EMPLOYMENT AGREEMENT
Exhibit
10.1
This
EMPLOYMENT AGREEMENT (the “Agreement”) is
entered into, effective as of April 5, 2010 (the “Effective Date”) by
and between IVAX Diagnostics, Inc., a Delaware corporation (the “Company”), and Xxxxxx
Xxxxxx (the “Executive”).
RECITALS
WHEREAS, the Company wishes to
employ the Executive as Vice President of Finance of the Company upon the terms
and subject to the conditions set forth in this Agreement; and
WHEREAS, the Executive is
willing to accept such employment on such terms and conditions;
NOW, THEREFORE, in
consideration of the premises and of the mutual promises, representations and
covenants herein contained, the Company and the Executive hereby agree as
follows:
AGREEMENT
1. Scope of
Employment. The
Company hereby agrees to employ the Executive, and the Executive hereby agrees
to be employed by the Company, as Vice President of Finance of the Company. The
Executive shall have the customary responsibilities and authority of such
positions and shall perform such duties consistent with the responsibilities of
such positions as may be determined and assigned to the Executive by Chief
Executive Officer (“CEO”). The Executive shall devote his best efforts and his
full business time, attention and energies to Company affairs as are necessary
to fully perform his duties for the Company. The Executive will be considered
for promotion to the position of Chief Financial Officer (“CFO”) after the first
six months of employment. Upon promotion to CFO, the components of the
Executive’s compensation shall be reviewed and adjusted based on prevailing
market rates and negotiation by the parties in good faith.
2. Compensation.
(a) Base
Salary. The
Company agrees to pay the Executive, and the Executive agrees to accept, in
payment for services to be rendered by the Executive hereunder, an aggregate
base salary of $135,000 per annum (the “Base Salary”). The
Base Salary shall be paid in approximately equal installments in accordance with
the Company’s customary payroll practices. The Company agrees to review the Base
Salary at least once per year. For all purposes under this Agreement, the term
“Base Salary”
shall refer to the Executive’s base salary as in effect from time to time in
accordance with this Section
3(a).
(b) Annual
Bonus. In
addition to the Base Salary, the Executive shall also be eligible to receive an
annual cash bonus in an amount up to 30% of the Base Salary existing at the end
of fiscal year applicable to the bonus (the “Annual Bonus”): (i)
upon the achievement of Company-wide financial performance targets and personal
performance goals in accordance with and under the terms of any annual cash
incentive program, as may be amended from time to time. The
Executive’s first year bonus weighting between company-wide financial
performance targets and personal performance goals will be 20% and 80%,
respectively. The Company shall pay the Annual Bonus, if any, in accordance with
the terms of the particular bonus, but in no event later than ninety (90) days
after the end of the fiscal year to which the Annual Bonus relates.
(c) Equity
Compensation.
The Executive shall be eligible to receive any grants of awards by the
Company under and in accordance with the Company’s equity incentive compensation
plans, subject to and in compliance with all applicable laws, rules and
regulations, including, without limitation, the Delaware General Corporation
Law. Without limiting the generality of the foregoing, the Company hereby agrees
that it will cause its duly authorized representative to execute that certain
Nonqualified Stock Option Agreement, dated as of the Effective Date, pursuant to
which the Company shall grant to the Executive a nonqualified stock option under
the Company’s Performance Equity Plan to purchase 50,000 shares of the Company’s
common stock at an exercise price per share equal to the closing price of a
share of the Company’s common stock on the American Stock Exchange on the
Effective Date, which options shall fully vest immediately as of the Effective
Date and expire on the tenth anniversary of the Effective Date.
3. Reimbursement of Expenses,
Fringe Benefits, Etc.
(a) Business
Expenses. The
Company shall pay, or promptly reimburse the Executive for, all reasonable
expenses incurred by the Executive in performing his duties for the Company
during the Executive’s employment with the Company upon the presentation of
reasonably itemized statements of such expenses in accordance with the Company’s
policies and procedures now in effect or as such policies and procedures may be
modified from time to time.
(b) Vacation;
Illness. The
Executive shall be entitled to three week’s paid vacation, as well as holiday
and sick leave benefits in accordance with the Company’s policies.
