EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of ___________ __, 2000 [insert
effective date of merger], between R. Xxx Xxxxxxxx ("Employee") and OraSure
Technologies, Inc., a Delaware corporation (the "Company").
1. Services.
1.1 Employment. The Company agrees to employ Employee as
Executive Vice President and Chief Science Officer of the Company, and Employee
hereby accepts such employment in accordance with the terms and conditions of
this Agreement.
1.2 Duties. Employee shall have the position named in Section
1.1 with such powers and duties appropriate to that office (a) as may be
provided by the bylaws of the Company, (b) as otherwise set forth in Exhibit A
attached to this Agreement, and (c) as determined by the board of directors from
time to time. Subject to the provisions of Section 5.4 hereof, Employee's
position and duties may be changed from time to time during the term of this
Agreement. Employee's place of work shall be the Company's headquarters, at its
present location or as it may be relocated.
1.3 Outside Activities. Employee shall obtain the consent of the
board of directors before he engages, either directly or indirectly, in any
other professional or business activities that may require an appreciable
portion of Employee's time or effort to the detriment of the Company's business.
1.4 Direction of Services. Employee shall at all times discharge
his duties in consultation with and under the supervision and direction of the
Chief Executive Officer of the Company or such other person as the Chief
Executive Officer or the board of directors may designate.
2. Term. The initial term of this Agreement shall begin as of the
date first written above and end on the third anniversary of that date, unless
sooner terminated in accordance with Section 5 below. Thereafter, this
Agreement shall automatically renew from year to year for successive one-year
terms (a) unless either party gives the other party written notice of that
party's intent not to renew this Agreement at least 120 days before the
expiration of its current term, or (b) the Agreement is terminated in accordance
with Section 5 below.
3. Compensation and Expenses.
3.1 Salary. As compensation for services under this Agreement,
the Company shall pay to Employee a regular salary of $15,416.67 per month.
Subject to the provisions of Section 5.4 hereof, such salary may be adjusted
from time to time in the discretion of the board of directors. Payment shall be
made on a bi-weekly basis, less all amounts required by law or authorized by
Employee to be withheld or deducted.
-1-
3.2 Bonus. The Company shall establish an executive bonus plan,
on such terms as may be approved by the board of directors or its executive
compensation committee. In addition to the salary described in Section 3.1
above, Employee shall be entitled to participate in the executive bonus plan.
3.3 Long-Term Incentive. To the extent otherwise eligible,
Employee shall be entitled to participate in accordance with the terms of the
plan in any long-term incentive plan that may from time to time be adopted by
the board of directors or its executive compensation committee, in its sole
discretion.
3.4 Additional Employee Benefits. To the extent otherwise
eligible, Employee shall be entitled to receive or participate in any additional
benefits, including without limitation medical and dental insurance programs,
profit sharing or pension plans, and medical reimbursement plans, which may from
time to time be made available by the Company to corporate officers. The Company
may change or discontinue such benefits at any time in its sole discretion.
3.5 Expenses. The Company shall reimburse Employee for all
reasonable and necessary expenses incurred in carrying out his duties under this
Agreement, subject to compliance with the Company's reasonable policies relating
to expense reimbursement.
3.6 Fees. All compensation earned by Employee, other than
pursuant to this Agreement, as a result of services performed on behalf of the
Company or as a result of or arising out of any work done by Employee in any way
related to the scientific or business activities of the Company shall belong to
the Company. Employee shall pay or deliver such compensation to the Company
promptly upon receipt. For the purposes of this provision, "compensation" shall
include, but is not limited to, all professional and nonprofessional fees,
lecture fees, expert testimony fees, publishing fees, royalties, and any related
income, earnings, or other things of value; and "scientific or business
activities of the Company" shall include, but not be limited to, any project or
projects in which the Company is involved and any subject matter that is
directly or indirectly researched, tested, developed, promoted, or marketed by
the Company.
4. Stock Options. Employee shall be entitled to participate in
the Company stock option plan. The number of stock options that are granted to
Employee under the plan shall be determined by the board of directors or its
executive compensation committee.
5. Business Protection Agreement. Employee and the Company are
concurrently entering a Business Protection Agreement. Employee's compliance
with the terms of the Business Protection Agreement, including without
limitation the noncompetition provisions of the Business Protection Agreement,
is a material requirement of this Agreement. Employee acknowledges that
employment on the terms stated in this Agreement constitutes a bona fide
advancement.
-2-
6. Termination.
6.1 Termination Upon Death. This Agreement shall terminate
immediately upon Employee's death.
