EXHIBIT 10.1
IRIS INTERNATIONAL, INC ("IRIS")
KEY EMPLOYEE AGREEMENT
For
XX. XXXXXX X. XXXXX
XXXX International, Inc., a Delaware corporation (the "Company"), agrees with
you as follows:
1. POSITION AND RESPONSIBILITIES.
1.1 The Company will employ you and you shall serve in an
executive capacity as CHIEF TECHNOLOGY OFFICER and perform the duties
customarily associated with such capacity from time to time as the Company shall
reasonably designate or as shall be reasonably appropriate and necessary in
connection with such employment.
1.2 Subject to Section 4 below, you will, to the best of
your ability, devote your full time and best efforts to the performance of your
duties hereunder and the business and affairs of the Company. You will report to
the Company's Chief Executive Officer ("CEO"). You will also have primary
responsibility for managing all research and development groups for the Company,
with primary emphasis in the Iris Molecular Diagnostics subsidiary. In
collaboration with the CEO and other key executives of the Company, you will be
responsible for leading the creation and execution of the Company's technology
strategy, including the identification of technology licensing and acquisition
opportunities related to implement the Company's strategy.
1.3 You will duly, punctually and faithfully perform and
observe any and all rules and regulations which the Company may now or shall
hereafter establish governing the conduct of its business, except to the extent
that such rules and regulations may be inconsistent with your executive
position.
2. TERM OF EMPLOYMENT; TERMINATION.
2.1 The commencement of your employment shall be March _,
2006 (your "Start Date").
2.2 Unless otherwise mutually agreed in writing, this
Agreement and your employment by the Company pursuant to this Agreement shall be
terminated on the earliest of:
(a) your death, or any illness, disability or
other incapacity that renders you physically unable regularly to perform your
duties hereunder for a period in excess of one hundred twenty (120) consecutive
days or more than one hundred eighty (180) days in any consecutive twelve (12)
month period;
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(b) thirty (30) days after you, for any reason,
give written notice to the Company of your resignation;
(c) immediately by the Company upon written
notice either with cause or without cause; or
(d) the third anniversary of the Start Date.
2.3 The determination regarding whether you are
physically unable regularly to perform your duties (as described in Section 2.2
(a)) shall be made by the Board of Directors.
2.4 Any notice required pursuant to this Section 2 shall
be given in accordance with the provisions of Section 9 hereof. The exercise of
either party's right to terminate this Agreement pursuant to subsections 2.2 (b)
or (c) are not exclusive and shall not effect either party's right to seek
remedies .
2.5 You may be terminated with or without cause. If you
are terminated without cause, you will be entitled to certain severance benefits
as described in this Agreement. You shall be deemed terminated "for cause" if,
in the reasonable determination of the Company, you (a) commit an act that is
fraudulent, dishonest or a material breach of the Company's policies, including
wrongful disclosure of any trade secrets or other confidential information of
the Company, or material breach of Section 4 of this Agreement or any material
provision of the Confidentiality and Non-Solicitation Agreement (referred to in
Section 5), (b) are convicted of a felony under federal, state, or local law
applicable to the Company or (c) intentionally refuse, without proper cause, to
substantially perform duties after a demand for such performance has been
delivered in writing by the Company's CEO or the Board of Directors, which
notice shall specify the alleged instance of breach, and, shall provide you with
reasonable time in which to remedy such breach.
3. COMPENSATION; BENEFITS; AND INVESTMENT RIGHTS.
3.1 Company shall pay to you for the services to be
rendered hereunder a base salary at an annual rate of $250,000 subject to
increases in accordance with the policies of the Company in force from time to
time, as determined by its Board of Directors, payable in installments in
accordance with the Company's policies. You shall also be entitled to all rights
and benefits for which you shall be eligible under bonus, pension, group
insurance, long-term disability, life insurance, profit-sharing and other
Company benefits which may be in force from time to time and provided
specifically to you or for the Company's executive officers generally.
3.2 In addition to the foregoing, you will be eligible to
participate in the Company's Variable Compensation Program as follows: (i)
commencing in 2007, you will be eligible to earn a cash bonus (payable in 2008);
and (ii)
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commencing on the date all of the earn-out milestones, as set forth in that
certain Merger Agreement between the Company, Iris Molecular Diagnostics, Inc.
and Leucadia Technologies, Inc., are achieved (or that date it becomes
reasonably likely no further milestones will be achieved), you will be eligible
to receive stock-based compensation. Such awards will be contingent upon the
Company achieving certain financial goals and you satisfying certain individual
objectives to be established by the CEO and/or Compensation Committee of the
Board of Directors, all in accordance with the Variable Compensation Program and
in a manner commensurate with other senior executive officers.
