THERMOGENESIS CORP. EMPLOYMENT AGREEMENT for Christopher M. Gemma
Exhibit 10.1 (n)
THERMOGENESIS CORP. (“Employer”) and Xxxxxxxxxxx X. Gemma (“Employee”), agree as follows:
1. Employment. Employer employs Employee and Employee accepts employment with Employer on
the terms and conditions set forth in this Employment Agreement (“Agreement”).
2. Position; Scope of Employment. Employee shall have the position of Vice President of
Sales for Employer, and shall have the duties and authority set forth below, and as detailed on the
position description attached as Exhibit “A”, which duties and authority may be modified
from time to time by Employer. As Vice President of Sales, Employee shall report directly to
Employer’s President & Chief Operating Officer.
2.1. Entire Time and Effort. Employee shall devote Employee’s full working time,
attention, abilities, skill, labor and efforts to the performance of his employment. Employee
shall not, directly or indirectly, alone or as a member of a partnership or other organizational
entity, or as an officer of any corporation (other than any which are owned by or affiliated with
Employer) (i) be substantially engaged in or concerned with any other commercial duties or
pursuits, (ii) engage in any other business activity that will interfere with the performance of
Employee’s duties under this Agreement, except with the prior written consent of Employer, or (iii)
join the board of directors of any other corporation; provided, however, that Employee may
join the board of directors of no more than two unaffiliated corporations so long as such
corporations are not competitive to the current or future operations of Employer and those
corporations offer some synergistic prospects or other support for Employer’s goals.
2.2. Rules and Regulations. Employee agrees to observe and comply with Employer’s
rules and regulations as provided by Employer and as may be amended from time to time by Employer
and will carry out and perform faithfully such orders, directions and policies of Employer. To the
extent any provision of this Agreement is contrary to an Employer rule or regulation, as such may
be amended from time to time, the terms of this Agreement shall control.
2.3. Limitations Upon Authority to Bind Employer. Employee shall not engage in any of
the following actions on behalf of Employer without the prior approval of Employer: (i) borrow or
obtain credit in any amount or execute any guaranty, except for items purchased from vendors in the
ordinary course of Employer’s operations; (ii) expend funds for capital equipment in excess of
expenditures expressly budgeted by Employer, if applicable, or in the event not budgeted, not to
exceed the amounts set forth in subparagraph (iii); (iii) sell or transfer capital assets exceeding
Ten thousand Dollars ($10,000) in market value in any single transaction
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or exceeding Fifty Thousand Dollars ($50,000) in the aggregate during any one fiscal year; (iv)
execute any lease for real or personal property; or (v) exercise any authority or control over the
management of any employee welfare or pension benefit plan maintained by Employer or over the
disposition of the assets of any such plan.
3. Term. The term of this Agreement shall be for a period of three (3) years which shall
commence on September 30, 2004 and end on September 29, 2007 (subject to adjustment to an earlier
start date and termination date by mutual agreement); unless terminated earlier as provided below
in section 5.
4. Compensation. Employer shall pay to or provide compensation to Employee as set forth in
this section 4. All compensation of every description shall be subject to the customary
withholding tax and other employment taxes as required with respect to compensation paid to an
employee.
4.1. Base Salary. Employer shall pay Employee a base salary of One Hundred and Fifty
Thousand Dollars ($150,000) per year commencing on September 30, 2004 (“Base Salary”). Employee’s
Base Salary shall be payable in accordance with Employer’s regular pay schedule, but not less
frequently than twice per month.
4.2. Annual Review. On the date of Employer’s annual meeting of stockholders and on
each subsequent annual meeting of stockholders during the term of this Agreement, or at such other
time as Employer may establish in its discretion, Employer shall review the previous year’s
performance of Employee for the purpose of making reasonable increases to Employee’s Base Salary;
provided that Employer shall not be required to increase Employee’s Base Salary, but may do
so at its discretion.
4.3. Cash Bonuses. In addition to the Base Salary provided for in sections 4.1 and
4.2, Employee is eligible to receive discretionary bonuses based on Employer performance and
Employee’s attainment of objectives periodically established by Employer. Such discretionary
bonuses may be paid in cash, subject to Board discretion. Annual bonuses that may be awarded to
Employee shall not exceed fifty percent (50%) of Employee’s Base Salary then in effect in any given
year.
