First Amendment To Employment Agreement By and Between BioCal Technology, Inc.
and Xx. Xxx Xxxxxxxx
This First Amendment to Employment Agreement (the "First Amendment") is
by and between BioCal Technology, Inc., (the "Company") and Xx. Xxx Xxxxxxxx
(the "Employee"), CEO.
Recitals And Agreements
(1) On May 1, 2003, the Company and Employee executed an Employment
Agreement (the "Employment Agreement").
(2) A while after the execution of the Employment Agreement a Directors' and
Officers' Insurance (the "D&O Insurance"), according to the Employment
Agreement section 2.4(d), was still not in place and effective. The parties to
this Agreement established to delay the effective date of the Employment
Agreement until such time the D&O Insurance became effective.
(3) The D&O Insurance became effective August 6, 2003 (per Xxxx X. Xxxxxxx,
Account Executive of XXXXX ADVANTAGE AMERICA, with Carolina Casualty).
(4) Except as expressly modified herein, the Employment Agreement is hereby
ratified and confirmed to be in full force and effect.
In witness hereof, this First Amendment to Employment Agreement is executed
this August 30th, 2003.
/s/Xx. Xxx Xxxxxxxx
Xx. Xxx Xxxxxxxx
CEO
/s/Xx. Xxxx X. Xxx
Xx. Xxxx X. Xxx
President and Chief Applications Officer
Second Amendment To Employment Agreement By and Between eGene, Inc., (formerly
BioCal Technology, Inc.) and Xx. Xxx Xxxxxxxx
This Second Amendment to the Employment Agreement (the "Second
Amendment") is by and between eGene, Inc., formerly BioCal Technology, Inc.,
(the "Company") and Xx. Xxx Xxxxxxxx (the "Employee"), Chief Executive Officer
and Director.
Recitals And Agreements
(1) On May 1, 2003, the Company and Employee executed an Employment
Agreement (the "Employment Agreement") which became effective on August 6,
2003, coinciding with the required Company's D & O Insurance effective date of
August 6, 2003. Refer to First Amendment to this Employment Agreement.
(2) As a result of a Merger, effective July 13, 2004, of BioCal
Technology Inc., into a publicly traded corporation (Centroid - CCMC), the
combined companies changed their name to xXxxx, Inc. The purpose was to better
reflect the strength of its technology and application platforms. eGene, Inc.
covenants that it has assumed all of the purposes, rights, privileges and all
and every other interest whatsoever, of this Employment Agreement of and with
Xx. Xxx Xxxxxxxx. And the Employment Agreement shall continue unaffected and
unimpaired in all respects whatsoever, between Xx. Xxx Xxxxxxxx and eGene Inc.
(3) Except as expressly modified herein, the Employment Agreement is hereby
ratified and confirmed to be in full force and effect.
In witness hereof, this Second Amendment to Employment Agreement is executed
this August 30, 2004.
/s/Xx. Xxx Xxxxxxxx
Xx. Xxx Xxxxxxxx
Chief Executive Officer and Director
/s/Xx. Xxxx X. Xxx
Xx. Xxxx X. Xxx
Executive Vice President and Director
/s/Xxxxxx Xxxxxxxxxxx
Xxxxxx Xxxxxxxxxxx
Executive Vice President and Director
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made this 1st day of May, 2003 (this
"Agreement"), between BioCal Technology Inc., ("Employer"), and Xx. Xxx
Xxxxxxxx ("Employee"), also jointly referred to hereafter as the ("parties").
In consideration for the benefits and promises set forth herein the parties
agree as follows:
1. Employment.
1.1 Employment Period: The term of employment will be for the
period commencing on the date of this Agreement and ending May 1, 2006 ("the
Term"), unless sooner terminated in accordance with the terms and conditions
of this Agreement. If Employee's employment by Employer continues after the
end of the Term, such employment will continue on the terms and conditions set
forth in this Agreement but will be terminable by either party at any time
with or without cause or advance notice.
1.2 Position. Employer hereby employs Employee, and Employee
agrees to be employed as Chief Executive Officer (CEO) of Employer. During
the Term of this Agreement, Employee will also serve as member of the Board of
Directors in accordance with Employer's Articles of Incorporation and Bylaws.
1.3 Duties.
(a) Employee will perform such executive duties for
Employer and for any of Employer's affiliates, consistent with his position
under this Agreement, and as may be assigned him from time to time by
Employer's Board of Directors.
(b) The Board of Directors will have review and veto
rights regarding hiring, promotion, demotion, or termination and setting
salary of Employee.
(c) Employee shall comply with all rules, policies and
procedures of Employer as modified from time to time.
(d) Employee will perform all of Employee's
responsibilities in compliance with applicable laws.
(e) Duties are carried out at Employer's location in
Orange, CA; Davie, FL.; and other ancillary locations of the Employer.
1.4 Permitted Outside and Travel Activities
(a) Employee may serve as a director of other non-
directly and materially competing entities, and generally not exceeding three
(3) such offices.
