EXECUTIVE EMPLOYMENT AGREEMENT
This
Employment Agreement (“Agreement”) is made this 31st day of May, 2007
("Effective Date") between WaferGen Bio-Systems, Inc., a Nevada corporation
(the
"Company") and Xxxxxx Xxxxxx ("Executive").
WITNESSETH:
WHEREAS,
the Executive desires to be employed by the Company as its Chief Technical
Officer and Secretary and the Company wishes to employ Executive in such
capacity;
NOW,
THEREFORE, in consideration of the foregoing recital and the respective
covenants and agreements of the parties contained in this document, the Company
and Executive hereby agree as follows:
1. Employment
and Duties.
The
Company agrees to employ and Executive agrees to serve as the Company's Chief
Technical Officer and Secretary. The duties and responsibilities of Executive
shall include the duties and responsibilities as the Board of Directors (the
“Board”) may from time to time reasonably assign to Executive.
Executive
shall devote substantially all of his working time and efforts during the
Company's normal business hours to the business and affairs of the Company
and
its subsidiaries and to the diligent and faithful performance of the duties
and
responsibilities duly assigned to him pursuant to this Agreement.
2. Term.
The
term of this Agreement shall commence on the Effective Date and shall continue
for a period of one year and shall be automatically renewed for successive
one
year periods thereafter unless either party provides the other party with
written notice of his or its intention not to renew this Agreement at least
three months prior to the expiration of the initial term or any renewal term
of
this Agreement. “Employment Period” shall mean the initial one year term plus
renewals, if any.
3. Place
of Employment.
Executive's services shall be performed at the Company's offices located in
Fremont, California and any other locus where the Company now or hereafter
has a
business facility within 50 miles of the Company’s Fremont office. The parties
acknowledge, however, that Executive may be required to travel in connection
with the performance of his duties hereunder.
4. Base
Salary.
For all
services to be rendered by Executive pursuant to this Agreement, the Company
agrees to pay Executive during the Employment Period an initial base salary
(the
"Base Salary") at an annual rate of $250,000. The Base Salary shall be paid
in
periodic installments in accordance with the Company's regular payroll
practices.
The
Compensation Committee (the “Compensation Committee”) of the Board (or by the
independent members of the Board, if there is no Compensation Committee) shall
review the Executive’s Base Salary annually and shall make a recommendation to
the Board as to whether such Base Salary should be increased but not decreased,
which decision shall be within the Board’s sole discretion.
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5. Bonus.
During
the term of this Agreement, the Executive shall be entitled to an annual bonus
of 25% of his Base Salary (which percentage may be increased in the discretion
of the Board), to be determined according to achievement of performance-related
financial and operating targets established annually for the Company and the
Executive by the Compensation Committee (or by the independent members of the
Board if there is no Compensation Committee). Executive shall have reasonable
input in the development of these targets. Such performance targets for each
fiscal year shall be adopted by the Compensation Committee prior to the end
of
the prior fiscal year. Each annual bonus shall be paid by the Company to the
Executive promptly after determination that the relevant targets have been
met,
it being understood that the attainment of any financial targets shall be
determined after the results of the annual audit are known.
6. Expenses.
Executive shall be entitled to prompt reimbursement by the Company for all
reasonable ordinary and necessary travel, entertainment, and other expenses
incurred by Executive while employed (in accordance with the policies and
procedures established by the Company for its senior executive officers) in
the
performance of his duties and responsibilities under this Agreement; provided,
that Executive shall properly account for such expenses in accordance with
Company policies and procedures.
7. Other
Benefits.
During
the term of this Agreement, the Executive shall be eligible to participate
in
incentive, savings, retirement (401(k)), and welfare benefit plans, including,
without limitation, health, medical, dental, vision, life (including accidental
death and dismemberment) and disability insurance plans (collectively, "Benefit
Plans"), in substantially the same manner and at substantially the same levels
as the Company makes such opportunities available to the Company's managerial
or
salaried executive employees.
8. Vacation.
During
the term of this Agreement, the Executive shall be entitled to accrue, on a
pro
rata basis, 20 paid vacation days per year. The Executive shall be entitled
to
carry over any accrued, unused vacation days from year to year without
limitation.
