EXHIBIT 10.44
December 6, 2000
Henry J. Cardello
2805 Boulder Bridge Drive
Shorewood, MN 55331
Dear Mr. Cardello:
In order to induce you to continue in the employment of GalaGen Inc., a
Delaware corporation (the "Company"), and for other good and valid
consideration, each of us desires to enter into this employment agreement that
supercedes the terms of your existing employment with the Company, effective
upon execution and delivery by the parties of this agreement.
1. EMPLOYMENT.
The Company hereby agrees to employ you, and you agree to be employed
by the Company, on the terms and conditions hereinafter set forth. You will
continue to serve as President and Chief Executive Officer of the Company and,
at no additional compensation, shall serve in such directorships, Board
committee memberships and offices of the Company and its subsidiaries to which
you may from time to time be elected or appointed by the Board or the
shareholders of the Company. You agree to serve the Company faithfully and, to
the best of your ability, to promote the Company's interest, and to devote your
full working time, energy and skill to the Company's business. You may attend to
personal business and investment, engage in charitable activities and community
affairs, and serve on a reasonable number of corporate, educational and civic
boards, so long as those activities do not interfere with your duties under this
Agreement.
You will have such authority, powers, functions, duties, and
responsibilities as are normally accorded presidents and chief executive
officers. You will discharge your duties at all times in accordance with any and
all policies established by the Board of Directors and will report to, and be
subject to the direction of, the Board of Directors.
2. BASE SALARY.
As partial compensation for all of your services (including services as
director, Board committee member or officer of the Company and its subsidiaries)
during your term of employment hereunder, you will receive a base salary at an
annual rate of Two Hundred Forty Thousand Dollars ($240,000.00), payable in
biweekly installments. Such base salary shall be reviewed annually at the
discretion of the Board.
3. CASH BONUS; STOCK AWARDS AND OPTIONS.
As additional compensation for your services, you shall be eligible (a)
to earn cash bonus compensation for each fiscal year in accordance with programs
from time to time adopted by the Board of Directors and (b) for stock awards and
stock options of the Company as authorized from time to time by the Board of
Directors.
4. FRINGE BENEFITS.
(a) You will be eligible to participate in any and all Company
sponsored insurance (including medical, dental, life and disability insurance),
retirement, and other fringe benefit programs that it maintains for its
executive officers, subject to and on a basis consistent with the terms of each
such plan or program.
(b) You will be entitled to four weeks of paid vacation annually.
5. EXPENSES.
During the term of your employment, the Company will reimburse you for
your reasonable travel and other expenses incident to your rendering of services
in conformity with its regular policies regarding reimbursement of expenses as
in effect from time to time. Payments to you under this paragraph will be made
upon presentation of expense vouchers in such detail as the Company may from
time to time reasonably require.
6. TERM AND TERMINATION.
(a) TERM. Your employment with the Company will continue unless
and until terminated in accordance with the terms of this Agreement.
(b) TERMINATION. Your employment under this Agreement may be
terminated as follows:
(i) By your resignation upon 30 days prior written notice
to the Company.
(ii) By the Company for Cause (as defined in this
Agreement) immediately upon written notice to you.
(iii) By the Company for any reason and at any time upon 30
days prior written notice to you.
(iv) By the Company at any time in the event of your
Disability (as defined in this Agreement).
In the event of your termination of employment for any of the foregoing reasons,
you shall immediately resign as a director and/or officer of the Company and any
of its subsidiaries.
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(c) DEATH. This Agreement will automatically terminate upon your
death.
7. CONSEQUENCES OF TERMINATION.
(a) TERMINATION FOR CAUSE OR VOLUNTARY RESIGNATION. If your
employment is terminated at any time by the Company for
Cause or if you resign other than by reason of a
Constructive Involuntary Termination, as herein defined,
then you will be paid your base salary to the date of
termination and the unpaid portion of any bonus or incentive
amount earned by you for the fiscal year ending prior to the
termination of your employment which you are entitled to
receive under the terms of any annual incentive plan
maintained by the Company. You will not be entitled to
receive any base salary or fringe benefits for any period
after the date of termination, except for the right to
receive benefits which have become vested under any benefit
plan or to which you are entitled as a matter of law.
