EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (“Agreement”) is made
this 16th day of March, 2009 by and between NeoGenomics, Inc. a Nevada
corporation (“NeoGenomics" or the
“Employer” and
collectively with any entity that is wholly or partially owned by NeoGenomics,
the “Company”), located at 00000 Xxxxxxxxxxxx Xxxxx, Xxxxx #0, Xxxx Xxxxx,
Xxxxxxx 00000 and Xxxxxxx X. XxxXxxx (“Executive”), an
individual who resides at 0000 Xxxxxxx Xxxx, Xxxxxx, XX 00000.
RECITALS:
WHEREAS, the Company is
engaged in the business of providing genetic and molecular diagnostic testing
services to doctors, hospitals and other healthcare institutions;
and
WHEREAS, the Executive was
appointed to the Board of Directors of NeoGenomics (the “Board”) and elected as
the Chairman of the Board as of the date of this Agreement; and
WHEREAS, NeoGenomics desires
to employ Executive as an officer in the capacity of Executive Chairman and
Interim Chief Executive Officer, and Executive desires to be employed by
NeoGenomics in such capacity, in accordance with the terms, covenants, and
conditions as set forth in this Agreement.
NOW, THEREFORE, in
consideration of the mutual promises set forth herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Employer and Executive agree as follows:
1. Employment
Period. Subject to the terms and conditions set forth herein
and unless sooner terminated as hereinafter provided, NeoGenomics shall employ
Executive as an officer, and Executive agrees to serve as an officer and accepts
such employment for a four-year period, beginning on March 16, 2009 (the “Effective Date”) and
ending on the 4th
anniversary of the Effective Date (the “Initial Employment
Term”). After the Initial Employment Term, this Agreement
shall automatically renew for consecutive one year periods (“renewal term”),
unless a written notice of a party’s intention to terminate this Agreement at
the expiration of the Initial Employment Term (or any renewal term) is delivered
by either party at least three (3) months prior to the expiration of the Initial
Employment Term or any renewal term, as applicable. For purposes of
this Agreement, the period from the Effective Date until the termination of the
Executive’s employment shall hereinafter be referred to as the “Term”. Executive’s
employment pursuant to this Agreement shall be “at will” as such term is
construed under Florida law.
2. Title and
Duties. During the Term, NeoGenomics shall employ Executive in
the capacity of Executive Chairman. In addition, during the period
from the Effective Date until the time that NeoGenomics hires a full-time Chief
Executive Officer (“CEO”), NeoGenomics
shall additionally employ Executive in the capacity of Interim CEO (such period
hereinafter referred to as the “CEO
Period”). Executive accepts employment in these
capacities. Executive will report to and be subject to the general
supervision and direction of the Board. If requested, Executive will
serve in similar capacities for each or any subsidiary of NeoGenomics without
additional compensation. Executive shall perform such duties as are
customarily performed by someone holding the title of Executive Chairman and/or
Interim CEO in the same or similar businesses or enterprises as that engaged in
by the Company and such other duties as the Board may assign from time to
time.
3. Compensation
and Benefits of Executive. The Company shall compensate
Executive for Executive's services rendered under this Agreement as
follows:
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a.
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Base
Salary. Unless otherwise adjusted by the Compensation
Committee of the Board (the “Compensation Committee”), the Company shall
pay Executive a Core Base Salary and an Incremental CEO Base Salary (as
such terms are defined below, and collectively referred to as the “Base Salary”),
payable in equal installments at such times as is consistent with normal
Company payroll policy, according to the following
amounts:
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1.) A
base salary equating to two hundred twenty five thousand dollars
($225,000) per annum (the “Core Base
Salary”) until the end of the Term or until such time that the
Executive desires to reduce his work time commitment to the Company to
less than 2.5 days per week, in which case the Board and Executive will
work in good faith to determine a new Core Base Salary that is
appropriate.
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2.) During
the CEO Period and so long as Executive is able to spend at least one (1)
additional day per week on average on the Company’s affairs (for a total
of 3.5 days/week on average), the Company agrees to pay an additional
amount in base salary (the “Incremental CEO Base
Salary”) equal to $50,000 per annum. In the event that
the Executive is unable to dedicate a least 3.5 days/week on average on
the affairs of the Company, the Board and the Executive agree to work in
good faith to determine a new Incremental CEO Base Salary that is
appropriate.
