EXHIBIT 10.29
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is effective as of
February 1, 2002
AMONG:
VISIBLE GENETICS CORPORATI0N, a corporation duly
incorporated under the laws of the State of Delaware and
having its principal office in the, City of Suwanee, in the
State of Georgia,
(the "Employer")
-and-
VISIBLE GENETICS INC., a corporation duly incorporated under
the laws of the Province of Ontario and having its head
office in the City of Toronto, in the Province of Ontario,
("VGI")
-and-
XXXXXXX X. XXXX, an individual residing in the City of Palo
Alto, in the State of California,
(the "Executive")
RECITALS:
A. The Employer is a wholly owned subsidiary of VGI.
B. The Executive was employed by the Employer effective April 1, 1999.
C. The Executive was appointed as President and Chief Executive Officer of VGI
effective July 7, 1999.
D. VGI and the Employer are parties to a Secondment Agreement under which the
Executive may be seconded to VGI from time to time.
E. The Employer, VGI and Executive entered into an employment agreement dated
July 7, 1999.
F. The Employer, VGI and the Executive desire to amend and restate the
Employment Agreement effective as of February 1, 2002.
G. The Employer, VGI and the Executive have entered into an Escrow Agreement
dated July 7, 1999 in connection with the Employment Agreement (the "Escrow
Agreement").
THEREFORE, the parties agree as follows:
ARTICLE 1
POSITION, DUTIES AND REMUNERATION
1.1 EMPLOYMENT
Subject to the provisions of Article 5 hereof, the Employer agrees to continue
to employ the Executive and the Executive agrees to remain in the employ of the
Employer and to act as President and Chief Executive Officer ("CEO") of VGI. The
Executive will be paid a gross annual salary, payable in United States currency
of three hundred twenty-four thousand dollars (U.S. $324,000.00) paid payable in
accordance with the Employer's normal payroll policy.
1.2 DUTIES
The Executive agrees to perform faithfully the duties of President and CEO and
all other lawful instructions and duties as the Employer or VGI may from time to
time reasonably require commensurate with his position.
1.3 FULL TIME AND ATTENTION
The Executive agrees to use his best efforts to promote the interests of the
Employer and VGI, to devote his full time and attention to the business of the
Employer and VGI and to adhere to the instructions and directives of the
Employer and VGI.
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1.4 EMPLOYMENT CONDITIONS
The Executive agrees to adhere to and abide by the Employer's policies, as
amended from time to time, regarding holidays, sick leave, hospital insurance,
and other fringe benefits. The Executive shall be bound by and shall faithfully
observe and abide by all of the rules and obligations of the Employer from time
to time in force which are brought to his notice, or of which he should
reasonably be aware of.
1.5 ANNUAL REVIEW
The Employer agrees in its sole discretion to review the salary and benefits
payable to Executive hereunder annually.
1.6 BENEFITS
In addition to salary, for the performance of his services hereunder, the
Executive shall be entitled to participate in all of the Employer's benefit
plans generally available to its Executives, including group, life, medical,
dental, hospital, long-term disability, accidental death and dismemberment
insurance benefit plans. In the event the Employer adopts any new benefit plans,
pensions or perquisites, the Executive shall have the right to participate on a
basis equivalent to other Executives of the Employer. All plans shall be
administered and governed by their respective terms.
1.7 REIMBURSEMENT FOR EXPENSES
Provided that the Executive submits receipts satisfactory to either the Chair of
the Board of Directors of the Employer (the "Board") or the Chair of the
Compensation Committee of the Board, the Employer shall reimburse the Executive
forthwith for all proper and reasonable out-
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of-pocket expenses actually incurred by the Executive in the performance of his
duties, including all business-related travel expenses.
1.8 APARTMENT ACCOMMODATION
The Employer shall make available to the Executive apartment accommodation for
the occasions in which the Executive must travel for business-related reasons to
Toronto.
1.9 TAX MATTERS
(a) The Employer will provide the Executive with a one-time payment during
calendar year 2000 of Canadian ten thousand dollars (Cdn. $10,000.00)
in order that the Executive may obtain income tax advice.
(b) The Employer will reimburse the Executive with reasonable expenses
each year for income tax return preparation.
(c) To receive all or part of the amounts set out in Subsections 1.9(a) or
1.9(b) above, the Executive must present receipts satisfactory to the
Employer describing the nature of the services provided and the fees
charged in respect of such services.
1.10 VACATION
The Executive shall be entitled to five (5) weeks vacation with pay each
calendar year. The scheduling of any vacation time must be approved by the
Employer. Vacation time will not be accumulated from year to year. Rather,
unused entitlement will be forfeited; provided, however, that the Employer will
provide any vacation pay entitlements pursuant to applicable employment
standards legislation.
