EXHIBIT 10.33
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EMPLOYMENT AGREEMENT
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THIS AGREEMENT, effective the 1st day of October, 1998, by and between
BioReliance Corporation and all of its subsidiary companies and its successors
or assigns (the "Corporation") and ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ (the "Employee").
Preliminary Statements
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WHEREAS, the Employee is currently employed by the Corporation;
WHEREAS, the parties desire to provide for the continued employment of
the Employee by the Corporation on the terms and conditions set forth in this
Agreement; and
Terms and Conditions of Agreement
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NOW THEREFORE, in consideration of the mutual promises and agreements
set forth in this Agreement, the adequacy of which are acknowledged, and with
the intent to be bound hereby, the Corporation and Employee agree as follows:
A. POSITION
The Employee will be employed as Chief Financial Officer of
the Corporation through November 15, 1998. Thereafter, the Corporation,
at its election, may continue Employee in the position of Chief
Financial Officer through the remainder of the Term (as hereinafter
defined), or the Corporation many elect to change Employee's position
to Vice President, Corporate Development. Employee shall continue as
Vice President, Corporate Development, or such other senior management
position as may be determined by the Corporation from time to time,
through the remainder of the Term.
B. DUTIES
As Chief Financial Officer, Employee shall perform such duties
as may be assigned to him from time to time (consistent with the
limitations set forth in Section D(iv) of this Agreement) by the
President and Chief Executive Officer ("CEO"), including, but not
limited to: (i) finance, accounting and treasury responsibilities; (ii)
diligently pursuing the filing of the Corporation's 10-Q for the third
quarter and signing the same; (iii) handling the investor conference
call and other contacts specifically related to the release of the
Corporation's third quarter 1998 results; and (iv) maintaining a policy
that contacts with investors, analysts, investment brokers or managers
and other like persons will be at the direction of the President and
CEO of the Corporation, except for routine contacts with bank and cash
managers.
As Vice President, Corporate Development, Employee shall
perform such duties as may be assigned to him from time to time by the
President and CEO of the Corporation, including, but not limited to,
the evaluation and analysis of acquisition opportunities related to
such target companies as may be identified from time to time by the
President and CEO. The Corporation and Employee acknowledge that the
duties of Vice President, Corporate Development may not require the
full-time attention of the Employee, and the Corporation shall be
flexible concerning the Employee's hours and place of work for the
remainder of the Term.
Employee shall continue to be entitled to all rights of
indemnification by the Corporation as to which he is presently
entitled, and the Corporation's obligation to indemnify Employee shall
not be diminished by the limitations on Employee's duties or hours of
work.
C. TERM
The terms and conditions of this Employment Agreement will
cover a period beginning as of the date hereof and ending on December
31, 1998 (the "Term"), unless otherwise terminated as provided in
Section E below. During the Term of this Agreement, the parties
acknowledge that Employee's employment is not "at will" employment, and
the Corporation's obligation to pay Employee the compensation described
in Section D of this Agreement shall exist regardless of any decision
by the Corporation to terminate Employee's employment for any reason
(other than a termination for cause) prior to the expiration of the
Term. At the end of the Term of this Agreement, the Employee's
employment status shall terminate. The terms and conditions contained
in Section E of this Agreement will expire at the end of the Term.
D. COMPENSATION AND BENEFITS
(i) Base Salary
The Employee's annual base salary will be One Hundred
and Seventy-Five Thousand Dollars ($175,000), payable on the
Corporation's regular bi-weekly payroll basis. The Employee
shall receive only that portion of the base which will become
due during the Term, and not the total annual base salary.
(ii) Bonus
The Employees shall be paid a bonus of Fifteen
thousand Dollars ($15,000), less applicable withholdings and
deductions (if any), on January 1, 1999.