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b.
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Bonus. Executive
will be eligible for an annual cash bonus based on
performance. The amount of such bonus shall be based on the
available resources of the Company and shall be at the discretion of the
Compensation Committee; provided, however, if the Company’s actual
performance in any given fiscal year meets or exceeds the below listed
annual performance goals for such fiscal year, the Executive shall be
entitled to the cash bonuses outlined below for such fiscal
year. The Company agrees that such cash bonus, if any, will be
paid no later than ninety (90) days after the end of the fiscal year to
which it applied.
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1.) For
any given fiscal year during the Term, if the Company’s actual
consolidated revenue for such fiscal year, after excluding the effects of
any Revenue Exclusions (as defined in Section 3e(1) below), exceeds the
annual revenue goals approved by the Board for such fiscal year based on
the Board-approved Company budget for such year, Executive shall be
entitled to a cash bonus of at least fifteen percent (15%) of his Base
Salary as such Base Salary was in effect as of the end of such fiscal
year; and
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2.) For
any given fiscal year during the Term, if the Company’s actual Adjusted
EBITDA (as defined below) after excluding the effects of any Adjusted
EBITDA Exclusions (as defined in Section 3e(2) below), exceeds the annual
goals for Adjusted EBITDA approved by the Board for such fiscal year based
on the Board-approved Company budget for such year, Executive shall be
entitled to a cash bonus of at least fifteen percent (15%) of his Base
Salary as such Base Salary was in effect as of the end of such fiscal
year. For the purposes of this Agreement, “Adjusted
EBITDA” is defined as consolidated GAAP earnings before interest,
taxes, depreciation, amortization, and non-cash stock based compensation
expenses. In addition, any extraordinary or non-recurring
actual expenses incurred by the Company that were not included in the
budget for the applicable fiscal year that in the reasonable judgment of
the Compensation Committee could not have been foreseen by the Company’s
management during the process to set the budget for such year may, at the
Board’s discretion, also be added back to the total when calculating
actual Adjusted EBITDA for such fiscal
year.
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c.
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Benefits. Subject
to the eligibility requirements (including, but not limited to,
participation by part-time employees), and enrollment provisions of the
Company’s employee benefit plans, Executive may, to the extent he so
chooses, participate in any and all of the Company’s employee benefit
plans, at the Company’s expense. All Company benefits are
identified in the Employee Handbook and are subject to change without
notice or explanation. In addition, subject to the eligibility
requirements (including, but not limited to, participation by a part-time
employee) and enrollment provisions of the Company’s executive benefit
programs, Executive shall also be entitled to participate in any and all
other benefits programs established for officers of the
Company.
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d.
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Stock
Options. On the Effective Date, Executive will be
granted an option to purchase 1,000,000 shares of the Company’s common
stock (the “Options”) on
the terms and conditions listed below. Such Options will have a
strike price equal to the fair market value of the common stock as of the
Effective Date, which pursuant to NeoGenomics’ Amended and Restated Equity
Incentive Plan (the “Plan”), shall be equal to the closing price per share
of NeoGenomics’ common stock on the last trading day immediately preceding
the Effective Date. The vesting provisions of such Options
shall be as outlined below. These Options shall be treated as
incentive stock options (ISOs) to the maximum extent permitted under
applicable law, and the remainder of the Options, if any, shall be treated
as non-qualified stock options. The grant of these Options will
be made pursuant to the Company’s Plan and will be evidenced by a separate
“Option
Agreement” to be executed by the Company and Executive, which will
contain all the terms and conditions of the Options (including, but not
limited to, the provisions set forth in this Section 3(d)). So
long as Executive remains employed by the Company, such Options will have
a seven-year term before
expiration.
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1.)
