EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.2
THIS
EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement")
is
made and entered into as of the 18th day
of
October, 2007, by and between DYADIC INTERNATIONAL, INC., a Delaware corporation
(the "Company"),
and
Xxxx De La Pointe (the "Executive").
The
Company and the Executive are sometimes hereinafter collectively referred to
as
the "parties"
and
individually as a "party,"
provided that as applicable, any reference to the Company shall mean the
Company, its Subsidiaries and and\or their Affiliates, as the case may be.
Certain capitalized terms used in this Agreement are defined in Article VII
hereof.
RECITALS
A.
The
Executive is currently employed by the Company as the Company's Executive Vice
President and Chief Financial Officer.
B.
Among
the
recent determinations of the Executive Committee and the Compensation Committee
were that it was in the best interests of the Company to promote the Executive
to the position of Executive Vice President and permanent Chief Financial
Officer, to increase the Executive's annual base compensation and thereafter
to
enter into a mutually acceptable employment agreement with the Executive.
C.
As
a
condition to and in consideration of the Company entering into this Agreement,
the Company requires that pursuant to this Agreement the Executive hereby
knowingly and intentionally furnishes the Company with, among other things,
the
suite of proprietary covenants of the Executive in favor of the Company set
forth in Article IV hereof, including by way of illustration, and not in
limitation, the Executive's covenant not to compete with the businesses of
the
Company, its Subsidiaries and their Affiliates.
D.
The
Executive desires to hold the positions of Executive Vice President and Chief
Financial Officer and to receive the salary and other financial benefits of
this
Agreement. Further, the Executive expressly acknowledges that: (i) as a member
of the Company's senior management, she is one of the persons charged with
primary responsibility for the implementation of the Company's business plans,
and that she will have regular access to various confidential and/or proprietary
information relating to the Company, its Subsidiaries, their Affiliates and
their businesses; and (ii) the suite of proprietary covenants of the Executive
in favor of the Company set forth in Article IV hereof which the Executive
is
knowingly and intentionally furnishing to the Company, including by way of
illustration, and not in limitation, the Executive's covenant not to engage
in
competition with the Company, its Subsidiaries, their Affiliates and their
businesses, are (A) being made both in consideration of the Company entering
into this Agreement and providing certain financial benefits set forth herein
and (B) necessary to protect the legitimate business interests of the Company,
its Subsidiaries and Affiliates and their respective businesses.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing recitals, and the mutual agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the parties hereby agree
as follows:
ARTICLE
1
EMPLOYMENT
RELATIONSHIP
1.1 Recitals.
The
Recitals to this Agreement are hereby incorporated herein and made a part
hereof.
1.2 Employment.
Subject
to the terms and conditions of this Agreement, the Company hereby agrees to
employ the Executive to serve as the Company's Executive Vice President and
Chief Financial Officer, and the Executive hereby accepts such employment,
and
agrees to perform all of her assigned duties and responsibilities to the best
of
her abilities in a diligent, trustworthy, businesslike and efficient manner,
and
in compliance with the Dyadic International, Inc. Code of Business Conduct
and
Ethics, a copy of which appears on the Company's website.
1.3 Duties;
Reporting Authority.
The
Executive shall have the normal and customary duties, responsibilities and
authority of a Person holding the title and job description set forth in Section
1.2 hereof, and, in addition, shall perform such other duties on behalf of
the
Company, its Subsidiaries and their Affiliates as may be assigned to her by
the
Chief Executive Officer or by the Board. In connection with the Executive's
performance of her duties she shall report to the Chief Executive Officer or
to
such other Person as the Chief Executive Officer or the Board may designate
from
time to time.
1.4 Exclusive
Employment.
While
she is employed by the Company hereunder, the Executive covenants to the Company
that she will devote her entire business time, energy, attention and skill
to
the Company, its Subsidiaries and their Affiliates (except for permitted
vacation periods and reasonable periods of illness or other incapacity), and
use
her good faith best efforts to promote the interests of the Company, its
Subsidiaries and their Affiliates. The foregoing shall not be construed as
prohibiting the Executive from spending such time as may be reasonably necessary
to attend to her personal affairs and investments so long as such activities
do
not conflict or interfere with the Executive's obligations and/or timely
performance of her duties to the Company, its Subsidiaries and their Affiliates
hereunder.
1.5 Executive
Representations.
The
Executive hereby represents and warrants to the Company that:
(a) the
execution, delivery and performance by the Executive of this Agreement and
any
other agreements contemplated hereby to which the Executive is a party do not
and shall not conflict with, breach, violate or cause a default under any
contract, agreement, instrument, order, judgment or decree to which the
Executive is a party or by which she is bound;
(b) the
Executive is not a party to or bound by any employment agreement,
non-competition agreement or confidentiality agreement with any other Person
(or
if a party to such an agreement, the Executive has disclosed the material terms
thereof to the Compensation Committee prior to the execution hereof and promptly
after the date hereof shall deliver a copy of such agreement to the Compensation
Committee); and
(c) upon
the
execution and delivery of this Agreement by the Company, this Agreement shall
be
the valid and binding obligation of the Executive, enforceable in accordance
with its terms.
The
Executive hereby acknowledges and represents that she has consulted with
independent legal counsel regarding her rights and obligations under this
Agreement and that she fully understands the terms and conditions contained
herein.
1.6 Company
Representations.
The
Company hereby represents and warrants to the Executive that:
(a) the
execution, delivery and performance by the Company of this Agreement and any
other agreements contemplated hereby to which the Company is a party do not
and
shall not conflict with, breach, violate or cause a default under any contract,
agreement, instrument, order, judgment or decree to which the Company is a
party
or by which she is bound; and
(b) upon
the
execution and delivery of this Agreement by the Executive, this Agreement shall
be the valid and binding obligation of the Company, enforceable in accordance
with its terms.
1.7 Indemnification.
(a) By
the
Executive.
