Exhibit 14
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into this 27th day of May, 1999, by and
between EWOK ACQUISITION CORP., a Massachusetts corporation (hereinafter
"EWOK"), and XXXXXXXXX X. XXXXX (hereinafter "XXXXX").
WHEREAS, EWOK is proposing to acquire XXXXX' present employer, ENDOGEN,
Inc. (hereinafter "CORPORATION") in which event the operations of EWOK and
CORPORATION will merge; and
WHEREAS, assuming said merger is consummated and the contingencies set
forth in Section 8.2 below are satisfied, EWOK wishes to employ XXXXX as its
Vice President of Product Development and Technology under the terms and
conditions set forth in this Agreement; and
WHEREAS, in such event XXXXX wishes to be employed by EWOK as its Vice
President of Development and Technology under those same terms and conditions.
NOW, THEREFORE, in consideration of the above and the promises and
agreements set forth in this Agreement, the parties agree as follows:
1 EMPLOYMENT.
EWOK agrees to employ XXXXX and XXXXX accepts employment with EWOK
as its Vice President of Development and Technology.
2 DUTIES AND RESPONSIBILITIES.
As Vice President of Development and Technology, XXXXX will devote
her entire time, attention and energy to such duties, shall perform the
duties and assignments usually associated with that position and such
other duties and assignments, consistent with her position as Vice
President of Development and Technology of EWOK, as may be assigned to
her from to time-to-time by the Chairman of the Board of Directors of
EWOK or his
designee. The above notwithstanding, EWOK reserves the right following
the merger to change XXXXX' job title after the employment date (as
defined in Section 8.2 below) provided that such does not result in a
substantial diminution of XXXXX' job responsibilities as they existed
on the effective date of this Agreement.
XXXXX will not during the term of this Agreement be engaged in any
other business or employment (including self-employment) without the
express written consent of the chairman of the Board of Directors of
EWOK or his designee. However, with the advance approval of EWOK
(through the Chairman of its Board of Directors or his designee), XXXXX
may serve on the Boards of Directors of charitable organizations and/or
outside corporations provided such activities do not constitute an
actual or potential conflict of interest with and/or unduly interfere
with the performance of XXXXX' duties and responsibilities hereunder.
3 COMPENSATION.
3.1 BASE SALARY.
For all services rendered by XXXXX under this Agreement, EWOK
will pay an initial base salary of $144,000.00 per calendar year
(which shall be pro-rated for partial calendar years hereunder),
payable in equal installments on a schedule consistent with EWOK's
payroll practices for executive employees. EWOK shall deduct from
that base salary (as well as any adjustments to base salary
pursuant to Section 3.2 below) all state and federal taxes and
other assessments required by law.
3.2 ADJUSTMENTS TO BASE SALARY.
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The Chairman of the Board of Directors of EWOK or his
designee shall review XXXXX' salary and performance on an annual
basis (commencing on or about January 1, 2000, and on or about
January 1 of each succeeding year while XXXXX remains employed by
EWOK) and may, in his discretion, make increases to the base
salary based upon XXXXX' performance in the preceding year.
Adjustments to the base salary, if any, shall be effective as of
January 1 of the involved year.
3.3 BONUSES.
XXXXX shall be entitled to earn up to an additional
$36,000.00 per calendar year in keeping with the provisions of a
bonus plan which shall, hereafter, be mutually agreed upon by
XXXXX and EWOK. The terms of that bonus plan (including
eligibility factors therefor) shall be agreed upon by EWOK
(through the Chairman of its Board of Directors or his designee)
and XXXXX within ninety (90) days of the effective date of this
Agreement.
3.4 VEHICLE ALLOWANCE.
XXXXX shall receive a vehicle allowance equivalent to the sum
of $6,000.00 per calendar year (which shall be pro-rated for
partial calendar years hereunder) which shall be payable as income
to XXXXX and, therefore, subject to the deduction of all state and
federal taxes and other assessments required by law.
