Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made effective as of
December 4, 2006, by and between Transgenomic, Inc., a Delaware corporation (the
"Company"), and Xxxxx X. Xxxxxxxxx ("Employee").
The Company and Employee desire to enter into an Employment Agreement.
Accordingly, the Company and Employee agree as follows:
Section 1. Effective Date; Position; Term. This Agreement shall become
effective on December 4, 2006 (the "Effective Date"). The Company shall employ
Employee as its Vice President and Chief Financial Officer. The initial term of
the Agreement will be one (1) year from the Effective Date, but shall be
automatically extended for additional terms of one (1) year unless either the
Company or the Employee provides written notice to the other that it does not
intend to extend this Agreement not later than 60 days prior to the end of the
then current term..
Section 2. Position and Duties. During the term of this Agreement:
(a) Employee shall have the normal responsibilities, duties
and authorities of Vice President and Chief Financial Officer of the
Company described in its bylaws and such other reasonable duties as may
be assigned to her by the Board of Directors of the Company (the
"Board") from time to time.
(b) Employee shall report to the Chief Executive Officer.
Employee shall perform faithfully the executive duties assigned to her
to the best of her ability in a diligent, trustworthy, businesslike and
efficient manner and will devote her full business time and attention
to the business and affairs of the Company and its subsidiaries and
affiliates; provided, however, that Employee may serve as a director of
or a consultant to nonprofit corporations, civic organizations,
professional groups and similar entities.
Section 3. Base Salary. As compensation for her services hereunder,
the Company shall pay to Employee during the Employment Period an initial base
salary of $200,000 per year.
Base Salary shall be payable in equal installments in arrears on a
semimonthly basis or as otherwise may be mutually agreed upon.
Section 4. Bonus.
(a) In addition to the Base Salary, Employee shall receive a
signing bonus of $10,000 to be paid with the first regular payroll
after the Effective Date.
(b) Beginning in calendar 2007, Employee shall be eligible to
receive an annual bonus of up to 20% of her Base Salary based on
Employee's performance in conjunction with specific mutually agreed
goals and objectives and formulas determined by the Chief Executive
Officer and agreed upon by the Compensation Committee prior to each
calendar year. Annual bonuses, if any, will be payable at such time or
times during or following each calendar year as shall be determined by
the Compensation Committee in its sole discretion.
Section 5. Participation in Employee Benefit Plans. Employee will be
entitled to participate in all Company salaried employee benefit plans and
programs, subject to the terms and conditions of each such employee benefit plan
or program and to the extent commensurate with her position as Vice President
and Chief Financial Officer.
Section 6. Other Benefits.
(a) Vacation. Employee (a) Vacation. Employee shall
participate in the vacation benefit provided to all
employees, except that her participation during the
period in which she has less than ten (10) years of
service will be equivalent to a participant with ten (10)
to twenty-four (24) years of service.
(b) Insurance. The Company shall make available to Employee
health insurance (including dependent coverage), and
other employee benefit plans provided to employees.
Section 7. Business Expenses. The Company shall reimburse Employee for
all reasonable expenses incurred by her in the course of performing her duties
under this Agreement which are consistent with the Company's policies in effect
from time to time with respect to travel, entertainment and other business
expenses, subject to the Company's requirements with respect to reporting and
documentation of such expenses.
Section 8. Stock Options and Option Shares. Employee will be granted
options to purchase shares of the Company's common stock under the Company's
2006 Equity Incentive Plan (the "Plan") on the terms described below, subject to
final approval of the Compensation Committee:
(a) 100,000 shares on or about the Effective Date of the
Agreement;
(b) 100,000 shares on or about June 1, 2007; and
(c) 100,000 shares on or about November 1, 2007.
The price of the options will be the fair market value of the Company's Common
Stock as reported on the date the options are granted. The options will vest
equally on the next three anniversary dates of the grant. Granted and unvested
options will vest upon the Company being acquired or merged into another entity
as provided in the Plan.
