Employment Agreement - Transgenomic Inc. and Michael J. Draper
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective as of May 21, 2003, by and between
Transgenomic, Inc., a Delaware corporation (the "Company"), and Michael J.
Draper ("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 May 21, 2003 (the "Effective Date"). The Company shall employ
Employee as Chief Financial Officer. The initial term of the Agreement will be
for a minimum of three (3) years from the Effective Date, and the Agreement may
be extended upon mutual consent of the parties.
Section 2. POSITION AND DUTIES. During the Employment Period:
(a) Employee shall have the normal responsibilities, duties and
authorities of Chief Financial Officer to be defined prior to the Effective
Date.
(b) Employee shall report to the Chief Executive Officer of the
Company, or his/her designee, 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.
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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 $135,000.00 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 of
Operations.
Section 6. OTHER BENEFITS.
(a) VACATION. Employee shall initially be entitled to three weeks'
paid vacation each year.
(b) INSURANCE. The Company shall make available to Employee health
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.
Section 8. STOCK OPTIONS AND OPTION SHARES. All unvested options will vest
upon the Company being acquired or merged into another entity.
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
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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.
(b) "Just Cause" being defined as any criminal act (felony) being
committed by employee, if employee commits fraud or dishonesty toward the
Company, other significant activities materially harmful to the reputation
of the Company as reasonably defined by the Company, willful refusal to
perform or substantial disregard of the duties properly assigned,
significant violation of any statutory or common law or a material
violation of Section 11 or 12 below, or intentionally takes any other
action materially inimical to the best interests of 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.
(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) COMPANY INFORMATION. Employee agrees at all times during the
term of his Relationship with the Company and thereafter, to hold in
strictest confidence, and not to use, except for the benefit of the
Company, or to disclose to any person, firm, corporation or other entity
without written authorization of the Board of Directors of the Company, any
Confidential Information of the Company which Employee obtains or creates,
by whatever means. Employee further agrees not to make copies of such
Confidential Information except as authorized by the Company. Employee
understands that "CONFIDENTIAL INFORMATION" means any Company proprietary
information, technical data, trade secrets or know-how, including, but not
limited to, research. product plans,
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products, services, suppliers, customer lists and customers (including, but
not limited to, customers of the Company on whom Employee called or with
whom Employee became acquainted during the Relationship), prices and costs,
markets, software, developments, inventions, laboratory notebooks,
processes, formulas, technology, designs, drawings, engineering, hardware
configuration information, marketing, licenses, finances, budgets or other
business information disclosed to Employee by the Company either directly
or indirectly in writing, orally or by drawings or observation of parts or
equipment or created by Employee during the period of the Relationship,
whether or not during working hours. Employee understands that
"CONFIDENTIAL INFORMATION" includes, but is not limited to, information
pertaining to any aspects of the Company's business which is either
information not known by actual or potential competitors of the Company or
is proprietary information of the Company or its customers or suppliers,
whether of a technical nature or otherwise. Employee further understands
that "CONFIDENTIAL INFORMATION" does not include any of the foregoing items
which have become publicly and widely known and made generally available
through no wrongful act of Employee's or of others who were under
confidentiality obligations as to the item or items involved.
(b) FORMER EMPLOYER INFORMATION. Employee represents that as an
employee of the Company, he has not breached and will not breach any
agreement to keep in confidence proprietary information, knowledge or data
acquired by Employee in confidence or trust prior or subsequent to the
commencement of Employee's Relationship with the Company, and Employee will
not disclose to the Company, or induce the Company to use, any inventions,
confidential or proprietary information or material belonging to any
previous employer or any other party.
(c) THIRD PARTY INFORMATION. Employee recognizes that the Company
has received and in the future will receive confidential or proprietary
information from third parties subject to a duty on the Company's part to
maintain the confidentiality of such information and to use it only for
certain limited purposes. Employee agrees to hold all such confidential or
proprietary information in the strictest confidence and not to disclose it
to any person, firm or corporation or to use it except as necessary in
carrying out Employee's work for the Company consistent with the Company's
agreement with such third party.