(b) Travel. During the term of Employee's employment,
Employee will be granted to travel between the Employer's various causes to be
at (ref.: section 1.3 (e), and all other customary, agreed upon, and necessary
business related travels commensurate with Employee's position of CEO.
2. Compensation and Stock Options.
2.1 Base Salary. Employer will pay to Employee a base salary
("Base Salary") at an annual rate of One Hundred and forty five Thousand
Dollars ($145,000), payable in such installments (but in no event less than
monthly), subject to withholdings and deductions as required or permitted by
law, as is Employer's policy with respect to other employees. Employee's Base
Salary will be reviewed annually by the Board of Directors.
2.11 Salary deferral and accrual. In the event that the
Employer's available finance/cash resources do not reasonably allow for the
regular payment of Employee's base compensation, Employee agrees to have up to
60% of his base salary deferred/accrued, but that portion will be become due
and payable to Employee at the next reasonably available finance/cash position
of the Employer.
2.2 Incentive Bonuses.
(a) Employer pays Employee an annual cash bonus of up to
50% as per recommendation of the Board of Directors. This bonus is payable
during the month of December, on or before December 31, of each year of
employment.
(b) Employer will grant Employee an additional annual
bonus in the form of the Employer's Stocks or Incentive Stock Options in the
event Employer and/or Employee achieves during the preceding year certain
goals set forth in a plan to be approved by the Board of Directors.
2.3 Incentive Stock Options. Employer, subject to the approval
of Board of Directors, has granted and the Employee has accepted a five-year
Incentive Stock Option to purchase 400,000 shares of Common Stock at a
purchase price per share of $0.20. Vesting of options: 40% immediate vesting
as sign-in incentive. The reminder of the options (60%) will vest over 24
months at the rate of 12.5% per quarter. All Incentive Stock Options granted
will participate fully in any and all stock splits or stock dividends.
2.4 Other Benefits and Reimbursements.
(a) Certain Benefits. Employee will be eligible to
participate in all employee benefit programs established by Employer that are
applicable to management personnel such as medical/dental /pension/long term
care/life insurance plans on a basis commensurate with Employee's position and
in accordance with Employer's policies from time to time, but nothing herein
shall require the adoption or maintenance of any such plan. Employee has the
option of carrying under his own name coverages, and being reimbursed by the
Employer.
(b) Vacations, Holidays and Expenses. For the duration of
Employee's employment hereunder, Employee will be provided vacation [four
weeks (4)], and such holidays, sick leave as Employer makes available to its
management personnel generally. If Employee does not use all of his year's
vacation time, such unused time will accrue to Employee's benefit and may be
added to next year's vacation.
(c) Employer will reimburse Employee for those usual and
customary expenses incurred in connection with his fiduciary, CEO, BoD
employment, and related duties with the Employer.
(d) Directors' and Officers' Liability Insurance.
Employee is named as an insured, covered person, or an additional insured
under any of the Company's D & O liability insurance policy.
(e) Car allowance monthly: $..TBA...After Tax.
(d) Reasonable and customary future moving expenses.
3. Termination or Discharge by Employer.
3.1 Either party to this agreement may terminate employment at
any time.
3.2 Termination for Cause:
As used herein the term "Cause" shall mean (i) acts of fraud, embezzlement or
other material and deliberate acts of injury to the Employer; (ii) the
refusal, disability or incapacity as determined by a health care provider
acceptable to the Board of Directors, or the failure of the Employee to follow
or comply with the reasonable and lawful directives of the Board of Directors.
3.3 Other Grounds for Termination/Resignation:
(A) Employee acknowledges and understands that the Employer may terminate
Employee's employment if any of the following events occur (i) the Employer is
sold; (ii) the Employer becomes a subsidiary of a non-related party; (iii) the
Employer experiences a 25% or more change in ownership (but not as a result of
an IPO); (iv) the Employer elects to have a new CEO. If any of the foregoing
events occur and the Employer elects to terminate Employee's employment,
Employee will be entitled to (a) his then current salary for twelve (12)
months; (b) incentive compensation, pro-rated on a calendar year
basis; (c) continuation of all of his insurances at the Company's expense for
twelve (12) months; (d) the immediate vesting of any unvested stock options
along with the five years exercise right of all options.
(B) The Employer acknowledges und understands that the Employee may resign
his employment with the Employer if any one of the following events occur: (i)
The Employer is sold; (ii) the Employer becomes a subsidiary of a non-related
party; (iii) the Employer experiences a twenty five (25%) percent or more
change in ownership (but not as a result of an IPO); (iv) the Employer
commits any act of fraud, misrepresentation or bad faith against the Employee;
(v) his duties, reporting relationships or responsibilities are materially
reduced; (vi) the Employer elects to have a new CEO. If any of the events
described in clauses (i), (ii), (iii) occur and Employee elects to resign,
Employee shall be entitled to only (a) his then current salary for six (6)
months; (b) any unpaid incentive compensation pro-rated on a six (6) month
basis; (c) continuation of all of his insurances at the Employer's expense for
six (6) months. Furthermore, any unvested Stock Options shall be vested
immediately along with a five (5) years exercise rights of all his options. If
the events described in clauses (iv) or (v) or (vi) occur and Employee elects
to resign, he shall be entitled to the separation benefits in Section 3.3
(A)
4. Confidentiality
Employee shall not use or disclose any of the Confidential Information during
or after the Employment Period, except for the sole and exclusive benefit of
the Employer. Employee agrees that the Employer would be injured by any breach
of Employee's confidentiality agreement, and that the Employer may
specifically enforce the provisions of this Section by injunction or similar
remedy by any court of competent jurisdiction.