Section 9. Termination of Employment.
(a) Events of Termination and Severance Payment. In the event
that, during the term of this Agreement, Employee is involuntarily
discharged for any reason other than for Just Cause (as defined below),
Employee shall be entitled to receive a severance payment (the
"Severance Payment") equal to the amount of the Employee's then current
annual Base Salary. The Severance Payment will be paid to Employee over
a period of twelve months in the manner described in Section 3 and will
be subject to applicable income tax withholding consistent with the
Company's normal payroll practices. Additionally, upon the Company
being acquired or merged into another entity, Transgenomic, Inc. will
honor the Severance Payment in the event that the Employee's position
was eliminated as a result of the merger or acquisition.
(b) "Just Cause" being defined as any criminal act (felony)
being committed by employee, if employee commits fraud or dishonesty
toward the Company, other significant activities materially harmful to
the reputation of the Company as reasonably defined by the Company,
willful refusal to perform or substantial disregard of the duties
properly assigned, significant violation of any statutory or common law
or a material violation of Sections 11 or 12 below, not reasonably
performing assigned tasks to meet minimum expectations of the position,
or intentionally takes any other action materially detrimental to the
best interests of the Company
(c) Effect of Breach of Noncompetition Provisions. In the
event Employee breaches or otherwise fails to comply with the
provisions of Section 11 or 12 below, then, in addition to any other
remedies provided herein or at law or in equity, the Company shall have
the right to require return of any severance payment made to the
Employee. Return of such Severance Payment pursuant to the preceding
sentence shall not relieve Employee's obligations pursuant to Sections
11 and 12 below.
Section 10. Assignment and Succession.
(a) The rights and obligations of the Company under this
Agreement shall inure to the benefit of and be binding upon its
respective successors and assigns, and Employee's rights and
obligations hereunder shall inure to the benefit of and be binding upon
her successors and permitted assigns, whether so expressed or not.
(b) Employee acknowledges that the services to be rendered by
her hereunder are unique and personal. Accordingly, Employee may not
pledge or assign any of her rights or delegate any of her duties or
obligations under this Agreement without the express prior written
consent of the Board.
(c) The Company may not assign its interest in or obligations
under this Agreement without the prior written consent of Employee.
Section 11. Confidential Information.
(a) Company Information. Employee agrees at all times during
the term of her relationship with the Company and thereafter, to hold
in strictest confidence, and not to use, except for the benefit of the
Company, or to disclose to any person, firm, corporation or other
entity without written authorization of the Board of Directors of the
Company, any Confidential Information of the Company which Employee
obtains or creates, by whatever means. Employee further agrees not to
make copies of such Confidential Information except as authorized by
the Company. Employee understands that "Confidential Information" means
any Company proprietary information, technical data, trade secrets or
know-how, including, but not limited to, research, product plans,
products, services, suppliers, customer lists and customers (including,
but not limited to, customers of the Company on whom Employee called or
with whom Employee became acquainted during the relationship), prices
and costs, markets, software, developments, inventions, laboratory
notebooks, processes, formulas, technology, designs, drawings,
engineering, hardware configuration information, marketing, licenses,
finances, budgets or other business information disclosed to Employee
by the Company either directly or indirectly in writing, orally or by
drawings or observation of parts or equipment or created by Employee
during the period of the relationship, whether or not during working
hours. Employee understands that "Confidential Information" includes,
but is not limited to, information pertaining to any aspects of the
Company's business which is either information not known by actual or
potential competitors of the Company or is proprietary information of
the Company or its customers or suppliers, whether of a technical
nature or otherwise. Employee further understands that "Confidential
Information" does not include any of the foregoing items which have
become publicly and widely known and made generally available through
no wrongful act of Employee's or of others who were under
confidentiality obligations as to the item or items involved.
