First Amendment To Employment Agreement By and Between eGene, Inc., (formerly
BioCal Technology, Inc.) and Xxxxxx Xxxxxxxxxxx
This First Amendment to the Employment Agreement (the "First Amendment")
is by and between eGene, Inc., formerly BioCal Technology, Inc., (the"
Company") and Xxxxxx Xxxxxxxxxxx (the "Employee"), Executive Vice President
and Director, formerly Vice President R&D.
Recitals And Agreements
(1) On the 1st day of September, 2003 the Company and Employee executed an
Employment Agreement (the "Employment Agreement").
(2) As a result of a Merger, effective July 13, 2004, of BioCal
Technology Inc., into a publicly traded corporation (Centroid - CCMC), the
combined companies changed their name to xXxxx, Inc. The purpose was to better
reflect the strength of its technology and application platforms. eGene, Inc.
covenants that it has assumed all of the purposes, rights, privileges and all
and every other interest whatsoever, of this Employment Agreement of and with
Xxxxxx Xxxxxxxxxxx. And the Employment Agreement shall continue unaffected and
unimpaired in all respects whatsoever, between Xxxxxx Xxxxxxxxxxx and eGene
Inc.
(3) Except as expressly modified herein, the Employment Agreement is hereby
ratified and confirmed to be in full force and effect.
In witness hereof, this Second Amendment to Employment Agreement is executed
this August 30, 2004.
/s/Xx. Xxx Xxxxxxxx
Xx. Xxx Xxxxxxxx
Chief Executive Officer and Director
/s/Xx. Xxxx X. Xxx
Xx. Xxxx X. Xxx
Executive Vice President and Director
/s/Xxxxxx Xxxxxxxxxxx
Xxxxxx Xxxxxxxxxxx
Executive Vice President and Director
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made this 1st day of September, 2003 (this
"Agreement"), between BioCal Technology Inc., ("Employer"), and Xxxxxx
Xxxxxxxxxxx ("Employee"), also jointly referred to hereafter as the
("parties"). In consideration for the benefits and promises set forth herein
the parties agree as follows:
1. Employment.
1.1 Employment Period: The term of employment will be for the
period commencing on the date of this Agreement and ending September 1, 2006
("the Term"), unless sooner terminated in accordance with the terms and
conditions of this Agreement. If Employee's employment by Employer continues
after the end of the Term, such employment will continue on the terms and
conditions set forth in this Agreement but will be terminable by either party
at any time with or without cause or advance notice.
1.2 Position. Employer hereby employs Employee, and Employee
agrees to be employed as Vic President R & D, of Employer.
1.3 Duties.
(a) Employee will perform such executive duties for
Employer and for any of Employer's affiliates, consistent with his position
under this Agreement.
(b) The CEO and "President & Chief Applications Scientist"
will have the rights regarding hiring, promotion, demotion, or termination and
setting salary of Employee.
(c) Employee shall comply with all rules, policies and
procedures of Employer as modified from time to time.
(d) Employee will perform all of Employee's
responsibilities in compliance with applicable laws.
(e) Duties are carried out at Employer's location in
Orange, CA; and other ancillary locations of the Employer.
1.4 Permitted Outside and Travel Activities
(a) Employee may serve as a director of other
non-directly and materially competing entities and generally not exceeding one
(1) such office.
(b) Travel. During the term of Employee's employment,
Employee will be granted to travel between the Employer's various causes to be
at (ref.: section 1.3 (e), and all other customary, agreed upon, and necessary
business related travels commensurate with Employee's position of Vice
President of R&D.
2. Compensation and Stock Options.
2.1 Base Salary. Employer will pay to Employee a base salary
("Base Salary") at an annual rate of One Hundred and twenty five Thousand
Dollars ($125,000), payable in such installments (but in no event less than
monthly), subject to withholdings and deductions as required or permitted by
law, as is Employer's policy with respect to other employees. Employee's Base
Salary will be reviewed annually by the CEO and "President & Chief
Applications Scientist".
2.11 Salary deferral and accrual. In the event that the
Employer's available finance/cash resources do not reasonably allow for the
regular payment of Employee's base compensation, Employee agrees to have up to
60% of his base salary deferred/accrued, but that portion will be become due
and payable to Employee at the next reasonably available finance/cash position
of the Employer.
2.2 Incentive Bonuses.
(a) Employer pays Employee an annual cash bonus of up to 40% as
per recommendation of the CEO and "President & Chief Applications Scientist".
