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Exhibit 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
THIS
EXECUTIVE EMPLOYMENT AGREEMENT ("
Agreement ")
is made and entered into as of the 18th
day
of October, 2007, by and between DYADIC INTERNATIONAL, INC., a
Delaware corporation (the "
Company "),
and Lisa De La Pointe (the "
Executive ").
The Company and the Executive are sometimes hereinafter
collectively referred to as the "
parties "
and individually as a "
party ,"
provided that as applicable, any reference to the Company shall
mean the Company, its Subsidiaries and and\or their Affiliates, as
the case may be. Certain capitalized terms used in this Agreement
are defined in Article VII hereof.
RECITALS
A.
The
Executive is currently employed by the Company as the
Company's Executive Vice President and Chief Financial
Officer.
B.
Among
the recent determinations of the Executive Committee and the
Compensation Committee were that it was in the best interests
of the Company to promote the Executive to the position of
Executive Vice President and permanent Chief Financial
Officer, to increase the Executive's annual base compensation
and thereafter to enter into a mutually acceptable employment
agreement with the Executive.
C.
As
a condition to and in consideration of the Company entering
into this Agreement, the Company requires that pursuant to
this Agreement the Executive hereby knowingly and
intentionally furnishes the Company with, among other things,
the suite of proprietary covenants of the Executive in favor
of the Company set forth in Article IV hereof, including by
way of illustration, and not in limitation, the Executive's
covenant not to compete with the businesses of the Company,
its Subsidiaries and their Affiliates.
D.
The
Executive desires to hold the positions of Executive Vice
President and Chief Financial Officer and to receive the
salary and other financial benefits of this Agreement.
Further, the Executive expressly acknowledges that: (i) as a
member of the Company's senior management, she is one of the
persons charged with primary responsibility for the
implementation of the Company's business plans, and that she
will have regular access to various confidential and/or
proprietary information relating to the Company, its
Subsidiaries, their Affiliates and their businesses; and (ii)
the suite of proprietary covenants of the Executive in favor
of the Company set forth in Article IV hereof which the
Executive is knowingly and intentionally furnishing to the
Company, including by way of illustration, and not in
limitation, the Executive's covenant not to engage in
competition with the Company, its Subsidiaries, their
Affiliates and their businesses, are (A) being made both in
consideration of the Company entering into this Agreement and
providing certain financial benefits set forth herein and (B)
necessary to protect the legitimate business interests of the
Company, its Subsidiaries and Affiliates and their respective
businesses.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing recitals, and the
mutual agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby
mutually acknowledged, the parties hereby agree as
follows:
ARTICLE 1
EMPLOYMENT RELATIONSHIP
1.1
Recitals .
The Recitals to this Agreement are hereby incorporated herein and
made a part hereof.
1.2
Employment .
Subject to the terms and conditions of this Agreement, the Company
hereby agrees to employ the Executive to serve as the Company's
Executive Vice President and Chief Financial Officer, and the
Executive hereby accepts such employment, and agrees to perform all
of her assigned duties and responsibilities to the best of her
abilities in a diligent, trustworthy, businesslike and efficient
manner, and in compliance with the Dyadic International, Inc. Code
of Business Conduct and Ethics, a copy of which appears on the
Company's website.
1.3
Duties; Reporting Authority
.
The Executive shall have the normal and customary duties,
responsibilities and authority of a Person holding the title and
job description set forth in Section 1.2 hereof, and, in addition,
shall perform such other duties on behalf of the Company, its
Subsidiaries and their Affiliates as may be assigned to her by the
Chief Executive Officer or by the Board. In connection with the
Executive's performance of her duties she shall report to the Chief
Executive Officer or to such other Person as the Chief Executive
Officer or the Board may designate from time to time.
1.4
Exclusive Employment .
