Exhibit 10.1
THERMOGENESIS CORP.
EMPLOYMENT AGREEMENT
for
Xxxxx Xxxxxxx
THERMOGENESIS CORP. ("Employer"), and Xxxxx Xxxxxxx ("Employee"), agree as
follows:
1. Employment. Employer employs Employee and Employee accepts employment with
Employer on the terms and conditions set forth in this Employment Agreement
("Agreement").
2. Position; Scope of Employment. Employee shall have the position of Chief
Financial Officer for Employer, and shall have the duties and authority set
forth below, and as detailed on the position description attached as Exhibit
"A", which duties and authority may be modified from time to time by Employer.
As Chief Financial Officer, Employee shall report directly to Employer's
President and Chief Operating Officer. If Employer does not have a President and
Chief Operating Officer, then Employee shall report to Employer's Chief
Executive Officer.
2.1. Entire Time and Effort. Employee shall devote Employee's full working
time, attention, abilities, skill, labor and efforts to the performance of his
employment. Employee shall not, directly or indirectly, alone or as a member of
a partnership or other organizational entity, or as an officer of any
corporation (other than any which are owned by or affiliated with Employer) (i)
be substantially engaged in or concerned with any other commercial duties or
pursuits, (ii) engage in any other business activity that will interfere with
the performance of Employee's duties under this Agreement, except with the prior
written consent of Employer, or (iii) join the board of directors of any other
corporation; provided, however, that Employee may join the board of directors of
no more than two unaffiliated corporations so long as such corporations are not
competitive to the current or future operations of Employer and those
corporations offer some synergistic prospects or other support for Employer's
goals.
2.2. Rules and Regulations. Employee agrees to observe and comply with
Employer's rules and regulations as provided by Employer and as may be amended
from time to time by Employer and will carry out and perform faithfully such
orders, directions and policies of Employer. To the extent any provision of this
Agreement is contrary to an Employer rule or regulation, as such may be amended
from time to time, the terms of this Agreement shall control.
2.3. Limitations Upon Authority to Bind Employer. Employee shall not engage
in any of the following actions on behalf of Employer without the prior approval
of Employer: (i) borrow or obtain credit in any amount or execute any guaranty,
except for items purchased from vendors in the ordinary course of Employer's
operations; (ii) expend funds for capital equipment in excess of expenditures
expressly budgeted by Employer, if applicable, or in the event not budgeted, not
to exceed the amounts set forth in subparagraph (iii); (iii) sell or transfer
capital assets exceeding twenty-five thousand dollars ($25,000) in market value
in any single transaction or exceeding two hundred and fifty thousand dollars
($250,000) in the aggregate during any one fiscal year; (iv) execute any lease
for real or personal property; or (v) exercise any authority or control over the
management of any employee welfare or pension benefit plan maintained by
Employer or over the disposition of the assets of any such plan.
3. Term. The term of this Agreement shall be for a period of Three (3) years,
which shall commence on January 30, 2003 and end on January 30, 2006, unless
terminated earlier as provided below in section 5.
4. Compensation. Employer shall pay to or provide compensation to Employee as
set forth in this section 4. All compensation of every description shall be
subject to the customary withholding tax and other employment taxes as required
with respect to compensation paid to an employee.
4.1 Base Salary. Employer shall pay Employee a base salary of One Hundred
Thirty Six Thousand Five Hundred Dollars ($136,500) per year commencing on
January 30, 2003 ("Base Salary"). Employee's Base Salary shall be payable in
accordance with Employer's regular pay schedule, but not less frequently than
twice per month.
4.2. Annual Review. On the date of Employer's annual meeting of
stockholders and on each subsequent annual meeting of stockholders during the
term of this Agreement, or at such other time as the Employer may establish in
its discretion, Employer shall review the previous year's performance of
Employee for the purpose of making reasonable increases to Employee's Base
Salary; provided that Employer shall not be required to increase Employee's Base
Salary, but may do so at its discretion.