Section 12. RETURN OF COMPANY DOCUMENTS. Employee agrees that, at the time
of termination of his Relationship with the Company, he will deliver to the
Company (and will not keep in his possession, recreate or deliver to anyone
else) any and all devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, laboratory
notebooks, materials, flow charts; equipment, other documents or property, or
reproductions of any aforementioned items developed by Employee pursuant to the
Relationship or otherwise belonging to the Company, its successors or assigns.
Employee further agrees that any property situated on the Company's premises and
owned by the Company, including disks and other storage media, filing cabinets
or other work areas, is subject to inspection by Company personnel at any time
with or without notice. In the event of the termination of the Relationship,
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Employee agrees to sign and deliver the "Termination Certification" attached
hereto as Exhibit "A."
Section 13. NONCOMPETITION. Independent of any obligation under any other
contract or agreement between Employee and the Company, for a period of one (1)
year following the termination of Employee's employment relationship with the
Company, Employee shall not, directly or indirectly, whether as an individual
for his own account, or for or with any other person, firm, corporation,
partnership, joint venture, association, or other entity whatsoever, which is or
intends to be engaged in biotechnology business and, more particularly, that
provides technologies for DNA/RNA analysis and purification utilization DHPLC
technologies (provided, however, that the restrictions set forth in this clause
shall not apply to involvement that consists solely of "beneficially owning," as
such term is used in Rule 13d-3 promulgated under the Exchange Act 2% or less of
the outstanding securities of any class of securities issued by a
publicly-traded entity):
(a) Solicit, interfere with, or endeavor to entice away from the
Company, any person, firm, corporation, partnership, or entity of any kind
whatsoever, which was or is a client or licensor of the Company, for which
the Company performed services, with respect to any business, product or
service that is competitive to the products or services offered by the
Company, or under development by the Company, as of the date of the
termination of Employee's relationship with the Company. This restriction
shall apply only to such clients or licensors of the Company as were
serviced or solicited by Employee at any time during the one (1) year prior
to the separation of Employee's relationship with the Company, either as an
independent contractor or as an employee of the Company;
(b) Solicit or endeavor to induce any of the Company's employees
or consultants to terminate their relationship with the Company, or take
away such employees or consultants, or attempt to solicit, induce, recruit,
encourage or take away employees or consultants of the Company, either for
Employee or for any other person or entity;
(c) Induce or attempt to induce any supplier, licensee or other
business relation of the Company to cease doing business with the Company,
or in any way interfere with the relationship between any such supplier,
licensee or business relation and the Company.
Section 14. BUSINESS OPPORTUNITY. Employee represents and acknowledges that
the foregoing restrictions will not prevent him from obtaining gainful
employment in his field of expertise or cause him undue hardship; and that there
are numerous other employment opportunities available to him that are not
affected by the foregoing restrictions. Employee further acknowledges that the
foregoing restrictions are reasonable and necessary, in order to protect the
Company's legitimate interests, and that any violation thereof would result in
irreparable injury to the Company.
Section 15. 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
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time.
Section 16. ARBITRATION AND EQUITABLE REMEDIES.
a) Except as provide in Section 16 (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.
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 16, the parties agree
that, in the event of the breach or threatened breach of Sections 11, 13 or
14 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 17. 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 18. 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 19. 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
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receipt requested, to the addresses below unless another address is specified by
such party in writing:
To the Company: Transgenomic, Inc.
12325 Emmet Street
Omaha, NE 68164
Attention: Chief Executive Officer
Telephone: (402) 452-5433
Telecopy: (402) 452-5447
To the Employee: Michael J. Draper
2114 South 181st Circle
Omaha, NE. 68130
Section 20. HEADINGS. The article and section headings herein are for
convenience of reference only and shall not define or limit the provisions
hereof.
Section 21. 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 22. 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 23. 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 24. 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 25. 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 26. 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
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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.
Section 27. 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.
TRANSGENOMIC, INC.
By /s/ Collin D'Silva
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Name: Collin D'Silva
Title: Chief Executive Officer
EMPLOYEE
/s/ Michael J. Draper
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Name: Michael J. Draper