Time-based
Options - 500,000 of such options will be time-based options and will
vest according to the following schedule:
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200,000
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will
vest on the first anniversary of the Effective Date; provided, however,
that if the Executive’s employment hereunder is terminated by the Employer
without “cause” (as such term is defined in the Option Agreement) at any
time prior to the first anniversary of the Effective Date, then the pro
rata portion of these 200,000 Options up until the date of termination,
shall be deemed vested; and
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12,500
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will
vest each month beginning on the 13th
monthly anniversary of the Effective Date and continuing on each monthly
anniversary thereafter until the second anniversary of the Effective Date;
and
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8,000
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will
vest each month beginning on the 25th
monthly anniversary of the Effective Date and continuing on each monthly
anniversary thereafter until the third anniversary of the Effective Date;
and
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4,500
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will
vest each month beginning on the 37th
monthly anniversary of the Effective Date and continuing on each monthly
anniversary thereafter until the fourth anniversary of the Effective
Date.
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2.) Performance-based
Options - 500,000 of such options will be performance-based options and
will vest according to the following schedule. Executive understands
and acknowledges that if the performance metrics for any given year are not met,
then such options shall be forfeited and the Board is under no obligation to
replenish such options.
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100,000
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will
vest if the Company’s actual consolidated revenue for FY 2009, after
excluding the effects of any Revenue Exclusions for such fiscal year,
meets or exceeds the consolidated revenue goal established by the Board
for the vesting of performance options, which goal will be based on the
Company’s Board approved budget for such fiscal year;
and
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100,000
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will
vest if the Company’s actual Adjusted EBITDA for FY 2009, after excluding
the effects of any Adjusted EBITDA Exclusions for such fiscal year, meets
or exceeds the Adjusted EBITDA goal established by the Board for the
vesting of performance options, which will be based on the Company’s
Board-approved budget for such fiscal year;
and
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75,000
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will
vest if the Company’s actual consolidated revenue for FY 2010, after
excluding the effects of any Revenue Exclusions for such fiscal year,
meets or exceeds the consolidated revenue goal established by the Board
for the vesting of performance options, which goal will be based on the
Company’s Board approved budget for such fiscal year;
and
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75,000
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will
vest if the Company’s actual Adjusted EBITDA for FY 2010, after excluding
the effects of any Adjusted EBITDA Exclusions for such fiscal year, meets
or exceeds the Adjusted EBITDA goal established by the Board for the
vesting of performance options, which will be based on the Company’s
Board-approved budget for such fiscal year;
and
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50,000
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will
vest if the Company’s actual consolidated revenue for FY 2011, after
excluding the effects of any Revenue Exclusions for such fiscal year,
meets or exceeds the consolidated revenue goal established by the Board
for the vesting of performance options, which goal will be based on the
Company’s Board approved budget for such fiscal year;
and
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50,000
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will
vest if the Company’s actual Adjusted EBITDA for FY 2011, after excluding
the effects of any Adjusted EBITDA Exclusions for such fiscal year, meets
or exceeds the Adjusted EBITDA goal established by the Board for the
vesting of performance options, which will be based on the Company’s
Board-approved budget for such fiscal year;
and
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25,000
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will
vest if the Company’s actual consolidated revenue for FY 2012, after
excluding the effects of any Revenue Exclusions for such fiscal year,
meets or exceeds the consolidated revenue goal established by the Board
for the vesting of performance options, which goal will be based on the
Company’s Board approved budget for such fiscal year;
and
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25,000
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will
vest if the Company’s actual Adjusted EBITDA for FY 2012, after excluding
the effects of any Adjusted EBITDA Exclusions for such fiscal year, meets
or exceeds the Adjusted EBITDA goal established by the Board for the
vesting of performance options, which will be based on the Company’s
Board-approved budget for such fiscal
year.
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Executive
understands that, pursuant to the Plan, upon termination of his
employment, he will only have ninety (90) days to exercise any vested
portion of the Options. All Options awarded pursuant to this
Section 3(d) will contain a provision in the Option Agreement that allows
for immediate vesting of any unvested portion of the Options in the event
of a change of control of
NeoGenomics.
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e.
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Revenue
and Adjusted EBITDA Exclusions Defined. For the purposes
of Section 3b and 3d above, to the extent the Company acquires any
companies or businesses during any given fiscal year and the financial
impact of such acquisition was not previously factored into the annual
operating budget approved by the Board, the following revenue and Adjusted
EBITDA adjustments shall be made to the Company’s fiscal results in
measuring whether or not the Company has met or exceeded the specific
performance targets outlined in Sections 3b or 3d
hereof.
