EXHIBIT 10.5
ALPHA INNOTECH CORPORATION
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is made and entered into as
of May 11, 2001 by and between Alpha Innotech Corporation, a California
corporation (the "COMPANY") and Xxxxxx Xxx (the "EMPLOYEE").
BACKGROUND
A. The Company desires to retain the services of the Employee as
the President and Chief Operating Officer of the Company from the date of this
Agreement (the "EFFECTIVE DATE"). The Company also desires to provide employment
security to the Employee, thereby inducing the Employee to continue employment
with the Company and enhancing the Employee's ability to perform effectively.
B. The Employee is willing to be employed by the Company on the
terms and subject to the conditions set forth in this Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. POSITIONS AND DUTIES.
1.1 TITLE. The Employee shall be employed by the Company
as its President and Chief Operating Officer, and the Company agrees to employ
and retain the Employee in such capacity.
1.2 DUTIES. The Employee shall devote all of his business
time, energy, and skill to the affairs of the Company; provided, however, that
reasonable time for personal business, charitable or professional activities
shall be permitted, so long as such activities do not materially interfere with
the Employee's performance of services under this Agreement.
2. TERMS OF EMPLOYMENT.
2.1 DEFINITIONS. For purposes of this Agreement, the
following terms shall have the following meanings:
(a) "ACCRUED COMPENSATION" shall mean any
accrued Total Cash Compensation, any accrued benefits under any plan of the
Company in which the Employee is a participant to the full extent of Employee's
rights under such plans, any accrued vacation pay, and any reasonable business
expenses incurred by the Employee in
connection with the performance of Employee's duties hereunder, all to the
extent unpaid on the date of termination of Employee's employment.
(b) "BASE SALARY" shall have the meaning set
forth in Section 3.1 hereof.
(c) "DEATH TERMINATION" shall mean termination
of the Employee's employment because of the death of the Employee.
(d) "DISABILITY TERMINATION" means termination
by the Company of the Employee's employment by reason of the Employee's
incapacitation due to disability. The Employee shall be deemed to be
incapacitated due to disability if at the end of any month the Employee is
unable to perform substantially all of his or her duties under this Agreement in
the normal and regular manner due to illness, injury or mental or physical
incapacity, and has been unable so to perform for either (i) three consecutive
full calendar months then ending, or (ii) 90 or more of the normal working days
during the 12 consecutive full calendar months then ending. Nothing in this
paragraph shall alter the Company's obligations under applicable law, which may,
in certain circumstances, result in the suspension or alteration of the
foregoing time periods.
(e) "TERMINATION FOR CAUSE" means termination by
the Board of Directors of the Company of the Employee's employment (i) by reason
of the Employee's commission of a felony or other illegal conduct involving
dishonesty, fraud or other matters of moral turpitude, (ii) by reason of the
Employee's dishonesty towards, fraud upon, or deliberate injury or attempted
injury to the Company or any of its affiliates, or (iii) by reason of the
Employee's willfully engaging in misconduct which is materially and demonstrably
injurious to the Company or any of its affiliates, or (iv) Employee's violation
of confidentiality obligations to the Company or misappropriation of Company
assets.
(f) "TERMINATION OTHER THAN FOR CAUSE" means
termination by the Board of Directors of the Company of the Employee's
employment for any reason other than as specified in Sections 2.1(c), (d), (e)
or (h) hereof. Termination Other Than For Cause shall also include any
substantial change in the Employee's duties and responsibilities as set forth in
Section 1.
(g) "TOTAL CASH COMPENSATION" shall mean the
Employee's Base Salary (as defined in Section 3.1) plus any cash bonuses,
commissions or similar payment accrued during any single calendar year.
(h) "VOLUNTARY TERMINATION" means termination of
the Employee's employment by the voluntary action of the Employee other than by
reason of a Disability Termination.
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2.2 TERM. Employee shall be an "at will" employee and the Company shall have the
right to terminate the employment of Employee at any time, provided, however
that upon a Termination Other Than For Cause, Employee shall receive 30 days
advance written notice.
2.3 TERMINATION FOR CAUSE. Upon Termination For Cause,
the Company shall pay the Employee Accrued Compensation, if any.