While she is employed by the Company hereunder, the Executive
covenants to the Company that she will devote her entire business
time, energy, attention and skill to the Company, its Subsidiaries
and their Affiliates (except for permitted vacation periods and
reasonable periods of illness or other incapacity), and use her
good faith best efforts to promote the interests of the Company,
its Subsidiaries and their Affiliates. The foregoing shall not be
construed as prohibiting the Executive from spending such time as
may be reasonably necessary to attend to her personal affairs and
investments so long as such activities do not conflict or interfere
with the Executive's obligations and/or timely performance of her
duties to the Company, its Subsidiaries and their Affiliates
hereunder.
1.5
Executive Representations
.
The Executive hereby represents and warrants to the Company
that:
(a)
the execution, delivery and performance by the Executive of this
Agreement and any other agreements contemplated hereby to which the
Executive is a party do not and shall not conflict with, breach,
violate or cause a default under any contract, agreement,
instrument, order, judgment or decree to which the Executive is a
party or by which she is bound;
(b)
the Executive is not a party to or bound by any employment
agreement, non-competition agreement or confidentiality agreement
with any other Person (or if a party to such an agreement, the
Executive has disclosed the material terms thereof to the
Compensation Committee prior to the execution hereof and promptly
after the date hereof shall deliver a copy of such agreement to the
Compensation Committee); and
(c)
upon the execution and delivery of this Agreement by the Company,
this Agreement shall be the valid and binding obligation of the
Executive, enforceable in accordance with its terms.
The
Executive hereby acknowledges and represents that she has
consulted with independent legal counsel regarding her rights
and obligations under this Agreement and that she fully
understands the terms and conditions contained
herein.
1.6
Company Representations .
The Company hereby represents and warrants to the Executive
that:
(a)
the execution, delivery and performance by the Company of this
Agreement and any other agreements contemplated hereby to which the
Company is a party do not and shall not conflict with, breach,
violate or cause a default under any contract, agreement,
instrument, order, judgment or decree to which the Company is a
party or by which she is bound; and
(b)
upon the execution and delivery of this Agreement by the Executive,
this Agreement shall be the valid and binding obligation of the
Company, enforceable in accordance with its terms.
1.7
Indemnification .
(a)
By the Executive .
The Executive shall indemnify and hold the Company and its
Subsidiaries and Affiliates harmless from and against any and all
claims, demands, losses, judgments, costs, expenses, or liabilities
incurred by the Company and/or any of its Subsidiaries or
Affiliates arising out of or in connection with the breach of any
representation or warranty of the Executive contained in this
Agreement.
(b)
By the Company .
The Company shall indemnify and hold the Executive harmless from
and against any and all claims, demands, losses, judgments, costs,
expenses, or liabilities incurred by the Executive arising out of
or in connection with the breach of any representation or warranty
of the Company contained in this Agreement. Further, the Company
shall defend, indemnify and hold harmless the Executive (including
without limitation, the prompt advance payment of all reasonable
legal fees and expenses) to the fullest extent permitted by
applicable law and the by-laws of the Company.
ARTICLE 2
PERIOD OF EMPLOYMENT
2.1
Employment Period .
The Executive is an existing employee of the Company and shall
continue to be an employee of the Company until the date fixed by
the provisions of Section 2.2 hereof, subject to the early
termination provisions of Article V hereof (the "
Employment Period "),
it being acknowledged that the Company's fiscal year ends on
December 31, and that the Employment Period shall therefore be
denominated in calendar years.
2.2
Initial Term of Employment Period and Extension
Terms .
The Employment Period shall initially continue until December 31,
2008 (the "
Initial Term ").
The Employment Period shall be automatically extended for
successive calendar years of the Company following the expiration
of the Initial Term (each such one year period being hereinafter
referred to as an "
Extension Term ")
upon the same terms and conditions provided for herein unless
either party provides the other party with advance written notice
of its or her intention not to extend the Employment Period;
provided, however, that such notice must be delivered by the
non-extending party to the other party not later than ninety (90)
days prior to the expiration of the Initial Term or any Extension
Term, as the case may be.