The
Executive shall indemnify and hold the Company and its Subsidiaries and
Affiliates harmless from and against any and all claims, demands, losses,
judgments, costs, expenses, or liabilities incurred by the Company and/or any
of
its Subsidiaries or Affiliates arising out of or in connection with the breach
of any representation or warranty of the Executive contained in this Agreement.
(b) By
the
Company.
The
Company shall indemnify and hold the Executive harmless from and against any
and
all claims, demands, losses, judgments, costs, expenses, or liabilities incurred
by the Executive arising out of or in connection with the breach of any
representation or warranty of the Company contained in this Agreement. Further,
the Company shall defend, indemnify and hold harmless the Executive (including
without limitation, the prompt advance payment of all reasonable legal fees
and
expenses) to the fullest extent permitted by applicable law and the by-laws
of
the Company.
ARTICLE
2
PERIOD
OF EMPLOYMENT
2.1 Employment
Period.
The
Executive is an existing employee of the Company and shall continue to be an
employee of the Company until the date fixed by the provisions of Section 2.2
hereof, subject to the early termination provisions of Article V hereof (the
"Employment
Period"),
it
being acknowledged that the Company's fiscal year ends on December 31, and
that
the Employment Period shall therefore be denominated in calendar
years.
2.2 Initial
Term of Employment Period and Extension Terms.
The
Employment Period shall initially continue until December 31, 2008 (the
"Initial
Term").
The
Employment Period shall be automatically extended for successive calendar years
of the Company following the expiration of the Initial Term (each such one
year
period being hereinafter referred to as an "Extension
Term")
upon
the same terms and conditions provided for herein unless either party provides
the other party with advance written notice of its or her intention not to
extend the Employment Period; provided, however, that such notice must be
delivered by the non-extending party to the other party not later than ninety
(90) days prior to the expiration of the Initial Term or any Extension Term,
as
the case may be.
ARTICLE
3
COMPENSATION
3.1 Annual
Base Compensation.
Effective as of October 1, 2007, and during the balance of the Employment Period
the Company shall pay to the Executive an annual base salary (the "Annual
Base Compensation")
in the
amount of $197,500. The Annual Base Compensation shall be paid in regular
installments in accordance with the Company's general payroll practices, and
shall be subject to all required federal, state and local withholding taxes.
The
Executive's Annual Base Compensation shall be reviewed by the Chief Executive
Officer and the Compensation Committee annually, and may, in the discretion
of
the Chief Executive Officer and the Compensation Committee be increased,
provided that there shall be no obligation on the part of the Company to
increase the Executive's Annual Base
3.2 Discretionary
Bonuses.
In the
absolute discretion of the Compensation Committee, the Executive may be entitled
to receive a bonus, as and if the Compensation Committee shall determine from
time to time.
3.3 Expenses.
During
the Employment Period, the Executive shall be entitled to reimbursement of
all
travel, entertainment and other business expenses reasonably incurred in the
performance of her duties for the Company, upon submission of all receipts
and
accounts with respect thereto, and approval by the Company thereof, in
accordance with the business expense reimbursement policies adopted by the
Company from time to time.
3.4 Vacation.
In
respect of each calendar year falling within the Employment Period, the
Executive shall be entitled to four (4) weeks of vacation, or if greater, the
number of weeks of vacation proscribed by the vacation policies of the Company
then in effect from time to time, provided that unused vacation may be used
by
the Executive in the following calendar year only in accordance with and as
permitted by the Company's then current vacation policies in effect from time
to
time.
3.5 Other
Fringe Benefits.
During
the Employment Period, if, as and when they are being provided to other
employees of the Company holding positions with the Company comparable to the
Executive's position, the Executive shall also be entitled to receive health
insurance benefits, disability benefits and retirement benefits and other fringe
benefits.
ARTICLE
4
COVENANTS
OF THE EMPLOYEE
4.1 Proprietary
Rights.
The
Executive hereby expressly agrees that all research, Biological Materials,
discoveries, inventions and innovations (whether or not reduced to practice
or
documented), improvements, developments, methods, designs, analyses, drawings,
reports and all similar or related information (whether patentable or
unpatentable, and whether or not reduced to writing), trade secrets (being
information about the business of the Company, its Subsidiaries and their
Affiliates which is considered by the Company or any such Subsidiary or
Affiliate to be confidential and is proprietary to the Company or any such
Subsidiary or Affiliate) and confidential information, copyrightable works,
and
similar and related information (in whatever form or medium), which (x) either
(i) relate to the Company's, its Subsidiaries' or their Affiliates' actual
or
anticipated business, research and development or existing or future products
or
services or (ii) result from any work performed by the Executive for the
Company, its Subsidiaries or any of their Affiliates and (y) are conceived,
developed, made or contributed to in whole or in part by the Executive during
the Employment Period ("Work
Product")
shall
be and remain the sole and exclusive property of the Company, such Subsidiary
or
such Affiliate, as the case may be. The Executive shall communicate promptly
and
fully all Work Product to the Company.
(a) Work
Made for Hire.
The
Executive acknowledges that, unless otherwise agreed in writing by the Company,
all Work Product eligible for any form of copyright protection made or
contributed to in whole or in part by the Executive within the scope of the
Executive's employment by the Company during the Employment Period shall be
deemed a "work made for hire" under the copyright laws and shall be owned by
the
Company, its Subsidiaries or their Affiliates, as applicable.
(b) Assignment
of Proprietary Rights.
The
Executive hereby assigns, transfers and conveys to the Company, and shall
assign, transfer and convey to the Company, all right, title and interest in
and
to all inventions, ideas, improvements, designs, processes, trademarks, service
marks, trade names, trade secrets, trade dress, data, discoveries and other
proprietary assets and proprietary rights in and of the Work Product (the
"Proprietary
Rights")
for
the Company's exclusive ownership and use, together with all rights to xxx
and
recover for past and future infringement or misappropriation thereof, provided
that if a Subsidiary or Affiliate of the Company is the owner thereof, such
assignment, transfer and conveyance shall be made to such Subsidiary or
Affiliate, as the case may be, which shall enjoy exclusive ownership and use,
together with all rights to xxx and recover for past and future infringement
or
misappropriation thereof.