6.2 Termination by Employee. Employee may terminate his
employment under this Agreement by 60 days' written notice to the Company.
6.3 Termination by the Company for Cause. Employee's employment
under this Agreement may be terminated by the Company at any time for cause.
Only the following actions, failures, or events by or affecting Employee shall
constitute "cause" for termination of Employee by the Company: (i) willful and
continued failure by Employee to substantially perform his duties provided
herein after a written demand for substantial performance is delivered to
Employee by the chairman of the board of the Company, which demand identifies
with reasonable specificity the manner in which Employee has not substantially
performed his duties, and Employee's failure to comply with such demand within a
reasonable time; (ii) the engaging by Employee in gross misconduct or gross
negligence materially injurious to the Company; (iii) the commission of any act
in direct competition with or materially detrimental to the best interests of
the Company; or (iv) Employee's conviction of having committed a felony.
Notwithstanding the foregoing, Employee shall not be deemed to have been
terminated by the Company for cause unless and until there shall have been
delivered to him a copy of a resolution duly adopted by the affirmative vote of
not less than a majority of the entire membership of the board of directors of
the Company finding that, in the good faith opinion of the board of directors,
the Company has cause for the termination of the employment of Employee as set
forth in any of clauses (i) through (iv) above and specifying the particulars
thereof in reasonable detail. The findings of the board of directors shall not
be binding on the arbitrators or other finders of fact in connection with any
litigation or dispute arising out of this Agreement.
6.4 Termination by the Company Without Cause. The Company may
terminate Employee's employment under this Agreement without cause by written
notice to Employee. Employee may (but shall not be required to) elect to treat
any of the following events as a termination without cause, provided Employee
acts within 60 days of the event:
6.4.1 A material breach of this Agreement by the Company
and a failure by the Company to cure the breach within 30 days after Employee
has given written notice of the breach to the board of directors.
6.4.2 A reduction in Employee's salary below the amount
stated in Section 3.1 (except as part of and in proportion to a reduction in all
executive officers' salaries) or a change in Employee's title or a substantial
diminution in Employee's duties below those stated in this Agreement.
6.4.3 A "Change of Control" of the Company. For purposes of
this Agreement, a "Change of Control" shall mean a change of control of a nature
that would be required to be reported in response to Item 6(e) of Schedule 14A
of Regulation 14A as in effect on the date hereof pursuant to the Securities
Exchange Act of 0000 (xxx "Xxxxxxxx Xxx");
-3-
provided that, without limitation, such a change of control shall be deemed to
have occurred at such time as (i) any Acquiring Person hereafter becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of 30 percent or more of the combined voting power of Voting
Securities; (ii) during any period of 12 consecutive calendar months,
individuals who at the beginning of such period constitute the board of
directors cease for any reason to constitute at least a majority thereof unless
the election, or the nomination for election, by the Company's shareholders of
each new director was approved by a vote of at least a majority of the directors
then still in office who were directors at the beginning of the period; (iii)
there shall be consummated (a) any consolidation or merger of the Company in
which the Company is not the continuing or surviving corporation or pursuant to
which Voting Securities would be converted into cash, securities, or other
property, other than a merger of the Company in which the holders of Voting
Securities immediately prior to the merger have the same, or substantially the
same, proportionate ownership of common stock of the surviving corporation
immediately after the merger, or (b) any sale, lease, exchange, or other
transfer (in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company; or (iv) approval by the
shareholders of the Company of any plan or proposal for the liquidation or
dissolution of the Company. For purposes of this Agreement, "Acquiring Person"
means any person or related persons which constitute a "group" for purposes of
Section 13(d) and Rule 13d-5 under the Exchange Act, as such Section and Rule
are in effect as of the date of this Agreement; provided, however, that the term
Acquiring Person shall not include: (i) the Company or any of its subsidiaries;
(ii) any employee benefit plan of the Company or any of its subsidiaries; (iii)
any entity holding voting capital stock of the Company for or pursuant to the
terms of any such employee benefit plan; or (iv) any person or group solely
because such person or group has voting power with respect to capital stock of
the Company arising from a revocable proxy or consent given in response to a
public proxy or consent solicitation made pursuant to the Exchange Act. For
purposes of this Agreement, "Voting Securities" means the Company's issued and
outstanding securities ordinarily having the right to vote at elections for the
Company's board of directors.
6.5 Compensation Upon Termination.
6.5.1 Termination Under Section 5.1, 5.2, or 5.3. In the event
of a termination of Employee's employment under Sections 5.1, 5.2, or 5.3,
Employee's regular compensation pursuant to Section 3.1 shall be prorated and
payable until the date of termination and Employee shall be paid any bonus that
has been approved but not yet paid.