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1.) “Revenue
Exclusions” shall be defined as the prorated annualized quarterly
GAAP revenue of any company or business acquired by the Company for the
most recent full fiscal quarter prior to the date such company or business
is acquired by the Company. Such annualized quarterly revenue
shall be prorated by multiplying the total annualized quarterly revenue
described above by a fraction, the numerator of which is the number of
days that the financial results of the acquired business or company are
included in the Company’s financial results during the fiscal year in
question, and the denominator of which is
365.
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2.) “Adjusted EBITDA
Exclusions” shall be defined as the prorated annualized quarterly
Adjusted EBITDA of any company or business acquired by the Company for the
most recent full fiscal quarter prior to the date such company or business
is acquired by the Company. Such annualized quarterly Adjusted
EBITDA shall be prorated by multiplying the total annualized quarterly
Adjusted EBITDA described above by a fraction, the numerator of which is
the number of days that the financial results of the acquired business or
company are included in the Company’s financial results during the fiscal
year in question, and the denominator of which is 365. The
Board, at its discretion, may add back any non-recurring or one time
charges that may have been included in the most recent full fiscal quarter
of the company or business being acquired when determining the appropriate
Adjusted EBITDA for such business or
company.
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f.
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Paid
Time-Off and Holidays. Executive’s paid time-off (“PTO”) and
holidays shall be consistent with the standards set forth in the Company’s
Employee Handbook, as revised from time to time or as otherwise published
by the Company. Notwithstanding the previous sentence,
Executive will be eligible for one hundred twenty (120) hours of PTO/year,
which will accrue on a pro-rata basis throughout the year, provided,
however, that it is the Company’s policy that no more than forty (40)
hours of PTO can be accrued beyond this annual limit for any employee at
any time. Thus, when accrued PTO reaches one hundred sixty
(160) hours, Executive will cease accruing PTO until accrued PTO is one
hundred twenty (120) hours or less, at which point Executive will again
accrue PTO until he reaches one hundred sixty (160) hours. In
addition to PTO, there are also six (6) paid national holidays and one (1)
“floater” day available to Company employees. Executive agrees
to schedule such PTO so that it minimally interferes with the Company’s
operations. Such PTO does not include Board excused
absences.
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g.
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Reimbursement
of Normal Business Expenses. The Company will reimburse
all reasonable business expenses of Executive, including, but not limited
to, cell phone expenses and business related travel, meals and
entertainment expenses in accordance with the Company’s polices for such
reimbursement.
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4. Best
Efforts of the Executive and Minimum Time Commitments of Employment. Executive agrees to
perform all of the duties pursuant to the express and implicit terms of this
Agreement to the reasonable satisfaction of the Employer. Executive
further agrees to perform such duties faithfully and to the best of his ability,
talent, and experience and, unless otherwise agreed to with the Company in
writing, to render such duties at least in the minimum amounts of time specified
below:
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a.
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So
long as the Executive and the Board have not agreed to adjust downward the
Executive’s Core Base Salary specified in Section 3(a), Executive agrees
that during the Term, except for those weeks where he is on PTO, he will
spend at least two and one-half (2.5) days/week on average on the
Company’s business (such period as may be adjusted, the “Minimum Weekly Time
Commitment”). Executive further agrees that he
will use commercially reasonable efforts to ensure that except for those
weeks where he is on PTO, he will work at least two (2) days on average
either at the Company’s primary place of business in Fort Xxxxx, FL or at
such other place or places as the interests, needs, business, or
opportunities of the Employer shall require and/or such other place as may
be mutually agreed upon in writing by the parties (such period as may be
adjusted, the “On-Site/Business
Travel Time Commitment”).
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b.
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Notwithstanding
the forgoing, Executives agrees that during the CEO Period, the Minimum
Weekly Time Commitment shall be increased to three and one-half (3.5) days
and the On-Site/Business Travel Time Commitment shall be increased to
three (3) days.