(c) Further
Instruments.
At the
request of the Company (its Subsidiaries or their Affiliates, as the case may
be), at all times during the Employment Period and thereafter, the Executive
will promptly and fully assist the Company (its Subsidiaries or their
Affiliates, as the case may be) in effecting the purpose of the foregoing
assignment, including but not limited to the further acts of executing any
and
all documents necessary to secure for the Company (its Subsidiaries or their
Affiliates, as the case may be) such Proprietary Rights and other rights to
all
Work Product and all confidential information related thereto, providing
cooperation and giving testimony.
(d) Inapplicability
of Section 4.1 In Certain Circumstances.
The
Company expressly acknowledges and agrees that, and the Executive is hereby
advised that, this Section 4.1 does not apply to any invention for which no
equipment, supplies, facilities or trade secret information of the Company,
its
Subsidiaries or any of their Affiliates was used and which was developed
entirely on the Executive's own time, unless (i) the invention relates to the
business of the Company, its Subsidiaries or any of their Affiliates or to
the
Company's, its Subsidiaries' or any of their Affiliates' actual or demonstrably
anticipated research or development or (ii) the invention results from any
work
performed by the Executive for the Company, its Subsidiaries or any of their
Affiliates.
4.2 Ownership
and Covenant to Return Documents, etc.
The
Executive agrees that all Work Product and all documents or other tangible
materials (whether originals, copies or abstracts), including without
limitation, price lists, quotation guides, outstanding quotations, books,
records, manuals, files, sales literature, training materials, customer records,
correspondence, computer disks or print-out documents, contracts, orders,
messages, phone and address lists, invoices and receipts, and all objects
associated therewith, which in any way relate to the business or affairs of
the
Company, its Subsidiaries and their Affiliates either furnished to the Executive
by the Company, its Subsidiaries or any of their Affiliates or are prepared,
compiled or otherwise acquired by the Executive during the Employment Period,
shall be the sole and exclusive property of the Company, such Subsidiaries
or
such Affiliates, as the case may be. The Executive shall not, except for the
use
of the Company, its Subsidiaries or any of their Affiliates, use, copy or
duplicate any of the aforementioned documents or objects, nor remove them from
the facilities of the Company or such Subsidiaries or such Affiliates, as the
case may be, nor use any information concerning them except for the benefit
of
the Company, its Subsidiaries and their Affiliates, either during the Employment
Period or thereafter. The Executive agrees that she will deliver all of the
aforementioned documents and objects that may be in her possession to the
Company on the termination of her employment with the Company, or at any other
time upon the Company's request, together with her written certification of
compliance with the provisions of this Section 4.2 in the form of Exhibit
A to
this
Agreement in accordance with the provisions of Section 5.3 hereof.
4.3 Non-Disclosure
Covenant.
For a
period commencing on the date of this Agreement and ending on the last to occur
of five (5) years following the date of execution of this Agreement or three
(3)
years following the date of the termination of the Employment Period (the
"Non-Disclosure
Period"),
the
Executive shall not, either directly or indirectly, disclose to any
"unauthorized person" or use for the benefit of the Executive or any Person
other than the Company, its Subsidiaries or their Affiliates any Work Product
or
any knowledge or information, which the Executive may acquire while employed
by
the Company (whether before or after the date of this Agreement), relating
to
(i) the financial, marketing, sales and business plans and affairs, financial
statements, analyses, forecasts and projections, books, accounts, records,
operating costs and expenses and other financial information of the Company,
its
Subsidiaries and their Affiliates, (ii) internal management tools and systems,
costing policies and methods, pricing policies and methods and other methods
of
doing business, of the Company, its Subsidiaries and their Affiliates, (iii)
customers, sales, customer requirements and usages, distributor lists, of the
Company, its Subsidiaries and their Affiliates, (iv) agreements with customers,
vendors, independent contractors, employees and others, of the Company, its
Subsidiaries and their Affiliates, (v) existing and future products or services
and product development plans, designs, analyses and reports, of the Company,
its Subsidiaries and their Affiliates, (vi) computer software and data bases
developed for the Company, its Subsidiaries or their Affiliates, and trade
secrets, research, records of research, models, designs, drawings, technical
data and reports of the Company, its Subsidiaries and their Affiliates and
(vii)
correspondence or other private or confidential matters, information or data
whether written, oral or electronic, which is proprietary to the Company, its
Subsidiaries and their Affiliates and/or not generally known to the public
(individually and collectively "Confidential
Information"),
without the Company's prior written permission. For purposes of this Section
4.3, the term "unauthorized person" shall mean any Person who is not (i) an
officer or director of the Company or an employee of the Company for whom the
disclosure of the knowledge or information referred to herein is necessary
for
her performance of her assigned duties, or (ii) an employee, officer or director
of a Subsidiary or Affiliate of the Company for whom the disclosure of the
knowledge or information referred to herein is necessary for her performance
of
her assigned duties, or (iii) a Person expressly authorized by the Company
to
receive disclosure of such knowledge or information. The Company expressly
acknowledges and agrees that the term "Confidential Information" excludes
information which is (A) in the public domain or otherwise generally known
to
the trade, or (B) disclosed to third parties other than by reason of the
Executive's breach of her confidentiality obligation hereunder or (C) learned
of
by the Executive subsequent to the termination of her employment hereunder
from
any other party not then under an obligation of confidentiality to the Company,
its Subsidiaries and their Affiliates. Further, the Executive covenants to
the
Company that in the Executive's performance of her duties hereunder, the
Executive will violate no confidentiality obligations she may have to any third
Persons.
4.4 Non-Interference
Covenants.