9. Stock
Options.
(a) Grant
of Options.
Upon
the execution hereof, the Company shall grant the Executive options to purchase
an aggregate of 166,667 shares of the Company's common voting stock ("Options")
under the Company's 2007 Stock Option Plan (the "Stock Option Plan"). Such
grant
shall be evidenced by an Option Agreement as contemplated by the Stock Option
Plan. In subsequent years the Executive shall be eligible for such grants of
Options and other permissible awards under the Stock Option Plan as the
Compensation Committee or the Board shall determine.
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(b) Option
Price; Term.
The per
share exercise price of the Options shall be $1.50, which represents the
fair
market value per share of Company common stock on the date of grant. The
term of
the Option shall be ten years from the date of grant.
(c) Exercise.
One
forty-eighth (2.083%) of the Options shall become exercisable on each monthly
anniversary of the date of grant.
(d) Payment.
The
full consideration for any shares purchased by the Executive upon exercise
of
the Options shall be paid either (i) in cash or (ii) on a “cashless” basis in
accordance with the terms of the Stock Option Plan.
(e) Termination
of Employment; Accelerated Vesting.
(1) If
the
Executive’s employment is terminated for Cause, as such term is defined below,
all Options, whether or not vested, shall immediately expire effective the
date
of termination of employment.
(2) If
the
Executive’s employment is terminated voluntarily by the Executive without Good
Reason, as such term is defined below, all unvested Options shall immediately
expire effective the date of termination of employment. Vested Options, to
the
extent unexercised, shall expire one month after the termination of
employment.
(3) If
the
Executive’s employment terminates on account of death or Disability, as defined
below, all unvested Options shall immediately expire effective the date of
termination of employment. Vested Options, to the extent unexercised, shall
expire one year after the termination of employment.
(4) If
the
Executive’s employment is terminated (A) in connection with a Change of Control,
as defined below, (B) by the Company without Cause or (C) by the Executive
for
Good Reason, all unvested Options shall immediately vest and become exercisable
effective the date of termination of employment, and, to the extent unexercised,
shall expire one year after any such event.
10. Termination
of Employment.
(a) Death.
If
Executive dies during the Employment Period, this Agreement and the Executive’s
employment with the Company shall automatically terminate and the Company
shall
have no further obligations to the Executive or his heirs, administrators
or
executors with respect to compensation and benefits accruing thereafter,
except
for the obligation to pay to the Executive’s heirs, administrators or executors
any earned but unpaid Base Salary and vacation pay, unpaid pro
rata
annual
bonus through the date of death and reimbursement of any and all reasonable
expenses paid or incurred by the Executive in connection with and related
to the
performance of his duties and responsibilities for the Company during the
period
ending on the termination date. The Company shall deduct, from all payments
made
hereunder, all applicable taxes, including income tax, FICA and FUTA, and
other
appropriate deductions. In addition, the Executive’s spouse and minor children
shall be entitled to continued coverage, at the Company’s expense, under all
health, medical, dental and vision insurance plans in which the Executive
was a
participant immediately prior to his last date of employment with the
Company.
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(b) Disability.
In the
event that, during the term of this Agreement the Executive shall be prevented
from performing his duties and responsibilities hereunder to the full extent
required by the Company by reason of Disability (as defined below) this
Agreement and the Executive’s employment with the Company shall automatically
terminate and the Company shall have no further obligations or liability
to the
Executive or his heirs, administrators or executors with respect to compensation
and benefits accruing thereafter, except for the obligation to pay the Executive
or his heirs, administrators or executors any earned but unpaid Base Salary,
unpaid pro
rata
annual
bonus and unused vacation days accrued through the Executive’s last date of
Employment with the Company and reimbursement of any and all reasonable expenses
paid or incurred by the Executive in connection with and related to the
performance of his duties and responsibilities for the Company during the
period
ending on the termination date. The Company shall deduct, from all payments
made
hereunder, all applicable taxes, including income tax, FICA and FUTA, and
other
appropriate deductions through the last date of the Executive’s employment with
the Company. For purposes of this Agreement, “Disability”
shall
mean a physical or mental disability that prevents the performance by the
Executive, with or without reasonable accommodation, of his duties and
responsibilities hereunder for a period of not less than an aggregate of
three
months during any twelve consecutive months.
