Exhibit 10.1
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS EXECUTIVE EMPLOYMENT
AGREEMENT (
“Agreement” )
is made and entered into this 10th day of December, 2007 (the
“ Effective Date
”) by and between GENOPTIX, INC. , a Delaware
corporation ( “Company” ), and
CHRISTIAN V. KUHLEN, M.D., ESQ. ( “Executive” ).
RECITALS:
Executive is currently employed by the Company
as its Vice President, General Counsel and Corporate
Secretary.
The
Company and Executive desire to formally state the terms and
conditions of Executive’s employment by the Company and to
provide Executive with certain benefits upon a qualifying
termination of such employment.
The
Company desires to employ Executive in the executive capacity
hereinafter stated, and the Executive desires to enter into the
employ of the Company in such capacity for the period and with the
terms and conditions set forth herein.
AGREEMENT:
NOW, THEREFORE,
in consideration of the
promises and the covenants set forth in this Agreement and for
other valuable consideration, the parties hereby agree as
follows:
1.
Employment.
The Company hereby employs
Executive as Vice President, General Counsel and Corporate
Secretary, assigned with responsibilities to do and perform all
services, acts, or things necessary or advisable to manage and
conduct the business of the Company, subject at all times to the
policies set by the Board of Directors of the Company (the
“Board” ), and to the consent of the Board when
required by the terms of this contract. Executive hereby
accepts such employment and agrees to devote such time and energies
as appropriate to fulfill all responsibilities to the
Company. Executive shall be employed at will.
2.
Compensation.
In
consideration for all services rendered by Executive under this
Agreement, Executive shall receive the compensation described in
this Section 2. All such compensation shall be paid
subject to appropriate tax withholding and similar
deductions.
(a)
Salary.
Executive shall be paid an
initial annual salary of $235,000, payable in accordance with the
Company’s normal practices in the payment of salary and wages
practices, in equal installments, but not less than 26 increments
annually.
(b)
Executive Benefit and
Incentive Compensation Plans. During employment hereunder, Executive
shall be entitled to receive those benefits which are routinely
made available to executive officers of the Company, including
participation in any executive stock ownership plan, profit sharing
plan, incentive compensation or bonus plan, retirement plan,
Company-provided life insurance, or similar executive benefit plans
maintained or sponsored by the Company. The Company
shall not take any action that would substantially diminish
the
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aggregate value of Executive’s fringe
benefits as they exist as of the Effective Date of this Agreement
or as the same may be increased from time to time.
(c)
Expense Reimbursement.
The
Company shall promptly reimburse Executive for all reasonable
expenses necessarily incurred during conduct of Company business,
and for which adequate documentation is presented, but in no event
later than December 31 of the year following the year in which
the expense was incurred.
(d)
Personal Time Off.
Executive shall be entitled to paid time off in
accordance with the Company’s policies applicable to
executives.
3.
Termination.
Executive’s
employment may be terminated as follows, with the following
effects:
(a)
Death.
Executive’s
employment shall terminate immediately upon the Executive’s
death, in which event the Company’s only obligations
hereunder shall be to pay all compensation and expense
reimbursements owing for services rendered and reasonable business
expenses incurred by the Executive prior to the date of his
death.
(b)
Disability.
In the event the Executive
is disabled from performing his assigned duties under this
agreement due to illness or injury for a period in excess of
forty-five (45) consecutive days or a period or periods of more
than one hundred and twenty (120) days in the aggregate in any
twelve month period, the Board, in its sole discretion, may
terminate Executive’s employment immediately upon written
notice to Executive, in which event the Company’s only
obligations hereunder shall be to pay all compensation and expense
reimbursements owing for services rendered and reasonable business
expenses incurred by the Executive prior to the effective date of
termination.
(c)
For
Cause. The Company may terminate Executive’s
employment for Cause immediately upon written notice from the Board
to Executive. For purposes of this Agreement, “Cause” means the
occurrence of any one or more of the following:
(i) Executive’s conviction of or plea of nolo contendere
to any felony crime involving fraud, dishonesty or moral turpitude
under the laws of the United States or any state thereof;
(ii) Executive’s attempted commission of, or
participation in, a fraud or act of dishonesty against the Company;
(iii) Executive’s intentional, material violation of any
contract or agreement between the Participant and the Company or of
any statutory duty owed to the Company; (iv) Executive’s
unauthorized use or disclosure of the Company’s confidential
information or trade secrets; or (v) Executive’s gross
misconduct. In the event Executive’s employment is
terminated for Cause, the Company shall have no further obligations
to Executive other than to pay all compensation and expense
reimbursements owing for services rendered and reasonable business
expenses incurred by Executive prior to the effective date of such
termination.
(d)
Without Cause.
