Exhibit 10.14
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Employment Agreement"), made and entered
into as of this 1st day of November, 1995, by and between LabOne, Inc., a
Delaware corporation ("LabOne"), and Xxxxxx X. Xxxxx ("Employee").
WITNESSETH:
WHEREAS, LabOne is a laboratory specializing in urine and blood
chemistry testing; and
WHEREAS, Employee is knowledgeable and has substantial experience
in the specialized business of urine and blood chemistry testing ("Lab
Business"); and
WHEREAS, in accordance with the terms and provisions of this
Employment Agreement, LabOne desires to employ Employee to obtain the
benefit of his knowledge and experience, and Employee desires to be
employed by LabOne; and
WHEREAS, LabOne and Employee agree that the restrictive covenants
and confidentiality agreements contained in this Employment Agreement
are essential to the growth and stability of the Lab Business of LabOne
and to the continuing viability of the Lab Business in the event the
employment of Employee is terminated,
NOW, THEREFORE, in consideration of LabOne's agreement to employ
Employee and the mutual promises herein contained, the parties hereto
agree as follows:
1. EMPLOYMENT. LabOne hereby agrees to employ Employee, and
Employee hereby agrees to accept such employment and to perform his duties
and obligations hereunder, in accordance with the terms and conditions
hereinafter set forth.
2. TERM. The term of Employee's employment pursuant to this
Employment Agreement shall commence on the date hereof and shall continue
until terminated in accordance with the provisions of paragraph 10 hereof.
3. DUTIES AND RESPONSIBILITIES. Employee shall serve as Executive
Vice President-Sales, shall serve in such other capacities as the Officers
or Board of Directors of LabOne may from time to time prescribe, shall
perform all duties incidental to such positions and shall cooperate fully
with the Board of Directors and Officers of LabOne. Employee shall devote
all his business time, attention and energy to the performance of such
duties and responsibilities.
4. COMPENSATION. During the term of Employee's employment pursuant
to this Employment Agreement, Employee shall be paid a salary of $12,500 per
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calendar month, or such other amount, which shall not be less than said
base salary, as may from time to time be determined by LabOne, payable
in arrears.
5. DEVELOPMENTS. Employee will promptly disclose to LabOne (in
form satisfactory to LabOne) all information, technology, inventions,
discoveries, improvements, processes, formulae, ideas, know-how, methods,
compositions, research projects, computer software programs and
developments, whether or not patentable or copyrightable (collectively
"Information"), that Employee by himself or in conjunction with any
other person or entity conceives, makes, develops or acquires during
the term of his employment pursuant to the Employment Agreement, and
that:
(a) are or relate or pertain to the assets, properties, or
existing or contemplated business or research activities or LabOne,
or
(b) are suggested by, arise out of or result from, directly
or indirectly, Employee's association with LabOne, or
(c) arise out of or result, directly or indirectly, in part
or fully, from the use of LabOne's time, labor, materials, facilities
or other resources, (collectively "Developments").
Any Information fitting within any of the descriptions contained
in subsections (a), (b) or (c) of this paragraph 5 that is disclosed
to any other person, firm or other entity by Employee or used in any
manner by Employee within one (1) year following the termination of his
employment pursuant to this Employment Agreement shall be presumed to
have been conceived, made, developed or acquired during the term of his
employment pursuant to this Employment Agreement and, thus, to constitute
a Development.
Employee hereby assigns, transfers and conveys to LabOne all of
his right, title and interest in and to any and all such Developments,
which Developments shall become and remain the sole and exclusive
property of LabOne. At any time and from time to time, upon the request
of LabOne, Employee will execute and deliver any and all instruments,
documents and papers, give evidence and do any and all other acts which,
in the opinion of counsel for LabOne, are or may be necessary or desirable
to document such transfer, or to enable LabOne to file and process
applications for and to acquire, maintain and enforce any and all patents,
trademarks, registrations or copyrights with respect to any such
Developments, or to obtain any extension, validation, re-issue, continuance
or renewal of any such patent, trademark or copyright. LabOne will be
responsible for the preparation of any such instruments, documents and
papers and for the implementation of any such proceedings and will reimburse
Employee for all reasonable expenses incurred by him in compliance with the
provisions of this paragraph.
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6. PROPERTY OF LABONE. All correspondence, notes, recordings,
documents, customer lists and other materials and reproductions thereof
pertaining to any aspect of the business of LabOne shall be the property
of and shall be delivered to and retained by LabOne upon termination of
his employment pursuant to this Employment Agreement.
7. CONFIDENTIALITY. During the term of and at any time after the
termination of his employment pursuant to this Employment Agreement,
Employee will hold in trust and confidence and will not divulge, disclose
or convey to any person, firm, corporation or other entity and will keep
secret and confidential all trade secrets, proprietary information and
confidential information heretofore or hereafter acquired by him concerning
LabOne, Head Office Reference Laboratory Ltd. or Seafield Capital
Corporation and will not use for himself or others the same in any
manner, except to the extent that such information should become no
longer a trade secret, proprietary or confidential. Such trade secrets,
proprietary information and confidential information shall be deemed to
include, but shall not be limited to, information, whether written or
not:
(a) of a technical nature, such as but not limited to,
technology, inventions, discoveries, improvements, processes, formulae,
ideas, know-how, methods, compositions, computer software programs or
research projects, including the identity of research organizations and
researchers,
(b) of a business nature, such as but not limited to information
concerning costs, profits, supplies, suppliers, marketing, sales or lists
of customers, and
(c) pertaining to future developments, such as but not limited
to information concerning research and development or future marketing
methods.
