EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (this
“Agreement”) is made and entered into by and between
Barry D. Plost (“Employee”) and SeraCare Life Sciences,
Inc, a California corporation, (the “Company”),
effective as of October 1, 2005 (“Effective
Date”).
RECITALS
WHEREAS , Employee and the Company are parties to that
certain Consulting Agreement, dated January 3, 2005 (the
“Consulting Agreement”).
WHEREAS , Employee and the Company have determined that
it would be in the best interests of both parties to amend and
restate the Consulting Agreement to expand the scope of services to
be performed by Employee for the Company and to convert the
consulting relationship into an employment relationship.
WHEREAS , this Agreement will amend and restate the
Consulting Agreement in its entirety, effective as of
October 1, 2005.
WHEREAS , Employee will be employed by virtue of this
Agreement by the Company.
WHEREAS , Employee desires employment with the Company
and is willing to undertake such employment on the terms and
conditions set forth below.
NOW, THEREFORE,
in consideration of the recitals
above and of the mutual promises and conditions in this Agreement,
it is agreed as follows:
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1.
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INCORPORATION OF RECITALS
:
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The parties hereto agree that the
Recitals referenced above are material terms of this Agreement and
are incorporated herein by this reference.
The Company hereby employs Employee,
and Employee hereby accepts exclusive employment with the Company,
for the period beginning on October 1, 2005 and ending on
September 30, 2007 (“Employment Period”), unless
extended or earlier terminated as provided for herein. The
Employment Period referenced herein shall be automatically renewed
for successive one-year terms (unless earlier terminated as
provided for herein) unless either party hereto notifies the other
party in writing, not less than ninety (90) days prior to
expiration of the Employment Period, of that party’s intent
to not renew this Agreement.
(a) Employee shall be employed in
the capacity of Chairman of the Company’s Board of Directors
(“Chairman”) and shall perform such duties as are
reasonably consistent with such position.
(b) Employee agrees that throughout
the Employment Period he will remain loyal and devote his best
efforts to the Company’s business and conscientiously perform
all duties and obligations required of him by the terms of this
Agreement. Employee agrees to devote the necessary time and
energies required to fulfill his role as Chairman. Employee agrees
that during the Employment Period, he shall not directly or
indirectly, either as an employee, employer, consultant, agent,
principal, partner, stockholder, corporate officer, board member,
director or in any other individual or representative capacity,
engage in any activity that is directly competitive with the goods
and services provided by the Company to its customers,
provided that Employee shall not be prohibited from
continuing as a shareholder in any entity in which he was a
shareholder as of the Effective Date.
(c) Employee shall disclose to the
full membership of the Board of Directors any material business
opportunity which is presented to him by an entity or individual
not affiliated with the Company and which relates to the business
of the Company.
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4.
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COMPENSATION OF EMPLOYEE
:
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As compensation for services
rendered under this Agreement, the Company shall pay to Employee a
salary at the rate of T WO H
UNDRED F IFTY T HOUSAND D OLLARS AND N O
C ENTS ($250,000.00) per year, payable every two weeks,
from which shall be deducted federal, state and if applicable,
local income tax withholdings, social security and other customary
employee deductions in conformity with the payroll policies of the
Company in effect from time to time. The statement of salary in
annual terms does not affect or alter in any way the term of
employment. The Company’s Compensation Committee shall review
Employee’s salary as appropriate and make recommendations for
adjustments to Employee’s salary.
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(b)
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Paid Time
Off (“PTO”) :
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Employee shall earn PTO on a monthly
basis. To earn PTO for a given month, Employee must have been paid
or owed payment for a minimum of fifteen (15) days during that
month. Employee will accrue PTO at a minimum rate of four
(4) weeks of PTO per year throughout his employment with the
Company, until such time as Employee becomes entitled to accrue PTO
at a greater rate in accordance with the Company’s PTO
policies. Except as provided for herein, Employee’s
entitlement to PTO shall be subject to the terms and
conditions
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of the Company’s PTO policies, which may
be amended and changed in accordance with the Company’s
normal business practices.
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(c)
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Reimbursement of Expenses
:
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Employee shall be reimbursed for any
necessary tax deductible business expenditures incurred by Employee
in the performance of Employee’s duties on behalf of the
Company, including auto and travel related expenses incurred during
the term of employment, as permitted by the Company policies in
effect from time to time.
Employee shall be entitled to the
same medical and hospitalization insurance benefits as provided by
the Company to its other employees and the insurance plan documents
related thereto. To the extent the Company offers its key
executives other medical and hospitalization insurance benefits,
Employee shall be entitled to such benefits.
Employee shall be entitled to ten
paid holidays per year as permitted by the Company’s policies
in effect from time to time.
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(f)
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Legal
Expenses Related to this Agreement :
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The Company shall pay for all
reasonable legal expenses Employee incurs in connection with the
review and preparation of this Agreement. The Company shall make
said payment within a reasonable period of time after receipt of
invoices from Employee.
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(g)
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Miscellaneous Benefits :
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Employee shall also be entitled to
receive any other benefits for which Employee is eligible that are
provided to other employees of the Company and which are not
specifically referenced in this Agreement, such as dental
insurance, life insurance, long term disability and participation
in the Company’s 401(k) plan. Such benefits shall be subject
to the terms and conditions of the applicable benefit plan
documents, which may be amended and changed in accordance with the
Company’s normal business practices.
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5.
