Exhibit 10.15
AMENDED AND
RESTATED
EXECUTIVE EMPLOYMENT
AGREEMENT
T HIS A MENDED AND R ESTATED E XECUTIVE E MPLOYMENT A GREEMENT ( “Agreement” ) is
made and entered into this 25th day of November, 2008 (the “
Effective Date ”) by and between
G ENOPTIX
, I NC . , a
Delaware corporation ( “Company” ), and
D OUGLAS
A. S CHULING ( “Executive” ) and
supersedes and replaces that certain Executive Employment Agreement
by and between the Company and Executive dated October 4,
2007.
R ECITALS :
Executive is currently employed by
the Company as its Senior Vice President and Chief Financial
Officer.
The Company and Executive desire to
formally state the terms and conditions of Executive’s
employment by the Company and to provide Executive with certain
benefits upon a qualifying termination of such
employment.
The Company desires to employ
Executive in the executive capacity hereinafter stated, and the
Executive desires to enter into the employ of the Company in such
capacity for the period and with the terms and conditions set forth
herein.
A GREEMENT :
N OW ,
T HEREFORE
, in consideration of the promises and the
covenants set forth in this Agreement and for other valuable
consideration, the parties hereby agree as follows:
1. Employment. The Company hereby employs
Executive as Senior Vice President and Chief Financial Officer,
assigned with responsibilities to do and perform all services,
acts, or things necessary or advisable to manage and conduct the
business of the Company, subject at all times to the policies set
by the Board of Directors of the Company (the
“Board” ), and to the consent of the Board when
required by the terms of this contract. Executive hereby accepts
such employment and agrees to devote such time and energies as
appropriate to fulfill all responsibilities to the Company.
Executive shall be employed at will.
2. Compensation. In consideration for all
services rendered by Executive under this Agreement, Executive
shall receive the compensation described in this Section 2.
All such compensation shall be paid subject to appropriate tax
withholding and similar deductions.
(a) Salary. Executive shall be paid an
initial annual salary of $285,000, payable in accordance with the
Company’s normal practices in the payment of salary and wages
practices, in equal installments, but not less than 26 increments
annually.
(b) Executive Benefit and Incentive Compensation
Plans. During employment hereunder, Executive shall be entitled
to receive those benefits which are routinely made available to
executive officers of the Company, including participation in any
executive stock ownership plan, profit sharing plan, incentive
compensation or bonus plan, retirement plan,
Company-provided
life insurance, or similar executive
benefit plans maintained or sponsored by the Company. The Company
shall not take any action that would substantially diminish the
aggregate value of Executive’s fringe benefits as they exist
as of the Effective Date of this Agreement or as the same may be
increased from time to time.
(c) Expense Reimbursement. The Company shall
promptly reimburse Executive for all reasonable expenses
necessarily incurred during conduct of Company business, and for
which adequate documentation is presented, but in no event later
than December 31 of the year following the year in which the
expense was incurred.
(d) Personal Time Off. Executive shall be
entitled to paid time off in accordance with the Company’s
policies applicable to executives.
3. Termination. Executive’s employment
may be terminated as follows, with the following
effects:
(a) Death. Executive’s employment shall
terminate immediately upon the Executive’s death, in which
event the Company’s only obligations hereunder shall be to
pay all compensation and expense reimbursements owing for services
rendered and reasonable business expenses incurred by the Executive
prior to the date of his death.
(b) Disability. In the event the Executive is
disabled from performing his assigned duties under this agreement
due to illness or injury for a period in excess of forty-five
(45) consecutive days or a period or periods of more than one
hundred and twenty (120) days in the aggregate in any twelve
month period, the Board, in its sole discretion, may terminate
Executive’s employment immediately upon written notice to
Executive, in which event the Company’s only obligations
hereunder shall be to pay all compensation and expense
reimbursements owing for services rendered and reasonable business
expenses incurred by the Executive prior to the effective date of
termination.
(c) For Cause.
The Company may terminate
Executive’s employment for Cause immediately upon written
notice from the Board to Executive. For purposes of this Agreement,
“Cause” means the occurrence of any one
or more of the following: (i) Executive’s conviction of
or plea of nolo contendere to any felony crime involving fraud,
dishonesty or moral turpitude under the laws of the United States
or any state thereof; (ii) Executive’s attempted
commission of, or participation in, a fraud or act of dishonesty
against the Company; (iii) Executive’s intentional,
material violation of any contract or agreement between the
Participant and the Company or of any statutory duty owed to the
Company; (iv) Executive’s unauthorized use or disclosure
of the Company’s confidential information or trade secrets;
or (v) Executive’s gross misconduct. In the event
Executive’s employment is terminated for Cause, the Company
shall have no further obligations to Executive other than to pay
all compensation and expense reimbursements owing for services
rendered and reasonable business expenses incurred by Executive
prior to the effective date of such termination.