4 BENEFITS AND PERQUISITES.
Subject to applicable federal and state tax regulations, XXXXX
shall receive the following benefits and perquisites from EWOK:
4.1 INSURANCE.
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XXXXX shall be eligible for medical insurance (including
coverage for eligible dependents), disability insurance and life
insurance coverages under the same terms and conditions as those
benefits are made available to similarly-situated executive
employees of EWOK.
4.2 VACATION.
XXXXX shall be entitled to paid vacation under the same terms
and conditions as those benefits are made available to
similarly-situated executive employees of EWOK. The use and
scheduling of that vacation by XXXXX shall be consistent with
requirements of her position and shall not interfere with the
performance of her responsibilities as Vice President of
Development and Technology of EWOK.
4.3 EXPENSE ACCOUNT.
EWOK agrees to pay on XXXXX' behalf all reasonable and
customary business-related expenses incurred by her in the
provision of services under this Agreement. Included within this
obligation are all customer entertainment, business travel and
other expenses reasonably attributable to the provision of
services under this Agreement. Payment of expense account items
are subject to the approval of the Chairman of the Board of
Directors (or his designee) of EWOK and should be submitted by
XXXXX for approval on a monthly basis.
5 NON-DISCLOSURE/NON-COMPETITION.
5.1 NON-DISCLOSURE.
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XXXXX recognizes and acknowledges that information obtained
by her during the course of her employment with EWOK, its trade
secrets, business and customers, is confidential information. The
parties to this Agreement further stipulate that the information
referred to in Section 5 of this Agreement is sufficiently secret
that EWOK derives economic value from the information remaining
confidential and not being generally known to other persons who
can obtain economic value from its disclosure or use. XXXXX also
acknowledges that EWOK has taken precautions, such as this
Agreement, to keep such information confidential. XXXXX will not,
both during and after the termination of this Agreement (for
whatever reason), disclose or communicate to any person, firm,
corporation or other entity, in any manner, any trade secrets,
proprietary or confidential information of EWOK, CORPORATION
and/or PerBio Science AB. Such information includes, but is not
limited to, the following:
Technical or Non-Technical Data, Formula, Patterns,
Compilations, Devices, Methods, Techniques, Drawings,
Processes, Customer Lists, Business and/or Marketing
Development Plans or Information or other data of a similar
nature or description.
The above provisions shall be inapplicable to the disclosure
of information which (1) was part of the public domain prior to
the effective date of this Agreement, (2) is required as part of a
legal proceeding (but only to the extent that the disclosure of
the information is legally compelled) and/or (3) information that
becomes part of the public domain as the result of the disclosure
of such information by third parties through no fault, direct or
indirect, of XXXXX.
5.2 NON-COMPETITION.
XXXXX acknowledges the substantial time and effort expended
by EWOK and CORPORATION in establishing the long-standing
relationships they have with their
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customers. XXXXX agrees that during her employment with EWOK and
for a period of one (1) year following termination of her
employment with EWOK (for whatever reason), she will not, directly
or indirectly, either for herself or for any other person, firm,
partnership, agency, corporation or other entity, compete in their
lines of business with EWOK, CORPORATION, PerBio Science AB and/or
its or their respective subsidiaries or affiliates for which XXXXX
had material responsibility during the course of her employment
with EWOK or CORPORATION or solicit, call upon, divert or take
away or attempt to solicit, divert or take away from EWOK,
CORPORATION, PerBio Science AB and/or its or their respective
subsidiaries or affiliates for which XXXXX had material
responsibility during the course of her employment with EWOK or
CORPORATION any of their actual or potential customers nor assist
any other person or entity in doing so within the United States of
America. XXXXX represents that her experience and capabilities are
such that she can obtain employment in a non-competitive area and
that, in the event of the termination of this Agreement,
enforcement of this covenant by way of injunction will not impair
or prevent XXXXX from earning a livelihood.