ARTICLE 3
COMPENSATION
3.1
Annual Base Compensation
. Effective as of October 1, 2007, and during the balance of the
Employment Period the Company shall pay to the Executive an annual
base salary (the "
Annual Base Compensation ")
in the amount of $197,500. The Annual Base Compensation shall be
paid in regular installments in accordance with the Company's
general payroll practices, and shall be subject to all required
federal, state and local withholding taxes. The Executive's Annual
Base Compensation shall be reviewed by the Chief Executive Officer
and the Compensation Committee annually, and may, in the discretion
of the Chief Executive Officer and the Compensation Committee be
increased, provided that there shall be no obligation on the part
of the Company to increase the Executive's Annual Base
3.2
Discretionary Bonuses .
In the absolute discretion of the Compensation Committee, the
Executive may be entitled to receive a bonus, as and if the
Compensation Committee shall determine from time to
time.
3.3
Expenses .
During the Employment Period, the Executive shall be entitled to
reimbursement of all travel, entertainment and other business
expenses reasonably incurred in the performance of her duties for
the Company, upon submission of all receipts and accounts with
respect thereto, and approval by the Company thereof, in accordance
with the business expense reimbursement policies adopted by the
Company from time to time.
3.4
Vacation .
In respect of each calendar year falling within the Employment
Period, the Executive shall be entitled to four (4) weeks of
vacation, or if greater, the number of weeks of vacation proscribed
by the vacation policies of the Company then in effect from time to
time, provided that unused vacation may be used by the Executive in
the following calendar year only in accordance with and as
permitted by the Company's then current vacation policies in effect
from time to time.
3.5
Other Fringe Benefits .
During the Employment Period, if, as and when they are being
provided to other employees of the Company holding positions with
the Company comparable to the Executive's position, the Executive
shall also be entitled to receive health insurance benefits,
disability benefits and retirement benefits and other fringe
benefits.
ARTICLE 4
COVENANTS OF THE EMPLOYEE
4.1
Proprietary Rights .
The Executive hereby expressly agrees that all research, Biological
Materials, discoveries, inventions and innovations (whether or not
reduced to practice or documented), improvements, developments,
methods, designs, analyses, drawings, reports and all similar or
related information (whether patentable or unpatentable, and
whether or not reduced to writing), trade secrets (being
information about the business of the Company, its Subsidiaries and
their Affiliates which is considered by the Company or any such
Subsidiary or Affiliate to be confidential and is proprietary to
the Company or any such Subsidiary or Affiliate) and confidential
information, copyrightable works, and similar and related
information (in whatever form or medium), which (x) either (i)
relate to the Company's, its Subsidiaries' or their Affiliates'
actual or anticipated business, research and development or
existing or future products or services or (ii) result from any
work performed by the Executive for the Company, its Subsidiaries
or any of their Affiliates and (y) are conceived, developed, made
or contributed to in whole or in part by the Executive during the
Employment Period ("
Work Product ")
shall be and remain the sole and exclusive property of the Company,
such Subsidiary or such Affiliate, as the case may be. The
Executive shall communicate promptly and fully all Work Product to
the Company.
(a)
Work Made for Hire .
The Executive acknowledges that, unless otherwise agreed in writing
by the Company, all Work Product eligible for any form of copyright
protection made or contributed to in whole or in part by the
Executive within the scope of the Executive's employment by the
Company during the Employment Period shall be deemed a "work made
for hire" under the copyright laws and shall be owned by the
Company, its Subsidiaries or their Affiliates, as
applicable.
(b)
Assignment of Proprietary Rights .
The Executive hereby assigns, transfers and conveys to the Company,
and shall assign, transfer and convey to the Company, all right,
title and interest in and to all inventions, ideas, improvements,
designs, processes, trademarks, service marks, trade names, trade
secrets, trade dress, data, discoveries and other proprietary
assets and proprietary rights in and of the Work Product (the
"
Proprietary Rights ")
for the Company's exclusive ownership and use, together with all
rights to sue and recover for past and future infringement or
misappropriation thereof, provided that if a Subsidiary or
Affiliate of the Company is the owner thereof, such assignment,
transfer and conveyance shall be made to such Subsidiary or
Affiliate, as the case may be, which shall enjoy exclusive
ownership and use, together with all rights to sue and recover for
past and future infringement or misappropriation
thereof.
