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Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT dated January 1, 2007 by and
between MEDTOX Scientific, Inc., a corporation (the "Company") and
B. Mitchell Owens a resident of North Carolina ("Executive").
WHEREAS, the Company desires to employ Executive
upon and subject to the terms and conditions set forth in this
agreement, and Executive desires to render services for the Company
on such terms and conditions.
NOW, THEREFORE, in consideration of the premises
and the respective undertakings of the Company and Executive set
forth below, the Company and Executive agree as follows:
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1.
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Definitions.
The following defined terms
have the respective meanings described below:
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1.1
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Change in Control.
A "Change in
Control" of the Company shall mean any of the following:
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(a)
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a change in control of a nature
that would be required to be reported in response to Item 6(c) of
Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), whether or
not the Company is then subject to such reporting requirement;
or
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(b)
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a merger or consolidation to
which the Company is a party if, following the effective date of
such merger or consolidation, the individuals and entities who were
shareholders of the Company prior to the effective date of such
merger or consolidation have beneficial ownership (as defined in
Rule 13d-3 under the Exchange Act) of less than fifty percent (50%)
of the combined voting power of the surviving corporation following
the effective date of such merger or consolidation; or
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(c)
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when, during any period of
twenty-four (24) consecutive months during the term of this
Agreement, the individuals who, at the beginning of such period,
constitute the Board (the "Incumbent Directors") cease for any
reason other than death to constitute at least a majority thereof,
provided, however, that a director who was not a director at the
beginning of such twenty-four (24) month period shall be deemed to
have satisfied such twenty-four (24) month requirement, and be an
Incumbent Director, if such director was elected by, or on the
recommendation of or with the approval of, at least two-thirds of
the directors who then qualified as Incumbent Directors either
actually, because they were directors at the beginning of such
twenty-four (24) month period, or by prior operation of this
Section.
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1
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1.2
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Potential Change in
Control. A "Potential Change in Control" of the
Company shall be deemed to have occurred if:
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(a)
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the Company enters into an
agreement, the consummation of which would result in the occurrence
of a Change in Control;
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(b)
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any person (including the
Company) publicly announces an intention to take or to consider
taking actions which if consummated would constitute a Change in
Control;
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(c)
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any person becomes the beneficial
owner, directly or indirectly, of securities of the Company
representing twenty-five percent (25%) or more of the combined
voting power of the Company's then outstanding securities;
or
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(d)
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the Board adopts a resolution to
the effect that, for the purposes of this Agreement, a "Potential
Change in Control" of the Company has occurred.
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1.3
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Cause
. Termination by the Company of the Executive's
employment for "Cause" shall mean termination upon:
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(a)
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the willful and continued failure
by the Executive to substantially perform an Executive's duties
with the Company (other than any such failure resulting from
Executive's incapacity due to physical or mental illness) after a
written demand for substantial performance is delivered to the
Executive by the Company's Board of Directors or CEO, which demand
specifically identifies the manner in which the Company believes
that Executive has not substantially performed Executive's duties;
or
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(b)
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the willful engaging by the
Executive in conduct, which is demonstrably and materially
injurious to the Company, monetarily or otherwise.
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For purposes of this Section 1.3, no act, or
failure to act, on the Executive's part shall be deemed "willful"
unless done, or omitted to be done, by the Executive not in good
faith and without reasonable belief that the Executive's action or
omission was in the best interest of the Company.
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1.4
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Company. The term
"Company" means MEDTOX Scientific, Inc. and any successors and
assigns of the Company.
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2.
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Employment.
The Company hereby employs Executive and Executive
accepts such employment and agrees to perform services for the
Company, for the period and upon the other terms and conditions set
forth in this agreement.
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3.
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Term of Employment. The
term of Executive's employment hereunder ("Term of Employment")
shall commence on the date hereof and shall continue for a one-year
period ending on December 31, 2007 (unless earlier terminated in
accordance with the provisions of Section 12 of this agreement).
The Term of Employment shall be automatically extended by
successive 12-month terms thereafter.
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4.1
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Service with Company.
During his/her Term of Employment, Executive agrees to perform such
reasonable employment duties, consistent with the terms of this
agreement, as the Board of Directors of the Company or CEO shall
assign to him/her from time to time, such duties and employment
responsibilities shall be performed in accordance with the
Company's rules, regulations and instructions now in force or which
may be adopted by the Company in the future.
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4.2
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Performance of Duties.