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(iii) Incentive Compensation
As an inducement to remain in the employ of the
Corporation and as an incentive to build the Corporation's
value, if the Employee remains in the employ of the
Corporation through December 31, 1998, and performs his duties
as described in Paragraph B hereof (consistent with the
limitations set forth in Section D(iv) of this Agreement), he
shall be paid a bonus in the amount of $35,000 (less
applicable withholdings and deductions, if any), without
appraisal, at such time as other bonuses are paid in the first
quarter of 1999. The Corporation will be obligated to pay
Employee this Incentive Compensation bonus no later than
January 15, 1999 as long as Employee (i) does not resign from
the Corporation before December 31, 1998 and (ii) is not
terminated for Cause (as hereinafter defined) on or before
December 31, 1998.
(iv) Hours of Work
From the date hereof until November 15, 1998, the
Employee shall be required to work no more than thirty (30)
hours per week performing his duties as CFO and all hours in
excess thereof will be governed by Section G hereof. After
November 15, 1998, all hours in excess of sixteen (16) hours
per week spent by Employee performing his duties will be
governed by Section G hereof.
(v) Other Provisions
The Corporation will provide such medical and other
coverage to the Employee as the Corporation makes available to
all employees generally from time to time. The Employee will
also receive the Corporation's standard vacation, sick time
and personal holiday benefits. Eligibility to extend group
health coverage beyond the Term for Employee or any dependants
may be exercised by signing the applicable COBRA agreement.
Employee will continue accruing Paid Personal Leave (PPL)
through the Term.
E. TERMINATION COMPENSATION AND BENEFITS
In the event that during the Term of this Agreement, the
Employee's employment with the Corporation is involuntarily terminated
by the Corporation other than for Cause or because of the Employee's
death or substantial inability to work, the Corporation will pay the
Employee a lump sum payment equal to all amounts that would have
otherwise become due hereunder, including without limitation the Bonus
and Incentive Compensation described in Section D (ii) and (iii)
hereof.
For a period of twelve (12) months after such termination, the
Corporation will also continue to make available the same health and
dental (but no other) benefits made available to Corporation employees
generally at a cost equal to the
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cost the Employee would have paid if he had continued to be an employee
of the Corporation. In the event the Employee becomes employed at any
time during the twelve (12) month continuance period, all remaining
health and dental benefits shall terminate as of date of hire by the
Employee's new employer.
If Employee terminates his employment prior to the end of the
Term, the Corporation shall have no further obligations under Sections
D or E hereof after the effective date of termination.
As used in this Agreement, "Cause" shall mean that the
Employee (a) committed a material act or material acts of personal
dishonesty intended to result in the Employee's personal enrichment at
the expense of the Corporation, and which constitute(s) fraud, grand
larceny or any felonious act, (b) failed or refused to perform the
Employee's material duties and obligations (consistent with the
limitations set forth in Section D(iv) of this Agreement) as an
employee, officer and/or director of the Corporation (other than due to
disability or reasons beyond the Executive's reasonable control) if
such failure or approval is not remedied within a reasonable period of
time following the Employee's receipt of notice thereof.
F. CONFIDENTIALITY
By signing below, Employee acknowledges his ongoing and
continuing obligation to abide by the Confidentiality, Trade Secrets
and Noncompetition Agreement that he executed on July 28, 1998, and to
keep secret or confidential, and not to utilize in any matter or
disclose to third parties, any proprietary and confidential information
of the Corporation, which may have been made available to him or came
into his possession during the period of his employment with
Corporation. Employee also agrees that, during and after the Term, he
shall not make any defamatory or disparaging comments about the
Corporation, its agents, employees, successors, assigns, corporate
parent, affiliates, officers, or directors to third parties, or to
former, present, or prospective customers, clients, vendors, business
associates or anyone else in the industry, and shall not unlawfully
interfere with the business advantage or contracts of the Corporation,
its successors, assigns, corporate subsidiaries, and affiliates. During
and after the Term, the Corporation agrees that it shall not make any
defamatory or disparaging comments about Employee.