8. RESTRICTIVE COVENANTS. In consideration for his employment
with LabOne and in further consideration for the compensation provided
for in paragraph 4 and the post-termination payment, if any, provided
for in paragraph 10, Employee agrees that during the term of his employment
pursuant to this Employment Agreement, and for a period of two (2) years
after the termination for any reason of his employment pursuant to this
Employment Agreement, he will not, without the prior written consent of
LabOne, directly or indirectly, individually or in concert with others,
or through the medium of any other corporation, partnership, syndicate,
association, joint venture, or other entity or as employee, officer,
director, agent, consultant or affiliate, compete with LabOne, within
the hereinafter described region, in the urine or blood chemistry testing
or analysis business for the insurance or the clinical testing industry
or in the urine or blood chemistry container or other supply business
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for the said testing industries, and Employee will not solicit or accept
any such business from any customer who is served by LabOne as of the
date of the termination of his employment pursuant hereto. The region
referred to above shall consist of any territory(ies) in which LabOne or
any of its representatives or agents, as of the date of the termination
of Employee's employment pursuant hereto, provides, sells, offer for sale
or solicits the sale to the said laboratory testing industries urine,
blood or other bodily fluid or specimens testing or analysis or urine
or blood containers or other supplies related thereto.
9. JUDICIAL RELIEF. LabOne and Employee agree that in the event
that any court shall finally hold that any provision of paragraph 8 of
this Employment Agreement is void or constitutes an unreasonable
restriction against Employee, the provisions of paragraph 8 shall not
be rendered void, but shall apply with respect to such time or territory
or to such other extent as such court may judicially determine or
indicate constitutes a reasonable restriction under the circumstances.
LabOne shall be entitled to appropriate injunctive relief in any court
of competent jurisdiction to enforce its rights under paragraphs 5, 6,
7 and 8 of this Employment Agreement, in addition to any other rights
and remedies available to LabOne at law or in equity, it being agreed
that any violation of paragraphs 5, 6, 7 or 8 of this Employment
Agreement by Employee is reasonably likely to cause irreparable damage
to LabOne which will be difficult or impossible to value in monetary
damages.
10. TERMINATION. Employee's employment pursuant to this
Employment Agreement shall terminate upon the occurrence of any of
the following events:
(a) DEATH. In the event that Employee dies during the term
of this Employment Agreement, LabOne shall pay to his executors or
administrators an amount equal to the installments of his salary payable
for the month in which he dies, and, thereafter, LabOne shall have no
further liability or obligation hereunder to his executors, heirs or
assigns or any other person claiming under or through him.
(b) DISABILITY. In the event that Employee continues unable
to fully perform his duties and responsibilities hereunder by reason of
illness, injury or mental or physical disability or incapacity for ninety
(90) consecutive days, during which time he shall continue to be
compensated for monthly installments of salary as provided in paragraph
4 hereof, Employee's employment pursuant to this Employment Agreement
may be terminated by LabOne, and LabOne shall thereafter have no further
liability or obligation hereunder to Employee. Employee agrees in the
event of any dispute under this paragraph to submit to a physical
examination by a licensed physician selected by LabOne and to accept
LabOne's decision based on the results thereof.
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(c) VOLUNTARY TERMINATION. Employee's employment may be
voluntarily terminated upon Employee giving thirty (30) days' prior
written notice to LabOne. In the event Employee voluntarily terminates
his employment, LabOne shall have no further liability or obligation
hereunder to Employee.
(d) TERMINATION FOR CAUSE. Employee's employment may be
involuntarily terminated by LabOne at any time for cause. In the
event that Employee is involuntarily terminated by LabOne for cause,
LabOne shall thereafter have no further liability or obligation
hereunder to Employee.
(e) TERMINATION WITHOUT CAUSE. Employee's employment may
be involuntarily terminated by LabOne at any time without cause upon
LabOne giving thirty (30) days' prior written notice to Employee.
In the event that Employee is involuntarily terminated without cause
by LabOne, LabOne shall pay to Employee in a lump sum an amount equal
to twelve (12) months' base salary. Said amount shall be paid to
Employee within 30 days of LabOne's giving notice of termination to
Employee and shall be determined by the aggregate of the last twelve
(12) months' base salary of such Employee preceding the month LabOne
transmits such notice of termination. Upon such payment, LabOne shall
have no further liability or obligation hereunder to Employee.
(f) TERMINATION SUBSEQUENT TO CHANGE IN CONTROL.