5. Non-Competition:
(A) Employee acknowledges that services to be rendered are of a special
character and have a value to the Employer. In view of the value of the
services, and because of the Confidential Information to be obtained by or
disclosed to Employee he covenants and agrees not, during the term of his
employment by Employer and for a period of one (1) year after termination of
such employment for any reason whatsoever, will not, directly or indirectly,
(a) engage as owner, employee, or otherwise, in the operations, management or
supervision of any type of business or enterprise engaged in any business
which is materially competitive with any business of Employer (b) solicit
orders from any current or past customer of Employer for products or services
offered or sold by, or competitive with products or services offered or sold
by, the Employer, (d) solicit any of Employers employees to leave the employ
of the Employer or hire or negotiate for the employment of any employee of the
Employer.
6. Dispute Resolution. Except for the right of Employer and Employee
to seek injunctive relief in court, any controversy, claim or dispute of any
type arising out of or relating to Employee's employment or the provisions of
this Agreement shall be resolved in accordance with this Section 6 regarding
resolution of disputes. Matters subject to these provisions include, without
limitation, claims or disputes based on statute, contract, common law and tort
and will include, for example, matters pertaining to termination,
discrimination, harassment, compensation and benefits. Matters to be resolved
under these procedures also include claims and disputes arising out of
statutes such as the Fair Labor Standards Act, Title VII of the Civil Rights
Act, the Age Discrimination in Employment Act, and the Law against
Discrimination. Nothing in this provision is intended to restrict Employee
from submitting any matter to an administrative agency with jurisdiction over
such matter. All discussions connected with this mediation provision will be
confidential and treated as compromise and settlement discussions. Reasonable
mediator's and attorney's fees will be paid by Employer.
7. Representation of Employee. Employee represents and warrants to
Employer that Employee is free to enter into this Agreement and has no
material commitment, arrangement or understanding to or with any party that
restrains or is in conflict with Employee's performance of the covenants,
services and duties provided for in this Agreement
8. Notices. Any notice required or permitted to be given hereunder
is sufficient if in writing and delivered by registered or certified mail to
the then existing legal address..
9. Reformation; Severability. If any provision of this Agreement or
compliance by any of the parties with any provision of this Agreement
constitutes a violation of any law, or is or becomes unenforceable or void,
then such provision, to the extent only that it is in violation of law,
unenforceable or void, shall be deemed modified to the extent necessary so
that it is no longer in violation of law, unenforceable or void, and such
provision will be enforced to the fullest extent permitted by law. If such
modification is not possible, said provision, to the extent that it is in
violation of law, unenforceable or void, shall be deemed severable from the
remaining provisions of this Agreement, which provisions will remain binding
on the parties.
10. Waivers. No failure on the part of either party to exercise, and
no delay in exercising any right or remedy hereunder will operate as a waiver
thereof; nor will any single or partial waiver of a breach of any provision of
this Agreement operate or be construed as a waiver of any subsequent breach;
nor will any single or partial exercise of any right or remedy hereunder
preclude any other or further exercise thereof or the exercise of any other
right or remedy granted hereby or by law.
12. Governing Law. The validity, construction and performance of this
Agreement shall be governed by the laws of Florida and California
respectively, without regard to the conflicts of law provisions of such laws.
13. Delegation of Duties. Employee is permitted to delegate/outsource
tasks that fall into the ordinary scope of CEO's and broad industry/business
practices to accomplish the Employer's objective and protect its interests;
however, Employee can not delegate his main task without the approval of the
Board of Directors.
19. Survivability. The parties acknowledge and agree that all
obligations and rights under this Agreement that would naturally survive the
expiration or termination of this Agreement.
19. Entire Agreement. This Agreement contains the entire agreement of
the parties with respect to the relationship between Employee and Employer and
supersedes all prior Employment Agreements. This Agreement may be changed only
by an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought, and any such
modification must be signed by the President and CEO, or a designated member
of the Board of Directors in combination with either CEO or President, in
order to be effective.
IN WITNESS WHEREOF, the parties have duly signed and delivered this
Agreement as of the day and year first above written.
EMPLOYER - BioCal Technology Inc.
By/s/Xx. Xxxx X. Xxx
Name: Xx. Xxxx X. Xxx
Title: President and chief Applications Officer
By/s/Xxx Xxxxxxxx
Name: Xxx Xxxxxxxx Ph.D., CPA
Title: CEO