(c) Cause.
(1) At
any
time during the Employment Period, the Company may terminate this Agreement
and
the Executive’s employment hereunder for Cause. For purposes of this Agreement,
“Cause” shall mean: (a) the willful and continued failure of the Executive to
perform substantially his duties and responsibilities for the Company (other
than any such failure resulting from a Disability) after a written demand
by the
Board for substantial performance is delivered to the Executive by the Company,
which specifically identifies the manner in which the Board believes that
the
Executive has not substantially performed his duties and responsibilities,
which
willful and continued failure is not cured by the Executive within thirty
(30)
days of his receipt of such written demand; (b) the conviction of, or plea
of
guilty or nolo
contendere
to, a
felony, (c), violation of Sections 11 or 12 of this Agreement, or (d) fraud,
dishonesty or gross misconduct which is materially and demonstratively injurious
to the Company. Termination under sections 10(c)(1)(b), 10(c)(1)(c) or
10(c)(1)(d) above shall not be subject to cure.
(2) Upon
termination of this Agreement for Cause, the Company shall have no further
obligations or liability to the Executive or his heirs, administrators or
executors with respect to compensation and benefits thereafter, except for
the
obligation to pay the Executive any earned but unpaid Base Salary and vacation
pay, and reimbursement of any and all reasonable expenses paid or incurred
by
the Executive in connection with and related to the performance of his duties
and responsibilities for the Company during the period ending on the termination
date. The Company shall deduct, from all payments made hereunder, all applicable
taxes, including income tax, FICA and FUTA, and other appropriate
deductions.
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(d) Change
of Control.
For
purposes of this Agreement, “Change of Control” shall mean the occurrence of any
one or more of the following: (i) the accumulation, whether directly,
indirectly, beneficially or of record, by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended) of 50% or more of the shares of the outstanding
Common
Stock of the Company, (ii) a merger or consolidation of the Company in
which the Company does not survive as an independent public company or upon
the
consummation of which the holders of the Company’s outstanding equity securities
prior to such merger or consolidation own less than 50% of the outstanding
equity securities of the Company after such merger or consolidation, or
(iii) a sale of all or substantially all of the assets of the Company,
provided,
however,
that
the following acquisitions shall not constitute a Change of Control for the
purposes of this Agreement: (A) any acquisitions of Common Stock or securities
convertible into Common Stock directly from the Company, or (B) any acquisition
of Common Stock or securities convertible into Common Stock by any employee
benefit plan (or related trust) sponsored by or maintained by the
Company..
(e) Good
Reason.
(1) At
any
time during the term of this Agreement, subject to the conditions set forth
in
Section 10(e)(2) below, the Executive may terminate this Agreement and the
Executive’s employment with the Company for “Good Reason.” For purposes of this
Agreement, “Good Reason” shall mean the occurrence of any of the following
events: (A) the assignment, without the Executive’s consent, to the Executive of
duties that are significantly different from, and that result in a substantial
diminution of, the duties that he assumed on the Effective Date; (B) the
assignment, without the Executive’s consent, to the Executive of a title that is
different from and subordinate to the title Chief Technical Officer and
Secretary; (C) any termination of the Executive’s employment by the Company,
other than a termination for Cause, within 12 months after a Change of Control;
(D) the assignment, without the Executive’s consent, to the Executive of duties
that are significantly different from, and that result in a substantial
diminution of, the duties that he assumed as Chief Technical Officer and
Secretary on the Effective Date within 12 months after a Change of Control;
or
(E) material breach by the Company of this Agreement.
(2) The
Executive shall not be entitled to terminate this Agreement for Good Reason
unless and until he shall have delivered written notice to the Company of
his
intention to terminate this Agreement and his employment with the Company
for
Good Reason, which notice specifies in reasonable detail the circumstances
claimed to provide the basis for such termination for Good Reason, and the
Company shall not have eliminated the circumstances constituting Good Reason
within 30 days of its receipt from the Executive of such written
notice.