6.5.2 Termination Under Section 5.4. In the event of a
termination of Employee's employment by the Company without cause as provided in
Section 5.4, Employee shall continue to be paid the salary provided in Section
3.1 for the greater of (a) 12 months, (b) the remaining term of this Agreement,
or (c) 24 months if Employee elects to treat an event described in Section 5.4.3
as a termination without cause, from the date of notice of such termination of
employment or the date of such event, in the manner and at the times at which
regular compensation was paid to Employee during the term of his employment
under this Agreement, except that if Employee elects to treat an event described
in Sections 5.4.1, 5.4.2, or 5.4.3 as a termination without cause but continues
to work for the Company or any of its subsidiaries, then any amounts Employee
receives as compensation following the event shall be credited against the
amounts payable to Employee under this section. In no other respect
-4-
shall the amount of any payment provided for in this section be reduced by any
compensation or benefits earned by employee as a result of employment after his
termination. As a condition to receipt of the compensation described in the
first sentence of this Section 5.5.2, Employee shall sign and deliver a release
agreement, in form and substance satisfactory to the Company and Employee,
releasing all claims related to Employee's employment. The Company's obligation
to pay the amounts stated in this section shall terminate if Employee fails to
comply with the Business Protection Agreement within the applicable time period
stated in the first sentence of this section.
7. Remedies. The respective rights and duties of the Company and
Employee under this Agreement are in addition to, and not in lieu of, those
rights and duties afforded to and imposed upon them by law or at equity.
8. Severability of Provisions. The provisions of this Agreement are
severable, and if any provision hereof is held invalid or unenforceable, it
shall be enforced to the maximum extent permissible, and the remaining
provisions of the Agreement shall continue in full force and effect.
9. Nonwaiver. Failure by either party at any time to require
performance of any provision of this Agreement shall not limit the right of the
party failing to require performance to enforce the provision. No provision of
this Agreement may be waived by either party except by a writing signed by that
party. A waiver of any breach of a provision of this Agreement shall be
construed narrowly and shall not be deemed to be a waiver of any succeeding
breach of that provision or a waiver of that provision itself or of any other
provision.
10. Arbitration.
10.1 Claims Covered. All claims or controversies, except for
those excluded by Section 9.2 ("claims"), whether or not arising out of
Employee's employment (or its termination), that the Company may have against
the Employee or that Employee may have against the Company or against its
officers, directors, employees or agents, in their capacity as such or
otherwise, shall be resolved as provided in this Section 9. Claims covered by
this Section 9 include, but are not limited to, claims for wages or other
compensation due; claims for breach of any contract or covenant (express or
implied); tort claims; claims for discrimination (including, but not limited to,
race, sex, sexual orientation, religion, national origin, age, marital status,
or disability); claims for benefits (except where an employee benefit or pension
plan specifies that its claims procedure shall culminate in an arbitration
procedure different from this one), and claims for violation of any federal,
state, or other governmental law, statute, regulation, or ordinance, except as
provided in Section 9.2.
10.2 Non-Covered Claims. Claims arising out of the Business
Protection Agreement and workers' compensation or unemployment compensation
benefits are not covered by this Section 9. Non-covered claims include but are
not limited to claims by the Company for injunctive and/or other equitable
relief for unfair competition and/or the use and/or unauthorized disclosure of
trade secrets or confidential information, as to which Employee understands and
agrees that the Company may seek and obtain relief from a court of competent
jurisdiction.
-5-
10.3 Required Notice of All Claims and Statute of Limitations.
Company and Employee agree that the aggrieved party must give written notice of
any claim to the other party within one year of the date the aggrieved party
first has knowledge of the event giving rise to the claim; otherwise the claim
shall be void and deemed waived even if there is a federal or state statute of
limitations which would have given more time to pursue the claim. The written
notice shall identify and describe the nature of all claims asserted and the
facts upon which such claims are based.
10.4 Arbitration Procedures. Any arbitration shall be conducted in
accordance with the then-current Model Employment Arbitration Procedures of the
American Arbitration Association ("AAA"), modified to substitute for AAA
actions, the United States Arbitration and Mediation Service ("USA&MS"), before
an arbitrator who is licensed to practice law in the state of Pennsylvania (the
"Arbitrator"). The arbitration shall take place in or near Bethlehem,
Pennsylvania.