4.3. Cash Bonuses. Conditioned upon cessation of commission based
additional salary, and in addition to the Base Salary provided for in sections
4.1 and 4.2, Employee is eligible to receive bonuses, paid through issuance of
stock or grant of options, based on Employer performance and Employee's
attainment of objectives periodically established by the Compensation Committee
of the Board of Directors. Annual bonuses to be provided to Employee shall not
exceed thirty-five percent (35%) of Employee's Base Salary then in effect in any
given year.
4.4. Stock Option Grants. In addition to Base Salary provided for in
sections 4.1 and 4.2, Employee is eligible to receive, in addition to any cash
bonus provided for in section 4.3, an award of stock options as may be
determined from time to time by Employer's Compensation Committee which consists
of disinterested directors who administer Employer's Amended 1994 Stock Option
Plan and Amended 1998 Employee Equity Incentive Plan.
4.5. Vacation and Sick Leave. Employee shall be entitled to accrue up to
Four (4) weeks vacation annually; provided, however, that vacation time may not
accrue beyond two weeks of accrued and unused time. Vacation pay shall not
accrue beyond Two (2) weeks at any given time. Employee shall be entitled to
sick leave in accordance with Employer's sick leave policy, as amended from time
to time. At the end of each anniversary of this Agreement, subject to the limit
on two weeks accrued and unused vacation, all such unused and accrued vacation
time shall be paid in cash.
4.6. Other Fringe Benefits. Employee shall participate in all of Employer's
fringe benefit programs in substantially the same manner and to substantially
the same extent as other similar employees of Employer, excluding only those
benefits expressly modified by the terms hereof.
4.7. Expenses. Employee shall be reimbursed for his reasonable business
expenses; subject to the presentation of evidence of such expenses in accordance
with established policies adopted by Employer from time to time.
4.8. Compensation From Other Sources. Any proceeds that Employee shall
receive by virtue of qualifying for disability insurance, disability benefits,
or health or accident insurance shall belong to Employee. Employee shall not be
paid Base Salary in any period in which he receives benefits as determined and
paid under Employer's long-term disability policy. Benefits paid to Employee
under Employer's short-term disability policy shall reduce, by the same amount,
Base Salary payable to Employee for such period.
5. Early Termination. Employee's employment with Employer may be terminated
prior to the expiration of the term of this Agreement, upon any of the following
events: (i) the mutual agreement of Employer and Employee in writing; (ii) the
disability of Employee, which shall, for the purposes of this Agreement, mean
Employee's inability, for a period exceeding three (3) months as determined by a
qualified physician, and which qualifies Employee for benefits under Employer's
long-term disability policy, to perform in the usual manner the material duties
usually and customarily pertaining to Employee's long-term employment; (iii)
Employee's death; (iv) notice of termination by Employer for cause; (v)
Employer's cessation of business; (vi) written notice of termination by Employer
without cause upon fourteen (14) days' notice, subject to the provisions for
compensation upon early termination in section 5.3(b); or (vii) upon a Change in
Control (as defined below) of Employer (as defined in and under the
circumstances described in section 5.4).
5.1. Definition of Cause. For purposes of this Agreement, any of the
following shall constitute cause: (i) willful or habitual breach of Employee's
duties; (ii) fraud or intentional material misrepresentation by Employee to
Employer or any others; (iii) theft or conversion by Employee; (iv) unauthorized
disclosure or other use of Employer's trade secrets, customer lists or
confidential information; (v) habitual misuse of alcohol or any nonprescribed
drug or intoxicant; or (vi) willful violation of any other standards of conduct
as set forth in Employer's employee manual.
5.2. Damages. If Employer terminates Employee for cause, Employer shall be
entitled to damages and all other remedies to which Employer may otherwise be
entitled.
5.3. Compensation Upon Early Termination.
(a) If Employee resigns during the term of this Agreement, or if this
Agreement is terminated by Employer for cause, Employee shall be
entitled to allaccrued but unpaid Base Salary and vacation pay accrued
through the date of delivery of notice of termination.
(b) If Employee is terminated without cause, Employer shall pay to
Employee as liquidated damages and in lieu of any and all other claims
which Employee may have against Employer the greater of (i) six (6)
months of Employee's salary excluding any amounts for benefits; or
(ii) an amount equal to the then current per month Base Salary
multiplied by the number of calendar months remaining of the term of
this Agreement. Employer's payment pursuant to this subparagraph shall
fully and completely discharge any and all obligations of Employer to
Employee arising out of or related to this Agreement and shall
constitute liquidated damages in lieu of any and all claims which
Employee may have against Employer not including any obligation under
the workers' compensation laws including Employer's liability
provisions.