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(3) In
the
event that the Executive terminates this Agreement and his employment with
the
Company for Good Reason, the Company shall pay or provide to the Executive
(or,
following his death, to the Executive’s heirs, administrators or executors): (A)
any earned but unpaid Base Salary, unpaid pro
rata
annual
bonus and unused vacation days accrued through the Executive’s last day of
employment with the Company; (B) continued coverage, at the Company’s expense,
under all Benefits Plans in which the Executive was a participant immediately
prior to his last date of employment with the Company, or, in the event that
any
such Benefit Plans do not permit coverage of the Executive following his
last
date of employment with the Company, under benefit plans that provide no
less
coverage than such Benefit Plans, for a period of one year following the
termination of employment; (C) reimbursement of any and all reasonable expenses
paid or incurred by the Executive in connection with and related to the
performance of his duties and responsibilities for the Company during the
period
ending on the termination date and (D) severance in an amount equal to one
year’s Base Salary, as in effect immediately prior to the Executive’s
termination hereunder. All payments due hereunder shall be payable according
to
the Company’s standard payroll procedures. The Company shall deduct, from all
payments made hereunder, all applicable taxes, including income tax, FICA
and
FUTA, and other appropriate deductions.
(f) Without
“Good Reason” by Executive or “Cause” by the Company.
(1) By
the
Executive.
At any
time during the term of this Agreement, the Executive shall be entitled to
terminate this Agreement and the Executive’s employment with the Company without
Good Reason by providing prior written notice of at least 30 days to the
Company. The Executive’s failure to renew the term of this Agreement pursuant to
Section 2 hereof shall be deemed a termination by the Executive without Good
Reason, and no additional notice shall be required other than that provided
for
in Section 2. Upon termination by the Executive of this Agreement and the
Executive’s employment with the Company without Good Reason, the Company shall
have no further obligations or liability to the Executive or his heirs,
administrators or executors with respect to compensation and benefits
thereafter, except for the obligation to pay the Executive any earned but
unpaid
Base Salary, unused vacation days accrued through the Executive’s last day of
employment with the Company and reimbursement of any and all reasonable expenses
paid or incurred by the Executive in connection with and related to the
performance of his duties and responsibilities for the Company during the
period
ending on the termination date. The Company shall deduct, from all payments
made
hereunder, all applicable taxes, including income tax, FICA and FUTA, and
other
appropriate deductions.
(2) By
the
Company.
At any
time during the term of this Agreement, the Company shall be entitled to
terminate this Agreement and the Executive’s employment with the Company without
Cause by providing prior written notice of at least 30 days to the Executive.
The Company’s failure to renew the term of this Agreement pursuant to Section 2
hereof shall be deemed a termination by the Company without Cause, and no
additional notice shall be required other than that provided for in Section
2.
Upon termination by the Company of this Agreement and the Executive’s employment
with the Company without Cause, the Company shall pay or provide to the
Executive (or, following his death, to the Executive’s heirs, administrators or
executors): (A) any earned but unpaid Base Salary, unpaid pro
rata
annual
bonus and unused vacation days accrued through the Executive’s last day of
employment with the Company; (B) continued coverage, at the Company’s expense,
under all Benefits Plans in which the Executive was a participant immediately
prior to his last date of employment with the Company, or, in the event that
any
such Benefit Plans do not permit coverage of the Executive following his
last
date of employment with the Company, under benefit plans that provide no
less
coverage than such Benefit Plans, for a period of one year following the
termination of employment; (C) reimbursement of any and all reasonable expenses
paid or incurred by the Executive in connection with and related to the
performance of his duties and responsibilities for the Company during the
period
ending on the termination date and (D) severance in an amount equal to one
year’s Base Salary, as in effect immediately prior to the Executive’s
termination hereunder. All payments due hereunder shall be payable according
to
the Company’s standard payroll procedures. The Company shall deduct, from all
payments made hereunder, all applicable taxes, including income tax, FICA
and
FUTA, and other appropriate deductions.
