Exhibit
10.4
EMPLOYMENT
AGREEMENT
This EMPLOYMENT AGREEMENT (the
“ Agreement ”) is entered into, effective as of
March 27, 2009 (the “ Effective Date ”), by and
between IVAX Diagnostics, Inc., a Delaware corporation (the “
Company ”), and Kevin D. Clark (the “
Executive ”).
RECITALS
WHEREAS , the Company wishes to employ the Executive as
Chief Operating Officer of the Company upon the terms and subject
to the conditions set forth in this Agreement; and
WHEREAS , the Executive is willing to accept such
employment on such terms and conditions;
NOW, THEREFORE,
in consideration of the premises and
of the mutual promises, representations and covenants herein
contained, the Company and the Executive hereby agree as
follows:
AGREEMENT
1. Scope of
Employment . The
Company hereby agrees to employ the Executive, and the Executive
hereby agrees to be employed by the Company, as Chief Operating
Officer of the Company. The Executive shall have the customary
responsibilities and authority of such positions and shall perform
such duties consistent with the responsibilities of such positions
as may be determined and assigned to the Executive by the Chief
Executive Officer and President of the Company as well as the Board
of Directors of the Company (the “ Board ”). The
Executive shall devote his best efforts and his full business time,
attention and energies to Company affairs as are necessary to fully
perform his duties for the Company.
2. Term
. The Executive’s employment
under this Agreement shall be for a three (3) year term
commencing on the Effective Date (the “ Initial Term
”). This Agreement and the Term (as hereinafter defined)
shall automatically renew and be extended for successive one
(1) year periods beginning on the third anniversary and each
subsequent anniversary of the Effective Date unless either party
gives the other party prior written notice of non-renewal at least
six (6) months before the expiration of the then-current Term.
For all purposes of this Agreement, “ Term ”
shall mean the initial three (3) year term of this Agreement
and any and all successive one (1) year renewal periods of
this Agreement.
3. Compensation
.
(a) Base Salary . The
Company agrees to pay the Executive, and the Executive agrees to
accept, in payment for services to be rendered by the Executive
hereunder, an aggregate base salary of $227,000 per annum (the
“ Base Salary ”). The Base Salary shall be paid
in approximately equal installments in accordance with the
Company’s customary payroll practices. The Company agrees to
review the Base Salary at least once per year. For all purposes
under this Agreement, the term “ Base Salary ”
shall refer to the Executive’s base salary as in effect from
time to time in accordance with this Section 3(a)
.
(b) Annual Bonus . In
addition to the Base Salary, the Executive shall also be eligible
to receive an annual cash bonus (the “ Annual Bonus
”): (i) upon the achievement of Company-wide financial
performance targets in accordance with and under the terms of any
annual cash incentive program, as may be amended from time to time
upon the approval of the Board, the Compensation Committee of the
Board (the “ Compensation Committee ”) and, if
necessary, the Company’s stockholders (the “ Annual
Incentive Program ”); or (ii) otherwise in the
discretion of the Board or, if necessary or desirable, the
Compensation Committee. The Company shall pay the Annual Bonus, if
any, in accordance with the terms of the particular bonus, but in
no event later than ninety (90) days after the end of the
fiscal year to which the Annual Bonus relates.
(c) Equity
Compensation . The Executive shall be eligible to receive
any grants of awards by the Company under and in accordance with
the Company’s equity incentive compensation plans, subject to
and in compliance with all applicable laws, rules and regulations,
including, without limitation, the Delaware General Corporation
Law.
4. Reimbursement of Expenses, Fringe
Benefits, Etc .
(a) Business Expenses
. The Company shall pay, or promptly reimburse the Executive for,
all reasonable expenses incurred by the Executive in performing his
duties for the Company during the Term of this Agreement upon the
presentation of reasonably itemized statements of such expenses in
accordance with the Company’s policies and procedures now in
effect or as such policies and procedures may be modified from time
to time.
(b) Vacation; Illness
. The Executive shall be entitled to paid vacation, holidays, and
sick leave benefits in accordance with the Company’s
policies.
(c) Welfare, Pension and
Incentive Benefit Plans . During the Term of this
Agreement, the Executive shall be entitled to participate in and be
covered under all the welfare benefit plans or programs maintained
by the Company from time to time, including, without limitation,
all medical, hospitalization, dental, disability, accidental death
and dismemberment and travel accident insurance plans and programs,
in each case, subject to and in compliance with the terms and
conditions of such plans and programs. In addition, during the Term
of this Agreement, the Executive shall be eligible to participate
in and be covered under all pension, retirement, savings and other
employee benefit and perquisite plans and programs maintained from
time to time by the Company, in each case, subject to and in
compliance with the terms and conditions of such plans and
programs.
