EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made as of the third day
of January 2005 between Sentigen Holding Corp. and subsidiaries, a Delaware
corporation (the "Company") and Xxxxxx X. Xxxxxxx (the "Employee").
RECITALS
WHEREAS, Employee desires to be employed by the Company upon the terms
and conditions hereinafter set forth; and
WHEREAS, the Company desires to employ the Employee upon the terms and
conditions hereinafter set forth.
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. Employment.
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During the Employment Term (defined below), the Employee shall serve as
the Executive Vice President of Commercial Operations of the Company with the
authority and responsibilities typically associated with such position, and
shall report to and perform such duties as are assigned by Xxxxxx X. Xxxxxx,
Chairman of the Board of Directors of the Company.
2. Performance.
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(a) The Employee shall devote his entire business efforts, time,
attention, skill and energy exclusively to the performance of his duties
hereunder.
(b) The Employee represents and covenants to the Company that he is not
subject or a party to any employment agreement, non-competition covenant,
non-disclosure agreement, consulting or any similar agreement, covenant,
understanding or restriction that would prohibit the Employee from executing
this Agreement and performing his duties and responsibilities hereunder, or that
would in any manner, directly or indirectly, limit or affect the duties and
responsibilities that may now or in the future be assigned to the Employee by
the Company.
(c) The Employee shall at all times comply with policies and procedures
adopted by the Company for its employees, including without limitation the
procedures and policies adopted by the Company regarding conflicts of interest,
but only to the extent such policies are not in conflict with the express
provisions of this Agreement.
3. Term.
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The employment term of this Agreement shall commence as of the date of
this Agreement and shall continue for a term of two years (the "Employment
Term"), unless renewed
as set forth below or otherwise terminated in accordance with Section 11 hereof.
The Employment Term shall automatically be renewed for an additional one year
period at the end of the then effective Employment Term, unless the Company or
Employee shall have provided the other party with at least 90 days' prior
written notice that the Employment Term shall not be extended.
4. Base Compensation; Bonus.
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(a) For all services rendered by the Employee hereunder, the Company
shall pay the Employee an annual salary at the rate of $205,000 for each full
year of the Employment Term (the "Salary"), plus such additional amounts, if
any, as may be approved by the Board, less withholding required by law or agreed
to by the Employee, payable in installments at such times the Company
customarily pays its other senior officers (but in any event no less often than
monthly). The Salary shall be reviewed at least annually by the Board to
determine if an increase (but not a decrease) is appropriate, which increase
shall be in the sole discretion of the Board. The Employee alone, and not the
Company, shall be responsible for the payment of all federal, state and local
taxes in respect of the payments to be made and benefits to be provided under
this Agreement or otherwise (except to the extent withheld or required to be
withheld by the Company).
(b) Employee may receive bonuses on such dates, in such amounts and on
such other terms as may be determined by the Board in its sole discretion. Upon
the execution of this Agreement, Employee shall be paid a bonus of $25,000.
Within one year from the date hereof, it is intended that the Board shall
develop, with the assistance of Employee, a bonus plan which provides for the
payment of an annual bonus (the "Bonus") to Employee, assuming Employee is still
employed at the end of such year, upon achievement of certain operational and
financial milestones. Notwithstanding the foregoing, the Bonus payable at the
end of 2005 shall not be less than $25,000.
(c) Employee shall receive a $500 per month car allowance.
5. Incentive Compensation.
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On the date of this Agreement, the Company shall grant stock options
(the "Options") to the Employee to purchase 50,000 shares of Company Common
Stock at the fair market value of the Company's Common Stock on the date of
grant under the Company's 2000 Performance Equity Plan pursuant to the terms of
the Company's form of Stock Option Grant (the "Grant"). The Options will vest in
equal annual installments over a four-year period except as provided in the
Grant and Section 11(d) herein.
6. Expenses.
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The Employee shall be reimbursed for the reasonable business expenses
incurred by him in connection with his performance of services hereunder during
the Employment Term to the extent that such expenses are customarily paid to
senior officers by the Company upon presentation of an itemized account and
written proof of such expenses.