ARTICLE 2
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CONFIDENTIAL INFORMATION
NON-CONPETITION/NON-SOLICITATION DURING
AND FOLLOWING TERMINATION OF EMYLOYMENT
2.1 DEFINITIONS
In this Article 2, the following terms shall have the meaning set out below:
(a) "Confidential Information" - shall include:
(i) Trade Secret Information;
(ii) all other proprietary and confidential information concerning
the business and affairs of the Employer, including, management
methods, operating techniques and procedures, financial and
sales information, supplier and client data, and information
disclosed in confidence to the Employer by a third party; and
(iii) all Inventions,
but Confidential Information shall not include information which the
Executive can demonstrate:
(i) was in the public domain or becomes so through no fault of the
Executive; or
(ii) was disclosed to the Executive by a third party not under an
obligation to the Employer to maintain the confidence of such
information.
(b) "Inventions" - shall mean any improvement, modification or enhancement
of any Trade Secret Information together with any other Trade Secret
Information which the Executive may make, develop, devise, author or
otherwise be involved with,
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alone or jointly with others, which is, regardless of whether or not
the Employer's resources or assets are used, conceived or made wholly
or partly by reason of opportunities afforded by the Employer, or with
knowledge gained through employment by the Employer (whether perfected
or reduced to specific form either prior to the date of this Agreement
or during or subsequent to his employment with the Employer) or which:
(i) the Executive makes, develops, devises, authors or is otherwise
involved with during the term of his employment with the
Employer, on or off the Employer's premises, during or after
normal business hours;
(ii) utilizes any Trade Secret Information of the Employer; or
(iii) does not utilize any Trade Secret Information of the Employer
but is made, developed, devised or authored to a substantial
extent during the time which should properly be devoted by the
Executive to the affairs and the business of the Employer.
(c) "Trade Secret Information" - shall mean all information relating to
the business of the Employer including, but not limited to, all
software systems, and design documents, formulae, processes, research
techniques and results and instructions in oral form or any media
including electronic, chart, graphic of written form.
(d) "Employer" shall mean VGI and its affiliates, collectively.
2.2 CONFIDENTIALITY
The Executive acknowledges that he is employed in a position of trust and has
fiduciary obligations to the Employer and VGI. The Executive covenants that
during his employment by
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the Employer and after the termination of such employment, the Executive shall
not, for any reason, directly or indirectly:
(a) apply or use any part of the Confidential Information including the
Inventions except for the benefit of the Employer;
(b) divulge or disclose to any person, firm or corporation any part of the
Confidential Information including the Inventions, except with the
prior written consent of the Employer, and the Executive shall only
make such disclosure to:
(i) directors, officers, Executives, and consultants of the Employer
on a "need-to-know" basis only as the Executive may be authorize
from time to time by the proper officers of the Employer; or
(ii) as required to do so as a matter of law, pursuant to any
subpoena or order issued by a court of competent jurisdiction or
any competent governmental authority, provided the Executive
shall promptly notify the Employer of any such order or
requirement, consult with the Employer on the advisability of
resisting such order and co-operate with the Employer in
attempting to obtain an order protecting the confidence of any
information to be disclosed;
(c) publish information relating to the Inventions except with the prior
written consent of the Employer; or
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(d) copy or remove from the Employer's premises any part of the
Confidential Information including the Inventions, in electronic or
physical form, except documents which:
(i) are not Trade Secret Information; and
(ii) in the ordinary course of business, the Executive would
reasonably be expected to perform work on at home or in the
course of business travel.
Upon request or upon termination of his employment by the Employer, the
Executive shall surrender to the Employer all originals and copies of any media
of any and all Confidential Information including Inventions which may be in his
possession, and the Executive acknowledges and agrees that upon termination of
his employment, the Executive has an obligation to make such surrender with or
without the express demand of the Employer.
2.3 NON-COMPETITION
During the term of this Agreement and for a period of twelve (12) months
thereafter, the Executive shall not, either individually or in partnership or
jointly or in conjunction with any person as principal, agent, Executive,
shareholder (other than a holder of shares listed on the Canadian or United
States stock exchange where such holdings do no exceed two percent (2%) of the
outstanding shares so listed), anywhere within Canada or the United States of
America, the United Kingdom or Europe:
(a) solicit any clients or potential clients of the Employer for any
business that competes directly or indirectly with the business of the
Employer, except on behalf of the Employer; or
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(b) in any manner whatsoever carry on or be engaged in, or be concerned
with or interested in, or advise, lead money to, guarantee the debts
or obligations of, or permit his name or any party thereof to be used
or employed by any person engaged in or concerned with or interested
anywhere in any business that competes directly or indirectly with the
business of the Employer.
For the purposes hereof the business of the Employer shall be defined to mean
molecular diagnostic systems, including software instrumentation, and molecular
methods, or DNA sequencing technology. This includes, but is not limited to any
high speed DNA sequencer or any DNA sequencer that uses an ultra-thin gel
cassette, or DNA analysis software that is assay based. This excludes any
service-based diagnostic business, or not-for-profit research associated with
clinical diagnostics that might use such molecular diagnostic system, but does
include any business that supplies software, instrumentation of supplies that
compete with the Employer's products in development or being sold at the time of
the Executive's termination or voluntary leaving.