5. Termination
. This Agreement, and the
Executive’s employment hereunder, may be terminated before
the end of the then-current Term under the circumstances set forth
below.
(a) Death . This
Agreement, and the Executive’s employment hereunder, shall
terminate upon the Executive’s death.
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(b) Disability . If,
as a result of the Executive’s incapacity due to physical or
mental illness, the Executive shall have been substantially unable
to perform his duties hereunder for an entire period in excess of
one hundred twenty (120) days in any twelve (12) month
period despite any reasonable accommodation available from the
Company, then the Company shall have the right to terminate this
Agreement, and the Executive’s employment hereunder, for
“ Disability .” The Disability of the Executive
shall be determined by a medical doctor approved by the Company.
The Executive shall submit to a reasonable number of examinations
by the medical doctor making the determination of Disability, and
the Executive hereby authorizes the disclosure and release to the
medical doctor of all supporting medical records.
(c) By the Executive .
The Executive shall have the right to terminate this Agreement, and
the Executive’s employment hereunder, for any reason or for
no reason, including, without limitation, for Good Reason (as
hereinafter defined). For purposes hereof, the term “ Good
Reason ” shall mean any one or more of the following
events, unless the Executive specifically agrees in writing that
such event shall not be Good Reason:
(i) a significant adverse change in
the Executive’s authority, responsibilities or duties when
compared to those applicable to the Executive in his position
described in Section 1 ;
(ii) material acts or conduct on the
part of the Company or its officers and representatives which are
designed to force the resignation of the Executive or prevent the
Executive from performing his duties and responsibilities pursuant
to this Agreement;
(iii) a material breach by the
Company of any material provision of this Agreement (including, but
not limited to, the failure of the Company to pay any amount, or to
provide any benefit, pursuant to the provisions of Sections 3
and 4 ); or
(iv) a Change in Control occurring
during the Initial Term.
The Executive shall provide the
Company with written notice describing any event or condition that
gives the Executive Good Reason for terminating this Agreement and
the Executive’s employment hereunder. In the case of conduct
described above (other than a Change in Control under paragraph
(iv) above), Good Reason will not be considered to exist
unless the Company is given thirty (30) days after the date of
such written notice to cure such breach or condition to the
reasonable satisfaction of the Executive. If the Company cures such
breach or condition to the reasonable satisfaction of the Executive
within such thirty (30) day period, then the Executive shall
not be entitled to terminate this Agreement, and the
Executive’s employment hereunder, for Good Reason.
For purposes of this
Section 5(c) , unless otherwise agreed to in writing by
the Executive prior to the applicable event, a “ Change in
Control ” shall be deemed to have occurred at such time,
if any, that:
(i) any person or group (within the
meaning of Section 13(d)(3) of the Securities Exchange Act of
1934, as amended (the “ Exchange Act ”)) becomes
the beneficial owner (within the meaning of Rule 13d-3 promulgated
under the Exchange Act), directly or indirectly, of voting
securities of the Company representing more than 50% of the voting
power of the Company (other
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than any person or group (within the meaning of
Section 13(d)(3) of the Exchange Act) beneficially owning,
directly or indirectly, voting securities of the Company
representing more than 20% of the voting power of the Company on
the Effective Date, or any of their respective
Affiliates);
(ii) the majority of the Board is
not composed of (A) individuals who constitute the Board as of
the Effective Date and (B) individuals who became a director
of the Company after the Effective Date and whose election or
nomination was approved by a vote of at least a majority of the
directors of the Company then still in office who were either
directors of the Company as of the Effective Date or whose election
or nomination was previously so approved; or
(iii) the Company consummates
(A) a reorganization, merger, consolidation or other form of
corporate transaction or series of transactions, in each case, with
respect to which persons who were the stockholders of the Company
immediately prior to such reorganization, merger, consolidation or
other transaction do not, immediately thereafter, own more than 50%
of the voting power of the reorganized, merged or consolidated
Company’s then outstanding voting securities, (B) a
liquidation or dissolution of the Company or (C) the sale of
all or substantially all of the assets of the Company (in each
case, unless such reorganization, merger, consolidation or other
corporate transaction, liquidation, dissolution or sale is
subsequently abandoned).
(d) By the Company .
