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
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of 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
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result in the extension of the term of this Agreement unless the
parties have mutually agreed, in writing, to such an extension.
7. TERMINATION.
7.1 Term.
The Agreement shall expire upon the expiration of its term
unless otherwise sooner terminated by the parties' written
mutual agreement or pursuant to the remaining provisions of this
Section 7.
7.2 Termination for Cause.
EWOK may terminate this Agreement prior to the expiration
of its term for cause without further obligation to 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
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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.
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"
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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:
(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.
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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 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
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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 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.
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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 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:
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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
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
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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. Xxxxxxxx /s/ Xxxx X. Xxxxxxx
------------------------------ -------------------------------------
Its: President XXXX X. XXXXXXX
ATTEST:
/s/
------------------------------
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