(b) TERMINATION WITHOUT CAUSE OR CONSTRUCTIVE INVOLUNTARY
TERMINATION. If the Company terminates your employment without
Cause or there is a Constructive Involuntary Termination of
your employment, then:
(i) The Company will pay you a lump sum equal to
eighteen months of your current base salary, less
applicable tax withholdings; and
(ii) The Company will pay you an amount equal to the
average of the bonus paid you in each of the three
calendar years preceding termination (or average
annualized bonus if you have not been employed for
three full calendar years); and
(iii) You will be entitled to continued participation in
the health care coverage and life insurance
benefit plans of the Company as in effect on the
date of your termination as permitted by law. The
Company will continue to pay its share of the
health care and life insurance premiums for this
coverage for a period of up to eighteen months,
and YOU SHALL PAY YOUR SHARE OF THE COST
ASSOCIATED WITH THAT coverage as if you were still
actively employed by the Company. If you cannot be
covered under any of the Company's group plans or
policies, the Company will reimburse you for your
full cost of obtaining comparable alternative or
individual coverage elsewhere, less any
contribution that you would have been required to
make under the Company's group plans or policies.
If, during the aforesaid eighteen-month period,
you are employed by a third party and become
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eligible for any health care and/or life insurance
coverage provided by that third party, the Company
will not, thereafter, be obligated to provide you
with the insurance benefits described in this
paragraph (b)(iii). This eighteen-month coverage
shall run concurrently with COBRA and you shall be
responsible for the full cost of any coverage
thereafter.
(c) TERMINATION IN THE EVENT OF DEATH OR DISABILITY. If your
employment terminates due to your death or if the Company
terminates your employment due to a Disability, then
(i) The Company will continue to pay your base
salary to your estate or to you for the remainder
of the month in which your death occurs or in
which your employment is terminated due to
Disability, together with the unpaid portion of
any bonus or incentive amount earned by you for
the fiscal year ending prior to the termination of
your employment which you are entitled to receive
under the terms of the applicable incentive plan;
and in the event of termination due to Disability,
you will continue to receive, during that month,
all of the fringe benefits then being paid or
provided to you;
(ii) You will be entitled to receive all Disability and other
benefits, such as continued health coverage or life insurance
proceeds, provided in accordance with the terms and conditions
of the health care coverage, life insurance, disability, or
other employee benefit plans of the Company and applicable
law.
(d) IN LIEU OF OTHER BENEFITS. The benefits provided you under
this Section 7 are in lieu of any benefits that would
otherwise be provided to you under any severance pay or other
policies of the Company.
8. NO MITIGATION. Following termination of your employment for
any reason you will be under no obligation to mitigate your damages by seeking
other employment, and there will be no offset against the amounts due you under
Section 7, except as specifically provided in Section 7(b)(iii) or for any
claims which the Company may have against you.
9. PROPERTY RIGHTS, CONFIDENTIALITY, NON-SOLICIT AND NON-COMPETE
PROVISIONS.
(a) COMPANY'S PROPERTY.
(i) You shall promptly disclose to the Company in writing all
inventions, discoveries, and works of authorship, whether or not
patentable or copyrightable, which are conceived, made, discovered,
written, or created by
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you alone or jointly with another person, group, or entity, whether
during the normal hours of employment at the Company or on your own
time, during the term of this Agreement. You agree to assign all
rights to all such inventions and works of authorship to the Company.
You further agree to give the Company any of the assistance it
reasonably requires in order for the Company to perfect, protect and
use its rights to inventions and works of authorship.
This provision shall not apply to an invention, discovery, or
work of authorship for which no equipment, supplies, facility, or trade
secret information of the Company was used and which was developed
entirely on your own time and which does not relate to the business of
the Company, to the Company's anticipated research or developments, or
does not result from any work performed by you for the Company.
