Employment Agreement - Transgenomic Inc. and William B. Walker
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of November 16, 1998 by and between
Transgenomic, Inc., a Delaware corporation (the "Company"), and William B.
Walker ("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 the date first set forth above (the "Effective Date"). The Company
shall employ Employee as Vice President--Intellectual Property and Assistant
General Counsel of the Company for a term (the "Employment Period") commencing
on November 16, 1998 and continuing until November 16, 2000, unless sooner
terminated pursuant to Section 9 hereof, provided that the Employment Period
shall by mutual agreement be extended on the first anniversary date (November
16, 1999) and on each anniversary date thereafter for the two-year period
following such renewal unless either the Company or Employee delivers to the
other a notice of nonextension.
Section 2. POSITION AND DUTIES. During the Employment Period:
(a) Employee shall have the normal responsibilities, duties
and authorities of Vice President--Intellectual Property and Assistant
General Counsel.
(b) Employee shall report to the General Counsel 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 a base
salary (the "Base Salary") at the following rates per calendar year:
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<TABLE>
<CAPTION>
CALENDAR YEAR ANNUAL BASE SALARY
------------- ------------------
<S> <C>
November 16, 1998--December 31, 1998 $
--------------
1999 $200,000
</TABLE>
Base Salary shall be payable in equal installments in arrears on a
biweekly basis or as otherwise may be mutually agreed upon.
Section 4. BONUS. In addition to the Base Salary, Employee shall be
eligible to receive an annual bonus based on Employee's performance and the
Company's operating results during such calendar year payable at such time or
times during or following each calendar year as shall be determined by 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 Vice
President--Intellectual Property and Assistant General Counsel of the Company.
Section 6. OTHER BENEFITS.
(a) VACATION. Employee shall be entitled to a maximum of four
weeks' paid vacation each year.
(b) INSURANCE. The Company shall provide Employee with health,
hospitalization, dental and major medical insurance (including
dependent coverage) and other similar benefits.
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. Employee shall be eligible
to participate in the Company's 1997 Stock Option Plan, as amended.
Section 9. TERMINATION OF EMPLOYMENT.
(a) EVENTS OF TERMINATION AND SEVERANCE PAYMENTS. In the event
that during the Employment Period Employee should become Totally and
Permanently Disabled, the Company (acting by resolution of the Board)
may elect to terminate the Employment Period by written notice to
Employee and Employee shall be entitled to receive full compensation
pursuant to subsection 3(a) at his then Base Salary rate for a period
of six months following
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the date of such notice. In the event of Employee's death during the
Employment Period, his personal representative shall be entitled to
receive any compensation pursuant to Sections 3 and 4 which is accrued
and unpaid as of the date of his death plus six months of salary. In
the event that during the Employment Period Employee should commit
Serious Misconduct (as defined in subsection 9(b)(ii) below), the
Company (acting by resolution of the Board) may elect to terminate the
Employment Period by written notice to Employee. In the event that
Employee is discharged for any reason other than for Serious
Misconduct, Employee shall be entitled to receive certain payments (the
"Severance Payments") following termination of employment in an
aggregate amount equal to the Severance Amount listed below:
SEVERANCE AMOUNT
Since this Employment Agreement is subject to renewal
on each anniversary date (November 16, 1999 and each November
16 thereafter) on a rolling two-year period following such
renewal the Severance Amount shall be equal to such amount
remaining to be paid on the balance of this Employment
Agreement based on his current base salary so long as the
total amount payable does not exceed 299% of the then current
base salary. Such amounts to be paid in equal semi-monthly
payments in the amounts and on the Company's regularly
scheduled employee pay periods.
(b) DEFINITION OF CERTAIN TERMS. (i) "Totally and Permanently
Disabled" means such physical or mental condition of Employee as is
determined by the Board in its sole discretion to be expected to
continue indefinitely and which renders him incapable of performing any
substantial portion of the services contemplated hereby (as confirmed
by competent medical evidence).
(ii) "Serious Misconduct" means embezzlement or
misappropriation of corporate funds, other acts of dishonesty,
significant activities materially harmful to the reputation of the
Company, commission of a felony, willful refusal to perform or
substantial disregard of the duties properly assigned by the Board,
significant violation of any statutory or common law duty of loyalty to
the Company or a material violation of Section 11 or 12 below.
(iii) "Termination Date" means the date on which Employee's
employment with the Company and its Subsidiaries is terminated, whether
on account of death, disability, resignation or discharge.
(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 not
have any further obligation to make any additional Severance Payments.
Termination of such Severance Payments pursuant to the preceding
sentence shall not relieve Employee's obligations pursuant to Section
11 or 12 below.
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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) 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 and 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 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
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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.
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
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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. 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 16. 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.
5600 South 42nd Street
Omaha, NE 68107
Attention: Chief Executive Officer
Telephone: (402) 738-5408
Telecopy: (402) 733-1264
Section 17. HEADINGS. The article and section headings herein are for
convenience of reference only and shall not define or limit the provisions
hereof.
Section 18. 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 19. 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 20. 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 21. 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 22. 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.
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Section 23. 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.
Section 24. SURVIVAL. Sections 8, 11 and 12 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/ Collin D'Silva
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Name Collin D'Silva
--------------------------------
Title Chief Executive Officer
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EMPLOYEE
/s/ William B. Walker
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Name: William B. Walker
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