The
Company in its sole discretion may terminate Executive’s
employment without cause or prior warning immediately upon written
notice from the Board to Executive, in which event the Company
shall pay to Executive all compensation and expense reimbursements
owing for services rendered and reasonable business expenses
incurred by Executive prior to the effective date of termination,
and, contingent upon
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Executive’s delivery to the Company of an
effective Release and Waiver as provided in
Section 3(e) below, provide the following benefits to
Executive: (i) severance consisting of continued payment
of Executive’s base salary at the rate in effect as of the
effective date of termination, less standard deductions and
withholdings, for a period of six (6) months following the
effective date of termination, subject to acceleration of such
payments into a single lump-sum cash severance payment in the event
a Change in Control (as defined below) of the Company has occurred
prior to the date of termination or a Change in Control occurs
within ninety (90) days after the date of termination of
Executive’s employment; (ii) upon timely election by
Executive complying with COBRA, payment of all premiums required to
continue Executive’s medical, dental and vision insurance
coverage pursuant to COBRA for a period of six (6) months
following the date of termination; and (iii) immediately
accelerate the vesting of all options to purchase the common stock
of the Company granted to Executive prior to the effective date of
such termination (the “Options” ) such that
Executive shall be deemed vested as to the same number of shares as
if Executive had continued to be employed by the Company for a
period of six (6) months following the effective date of such
termination (subject to the additional accelerated vesting provided
in Section 4(b) in the event Executive is terminated by
the Company without Cause within 90 days prior to or within 13
months following the effective date of a Change in Control).
As a condition to receiving the continuing benefits specified in
this Section 3(d), during the six (6) month period
following the Executive’s termination date, Executive shall
not engage in any employment or business activity that is directly
competitive with the Company’s business activities as of such
termination date and Executive shall not induce any employee of the
Company to leave the employ of the Company .
(e)
Release and Waiver.
As a condition to
receiving the benefits specified in Sections 3(d) and
4(b) of this Agreement, Executive must deliver to the Company
a fully effective waiver and release of claims in the form attached
hereto as Exhibit A (the “ Release and Waiver ”) within the
time frame set forth therein, but in no event later than forty-five
(45) days following the Executive’s termination
date.
(f)
Voluntary Termination by
Executive. Executive may terminate his employment
hereunder at any time, whether with or without cause, effective
sixty (60) days after delivery of written notice of such
termination to the Company, except for Executive’s Emergency
Need. “Emergency
Need” , as used in this Section, is defined to be the
advent of illness or related health issues in Executive or his
immediate family which a medical doctor would conclude poses a
mortal health risk to that person. The Company shall have the
option, in its sole discretion, to specify an earlier termination
date than that provided by Executive in the written notice.
Upon voluntary termination pursuant to this Section, the Company
shall have no further obligations to Executive other than to pay
all compensation and expense reimbursements owing for services
rendered and reasonable business expenses incurred by Executive
prior to effective date of termination as determined by the
Company.
(g)
Returning Company
Documents. In the event of any termination of
Executive’s employment hereunder, Executive shall, prior to
or on such termination deliver to the Company (and will not
maintain possession of or deliver to anyone else) any and all
devices, records, data, data bases software, software
documentation, laboratory notebooks, notes, reports, proposals,
lists, customer lists, correspondence, specifications, drawings,
blueprints, sketches,
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materials, equipment, other documents or
property, or reproductions of any of the above aforementioned items
belonging to the Company, its successors or assigns.
4.
Change
in Control.
(a)
Option
Acceleration Upon A Change in Control. Effective immediately upon the
closing of a Change in Control of the Company, the vesting of fifty
percent (50%) of the then unvested shares of Common Stock subject
to the Options shall be accelerated in full and shall be fully
vested and immediately exercisable (and, if any Options have been
early exercised by Executive, the reacquisition or repurchase
rights held by the Company with respect to the shares of Common
Stock subject to such acceleration shall lapse in full, as
appropriate). Thereafter, the balance of the Options’
unvested shares of Common Stock subject to such Options shall vest
in six (6) equal monthly installments over the six-month
period immediately following the closing of the Change in Control,
except as provided in Section 4(b) below.
(b)
Benefits Upon
Termination. In the event that Executive’s
employment by the Company is terminated without Cause (as defined
above) or Executive terminates his employment for Good Reason (as
defined below) within ninety (90) days prior to or within thirteen
(13) months following the effective date of a Change in Control (as
defined below) of the Company, contingent upon Executive’s
delivery to the Company of a fully effective Release and Waiver as
provided in Section 3(e), the Executive shall be entitled to
the benefits and payments specified in Sections 3(d)(i) and
3(d)(ii) above, and the vesting of the unvested shares of
Common Stock subject to the Options shall immediately accelerate in
full such that all of the shares of Common Stock subject to such
Options shall be fully vested and immediately exercisable (and, if
any Options have been early exercised by Executive, the
reacquisition or repurchase rights held by the Company with respect
to the shares of Common Stock subject to such acceleration shall
lapse in full, as appropriate).
(c)
Change
in Control. “Change in
Control” means the occurrence, in a single transaction
or in a series of related transactions, of any one or more of the
following events:
(i)
any Exchange Act Person
(as defined below) becomes the beneficial owner, directly or
indirectly, of securities of the Company representing more than
fifty percent (50%) of the combined voting power of the
Company’s then outstanding securities other than by virtue of
a merger, consolidation or similar transaction.
Notwithstanding the foregoing, a Change in Control shall not be
deemed to occur (A) on account of the acquisition of
securities of the Company by an investor, any affiliate thereof or
any other Exchange Act Person from the Company in a transaction or
series of related transactions the primary purpose of which is to
obtain financing for the Company through the i
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