3.3 You shall be eligible to participate in the Company's
ESPP Program as in effect from time to time. The ESPP Program currently provides
that employees may purchase common stock of the Company at a 15% discount from
the market price in an aggregate amount up to 15% of your total cash
compensation.
3.4 You shall be entitled to four (4) weeks of paid
vacation per year to be taken at such time as will not interfere with the
performance of your duties. You will also be entitled to illness days during the
term of this Agreement consistent with the Company's standard practice for its
employees generally as in effect from time to time.
3.5 In the event you are terminated without cause at any
time pursuant to Section 2.2 (c) hereof, the Company shall pay you the
equivalent of twelve (12) months base salary following such termination. At the
choice of the Company, payment may be in the form of a lump sum payment or
through regular payroll payments over the twelve (12) month period. Termination
without cause shall include "constructive termination" which means a significant
diminution of your fundamental responsibilities as Chief Technology Officer or
base compensation, or relocation outside San Diego County.
4. OTHER ACTIVITIES DURING EMPLOYMENT.
4.1 Except with the prior written consent of the
Company's Board of Directors, you will not during the term of this Agreement
undertake or engage in any other employment, occupation or business enterprise,
other than ones in which you are a passive investor in non-competitive
businesses. You may engage in civic and not-for-profit activities so long as
such activities do not materially interfere with the performance of your duties
hereunder.
4.2 Except as permitted by Section 4.3, you will not
during the term of this Agreement acquire, assume or participate in, directly or
indirectly, any position, investment or interest, known by you to be adverse or
antagonistic to, or competitive with, the Company, its businesses or prospects,
financial or otherwise.
4.3 During the term of your employment by the Company
(except on behalf of the Company), you will not directly or indirectly, whether
as an officer, director, stockholder, partner, proprietor, associate,
representative,
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consultant, or in any capacity whatsoever engage in, become financially
interested in, be employed by or have any business connection with any other
person, corporation, firm, partnership or other entity whatsoever which were
known by you to directly or indirectly complete with the Company, throughout the
world, in any line of business engaged in (or planned to be engaged in) by the
Company; provided, however, that anything above to the contrary notwithstanding,
you may own, as a passive investor, securities of any competitor corporation, so
long as your direct holdings in any one such corporation shall not in the
aggregate constitute more than 1% of the publicly-traded voting stock of such
corporation.
5. PROPRIETARY INFORMATION AND INVENTIONS. You agree to sign and
be bound by the provisions of the Company's standard Confidentiality and
Non-Solicitation Agreement.
6. REMEDIES. Your duties under the Confidentiality and Non-
Solicitation Agreement shall survive termination of this Agreement and your
employment with the Company. You acknowledge that a remedy at law for any breach
or threatened breach by you of the provisions of the Confidentiality and
Non-Solicitation Agreement would be inadequate and you therefore agree that the
Company shall be entitled to injunctive relief in case of any such breach or
threatened breach.
7. ASSIGNMENT. Neither this Agreement nor any rights or
obligations hereunder may be assigned by the Company or by you.
8. SEVERABILITY. In case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein. If moreover, any one or more of the
provisions contained in this Agreement shall for any reason be held to be
excessively broad as to duration, geographical scope, activity or subject, it
shall be construed by limiting and reducing it, so as to be enforceable to the
extent compatible with the applicable law as it shall then appear.
9. NOTICES. Any notice which the Company is required or may
desire to give you shall be given by personal delivery or registered or
certified mail, return receipt requested, addressed to you at the address of
record with the Company, or at such other place as you may from time to time
designate in writing. Any notice which you are required or may desire to give to
the Company hereunder shall be given by personal delivery or by registered or
certified mail, return receipt requested, addressed to the Company at its
principal office, or at such other office as the Company may from time to time
designate in writing. The date of personal delivery or the date of mailing any
such notice shall be deemed to be the date of delivery thereof.
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10. WAIVER. If either party should waive any breach of any
provisions of this Agreement, he or it shall not thereby be deemed to have
waived any preceding or succeeding breach of the same or any other provision of
this Agreement.
11. COMPLETE AGREEMENT; AMENDMENTS. The foregoing, together with
the Confidentiality and Non-Solicitation Agreement, is the entire agreement of
the parties with respect to the subject matter hereof and thereof and may not be
amended, supplemented, canceled or discharged except by written instrument
executed by both parties hereto.
12. HEADINGS. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
13. CHOICE OF LAW. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the law of the
State of California.
In Witness Whereof, the parties have executed this Key
Employee Agreement on the day and year written below.
IRIS INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
President & CEO
Date: April 3, 2006
Accepted and agreed to this
3rd day of April 2006
/s/ Xx. Xxxxxx X. Xxxxx
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Xx. Xxxxxx X. Xxxxx
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