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11. Confidential
Information.
(a) The
Executive expressly acknowledges that, in the performance of his duties and
responsibilities with the Company, he has been exposed since prior to the
Effective Date, and will be exposed, to the trade secrets, business and/or
financial secrets and confidential and proprietary information of the Company,
its affiliates and/or its clients, business partners or customers (“Confidential
Information”). The term "Confidential Information" includes information or
material that has actual or potential commercial value to the Company, its
affiliates and/or its clients, business partners or customers and is not
generally known to and is not readily ascertainable by proper means to persons
outside the Company, its affiliates and/or its clients or customers.
(b) Except
as
authorized in writing by the Board, during the performance of the Executive’s
duties and responsibilities for the Company and until such time as any such
Confidential Information becomes generally known to and readily ascertainable
by
proper means to persons outside the Company, its affiliates and/or its clients,
business partners or customers, the Executive agrees to keep strictly
confidential and not use for his personal benefit or the benefit to any other
person or entity (other than the Company) the Confidential Information.
“Confidential Information” includes the following, whether or not expressed in a
document or medium, regardless of the form in which it is communicated, and
whether or not marked “trade secret” or “confidential” or any similar legend:
(i) lists of and/or information concerning customers, prospective customers,
suppliers, employees, consultants, co-venturers and/or joint venture candidates
of the Company, actual or prospective distributors, its affiliates or its
clients or customers; (ii) information submitted by customers, prospective
customers, suppliers, employees, distributors, consultants and/or co-venturers
of the Company, its affiliates and/or its clients or customers; (iii) non-public
information proprietary to the Company, its affiliates and/or its clients
or
customers, including, without limitation, cost information, profits, sales
information, prices, accounting, unpublished financial information, business
plans or proposals, expansion plans (for current and proposed facilities),
markets and marketing methods, advertising and marketing strategies,
administrative procedures and manuals, the terms and conditions of the Company’s
contracts and trademarks and patents under consideration, distribution channels,
franchises, investors, sponsors and advertisers; (iv) proprietary technical
information and/or intellectual property concerning or relating to products
and
services of the Company, its affiliates and/or its clients, business partners
or
customers, including, without limitation, product data and specifications,
diagrams, flow charts, know how, processes, designs, formulae, inventions
and
product development; (v) lists of and/or information concerning applicants,
candidates or other prospects for employment, independent contractor or
consultant positions at or with any actual or prospective customer or client
of
Company and/or its affiliates, any and all confidential processes, inventions
or
methods of conducting business of the Company, its affiliates and/or its
clients, business partners or customers; (vi) acquisition or merger targets;
(vii) business plans or strategies, data, records, financial information
or
other trade secrets concerning the actual or contemplated business, strategic
alliances, policies or operations of the Company or its affiliates; or (viii)
any and all versions of proprietary computer software (including source and
object code), hardware, firmware, code, discs, tapes, data listings and
documentation of the Company; or (ix) any other confidential information
disclosed to the Executive by, or which the Executive obligated under a duty
of
confidence from, the Company, its affiliates, and/or its clients, business
partners or customers.
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(c) The
Executive affirms that he does not possess and will not rely upon the protected
trade secrets or confidential or proprietary information of any prior
employer(s) in providing services to the Company.
(d) In
the
event that the Executive’s employment with the Company terminates for any
reason, the Executive shall deliver forthwith to the Company any and all
originals and copies, including those in electronic or digital formats, of
Confidential Information.
12. Non-Competition
and Non-Solicitation.