The
Executive covenants to the Company that while the Executive is employed by
the
Company hereunder and for the two (2) year period thereafter (the "Non-Interference
Period"),
she
will not, for any reason, directly or indirectly: (a) solicit, hire, or
otherwise do any act or thing which may induce any other employee of the
Company, its Subsidiaries or their Affiliates to leave the employ or otherwise
interfere with or adversely affect the relationship (contractual or otherwise)
of the Company, its Subsidiaries and their Affiliates with any person who is
then or thereafter becomes an employee of the Company, its Subsidiaries and
their Affiliates; (b) do any act or thing which may interfere with or adversely
affect the relationship (contractual or otherwise) of the Company, its
Subsidiaries and their Affiliates with any vendor of goods or services to the
Company, its Subsidiaries and their Affiliates or induce any such vendor to
cease doing business with the Company, its Subsidiaries and their Affiliates;
or
(c) except for Competitive Activities (as defined in Section 4.5) engaged in
by
the Employee after the expiration of the Non-Competition Period, do any act
or
thing which may interfere with or adversely affect the relationship (contractual
or otherwise) of the Company, its Subsidiaries and their Affiliates with any
customer of the Company, its Subsidiaries and their Affiliates or induce any
such customer to cease doing business with the Company, its Subsidiaries and
their Affiliates.
4.5 Covenant
Not To Compete.
The
Executive expressly acknowledges that (i) the Executive's performance of her
services for the Company hereunder will afford her access to and cause her
to
become highly knowledgeable about the Company's, its Subsidiaries' and their
Affiliates' Confidential Information; (ii) the agreements and covenants
contained in this Section 4.5 are essential to protect the Confidential
Information, business and goodwill of the Company, its Subsidiaries and their
Affiliates, and the restraints on the Executive imposed by the provisions of
this Section 4.5 are justified by these legitimate business interests of the
Company; and (iii) her covenants to the Company, its Subsidiaries and their
Affiliates set forth in this Section 4.5 are being made both in consideration
of
the Company's employment of the Executive in the office to which the Executive
has been recently promoted and the salary and other financial benefits of this
Agreement. Accordingly, the Executive hereby agrees that during the
Non-Competition Period she shall not, anywhere in the Applicable Territory,
directly or indirectly, own any interest in, invest in, lend to, borrow from,
manage, control, participate in, consult with, become employed by, render
services to, or in any other manner whatsoever engage in, any business which
is
competitive with any lines of business actively being engaged in by the Company,
its Subsidiaries and their Affiliates in the Applicable Territory or actively
(and demonstrably) being considered by the Company, its Subsidiaries and their
Affiliates for entry into on the date of the termination of the Employment
Period (collectively, "Competitive
Activities").
The
preceding to the contrary notwithstanding, the Executive shall be free to make
investments in the publicly traded securities of any corporation, provided
that
such investments do not amount to more than 1% of the outstanding securities
of
any class of such corporation.
4.6 Remedies
For Breach.
If the
Executive commits a breach, or threatens to commit a breach, of any of the
provisions of this Article IV, the Company and its Subsidiaries shall have
the
right and remedy, in addition to any other remedy that may be available at
law
or in equity, to have the provisions of this Article IV specifically enforced
by
any court having equity jurisdiction, by the entry of temporary, preliminary
and
permanent injunctions and orders of specific performance, together with an
accounting therefor, it being expressly acknowledged and agreed by the Executive
that any such breach or threatened breach will cause irreparable injury to
the
Company and its Subsidiaries and that money damages will not provide an adequate
remedy to the Company and its Subsidiaries. Any such injunction shall be
available without the posting of any bond or other security, and the Executive
hereby consents to the issuance of such injunction. The Executive further agrees
that any such injunctive relief obtained by the Company or its Subsidiaries
shall be in addition to, and not in lieu of, monetary damages and any other
remedies to which the Company or its Subsidiaries may be entitled. Further,
in
the event of an alleged breach or violation by the Executive of any of the
provisions of Sections 4.3, 4.4 or 4.5 hereof, the Non-Disclosure Period, the
Non-Interference Period and\or the Non-Competition Period, as the case may
be,
shall be tolled until such breach or violation has been cured. The parties
agree
that in the event of the institution of any action at law or in equity by either
party to enforce the provisions of this Article IV, the losing party shall
pay
all of the costs and expenses of the prevailing party, including reasonable
legal fees, incurred in connection therewith. If any covenant contained in
this
Article IV or any part thereof is hereafter construed to be invalid or
unenforceable, the same shall not affect the remainder of such covenant or
any
other covenants, which shall be given full effect, without regard to the invalid
portions, and any court having jurisdiction shall have the power to modify
such
covenant to the least extent necessary to render it enforceable and, in its
modified form, said covenant shall then be enforceable.
ARTICLE
5
TERMINATION
OF EMPLOYMENT
5.1 Termination
and Triggering Events.
Notwithstanding anything to the contrary elsewhere contained in this Agreement,
the Employment Period shall terminate at the expiration of the Initial Term
or
any Extension Term, or prior to the expiration of the Initial Term or any
Extension Term upon the occurrence of any of the following events (hereinafter
referred to as "Triggering
Events"):
(a)
the Executive's death; (b) the Executive's Total Disability; (c) the Executive's
Resignation; (d) a Termination by the Company for Cause; or (f) a Termination
by
the Company Without Cause.
5.2 Rights
Upon Occurrence of a Triggering Event.
Subject
to the provisions of Section 5.3 hereof, the rights of the parties upon the
occurrence of a Triggering Event prior to the expiration of the Initial Term
or
any Extension Term shall be as follows:
(a) Resignation
and Termination by the Company for Cause.
If the
Triggering Event was the Executive's Resignation or a Termination by the Company
for Cause, the Executive shall be entitled to receive her Annual Base
Compensation and accrued but unpaid vacation through the date thereof in
accordance with the policy of the Company, and to continue to participate in
the
Company's health, insurance and disability plans and programs through that
date
and thereafter, but only to the extent permitted under the terms of such plans
and programs.
(b) Death
or Total Disability:
If the
Triggering Event was the Executive's death or Total Disability, the Executive
(or the Executive's designated beneficiary) shall be entitled to receive the
Executive's Annual Base Compensation and accrued but unpaid vacation through
the
date thereof plus a pro rata portion of the Executive's potential discretionary
bonus for the calendar year in which such death or Total Disability occurred
(based on the number of days the Executive was employed during the applicable
calendar year), in accordance with the policy of the Company, and to continue
to
participate in the Company's health, insurance and disability plans and programs
through the date of termination and thereafter only to the extent permitted
under the terms of such plans and programs.