4.4. Sales Commission. In addition to Base and Cash Bonus, Employee has the ability
to earn five percent (5%) of sales for each dollar sold over and beyond his/her budgeted annual
sales revenue. Such commission will be paid to Employee quarterly. No commission will be awarded
for any amount below budgeted annual sales revenue. Sales revenue shall be all revenue that driven
from sales that VP of Sales has direct responsibility over, such as device, disposable,
installation, and maintenance contract revenue.
4.5. Stock Option Grants. In addition to Base Salary provided for in sections 4.1 and
4.2, Employee is eligible to receive, in addition to any cash bonus provided for in section 4.3, an
award of stock options as may be determined from time to time by Employer’s Compensation Committee
which consists of disinterested directors who administer Employer’s Amended 1994
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Stock Option Plan and Amended 1998 Employee Equity Incentive Plan. At the inception of this
Agreement, and subject to Plan requirements, Employee shall be granted an initial option to acquire
60,000 shares of the Company’s common stock, five (5)-year vesting. Incident to the provisions of
Section 4.3., Employer’s Compensation Committee will establish an incentive program whereby
Employee may earn and be granted additional options.
4.6. Vacation and Sick Leave. Employee shall be entitled to accrue up to three (3)
weeks vacation annually; provided, however, that vacation time may not accrue beyond two weeks of
accrued and unused time. Vacation pay shall not accrue beyond two (2) weeks at any given time.
Employee shall be entitled to sick leave in accordance with Employer’s sick leave policy, as
amended from time to time. At the end of each calendar year, subject to the limit on two weeks
accrued and unused vacation, all such unused and accrued vacation time shall be paid in cash.
4.7. Other Fringe Benefits. Employee shall participate in all of Employer’s fringe
benefit programs in substantially the same manner and to substantially the same extent as other
similar employees of Employer, excluding only those benefits expressly modified by the terms
hereof.
4.8. Expenses. Employee shall be reimbursed for his reasonable business expenses;
subject to the presentation of evidence of such expenses in accordance with established policies
adopted by Employer from time to time.
4.9. Compensation From Other Sources. Any proceeds that Employee shall receive by
virtue of qualifying for disability insurance, disability benefits, or health or accident insurance
shall belong to Employee. Employee shall not be paid Base Salary in any period in which he
receives benefits as determined and paid under Employer’s long-term disability policy. Benefits
paid to Employee under Employer’s short-term disability policy shall reduce, by the same amount,
Base Salary payable to Employee for such period.
5. Early Termination. Employee’s employment with Employer may be terminated prior to the
expiration of the term of this Agreement, upon any of the following events: (i) the mutual
agreement of Employer and Employee in writing; (ii) the disability of Employee, which shall, for
the purposes of this Agreement, mean Employee’s inability, for a period exceeding three (3) months
as determined by a qualified physician, and which qualifies Employee for benefits under Employer’s
long-term disability policy, to perform in the usual manner the material duties usually and
customarily pertaining to Employee’s long-term employment; (iii) Employee’s death; (iv) notice of
termination by Employer for cause; (v) Employer’s cessation of business; (vi) written notice of
termination by Employer without cause upon fourteen (14) days’ notice, subject to the provisions
for compensation upon early termination in section 5.3(b); (vii) debarment by any federal agency
that would limit or prohibit Employee from serving in his capacity for Employer under this
Agreement, or (viii) upon a Change in Control (as defined below) of Employer (as defined in and
under the circumstances described in section 5.4).
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5.1. Definition of Cause. For purposes of this Agreement, any of the following shall
constitute cause: (i) willful or habitual breach of Employee’s duties; (ii) fraud or intentional
material misrepresentation by Employee to Employer or any others; (iii) theft or conversion by
Employee; (iv) unauthorized disclosure or other use of Employer’s trade secrets, customer lists or
confidential information; (v) habitual misuse of alcohol or any nonprescribed drug or intoxicant;
(vi) debarment by any federal agency that would limit or prohibit Employee from serving in his
capacity for Employer under this Agreement, or (vii) willful violation of any other standards of
conduct as set forth in Employer’s employee manual.
5.2. Damages. If Employer terminates Employee for cause, Employer shall be entitled
to damages and all other remedies to which Employer may otherwise be entitled.