G. CONSULTING SERVICES
During the Term, the Employee and Corporation may also agree
that Employee will provide separate and additional consulting services
in excess of the hours of performance required pursuant to Section D
hereof, and during the 3 1/2 month period following the expiration of
the Term hereof, as set forth in Exhibit A, Employee may provide such
consulting services to the Corporation for the purpose of accomplishing
a smooth transition of obligations from Employee to the new Chief
financial Officer and to facilitate the Corporation's quarterly and
year-end audits and the filing of its subsequent annual report on Form
10-K, tax
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filings and matters related thereto. Such services shall be provided on
the terms and conditions set forth in the Professional Services
Agreement attached hereto as Exhibit A.The CEO must approve all
consulting services to be provided by Employee in writing in advance of
the performance of such services.
H. SURVIVAL
Except for the terms and conditions set forth above in Section
E, the terms and conditions of this Agreement, including without
limitation the terms and conditions set forth above in Section F
regarding Confidentiality, Non-Competition and Non-Solicitation, will
remain in effect after the end of the Term.
I. ASSIGNABILITY
Except by will or by the laws of descent and distribution,
neither this Agreement nor any right or interest hereunder shall be
assignable or transferable by the Employee or by the Employee's
beneficiaries or legal representatives. This Agreement shall inure to
the benefit of and be enforceable by the Employee's legal personal
representative.
J. GOVERNING LAW
This agreement shall be construed and governed by the laws of
the State of Maryland without regard to its choice of law provisions.
K. SEVERABILITY
The provisions of this Agreement shall be deemed severable, and the
invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof.
L. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement between the
Corporation and the Employee and supersedes all prior agreements,
offers, terms or conditions regarding Employee's employment, except for
the Confidentiality, Trade Secrets and Noncompetition Agreement, which
will survive.
M. WAIVER
Employee acknowledges, absent this Agreement, Employee has no
right or entitlement to any severance payment and benefit, or to a
separate allowance in any particular amount. For the consideration set
forth in Section D (ii) hereof, the adequacy of which is hereby
acknowledged, except for breach of this Agreement by the Corporation,
the Employee hereby remises, releases and forever discharges and
quitclaims onto the Corporation and its officers, directors,
shareholders, employees, agents and representatives of and from any and
all debts, actions, causes of action, suits, accounts, covenants,
contracts, agreements, damages, and
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any and all claims, demands and liabilities whatsoever of every name
and nature, both in Law and in Equity (collectively referred to therein
as "Claims"), which the Employee now has or ever had from the beginning
of time.
N. NO CONFLICTS OF INTEREST
By signing this Agreement, the Employee represents that he is
not subject to any restrictions, particularly, but without limitation,
in connection with any previous employment, which prevents the Employee
from entering into and performing his obligations under this Agreement
or which materially and adversely affect (or may in the future, so far
as the Employee can reasonably foresee, materially and adversely
affect), the Employee's right to participate in the affairs of the
Corporation.
O. PROOF OF CITIZENSHIP AND ABILITY TO WORK
This Agreement is contingent on the Employee providing the
Corporation, if not previously provided, with proof of U.S. citizenship
or alien work permission, as required by federal law.
BioReliance Corporation
By: ___________________________
Name: Capers ▇. ▇▇▇▇▇▇▇▇
Title: President and CEO
_______________________________
▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
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EXHIBIT A
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
BIORELIANCE CORPORATION
AND
▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
THIS AGREEMENT is entered into as of date below written by and between
BioReliance Corporation ("BioReliance"), a Delaware Corporation, with principal
offices located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ ("Consultant") residing at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
WITNESSETH
WHEREAS, BioReliance desires to have Consultant perform professional
services to assist BioReliance in facilitating the transition of the duties of
Chief Financial Officer, and
WHEREAS, Consultant has served as the Chief Financial Officer for
BioReliance and its subsidiaries and affiliates (the "Corporation")
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, BioReliance and Consultant agree as follows:
1. SCOPE OF WORK
Subject to the terms and conditions hereinafter provided, Consultant
may provide professional services related to transition of the duties of Chief
Financial Officer and the filing of certain reports with the Securities and
Exchange Commission and the Internal Revenue Service in connection with the
close of the Corporation's fiscal year. Services shall include, but not be
limited to the following: reasonable assistance upon prior notice at reasonable
times and locations as may be mutually agreed by BioReliance and Consultant in
connection with the close of the Corporation's books for year end 1998; the
filing of the Corporation's 10-K, annual report and proxy materials for 1998;
the filing of the Company's various tax retentions; and the audit of the
Corporation's books for 1998.