2.4 INVENTIONS
The Executive shall promptly disclose to the Employer all Inventions as the
Executive becomes aware of them. The Executive acknowledges and agrees that as
between the Employer and Executive, all trade secrets, copyright, patents or
other intellectual property rights which may subsist in the said Inventions
shall be and shall remain the sole and exclusive, property of the Employer, and
the Employer shall be free to adopt the Inventions. The Executive hereby waives
in favour of the Employer his moral rights in all such Inventions. Both during
and following his employment, the Executive will execute any documents that the
Employer may present to him
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including applications to register intellectual property rights and assignment
documents, and shall do all such other things as the Employer may require of the
Executive from time to time to afford full and complete protection to the
above-stated property rights of the Employer in and to the Inventions, all at
the sole expense of the Employer.
The Executive shall not at any time contest directly or indirectly the
ownership, validity or enforceability of intellectual property rights subsisting
in such Inventions.
2.5 CORPORATE OPPORTUNITIES
Any business opportunities related to the business of the Employer which become
known to the Executive during his employment hereunder must be fully disclosed
and made available to the Employer by the Executive, and the Executive agrees
not to take or attempt to take any benefit of such opportunity except on behalf
of the Employer unless the Employer declines in writing to pursue such
opportunity.
2.6 RIGHTS OF ENFORCEMENT
The Executive hereby agrees that all restrictions, including but not limited to
business scope, geographic area and period of time, in this Agreement are
reasonable and valid in view of the nature of the business of the Employer.
The Executive further agrees that the remedy at law for any breach by him of the
confidentiality or non-competition provisions of this Agreement will be
inadequate. The Employer or any related corporation, on any application to a
court of competent jurisdiction, shall be entitled to injunctive relief against
the Executive to enforce the terms of this Article 2 without the necessity of
proving actual damage to the Employer or its related corporations.
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ARTICLE 3
TERMINATION OF EMPLOYMENT
3.1 DEATH
The Executive's employment shall terminate automatically in the event of the
death of the Executive and the Executive's estate shall not be entitled to
receive any further compensation under this Agreement other than any amounts
that may have accrued to the date of the Executive's death. Notwithstanding the
foregoing, shares subject to the First and Second Options or portions thereof,
shall continue to be released from escrow pursuant to the Escrow Agreement for
twelve (12) calendar months following the date of the Executive's death and the
Executive's estate will also be entitled to receive one month's salary
multiplied by the number of months in the Severance Period set out in Section
3.4 hereof.
3.2 DISABILITY
The Executive's employment shall terminate upon the last day of any period of
six (6) months during which the Executive has been continuously disabled from
performing his employment duties. The Executive shall not be entitled to receive
any further compensation under this Agreement other than any amounts that may
have accrued to the date of the Executive's termination of employment under this
Section 3.2 and rights, if any, to which the Executive otherwise may be entitled
under Article 4. Notwithstanding the foregoing, shares subject to the First and
Second Options or portions thereof, shall continue to be released from escrow
pursuant to the Escrow Agreement for twelve (12) calendar months following the
date of the Executive's termination of employment under this Section 3.2, and
the Executive will also be entitled to receive one month's salary multiplied by
the number of months in the Severance Period set out in Section 3.4 hereof.
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3.3 CAUSE
Notwithstanding any other provisions of this Agreement, the Employer or VGI may
terminate this Agreement at any time, without notice, for Cause. The term
"Cause" as used for purposes of this Section 3.3 shall mean any material breach
of fiduciary obligation or gross insubordination.
3.4 TERMINATION FOR ANY REASON
Notwithstanding any other provision in this Agreement but subject to the
provisions of Article 4 of this Agreement, the Employer may terminate the
Executive's employment at any time for any reason by providing the Executive
with one (1) months' salary multiplied by the number of months in the Severance
Period. The "Severance Period", as used in this Agreement, means:
(a) if Executive is terminated by Employer prior to April 1, 2000, twelve
(12) months; or
(b) if the Executive is terminated after April 1, 2000, twelve (12)
months' notice, plus one (1) additional month for each full year of
employment with Employer after April 1, 2000 but shall not exceed a
total of eighteen (18) months.
Unless Article 4 hereof is applicable, the Executive agrees that such pay in
lieu of notice will fully satisfy the Employer's obligations at common law and
no further payments will be owing to him by the Employer or VGI. The parties
have negotiated the duration of the Severance Period, and it forms part of the
consideration given by the Executive for his salary.
3.5 STATUTORY COMPLIANCE
Any payment under Section 3.4 hereof is subject to deductions required by law
and includes any entitlement the Executive may have to notice of termination,
termination pay or severance under the EMPLOYMENT STANDARDS ACT (Ontario) or any
similar legislation. The Executive shall have no
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claim against the Employer or VGI for any further liability to make payments in
connection with the termination of the Executive's employment other than those
arising from Section 3.4 and, if applicable, Article 4, hereof.