(c) Welfare,
Pension and Incentive Benefit Plans. The Executive shall be
entitled to participate in and be covered under all the welfare benefit plans or
programs maintained by the Company from time to time, including, without
limitation, all medical, hospitalization, dental, disability, accidental death
and dismemberment and travel accident insurance plans and programs, in each
case, subject to and in compliance with the terms and conditions of such plans
and programs. In addition, the Executive shall be eligible to participate in and
be covered under all pension, retirement, savings and other employee benefit and
perquisite plans and programs maintained from time to time by the Company, in
each case, subject to and in compliance with the terms and conditions of such
plans and programs.
4. Termination. This Agreement and the
Executive’s employment hereunder, may be terminated under the circumstances set
forth below.
(a) The Executive
shall have the right to terminate this Agreement, and the Executive’s employment
hereunder, for any reason or for no reason, including, without limitation, for
Good Reason (as hereinafter defined). For purposes hereof, the term “Good Reason” shall mean
any one or more of the following events, unless the Executive specifically
agrees in writing that such event shall not be Good Reason:
(i) a significant
adverse change in the Executive’s authority, responsibilities or duties when
compared to those applicable to the Executive in his position described in Section
1;
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(ii) material acts
or conduct on the part of the Company or its officers and representatives which
are designed to force the resignation of the Executive or prevent the Executive
from performing his duties and responsibilities pursuant to this
Agreement;
(iii) a material
breach by the Company of any material provision of this Agreement;
(b) The Company
shall have the right to terminate this Agreement, and the Executive’s employment
hereunder, for any reason or for no reason, and with or without Cause (as
hereinafter defined). For purposes of this Agreement, the Company shall have
“Cause” to
terminate this Agreement, and the Executive’s employment hereunder:
(i) upon the
Indictment (as hereinafter defined) or conviction of, or plea of nolo contendere
by, the Executive for (A) a felony or (B) any misdemeanor involving moral
turpitude, deceit, dishonesty or fraud;
(ii) upon a
material violation of the policies and procedures of the Company, including,
without limitation, the Company’s policies with respect to xxxxxxx xxxxxxx and
sexual harassment, in each case, as in effect from time to time;
(iii) upon the
Executive’s gross negligence, willful misconduct or insubordination with respect
to the Company or any Affiliate (as hereinafter defined) of the Company;
or
(iv) upon a
material breach by the Executive of any of the Executive’s material obligations
under this Agreement.
For
purposes of this Agreement, the term “Indictment” shall
mean an indictment, probable cause hearing or any other procedure pursuant to
which an initial determination of probable or reasonable cause with respect to
such offense is made. For purposes of this Agreement, the term “Affiliate,” when used
with respect to a specified person or entity, means any other person or entity
in control of, controlled by or under common control with such specified person
or entity.
The
Company shall provide the Executive with written notice describing any event or
condition that gives the Company Cause for terminating this Agreement and the
Executive’s employment hereunder. Only in the case of conduct described in
paragraph (iv) above, Cause will not be considered to exist unless the Executive
is given thirty (30) days after the date of such written notice to cure such
breach to the reasonable satisfaction of the CEO. If the Executive cures such
breach to the reasonable satisfaction of the CEO within such thirty (30) day
period, then the Company shall not be entitled to terminate this Agreement and
the Executive’s employment hereunder for Cause.
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5. Termination
Procedure.
(a) Notice
of Termination.
Any termination of this Agreement, and the Executive’s employment
hereunder, whether by the Company or by the Executive, during the Term of this
Agreement, except as a result of the Executive’s death, shall be communicated by
written notice of termination to the other party hereto. Such notice of
termination shall state the specific termination provision in this Agreement
relied upon in terminating this Agreement, and the Executive’s employment
hereunder, and the notice of termination shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for such
termination.
(b) Date of
Termination. The
effective date of any termination of this Agreement, and the Executive’s
employment hereunder, whether by the Company or by the Executive (“Effective
Termination Date”), shall be thirty (30) days after the giving of such notice of
termination) set forth in such notice of termination, subject to any applicable
cure periods described herein.