2. TERM AND TERMINATION
This Agreement shall have a term commencing on October 1, 1998, or such
an earlier or later date as the parties agree, and terminating April 15, 1999.
3. CONSIDERATION AND PAYMENT TERMS
As consideration for services provided by Consultant, BioReliance shall
pay the consultant the hourly rate of $200 per hour.
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4. DIRECTION
Consultant shall report to and receive direction from Capers ▇.
▇▇▇▇▇▇▇▇, President and Chief Executive Officer ("CEO"), or other individuals
designated by BioReliance from time to time. All services to be provided under
this Agreement require the prior written approval of the CEO. The Corporation
will not be obligated to pay any fees pursuant to this Agreement for services
which have not been approved in writing by the CEO prior to the performance of
such services.
5. TRAVEL
BioReliance agrees to reimburse Consultant for any non-local travel and
living expenses incurred in the performance of this Agreement if such non-local
travel is approved in advance by the CEO. Reimbursement will be in accordance
with BioReliance's travel policy.
6. PROPRIETARY INFORMATION
In providing services to BioReliance, Consultant may have knowledge of
its affairs, trade secrets, potential customers and other proprietary
information. Consultant shall treat all such information as proprietary and
confidential to BioReliance in accordance with the Confidentiality Agreements
dated July 8, 1998 and July 28, 1998 between BioReliance and Consultant.
7. WARRANTY
Consultant warrants that the professional services provided under this
Agreement will be performed competently and in accordance with the standard of
care usually and reasonably expected in performance of such services.
8. INDEPENDENT PARTIES
Nothing in this Agreement shall be construed as to create any
relationship between BioReliance and Consultant other than that of independent
contracting parties. Neither party shall have any right, power or authority to
assume, create or incur any expense, liability or obligation, express or
implied, on behalf of the other.
9. WAIVER
No waiver by either party of any breach of any provision hereof shall
constitute a waiver of any other breech of that or any other provision hereof.
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10. SEVERABILITY
If any part, term or provision of this Agreement is determined to be
invalid or unenforceable, the remainder of this Agreement shall not be affected,
and this Agreement shall otherwise remain in full force and effect.
11. ARBITRATION
Any claim or controversy relating to or rising out of the Agreement
shall be resolved exclusively by arbitration, in accordance with the rules then
obtaining of the American Arbitration Association.
12. ENTIRE AGREEMENT
This Agreement sets forth the entire agreement and understanding
between BioReliance and Consultant relating to the Services to be performed
hereunder. This Agreement supersedes all other communications between
BioReliance and Consultant relating to the subject matter hereof.
Any amendments to or modifications of this Agreement shall be effective
only if reduced to writing and executed by both BioReliance and Consultant.
13. HEADINGS
The Subject matter headings used in this Agreement are solely for
convenience and are not to be taken as modifying, clarifying, describing or
limiting any provisions hereof.
IN WITNESS THEREOF, BioReliance and Consultant have caused this
Agreement to be executed by their duly authorized representative as of the dates
set forth above.
BioReliance Corporation
By __________________ By ___________________
Name Capers ▇. ▇▇▇▇▇▇▇▇ Name ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
__________________ ___________________
Title President and CEO
__________________ ___________________
Date October 1, 1998 Date October 1, 1998
__________________ ___________________