5.3. Compensation Upon Early Termination.
| (a) | If Employee resigns during the term of this Agreement (without mutual consent of Employer), or if this Agreement is terminated by Employer for cause, Employee shall be entitled to all accrued but unpaid Base Salary and vacation pay accrued through the date of delivery of the notice of termination, and all non-vested options shall be deemed canceled as of that date. | ||
| (b) | If Employee is terminated without cause, as defined in subsection (i) through (vii) of section 5 above, Employer shall pay to Employee as liquidated damages and in lieu of any and all other claims which Employee may have against Employer the greater of six (6) months of Employee’s salary excluding any amounts for benefits. Employer’s payment pursuant to this subparagraph shall fully and completely discharge any and all obligations of Employer to Employee arising out of or related to this Agreement and shall constitute liquidated damages in lieu of any and all claims which Employee may have against Employer not including any obligation under the workers’ compensation laws including Employer’s liability provisions. |
Initials: Employee /s/
Employer /s/
| (c) | If Employee’s employment is terminated as a result of death or total disability, Employee shall be entitled to accrued but unpaid Base Salary to date of termination. The date of termination shall be deemed the date of death or, in the event of disability, the date Employee qualified for total disability payments under Employer’s long-term disability plan. | ||
| (d) | If Employee’s employment is terminated as a result of a Change in Control of Employer, Employee shall be entitled to a lump-sum payment equal to three times Employee’s Base Salary at the time. A “Change in Control” shall mean an event involving one transaction or a related series of transactions in which one of the following occurs: (i) Employer issues securities equal to 33% or more of Employer’s issued and outstanding voting securities, determined as a single class, |
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| to any individual, firm, partnership or other entity, including a “group” within the meaning of section 13(d)(3) of the Securities Exchange Act of 1934; (ii) Employer issues securities equal to 33% or more of the issued and outstanding common stock of Employer in connection with a merger, consolidation or other business combination; (iii) Employer is acquired in a merger or other business combination transaction in which Employer is not the surviving company; or (iv) all or substantially all of Employer’s assets are sold or transferred. | |||
| (e) | Except as expressly provided in paragraph (d) above, all compensation described in this section 5.3 shall be due and payable in installments at least twice monthly or at the time of the delivery of notice of termination, at Employer’s sole discretion and election. |
6. Confidential Information of Customers of Employer. Employee during the course of his
duties will be handling financial, accounting, statistical, marketing and personnel information of
customers of Employer. All such information is confidential and shall not be disclosed, directly
or indirectly, or used by Employee in any way, either during the term of this Agreement or at any
time thereafter except as required in the course of Employee’s employment with Employer.
7. Unfair Competition. During the term of this Agreement, Employee shall not, directly or
indirectly, whether as a partner, employee, creditor, stockholder, or otherwise, promote,
participate, or engage in any activity or other business which is competitive in any way with
Employer’s business. The obligation of Employee not to compete with Employer shall not prohibit
Employee from owning or purchasing any corporate securities that are regularly traded on a
recognized stock exchange or on over-the-counter market. In order to protect the trade secrets of
Employer, after the term, or upon earlier termination of this Agreement, Employee shall not,
directly or indirectly, either as an employee, employer, consultants, agent, principal, partner,
stockholder, corporate officer, director, or any other individual or representative capacity,
engage or participate in any business that is in direct competition with the business of Employer
for a period of one (1) year from the date of the expiration of this Agreement in the areas related
to blood processing equipment or procedures.
8. Trade Secrets. Employee shall not disclose to any others, or take or use for Employee’s
own purposes or purposes of any others, during the term of this Agreement or at any time
thereafter, any of Employer’s trade secrets, including without limitation, confidential
information, customer lists, computer programs or computer software of Employer. Employee agrees
that these restrictions shall also apply to (i) trade secrets belonging to third parties in
Employer’s possession and (ii) trade secrets conceived, originated, discovered or developed by
Employee during the term of this Agreement. Information of Employer shall not be considered a
trade secret if it is lawfully known outside of Employer by anyone who does not have a duty to keep
such information confidential.
8.1 Inventions; Ownership Rights. Employee agrees that all ideas, techniques,
inventions, systems, formulas, discoveries, technical information, programs, prototypes and similar
developments (“Developments”) developed, created, discovered, made, written or
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obtained by Employee in the course of or as a result, directly or indirectly, of performance of his
duties hereunder, and all related industrial property, copyrights, patent rights, trade
secrets and other forms of protection thereof, shall be and remain the property of Employer.