5.3 RIGHTS AND REMEDIES.
The parties further stipulate that the matters covered in
this Agreement are important, material, confidential and gravely
affect the successful conduct, business and 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 XXXXX agree that the character, duration and
geographic scope of the provisions set forth in this Section 5 are
reasonable in light of the circumstances as they exist on the date
hereof. Should a decision, however, be made at a later date by a
court of competent jurisdiction that the character, duration or
geographic scope of said provisions is unreasonable, it is the
intention and the agreement of XXXXX and EWOK that the provisions
of this Section 5 shall be construed by the court in such a manner
as to impose only those restrictions on XXXXX' conduct that are
reasonable in light of the circumstances and as are necessary to
assure to EWOK and/or PerBio Science AB the benefits provided
under Section 5. If, in a judicial proceeding, a court shall
refuse to enforce all of the separate promises included therein
because taken together they are more extensive than necessary to
assure EWOK and/or PerBio Science AB the intended benefits of
Section 5, it is expressly understood and agreed by the parties
hereto that the provisions of Section 5 that, if eliminated, would
permit the remaining separate provisions to be enforced in such
proceeding shall be deemed eliminated for purposes of such
proceeding from Section 5.
6 TERM.
The initial term of this Agreement is for a period of two (2)
years, commencing on the "employment date" (as defined in Section 8.2
below) and terminating two (2) years hence, unless sooner terminated
pursuant to the provisions of this Agreement. In the event that EWOK
does not intend to renew this agreement upon the completion of its
initial term, EWOK shall provide XXXXX with a minimum of ninety (90)
days advance written notice prior to the expiration date of this
Agreement's initial term; in the event of such advance written notice,
EWOK may, in its discretion, place XXXXX on a leave of absence for all
or any portion of that ninety (90) day period. Provided, however, that
the failure to provide the notice required hereunder shall not result
in the extension of the term of this Agreement unless the parties have
mutually agreed, in writing, to such an extension.
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7 TERMINATION.
7.1 TERM.
The Agreement shall expire upon the expiration of its term
unless otherwise sooner terminated by the parties' written mutual
agreement or pursuant to the remaining provisions of this Section
7.
7.2 TERMINATION FOR CAUSE.
EWOK may terminate this Agreement prior to the expiration of
its term for cause without further obligation to XXXXX hereunder.
For purposes of this Agreement, "for cause" includes the
following:
(a) an intentional act of fraud, embezzlement, theft or any other
material violation of the law including those involving
dishonesty in connection with XXXXX' duties or in the course
of her employment with EWOK or the commission of a felony; or
(b) intentional wrongful damage to material assets of EWOK; or
(c) intentional wrongful disclosure of material confidential
information of EWOK; or
(d) intentional conduct by XXXXX which has resulted or may result
in financial loss and legal liability to EWOK which is
materially injurious to EWOK.
No act, or failure to act, on the part of XXXXX, shall be deemed
"intentional" if it was due primarily to an error in judgment or
negligence, but shall be deemed "intentional" only if done, or
omitted to be done, by XXXXX not in good faith and without
reasonable belief that her action or omission was in the best
interests of EWOK. In the event of a termination "for cause" under
the provisions of this Section 7.2, XXXXX shall not be entitled to
the salary continuation provided in Section 7.6 below.
7.3 TERMINATION WITHOUT CAUSE.
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XXXXX may terminate this Agreement upon the provision of six
(6) months written notice to EWOK. Similarly, EWOK may, in its
discretion, terminate this Agreement without cause upon the
provision of six (6) months written notice to XXXXX provided that
EWOK thereafter complies with the applicable provisions of Section
7.6 below.
In the event of written notice of termination by XXXXX or
EWOK under this Section, EWOK may, in its discretion, place XXXXX
on a leave of absence for all or any portion of that six (6) month
notice period up to and including the effective date of XXXXX'
termination from employment.