7. Other Benefits.
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The Employee shall be entitled to participate in and receive any fringe
benefits customarily provided by the Company to its employees of comparable
standing with the Employee (including, but not limited to, any profit-sharing,
pension, hospital, major medical insurance and group life insurance plans as in
effect from time to time in accordance with the terms of such plans), all as
determined from time to time by the Board of Directors; provided, however, that
the Company has no obligation to provide these benefits to its employees.
Notwithstanding the foregoing, the Employee shall be entitled to (i) 15 vacation
days in 2005, 5 sick days, 3 floating holidays and 2 personal days, (ii) term
life and accidental death and dismemberment insurance policies in the aggregate
amount of up to $450,000 of coverage, (iii) medical insurance, dental insurance
and short-term and long-term disability insurance all with a 20% co-pay
contribution by Employee, and (iv) participation in the Company's 401(k) plan
after 90 days of employment with the Company.
8. Confidential Information.
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(a) The Employee agrees that the Confidential Information is the
Company's exclusive property and shall not be copied or removed from the
Company's premises except for Company business.
(b) The Employee will not, without the Company's prior written
permission, disclose to anyone outside of the Company or use in other than the
Company's business, either during or after the term of his employment with the
Company, any Confidential Information. If the Employee leaves the employ of the
Company, the Employee will return all copies of any Confidential Information to
the Company.
(c) The Employee will hold all third-party confidential or proprietary
information in the strictest confidence and do all things necessary for the
Company to comply with the provisions of all contracts to which the Company is a
party.
(d) For the purposes of Sections 8, 9 and 10 hereof:
(1) "Confidential Information" shall mean confidential or
other proprietary information received, developed or learned by the Employee in
connection with his employment with the Company, including without limitation,
all data, reports, interpretations, research and development, forecasts,
records, agreements, contracts and other documents (whether written or oral, and
whether prepared by or on behalf of the Company) containing or otherwise
reflecting information concerning the Company, its subsidiaries, affiliates,
clients, customers, investors, joint venture and strategic partners, including
without limitation, trade secrets, strategies, studies, know-how, techniques,
marketing plans and opportunities, cost and pricing data, forecasts, customer
lists, developments, improvements, discoveries, patents, patent applications,
inventions, technologies, processes, formulas, research, methods, procedures,
designs, models, testing systems, computer software and programs (including
source code and related documentation), test and/or experimental data and
results, laboratory notebooks, drawings and technical information and materials
and other confidential business information.
(2) "Developments" shall mean any trade secret, idea,
invention, improvement, patent, patent application, novel technique, design of a
useful article (whether the design is ornamental or otherwise), computer program
(including source and object code), data base, documentation and original works
of authorship.
9. Assignment of Inventions and Original Works.
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(a) The Employee hereby assigns to the Company or to any party
designated by the Company the entire right, interest and title to all
Developments made, conceived or first reduced to practice solely or jointly by
the Employee, whether or not such Developments are patentable, copyrightable or
developed during normal working hours, which: (i) were made, conceived or first
reduced to practice in the course of performance of the Employee's employment
duties, or with the use of the Company's time, materials, funds or facilities;
or (ii) are directly related to information, technology or investigations of the
Company to which the Employee has access as part of work for the Company. The
Employee acknowledges that all original works of authorship which are made by
the Employee within the scope of his Employment and which are protectable by
copyright are "works made for hire," within the meaning of 17 U.S.C. ss. 10 1.
(b) In connection with any of the Developments assigned by Section 9(a)
hereof, the Employee will (i) promptly disclose them to the Company and (ii) on
request of the Company, promptly execute an assignment to the Company and do
anything else necessary to enable the Company to secure a patent, copyright or
other form of protection therefor. Employee waives and releases, to the extent
permitted by law, all rights to the foregoing.
10. Non-Competition.
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(a) During the Employment Term, the Employee will not, directly or
indirectly, engage in any activity competitive with or adverse to the Company's
business or welfare, whether alone or as a principal, employee or consultant of
or to any other person or entity.
(b) Upon termination of his employment, the Employee will return all
Confidential Information and all product specifications, documentation, customer
lists, and all other Company property and will not remove or retain any product
specifications, documentation, customer lists, letters, papers or copies thereof
or any other Confidential Information. All of the above-described documents made
available to the Employee by the Company or made or compiled by the Employee and
all copies thereof are and shall remain the sole and exclusive property of the
Company and shall be delivered to the Company on the termination of the
Employee's employment or at any other time upon request of the Company.