2.4 TERMINATION OTHER THAN FOR CAUSE. Upon Termination
Other Than For Cause, the Company shall pay the Employee all Accrued
Compensation, if any, and shall continue to pay Base Salary, plus any cash
bonuses, commissions or similar payment accrued prior to termination, until one
year from the date of termination, at the rate and upon the normal payroll
schedule in effect at the time of termination.
2.5 DISABILITY TERMINATION. The Company shall have the
right to effect a Disability Termination by giving written notice thereof to the
Employee. Upon Disability Termination, the Company shall pay the Employee all
Accrued Compensation, if any, and shall continue to pay Base Salary, plus any
cash bonuses, commissions or similar payment accrued prior to termination, for a
period of six months from the date of termination at the rate and upon the
normal payroll schedule in effect at the time of termination.
2.6 DEATH TERMINATION. The Employee's employment shall be
deemed to have terminated as of the last day of the month during which his or
her death occurs, and the Company shall promptly pay to the Employee's estate
Accrued Compensation, if any, and a lump sum payment equal to six month's Base
Salary, plus any cash bonuses, commissions or similar payment accrued prior to
termination, at the rate in effect at the time of termination, less applicable
withholding.
2.7 VOLUNTARY TERMINATION. The Employee shall have the
right to effect a Voluntary Termination by giving at least 30 days advance
written notice to the Company. During such period, the Employee shall continue
to receive regularly scheduled Base Salary payments and benefits. Following the
effective date of a Voluntary Termination, the Company shall pay the Employee
Accrued Compensation, if any.
2.8 TIMING OF TERMINATION PAYMENTS. Unless expressly
provided otherwise, the foregoing termination payments shall be made at the
usual and agreed times provided for in Section 3.1 of this Agreement.
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3. SALARY, BENEFITS, AND BONUS.
3.1 BASE SALARY. As payment for the services to be
rendered by the Employee as provided in Section 1 and subject to the provisions
of Section 2 of this Agreement, the Company shall pay the Employee a "Base
Salary" at the rate of $200,000 per year, payable on the Company's normal
payroll schedule.
3.2 FRINGE BENEFITS.
(a) FRINGE BENEFITS. The Employee shall be
eligible to participate in such of the Company's benefit plans as are now
generally available or later made generally available to senior officers of the
Company, including, without limitation, medical, dental, life, and disability
insurance plans.
(b) EXPENSE REIMBURSEMENT. The Company agrees to
reimburse the Employee for all reasonable, ordinary and necessary travel and
entertainment expenses incurred by the Employee in conjunction with his or her
services to the Company consistent with the Company's standard reimbursement
policies. The Company shall pay travel costs incurred by the Employee in
conjunction with his or her services to the Company consistent with the
Company's standard travel policy.
(c) VACATION. The Employee shall be entitled,
without loss of compensation, to the amount of vacation per year generally
available or later made generally available to senior officers of the Company.
Unused vacation may be accrued by the Employee up to a maximum of six weeks,
when it will cease accruing until the Employee reduces the accrued, unused
amount through use of vacation time.
3.3 BONUS. The Employee shall participate in any
management bonus plan adopted by the Company on terms comparable to other senior
officers of the Company.
4. CONDITIONAL NATURE OF SEVERANCE PAYMENTS.
4.1 NONCOMPETE. Employee acknowledges that the nature of
the Company's business is such that if Employee were to become employed by, or
substantially involved in, the business of a competitor of the Company during
the twelve months following the termination of Employee's employment with the
Company, it would be very difficult for the Employee not to rely on or use the
Company's trade secrets and confidential information. Thus, to avoid the
inevitable disclosure of the Company's trade secrets and confidential
information, Employee agrees and acknowledges that Employee's right to receive
the severance payments set forth in Sections 2.4 and 2.5 (to the extent Employee
is otherwise entitled to such payments) shall be conditioned upon the Employee
not directly engaging in (whether as an employee, consultant, agent, proprietor,
principal,
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partner, controlling stockholder, corporate officer, director or otherwise) or
participating in the financing, operation, management or control of, any person,
firm, corporation or business that directly competes with the Company's
business. Upon any breach of this Section, all severance payments pursuant to
this Agreement shall immediately cease.