6. Termination
and Expiration Compensation and Benefits. The Executive acknowledges
and agrees that the following compensation and benefits set forth in this
Section 6 constitute liquidated damages upon the termination or expiration of
this Agreement, and the Executive’s employment hereunder, and the parties hereto
have agreed that such compensation and benefits are reasonable. The Executive
further acknowledges and agrees that he shall have no other remedies in
connection with, or as a result of, any such termination or expiration. The
Company’s obligations under this Section 6 shall survive the expiration or
termination of this Agreement.
(a) Termination
of Employment.
Upon the expiration of this Agreement as a result of either party’s
notice to the other party in accordance with Sections 5, 5(a) and 5(b), the
Company shall pay to the Executive promptly after the effective date of
expiration the sum of that portion of the Executive’s Base Salary plus that
portion of the Annual Bonus that has been awarded and approved for payment to
the Executive, in each case, only to the extent that the Base Salary and the
Annual Bonus have been fully earned but not yet paid and are not subject to a
deferral election or deferral requirement that has become irrevocable, as well
as all expenses incurred by the Executive prior to the effective date of
expiration for which the Company is required to reimburse, but had not yet
reimbursed, the Executive (all such compensation, collectively, the “Accrued
Compensation”).
(b) Termination
without Cause, Resignation for Good Reason
(i) In the event
this Agreement, and the Executive’s employment hereunder, is terminated by the
Company without Cause or by the Executive for Good Reason, then promptly after
the Effective Termination Date the Company shall pay to the Executive the
Accrued Compensation and a one-time lump sum payment in an amount equal to fifty
percent (50%) of the Executive’s Annual Base Salary in effect as of the
effective date of termination (such one-time lump sum payment, the “Severance Payment”).
Notwithstanding the foregoing and
anything in this Agreement to the contrary, in the event the Executive’s
employment hereunder is terminated by the Company without Cause, then, as a
precondition to the Company’s obligation to pay the Severance Payment to the
Executive, the Executive shall execute a general release in favor of the Company
in form and substance which is acceptable to the Company in its sole discretion
(the “Release”)
and the Release shall become effective.
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(ii) In addition,
only in the case this Agreement, and the Executive’s employment hereunder, is
terminated by the Company without Cause, or is terminated by the Executive for
Good Reason, the Company, at its sole expense, shall maintain in full force and
effect for the continued benefit of the Executive and the Executive’s spouse and
dependents for a period of six (6) months following the Effective Termination
Date all welfare benefit plans or programs maintained by the Company, including,
without limitation, all medical, hospitalization, dental, disability, accidental
death and dismemberment and travel accident insurance plans and programs, in
which the Executive or his spouse or dependents were participating immediately
prior to the effective date of termination at the level in effect and upon
substantially the same terms and conditions (including, without limitation,
contributions required by the Executive for such benefits) as existed
immediately prior to the effective date of termination (except to the extent
that the Executive and/or his spouse or dependents may be ineligible for one or
more such benefits under applicable plan terms).
7. Non-Disclosure,
Non-Solicitation and Related Obligations.
(a) Executive
Acknowledgements.
The Executive acknowledges that as a part of the
Executive’s employment hereunder, the Executive shall be afforded access to
Confidential Information (as hereinafter defined), (ii) that public disclosure
or utilization of such Confidential Information in violation of this Agreement
could have a material and adverse impact on the Company and its business and
(iii) that, accordingly, the non-disclosure provisions of this Agreement are
reasonable and necessary to prevent the improper use or disclosure of
Confidential Information. The Executive further acknowledges (W) that the
Company’s business is international in scope and its products and services are
marketed throughout the world, (X) that the Company and its products and
services compete with other businesses and products and services located
throughout the world, (Y) that the Company provides resources and training to
the Company’s employees (including the Executive) related to the Company’s
products and services and processes that are available only to the Company’s
employees and cannot be acquired outside of the Company and (Z) that,
accordingly, the non-solicitation and related restrictive provisions of this
Agreement are reasonable and necessary to protect the Company’s goodwill with
its customer base, its investment in its employees and its interests in its
Confidential Information.
(b) Non-Disclosure
Obligation.