(c) Upon termination of his employment for any reason (other than for
"good reason" or for termination "without cause" as set forth in (d) below), the
Employee will not, for a period of twelve months after the date of termination:
(1) unless acting pursuant hereto or with the prior written
consent of the Chairman of the Board of the Company, directly or indirectly,
own, manage, operate, join, control, finance or participate in the ownership,
management, operation, control or financing of, or be connected as an officer,
director, employee, partner, principal, agent, representative, consultant or
otherwise with or use or permit his name to be used in connection with, any
business or enterprise engaged within any portion of the United States or Canada
(whether or not such business is physically located within the United States or
Canada) and any other country where the Company does business during the
Employment Term (the "Territory") whose products, services or activities
compete, directly or indirectly, in whole or in part with the products, services
or activities of the Company or its subsidiaries at the date of termination of
Employee's employment by the Company or at any time within one year prior
thereto. Without limiting the foregoing, the current products, services and
activities of the Company shall be deemed to include, without limitation, (i)
contract research and development services to the drug discovery community in
the areas of molecular and cellular biology, protein biochemistry,
bio-processing, high throughput screening and assay development and mouse
genetics; (ii) research products including media and reagents for culture of
mouse embryos, murine embryonic stem cells and reagents, reagents for gene
transfer and expression and cell culture media; and (iii) development of assays
for the screening of G Protein-Coupled Receptors and other target classes and
pharmaceutical discovery efforts utilizing such technology;
(2) directly or indirectly solicit or request any customer of
the Company to transfer its business from the Company to any other person or
entity; or
(3) directly or indirectly induce or attempt to influence any
present or future employee of the Company to terminate his or her employment
with the Company.
(d) In the event Employee's employment is terminated for "good reason"
or "without cause" as defined in Section 11 herein, the provisions of Section
10(c) will remain in effect for six (6) months after the date of termination.
(e) It is recognized by Employee that the business of the Company and
Employee's connection therewith is or will be involved in activity throughout
the Territory, and that more limited geographical limitations on the covenants
contained in Section 10(c) hereof are therefore not appropriate.
(f) In the event that any of the provisions of this Section 10 should
ever be deemed to exceed the temporal, geographic or occupational limitations
established by applicable law, then such provision shall be reformed to the
maximum temporal, geographic or occupational limitations established by
applicable law.
(g) Employee agrees that his obligations under this Section 10 shall
survive and be enforceable after termination of his or her employment.
11. Termination.
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The Employment Term, the Salary, the Bonus, the unvested Options and
any and all other rights of the Employee under this Agreement or otherwise as an
employee of the Company will terminate (except as otherwise provided in this
Section 11 or pursuant to the terms of the Grant):
(a) if the Employee becomes totally disabled (as defined below), and
thereafter the Company shall have no further liability or obligation to the
Employee hereunder except as follows: the employee shall receive (i) any unpaid
Salary that has accrued through the date of termination; (ii) continued Salary
for six (6) months following the date he is considered totally
disabled; and (iii) whatever benefits that he may be entitled to receive under
any then existing disability benefit plans of the Company. For the purposes
hereof, the Employee shall be deemed to be "totally disabled" if the Employee is
considered totally disabled under the Company's group disability plan in effect
at that time, if any, or in the absence of any such plan, under applicable
Social Security regulations. In the event of any dispute as to the disability of
the Employee under this Section 11(a), the Employee shall submit to a physical
examination by a licensed physician mutually satisfactory to the Company and the
Employee, the cost of such examination to be paid by the Company, and the
determination of such physician shall be determinative.
(b) if the Employee dies, and thereafter the Company shall not have any
further liability or obligation to the Employee, his executors, administrators,
heirs, assigns or any other person claiming under or through him except that the
Employee's estate shall receive any unpaid Salary that has accrued through the
date of termination and any other benefits due Employee as outlined in Section
7.