(c) Termination
by Company Without Cause.
If the
Triggering Event was a Termination by the Company Without Cause, the Executive
shall be entitled to receive her Annual Base Compensation and accrued but unpaid
vacation through the date thereof plus, in the discretion of the Compensation
Committee based upon whether it then appears any potential discretionary bonus
for the year would have been earned by the Executive had she remained employed
by the Company, a pro rata portion of the Executive's potential discretionary
bonus for the calendar year in which such Triggering Event occurred (based
on
the number of days the Executive was employed during the applicable calendar
year), payable in accordance with the Company's normal payroll practices,
provided that in addition, for each month of the Severance Period hereinafter
referred to, the Executive shall also be paid an amount per month equal to
one-twelfth (1/12th) of her then current Annual Base Compensation in weekly,
bi-monthly or monthly installments, as the case may be, consistent with the
Company's normal payroll practices, commencing with the first regular payroll
payment date following the termination of the Employment Period (collectively,
the "Additional
Severance Benefits");
further provided that the Executive shall be entitled to receive such Additional
Severance Benefits during the Severance Period if and only if the Executive has
executed and delivered to the Company the General Release substantially in
form
and substance as set forth in Exhibit
B
to this
Agreement and only so long as the Executive has not breached any of her
covenants to the Company set forth in Article IV of this Agreement.
(d) Cessation
of Entitlements and Company Right of Offset.
Except
as otherwise expressly provided herein, all of the Executive's rights to salary,
employee benefits, fringe benefits and bonuses hereunder (if any) which would
otherwise accrue after the termination of the Employment Period shall cease
upon
the date of such termination. The Company may offset any loans, cash advances
or
fixed amounts which the Executive owes the Company or its Affiliate against
any
amounts it owes the Executive under this Agreement.
5.3 Survival
of Certain Obligations and Termination Certificate.
The
provisions of Articles IV, V, VI and VIII shall survive any termination of
the
Employment Period, whether by reason of the occurrence of a Triggering Event
or
the expiration of the Initial Term or any Extension Term. Immediately following
the termination of the Employment Period, the Executive shall promptly return
to
the Company all property required to be returned to the Company pursuant to
the
provisions of Section 4.2 hereof and execute and deliver to the Company the
Termination Certificate attached hereto as Exhibit
A
and by
this reference made a part hereof.
ARTICLE
6
ASSIGNMENT
6.1 Prohibition
of Assignment by Executive.
The
Executive expressly agrees for herself, and on behalf of her executors,
administrators and heirs, that this Agreement and her obligations, rights,
interests and benefits hereunder shall not be assigned, transferred, pledged
or
hypothecated in any way by the Executive, her executors, administrators or
heirs, and shall not be subject to execution, attachment or similar process.
Any
attempt to assign, transfer, pledge, hypothecate or otherwise dispose of this
Agreement or any such rights, interests and benefits thereunder contrary to
the
foregoing provisions, or the levy of any attachment or similar process
thereupon, shall be null and void and without effect and shall relieve the
Company of any and all liability hereunder.
6.2 Right
of Company to Assign.
Except
as provided in the next sentence, the rights, but not the obligations of the
Company, shall be assignable and transferable to any successor-in-interest
without the consent of the Executive. In the instance of a sale of the Company
or the sale of all or substantially all of the assets of the Company, this
Agreement and the rights and obligations of the Company hereunder may be
assigned to the acquiring party without the Executive's consent, and for
purposes of this Agreement, such acquirer shall thereafter be deemed to be
the
Company.
ARTICLE
7
DEFINITIONS
"Affiliate"
means,
with respect to any Person, any other Person directly or indirectly controlling,
controlled by, or under common control with that Person, provided that, for
purposes of this definition, the terms "controls," "controlled by," or "under
common control with" shall mean that Person's possession, directly or
indirectly, of the power to direct or cause the direction of the management
and
policies of such other Person, whether through the ownership of voting
securities, by contract or otherwise.
"Applicable
Territory"
means
the United States of America and each other country in which the Company, any
of
its Subsidiaries or any of their Affiliates is actively engaged in the conduct
of one or more lines of business.
"Board"
means
the Board of Directors of the Company.
"Biological
Materials"
means
(i) classical or genetically modified strains, micro or other organisms, genes,
proteins, peptides, sugars, metabolites, small molecules, enzymes or DNA,
vectors, plasmids, promoters, expression cassettes or other genomic tools and
assay materials which are being worked with or on by the Company, its
Subsidiaries or any of their Affiliates or which are being worked with or on
the
Company's, its Subsidiaries' or any of their Affiliates' behalf by the
Company's, its Subsidiaries' or any of their Affiliates' advisors, research
and
business collaborators, and (ii) "Biological Materials" and fermentation or
other manufacturing processes being utilized by the Company, its Subsidiaries
or
any of their Affiliates, the Company's, its Subsidiaries' or any of their
Affiliates' research or business collaborators or the Company's, its
Subsidiaries' or any of their Affiliates' third party manufactures for research,
pilot scale and/or commercial manufacture of biotechnology and other
products.
"Chief
Executive Officer"
means
the chief executive officer of the Company.
"Compensation
Committee"
means
the Compensation Committee of the Board.
"Executive
Committee"
means
the Executive Committee of the Board.
"Non-Competition
Period"
means
the Employment Period and the eighteen (18) month period
thereafter.
"Person"
means
an individual, partnership, limited liability company, trust, estate,
association, corporation, governmental body or other juridical
being.
"Resignation"
means
the voluntary termination of employment hereunder by the Executive on or before
the expiration of the Initial Term or any Extension Term, as the case may be
(except if made in contemplation of a Termination by the Company for Cause),
provided that if such action is taken by the Executive without the giving of
at
least ninety (90) days prior written notice, such termination of employment
shall not be a "Resignation," but instead shall constitute a Termination for
Cause, further provided that the termination of the Employment Period on account
of the failure of the Executive to extend the Employment Period in accordance
with the provisions of Section 2.2 hereof shall constitute a
Resignation.