Initials: Employee _________ Employer _________
(c) If Employee's employment is terminated as a result of death or total
disability, Employee shall be entitled to accrued but unpaid Base
Salary to date of termination. The date of termination shall be deemed
the date of death or, in the event of disability, the date Employee
qualified for total disability payments under Employer's long-term
disability plan.
(d) If Employee's employment is terminated as a result of a Change in
Control of Employer, Employee shall be entitled to a lump-sum payment
equal to three times Employee's Base Salary at the time. A "Change in
Control" shall mean an event involving one transaction or a related
series of transactions in which one of the following occurs: (i)
Employer issues securities equal to 33% or more of Employer's issued
and outstanding voting securities, determined as a single class, to
any individual, firm, partnership or other entity, including a "group"
within the meaning of section 13(d)(3) of the Securities Exchange Act
of 1934; (ii) Employer issues securities equal to 33% or more of the
issued and outstanding common stock of Employer in connection with a
merger, consolidation or other business combination; (iii) Employer is
acquired in a merger or other business combination transaction in
which Employer is not the surviving company; or (iv) all or
substantially all of Employer's assets are sold or transferred.
(e) Except as expressly provided in paragraph (d) above, all compensation
described in this section 5.3 shall be due and payable in installments
at least bi-weekly or at the time of the delivery of notice of
termination, at Employer's discretion.
6. Confidential Information of Customers of Employer. Employee during the course
of his duties will be handling financial, accounting, statistical, marketing and
personnel information of customers of Employer. All such information is
confidential and shall not be disclosed, directly or indirectly, or used by
Employee in any way, either during the term of this Agreement or at any time
thereafter except as required in the course of Employee's employment with
Employer.
7. Unfair Competition. During the term of this Agreement, Employee shall not,
directly or indirectly, whether as a partner, employee, creditor, stockholder,
or otherwise, promote, participate, or engage in any activity or other business
which is competitive in any way with Employer's business. The obligation of
Employee not to compete with Employer shall not prohibit Employee from owning or
purchasing any corporate securities that are regularly traded on a recognized
stock exchange or on over-the-counter market. In order to protect the trade
secrets of Employer, after the term, or upon earlier termination of this
Agreement, Employee shall not, directly or indirectly, either as an employee,
employer, consultants, agent, principal, partner, stockholder, corporate
officer, director, or any other individual or representative capacity, engage or
participate in any business that is in direct competition with the business of
Employer for a period of one (1) year from the date of the expiration of this
Agreement in the areas related to blood processing equipment or procedures.
8. Trade Secrets. Employee shall not disclose to any others, or take or use for
Employee's own purposes or purposes of any others, during the term of this
Agreement or at any time thereafter, any of Employer's trade secrets, including
without limitation, confidential information, customer lists, computer programs
or computer software of Employer. Employee agrees that these restrictions shall
also apply to (i) trade secrets belonging to third parties in Employer's
possession and (ii) trade secrets conceived, originated, discovered or developed
by Employee during the term of this Agreement. Information of Employer shall not
be considered a trade secret if it is lawfully known outside of Employer by
anyone who does not have a duty to keep such information confidential.
8.1 Inventions; Ownership Rights. Employee agrees that all ideas,
techniques, inventions, systems, formulas, discoveries, technical information,
programs, prototypes and similar developments ("Developments") developed,
created, discovered, made, written or obtained by Employee in the course of or
as a result, directly or indirectly, of performance of his duties hereunder, and
all related industrial property, copyrights, patent rights, trade secrets and
other forms of protection thereof, shall be and remain the property of Employer.
Employee agrees to execute or cause to be executed such assignments and
applications, registrations and other documents and to take such other action as
may be requested by Employer to enable Employer to protect its rights to any
such Developments. If Employer requires Employee's assistance under this section
8.1 after termination of this Agreement, Employee shall be compensated for his
time actually spent in providing such assistance at an hourly rate equivalent to
the prevailing rate for such services and as agreed upon by the parties.