(c) for "cause" immediately upon notice from the Company of the
termination date (other than termination provided in (d) or (e) of this Section
11) or upon receipt by the Company of notice of termination from Employee other
than "for good reason" (as defined below), and thereafter the Company shall not
have any further liability or obligation to the Employee, except that the
Employee shall receive any unpaid Salary that has accrued through the date of
termination, net of any liabilities that the Employee may have to the Company.
For purposes of this Agreement, "cause" shall mean (i) the failure of the
Employee to observe or perform (other than by reason of illness, injury or
incapacity) any of the material terms or provisions of this Agreement; (ii) the
Employee's failure to adhere to any written policy of the Company unless such
policy conflicts with this Agreement if the Employee has been given a reasonable
opportunity to comply with such policy or cure his failure to comply; (iii)
Employee's habitual or willful neglect or disregard of directives of the
Chairman of the Board of Directors or the Board of Directors; (iv) the
appropriation (or attempted appropriation) of a business opportunity of the
Company, including attempting to secure or securing any personal profit in
connection with any transaction entered into on behalf of the Company; (v) the
misappropriation (or attempted misappropriation) of any of the Company's funds
or property; or (vi) dishonesty, willful misconduct, neglect of the Company's
business, act of moral turpitude which tends to reflect unfavorably on the
Company, fraud, embezzlement or habitual insobriety.
(d) "without cause" at any time by giving the Employee 30 days' notice
of the termination date. Under such circumstances, the Company will continue to
pay to Employee, over time as he would have been paid pursuant to this
Agreement, the Salary and Bonus (if due) under Section 4 for six (6) months
(which amount shall be paid, over time pursuant to this Agreement) and the
Company shall continue any benefits Employee is receiving at the time of such
termination for such period. The Employee shall also immediately vest in all
Options scheduled to vest for the twelve (12) months following the termination
date. The Employee shall not be entitled to any compensation under this Section
11(d) unless the Employee executes and delivers to the Company (after notice of
termination) a release in a form reasonably satisfactory to the Company by which
the Employee releases the Company from any obligations and liabilities of any
type whatsoever, except for the Company's obligation to provide the Salary,
Bonus and Option vesting specified in this Section 11(d). The parties hereto
acknowledge that
the Salary, Bonus and Option vesting to be provided under this Section 11(d) is
to be provided in consideration for the above-specified release.
(e) "for good reason" at any time with 30 days' notice if (i) without
Employee's express written consent, any failure by the Company to comply with
any material provision of this Agreement, which failure has not been cured
within 10 business days after notice of such non-compliance has been given by
Employee to the Company; (ii) the occurrence (without Employee's express written
consent which consent shall not be unreasonably withheld) during the Employment
Term of any change in Employee's responsibilities which, in the judgment of a
reasonably prudent person, represents a materially adverse change in his
responsibilities, except if such change is because of total disability,
retirement, death or for cause; (iii) the relocation of Employee's office to a
location more than 100 miles from the location or locations at which Employee
performed his duties previously, except for required travel on the Company's
business to the extent substantially consistent with Employee's normal business
travel obligations and except as, agreed to by the Company and Employee; or (iv)
any reduction in Employee's annual salary. Under such circumstances, the
Employee shall be subject to the restrictions set forth in, and shall be
entitled to the compensation provided in, Section 11(d).
12. Offset.
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The Company, in addition to all other rights and remedies, shall have
the right to offset against all moneys due to the Employee any sums due to the
Company from the Employee under this Agreement.
13. Remedies.
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(a) The Employee expressly acknowledges that the remedy at law for any
breach of Sections 8, 9 and 10 may cause irreparable harm to the Company, that
the Company's remedies at law for his breach of Sections 8, 9 and 10 will be
inadequate, and that upon any such breach or threatened breach, the Company
shall be entitled as a matter of right to injunctive relief in any court of
competent jurisdiction, in equity or otherwise, and to enforce the specific
performance of the Employee's obligations under these provisions without the
necessity of proving the actual damage to the Company or the inadequacy of a
legal remedy. Subject to the remainder of this Section 13, the rights conferred
upon the Company by the preceding sentence shall not be exclusive of, but shall
be in addition to, any other rights or remedies which the Company may have at
law, in equity or otherwise.