7.4 TERMINATION UPON DEATH OR DISABILITY.
EWOK may terminate this Agreement without further obligation
to XXXXX hereunder upon the death or permanent disability of
XXXXX. For purposes of this Agreement, the "permanent disability"
of XXXXX shall be deemed to occur if the Board of Directors of
EWOK determines, based upon competent medical evidence, that XXXXX
is unable to substantially perform the services required of her,
hereunder, with or without a reasonable accommodation, for a
continuous period of ninety (90) days or more. XXXXX shall
cooperate with EWOK in providing medical information necessary for
EWOK to assess the parties' respective duties and obligations
under the provisions of this Section.
7.5 TERMINATION BY XXXXX FOR "GOOD REASON"
XXXXX' employment under this Agreement may be terminated for
good reason (as set forth below) by written notice from her to the
Chairman of the Board of Directors of EWOK at least thirty (30)
days prior to a date of termination subsequent to the occurrence
of any of the following events:
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(a) a reasonable determination by XXXXX in good faith that there
has been a significant adverse change in the nature or scope
of XXXXX' responsibilities, authorities, powers, functions or
duties; or
(b) a reduction in XXXXX' monetary compensation; or
(c) the relocation of XXXXX' offices at which XXXXX is
principally employed to a location more than 50 miles from
the location where XXXXX is principally employed; or
(d) the failure by EWOK to pay to XXXXX any portion of her
current compensation or the failure by EWOK to continue in
effect any material compensation, incentive, bonus or benefit
plan in which XXXXX participates pursuant to the provisions
of this Agreement unless an equitable arrangement (embodied
in an ongoing substitute or alternative plan) has been made
with respect to such plan, or the failure by EWOK to continue
XXXXX' participation therein (or in such substitute or
alternative plan) on a basis not materially less favorable,
both in terms of the amount of benefits provided and the
level of XXXXX' participation, relative to the other
participants.
The above provisions notwithstanding, "good reason" shall not be
deemed to exist if any or all of the events noted in this Section
7.5 have been agreed upon in advance by XXXXX and EWOK.
7.6 SALARY CONTINUATION.
Subject to the provisions of this Section 7.6, XXXXX will be
provided with salary continuation upon termination of this
Agreement prior to its term as specified below. If a termination
during the term of this Agreement occurs pursuant to the
provisions of Section 7.3 above due to notice of termination
provided by EWOK, or in the event that this
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Agreement is not renewed and XXXXX' employment is terminated at
the expiration of its initial term (as provided in Section 6
above), XXXXX' salary (as provided in Section 3.1 above) shall be
continued for a period of twelve (12) months from the effective
date of termination; provided, however, that in no event shall
XXXXX receive salary continuation if she has provided notice of
termination to EWOK pursuant to the provisions of Section 7.3 or
if the Agreement has been terminated "for cause" as specified in
Section 7.2 above. Further, in the event of XXXXX' termination of
this Agreement for "good reason" (as specified in Section 7.5
above), XXXXX' salary (as provided in Section 3.1 above) shall be
continued for a period of twelve (12) months from the effective
date of termination.
The above notwithstanding, XXXXX shall not be entitled to the
salary continuation provided in this Section 7.6 unless and until
she has signed and delivered to EWOK a binding agreement in a form
acceptable to EWOK setting forth a release of any and all claims
arising from her employment, termination from employment and
termination of this Agreement with EWOK. During the period of
salary continuation (regardless of duration), XXXXX shall not be
entitled to continuation of the other benefits or perquisites
provided in this Agreement unless otherwise required by law or by
the mutual agreement of the parties hereto. Further, in no event
shall XXXXX be entitled to receive multiple payments of salary
continuation under the provisions of this Section 7.6 should her
termination from employment with EWOK be claimed or determined to
be attributable, in whole or in part, to two or more of the
reasons specified in this Section.