(b) Former Employer Information. Employee represents that as
an employee of the Company, she has not breached and will not breach
any agreement to keep in confidence proprietary information, knowledge
or data acquired by Employee in confidence or trust prior or subsequent
to the commencement of Employee's relationship with the Company, and
Employee will not disclose to the Company, or induce the Company to
use, any inventions, confidential or proprietary information or
material belonging to any previous employer or any other party.
(c) Third Party Information. Employee recognizes that the
Company has received and in the future will receive confidential or
proprietary information from third parties subject to a duty on the
Company's part to maintain the confidentiality of such information and
to use it only for certain limited purposes. Employee agrees to hold
all such confidential or proprietary information in the strictest
confidence and not to disclose it to any person, firm or corporation or
to use it except as necessary in carrying out Employee's work for the
Company consistent with the Company's agreement with such third party.
Section 12. Return of Company Documents. Employee agrees that, at the
time of termination of her relationship with the Company, she will deliver to
the Company (and will not keep in her possession, recreate or deliver to anyone
else) any and all devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, laboratory
notebooks, materials, flow charts; equipment, other documents or property, or
reproductions of any aforementioned items developed by Employee pursuant to the
relationship or otherwise belonging to the Company, its successors or assigns.
Employee further agrees that any property situated on the Company's premises and
owned by the Company, including disks and other storage media, filing cabinets
or other work areas, is subject to inspection by Company personnel at any time
with or without notice.
Section 13. Noncompetition. Independent of any obligation under any
other contract or agreement between Employee and the Company, for a period of
one (1) year following the termination of Employee's employment relationship
with the Company, Employee shall not, directly or indirectly, whether as an
individual for her own account, or for or with any other person, firm,
corporation, partnership, joint venture, association, or other entity
whatsoever, which is or intends to be engaged in biotechnology business and,
more particularly, that provides technologies for DNA/RNA analysis and
purification utilizing DHPLC technologies (provided, however, that the
restrictions set forth in this clause shall not apply to involvement that
consists solely of "beneficially owning," as such term is used in Rule 13d-3
promulgated under the Exchange Act 2% or less of the outstanding securities of
any class of securities issued by a publicly-traded entity):
(a) Solicit, interfere with, or endeavor to entice away from
the Company, any person, firm, corporation, partnership, or entity of
any kind whatsoever, which was or is a client or licensor of the
Company, for which the Company performed services, with respect to any
business, product or service that is competitive to the products or
services offered by the Company, or under development by the Company,
as of the date of the termination of Employee's relationship with the
Company. This restriction shall apply only to such clients or licensors
of the Company as were serviced or solicited by Employee at any time
during the one (1) year prior to the separation of Employee's
relationship with the Company, either as an independent contractor or
as an employee of the Company;
(b) Solicit or endeavor to induce any of the Company's
employees or consultants to terminate their relationship with the
Company, or take away such employees or consultants, or attempt to
solicit, induce, recruit, encourage or take away employees or
consultants of the Company, either for Employee or for any other person
or entity;
(c) Induce or attempt to induce any supplier, licensee or
other business relation of the Company to cease doing business with the
Company, or in any way interfere with the relationship between any such
supplier, licensee or business relation and the Company.
Section 14. Business Opportunity. Employee represents and acknowledges
that the foregoing restrictions will not prevent her from obtaining gainful
employment in her field of expertise or cause her undue hardship; and that there
are numerous other employment opportunities available to her that are not
affected by the foregoing restrictions. Employee further acknowledges that the
foregoing restrictions are reasonable and necessary, in order to protect the
Company's legitimate interests, and that any violation thereof would result in
irreparable injury to the Company.
Section 15. Conflicts of Interest Policies. Employee shall
diligently adhere to the Company's Conflict of Interest Policy as adopted by the
Board and in effect from time to time.
Section 16. Arbitration and Equitable Remedies.
