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Exhibit
10.1
EMPLOYMENT AGREEMENT
EXTENSION
THIS EMPLOYMENT AGREEMENT
EXTENSION (“Agreement”) is entered into by and between
Transgenomic, Inc., a Delaware corporation (the
“Company”), and Craig Tuttle (“Employee”)
effective as of July 12, 2008.
The Company and Employee
desire to enter into an employment agreement. Accordingly, the
Company and Employee agree as follows:
Section 1.
Effective Date; Position; Term. This Agreement shall
become effective on July 12, 2008 (the “Effective
Date”). The Company shall employ Employee as its President
and Chief Executive Officer. The term of the Agreement will be one
(1) year from the Effective Date, but shall be automatically
extended for additional terms of one (1) year unless either
the Company or the Employee provides written notice to the other
that it does not intend to extend this Agreement not later than 60
days prior to the end of the then current term.
Section 2.
Position and Duties. During the term of this
Agreement:
(a) Employee shall have the
normal responsibilities, duties and authorities of President and
Chief Executive Officer of the Company described in its bylaws and
such other reasonable duties as may be assigned to him by the Board
of Directors of the Company (the “Board”) from time to
time.
(b) Employee shall report to
the Board, 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
nonprofit corporations, civic organizations, professional groups
and similar entities.
Section 3. Basic
Compensation. As compensation for his services hereunder,
the Company shall pay to Employee a Base Salary of $325,000 per
year for the one year term of this Agreement. Employee’s Base
Salary may be increased with respect to subsequent terms of this
Agreement as determined by the compensation committee of the Board
(the “Compensation Committee”).
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 of up to 30% of Base Salary
due following the completion of the then current fiscal year
(2008). The bonus payout will be based on Employee’s
performance in conjunction with specific mutually agreed goals and
objectives and formulas determined by the Compensation Committee in
its sole discretion.
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 President and Chief Executive
Officer.
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Section 6. Other
Benefits.
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(a) |
Vacation . Employee shall participate in the vacation
benefit provided to all employees. |
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(b) |
Insurance . The Company shall make available to Employee
health insurance (including dependent coverage), and other employee
benefit plans provided to employees. |
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(c) |
Leased Vehicle . The Company shall provide Employee a
mutually agreeable vehicle in Omaha, Nebraska. The Company shall
reimburse Employee for the income tax liability arising as a result
of having been provided with such leased vehicle along with vehicle
registration and any taxes due on this vehicle. |
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
reporting and documentation of such expenses.
Section 8.
Termination of Employment.
(a) Events of Termination
and Severance Payment . In the event that, during the term of
this Agreement, Employee is involuntarily discharged for any reason
other than for Just Cause (as defined below), Employee shall be
entitled to receive a severance payment (the “Severance
Payment”) equal to the amount of the Employee’s then
current annual Base Salary. The Severance Payment will be paid to
Employee over a period of twelve months in the manner described in
Section 3 and will be subject to applicable income tax
withholding consistent with the Company’s normal payroll
practices. Additionally, upon the Company being acquired or merged
into another entity, Transgenomic, Inc. will honor the Severance
Payment in the event that the Employee’s position was
eliminated as a result of the merger or acquisition.
(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 Sections 12 or 13 below, not
reasonably performing assigned tasks to meet minimum expectations
of the position, or intentionally takes any other action materially
detrimental to the best interests of the Company
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(c) Effect of Breach of
Noncompetition Provisions. In the event Employee breaches or
otherwise fails to comply with the provisions of Section 12 or
13 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 Sections 12
and 13 below.
Section 9.
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
Board.
(c) The Company may not
assign its interest in or obligations under this Agreement without
the prior written consent of Employee.
Section 10.
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, 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 o
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