(c)
Further Instruments .
At the request of the Company (its Subsidiaries or their
Affiliates, as the case may be), at all times during the Employment
Period and thereafter, the Executive will promptly and fully assist
the Company (its Subsidiaries or their Affiliates, as the case may
be) in effecting the purpose of the foregoing assignment, including
but not limited to the further acts of executing any and all
documents necessary to secure for the Company (its Subsidiaries or
their Affiliates, as the case may be) such Proprietary Rights and
other rights to all Work Product and all confidential information
related thereto, providing cooperation and giving
testimony.
(d)
Inapplicability of Section 4.1 In Certain
Circumstances .
The Company expressly acknowledges and agrees that, and the
Executive is hereby advised that, this Section 4.1 does not apply
to any invention for which no equipment, supplies, facilities or
trade secret information of the Company, its Subsidiaries or any of
their Affiliates was used and which was developed entirely on the
Executive's own time, unless (i) the invention relates to the
business of the Company, its Subsidiaries or any of their
Affiliates or to the Company's, its Subsidiaries' or any of their
Affiliates' actual or demonstrably anticipated research or
development or (ii) the invention results from any work performed
by the Executive for the Company, its Subsidiaries or any of their
Affiliates.
4.2
Ownership and Covenant to Return Documents,
etc .
The Executive agrees that all Work Product and all documents or
other tangible materials (whether originals, copies or abstracts),
including without limitation, price lists, quotation guides,
outstanding quotations, books, records, manuals, files, sales
literature, training materials, customer records, correspondence,
computer disks or print-out documents, contracts, orders, messages,
phone and address lists, invoices and receipts, and all objects
associated therewith, which in any way relate to the business or
affairs of the Company, its Subsidiaries and their Affiliates
either furnished to the Executive by the Company, its Subsidiaries
or any of their Affiliates or are prepared, compiled or otherwise
acquired by the Executive during the Employment Period, shall be
the sole and exclusive property of the Company, such Subsidiaries
or such Affiliates, as the case may be. The Executive shall not,
except for the use of the Company, its Subsidiaries or any of their
Affiliates, use, copy or duplicate any of the aforementioned
documents or objects, nor remove them from the facilities of the
Company or such Subsidiaries or such Affiliates, as the case may
be, nor use any information concerning them except for the benefit
of the Company, its Subsidiaries and their Affiliates, either
during the Employment Period or thereafter. The Executive agrees
that she will deliver all of the aforementioned documents and
objects that may be in her possession to the Company on the
termination of her employment with the Company, or at any other
time upon the Company's request, together with her written
certification of compliance with the provisions of this Section 4.2
in the form of
Exhibit A to
this Agreement in accordance with the provisions of Section 5.3
hereof.
4.3
Non-Disclosure Covenant .