(ii) You shall not remove any records, documents, or any other
tangible items (excluding your personal property) from the premises of
the Company in either original or duplicate form, except as is needed
in the ordinary course of conducting business for the Company.
(iii) You shall immediately deliver to the Company, upon
termination of employment with the Company, or at any other time upon
the Company's request, any property, records, documents, and other
tangible items (excluding your personal property) in your possession or
control, including data incorporated in word processing, computer, and
other data storage media, and all copies of such records, documents,
and information, including all Confidential Information, as defined
below.
(b) CONFIDENTIAL INFORMATION. During the course of your employment
you will develop, become aware of, and accumulate expertise, knowledge, and
information regarding the Company's and its subsidiaries' organization
strategies, business, and operations and their past, current, or potential
customers and suppliers. The Company considers such expertise, knowledge, and
information to be valuable, confidential, and proprietary, and it shall be
considered Confidential Information for purposes of this Agreement. During this
Agreement and at all times thereafter you will agree not to use such
Confidential Information or disclose it to other persons or entities except as
is necessary for the performance of your duties for the Company or as has been
expressly permitted in writing by the Company. Provided, however, that the
foregoing covenant shall not apply to any information possessed by you prior to
your employment by the Company, or to any information which is in or has entered
the public domain or has been disclosed with any industry segment in which the
Company or any subsidiary or affiliated company of the Company operates by or
pursuant to the authority of the Company or any subsidiary or affiliated company
of the Company.
(c) NON-SOLICITATION. During (i) the term of this Agreement, and
(ii) the greater of (A) any period for which you are receiving payments under
Section 7 of this Agreement, or (B) one year after the termination of this
Agreement or the date on which you are no longer
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employed by the Company in any capacity, whichever shall last occur, you shall
not directly or indirectly attempt to hire away any then-current employee of the
Company or any subsidiary or to persuade any such employee to leave employment
with the Company or any subsidiary or affiliated company.
(d) NON-COMPETITION. During (i) the term of this Agreement and
(ii) any eighteen (18) month period for which you are receiving payments under
Section 7 of this Agreement, you shall not engage or participate (either
individually or as an employee, consultant, or principal, partner, agent,
trustee, officer, or director of a corporation, partnership, or other business
entity) in the business activities that the Company or any subsidiary of the
Company was engaged in at the time of the termination of this Agreement.
Provided, however, that mere ownership of not more than 5% of the outstanding
common stock of a company the securities of which are publicly traded shall not
constitute competition for purposes of this Section 9(d).
The provisions of this Section 9 shall survive the termination of this
Agreement.
10. ARBITRATION. Any disputes arising under or in connection with
this Agreement (including without limitation the making of this Agreement) shall
be resolved by final and binding arbitration to be held in Minneapolis,
Minnesota in accordance with the rules and procedures of the American
Arbitration Association. The parties shall select a mutually agreeable single
arbitrator to resolve the dispute or if they fail or are unable to do so, each
side shall within the following ten (10) business days select a single
arbitrator and the two so selected shall select a third arbitrator within the
following ten (10) business days. The arbitration award or other resolution may
be entered as a judgment at the request of the prevailing party by any court of
competent jurisdiction in Minnesota or elsewhere. The arbitrator shall have no
power to award any punitive or exemplary damages. The arbitrator may construe or
interpret, but shall not ignore or vary the terms of this Agreement, and shall
be bound by controlling law. You acknowledge that your failure to comply with
the terms of the Agreement regarding Confidential Information, Inventions, and
Non-Competition could cause immediate and irreparable injury to the Company and
that therefore, the arbitrators, or a court of competent jurisdiction, if an
arbitration panel cannot immediately be convened, will be empowered to provide
injunctive relief, including temporary or preliminary relief, to restrain any
such failure to comply. Each party shall bear its own costs and attorneys' fees
in connection with the arbitration.