Employee agrees to execute or cause to be executed such assignments and applications, registrations
and other documents and to take such other action as may be requested by Employer to enable
Employer to protect its rights to any such Developments. If Employer requires Employee’s
assistance under this section 8.1 after termination of this Agreement, Employee shall be
compensated for his time actually spent in providing such assistance at an hourly rate equivalent
to the prevailing rate for such services and as agreed upon by the parties.
9. Arbitration. Any disputes regarding the rights or obligations of the parties under this
Agreement shall be conclusively determined by binding arbitration. Any controversy or claim
arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration
in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and
judgment upon the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof.
10. Actions Contrary to Law. Nothing contained in this Agreement shall be construed to
require the commission of any act contrary to law, and whenever there is any conflict between any
provision of this Agreement and any statute, law, ordinance, or regulation, contrary to which the
parties have no legal right to contract, then the latter shall prevail; but in such event, the
provisions of this Agreement so affected shall be curtailed and limited only to the extent
necessary to bring it within legal requirements.
11. Miscellaneous.
11.1. Notices. All notices and demands of every kind shall be personally delivered or
sent by first class mail to the parties at the addresses appearing below or at such other addresses
as either party may designate in writing, delivered or mailed in accordance with the terms of this
Agreement. Any such notice or demand shall be effective immediately upon personal delivery or
three (3) days after deposit in the United States mail, as the case may be.
| EMPLOYER: | THERMOGENESIS CORP. | |||
| 0000 Xxxxxx Xxxx | ||||
| Xxxxxx Xxxxxxx, Xxxxxxxxxx 00000 | ||||
| EMPLOYEE: | Xxxxxxxxxxx X. Gemma | |||
| 0000 Xxxxxxxx Xxx |
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| Xxxx Xxxx, XX 00000 |
11.2. Attorneys’ Fees; Prejudgment Interest. If the services of an attorney are
required by any party to secure the performance hereof or otherwise upon the breach or default of
another party to this Agreement, or if any judicial remedy or arbitration is necessary to enforce
or interpret any provision of this Agreement or the rights and duties of any person in relation
thereto, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and other
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expenses, in addition to any other relief to which such party may be entitled. Any award of
damages following
judicial remedy or arbitration as a result of the breach of this Agreement or any of its
provisions shall include an award of prejudgment interest from the date of the breach at the
maximum amount of interest allowed by law.
11.3. Choice of Law, Jurisdiction, Venue. This Agreement is drafted to be effective
in the State of California, and shall be construed in accordance with California law. The
exclusive jurisdiction and venue of any legal action by either party under this Agreement shall be
the County of Sacramento, California.
11.4. Amendment, Waiver. No amendment or variation of the terms of this Agreement
shall be valid unless made in writing and signed by Employee and Employer. A waiver of any term or
condition of this Agreement shall not be construed as a general waiver by Employer. Failure of
either Employer or Employee to enforce any provision or provisions of this Agreement shall not
waive any enforcement of any continuing breach of the same provision or provisions or any breach of
any provision or provisions of this Agreement.
11.5. Assignment; Succession. It is hereby agreed that Employee’s rights and
obligations under this Agreement are personal and not assignable. This Agreement contains the
entire agreement and understanding between the parties to it and shall be binding on and inure to
the benefit of the heirs, personal representatives, successors and assigns of the parties hereto.
11.6. Independent Covenants. All provisions herein concerning unfair competition and
confidentiality shall be deemed independent covenants and shall be enforceable without regard to
any breach by Employer unless such breach by Employer is willful and egregious.
11.7. Entire Agreement. This document constitutes the entire agreement between the
parties, all oral agreements being merged herein, and supersedes all prior representations. There
are no representations, agreements, arrangements, or understandings, oral or written, between or
among the parties relating to the subject matter of this Agreement that are not fully expressed
herein.
11.8. Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement which can be
given effect without the invalid provision shall continue in full force and effect and shall in no
way be impaired or invalidated.
11.9. Captions. All captions of sections and paragraphs in this Agreement are for
reference only and shall not be considered in construing this Agreement.