For a period commencing on the date of this Agreement and ending on
the last to occur of five (5) years following the date of execution
of this Agreement or three (3) years following the date of the
termination of the Employment Period (the "
Non-Disclosure Period "),
the Executive shall not, either directly or indirectly, disclose to
any "unauthorized person" or use for the benefit of the Executive
or any Person other than the Company, its Subsidiaries or their
Affiliates any Work Product or any knowledge or information, which
the Executive may acquire while employed by the Company (whether
before or after the date of this Agreement), relating to (i) the
financial, marketing, sales and business plans and affairs,
financial statements, analyses, forecasts and projections, books,
accounts, records, operating costs and expenses and other financial
information of the Company, its Subsidiaries and their Affiliates,
(ii) internal management tools and systems, costing policies and
methods, pricing policies and methods and other methods of doing
business, of the Company, its Subsidiaries and their Affiliates,
(iii) customers, sales, customer requirements and usages,
distributor lists, of the Company, its Subsidiaries and their
Affiliates, (iv) agreements with customers, vendors, independent
contractors, employees and others, of the Company, its Subsidiaries
and their Affiliates, (v) existing and future products or services
and product development plans, designs, analyses and reports, of
the Company, its Subsidiaries and their Affiliates, (vi) computer
software and data bases developed for the Company, its Subsidiaries
or their Affiliates, and trade secrets, research, records of
research, models, designs, drawings, technical data and reports of
the Company, its Subsidiaries and their Affiliates and (vii)
correspondence or other private or confidential matters,
information or data whether written, oral or electronic, which is
proprietary to the Company, its Subsidiaries and their Affiliates
and/or not generally known to the public (individually and
collectively "
Confidential Information "),
without the Company's prior written permission. For purposes of
this Section 4.3, the term "unauthorized person" shall mean any
Person who is not (i) an officer or director of the Company or an
employee of the Company for whom the disclosure of the knowledge or
information referred to herein is necessary for her performance of
her assigned duties, or (ii) an employee, officer or director of a
Subsidiary or Affiliate of the Company for whom the disclosure of
the knowledge or information referred to herein is necessary for
her performance of her assigned duties, or (iii) a Person expressly
authorized by the Company to receive disclosure of such knowledge
or information. The Company expressly acknowledges and agrees that
the term "Confidential Information" excludes information which is
(A) in the public domain or otherwise generally known to the trade,
or (B) disclosed to third parties other than by reason of the
Executive's breach of her confidentiality obligation hereunder or
(C) learned of by the Executive subsequent to the termination of
her employment hereunder from any other party not then under an
obligation of confidentiality to the Company, its Subsidiaries and
their Affiliates. Further, the Executive covenants to the Company
that in the Executive's performance of her duties hereunder, the
Executive will violate no confidentiality obligations she may have
to any third Persons.
4.4
Non-Interference Covenants
.
The Executive covenants to the Company that while the Executive is
employed by the Company hereunder and for the two (2) year period
thereafter (the "
Non-Interference Period "),
she will not, for any reason, directly or indirectly: (a) solicit,
hire, or otherwise do any act or thing which may induce any other
employee of the Company, its Subsidiaries or their Affiliates to
leave the employ or otherwise interfere with or adversely affect
the relationship (contractual or otherwise) of the Company, its
Subsidiaries and their Affiliates with any person who is then or
thereafter becomes an employee of the Company, its Subsidiaries and
their Affiliates; (b) do any act or thing which may interfere with
or adversely affect the relationship (contractual or otherwise) of
the Company, its Subsidiaries and their Affiliates with any vendor
of goods or services to the Company, its Subsidiaries and their
Affiliates or induce any such vendor to cease doing business with
the Company, its Subsidiaries and their Affiliates; or (c) except
for Competitive Activities (as defined in Section 4.5) engaged in
by the Employee after the expiration of the Non-Competition Period,
do any act or thing which may interfere with or adversely affect
the relationship (contractual or otherwise) of the Company, its
Subsidiaries and their Affiliates with any customer of the Company,
its Subsidiaries and their Affiliates or induce any such customer
to cease doing business with the Company, its Subsidiaries and
their Affiliates.
4.5
Covenant Not To Compete .
The Executive expressly acknowledges that (i) the Executive's
performance of her services for the Company hereunder will afford
her access to and cause her to become highly knowledgeable about
the Company's, its Subsidiaries' and their Affiliates' Confidential
Information; (ii) the agreements and covenants contained in this
Section 4.5 are essential to protect the Confidential Information,
business and goodwill of the Company, its Subsidiaries and their
Affiliates, and the restraints on the Executive imposed by the
provisions of this Section 4.5 are justified by these legitimate
business interests of the Company; and (iii) her covenants to the
Company, its Subsid
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