This bonus is payable during the month of December, on or before December 31,
of each year of employment.
(b) Employer will grant Employee an additional annual
bonus in the form of the Employer's Stocks or Incentive Stock Options in the
event Employer and/or Employee achieves during the preceding year certain
goals set forth in a plan to be approved by the CEO and "President & Chief
Applications Scientist".
2.3 Incentive Stock Options. Employer, subject to the approval
of CEO and "President & Chief Applications Scientist" , has granted and the
Employee has accepted a five-year Incentive Stock Option to purchase 150,000
shares of Common Stock at a purchase price per share of $0.20. Vesting of
options: 40% immediate vesting as sign-in incentive. The reminder of the
options (60%) will vest over 24 months at the rate of 12.5% per quarter. All
Incentive Stock Options granted will participate fully in any and all stock
splits or stock dividends.
2.4 Other Benefits and Reimbursements.
(a) Certain Benefits. Employee will be eligible to participate
in all employee benefit programs established by Employer that are applicable
to management personnel such as medical/dental /pension/long term care/life
insurance plans on a basis commensurate with Employee's position and in
accordance with Employer's policies from time to time, but nothing herein
shall require the adoption or maintenance of any such plan. Employee has the
option of carrying under his own name coverages, and being reimbursed by the
Employer.
(b) Vacations, Holidays and Expenses. For the duration of
Employee's employment hereunder, Employee will be provided vacation [four
weeks (4)], and such holidays, sick leave as Employer makes available to its
management personnel generally. If Employee does not use all of his year's
vacation time, such unused time will accrue to Employee's benefit and may be
added to next year's vacation.
(c) Employer will reimburse Employee for those usual and
customary expenses incurred in connection with his VP of R&D position, and
related duties with the Employer.
(d) Directors' and Officers' Liability Insurance. Employee is
named as an insured, covered person, or an additional insured under any of the
Company's D & O liability insurance policy.
(e) Car allowance monthly: $..TBA...After Tax.
(d) Reasonable and customary future moving expenses.
3. Termination or Discharge by Employer.
3.1 Either party to this agreement may terminate employment at
any time.
3.2 Termination for Cause:
As used herein the term "Cause" shall mean (i) acts of fraud, embezzlement or
other material and deliberate acts of injury to the Employer; (ii) the
refusal, disability or incapacity as determined by a health care provider
acceptable to the CEO and President & Chief Applications Scientist", or the
failure of the Employee to follow or comply with the reasonable and lawful
directives of the CEO and President & Chief Applications Scientist".
3.3 Other Grounds for Termination/Resignation:
(A) Employee acknowledges and understands that the Employer may
terminate Employee's employment if any of the following events occur (i) the
Employer is sold; (ii) the Employer becomes a subsidiary of a non-related
party; (iii) the Employer experiences a 45% or more change in ownership (but
not as a result of an IPO); (iv) the Employer elects to have a new VP of R&D.
If any of the foregoing events occur and the Employer elects to terminate
Employee's employment, Employee will be entitled to (a) his then current
salary for twelve (12) months; (b) incentive compensation, pro-rated on a
calendar year basis; (c) continuation of all of his insurances at the
Company's expense for twelve (12) months; (d) the immediate vesting of any
unvested stock options along with the five years exercise right of all
options.
(B) The Employer acknowledges und understands that the Employee may resign
his employment with the Employer if any one of the following events occur: (i)
The Employer is sold; (ii) the Employer becomes a subsidiary of a non-related
party; (iii) the Employer experiences a forty five (45%) percent or more
change in ownership (but not as a result of an IPO); (iv) the Employer
commits any act of fraud, misrepresentation or bad faith against the Employee;
(v) his duties, reporting relationships or responsibilities are materially
reduced; (vi) the Employer elects to have a new VP of R&D. If any of the
events described in clauses (i), (ii), (iii) occur and Employee elects to
resign, Employee shall be entitled to only (a) his then current salary for six
(6) months; (b) any unpaid incentive compensation pro-rated on a six (6) month
basis; (c) continuation of all of his insurances at the Employer's expense for
six (6) months. Furthermore, any unvested Stock Options shall be vested
immediately along with a five (5) years exercise rights of all his options. If
the events described in clauses (iv) or (v) or (vi) occur and Employee elects
to resign, he shall be entitled to the separation benefits in Section 3.3
(A)
4. Confidentiality
Employee shall not use or disclose any of the Confidential Information during
or after the Employment Period, except for the sole and exclusive benefit of
the Employer. Employee agrees that the Employer would be injured by any breach
of Employee's confidentiality agreement, and that the Employer may
specifically enforce the provisions of this Section by injunction or similar
remedy by any court of competent jurisdiction.