3.6 RESIGNATION
The employment of the Executive may be terminated by the Executive for any
reason upon prior written notice to the Employer of one hundred and eighty (180)
days.
3.7 RETURN OF EMPLOYER PROPERTY
Upon termination of employment for whatever reason, the Executive will promptly
return to the Employer, in good condition, all items of any and every nature or
kind used by him in the course of his employment, or otherwise furnished to him
by the Employer or VGI, including without limitation all equipment, credit
cards, computers, cellular phones, fax machines, books, records, reports, files,
manuals, literature, software, confidential information or other materials
belonging to the Employer or an affiliated company.
3.8 BENEFIT TERMINATION
Upon termination of employment, all benefits provided under this Agreement shall
cease as permitted by applicable employment standards legislation, provided that
if the Executive's employment is terminated by the Employer under Section 3.4
hereof, benefits provided under this Agreement shall continue for the duration
of the Severance Period, and provided that the Executive shall continue to be
entitled to all of the benefits provided by Article 4 for so long as, and to the
extent, they are applicable.
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ARTICLE 4
CHANGE OF CONTROL AND RETENTION BENEFITS
4.1 DEFINITIONS.
For the purposes of this Article 4, the following terms shall have the meaning
set out below:
(a) "2001 COMPENSATION" shall mean the Executive's gross base salary paid
to him in calendar year 2001, plus the gross amount of any cash
bonuses payable to the Executive for calendar year 2001 (whether such
cash bonuses are paid in calendar year 2001 or thereafter).
(b) "CAUSE" shall mean the Employer's right to terminate the Executive's
employment on the basis of (i) the Executive's willful and continued
failure to substantially perform his material duties of employment
provided that the Employer shall have first provided the Executive
with written notice specifying in reasonable detail the factors
constituting such failure and such failure shall not have been cured
within thirty (30 ) days after such notice; (ii) any commission of an
act of fraud, misappropriation, or embezzlement with respect to the
business or property of the Employer which is intended to result in
substantial personal enrichment of the Executive or causes material
harm to the Employer, or (iii) the Executive's conviction of, or plea
of guilty or NOLO CONTENDERE to, a felony; PROVIDED, HOWEVER, the
Executive shall not be deemed to have been terminated for Cause unless
and until there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less than
three-quarters of the entire membership of the Employer's (or its
successor's) Board of Directors
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(the "Board") at a meeting of the Board called and held for such
purpose, finding that, in the good faith opinion of the Board, the
Executive was guilty of the alleged conduct and specifying the
particulars thereof in detail; PROVIDED, FURTHER, that the Executive
must have received a minimum 30-day notice of such Board meeting and
the detailed allegations against the Executive, and that the Executive
has been provided the opportunity, together with the Executive's
counsel, to be heard before the Board in opposition to the alleged
conduct.
(c) "CHANGE IN CONTROL" shall mean the happening of any one of the
following events:
(i) Upon the acquisition by any person, entity or "group," within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934 (the "Exchange Act") (other than an
acquisition by VGI, the Employer, or any Subsidiary or any
employee benefit plan of VGI, the Employer or any Subsidiary) of
beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of fifty percent (50%) or
more of either the then outstanding shares of common stock of
the Employer or VGI, or the combined voting power of either the
Employer's or VGI's then outstanding voting securities, entitled
to vote generally in the election of directors;
(ii) If individuals who constitute the Board of Directors of the
Employer or VGI as of the date hereof (each an "Incumbent
Board") cease for any reason to constitute at least a majority
of such Board of Directors, provided that any person becoming a
member of the Board of Directors of
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either the Employer or VGI subsequent to the date hereof whose
election, or nomination for election by the Employer's or VGI's
shareholders, was approved by a vote of at least a majority of
the directors then comprising the respective Incumbent Board
(other than an election or nomination of an individual whose
initial assumption of office is in connection with the actual or
threatened election contest relating to the election of the
directors of the Employer or VGI, as such terms are used in Rule
141-11 of Regulation 14A promulgated under the Exchange Act)
shall be, for purposes of this Agreement, considered as though
such person were a member of such Incumbent Board; or
(iii) Upon approval of the stockholders of the Employer or VGI of (A)
a reorganization, merger or consolidation, in each case, with
respect to which persons who were shareholders of the Employer
or VGI immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter, own more than
fifty (50%) of the combined voting power entitled to vote
generally in the election of directors of the reorganized,
merged or consolidated company, (B) a liquidation or dissolution
of the Employer or VGI (other than a liquidation or dissolution
in connection with a bankruptcy or insolvency or similar event
of the Employer or VGI, or a liquidation or dissolution in which
shareholders of the Employer or VGI receive less than a total of
US$75 million in connection with such liquidation or
dissolution), or (C) the sale of all or substantially all of the
assets of the Employer or VGI.
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(d) "CHANGE OF CONTROL BENEFIT" shall have the meaning set forth in
Section 4.2 hereof.