7.7 PROPERTY OF THE BUSINESS.
Upon XXXXX' termination of employment (for any reason), all
memoranda, notes, lists, records and other documents or papers
(and all copies thereof) including items stored in computer
memories, on microfiche or by any other means, made or compiled by
or on
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behalf of XXXXX, or made available to XXXXX relating to the
business of EWOK, are and shall be EWOK's property and shall, if
in the possession of XXXXX, be promptly delivered to EWOK.
8 MODIFICATION; CONTINGENCIES AND ASSIGNMENT.
8.1 MODIFICATION.
This Agreement may not be modified except in writing signed
by both parties.
8.2 CONTINGENCIES AND ASSIGNMENT.
The obligations of XXXXX and EWOK under this Agreement are
contingent upon EWOK's consummation of its merger with CORPORATION
as set forth below. For purposes of this Agreement, the
consummation of that merger and XXXXX' "employment date" shall be
deemed to have occurred on the date, if any, on which EWOK accepts
for payment shares tendered pursuant to EWOK's tender offer for
all of the issued and outstanding common stock of CORPORATION. In
the event that said contingency is not fully satisfied and the
tender offer is not consummated, all obligations pursuant to this
Agreement and the provisions of this Agreement shall be null, void
and no longer in force or effect.
It is expressly agreed that the duties, rights and
obligations of EWOK and XXXXX under this Agreement shall be
transferred to any entity with which EWOK may merge on or
following the "employment date" as set forth above. Additionally,
EWOK or that entity may further assign such duties, rights and
obligations to other entities following said merger provided said
assignment is to a subsidiary of PerBio Science AB. EWOK or that
entity shall provide XXXXX with written notice of said
assignments; in that event, the obligations of XXXXX and EWOK as
set forth in this Agreement shall, thereafter, be applicable to
the entity identified in that notice. Except as specifically
provided in this Section 8.2, the duties, rights and
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obligations set forth in this Agreement shall not otherwise be
assignable by EWOK or XXXXX to any other corporation or other
entity without the other party's approval, in writing.
9 GOVERNING LAW.
The performance and interpretation of this Agreement shall be
construed in accordance with the laws of the State of Massachusetts.
10 WAIVER.
Waiver of any breach of the terms and conditions of this Agreement
shall not be construed to be a waiver of any preceding or succeeding
breach of the same or different term or condition of this Agreement,
and this Agreement shall continue and remain in full for and effect as
if no waiver had occurred.
11 NOTICE.
Notices shall be deemed delivered and received as of the date of
the U.S. Postal Service postmark. Any notice required by this Agreement
shall be sent by certified mail, return receipt requested, to the
following addresses:
To: EWOK
c/o Chairman of the Board
c/o Endogen, Inc.
00 Xxxxxxxx Xxx
Xxxxxx, XX 00000
with a copy to:
Xx. Xxxx Xxxxxxxx
Xxxxxx Chemical Co.
0000 Xxxxxxxx Xx.
Xxxxxxxx, XX 00000
To: XXXXXXXXX X. XXXXX
0 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
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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.
XXXXX hereby warrants that neither the entry into this
Employment Agreement nor its performance by XXXXX will conflict with or
result in a breach of the terms, conditions or privileges of any
agreement or other obligation of any nature to which XXXXX is a party,
or by which XXXXX is bound, including without limitation, any
employment agreements, non-competition agreements or confidentiality
agreements previously entered into by XXXXX.
EXECUTED on the 27th day of May, 1999.
EWOK ACQUISITION CORP., a Massachusetts corporation
By: /s/ XXXXXXXXX X. XXXXX
Its: /s/ XXXX XXXXXXXX ------------------------
------------------------------------------------ XXXXXXXXX X. XXXXX
ATTEST:
/s/ XXXXX X. XXXXXX
----------------------------------------------------
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