Exhibit 10.1
Orchid BioSciences,
Inc.
EMPLOYMENT
AGREEMENT
This Employment Agreement (the
“Agreement”) is entered into between Orchid
BioSciences, Inc., a Delaware corporation (the
“Company”), and Raymond J. Land (the
“Employee”), on April 25, 2005, in consideration of,
and as a condition of, Employee’s employment by Company and
of the compensation to be paid to Employee by Company, and in
recognition of the fact that Employee will have access to the
Company’s confidential, proprietary, and trade secret
information, and therefore Company and Employee agree to the terms
and conditions set forth in this agreement as follows:
1. Position . The Company and the Employee agree that Employee
will serve as Senior Vice President and Chief Financial Officer of
the Company, based at the Company’s Head office. Employee
agrees that Employee’s employment with the Company is on an
at will basis, is for no specified term and may be terminated by
the Company at any time, with or without Cause (as defined in
Section 3 herein). Similarly, Employee may terminate employment
with the Company at any time, for any reason upon written notice as
provided in Section 3 of this Agreement. Employee understands and
agrees that the at will nature of Employee’s employment
relationship with Company cannot be changed or modified. The
Employee’s performance will be reviewed formally on an annual
basis in conjunction with an annual salary period. The
Company’s obligations under this Agreement shall be subject
to the Company’s receipt of references regarding the Employee
satisfactory to the Company in its sole discretion.
2. Employment Date: Nature of
Relationship . Employee’s employment with the Company
will begin on June 6, 2005 (the “Employment Date”). The
Employee will perform for the Company such duties that are
customarily assigned to his position and as may be designated by
the Company from time to time. The Employee will be expected to
devote all of his working time to the performance of his duties
with the Company.
3. Termination . Without in any way limiting the at will basis of
Employee’s employment by the Company, Employee’s
employment hereunder shall terminate upon the occurrence of any of
the following events:
(a) The death of Employee;
(b) Written notice of termination from the
Company to Employee that Employee’s employment is being
terminated as a result of Employee’s incapacity or inability
to further perform services as contemplated herein for ninety (90)
consecutive days or more within any six-month period, 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 the Employee’s physical or mental health will be
determined by a medical expert appointed by mutual agreement
between the Company and the Employee);
(c) Written notice of termination from the
Company to Employee that Employee’s employment is being
terminated for Cause (as hereafter defined). “Cause”
shall mean that either the Employee has (1) intentionally committed
an act or omission that materially harms the Company; (2) been
grossly negligent in performance of his duty to the Company, which
is
incapable of cure or not cured within ten (10)
business days after the date of receipt by Employee of notice of
its existence; (3) committed an act of moral turpitude; (4)
committed an act of fraud or material dishonesty in discharging his
duties to the Company; (5) materially breached this Agreement or
any other employment agreement or any consulting, advisory,
nondisclosure, non-competition or similar agreement between the
Employee and the Company, or breached any code of conduct or ethics
or similar policy in effect at the Company, as all of the foregoing
may be amended from time to time or (6) engaged in any other act or
commission that may be deemed grounds for a “cause”
termination under Delaware state law.
(d) Written notice of termination from the
Company to Employee that Employee’s employment is being
terminated without Cause;
(e) Employee’s written notice of
resignation to the Company due to a Constructive Dismissal (as
hereafter defined). A “Constructive Dismissal” shall
mean the occurrence, without Employee’s express written
consent, of any of the following: (i) a substantial diminution in
the nature or status of Employee’s position, authority, or
primary duties or responsibilities; or (ii) a material breach by
the Company of this Agreement; provided, there shall be no
Constructive Dismissal unless the Employee provides the Board of
Directors and the Chief Executive Officer with written notice
reasonably detailing the purported basis for the Constructive
Dismissal and the Company fails to remedy within sixty (60)
business days after its receipt of such notice;
(f) Employee’s written notice of
resignation to the Company for any reasons other than due to a
Constructive Dismissal or Change of Control (as hereinafter
defined); or
(g) Written notice of termination from the
Company to Employee that Employee’s employment is being
terminated as a result of a Change of Control within six (6) months
following the Change of Control. For the purposes of this
Agreement, Change of Control is:
(i) Ownership. Any
“Person” (as such terms is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) becomes
the “Beneficial Owner” (as defined in Rule 13d-3 under
said Act), directly or indirectly, of securities of the Company
representing 50% (fifty percent) or more of the total voting power
represented by the Company’s then outstanding voting
securities (excluding for this purpose the Company or its
Affiliates or any employee benefit plan of the Company).
(ii) Merger/Sale of Assets. A merger
or consolidation of the Company whether or not approved by the
Board of Directors, other than a merger or consolidation which
would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity or the parent of such corporation) at least
50% (fifty percent) of the total voting power represented by the
voting securities of the Company or such surviving entity or parent
of such corporation outstanding immediately after such merger or
consolidation, or the consummation of an agreement for the sale or
disposition of the Company of all or substantially all of the
Company’s assets. “Substantially all of the
Company’s assets” shall be deemed to include