(e) "RETENTION BENEFIT" shall have the meaning set forth in Section 4.3
hereof.
(f) "RETENTION BENEFIT PAYMENT PERIOD" shall have the meaning set forth in
Section 4.3 hereof.
(g) "SUBSIDIARY" shall mean any person or entity of whom VGI or the
Employer, directly or indirectly, owns fifty percent (50%) or more of
the combined voting power entitled to vote generally in the election
of directors.
(h) "VOLUNTARY TERMINATION" shall mean a voluntary termination of
employment with the Employer by the Executive for reasons other than
death or disability.
4.2 CHANGE OF CONTROL BENEFIT.
If the Executive is employed with the Employer on the date that a Change of
Control is deemed to be effective, the Executive shall be entitled to a cash
payment equal to the Executive's 2001 Compensation (the "Change of Control
Benefit"). The Employer shall pay the Executive the Change of Control Benefit in
a lump sum, less applicable withholdings, within five (5) business days
immediately following the Change of Control. The payment of the Change of
Control Benefit shall be in addition to the payment of all salary and any other
amounts otherwise payable to the Executive under this Agreement, option
agreement or other agreements with the Employer or VGI or otherwise in
connection with his employment by the Employer whether pursuant to employee
benefit plans or policies of the Employer or any severance or other benefit
available to the Executive under applicable law.
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4.3 RETENTION BENEFITS.
If the Executive is employed by the Employer or VGI or one of VGI's other
Subsidiaries following a Change of Control, the Executive shall be entitled to
accrue a cash benefit (the "Retention Benefit") provided the Executive remains
employed for one (1) or two (2) 90-day periods immediately following the Change
of Control (the "Retention Benefit Payment Period"). The accrued Retention
Benefit for each 90 day period shall be an amount equal to the Executive's 2001
Compensation, so that if the Executive remains employed for the Retention
Benefit Payment Period constituted by two 90 day periods, he would earn a total
Retention Benefit equal to two hundred percent (200%) of his 2001 Compensation.
The Retention Benefit shall be paid to the Executive in two (2) installments as
so earned: The first installment shall be paid ninety (90) days following the
date that a Change of Control is deemed to be effective, provided that the
Executive is so employed by the Employer, VGI or a Subsidiary on the ninetieth
(90th) day following a Change of Control, and, if applicable, a second and final
installment shall be paid at the end of second 90 day period, provided, that the
Executive is so employed as of the final day of such second 90 day period. If
the Executive's employment with the Employer and VGI and Subsidiaries is
terminated following a Change of Control, but prior to the end of the second 90
day period, for any reason (including death or disability) other than a
termination for Cause by the Employer or a Voluntary Termination, the Employer
shall pay the Executive the full amount of the Retention Benefit that the
Executive would have been entitled to receive from the effective date of the
Change of Control through the end of the Retention Benefit Payment Period had he
remained employed through the end of the Retention Benefit Payment Period
constituted by two 90 day periods. The Employer shall pay such amount to the
Executive within five (5) business days following the termination of the
Executive's
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employment. The payment of the Retention Benefit shall be in addition to the
payment of all salary and any other amounts otherwise payable to the Executive
under this Agreement or any option agreement or other agreements with the
Employer or VGI or otherwise in connection with his employment by the Employer,
VGI or one of its Subsidiaries whether pursuant to employee benefit plans or
policies of the Employer, VGI or one of its Subsidiaries, or any severance or
other benefit available to the Executive under applicable law.
4.4 LIMIT ON CHANGE OF CONTROL AND RETENTION BENEFITS.
Notwithstanding any other provision of this Article 4 to the contrary, if any
Retention Benefit payment or payments, or any portion of the Change of Control
Benefit payment, shall be deemed to be a "parachute payment" as defined in
section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the
"Code"), the Employer shall not be obligated to pay any portion of a Retention
Benefit payment or payments, or any portion of the Change of Control Benefit
payment, to the extent that any such payment or payments shall be deemed an
"excess" parachute payment to the Executive as defined in section 280G(b)(1) of
the Code and not deductible by the Employer in accordance with section 280G(a)
of the Code. Any abatement of payment obligations pursuant to this Section 4.3
shall commence with the last Retention Benefit payment that is earned and
accrued by the Executive pursuant to Section 4.4 hereof, and, if necessary,
shall continue with preceding Retention Benefit payment obligations in the order
of last accrued, first abated, with the Change of Control Benefit payment being
the last payment obligation to be abated, if necessary.
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4.5 SUCCESSOR LIABILITY.
Any successor to the Employer or VGI (whether directly or indirectly and whether
by purchase, lease, merger, consolidation, or otherwise) or to all or
substantially all of the Employer's or VGI's business and/or assets shall assume
the Employer's or VGI's respective obligations under this Article 4 and agree
expressly to perform the Employer's or VGI's respective obligations under this
Article 4 in the same manner and to the same extent as the Employer or VGI would
be required to perform such obligations in the absence of a succession. For all
purposes under this Article 4, the term "Employer" shall include any successor
to the Employer's business and/or assets and the term "VGI" shall include any
successor to VGI's business and/or assets.