"Severance
Period"
means:
the six (6) month period immediately following the date of the termination
of
the Employment Period.
"Subsidiary"
means,
with respect to any Person of which (i) if a corporation, a majority of the
total voting power of shares of stock entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person or a combination
thereof, or (ii) if a limited liability company, partnership, association or
other business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly,
by
any Person or one or more Subsidiaries of such Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association
or
other business entity if such Person or Persons shall be allocated a majority
of
limited liability company, partnership, association or other business entity
gains or losses or shall be or control any managing director or general partner
of such limited liability company, partnership, association or other business
entity.
"Termination
by the Company for Cause"
means
termination by the Company of the Executive's employment on or before the
expiration of the Initial Term or any Extension Term, as the case may be, on
account of a finding by the Compensation Committee that the Executive has:
(i)
breached this Agreement or any other agreement between the Executive and the
Company, any Subsidiary or any of their Affiliates; (ii) engaged in disloyalty
to the Company, including without limitation, the diversion of corporate
opportunity, fraud, embezzlement, theft, commission of a felony or proven
dishonesty, in the course of her performance of her services hereunder; (iii)
disclosed trade secrets or other Confidential Information of the Company to
Persons not entitled to receive such information; or (iv) engaged in such other
behavior detrimental to the interests of the Company as the Compensation
Committee determines; provided that the termination of the Executive's
employment hereunder by the Company shall not be deemed a Termination by the
Company for Cause unless and until there shall have been delivered to the
Executive a written notice from the Chief Executive Officer (after reasonable
notice (in light of the circumstances surrounding the termination) to and an
opportunity for the Executive, alone and in person, to have a face-to-face
meeting with the Compensation Committee) stating that in the good faith opinion
of the Compensation Committee, the Executive was guilty of the conduct set
forth
in one or more of the foregoing clauses.
"Termination
by the Company Without Cause"
means a
termination of the Executive's employment by the Company on or before the
expiration of the Initial Term or any Extension Term, as the case may be, which
is not a Termination by the Company for Cause, provided that the termination
of
the Employment Period on account of the failure of the Company to extend the
Employment Period in accordance with the provisions of Section 2.2 hereof shall
constitute a Termination by the Company Without Cause.
"Total
Disability"
means
the Executive's inability, because of illness, injury or other physical or
mental incapacity, to perform her duties hereunder (as determined by the
Compensation Committee in good faith) for a continuous period of ninety (90)
consecutive days, or for a total of ninety (90) days within any three hundred
sixty (360) consecutive day period, in which case such Total Disability shall
be
deemed to have occurred on the last day of such ninety (90) day or three hundred
sixty (360) day period, as applicable.
ARTICLE
8
GENERAL
8.1 Notices.
All
notices under this Agreement shall be in writing and shall be deemed properly
sent, (i) when delivered, if by personal service or reputable overnight courier
service, or (ii) when received, if sent (x) by certified or registered mail,
postage prepaid, return receipt requested, or (y) via facsimile transmission
(provided that a hard copy of such notice is sent to the addressee via one
of
the methods of delivery or mailing set forth above on the same day the facsimile
transmission is sent), to (A) the Executive at the address of her principal
place of residence on file with the Company from time to time and (B) to the
Company, as follows:
Dyadic
International, Inc.
c/o
Chief
Executive Officer
000
Xxxxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
Facsimile
(000) 000-0000
With
a
copy to:
Xxxxx
X.
Trench, Esq.
Bilzin
Xxxxxxx Xxxxx Xxxxx & Xxxxxxx XXX
0000
Xxxxxxxx Financial Center
000
Xxxxx
Xxxxxxxx Xxxxxxxxx
Xxxxx,
Xxxxxxx 00000-0000
8.2 Governing
Law.
This
Agreement shall be subject to and governed by the laws of the State of Florida
without regard to any choice of law or conflicts of law rules or provisions
(whether of the State of Florida or any other jurisdiction), irrespective of
the
fact that the Executive may become a resident of a different state.
8.3 Binding
Effect.
The
Agreement shall be binding upon and inure to the benefit of the Company, its
successors and assigns, and the Executive and her executors, administrators,
personal representatives and heirs.
8.4 Complete
Understanding.
This
Agreement constitutes the complete understanding among the parties hereto with
regard to the subject matter hereof, and supersedes any and all prior agreements
and understandings relating to the terms of Executive's employment by the
Company.
8.5 Amendments.
No
change, modification or amendment of any provision of this Agreement shall
be
valid unless made in writing and signed by all of the parties
hereto.
8.6 Waiver.
The
waiver by the Company of a breach of any provision of this Agreement by the
Executive shall not operate or be construed as a waiver of any subsequent breach
by the Executive. The waiver by the Executive of a breach of any provision
of
this Agreement by the Company shall not operate as a waiver of any subsequent
breach by the Company.
8.7 Venue,
Jurisdiction, Etc.
The
Executive hereby agrees that any suit, action or proceeding relating in any
way
to this Agreement may be brought and enforced in the Circuit Court of Palm
Beach
County of the State of Florida or in the District Court of the United States
of
America for the Southern District of Florida, and in either case the Executive
hereby submits to the jurisdiction of each such court. The Executive hereby
waives and agrees not to assert, by way of motion or otherwise, in any such
suit, action or proceeding, any claim that the Executive is not personally
subject to the jurisdiction of the above-named courts, that the suit, action
or
proceeding is brought in an inconvenient forum or that the venue of the suit,
action or proceeding is improper. The Executive consents and agrees to service
of process or other legal summons for purpose of any such suit, action or
proceeding by registered mail addressed to the Executive at her address listed
in the business records of the Company. Nothing contained herein shall affect
the rights of the Company to bring suit, action or proceeding in any other
appropriate jurisdiction. The Executive and the Company do each hereby waive
any
right to trial by jury, she or it may have concerning any matter relating to
this Agreement.