(a) The
Executive agrees and acknowledges that the Confidential Information that
the
Executive has already received and will receive is valuable to the Company
and
that its protection and maintenance constitutes a legitimate business interest
of the Company, to be protected by the non-competition restrictions set forth
herein. The Executive agrees and acknowledges that the non-competition
restrictions set forth herein are reasonable and necessary and do not impose
undue hardship or burdens on the Executive. The Executive also acknowledges
that
the products and services developed or provided by the Company, its affiliates
and/or its clients or customers are or are intended to be sold, provided,
licensed and/or distributed to customers and clients in and throughout the
United States (the “Geographic Boundary”) (to the extent the Company comes to
operate, either directly or through the engagement of a distributor or joint
or
co-venturer, or sell a significant amount of its products and services to
customers located, in areas other than the United States during the term
of the
Employment Period, the definition of Geographic Boundary shall be automatically
expanded to cover such other areas), and that the Geographic Boundary, scope
of
prohibited competition, and time duration set forth in the non-competition
restrictions set forth below are reasonable and necessary to maintain the
value
of the Confidential Information of, and to protect the goodwill and other
legitimate business interests of, the Company, its affiliates and/or its
clients
or customers.
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(b) The
Executive hereby agrees and covenants that he shall not, without the prior
written consent of the Company, directly or indirectly, in any capacity
whatsoever, including, without limitation, as an employee, employer, consultant,
principal, partner, shareholder, officer, director or any other individual
or
representative capacity (other than a holder of less than two percent (2%)
of
the outstanding voting shares of any publicly held company), or whether on
the
Executive's own behalf or on behalf of any other person or entity or otherwise
howsoever, during the Executive's employment with the Company and for a period
equal to the greater of (i) one year following the termination of this Agreement
or of the Executive's employment with the Company or (ii) the period during
which the Executive continues to receive his base salary pursuant to Sections
10(e) or 10(f)(2) of this Agreement following the termination of this Agreement
and of the Executive's employment, in the Geographic Boundary:
(1) Engage,
own, manage, operate, control, be employed by, consult for, participate in,
or
be connected in any manner with the ownership, management, operation or control
of any business in competition with the business of the Company;
(2) Recruit,
solicit or hire, or attempt to recruit, solicit or hire, any employee, or
independent contractor of the Company to leave the employment (or independent
contractor relationship) thereof, whether or not any such employee or
independent contractor is party to an employment agreement;
(3) Attempt
in any manner to solicit or accept from any customer of the Company, with
whom
the Company had significant contact during the term of the Agreement, business
of the kind or competitive with the business done by the Company with such
customer or to persuade or attempt to persuade any such customer to cease
to do
business or to reduce the amount of business which such customer has customarily
done or is reasonably expected to do with the Company, or if any such customer
elects to move its business to a person other than the Company, provide any
services (of the kind or competitive with the Business of the Company) for
such
customer, or have any discussions regarding any such service with such customer,
on behalf of such other person; or
(4) Interfere
with any relationship, contractual or otherwise, between the Company and
any
other party, including, without limitation, any supplier, distributor,
co-venturer or joint venturer of the Company to discontinue or reduce its
business with the Company or otherwise interfere in any way with the Business
of
the Company.
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13. Dispute
Resolution.
Any and
all controversies, claims, or disputes arising out of, relating to, or resulting
from this Agreement shall be subject to binding arbitration under the
Arbitration Rules set forth in California Code of Civil Procedure Section
1280
through 1294.2, including section 1283.05 (the "Rules") and pursuant to
California law. Any arbitration will be administered by the American Arbitration
Association ("AAA") in accordance with its Rules for the Resolution of
Commercial Disputes. Executive agrees that the arbitrator shall have the
power
to decide any motions brought by any party to the arbitration, including
motions
for summary judgment and/or adjudication and motions to dismiss and demurrers,
prior to any arbitration hearing. Executive also agrees the arbitrator shall
have the power to award any remedies, including attorneys' fees and costs,
available under applicable law. Executive understands that each party shall
bear
its own costs and expenses, including attorneys' fees, incurred in connection
with any Arbitration. The decision of the arbitrator shall be in writing.
Except
as provided by the Rules or as set forth herein, arbitration shall be the
sole,
exclusive and final remedy for any dispute under this Agreement. Accordingly,
except as provided by the Rules or as set forth herein, neither Executive
nor
the Company will be permitted to pursue court action regarding this Agreement.
In addition to the right under the Rules to petition the court for provisional
relief, Executive agrees that any party may also petition the court for
injunctive or other forms of relief where either party alleges or claims
a
violation of the provisions of Sections 11 or 12 of this Agreement or any
confidential information or invention assignment agreement between Executive
and
the Company or any other agreement regarding trade secrets, confidential
information, non-solicitation or Labor Code Section 2870. In the event either
party seeks such injunctive or such other relief, the prevailing party shall
be
entitled to recover reasonable costs and attorneys' fees.