Without the prior written consent of the Company, except as may be
required by applicable law, rule or regulation, the Executive will not, at any
time, either during or after his employment with the Company, directly or
indirectly, divulge or disclose to any person or entity, including, without
limitation, any future employer, or use for the Executive’s own or others’
benefit or gain, any financial information, prospects, customers, tenants,
suppliers, clients, sources of leads, methods of doing business, intellectual
property,
plans, products, data, results of tests or any other trade secrets or
confidential materials or like information of the Company, including, without
limitation, any and all information and instructions, technical or otherwise,
prepared or issued for the use of the Company (collectively, the “Confidential
Information”), it being the intent of the Company, with which intent the
Executive hereby agrees, to restrict the Executive from dissemination or using
any like information that is not readily available to the general
public.
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(c) Information
is Property of the Company. All books, records,
accounts, customer, client and other lists, customer and client street and
e-mail addresses and information (whether in written form or stored in any
computer medium) relating in any manner to the business, operations, or
prospects of the Company, whether prepared by the Executive or otherwise coming
into the Executive’s possession, shall be the exclusive property of the Company
and shall be returned immediately to the Company upon the expiration of this
Agreement or earlier termination of the Executive’s employment with the Company,
or at the Company’s request at any time. Upon the expiration of this Agreement
or earlier termination of the Executive’s employment with the Company, the
Executive shall immediately deliver to the Company all lists, books, records,
schedules, data and other information (including all copies thereof) of every
kind relating to or connected with the Company and its activities, business and
customers.
(d) Covenant
Not to Solicit.
The Executive agrees that during his employment and for a period of one
(1) year after the termination or expiration of this Agreement, and the
Executive’s employment hereunder (such one (1) year period, the “Post-Employment Restricted
Period”), the Executive shall not, directly or indirectly, without the
prior written consent of the Company, interfere with or disrupt or diminish or
attempt to disrupt or diminish, or take any action that could reasonably be
expected to disrupt or diminish, any past, present or prospective relationship,
contractual or otherwise, between the Company and any customer, supplier,
consultant, employee or independent contractor of the Company.
(e) No
Raiding. The
Executive agrees that, during his employment and throughout the Post-Employment
Restricted Period, the Executive shall not, directly or indirectly, without the
prior written consent of the Company, solicit, recruit, employ or otherwise
engage as an employee, independent contractor, consultant or advisor or attempt
to solicit, recruit, employ or otherwise engage as an employee, independent
contractor, consultant or advisor, any person who is or was an employee,
independent contractor, consultant or advisor of or to the Company at any time
during the Executive’s last twelve (12) months of employment with the Company,
or in any manner induce or attempt to induce any person who is or was during the
Executive’s last twelve (12) months of employment with the Company an employee,
independent contractor, consultant or advisor of or to the Company to terminate
that person’s relationship with the Company.
(f) Non-Disparagement. The Executive agrees that
he will not, directly or indirectly, disparage the Company or disseminate, or
cause or permit others to disseminate, negative statements regarding the Company
or any employee, officer, director or agent of the Company. The Company agrees
that it will not, directly or indirectly, disparage the Executive or
disseminate, or cause or permit others to disseminate, negative statements
regarding the Executive.
Notwithstanding the foregoing, neither the Executive nor the Company is barred
or otherwise restricted from complying with applicable laws, rules and
regulations.
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8. Enforcement and
Remedies.
(a) Enforcement. It is the desire and intent
of the Company and the Executive that the provisions of this Agreement be
enforced to the fullest extent permissible under the laws, rules, regulations
and public policies applied in each jurisdiction in which enforcement is sought.
Accordingly, although the Executive and the Company consider the provisions of
this Agreement to be reasonable for the purpose of preserving and protecting the
legitimate interests of the Company, if any particular provision of this
Agreement shall be adjudicated to be invalid or unenforceable, such provision
shall be deemed amended to delete the portion thus adjudicated to be invalid or
unenforceable, such deletion to apply only with respect to the operation of such
provision in the particular jurisdiction in which such adjudication is
made.
9. Withholding. The Company shall withhold
and deduct such amounts from any compensation or other benefits payable to the
Executive under this Agreement on account of payroll and other taxes and similar
items as may be required by applicable law, rule or regulation.
10.