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5. Termination. Either
party may terminate Executive’s employment with the Company at any time upon
giving sixty (60) days advance written notice to the other party. Executive
agrees that in order to help facilitate an orderly transition of authority,
unless otherwise agreed to by the parties, during such sixty (60) day notice
period no more than two weeks of unused PTO may be utilized. In
the event of the death of Executive, the employment of Executive shall
automatically terminate on the date of Executive's death. Within 30
days following the date Executive’s employment terminates, the Company shall pay
to Executive (or Executive’s estate if applicable) (a) the Executive’s accrued
but unpaid Base Salary through the date of termination, (b) any bonus earned by,
but not yet paid to, Executive from the prior fiscal year, (c) an amount equal
to the reasonable business expenses incurred by Executive (in accordance with
Company policy), but not yet reimbursed, prior to the termination date, and (d)
other benefits due and owing to Executive through the termination
date.
6. Confidentiality,
Non-Compete & Non-Solicitation Agreement. Executive agrees
to the terms of the Confidentiality, Non-Solicitation and Non-Compete Agreement
attached hereto as Addendum A and has
signed that Agreement. Such Confidentiality, Non-Solicitation and
Non-Compete Agreement is hereby incorporated into and made a part of this
Agreement.
7. Importance
of Certain Clauses. Executive and Employer agree that the
covenants contained in the Confidentiality, Non-Solicitation and Non-Compete
Agreement attached hereto and incorporated into this Agreement are material
terms of this Agreement and all parties understand the importance of such
provisions to the ongoing business of the Employer. As such, because
the Employer's continued business and viability depend on the protection of such
secrets and non-competition, these clauses are interpreted by the parties to
have the widest and most expansive applicability as may be allowed by law and
Executive understands and acknowledges his or her understanding of
same.
8. Consideration. Executive
acknowledges and agrees that the provision of employment under this Agreement
and the execution by the Employer of this Agreement constitute full, adequate
and sufficient consideration to Executive for the Executive's duties,
obligations and covenants under this Agreement and under the Confidentiality,
Non-Solicitation and Non-Compete Agreement incorporated into this
Agreement.
9. Acknowledgement
of Post Termination Obligations. Upon the effective date of
termination of Executive’s employment (unless due to Executive’s death), if
requested by the Employer, Executive shall participate in an exit interview with
the Employer and certify in writing that Executive has complied with his
contractual obligations and intends to comply with his continuing obligations
under this Agreement, including, but not limited to, the terms of the
Confidentiality, Non-Solicitation and Non-Compete Agreement. To the
extent it is known or applicable at the time of such exit interview, Executive
shall also provide the Employer with information concerning Executive's
subsequent employer and the capacity in which Executive will be employed.
Executive's failure to comply shall be a material breach of this Agreement, for
which the Employer, in addition to any other civil remedy, may seek equitable
relief.
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10. Withholding.
All payments made to Executive shall be made net of any applicable withholding
for income taxes and Executive's share of FICA, FUTA or other employment taxes.
The Company shall withhold such amounts from such payments to the extent
required by applicable law and remit such amounts to the applicable governmental
authorities in accordance with applicable law.
11. Representations
of Executive. Executive represents and warrants to NeoGenomics
that (a) nothing in his past legal and/or work and/or personal experiences,
which if became broadly known in the marketplace, would impair his ability to
serve as the Chief Executive Officer of a publicly-traded company or materially
damage his credibility with public shareholders; (b) there are no restrictions,
agreements, or understandings whatsoever to which he is a party which
would prevent or make unlawful his execution of this Agreement or employment
hereunder, (c) Executive’s execution of this Agreement and employment hereunder
shall not constitute a breach of any contract, agreement or understanding, oral
or written, to which he is a party or by which he is bound, (d) Executive is
free and able to execute this Agreement and to continue employment
with NeoGenomics, and (e) Executive has not used and will not use confidential
information or trade secrets belonging to any prior employers to perform
services for the Company.
12. Effect of
Partial Invalidity. The invalidity of any portion of this
Agreement shall not affect the validity of any other provision. In
the event that any provision of this Agreement is held to be invalid, the
parties agree that the remaining provisions shall remain in full force and
effect.
13. Entire
Agreement. This Agreement, together with the other documents
referenced herein, reflects the complete agreement between the parties regarding
the subject matter identified herein and shall supersede all other previous
agreements, either oral or written, between the parties. The parties stipulate
that neither of them, nor any person acting on their behalf has made any
representations except as are specifically set forth in this Agreement and each
of the parties acknowledges that it or he has not relied upon any representation
of any third party in executing this Agreement, but rather have relied
exclusively on it or his own judgment in entering into this
Agreement.