(d) Without Cause. The Company in its sole
discretion may terminate Executive’s employment without Cause
(as defined above) or prior warning immediately upon written notice
from the Board to Executive, in which event, the Company shall pay
to Executive all compensation and expense reimbursements owing for
services rendered and reasonable business expenses incurred by
Executive prior to the effective date of termination, and provided
such termination is a “separation from service” as such
term is defined in Section 409A(a)(2)(A)(i) of the Internal
Revenue Code of 1986, as amended (the
“Code” ) and the applicable guidance
thereunder, contingent upon Executive’s delivery to the
Company of an effective Release and Waiver as provided in
Section 3(e) below, the Company shall also provide the
following benefits to Executive: (i) severance consisting of
continued payment of Executive’s base salary at the rate in
effect as of the effective date of termination, less standard
deductions and withholdings, for a period of twelve
(12) months following the effective date of termination,
subject to acceleration of such payments into a single lump-sum
cash severance payment in the event a Change in Control (as defined
below, provided that the Change in Control is an event described in
Code Section 409A(a)(2)(A)(v)) of the Company has occurred
prior to the date of termination (but not more than two years prior
to such termination) or a Change in Control occurs within ninety
(90) days after the date of termination of Executive’s
employment, provided that any such acceleration complies with the
provisions of Code Section 409A(a)(3); (ii) upon timely
election by Executive complying with COBRA, payment of all premiums
required to continue Executive’s medical, dental and vision
insurance coverage pursuant to COBRA for a period of twelve
(12) months following the date of termination; and
(iii) immediately accelerate the vesting of all options to
purchase the common stock of the Company granted to Executive prior
to the effective date of such termination (the
“Options” ) such that Executive shall be
deemed vested as to the same number of shares as if Executive had
continued to be employed by the Company for a period of twelve
(12) months following the effective date of such termination
(subject to the additional accelerated vesting provided in
Section 4(b) in the event Executive is terminated by the
Company without Cause within 90 days prior to or within 13 months
following the effective date of a Change in Control). As a
condition to receiving the continuing benefits specified in this
Section 3(d), during the twelve (12) month period
following the Executive’s termination date, Executive shall
not engage in any employment or business activity that is directly
competitive with the Company’s business activities as of such
termination date and Executive shall not induce any employee of the
Company to leave the employ of the Company.
(e) Release and Waiver. As a condition to
receiving the benefits specified in Sections 3(d) and 4(b) of this
Agreement, Executive must deliver to the Company a fully effective
waiver and release of claims in the form attached hereto as
Exhibit A (the “ Release and Waiver
”) within the time frame set forth therein, but in no event
later than forty-five (45) days following the
Executive’s termination date.
(f) Voluntary Termination by Executive.
Executive may terminate his employment hereunder at any time,
whether with or without cause, effective sixty (60) days after
delivery of written notice of such termination to the Company,
except for Executive’s Emergency Need. “Emergency
Need” , as used in this Section, is defined to be the
advent of illness or related health issues in Executive or his
immediate family which a medical doctor would conclude poses a
mortal health risk to that person. The Company shall have the
option, in its sole discretion, to specify an earlier termination
date than that provided by Executive in the written notice. Upon
voluntary termination pursuant to this Section, the Company shall
have no further obligations to Executive other than to pay all
compensation and expense reimbursements owing for services rendered
and reasonable business expenses incurred by Executive prior to
effective date of termination as determined by the
Company.
(g) Returning Company Documents. In the event
of any termination of Executive’s employment hereunder,
Executive shall, prior to or on such termination deliver to the
Company (and will not maintain possession of or deliver to anyone
else) any and all devices, records, data, data bases software,
software documentation, laboratory notebooks, notes, reports,
proposals, lists, customer lists, correspondence, specifications,
drawings, blueprints, sketches, materials, equipment, other
documents or property, or reproductions of any of the above
aforementioned items belonging to the Company, its successors or
assigns.
4. Change in
Control.
(a) Option Acceleration Upon A Change in
Control. Effective immediately upon the closing of a Change in
Control of the Company, the vesting of fifty percent (50%) of
the then unvested shares of Common Stock subject to the Options
shall be accelerated in full and shall be fully vested and
immediately exercisable (and, if any Options have been early
exercised by Executive, the reacquisition or repurchase rights held
by the Company with respect to the shares of Common Stock subject
to such acceleration shall lapse in full, as appropriate).
Thereafter, the balance of the Options’ unvested shares of
Common Stock subject to such Options shall vest in six
(6) equal monthly installments over the six-month period
immediately following the closing of the Change in Control, except
as provided in Section 4(b) below.
(b) Benefits Upon
Termination. In the event
that Executive’s employment by the Company is terminated
without Cause (as defined above) or Executive terminates his
employment for Good Reason (as defined below) within ninety
(90) days prior to or within thirteen (13) months
following the effective date of a Change in Control (as defined
below) of the Company, contingent upon Executive’s delivery
to the Company of a fully effective Release and Waiver as provided
in Section 3(e) and provided such termination is a
“separation from service” as such term is defined in
Code Section 409A(a)(2)(A)(i), the Executive shall be entitled
to the benefits and payments specified in Sections 3(d)(i) and
3(d)(ii) above, and the vesting of the unvested shares of Common
Stock subject to the Options shall immediately accelerate in full
such that all of the shares of Common Stock subject to such Options
shall be fully vested and immediately exercisable (and, if any
Options have been early exercised by Executive, the reacquisition
or repurchase rights held by the Company with respect to the shares
of Common Stock subject to such acceleration shall lapse in full,
as appropriate).
(c) Change in Control.
“Change in Control” means the occurrence, in a single transaction or
in a series of related transactions, of any one or more of the
following events:
(i) any Exchange Act Person (as defined below)
becomes the beneficial owner, directly or indirectly, of securities
of the Company representing more than fifty percent (50%) of
the combined voting power of the Company’s then outstanding
securities other than by virtue of a merger, consolidation or
similar transaction. Notwithstanding the foregoing, a Change in
Control shall not be deemed to occur (A) on account of the
acquisition of securities of the Company by an investor,
any
affiliate thereof or any other
Exchange Act Person from the Company in a transaction or series of
related transactions the primary purpose of which is to obtain
financing for the Company through the issuance of equity securities
or (B) solely because the level of beneficial ownership held
by any Exchange Act Person (the “ Subject Person
” ) exceed