10.4.1 Selection of Arbitrator. The USA&MS shall give each
party a list of 11 arbitrators drawn from its panel of labor-management dispute
arbitrators. Each party may strike all names on the list it deems unacceptable.
If only one common name remains on the lists of all parties, that individual
shall be designated as the Arbitrator. If more than one common name remains on
the lists of all parties, the parties shall strike names alternately until only
one remains. The party who did not initiate the claim shall strike first. If
no common name remains on the lists of all parties, the USA&MS shall furnish an
additional list or lists until an Arbitrator is selected.
10.4.2 Applicable Law. The Arbitrator shall apply the
substantive law (and the law of remedies, if applicable) specified in this
Agreement or federal law, or both, as applicable to the claim(s) asserted. The
Arbitrator, and not any federal, state, or local court or agency, shall have
exclusive authority to resolve any dispute relating to the interpretation,
applicability, enforceability or formation of this Agreement, including but not
limited to any claim that all or any part of this Agreement is void or voidable.
The arbitration shall be final and binding upon the parties, except as provided
in this Agreement.
10.4.3 Authority. The Arbitrator shall have jurisdiction to
hear and rule on pre-hearing disputes and is authorized to hold pre-hearing
conferences by telephone or in person as the Arbitrator deems necessary. The
Arbitrator shall have the authority to entertain a motion to dismiss and/or a
motion for summary judgment by any party and shall apply the standards governing
such motions under the Federal Rules of Civil Procedure. The Arbitrator shall
render an award and opinion in the form typically rendered in labor
arbitrations.
10.4.4 Representation. Any party may be represented by an
attorney or other representative selected by the party.
10.4.5 Discovery. Each party shall have the right to take the
deposition of one individual and any expert witness designated by another party.
Each party also shall have the right to make requests for production of
documents to any party. The subpoena right specified below shall be applicable
to discovery pursuant to this paragraph. Additional discovery may be had only
where the Arbitrator selected pursuant to this Agreement so orders,
-6-
upon a showing of substantial need. At least 30 days before the arbitration, the
parties must exchange lists of witnesses, including any experts, and copies of
all exhibits intended to be used at the arbitration. Each party shall have the
right to subpoena witnesses and documents for the arbitration.
10.4.6 Reporter. Either party, at its expense, may arrange
for and pay the cost of a court reporter to provide a stenographic record of
proceedings.
10.4.7 Post-Hearing Briefs. Either party, upon request at the
close of hearing, shall be given leave to file a post-hearing brief. The time
for filing such a brief shall be set by the Arbitrator.
10.5 Enforcement. Either party may bring an action in any court of
competent jurisdiction to compel arbitration under this Agreement and to enforce
an arbitration award. Except as otherwise provided in this Agreement, both the
Company and Employee agree that neither shall initiate or prosecute any lawsuit
(other than for a non-covered claim) in any way related to any claim covered by
this Agreement. A party opposing enforcement of an award may not do so in an
enforcement proceeding, but must bring a separate action in any court of
competent jurisdiction to set aside the award, where the standard of review will
be the same as that applied by an appellate court reviewing a decision of a
trial court sitting without a jury.
10.6 Arbitration Fees and Costs. Company and Employee shall equally
share the fees and costs of the Arbitrator. Each party will deposit funds or
post other appropriate security for its share of the Arbitrator's fee, in an
amount and manner determined by the Arbitrator, 10 days before the first day of
hearing. Each party shall pay for its own costs and attorneys' fees, if any,
provided that the Arbitrator, in its sole discretion, may award reasonable fees
to the prevailing party in a proceeding.
11. General Terms and Conditions. This Agreement constitutes the
entire understanding of the parties relating to the employment of Employee by
the Company, and supersedes and replaces all written and oral agreements
heretofore made or existing by and between the parties relating thereto. This
Agreement shall be construed in accordance with the laws of the state of
Pennsylvania, without regard to any contrary conflicts of laws rules thereof.
This Agreement shall inure to the benefit of any successors or assigns of the
Company. All captions used herein are intended solely for convenience of
reference and shall in no way limit any of the provisions of this Agreement.
Employee acknowledges that he signed this Agreement upon his initial employment
with the Company.
The parties have executed this Employment Agreement as of the date
stated above.
ORASURE TECHNOLOGIES, INC.
By:
_______________ __________________________
R. Xxx Xxxxxxxx
Title:
__________________________
-7-
EXHIBIT A to Employment Agreement
Specific Duties of Employee as Executive Vice President and Chief Science
Officer
Employee as the Executive Vice President and Chief Science Officer of
the Company shall be responsible for ___________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
-8-