8.8 Severability.
If any
portion of this Agreement shall be for any reason, invalid or unenforceable,
the
remaining portion or portions shall nevertheless be valid, enforceable and
carried into effect.
8.9 Headings.
The
headings of this Agreement are inserted for convenience only and are not to
be
considered in the construction of the provisions hereof.
8.10 Counterparts.
This
Agreement may be executed in one or more counterparts, all of which, taken
together, shall constitute one and the same agreement.
[Signatures
on the following pages]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above-written.
COMPANY: EXECUTIVE:
DYADIC
INTERNATIONAL, INC.,
a
Delaware Corporation
By:
/s/ Xxxx De La Pointe
XXXX
DE
LA POINTE
By:
/s/ Xxxxx Xxxx
Xxxxx
Xxxx
Chief
Executive Officer
15
EXHIBIT
A
to
between
DYADIC
INTERNATIONAL, INC.
and
XXXX
DE
LA POINTE
TERMINATION
CERTIFICATE
This
is
to certify that, except as permitted by the Employment Agreement (as defined
below) I do not have in my possession, nor have I failed to return, any
software, inventions, designs, works of authorship, copyrightable works,
formulas, data, marketing plans, forecasts, product concepts, marketing plans,
strategies, forecasts, devices, records, data, notes, reports, proposals,
customer lists, correspondence, specifications, drawings, blueprints, sketches,
materials, patent applications, continuation applications, continuation-in-part
applications, divisional applications, other documents or property, or
reproductions of any aforementioned items belonging to DYADIC INTERNATIONAL,
INC. (the "Company"),
its
Subsidiaries and their Affiliates, successors or assigns.
I
further
certify that I have complied with all the terms of the Employment Agreement
dated as of October 18, 2007 between the Company and me (as the same may be
amended, restated or otherwise modified, the "Employment
Agreement"),
relating to the reporting of any Work Product conceived or made by me (solely
or
jointly with others) covered by the Employment Agreement. Capitalized terms
used
but not otherwise defined herein shall have the meanings given such terms in
the
Employment Agreement.
I
acknowledge that the provisions of the Employment Agreement relating to
Confidential Information continue in effect beyond the termination of the
Employment Agreement, as set forth therein.
Finally,
I further acknowledge that the provisions of the Employment Agreement relating
to my (i) anti-pirating, (ii) non-interference and (iii) non-competition
covenants to the Company, its Subsidiaries and their Affiliates, also remain
in
effect following the date of my termination of employment with the
Company.
Date:_________________ ______________________________
XXXX
DE
LA POINTE
EXHIBIT
B
to
between
DYADIC
INTERNATIONAL, INC.
and
XXXX
DE
LA POINTE
GENERAL
RELEASE
I,
Xxxx
De La Pointe, in consideration of and subject to the performance by DYADIC
INTERNATIONAL, INC., a Delaware corporation (the "Company"), of its material
obligations under the Employment Agreement, dated as of October 18, 2007 (as
the
same may be amended, restated or otherwise modified, the "Agreement"),
do
hereby release and forever discharge as of the date hereof the Company, its
Subsidiaries and their Affiliates (as those terms are defined in the Agreement)
and all present and former directors, officers, agents, representatives,
employees, successors and assigns of the Company, its Subsidiaries and their
Affiliates and their direct or indirect owners (collectively, the "Released
Parties")
to the
extent provided below.
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1.
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I
understand that any payments or benefits paid or granted to me under
Section 5.2(c) of the Agreement represent, in part, consideration
for
signing this General Release and are not salary, wages or benefits
to
which I was already entitled. I understand and agree that I will
not
receive the payments and benefits specified in Section 5.2(c) of
the
Agreement unless I execute this General Release and do not revoke
this
General Release within the time period permitted hereafter or breach
this
General Release.
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2.
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Except
as provided in paragraph 4 of this General Release, I knowingly and
voluntarily release and forever discharge the Company and the other
Released Parties from any and all claims, controversies, actions,
causes
of action, cross-claims, counterclaims, demands, debts, compensatory
damages, liquidated damages, punitive or exemplary damages, other
damages,
claims for costs and attorneys' fees, or liabilities of any nature
whatsoever in law and in equity, both past and present (through the
date
of this General Release) and whether known or unknown, suspected,
or
claimed against the Company or any of the Released Parties which
I, my
spouse, or any of my heirs, executors, administrators or assigns,
may
have, which arise out of or are connected with my employment with,
or my
separation from, the Company (including, but not limited to, any
allegation, claim or violation, arising under: Title VII of the Civil
Rights Act of 1964, as amended; the Civil Rights Act of 1991; the
Age
Discrimination in Employment Act of 1967, as amended (including the
Older
Workers Benefit Protection Act); the Equal Pay Act of 1963, as amended;
the Americans with Disabilities Act of 1990; the Family and Medical
Leave
Act of 1993; the Civil Rights Act of 1866, as amended; the Worker
Adjustment Retraining and Notification Act; the Executive Retirement
Income Security Act of 1974; any applicable Executive Order Programs;
the
Fair Labor Standards Act; or their state or local counterparts; or
under
any other federal, state or local civil or human rights law, or under
any
other local, state, or federal law, regulation or ordinance; or under
any
public policy, contract or tort, or under common law; or arising
under any
policies, practices or procedures of the Company; or any claim for
wrongful discharge, breach of contract, negligent or intentional
infliction of emotional distress, defamation; or any claim for costs,
fees, or other expenses, including attorneys' fees incurred in these
matters) (all of the foregoing collectively referred to herein as
the
"Claims").
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3.
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I
represent that I have made no assignment or transfer of any right,
claim,
demand, cause of action or other matter covered by paragraph 2 of
this
General Release.
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4.