Indemnity. The Company shall, to the
fullest extent permitted under the laws of the State of Delaware, indemnify and
hold harmless the Executive from and against any and all liabilities, costs and
expenses, including, but not limited to, amounts paid in satisfaction of
judgments, in settlement or as fines or penalties, and counsel fees and
disbursements, reasonably incurred by the Executive in connection with the
defense or disposition of, or otherwise in connection with or resulting from,
any action, suit or other proceeding, whether civil, criminal, administrative or
investigative, before any court or administrative or legislative or
investigative body, in which the Executive may be or may have been involved as a
party or otherwise or with which the Executive may be or may have been
threatened, while in office or thereafter, by reason of the Executive’s having
the position of Vice President of Finance of the Company or by reason of any
action taken or not taken in such capacity, except with respect to any matter as
to which the Executive shall have been finally adjudicated by a court of
competent jurisdiction not to have acted in good faith or in a manner he
reasonably believed to be in or not opposed to the best interests of the Company
or, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful.
11.
Entire
Agreement. This
Agreement contains the entire understanding between the Company and the
Executive and supersedes any and all other oral and written agreements or
understandings between them.
12.
Controlling
Law. The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the State of Florida, without regard to its conflicts
of law principles. Each of the Company and the Executive unconditionally and
irrevocably agrees that the exclusive forum and venue for any action, suit or
proceeding shall be in Miami-Dade County, Florida, and each consents to submit
to the exclusive jurisdiction, including,
without limitation, personal jurisdiction, and forum and venue of the Circuit
Courts of the State of Florida or the United States District Court for the
Southern District of Florida, in each case, located in Miami-Dade County,
Florida.
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13.
Notice. All notices or other
communications that are required or permitted hereunder shall be in writing and
delivered personally, or sent by nationally-recognized, overnight courier or by
registered or certified mail, return receipt requested and postage prepaid,
addressed as follows:
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If
to the Company, then to:
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IVAX
Diagnostics, Inc.
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0000
Xxxxx Xxxxx Xxxxxx
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Xxxxx,
Xxxxxxx 00000
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Attention:
Xxxxxxx X. Xxxxxx, Ph.D.
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If
to the Executive, then to:
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IVAX
Diagnostics, Inc.
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0000
Xxxxx Xxxxx Xxxxxx
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Xxxxx,
Xxxxxxx 00000
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Attention:
Xxxxxx Xxxxxx
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or to
such other address as either party may furnish to the other in writing in
accordance herewith. All such notices and other communications shall be deemed
to have been received (i) in the case of personal delivery, on the date of such
delivery, (ii) in the case of delivery by nationally-recognized, overnight
courier, on the first business day immediately following dispatch and (iii) in
the case of mailing as described above, on the third business day following such
mailing.
14.
Amendment
and Waiver. No
provision of this Agreement may be amended, modified or canceled unless such
amendment, modification or cancellation is agreed to in a writing signed by the
Executive and by a duly authorized officer of the Company, and no provision of
this Agreement may be waived unless such waiver is set forth in a writing signed
by the party to be charged. No waiver by either party hereto at any time of any
breach by the other party hereto of any condition or provision of this Agreement
to be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time.
15.
Validity. If any provision of this
Agreement shall for any reason be finally held illegal, invalid or unenforceable
by a court or agency of competent jurisdiction, such provision shall be modified
by such court or the parties, as the case may be, so as to cause such provision
to be legal, valid and enforceable to the maximum extent permitted by law (and
to the extent modified, it shall be modified so as to reflect, to the extent
possible, the intent of the parties) and shall in no way affect or impair the
legality, validity or enforceability of the remaining provisions of this
Agreement, which shall remain in full force and effect, and this Agreement shall
be interpreted as if such illegal, invalid or unenforceable provision was not
contained in this Agreement.
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16.
Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be deemed to be an
original but all of which together will constitute one and the same
instrument.
17.
Headings. The section and paragraph
headings in this Agreement are for convenience of reference only and in no way
define, limit or describe the scope of this Agreement or the intent of any
provision hereof.
[SIGNATURES
ON FOLLOWING PAGE]
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IN
WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement as
of the date and year first above written.
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IVAX
DIAGNOSTICS, INC.,
a
Delaware corporation
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By:
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/s/
Xxxxxxx X. Xxxxxx, Ph.D.
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Name:
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Xxxxxxx
X. Xxxxxx, Ph.D.
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Title:
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CEO
and President
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/s/
Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx
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