entitled to
the salary continuation provided in this Section 7.6 unless and
until he has signed and delivered to EWOK a binding agreement in a
form acceptable to EWOK setting forth a release of any and all
claims arising from his employment, termination from employment
and termination of this Agreement with EWOK. During the period of
salary continuation (regardless of duration), XXXXXXX 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 XXXXXXX be entitled to receive multiple payments of salary
continuation under the provisions of this Section 7.6 should his
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 XXXXXXX'x 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
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on behalf of XXXXXXX, or made available to XXXXXXX relating to
the business of EWOK, are and shall be EWOK's property and shall,
if in the possession of XXXXXXX, 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 XXXXXXX 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 XXXXXXX'x "employment date" shall
be deemed to have occurred on the date, if any, on which EWOK
accepts for 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 XXXXXXX 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 XXXXXXX with written notice of said
assignments; in that event, the obligations of XXXXXXX and EWOK as
set forth in this Agreement shall, thereafter, be applicable to
the entity identified in that notice. Except as specifically
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provided in this Section 8.2, the duties, rights and obligations
set forth in this Agreement shall not otherwise be assignable by
EWOK or XXXXXXX 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.
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: XXXX X. XXXXXXX
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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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.
XXXXXXX hereby warrants that neither the entry into this
Employment Agreement nor its performance by XXXXXXX will conflict with
or result in a breach of the terms, conditions or privileges of any
agreement or other obligation of any nature to which XXXXXXX is a
party, or by which XXXXXXX is bound, including without limitation, any
employment agreements, non-competition agreements or confidentiality
agreements previously entered into by XXXXXXX.
EXECUTED on the 27th day of May, 1999.
EWOK ACQUISITION CORP., a Massachusetts corporation
By: /s/ XXXX X. XXXXXXX
Its: /s/ XXXX XXXXXXXX -------------------
------------------------------------------------- XXXX X. XXXXXXX
/s/ XXXXX X. XXXXXX
-----------------------------------------------------
ATTEST:
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