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I
and the Company mutually agree that this General Release does not
waive or
release any rights or claims that I may have under: (a) the Age
Discrimination in Employment Act of 1967 which arise after the date
I
execute this General Release; and (b) any agreements to which I and
the
Company and/or any of its Subsidiaries or Affiliates are parties
pertaining to any shares or options to purchase shares of capital
stock of
the Company and/or any of its Subsidiaries or Affiliates owned by
me. I
acknowledge and agree that my separation from employment with the
Company
in compliance with the terms of the Agreement shall not serve as
the basis
for any claim or action (including, without limitation, any claim
under
the Age Discrimination in Employment Act of 1967).
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5.
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In
signing this General Release, I acknowledge and intend that it shall
be
effective as a bar to each and every one of the Claims hereinabove
mentioned or implied. I expressly consent that this General Release
shall
be given full force and effect according to each and all of its express
terms and provisions, including those relating to unknown and unsuspected
Claims (notwithstanding any state statute that expressly limits the
effectiveness of a general release of unknown, unsuspected and
unanticipated Claims), if any, as well as those relating to any other
Claims hereinabove mentioned or implied. I acknowledge and agree
that this
waiver is an essential and material term of this General Release
and that
without such waiver the Company would not have agreed to the terms
of the
Agreement. I further agree that in the event I should bring a Claim
seeking damages against any Released Party, or in the event I should
seek
to recover against any Released Party in any Claim brought by a
governmental agency on my behalf, this General Release shall serve
as a
complete defense to such Claims. I further agree that I am not aware
of
any pending charge or complaint of the type described in paragraph
2 as of
the execution of this General
Release.
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6.
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I
agree that neither this General Release, nor the furnishing of the
consideration for this General Release, shall be deemed or construed
at
any time to be an admission by the Company, any Released Party or
myself
of any improper or unlawful
conduct.
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7.
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I
agree that if I challenge the validity of this General Release, I
will
forfeit all unpaid amounts otherwise payable by the Company pursuant
to
Section 5.2(c) of the Agreement other than the very first payment
due me
thereunder, provided that nothing herein contained in this Agreement
shall
prohibit or bar me from filing a charge, including a challenge to
the
validity of the Agreement, with the United States Equal Employment
Opportunity Commission ("EEOC"), or any state or local fair
employment-practices agency, or from participating in any investigation,
hearing or proceeding conducted by the EEOC, or any state or local
fair
employment practices agency. I also agree that if I violate this
General
Release by suing the Company or the other Released Parties, I will
pay all
costs and expenses of defending against the suit incurred by the
Released
Parties, including reasonable attorneys' fees, and return all payments
received by me pursuant to the Agreement.
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8.
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I
agree that this General Release is confidential and agree not to
disclose
any information regarding the terms of this General Release, except
to my
immediate family and any tax, legal or other counsel I have consulted
regarding the meaning or effect hereof or as required by law, and
I will
instruct each of the foregoing not to disclose the same to
anyone.
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9.
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Any
non-disclosure provision in this General Release does not prohibit
or
restrict me (or my attorney) from responding to any inquiry about
this
General Release or its underlying facts and circumstances by the
Securities and Exchange Commission (SEC), the EEOC (or a state or
local
fair employment practices agency), the Financial Industry Regulatory
Authority (FINRA), any other self-regulatory organization or governmental
entity.
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10.
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I
agree to reasonably cooperate with the Company in any internal
investigation or administrative, regulatory, or judicial proceeding.
I
understand and agree that my cooperation may include, but not be
limited
to, making myself available to the Company upon reasonable notice
for
interviews and factual investigations; appearing at the Company's
request
to give testimony without requiring service of a subpoena or other
legal
process; volunteering to the Company pertinent information; and turning
over to the Company all relevant documents which are or may come
into my
possession all at times and on schedules that are reasonably consistent
with my other permitted activities and commitments, provided that
I shall
have no obligation to expend more than one week of my time in connection
with the performance of these activities which out reasonable recompense,
as mutually and reasonably agreed upon by me and the Company. I understand
that in the event the Company asks for my cooperation in accordance
with
this provision, the Company will reimburse me solely for reasonable
travel
expenses, including lodging and meals, upon my submission of receipts.
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11.
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Notwithstanding
anything in this General Release to the contrary, this General Release
shall not relinquish, diminish, or in any way affect any rights or
claims
arising out of any breach occurring after the date hereof by the
Company
or by any Released Party of the
Agreement.
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12.
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Whenever
possible, each provision of this General Release shall be interpreted
in,
such manner as to be effective and valid under applicable law, but
if any
provision of this General Release is held to be invalid, illegal
or
unenforceable in any respect under any applicable law or rule in
any
jurisdiction, such invalidity, illegality or unenforceability shall
not
affect any other provision or any other jurisdiction, but this General
Release shall be reformed, construed and enforced in such jurisdiction
as
if such invalid, illegal or unenforceable provision had never been
contained herein.
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BY
SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
(a)
I
HAVE
READ IT CAREFULLY;
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(b)
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I
UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT
RIGHTS,
INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION
IN
EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS
ACT OF
1964, AS AMENDED; THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH
DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT
OF 1974, AS AMENDED;
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(c)
I
VOLUNTARILY CONSENT TO EVERYTHING IN IT;
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(d)
|
I
HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT
AND I
HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION I HAVE CHOSEN
NOT
TO DO SO OF MY OWN VOLITION;
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(e)
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I
HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE
SUBSTANTIALLY IN ITS FINAL FORM ON _______________ ____, ____ TO
CONSIDER
IT AND THE CHANGES MADE SINCE THE ______________ _____, _____VERSION
OF
THIS RELEASE ARE NOT MATERIAL AND WILL NOT RESTART THE REQUIRED 21-DAY
PERIOD;
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(f)
|
THE
CHANGES TO THE AGREEMENT SINCE ____________ ___, _____ EITHER ARE
NOT
MATERIAL OR WERE MADE AT MY
REQUEST.
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(g)
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I
UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS RELEASE
TO
REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE
UNTIL THE REVOCATION PERIOD HAS
EXPIRED;
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(h)
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I
HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH
THE
ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND
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(i)
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I
AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED,
WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED
BY
AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME.
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DATE:
_____________________
