Exhibit 10.9
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of April 1, 2000, by and between Transgenomic,
Inc., a Delaware corporation (the "Company"), and Xxxxxxx X. Xxxxxxxxx
("Employee").
The Company and Employee desire to enter into an Employment Agreement (this
"Agreement"). Accordingly, the Company and Employee agree as follows:
Section 1. EFFECTIVE DATE; POSITION; TERM. This Agreement shall become
effective on April 1, 2000 (the "Effective Date"). The Company shall employ
Employee as Chief Financial Officer and Treasurer. The initial term of the
Agreement will be for a term ending at the 2001 annual meeting of the Board of
Directors or until his successor has been elected and qualified, which will be
approximately one (1) year from the Effective Date.
Section 2. POSITION AND DUTIES. During the Employment Period:
(a) Employee shall have the normal responsibilities, duties and
authorities of Chief Financial Officer and Treasurer.
(b) Employee shall report to the Chief Executive Officer of the
Company and Employee shall perform faithfully the executive duties assigned
to him to the best of his ability in a diligent, trustworthy, businesslike
and efficient manner and will devote his full business time and attention
to the business and affairs of the Company and its Subsidiaries and
Affiliates; provided, however, that Employee may serve as a director of or
a consultant to other corporations which do not compete with the Company,
nonprofit corporations, civic organizations, professional groups and
similar entities.
(c) For purposes of this Agreement, "Subsidiary" shall mean any
corporation or other entity of which securities having a majority of the
voting power in electing directors or comparable management are, at the
time of determination, owned by the Company, directly or through one or
more Subsidiaries.
(d) For purposes of this Agreement, "Affiliate" of any particular
person means any other person controlling, controlled by or under common
control with such particular person.
Section 3. BASIC COMPENSATION.
(a) BASE SALARY. As compensation for his services hereunder, the
Company shall pay to Employee during the Employment Period an initial base
salary of $130,000 per year.
Base Salary shall be payable in equal installments in arrears on a biweekly
basis or as otherwise may be mutually agreed upon.
The salary shall be increased over the previous year's salary as mutually
agreed to.
Section 4. BONUS. In addition to the Base Salary, Employee shall be
eligible to receive an annual bonus based on Employee's performance in
conjunction with specific mutually agreed goals and objectives defined prior to
such calendar year payable at such time or times during or following each
calendar year as shall be determined by the Chief Executive Officer and the
Board of Directors (the "Board") or a committee thereof in its sole discretion
and based on formulas to be determined each year by the Board or such committee
in its sole discretion for the Company's management bonus plan.
Section 5. PARTICIPATION IN EMPLOYEE BENEFIT PLANS. Employee will be
entitled to participate in all Company salaried employee benefit plans and
programs, subject to the terms and conditions of each such employee benefit plan
or program and to the extent commensurate with his position as Chief Financial
Officer and Treasurer.
Section 6. OTHER BENEFITS.
(a) VACATION. Employee shall initially be entitled to four weeks'
paid vacation each year.
(b) INSURANCE. The Company shall make available to Employee health,
hospitalization, major medical insurance and dental insurance
(including dependent coverage), and other benefits from time to
time provided to employees
Section 7. BUSINESS EXPENSES. The Company shall reimburse Employee for all
reasonable expenses incurred by him in the course of performing his duties under
this Agreement which are consistent with the Company's policies in effect from
time to time with respect to travel, entertainment and other business expenses,
subject to the Company's requirements with respect to report and documentation
of such expenses.
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Section 8. STOCK OPTIONS AND OPTION SHARES. Employee has been granted stock
options for 50,000 shares at $5.00 per share on December 1, 1998. These options
vest 20,000 shares on December 1, 1999, 20,000 shares on December 1, 2000, and
10,000 shares on December 1, 2001. Employee shall be granted options to purchase
an additional 50,000 shares at $13.00 per share of which 25,000 shares to vest
on March 31, 2000 and 25,000 shares to vest on March 31, 2001.
Section 9. TERMINATION OF EMPLOYMENT.
(a) EVENTS OF TERMINATION AND SEVERANCE PAYMENT. In the event that,
during the term of this Agreement, Employee is discharged for any reason
other than for Just Cause (as defined below), Employee shall be entitled to
receive certain payment (the "Severance Payment") following termination of
employment. Severance Payment will be made at the Employees then current
base salary for an amount equal to 12 (twelve) months' salary. In addition,
in case of such discharge, Employee will retain all vested stock options.
All unvested stock options will vest.