4.6 TERMINATION UNDER CERTAIN CIRCUMSTANCES.
(a) If the Executive's employment terminates for any reason prior to a
Change in Control, the Executive shall not be entitled to any payment
of a Change of Control Benefit or any Retention Benefits pursuant to
this Article 4, but shall be entitled to any payment to which the
Executive otherwise would be entitled under any other provision of
this Agreement, under any options agreement or other agreements with
Employer or VGI to the extent otherwise applicable, under the
Employer's then existing employee benefits plans or policies at the
time of termination, and under any required severance benefits
pursuant to applicable law, if any.
(b) If, following a Change in Control, the Executive is terminated by the
Employer for Cause or the Executive has a Voluntary Termination, the
Executive shall not be entitled to any payment of Retention Benefit
under this Article 4 for any period
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following said termination, but shall be entitled to any payment to
which the Executive otherwise would be entitled to under any other
provisions of this Agreement, under any options agreement or other
agreements with the Employer or VGI, to the extent otherwise
applicable, under the Employer's then-existing employee benefit plans
or policies at the time of termination, and under any required
severance benefit pursuant to applicable law, if any.
4.7 TERMINATION OF ARTICLE 4
The Board of the Employer and VGI, in their sole discretion, shall have the
right to terminate the provisions of this Article 4 effective as of December 31
of any year of the term by delivery of written notice to the Executive by no
later than January 15 of the following year; provided, however, that if a Change
of Control occurs prior to such December 31, or if the Employer or VGI has
entered into a binding agreement prior to such December 31, setting forth the
material terms of the transaction that will result in the Change of Control,
this clause shall have no force or effect.
4.8 RESOLUTION OF DISPUTES UNDER ARTICLE 4.
(a) (a) Any dispute or controversy arising out of, relating to, or in
connection with this Article 4, or the interpretation, validity,
construction, performance, breach, or termination of this Article 4,
shall be settled by binding arbitration to be held in New York County,
New York and shall be conducted in accordance with the Expedited
Employment Arbitration Rules of the American Arbitration Association,
in effect at the time of the arbitration ("Rules"), supplemented, as
necessary, by those principles which would be applied by a court of
law or equity.
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The arbitrator may grant injunctions or other relief in such dispute
or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may
be entered on the arbitrator's decision in any court having
jurisdiction.
(b) The arbitrator(s) shall apply New York law to the merits of any
dispute or claim, without reference to conflicts of law rules. The
arbitration proceedings shall be governed by federal arbitration law
and by the Rules, without reference to state arbitration law.
(c) Notwithstanding anything herein to the contrary, the parties may seek
specific performance or injunctive relief with respect to the matters
set forth in this Article 4 in the United States District Court for
the Southern District of New York or a state court located in New York
County, New York. Each party (i) submits to the jurisdiction of any
such court for the purpose of any such suit, action, or other
proceeding, (ii) agrees that all such claims in respect of any such
suit, action or proceeding may be heard and determined in any such
court, (iii) waives, to the fullest extent permitted by law, any
immunity it may have acquired, or hereafter may acquire, from
jurisdiction of any such court or from any legal process therein, and
(iv) agrees not to commence any such suit, action or proceeding other
than in such court, and waives, to the fullest extent permitted by
applicable law, any claim that any such suit, action or proceeding is
brought in an inconvenient forum. Each party hereby irrevocably
designates CT Corporation
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System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as agent upon whom
process against it may be served for purposes of this Article 4.
(d) EXECUTIVE HAS READ AND UNDERSTANDS THIS ARTICLE 4, WHICH DISCUSSES
ARBITRATION. EXECUTIVE UNDERSTANDS THAT SUBMITTING ANY CLAIMS ARISING
OUT OF, RELATING TO, OR IN CONNECTION WITH THIS ARTICLE 4, OR THE
INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR
TERMINATION THEREOF TO BINDING ARBITRATION, CONSTITUTES A WAIVER OF
EXECUTIVE'S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL
DISPUTES RELATING TO AND ARISING FROM THIS ARTICLE 4.
4.9 NO DUTY TO MITIGATE
The Executive shall not be required to mitigate the amount of any payment
contemplated by this Article 4, nor shall any such payment be reduced by any
earnings that the Executive may receive from any other source.
4.10 VGI PRIMARILY OBLIGATED
VGI shall cause the Employer to perform all of the Employer's obligations under
this Article 4. If the Employer or VGI shall fail to perform, or shall otherwise
be in default of any obligations under this Article 4, the Executive shall have
the right to proceed against the Employer and/or VGI, or both of them, as the
primary obligor under this Article 4 in accordance with the provisions hereof.