(b) Employee agrees that the Company shall be entitled to preliminary
and permanent injunctive relief, without the necessity of proving actual
damages, as well as an equitable accounting of all earnings, profits and other
benefits arising from any violation of Sections 8, 9 and 10 hereof, which rights
shall be cumulative and in addition to any other rights or remedies to which the
Company may be entitled.
(c) In the event of a lawsuit by either party to enforce the provisions
of this Agreement, including, but not limited to, Sections 8, 9 and 10 hereof,
the prevailing party shall be entitled to recover reasonable costs, expenses and
attorney's fees from the other party.
14. General.
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(a) The terms of this Agreement shall be governed by the laws of the
State of New York, disregarding any principles of conflicts of law that would
otherwise provide for the application of the substantive law of another
jurisdiction. Each of the parties (i) agrees that any legal suit, action or
proceeding arising out of or relating to this Agreement shall be instituted
exclusively in New York State Supreme Court, County of New York, or in the
United States District Court for the Southern District of New York, (ii) waives
any objection to the venue of any such suit, action or proceeding and the right
to assert that such forum is not a convenient forum, and (iii) irrevocably
consents to the jurisdiction of the New York State Supreme Court, County of New
York, and the United States District Court for the Southern District of New York
in any such suit, action or procedding. Each of the parties further agrees to
accept and acknowledge service of any and all process which may be served in any
such suit, action or proceeding in the New York State Supreme Court, County of
New York, or in the United States District Court for the Southern District of
New York and agrees that process upon it mailed by certified mail to its address
shall be deemed in every respect effective service of process upon it in any
such suit, action or proceeding.
(b) For purposes of Sections 8, 9, 10 and 13, the term "Company" shall
be deemed to include any incorporated or unincorporated subsidiaries or
affiliates of the Company and any majority-owned subsidiaries thereof, including
without limitation, Cell & Molecular Technologies, Inc. and Sentigen
Biosciences, Inc.
(c) All notices required to be given under this Agreement shall be in
writing and shall be deemed to have been given when personally delivered or when
mailed by registered or certified mail, postage prepaid, return receipt
requested, or when sent by Federal Express or other overnight delivery service,
addressed as follows:
TO THE EMPLOYEE:
Xxxxxx X. Xxxxxxx
TO THE COMPANY:
Sentigen Holding Corp.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
with a copy to:
Xxxxxxx X. Xxxxxxx
Fulbright & Xxxxxxxx L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
(d) This Agreement supersedes all prior agreements and sets forth the
entire understanding among the parties hereto with respect to the subject matter
hereof and may not be modified or amended in any way except upon written
amendment mutually agreed and executed by the Company and Employee. Without
limitation, nothing in this Agreement shall be construed as giving the Employee
any right to be retained in the employ of the Company beyond the expiration of
the Employment Term.
(e) All of the terms and provisions of this Agreement shall be binding
upon and inure to the benefit and be enforceable by the respective heirs,
representatives, successors (including any successor as a result of a merger or
similar reorganization) and assigns of the parties hereto, except that the
duties and responsibilities of the Employee hereunder are of a personal nature
and shall not be assignable in whole or in part by the Employee.
(f) Notwithstanding the termination of this Agreement and of the
Employee's employment by the Company, by reason of the Employee's disability
under Section 11(a) hereof, or for cause under Section 11(c) hereof, or by
expiration of the Employment term, this Agreement shall continue to bind the
parties for so long as any obligations remain under the terms of this Agreement.
(g) No waiver of any breach of this Agreement shall be construed to be
a waiver as to succeeding breaches.
(h) If any provision of this Agreement or application thereof to anyone
under any circumstances is adjudicated to be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect any other
provisions or applications of this Agreement which can be given effect without
the invalid or unenforceable provision or application and shall not invalidate
or render unenforceable such provision in any other jurisdiction.
(i) All section headings are for convenience only and shall not define
or limit the provisions of this Agreement.
(j) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and shall be binding as of the date first
written above, and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have hereunto duly executed this Employment Agreement as of the day and year
first written above.
SENTIGEN HOLDING CORP.
By: /s/ Xxxxxxxx X. Xxxxx
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Title: Chief Financial Officer
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/s/XXXXXX X. XXXXXXX
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