(b) "Just Cause" means embezzlement or misappropriation of corporate
funds, other acts of dishonesty, significant activities materially harmful
to the reputation of the Company as reasonably defined by the Company,
commission of a felony, willful refusal to perform or substantial disregard
of the duties properly assigned, significant violation of any statutory or
common law, duty of loyalty to the Company or a material violation of
Section 11 or 12 below, or takes any other action materially detrimental to
the best interest of the Company as reasonably determined by the Company.
(c) EFFECT OF BREACH OF NONCOMPETITION PROVISIONS. In the event
Employee breaches or otherwise fails to comply with the provisions of
Section 11 or 12 below, then, in addition to any other remedies provided
herein or at law or in equity, the Company shall have the right to require
return of any severance payment made to the Employee. Return of such
Severance Payment pursuant to the preceding sentence shall not relieve
Employee's obligations pursuant to Section 11 or 12 below.
Section 10. ASSIGNMENT AND SUCCESSION. (a) The rights and obligations of
the Company under this Agreement shall inure to the benefit of and be binding
upon its respective successors and assigns, and Employee's rights and
obligations hereunder shall inure to the benefit of and be binding upon his
successors and permitted assigns, whether so expressed or not.
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(b) Employee acknowledges that the services to be rendered by him
hereunder are unique and personal. Accordingly, Employee may not pledge or
assign any of his rights or delegate any of his duties or obligations under
this Agreement without the express prior written consent of the Company.
(c) The Company may not assign its interest in or obligations under
this Agreement without the prior written consent of Employee.
Section 11. CONFIDENTIAL INFORMATION. (a) Employee acknowledges that the
information, observations and data obtained by him during the course of his
performance under this Agreement concerning the business or affairs of the
Company and its Subsidiaries is the property of the Company or such Subsidiary,
as the case may be. Therefore, during the Employment Period and at all times
thereafter, Employee will not directly or indirectly use, divulge, furnish or
make accessible to any unauthorized person or use for his own account any
confidential or proprietary information or trade secrets of the Company or any
of its Subsidiaries without the Board's prior written consent except and to the
extent required by law (and upon prompt written notice of such requirement to
the Company and such Subsidiary) any of such information, observations or data
without the Board's prior written consent unless and to the extent that the
aforementioned matters become generally known to and available for use by the
public other than as a result of Employee's acts or omissions to act. In the
event Employee shall be required by law to make any disclosure as set forth
above, Employee shall promptly notify the Company and such Subsidiary in writing
of the basis for and the extent of the required disclosure and shall cooperate
with the Company and such Subsidiary to preserve in full the confidentiality of
all intellectual property, trade secrets, confidential information and other
proprietary rights of the Company and such Subsidiary. For purposes hereof,
confidential information does not include any information that has become
publicly known or are made generally available through no wrongful act of
Employee or of any other person who is subject to a confidentiality agreement
with the Company.
(b) Employee agrees to deliver to the Company at the termination of
his employment, or at any other time upon written request by the Company,
all memoranda, notes, plans, records, reports and other documents relating
to the business of the Company and its Subsidiaries which he may then
possess or have under his control.
Section 12. COVENANT NOT TO COMPETE. (a) Employee agrees that during the
Employment Period, and for one year after the Termination Date (the "Noncompete
Period"), he will neither directly nor indirectly engage in, have any interest
in, own, manage, operate, control, be connected with as a stockholder, joint
venturer, officer, employee, partner or consultant or invest or participate in a
business competing with any of the businesses then
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conducted (or, to the knowledge of Employee, planned to be conducted within one
year) by the Company or any of its successors or then Subsidiaries, within any
geographical area in which the Company or its Subsidiaries engage or plan within
one year to engage in any such businesses. During the Noncompete Period,
Employee shall not directly or indirectly through another entity (i) induce or
attempt to induce any employee of the Company or any Subsidiary to leave the
employ of the Company or such Subsidiary, or in any way interfere with the
relationship between the Company or any Subsidiary and any employee thereof,
(ii) hire any person who was an employee of the Company or any Subsidiary at any
time during the Employment Period or (iii) induce or attempt to induce any
customer, supplier, licensee or other business relation of the Company or any
Subsidiary to cease doing business with the Company or such Subsidiary, or in
any way interfere with the relationship between any such customer, supplier,
licensee or business relation and the Company or any Subsidiary.
(b) Nothing contained in this Section 12 shall prevent Employee from
owning up to a 5% interest in any corporation or entity having one or more
classes of its securities listed on a national securities exchange or
publicly traded in the over-the-counter market, provided Employee is not
actively involved in the operation or management of such corporation or
entity. Nothing contained herein shall prevent Employee from serving as a
paid consultant to other companies or serving as a member of the Board of
Directors of other corporations.