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4.11 MISCELLANEOUS
(a) The validity, interpretation, construction and performance of this
Article 4 shall be governed by the internal substantive laws, but not
the conflicts of law rules, of the State of New York.
(b) All payments made pursuant to this Article 4 shall be subject to
withholding of applicable income and employment taxes.
ARTICLE 5
GRANT OF OPTIONS TO PURCHASE COMMON SHARES OF VGI
5.1 THE FIRST OPTION
The Executive was granted an option (the "First Option") by VGI on April 1, 1999
to purchase fifty thousand (50,000) common shares of VGI at an exercise price in
United States currency of nine dollars, ten cents (U.S. $9.10) per share.
Subject to Article 6 hereof and the provisions of the attached Escrow Agreement,
the Executive has the right to exercise the First Option with respect to all or
any part of the shares subject to the First Option at any time or times prior to
the close of business on March 31, 2009. In accordance with the provisions of
the Escrow Agreement, one thousand three hundred and eighty eight (1,388) shares
shall be released from escrow on the first day of every calendar month between
May 1, 1999 and March 1, 2002 and the remaining one thousand four hundred and
twenty (1,420) shares shall be released from escrow on April 1, 2002.
5.2 THE SECOND OPTION
The Executive was granted an additional option (the "Second Option") by VGI on
July 2, 1999, to purchase four hundred thousand (400,000) common shares of VGI
at an exercise price in
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United States currency of eleven dollars (U.S. $11.00) per common share. Subject
to the provisions of Article 6 hereof and the attached Escrow Agreement, the
Executive has the right to exercise the Second Option with respect to all or any
part of the shares subject to the Second Option at any time or times prior to
the close of business on July 6, 2009. In accordance with the provisions of the
Escrow Agreement, one hundred thousand (100,000) shares shall be released from
escrow on July 7, 2000, eight thousand three hundred and thirty-three (8,333)
shares shall be released from escrow on each of August 7, 2000 and the seventh
day of every calendar month thereafter until June 7, 2003, and eight thousand
three hundred and forty-five (8,345) shares shall be released from escrow on
July 7, 2003.
5.3 THE ESCROW AGREEMENT
Subject to Article 6 hereof, the First Option and the Second Option
(collectively, the "Options") and all shares issued upon the exercise of the
Options shall be held subject to the escrow agreement attached hereto as
SCHEDULE "A" to the Initial Employment Agreement (the "Escrow Agreement").
ARTICLE 6
EFFECT OF TERMINATION OF EMPLOYMENT
ON THE FIRST OPTION AND THE SECOND OPTION
6.1 TERMINATION
(a) The First Option.
(i) Subject, to Section 5.3:
(A) if the Executive resigns employment with the Employer prior
to April 1, 2002, or is terminated for Cause in accordance
with
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Section 3.3 hereof, the Executive shall be entitled only to
receive those shares issued or issuable upon exercise of
the First Option that have been release from escrow
pursuant to the Escrow Agreement on or before the date of
termination.
(B) if the Executive is terminated without Cause prior to April
1, 2000, the Executive shall be entitled to receive those
shares issued or issuable upon exercise of the First Option
that have been released from escrow pursuant to the Escrow
Agreement on or before the date of termination, plus those
shares that would have been released from escrow pursuant
to the Escrow Agreement had the Executive continued to be
employed beyond the date of termination for the number of
months in the Severance Period plus an additional six (6)
months (and those shares that would have been released from
escrow pursuant to the Escrow Agreement during such period
shall be deemed to have been released from escrow pursuant
to the Escrow Agreement in such circumstances for all
purposes of this Agreement and the Escrow Agreement);
(C) if the Executive is terminated without Cause after April 1,
2000, the Executive shall be entitled to receive those
shares issued or issuable upon exercise of the First Option
that have been released from escrow pursuant to the Escrow
Agreement on or before the date of termination, plus those
shares that would have been
26
released from escrow pursuant to the Escrow Agreement had
the Executive continued to be employed beyond the date of
termination for the number of months in the Severance
Period (and those shares that would have been released from
escrow pursuant to the Escrow Agreement during such period
shall be deemed to have been released from escrow pursuant
to the Escrow Agreement in such circumstances for all
purposes of this Agreement and the Escrow Agreement);
(D) to the extent of the portion of the First Option that has
not been exercised for the full number of shares which may
be released from escrow pursuant to the Escrow Agreement to
the Executive in accordance with the provisions of this
Subsection 6.1(a), that portion of the First Option will
remain exercisable and the remaining portion of the First
Option will be cancelled; and
(E) If the Executive's employment is terminated, VGI shall have
the right to purchase for cancellation for a price
equivalent to the exercise price paid by the Executive any
shares issued pursuant to the exercise of the First Option
which have not been released from escrow pursuant to the
Escrow Agreement (taking into account the terms of this
Section 6.1).
(b) The Second Option.