The Company shall have the right to terminate this Agreement, and
the Executive’s employment hereunder, for any reason or for
no reason, and with or without Cause (as hereinafter defined). For
purposes of this Agreement, the Company shall have “
Cause ” to terminate this Agreement, and the
Executive’s employment hereunder:
(i) upon the Indictment (as
hereinafter defined) or conviction of, or plea of nolo contendere
by, the Executive for (A) a felony or (B) any misdemeanor
involving moral turpitude, deceit, dishonesty or fraud;
(ii) upon a material violation of
the policies and procedures of the Company, including, without
limitation, the Company’s policies with respect to insider
trading and sexual harassment, in each case, as in effect from time
to time;
(iii) upon the Executive’s
gross negligence, willful misconduct or insubordination with
respect to the Company or any Affiliate (as hereinafter defined) of
the Company; or
(iv) upon a material breach by the
Executive of any of the Executive’s material obligations
under this Agreement.
For purposes of this Agreement, the
term “ Indictment ” shall mean an indictment,
probable cause hearing or any other procedure pursuant to which an
initial determination of probable or reasonable cause with respect
to such offense is made. For purposes of this Agreement, the term
“ Affiliate ,” when used with respect to a
specified person or entity, means any other person or entity in
control of, controlled by or under common control with such
specified person or entity.
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In the event a final determination
is made by a court of competent jurisdiction that the
Company’s termination of this Agreement, and the
Executive’s employment under this Section 5(d) ,
does not meet the definition of Cause, then this Agreement, and the
Executive’s employment hereunder, will be deemed to have been
terminated by the Company without Cause.
The Company shall provide the
Executive with written notice describing any event or condition
that gives the Company Cause for terminating this Agreement and the
Executive’s employment hereunder. Only in the case of conduct
described in paragraph (iv) above, Cause will not be
considered to exist unless the Executive is given thirty
(30) days after the date of such written notice to cure such
breach to the reasonable satisfaction of the Board. If the
Executive cures such breach to the reasonable satisfaction of the
Board within such thirty (30) day period, then the Company
shall not be entitled to terminate this Agreement and the
Executive’s employment hereunder for Cause.
6. Termination
Procedure .
(a) Notice of
Termination . Any termination of this Agreement, and the
Executive’s employment hereunder, whether by the Company or
by the Executive, during the Term of this Agreement, except as a
result of the Executive’s death, shall be communicated by
written notice of termination to the other party hereto in
accordance with Section 15 . Such notice of termination
shall state the specific termination provision in this Agreement
relied upon in terminating this Agreement, and the
Executive’s employment hereunder, and the notice of
termination shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for such
termination.
(b) Date of
Termination . The effective date of any termination of this
Agreement, and the Executive’s employment hereunder, whether
by the Company or by the Executive, shall be, in the event of the
Executive’s death, the date of his death, or, in the event of
termination for any other reason, the date on which the notice of
termination referenced in Section 6(a) is given or any
later date (within thirty (30) days after the giving of such
notice of termination) set forth in such notice of termination,
subject to any applicable cure periods described herein.
7. Termination and Expiration
Compensation and Benefits . The Executive acknowledges and agrees that
the following compensation and benefits set forth in this
Section 7 constitute liquidated damages upon the
termination or expiration of this Agreement, and the
Executive’s employment hereunder, and the parties hereto have
agreed that such compensation and benefits are reasonable. The
Executive further acknowledges and agrees that he shall have no
other remedies in connection with, or as a result of, any such
termination or expiration. The Company’s obligations under
this Section 7 shall survive the expiration or
termination of this Agreement.
(a) Termination with Cause;
Resignation other than for Good Reason . Upon termination
of this Agreement, and the Executive’s employment hereunder,
by the Company with Cause or by the Executive for other than Good
Reason: (i) the Company shall pay to the Executive promptly
after the effective date of termination that portion of the
Executive’s Base Salary which has been fully earned but not
yet paid to the Executive and which is not subject to a deferral
election or deferral requirement that has become irrevocable; and
(ii) all unvested awards by the Company under the
Company’s equity incentive compensation plans and other
equity compensation in the Company granted to the Executive shall
be forfeited.
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(b) Expiration of this
Agreement . Upon the expiration of this Agreement as a
result of either party’s notice to the other party in
accordance with Section 2 of its election not to renew
this Agreement at the end of the then-current Term, the Company
shall pay to the Executive promptly after the effective date of
expiration the sum of that portion of the Executive’s Base
Salary plus that portion of the Annual Bonus that has been awarded
and approved for paymen