14. Assignment. Employer
may assign its interest and rights under this Agreement at its sole discretion
and without approval of Executive to a successor in interest by the Employer’s
merger, consolidation or other form of business combination with or into a third
party where the Employer’s stockholders before such event do not control a
majority of the resulting business entity after such event. All
rights and entitlements arising from this Agreement, including but not limited
to those protective covenants and prohibitions set forth in the Confidentiality,
Non-Solicitation and Non-Compete Agreement attached as Addendum A and
incorporated into this Agreement shall inure to the benefit of any purchaser,
assignor or transferee of this Agreement and shall continue to be enforceable to
the extent allowable under applicable law. Neither this Agreement,
nor the employment status conferred with its execution is assignable or subject
to transfer in any manner by Executive.
15. Notices. All
notices, requests, demands, and other communications shall be in writing and
shall be given by registered or certified mail, postage prepaid, a) if to the
Employer, at the Employer’s then current headquarters location, and b) if to
Executive, at the most recent address on file with the Company for Executive or
to such subsequent addresses as either party shall so designate in writing to
the other party.
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16. Remedies. If
any action at law, equity or in arbitration, including an action for declaratory
relief, is brought to enforce or interpret the provisions of this Agreement, the
prevailing party may, if the court or arbitrator hearing the dispute, so
determines, have its reasonable attorneys’ fees and costs of enforcement
recouped from the non-prevailing party.
17. Amendment/Waiver. No
waiver, modification, amendment or change of any term of this Agreement shall be
effective unless it is in a written agreement signed by both
parties. No waiver by the Employer of any breach or threatened breach
of this Agreement shall be construed as a waiver of any subsequent breach unless
it so provides by its terms.
18. Governing
Law, Venue and Jurisdiction. This Agreement and all
transactions contemplated by this Agreement shall be governed by, construed, and
enforced in accordance with the laws of the State of Florida without regard to
any conflicts of laws, statutes, rules, regulations or
ordinances. Executive consents to personal jurisdiction and venue in
the Circuit Court in and for Xxx County, Florida regarding any action arising
under the terms of this Agreement and any and all other disputes between
Executive and Employer.
19. Arbitration.
Any and all controversies and disputes between Executive and Employer arising
from this Agreement or regarding any other matter whatsoever shall be submitted
to arbitration before a single unbiased arbitrator skilled in arbitrating such
disputes under the American Arbitration Association, utilizing its Commercial
Rules. Any arbitration action brought pursuant to this section shall
be heard in Fort Xxxxx, Xxx County, Florida. The Circuit Court in and
for Xxx County, Florida shall have concurrent jurisdiction with any arbitration
panel for the purpose of entering temporary and permanent injunctive relief, but
only with respect to any alleged breach of the Confidentiality, Non-Solicitation
and Non-Compete Agreement.
20. Headings. The
titles to the sections of this Agreement are solely for the convenience of the
parties and shall not affect in any way the meaning or interpretation of this
Agreement.
21. Miscellaneous
Terms. The parties to this Agreement declare and represent
that:
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a.
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They
have read and understand this
Agreement;
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b.
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They
have been given the opportunity to consult with an attorney if they so
desire;
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c.
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They
intend to be legally bound by the promises set forth in this Agreement and
enter into it freely, without duress or
coercion;
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d.
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They
have retained signed copies of this Agreement for their records;
and
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e.
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The
rights, responsibilities and duties of the parties hereto, and the
covenants and agreements contained herein, shall continue to bind the
parties and shall continue in full force and effect until each and every
obligation of the parties under this Agreement has been
performed.
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22. Counterparts. This Agreement
may be executed in counterparts and by facsimile, or by pdf, each of which shall
be deemed an original for all intents and purposes.
Signatures
appear on the following page.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
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NEOGENOMICS,
INC., a Nevada Corporation
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By:
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/s/ Xxxxxx Xxxxxxxxx | |
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Name:
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/s/ Xxxxxx Xxxxxxxxx | |
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Title:
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President | |
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EXECUTIVE:
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/s/
Xxxxxxx X. XxxXxxx
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Xxxxxxx
X. XxxXxxx
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Addendum
A
Form
of Confidentiality, Non-Compete and Non-Solicitation Agreement
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