(a) Except as provide in Section 16 (b) hereof, the parties
agree that any dispute or controversy arising out of, relating to, or
concerning the interpretation, construction, performance or breach of
this Agreement, shall be settled by arbitration to be held in Nebraska,
in accordance with the Employment Dispute Resolution rules of the
American Arbitration Association then in effect. The arbitrator may
grant injunctions or other relief in such dispute or controversy and
the decision of the arbitrator shall be final, conclusive and binding
on the parties to the arbitration. Judgment may be entered on the
arbitrator's decision in any court having jurisdiction. The Company and
Employee shall each pay one-half of the costs and expenses of such
arbitration, and each shall separately pay the fees and expenses of
their respective legal counsel.
THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EMPLOYEE'S
RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES
RELATING TO ALL ASPECTS OF THE EMPLOYER/EMPLOYEE RELATIONSHIP.
(b) Notwithstanding paragraph (a) of this Section 16, the
parties agree that, in the event of the breach or threatened breach of
Sections 11, 13 or 14 of this Agreement by Employee, monetary damages
alone would not be an adequate remedy to the Company and its
Subsidiaries for the injury that would result from such breach, and
that the Company and its Subsidiaries shall be entitled to apply to any
court of competent jurisdiction for specific performance and/or
injunctive relief (without posting bond or other security) in order to
enforce or prevent any violation of such provisions of this Agreement.
Employee further agrees that any such injunctive relief obtained by the
Company or any of its Subsidiaries shall be in addition to monetary
damages.
Section 17. Indemnification. The Company agrees to indemnify and
hold harmless Employee to the degree, and subject to the conditions, set forth
in the Company's Articles of Incorporation and Bylaws and Delaware law.
Section 18. Entire Agreement. This Agreement represents the entire
agreement between the parties relating to the subject matters covered hereby and
shall supersede any prior understandings, agreements or representations by or
between the parties, written or oral, which may have related to the subject
matter hereof in any way and shall not be amended or waived except in a writing
signed by the parties hereto.
Section 19. Notices. Any notice or request required or permitted to be
given hereunder shall be in writing and will be deemed to have been given (i)
when delivered personally, sent by telecopy (with hard copy to follow) or
overnight express courier or (ii) five days following mailing by certified or
registered mail, postage prepaid and return receipt requested, to the addresses
below unless another address is specified by such party in writing:
To the Company: Transgenomic, Inc.
00000 Xxxxx Xxxxxx
Xxxxx, XX 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
To the Employee: Xxxxx X. Xxxxxxxxx
00000 Xxxxxxx Xxxxxx
Xxxxx, XX 00000
Telephone: (000) 000-0000
Section 20. Headings. The article and section headings herein
are for convenience of reference only and shall not define or limit the
provisions hereof.
Section 21. Applicable Law. The corporate law of the State of Delaware
will govern all questions concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity and
interpretation of this Agreement shall be governed by the internal laws of the
State of Nebraska.
Section 22. Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held prohibited by,
invalid or unenforceable in any respect under applicable law, such provision
will be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Agreement.
Section 23. Amendments and Waivers. Any provision of this
Agreement may be amended or waived only with the prior written consent of the
Company and Employee.
Section 24. No Strict Construction. The language used in this Agreement
will be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction will be applied against any
party hereto.
Section 25. Counterparts. This Agreement may be executed in
separate counterparts, each of which is deemed to be an original and all of
which taken together constitute one and the same agreement.
Section 26. Employee Representations. Employee hereby represents and
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Employee does not and will not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Employee is a party or by which she is bound, (ii) Employee is
not a party to or bound by any employment agreement, non-compete agreement or
confidentiality agreement with any other person or entity, and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Employee, enforceable in accordance with its
terms.
Section 27. Survival. Sections 11, 12 and 13 shall survive and
continue in full force in accordance with their terms notwithstanding any
termination of this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by its duly authorized officer and Employee has signed this Agreement.
TRANSGENOMIC, INC.
By
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Name: Xxxxx X. Xxxxxx
Title: President and
Chief Executive Officer
EMPLOYEE
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and
Chief Financial Officer