4.2 NON-SOLICITATION. Until the date one year after the
termination of Employee's employment with the Company for any reason, Employee
agrees and acknowledges that Employee's right to receive the severance payments
set forth in Sections 2.4 and 2.5 (to the extent Employee is otherwise entitled
to such payments) shall be conditioned upon Employee not either directly or
indirectly soliciting, inducing, attempting to hire, recruiting, encouraging,
taking away, hiring any employee of the Company or causing an employee to leave
the Company either for Employee or for any other entity or person.
4.3 UNDERSTANDING OF COVENANTS. The Employee represents
that Employee: (i) is familiar with the foregoing covenants not to compete and
not to solicit, and (ii) is fully aware of Employee's obligations hereunder,
including, without limitation, the reasonableness of the length of time, scope
and geographic coverage of these covenants.
4.4 CONFIDENTIALITY. Employee shall maintain in
confidence the contents and terms of this Agreement, including any documents
incorporated by reference, and the consideration for this Agreement (hereinafter
collectively referred to as "Employment Information"). Employee agrees to take
every reasonable precaution to prevent disclosure of any Employment Information
to third parties, and agrees that there will be no publicity, directly or
indirectly, concerning any Employment Information. Employee agrees to take every
precaution to disclose Employment information only to those attorneys,
accountants, governmental entities and family members who have a reasonable need
to know of such Employment Information. After termination of employment for any
reason Employee shall continue to maintain the confidentiality of all Employment
information.
5. MISCELLANEOUS.
5.1 WAIVER. The waiver of the breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach of the same or other provision hereof.
5.2 NOTICES. All notices and other communications under
this Agreement shall be in writing and shall be given by personal or courier
delivery, facsimile or first class mail, certified or registered with return
receipt requested, and shall be deemed to have been duly given upon receipt if
personally delivered or delivered by courier, on the date of transmission if
transmitted by facsimile, or three days after mailing if mailed, to the
addresses of the Company and the Employee contained in the records of
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the Company at the time of such notice. Any party may Change such party's
address for notices by notice duly given pursuant to this Section 4.2.
5.3 HEADINGS. The section headings used in this Agreement
are intended for convenience of reference and shall not by themselves determine
the construction or interpretation of any provision of this Agreement.
5.4 GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of California applicable
to contracts entered into and wholly to be performed within the State of
California by California residents.
5.5 SURVIVAL OF OBLIGATIONS. This Agreement shall be
binding upon and inure to the benefit of the executors, administrators, heirs,
successors, and assigns of the parties; provided, however, that except as herein
expressly provided, this Agreement shall not be assignable either by the Company
(except to an affiliate or successor of the Company) or by the Employee without
the prior written consent of the other party.
5.6 COUNTERPARTS. This Agreement may be executed in one
or more counterparts, all of which taken together shall constitute one and the
same Agreement.
5.7 WITHHOLDING. All sums payable to the Employee
hereunder shall be reduced by all federal, state, local, and other withholdings
and similar taxes and payments required by applicable law.
5.8 ENFORCEMENT. If any portion of this Agreement is
determined to be invalid or unenforceable, such portion shall be adjusted,
rather than voided, to achieve the intent of the parties to the extent possible,
and the remainder shall be enforced to the maximum extent possible.
5.9 ENTIRE AGREEMENT; MODIFICATIONS. Except as otherwise
provided herein or in the exhibits hereto, this Agreement represents the entire
understanding among the parties with respect to the subject matter of this
Agreement, and this Agreement supersedes any and all prior and contemporaneous
understandings, agreements, plans, and negotiations, whether written or oral,
with respect to the subject matter hereof, including, without limitation, any
understandings, agreements, or obligations respecting any past or future
compensation, bonuses, reimbursements, or other payments to the Employee from
the Company. All modifications to the Agreement must be in writing and signed by
each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date set forth in the first paragraph.
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ALPHA INNOTECH CORPORATION
By: /S/ XXXXXX XXXXXXXX
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Xxxxxx Xxxxxxxx
Title: CEO
/S/ XXXXXX XXX
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Xxxxxx Xxx
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