5. Non-Competition:
(A) Employee acknowledges that services to be rendered are of a special
character and have a value to the Employer. In view of the value of the
services, and because of the Confidential Information to be obtained by or
disclosed to Employee he covenants and agrees not, during the term of his
employment by Employer and for a period of two (2) year after termination of
such employment for any reason whatsoever, will not, directly or indirectly,
(a) engage as owner, employee, or otherwise, in the operations, management or
supervision of any type of business or enterprise engaged in any business
which is materially competitive with any business of Employer (b) solicit
orders from any current or past customer of Employer for products or services
offered or sold by, or competitive with products or services offered or sold
by, the Employer, (d) solicit any of Employers employees to leave the employ
of the Employer or hire or negotiate for the employment of any employee of the
Employer.
6. Dispute Resolution. Except for the right of Employer and
Employee to seek injunctive relief in court, any controversy, claim or dispute
of any type arising out of or relating to Employee's employment or the
provisions of this Agreement shall be resolved in accordance with this Section
6 regarding resolution of disputes. Matters subject to these provisions
include, without limitation, claims or disputes based on statute, contract,
common law and tort and will include, for example, matters pertaining to
termination, discrimination, harassment, compensation and benefits. Matters
to be resolved under these procedures also include claims and disputes arising
out of statutes such as the Fair Labor Standards Act, Title VII of the Civil
Rights Act, the Age Discrimination in Employment Act, and the Law against
Discrimination. Nothing in this provision is intended to restrict Employee
from submitting any matter to an administrative agency with jurisdiction over
such matter. All discussions connected with this mediation provision will be
confidential and treated as compromise and settlement discussions. Reasonable
mediator's and attorney's fees will be paid by Employer.
7. Representation of Employee. Employee represents and
warrants to Employer that Employee is free to enter into this Agreement and
has no material commitment, arrangement or understanding to or with any party
that restrains or is in conflict with Employee's performance of the covenants,
services and duties provided for in this Agreement
8. Notices. Any notice required or permitted to be given
hereunder is sufficient if in writing and delivered by registered or certified
mail to the then existing legal address..
9. Reformation; Severability. If any provision of this
Agreement or compliance by any of the parties with any provision of this
Agreement constitutes a violation of any law, or is or becomes unenforceable
or void, then such provision, to the extent only that it is in violation of
law, unenforceable or void, shall be deemed modified to the extent necessary
so that it is no longer in violation of law, unenforceable or void, and such
provision will be enforced to the fullest extent permitted by law. If such
modification is not possible, said provision, to the extent that it is in
violation of law, unenforceable or void, shall be deemed severable from the
remaining provisions of this Agreement, which provisions will remain binding
on the parties.
10. Waivers. No failure on the part of either party
to exercise, and no delay in exercising any right or remedy hereunder will
operate as a waiver thereof; nor will any single or partial waiver of a breach
of any provision of this Agreement operate or be construed as a waiver of any
subsequent breach; nor will any single or partial exercise of any right or
remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right or remedy granted hereby or by law.
12. Governing Law. The validity, construction and performance of this
Agreement shall be governed by the laws of Florida and California
respectively, without regard to the conflicts of law provisions of
such laws.
13. Delegation of Duties. Employee is permitted to delegate/outsource
tasks that fall into the ordinary scope of the VP of R & D and
broad industry/business practices to accomplish the Employer's
objective and protect its interests; however, Employee can not
delegate his main task without the approval of the Board of
Directors.
19. Survivability. The parties acknowledge and agree that all
obligations and rights under this Agreement that would naturally survive the
expiration or termination of this Agreement.
19. Entire Agreement. This Agreement contains the entire agreement of
the parties with respect to the relationship between Employee and Employer and
supersedes all prior Employment Agreements. This Agreement may be changed only
by an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought, and any such
modification must be signed by the "President & Chief Applications Scientist"
and CEO, in order to be effective.
IN WITNESS WHEREOF, the parties have duly signed and delivered this
Agreement as of the day and year first above written.
EMPLOYER - BioCal Technology Inc.
By/S/Xxxxxx Armirkhanian
Name: Xxxxxx Armirkhanian
Title: VP of R & D
By/s/Xx. Xxxx Xxx
Name: Xx. Xxxx Xxx
Title: President and Chief Applications Scientist