14. Notices.
For
purposes of this Agreement, notices and other communications provided for
in
this Agreement shall be in writing and shall be delivered personally or sent
by
United States certified mail, return receipt requested, postage prepaid,
or by a
nationally recognized overnight courier, addressed as follows:
| If to Executive: |
Xxxxxx
Xxxxxx
|
| 00000 Xxxxxxxxxx Xxxxxx |
| Xxxxxxx XX, 00000 |
| If to the Company: | WaferGen Bio-Systems, Inc. |
| 00000 Xxxxxxx Xxxx. |
| Xxxxxxx, XX 00000 |
| Attention: Xxxxxx Xxxxxx |
or
to
such other address or the attention of such other person as the recipient
party
has previously furnished to the other party in writing in accordance with
this
paragraph. Such notices or other communications shall be effective upon delivery
or, if earlier, three days after they have been mailed as provided above.
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15. Miscellaneous.
(a) All
issues and disputes concerning, relating to or arising out of this Agreement
and
from the Executive’s employment by the Company, including, without limitation,
the construction and interpretation of this Agreement, shall be governed
by and
construed in accordance with the internal laws of the State of California,
without giving effect to that State’s principles of conflicts of
law.
(b) The
Executive and the Company agree that any provision of this Agreement deemed
unenforceable or invalid may be reformed to permit enforcement of the
objectionable provision to the fullest permissible extent. Any provision
of this
Agreement deemed unenforceable after modification shall be deemed stricken
from
this Agreement, with the remainder of the Agreement being given its full
force
and effect.
(c) Failure
or delay on the part of either party hereto to enforce any right, power,
or
privilege hereunder shall not be deemed to constitute a waiver thereof.
Additionally, a waiver by either party or a breach of any promise hereof
by the
other party shall not operate as or be construed to constitute a waiver of
any
subsequent waiver by such other party.
(d) The
Executive and the Company independently have made all inquiries regarding
the
qualifications and business affairs of the other which either party deems
necessary. The Executive affirms that he fully understands this Agreement’s
meaning and legally binding effect. Each party has participated fully and
equally in the negotiation and drafting of this Agreement. Each party assumes
the risk of any misrepresentation or mistaken understanding or belief relied
upon by him or it in entering into this Agreement.
(e) The
Executive’s obligations under this Agreement are personal in nature and may not
be assigned by the Executive to any other person or entity. This Agreement
shall
be enforceable by the Company and its parents, affiliates, successors and
assigns, and the Company shall require any successors and assigns to expressly
assume and agree to perform this Agreement in the same manner and to the
same
extent that the Company would be required to perform it if no such succession
or
assignment had taken place.
(f) This
instrument constitutes the entire Agreement between the Parties regarding
its
subject matter. When signed by each of the Parties, this Agreement supersedes
and nullifies all prior or contemporaneous conversations, negotiations, or
agreements, oral and written, regarding the subject matter of this Agreement.
In
any future construction of this Agreement, this Agreement should be given
its
plain meaning. This Agreement may be amended only by a writing signed by
the
parties.
(g) This
Agreement may be executed in counterparts, a counterpart transmitted via
facsimile, and all executed counterparts, when taken together, shall constitute
sufficient proof of the parties’ entry into this Agreement. The Parties agree to
execute any further or future documents which may be necessary to allow the
full
performance of this Agreement. This Agreement contains headings for ease
of
reference. The headings have no independent meaning.
11
IN
WITNESS WHEREOF, the Executive and the Company have caused this Employment
Agreement to be executed as of the date first above written.
| XXXXXX XXXXXX | ||
| |
|
/s/ Xxxxxx Xxxxxx |
|
|
||
| WAFERGEN BIO-SYSTEMS, INC. | ||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxx | |
|
Name: Xxxxxx Xxxxxx |
||
|
Title: Chief
Executive Officer
|
||
12