Notwithstanding any other provision of this Agreement to the contrary,
in the event that (i) a change of control of LabOne shall occur at any
time during which Employee is in the full-time employment of LabOne or
its successor and (ii) within one (1) year after such a change in
control, Employee's employment with LabOne or its successor is
terminated by LabOne or its successor for any reason other than
permanent disability, death or normal retirement, or is voluntarily
terminated by Employee for any reason at his sole discretion, LabOne
will promptly pay to Employee as termination compensation the lump
sum amount described below. The lump sum compensation payable shall
be equal to three (3) times the average annual compensation includable
in Employee's gross income for the most recent five (5) taxable years
ending before the date of the change in control. If Employee has been
an employee of LabOne for less than 5 years, Employee's lump sum payment
shall be equal to 3 times the average annual compensation includable in
Employee's gross income based on the portion of the 5 year period during
which Employee performed services for LabOne. To the extent that any
amount required to be paid hereunder would constitute an "excess
parachute payment" within the meaning of Section 280G(b) of the
Internal Revenue Code of 1986, that excess amount need not be paid.
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For purposes of this paragraph 10(f), a "change of control"
shall be deemed to have taken place if there shall have occurred (i)
the sale or other disposition resulting in the transfer of legal or
beneficial ownership of, or the right to vote, more than fifty percent
(50%) of the outstanding capital stock of LabOne to one or more
third-party purchasers unaffiliated with Seafield Capital Corporation,
its shareholders or affiliates (as the term "affiliate" is defined in
Rule 12b-2 promulgated by the Securities and Exchange Commission under
the Securities Exchange Act of 1934), except in connection with an
underwritten public offering of the common stock of LabOne, (ii) a
merger or consolidation of LabOne with or into any entity other than
Seafield Capital Corporation or its affiliates, or (iii) a sale or
other transfer of substantially all of the assets of LabOne to any
person or entity other than Seafield Capital Corporation or its
affiliates.
In the event of termination of employment under the
circumstances described above, LabOne shall pay to Employee the
installments of his base salary through the date of termination of
employment, any annual incentive bonus for the previous year if such
has been approved but not paid and the lump sum amount as termination
compensation described in this paragraph 10(f), and any remaining term
of this Agreement shall be cancelled. Such payments to Employee and
the arrangements provided for by any stock option or other agreement
between LabOne and Employee in effect at the time and by any other
applicable plan of LabOne will constitute the entire obligation of
LabOne to Employee with respect to such termination, and will also
constitute full settlement of any claim under law or in equity that
Employee might otherwise assert against LabOne or any of its employees
on account of such termination.
11. SURVIVAL. Notwithstanding the termination of Employee's
employment pursuant to the provisions of paragraph 10 hereof, Employee's
obligations under paragraphs 5, 6, 7 and 8 hereof and the provisions
for relief against Employee in paragraph 9 hereof shall continue in
full force and effect. Any right or power conferred upon LabOne or
the Board of Directors of LabOne by the terms of this Employment
Agreement shall inure to the benefit of any person(s) of entity(ies)
into which LabOne is consolidated, merged or liquidated, and the Board
of Directors or other governing body of any such corporation of other
entity.
12. LAW GOVERNING. This Employment Agreement shall be governed
by and interpreted under the laws of the State of Kansas.
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13. NOTICES. All notices and other communications required
or permitted hereunder or necessary or convenient shall be deemed to
have been given when mailed by certified or registered mail, postage
prepaid, addressed as follows:
If to Employee to: Xxxxxx X. Xxxxx
Seven Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
and if to LabOne, to: W. Xxxxxx Xxxxx XX
President and Chief Executive Officer
LabOne, Inc.
00000 Xxxx 00xx Xxxxxxx
Xxxxxx, Xxxxxx 00000
or such other persons and addresses as have been furnished by Employee
or LabOne to the other in writing. The failure of Employee or LabOne
to require strict performance of any provision of this Employment
Agreement by the other, or the forbearance to exercise any right or
remedy, shall not be construed as a waiver by such party of any such
right or remedy, nor shall any single or partial exercise of any right
or remedy preclude any other or further exercise thereof or the exercise
of any other right or remedy.
14. CONTENTS OF EMPLOYMENT AGREEMENT, AMENDMENT AND ASSIGNMENT.
This Employment Agreement sets forth the entire understanding between
the parties with respect to the subject matter hereof and cannot be
changed, modified or terminated except in writing. All of the terms
and provisions of this Employment Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective heirs,
representatives, successors and assigns of the parties hereto, except
that the duties and responsibilities of Employee hereunder are of a
personal nature and shall not be assignable in whole or in part by
Employee
15. SEVERABILITY. If any provision of this Employment Agreement
or the application thereof under any circumstance is adjudicated to be
invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision or application of this Employment Agreement
which can be given effect without the invalid or unenforceable provision
or application.
16. GENDER. Masculine pronouns used herein shall refer to the
masculine or feminine gender as appropriate.
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IN WITNESS WHEREOF, the undersigned have executed this
Employment Agreement as of the date first above written.
LABONE, INC.
By: /s/ W. Xxxxxx Xxxxx XX
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W. Xxxxxx Xxxxx XX, President
/s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX
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