Exhibit
2.3
EMPLOYMENT
AGREEMENT
This Employment Agreement (the
“Agreement”), dated as of April 12, 2007 is
between eGene, Inc. (“eGene” or “the
Company”) and Ming-Sun Liu, a resident of California
(“Employee”). This Agreement is intended to
confirm the understanding between the Company and Employee with
respect to Employee’s future employment by the Company,
contingent upon execution of the Agreement and Plan of Merger
between QIAGEN North American Holdings, Inc., Electra Merger Sub,
Inc., and the Company (the “Merger Agreement”).
This Agreement shall become effective (the “Effective
Date”) immediately prior to consummation of the merger that
is the subject of the Merger Agreement set forth above. If such
merger is not consummated, this Agreement shall immediately
terminate and be of no force or effect.
In consideration of the mutual
promises and covenants contained in this Agreement, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby mutually acknowledged, the parties have agreed as
follows:
1. Employment
.
(a) Title and
Duties . Subject to the terms and conditions of this
Agreement, the Company will employ Employee, and Employee will be
employed by the Company, as Executive Director, Analytical Systems
and General Manager of the Orange County Site, reporting to the
Vice President, Automated Systems of the Company. Employee
will have the responsibilities, duties and authority commensurate
with said position description attached hereto as Exhibit A
. Employee
will also perform such other services of an executive nature for
the Company as may be assigned to Employee from time to time by the
CEO or the Board of Directors of the Company (the
“Board”).
(b) Devotion to
Duties . For so long as Employee is employed hereunder,
Employee will devote substantially all of Employee’s business
time and energies to the business and affairs of the Company,
provided that nothing contained in this Section 1(b) will be deemed
to prevent or limit Employee’s right to manage
Employee’s personal investments on Employee’s own
personal time, including, without limitation, the right to make
passive investments in the securities of (i) any entity which
Employee does not control, directly or indirectly, and which does
not compete with the Company, or (ii) any publicly held entity so
long as Employee’s aggregate direct and indirect interest
does not exceed two percent (2%) of the issued and outstanding
securities of any class of securities of such publicly held entity.
2. Term of
Employment .
(a) Term .
Subject to the terms hereof, Employee’s employment
hereunder will commence on May 31, 2007 (or close of merger) and
will continue until the second anniversary thereof (the
“Initial Term”), provided that on the second and each
subsequent anniversary of the Effective Date, the term of
Employee’s employment hereunder will be automatically
extended for an additional period of one year (each a
“Subsequent Term”) unless either Employee or the
Company has given written notice to the other that such automatic
extension will not occur (a “Non-Renewal Notice”),
which notice was given not less than sixty (60) days prior to the
relevant anniversary of the Effective Date. The Initial Term
and any Subsequent Term are referred to herein collectively as the
“Term.”
(b) Termination .
Notwithstanding anything else contained in this Agreement,
Employee’s employment hereunder will terminate upon the
earliest to occur of the following:
(i) Expiration of the
Term. If a Non-Renewal Notice has been given pursuant to
Section 2(a), immediately upon expiration of the Term;
(ii) Death .
Immediately upon Employee’s death;
(iii) Termination by
the Company .
(A) If because of
Employee’s Disability, written notice by the Company to
Employee that Employee’s employment is being terminated as a
result of Employee’s Disability (as defined below), which
termination shall be effective on the date of such
notice;
(B) If for Cause (as
defined below), written notice by the Company to Employee that
Employee’s employment is being terminated for Cause and that
sets forth the specific alleged Cause for termination and the
factual basis supporting the alleged Cause, which termination shall
be effective on the date of such notice or such later date as
specified in writing by the Company; or
(C) If without Cause
(i.e., for reasons other than Section 2(b)(iii)(A) or (B)), written
notice by the Company to Employee that Employee’s employment
is being terminated without Cause, which termination shall be
effective on the date of such notice or such later date as
specified in writing by the Company; or
(iv) Termination by
Employee.