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CUSTOMER
LISTS, TRADE SECRETS AND UNFAIR COMPETITION
:
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Employee acknowledges and agrees
that the names and addresses of the Company’s customers and
prospective customers (collectively referred to herein as
“Customers” and defined herein as all customers that
the Company sells or actively solicits to sell the goods and
services provided by the Company) and all other confidential
information relating to those Customers, including but not limited
to all information such as information on the profitability and/or
profit
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margins of the Company, the Company’s
Customer lists and potential leads Customer lists, any other
information relating to the Company’s Customers that have
been obtained or made known to Employee solely as the result of
Employee performing his services for the Company, profitability of
the Company, business plans, strategy plans, sales figures, sales
reports, internal memoranda, inventions, software developed by or
for the benefit of the Company and related data source code and
programming information (whether or not patentable or registered
under copyright or similar statutes), information about the
Company’s design technology and know how, formulae,
manufacturing and/or design techniques, inventions (whether
patentable or not), works of authorship, copyrighted software
and/or other copyrighted materials created by or for the benefit of
the Company, personnel policies, the Company’s marketing
methods and related data, Customer buying and selling habits and
special needs, accounting/financial records (including, but not
limited to, balance sheets, profit and loss statements, tax
returns, payable and receivable information, bank account
information and other financial reporting information), marketing
strategies, unique methods and procedures regarding pricing,
bidding and advertising, the names of the Company’s vendors
and suppliers, information relating to costs, sales or services
provided to the Company by such vendors and suppliers, the prices
the Company obtains or has obtained for the Company’s
products or services, compensation paid to the Company’s
employees, and other terms of employment, information regarding the
Company’s relations with its employees, information regarding
other employees or agents of the Company, or any other confidential
information regarding the manner of business operations and actual
or demonstrably anticipated business, research or development of
the Company are provided in confidence and constitute Confidential
Information/Trade Secrets (as defined in ALM GL ch. 266, §
30(4)) of the Company and that the sale or unauthorized use or
disclosure of any of the Company’s Confidential
Information/Trade Secrets obtained by Employee during his
employment with the Company constitutes unfair competition.
Employee promises not to engage in any unfair competition with the
Company.
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(a)
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This Agreement
shall terminate upon the occurrence of any of the following
events:
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(i) Termination For Cause: The
Company may terminate this Agreement immediately and without notice
for “Cause.” “Cause” for the purpose of
this Agreement shall include, but is not limited to:
(a) participation in any fraud or act of dishonesty;
(b) a material knowing violation of any statute or regulation
enforced by the Securities Exchange Commission or failure to report
and/or prevent such a violation; (c) theft; (d) a
material violation of Company policy which causes a material
detriment to the Company; (e) intentional material damage to
any property of the Company; (f) indictment or conviction of a
felony; (g) alcohol or drug abuse; (h) unethical business
conduct; (i) material breach of this Agreement;
(j) Employee becomes “permanently disabled or
incapacitated” (the term “permanently disabled or
incapacitated” means any physical and/or mental ailment or
condition that prevents Employee from actively carrying out his
duties hereunder for the Company for ninety (90) or more
cumulative days during the term of this Agreement or sixty
(60) or more consecutive days in any 365 day period
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during the term of this Agreement); (k) the
written agreement of both the Company and Employee; and
(l) the death of Employee. If this Agreement is terminated for
“Cause” as herein defined, Employee shall not be
entitled to severance payments set forth in Paragraph 7.
(ii) Termination Without Cause: The
Company and Employee agree that Employee’s employment with
the Company as referenced in the provisions of this Agreement and
all terms and conditions contained herein can be terminated by the
Company or Employee at anytime without cause, subject to the
provisions contained in Paragraph 7.
(iii) Change in Control:
“Change in Control” shall mean the acquisition of
beneficial ownership (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) of an aggregate of
more than fifty-one percent (51%) of the voting power of the
Company’s outstanding voting securities by any person or
group (as such term is used in Rule 13d-5 under such Act) who
beneficially owned less than the majority percentage (i.e.,
50.001%) of the voting power of the Company’s outstanding
voting securities on the date hereof; provided, however, that
notwithstanding the foregoing, an acquisition shall not constitute
a Change in Control hereunder if the acquiror is (a) a trustee
or other fiduciary holding securities under an employee benefit
plan of the Company and acting in such capacity; (b) a
corporation owned, directly or indirectly, by the shareholders of
the Company in substantially the same proportions as their
ownership of voting securities of the Company; or (c) any
person whose acquisition of shares of voting securities is approved
in advance by a majority of the Board of Directors or who is an
affiliate, associate or shareholder of any shareholder of the
Company as of the execution of this Agreement.
(iv) Termination for Good Reason:
Employee may terminate his employment for Good Reason as defined
below. If Employee terminates his employment for Good Reason,
Employee shall be entitled to the severance payments set forth in
Paragraph 7. For purposes of this Agreement, “Good
Reason” shall mean: (a) any material failure by the
Company to provide Employee with the compensation set forth in
Paragraph 4; and (b) any material breach of this Agreement by
the Company.
(b) If Employee’s employment
with the Company is terminated for any reason, Employee shall
promptly deliver, without request, all documents and data
pertaining to Employee’s employment and Confidential
Information/Trade Secrets, whether prepared by Employee or
otherwise, in Employee’s possession and/or control, and
Employee shall not retain any written or other tangible material
containing information concerning or disclosing any of the
Company’s Confidential Information/Trade Secrets.
(a) If Employee is terminated by the
Company for any reason other than “Cause” (as defined
in Paragraph 6(a)(i)) or a “Change in Control” (as
defined in Paragraph 6(a)(iii)) occurs or Employee terminates his
employment for “Good Reason” (as defined in Paragraph
6(a)(iv)), then, provided that Employee first executes and does not
revoke a release substantially in the
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form attached hereto as Exhibit 1, the Company
shall provide Employee with the greater of (i) the balance due
under the terms of this Agreement and (ii) the equivalent of
one (1) year of his then current regular sal