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| EMPLOYER: | ||||||
| THERMOGENESIS CORP. | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx
|
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| Xxxxx X. Xxxxxxx, | ||||||
| President & Chief Operating Officer | ||||||
| By: | /s/ Xxxxxx Xxxxxx
|
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| Xxxxxx Xxxxxx, MD, Chairman, Compensation Committee | ||||||
| EMPLOYEE: | ||||||
| By: | /s/ Xxxxxxxxxxx X. Gemma
|
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| Xxxxxxxxxxx X. Gemma, an individual | ||||||
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EXHIBIT “A”
EMPLOYEE POSITION DESCRIPTION
Position Summary
| The Vice President of Sales will be responsible for running the day-to-day operations of the sales organization, inclusive of directing the efforts of all of the sales efforts globally. Of particular importance will be this individual’s ability to be diligent in understanding sales processes, putting together sales plans, both strategic and tactical and holding himself/herself and the account executives accountable for the company meeting its revenue goals. |
Relationships
| Reports to: President and Chief Operating Officer | ||
| Manages: All sales executives and sales support people |
Major Responsibilities
| • | Assures that the company meets or exceeds its revenue milestones. | ||
| • | Drives the development and implementation of the corporate sales plan, meeting all monthly and quarterly budgets, cash flow goals and other financial/revenue plans. | ||
| • | Keeps acute focus of the entire sales team on their monthly, quarterly and annual revenue and profit goals. | ||
| • | Devises and implements a sales strategy to drive the sale of all products and services which will meet or exceed the revenues and margins approved through the corporate business plan. | ||
| • | Ensures, through the sales organization, that pre- and post-sales support of all of the company’s products will drive near term sales as well as sustained, long-term growth through its current and future customers. | ||
| • | Will hold ultimate accountability for all of the proper staffing for all external and internal corporate sales functions and events. | ||
| • | Will work closely with the engineering, development, marketing and finance organizations to assure that there are “linked” goals within each organization and that the sales group does not operate as an island. |
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| • | Helps to ensure that all of ThermoGenesis’ products are OSHA compliant and are compliant with all safety codes (UL, CSA, etc.), ISO 9000 and IEN 46000 as part of the senior executive management team. | ||
| • | Drives the development of a sales reporting and forecasting system to assure accurate reporting and timely distribution of sales opportunity information to all appropriate individuals and entities. | ||
| • | Makes certain that a market-leading sales development process is in place to produce sustainable revenue generation and to enhance ThermoGenesis’ market leadership position in current and future markets. |
Ideal Experience
| • | Has accrued a minimum of 5-10 years experience in executive sales management in the sale of FDA Class II or III medical devices and disposables. | ||
| • | Significant experience in the hiring and management of effective, successful sales organizations. | ||
| • | Is a strategist, knowing and understanding how to analyze business problems; then devising, adopting implementing and managing the appropriate tactical solutions which drive the sales strategy. | ||
| • | Has earned a reputation for hiring and retaining first class talent and maintaining corporate discipline. | ||
| • | Has proven and verifiable leadership skills, leading as much by example and charisma as through title and position. | ||
| • | Is experienced in dealing with the FDA and has the ability to “sell” ideas, concepts and technology. | ||
| • | Has exceptional written, verbal and presentation skills along with the ability to communicate with a technically competent and knowledgeable medical community. |
Ideal Personal Profile
| • | An undergraduate degree in business administration with an advanced degree in engineering, marketing or one of the medical disciplines is highly recommended. | ||
| • | Is well versed and experienced in “sales margin” management. |
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| • | Is personable and charismatic, with a keen understanding of what is necessary to set realistic, but stretched, goals. Will always meet agreed upon milestones. | ||
| • | Has experience in both large companies (knows and understands the process) and small companies (exercises an entrepreneurial spirit). | ||
| • | Must be a “take charge” person with a “make it happen” attitude. | ||
| • | Must understand “field trials,” how to staff appropriately and provide the “right” people with the “right” training to assure the trial’s success. | ||
| • | Must be a “quick study” and be able to grasp complex technical and medical concepts and solutions. | ||
| • | Possesses strong written and oral communication skills. | ||
| • | Has a record of consistent corporate and personal growth and performance as related to the companies’ sales teams he/she has led. | ||
| • | Should be a visible personality in his/her field of expertise. |
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