(A) If for Good Reason
(as defined below), written notice by Employee to the Company that
Employee is terminating Employee’s employment for Good Reason
and that sets forth the specific alleged Good Reason for
termination and the factual basis supporting the alleged Good
Reason, which termination shall be effective sixty (60) days after
the date of such notice; provided that if the Company has
cured the circumstances giving rise to the Good Reason, then such
termination shall not be effective; or
(B) If without Good
Reason, written notice by Employee to the Company that Employee is
terminating Employee’s employment, which termination shall be
effective one hundred and twenty (120) days after the date of such
notice or such earlier date as specified in writing by the
Board.
Notwithstanding anything
in this Section 2(b), the Company may at any point terminate
Employee’s employment for Cause prior to the effective date
of any other termination contemplated hereunder.
(c) Definition of
“Disability”. For purposes of this Agreement,
“Disability” shall mean Employee’s incapacity or
inability to further perform Employee’s duties and
responsibilities as contemplated herein for one hundred twenty
(120) days or more within any one (1) year period (cumulative or
consecutive), because Employee’s physical or mental health
has become so impaired as to make it impossible or impractical for
Employee to perform the duties
and responsibilities
contemplated hereunder. Determination of Employee’s physical
or mental health will be determined by a medical expert appointed
by mutual agreement between the Company and Employee.
(d) Definition of
“Cause” . For purposes of this Agreement,
“Cause” shall mean that either Employee has (i)
intentionally committed an act or omission that materially harms
the Company; (ii) been grossly negligent in performance of
Employee’s duties to the Company; (iii) failed to promptly
carry out a direct order of the CEO or the Board that is consistent
with Employee’s duties and fiduciary responsibilities; (iv)
committed an act of moral turpitude; (v) committed an act of fraud
or material dishonesty in discharging Employee’s duties to
the Company or in relation to the Company; (vi) breached any
material provision of this Agreement or any nondisclosure or
non-competition agreement (including the Non-Competition,
Confidentiality, and Intellectual Property Agreement attached
hereto as Exhibit B ), between Employee and the Company, as
all of the foregoing may be amended from time to time; (vii)
intentionally committed a material breach of any provision of any
code of conduct or ethics policy in effect at the Company, as all
of the foregoing may be amended from time to time; (viii) been
convicted or pled nolo contendere of a felony or other
crime; or (ix) any other circumstances constituting cause under
California common law.
(e) Definition of
“Good Reason” . For the purposes of this
Agreement, “Good Reason” shall mean: (i) without
Employee’s express written consent, a material reduction by
the Company in Employee’s Base Salary (as defined below) as
in effect on the date hereof or as the same may be increased from
time to time; (ii) during the Initial Term, Employee is required,
without Employee’s express written consent and as a condition
of remaining an employee of the Company, to relocate outside of the
state of California; or (iii) a material breach of the
terms of this Agreement by the Company, provided that except
as specifically set forth in this paragraph, a change in title or
responsibilities shall not be considered a material breach for the
purposes of this clause, and further provided that the
Company shall have thirty (30) days from the date of the written
notice set forth in Section 2(b)(iv)(A) in which to cure any
alleged action or omission giving rise to the Good Reason, in which
case there shall be no Good Reason.
3. Compensation
.
(a) Base Salary .
While Employee is employed hereunder, the Company will pay
Employee an annual salary of $160,000, paid on a biweekly basis, as
increased from time to time in the Company’s discretion (the
“Base Salary”). The Company will deduct from each
such installment any amounts required to be deducted or withheld
under applicable law or under any employee benefit plan in which
Employee participates. The Company will review
Employee’s performance on an annual basis and, in its sole
discretion, may adjust Employee’s Base Salary on the basis of
such review (including an upward adjustment).
(b) Annual Bonus
. Assuming Employee is still employed by the Company at the
time of payment, Employee will also be eligible to receive an
annual performance bonus of up to twenty-five percent (25%) of
Employee’s base salary. The award and amount of any bonus
shall be determined at the sole discretion of the Company, and the
bonus will be based upon Employee’s job performance and the
overall financial performance of the Company. Sixty-six
percent of the bonus will be based upon the Company’s
financial achievement and thirty-four percent