During his/her Term of Employment, the Executive agrees to serve
the Company exclusively and to the best of his/her ability. The
Executive shall have active involvement and be fully committed to
the business and affairs of the Company, and shall devote one
hundred percent of his/her business time to the affairs of the
Company, except for (i) vacations and excused leaves of absence as
permitted in accordance with Company policy; (ii) service on the
Boards of Directors of other companies at the discretion of the
Company's Board of Directors; (iii) service on the Boards of
Directors of not- for-profit entities without approval of the
Company's Board of Directors; and (iv) a reasonable amount of time
during the business day to handle his/her personal affairs.
Executive hereby confirms that he is under no contractual
commitments inconsistent with his/her obligations set forth in this
agreement and that during his/her Term of Employment, except as
provided herein, he will not render or perform services for any
other corporation, entity or person, nor will he become involved in
the operations or management of any other commercial corporation,
firm, entity or person.
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5.1
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Base Salary. Initial
base compensation for all services to be rendered by the Executive
under this agreement during the Term of Employment, shall be an
annual base salary of $181,125 per year, which salary shall be paid
in accordance with the Company's normal payroll procedures and
policies. This base salary will be reviewed annually.
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5.2
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Annual Bonus Plan and
LTIP. Executive shall participate in the MEDTOX Scientific,
Inc. Executive Incentive Compensation Plan and Long Term Incentive
Plan (LTIP). The Plans are incorporated herein by
reference.
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5.3
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Benefits. Executive
shall be entitled to such Company-sponsored benefits as are
provided to executive employees of the Company, subject to the
terms and conditions of the applicable policies and/or
plans.
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5.4
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SERP. Executive may be
entitled to participate in the MEDTOX Supplemental Executive
Retirement Plan (SERP), as determined by the Compensation Committee
of the Board of Directors. The Plan is incorporated herein by
reference.
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6.
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Executive's Agreement to
Continue Employment for Six (6) Months. The Executive agrees
that, subject to the terms and conditions of this Agreement, in the
event of a Potential Change in Control of the Company occurring
during the Term of Employment, if so requested by the Company,
Executive will remain in the employ of the Company for a period of
six (6) months after the occurrence of such Potential Change in
Control of the Company. If more than one "Potential Change in
Control" occurs during the Term of Employment, the provisions of
this Section 6 shall be applicable to each "Potential Change of
Control" occurring prior to the occurrence of a Change in
Control.
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7.
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Severance Payments. If
during the Term of Employment, (i) whether or not a Change in
Control or Potential Change in Control has occurred, the Company
terminates the employment of Executive other than for Cause, (ii) a
Change in Control or Potential Change in Control has occurred and
Executive has complied with Section 6 of this Agreement, or (iii)
the Executive's duties, responsibilities or authority (including
status, office, title, reporting relationships or working
conditions) have been materially altered from those in effect on
the date of this Agreement, (iv) the Executive has been required to
relocate to an office or related entity more than fifty (50) miles
from the office where Executive was located on the date hereof, or
(v) the Company has breached any of its obligations under this
Agreement, then, in any such event (at the Executive's option in
the case of any event described in clause (ii) through (v) above),
the Executive's employment hereunder shall cease and Executive
shall be entitled to the following benefits:
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(a)
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the Company will pay to Executive
the Executive's then current base salary for the twelve (12) month
period following the date of such termination subject to applicable
withholdings and in accordance with the regular payroll practices
of the Company and the Company will also pay one times the annual
target bonus described in the Executive Incentive Compensation
Plan. In the case of a Change in Control, Potential Change in
Control, or termination under Section 12.1(b) the payment period
for salary continuation will be eighteen (18) months, and in
addition a payment of one and one half (1.5) times the target
annual bonus currently in effect. Payments under this section do
not include the LTIP; and
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(b)
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continuous coverage, at the
Company's expense, under any group health plan and other benefits
described in Section 5.3 maintained by or on behalf of the Company,
in which Executive participated as of the Date of Termination, for
the twelve (12) month period following the date of termination,
except that in the case of Change in Control, Potential Change in
Control or termination under Section 12.1(b) coverage will be for
eighteen (18) months following the date of termination;
and
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(c)
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continued participation in the
Annual Bonus Plan referenced in Section 5.2, on a pro rata basis
for the calendar year in which termination under Sections 7 or
12.1(b) occurs; and
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(d)
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if Executive is terminated for
cause, no payments are due under this section.
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Executive's right to continued coverage under
this section shall in no way reduce or limit any continuation
coverage under such group health plan to which Executive or any of
Executive's qualified beneficiaries are entitled under the
provisions of the Consolidated Omnibus Budget Reconciliation Act of
1985 ("COBRA") or Minnesota Statutes §§ 61A.092 and
62A.17 et seq. This extension of coverage, however, shall be
coordinated with, and shall be provide
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