9. Arbitration. Any disputes regarding the rights or obligations of the parties
under this Agreement shall be conclusively determined by binding arbitration.
Any controversy or claim arising out of or relating to this contract, or the
breach thereof, shall be settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, and
judgment upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof.
10. Actions Contrary to Law. Nothing contained in this Agreement shall be
construed to require the commission of any act contrary to law, and whenever
there is any conflict between any provision of this Agreement and any statute,
law, ordinance, or regulation, contrary to which the parties have no legal right
to contract, then the latter shall prevail; but in such event, the provisions of
this Agreement so affected shall be curtailed and limited only to the extent
necessary to bring it within legal requirements.
11. Miscellaneous.
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11.1. Notices. All notices and demands of every kind shall be personally
delivered or sent by first class mail to the parties at the addresses appearing
below or at such other addresses as either party may designate in writing,
delivered or mailed in accordance with the terms of this Agreement. Any such
notice or demand shall be effective immediately upon personal delivery or three
(3) days after deposit in the United States mail, as the case may be.
EMPLOYER: THERMOGENESIS CORP.
0000 Xxxx Xxxx Xxxxx
Xxxxxx Xxxxxxx, Xxxxxxxxxx 00000
EMPLOYEE: Xxxxx Xxxxxxx
11.2. Attorneys' Fees; Prejudgment Interest. If the services of an attorney
are required by any party to secure the performance hereof or otherwise upon the
breach or default of another party to this Agreement, or if any judicial remedy
or arbitration is necessary to enforce or interpret any provision of this
Agreement or the rights and duties of any person in relation thereto, the
prevailing party shall be entitled to reasonable attorneys' fees, costs and
other expenses, in addition to any other relief to which such party may be
entitled. Any award of damages following judicial remedy or arbitration as a
result of the breach of this Agreement or any of its provisions shall include an
award of prejudgment interest from the date of the breach at the maximum amount
of interest allowed by law.
11.3. Choice of Law, Jurisdiction, Venue. This Agreement is drafted to be
effective in the State of California, and shall be construed in accordance with
California law. The exclusive jurisdiction and venue of any legal action by
either party under this Agreement shall be the County of Sacramento, California.
11.4. Amendment, Waiver. No amendment or variation of the terms of this
Agreement shall be valid unless made in writing and signed by Employee and
Employer. A waiver of any term or condition of this Agreement shall not be
construed as a general waiver by Employer. Failure of either Employer or
Employee to enforce any provision or provisions of this Agreement shall not
waive any enforcement of any continuing breach of the same provision or
provisions or any breach of any provision or provisions of this Agreement.
11.5. Assignment; Succession. It is hereby agreed that Employee's rights
and obligations under this Agreement are personal and not assignable. This
Agreement contains the entire agreement and understanding between the parties to
it and shall be binding on and inure to the benefit of the heirs, personal
representatives, successors and assigns of the parties hereto.
11.6. Independent Covenants. All provisions herein concerning unfair
competition and confidentiality shall be deemed independent covenants and shall
be enforceable without regard to any breach by Employer unless such breach by
Employer is willful and egregious.
11.7. Entire Agreement. This document constitutes the entire agreement
between the parties, all oral agreements being merged herein, and supersedes all
prior representations. There are no representations, agreements, arrangements,
or understandings, oral or written, between or among the parties relating to the
subject matter of this Agreement that are not fully expressed herein.
11.8. Severability. If any provision of this Agreement is held by a court
of competent jurisdiction to be invalid or unenforceable, the remainder of the
Agreement which can be given effect without the invalid provision shall continue
in full force and effect and shall in no way be impaired or invalidated.
11.9. Captions. All captions of sections and paragraphs in this Agreement
are for reference only and shall not be considered in construing this Agreement.
EMPLOYER:
THERMOGENESIS CORP.
By: ___________________________________________
Xxxxx Xxxxxxx, President & COO
By: ___________________________________________
Xxxxx Xxxxxx, Chairman Compensation Committee
EMPLOYEE:
By: ___________________________________________
Xxxxx X. Xxxxxxx, an individual