11. DEFINITIONS. For purposes of this Agreement, the following
terms will have the meanings set forth below:
(a) CAUSE. "Cause" shall mean, and be limited to, (i) willful or
gross neglect of duties by you or (ii) an act or acts committed by you
constituting a felony and substantially detrimental to the Company or its
reputation.
(b) CONSTRUCTIVE INVOLUNTARY TERMINATION. "Constructive
Involuntary Termination" means a termination following:
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(i) diminution in your title, duties, responsibilities and
authority as an officer of the Company without your consent (provided
that a change in a director position, chairman of the board or
committee position shall not constitute Constructive Involuntary
Termination);
(ii) a reduction in your annual base salary without your
consent;
(iii) the Company shall require you to relocate to any place
other than a location within fifty miles of the location of the
Company's principal executive offices immediately prior to such
relocation; or
(iv) you are required for any continuing period of time to
travel on Company business to a substantially greater extent than in
the past.
(c) DISABILITY. "Disability" means that you are deemed to be
disabled under the terms of the Company's long term disability plan and have
satisfied the qualifying period for entitlement to benefits under such plan.
12. GENERAL PROVISIONS.
(a) This Agreement may not be amended or modified except by a
written agreement signed by both of us.
(b) In the event that any provision or portion of this agreement
is determined to be invalid or unenforceable for any reason,
the remaining provisions of this Agreement will remain in full
force and effect to the fullest extent permitted by law.
(c) This Agreement shall bind and benefit the parties hereto and
their respective successors and assigns, but none of your
rights or obligations hereunder may be assigned by either
party hereto without the written consent of the other, except
by operation of law upon your death.
(d) This Agreement has been made in and shall be governed and
construed in accordance with the laws of the State of
Minnesota without giving effect to the principles of conflict
of laws of any jurisdiction.
(e) No failure on the part of either party to exercise, and no
delay in exercising, any right or remedy under this Agreement
will operate as a waiver; nor will any single or partial
exercise of any right or remedy preclude any other or further
exercise of any right or remedy.
(f) Any notice or other communication under this Agreement must be
in writing and will be deemed given when delivered in person,
by overnight courier (with receipt confirmed), by facsimile
transmission (with receipt confirmed by telephone or by
automatic transmission report), or upon receipt if sent by
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certified mail, return receipt requested, as follows (or to
such other persons and/or addresses as may be specified by
written notice to the other party):
If to GalaGen Inc.:
GalaGen Inc.
Attention: Chairman of the Board
301 Carlson Parkway
Suite 301
Minnetonka, Minnesota 55305
If to Henry J. Cardello:
Henry J. Cardello
2805 Boulder Bridge Drive
Shorewood, MN 55331
(g) This Agreement and any stock awards and stock option
agreements ancillary hereto, contain our entire understanding
and agreement with respect to these matters and supersede all
previous agreements, discussions, or understandings, whether
written or oral, between or on the same subjects.
(h) In the event any provision of this Agreement is held
unenforceable, that provision will be severed and shall not
affect the validity or enforceability of the remaining
provisions. In the event any provision is held to be
overbroad, that provision shall be deemed amended to narrow
its application to the extent necessary to render the
provision enforceable according to applicable law.
(i) All terms of this Agreement intended to be observed and
performed after the termination of this Agreement will survive
such termination and will continue in full force and effect
thereafter, including without limitation, Sections 7, 8, 9,
10, 11 and 12.
(j) The headings contained in this Agreement are for convenience
only and shall in no way restrict or otherwise affect the
construction of the provisions hereof. Unless otherwise
specified herein, references in this Agreement to Sections or
Exhibits are to the sections or exhibits to this Agreement.
This Agreement may be executed in multiple counterparts, each
of which shall be an original and all of which together shall
constitute one and the same instrument.
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If the foregoing correctly sets forth your understanding of our agreement,
please indicate so by signing and returning to us a copy of this letter.
Very truly yours,
GALAGEN INC.
/S/ ROBERT HOERR
-----------------------------
Robert Hoerr, M.D., Chairman
Accepted and agreed to:
/S/ HENRY J. CARDELLO
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Henry J. Cardello
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