(c) If, under the circumstances existing at the time of enforcement
of this Section 12, the period, scope or geographic area described in this
Section 12 shall be found or held to be unreasonable, the parties hereto
agree that the maximum period, scope or geographic area reasonable under
the circumstances shall be substituted for the stated period, scope or
geographic area.
Section 13. CONFLICTS OF INTEREST POLICIES. Employee shall diligently
adhere to the Company's Conflict of Interest Policy as adopted by the Board and
in effect from time to time.
Section 14. ARBITRATION AND EQUITABLE REMEDIES. (a) Except as provided in
Section 14(b) hereof, the parties agree that any dispute or controversy arising
out of, relating to, or concerning the interpretation, construction, performance
or breach of this Agreement, shall be settled by arbitration to be held in
Nebraska, in accordance with the Employment Dispute Resolution rules of the
American Arbitration Association then in effect. The arbitrator may grant
injunctions or other relief in such dispute or controversy and the decision of
the arbitrator shall be final, conclusive and binding on the parties to the
arbitration. Judgment may be entered on the arbitrator's decision in any court
having jurisdiction. The Company and Employee shall each pay one-half of the
costs and expenses of such arbitration, and each shall separately pay the fees
and expenses of their respective legal counsel.
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THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EMPLOYEE'S RIGHT TO A JURY
TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF
THE EMPLOYER/EMPLOYEE RELATIONSHIP.
(b) Notwithstanding paragraph (a) of this Section 14, the parties
agree that, in the event of the breach or threatened breach of Sections 11,
12 or 13 of this Agreement by Employee, monetary damages alone would not be
an adequate remedy to the Company and its Subsidiaries for the injury that
would result from such breach, and that the Company and its Subsidiaries
shall be entitled to apply to any court of competent jurisdiction for
specific performance and/or injunctive relief (without posting bond or
other security) in order to enforce or prevent any violation of such
provisions of this Agreement. Employee further agrees that any such
injunctive relief obtained by the Company or any of its Subsidiaries shall
be in addition to monetary damages.
Section 15. INDEMNIFICATION. The Company agrees to indemnify and hold
harmless Employee for any and all actions taken by Employee in carrying out his
duties under this Agreement.
Section 16 ENTIRE AGREEMENT. This Agreement represents the entire agreement
between the parties relating to the subject matters covered hereby and shall
supersede any prior understandings, agreements or representations by or between
the parties, written or oral, which may have related to the subject matter
hereof in any way and shall not be amended or waived except in a writing signed
by the parties hereto.
Section 17. NOTICES. Any notice or request required or permitted to be
given hereunder shall be in writing and will be deemed to have been given (i)
when delivered personally, sent by telecopy (with hard copy to follow) or
overnight express courier or (ii) five days following mailing by certified or
registered mail, postage prepaid and return receipt requested, to the addresses
below unless another address is specified by such party in writing:
To the Company: Transgenomic, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxx, XX 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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To the Employee: Xxxxxxx X. Xxxxxxxxx
0000 Xxxxx 00xx Xxxxxx
Xxxxx, XX 00000
Telephone: (000) 000-0000 (H)
(000) 000-0000 (W)
Telecopy: (000) 000-0000
Section 18. HEADINGS. The article and section headings herein are for
convenience of reference only and shall not define or limit the provisions
hereof.
Section 19. APPLICABLE LAW. The corporate law of the State of Delaware will
govern all questions concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity and
interpretation of this Agreement shall be governed by the internal laws of the
State of Nebraska.
Section 20. SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held prohibited by,
invalid or unenforceable in any respect under applicable law, such provision
will be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Agreement.
Section 21. AMENDMENTS AND WAIVERS. Any provision of this Agreement may be
amended or waived only with the prior written consent of the Company and
Employee.
Section 22. NO STRICT CONSTRUCTION. The language used in this Agreement
will be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction will be applied against any
party hereto.
Section 23. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
Section 24. EMPLOYEE REPRESENTATIONS. Employee hereby represents and
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Employee does not and will not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Employee is a party or by which he is bound, (ii) Employee is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Employee, enforceable in accordance with its
terms.
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Section 25. SURVIVAL. Sections 8, 11, 12 and 15 shall survive and continue
in full force in accordance with their terms notwithstanding any termination of
the Employment Period.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by
its duly authorized officer and Employee has signed this Agreement as of the
date first written above.
TRANSGENOMIC, INC.
By /s/ Xxxxxx X'Xxxxx
-------------------------------------
Name: Xxxxxx X'Xxxxx
Title: Chief Executive Officer
EMPLOYEE
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
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