(i) Subject to Section 6.3:
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(A) if the Executive resigns employment with the Employer, or
is terminated for Cause in accordance with Section 3.3
hereof prior to July 7, 2000, the Executive shall have no
right to purchase any shares pursuant to the Second Option
and the Second Option will expire on the date of such
resignation or termination;
(B) if the Executive resigns employment with the Employer, or
is terminated for Cause in accordance with Section 3.3
hereof on or after July 7, 2000 and prior to July 7, 2003,
the Executive shall be entitled to receive those shares
issued or issuable upon exercise of the Second Option that
have been released from escrow pursuant to the Escrow
Agreement on or before the date of termination; and
(C) if the Executive is terminated by the Employer without
Cause prior to July 7, 2003, he shall be entitled to
receive those shares issued or issuable upon exercise of
the Second Option that have been released from escrow
pursuant to the Escrow Agreement on or before the date of
termination plus those shares that would have been released
from escrow pursuant to the Escrow Agreement had the
Executive continued to be employed beyond the date of
termination for the number of months in the Severance
Period (and those shares that would have been released from
escrow pursuant to the Escrow Agreement during such period
shall be deemed to have been released from escrow pursuant
to the Escrow Agreement
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in such circumstances for all purposes of this Agreement
and the Escrow Agreement):
(D) to the extent of the portion of the Second Option that has
not been exercised for the full number of shares which may
be released from escrow pursuant to the Escrow Agreement to
the Executive in accordance with the provisions of this
Subsection 6.1(b), that portion of the Second Option will
remain exercisable and the remaining portion of the Second
Option will be cancelled; and
(E) If the Executive's employment is terminated, VGI shall have
the right to purchase for cancellation for a price
equivalent to the exercise prior paid by the Executive any
shares issued pursuant to the exercise of the Second Option
which have not been released from escrow pursuant to the
Escrow Agreement (taking into account the terms of this
Section 6.1).
6.2 ADDITIONAL OPTIONS
Additional options may be granted to Executive by the Employer from time to time
on a performance basis, at the sole discretion of Employer.
6.3 ACCELERATED RELEASE FROM ESCROW
The Escrow Agreement provides for an immediate release from escrow upon a Change
of Control in certain circumstances. For purposes of this Article 6 and the
Escrow Agreement, a "Change of Control" shall mean:
29
(a) any transaction or series of related transactions (including a merger
or consolidation) by a person or persons acting in concert or
combination as a result of which the holders of voting capital stock
of VGI immediately prior to such transaction(s) own less than fifty
percent (50%) of the outstanding voting capital stock of VGI
immediately subsequent to such transaction(s); or
(b) an agreement for the sale or disposition of all or substantially all
of the assets of VGI to an arm's length third party that is not an
affiliate of VGI;
provided that no Change of Control shall be deemed to have occurred for
purposes of this Article 6 or the Escrow Agreement by virtue of any
transaction which results in the Executive or an entity in which the
Executive has a one-quarter of one percent (.25%) or greater equity
interest, either singly, or acting as a joint actor with a group of
entities or persons, becoming the beneficial owner, directly or indirectly
of twenty-five percent (25%) or more of the combined voting power of VGI's
voting securities.
6.4 STATUS OF AND PAYMENT FOR OPTIONS
The Options are issued pursuant to VGI's Employee Share Option Plan, as amended.
The Options are intended to qualify as "Incentive stock options" under Section
422 of the Code to the extent that they qualify as such thereunder. Subject to
applicable law, stock purchased upon exercise of any of the Options may be paid
for, and any withholding obligation on the part of the Executive in connection
with the exercise of any of the Options may be satisfied, at the Executive's
election:
(a) in cash or by cheque made payable to the order of VGI in the amount of
such exercise price or withholding obligation, as the case may be;
30
(b) through the delivery of shares of stock of VGI having a fair market
value on the date of exercise equal to the amount of such exercise
price or withholding obligations, as the case may be;
(c) by delivery of an unconditional and irrevocable undertaking by a
broker to deliver promptly to VGI sufficient funds to pay the exercise
price or such withholding obligation, as the case may be;
(d) by the surrender for cancellation of options to purchase such number
of shares of stock of VGI as is equal to
(i) the amount of such exercise price or withholding obligation, as
the case may be, divided by
(ii) the fair market value on the date of exercise of one share of
stock minus the exercise price of one share of stock under the
option so cancelled; or
(e) by any combination of the above permissible forms of payment,
provided, however, that the Executive may not use shares issued or issuable upon
exercise of the Options in payment of the exercise price or satisfaction of the
withholding obligation, as the case may be, unless and until such shares have
been or are capable of being released from escrow pursuant to the Escrow
Agreement at the time of exercise or satisfaction. Whether or not they were ever
issued, the number of shares previously subject to the Escrow Agreement that
have, pursuant to this Section 6.4, been used as payment for the exercise price
or satisfaction of the withholding obligation, as the case may be, shall not
thereafter be available for release from escrow.
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ARTICLE 7
CONTRACT PROVISIONS
7.1 HEADINGS
The headings of the Sections herein are inserted for convenience of reference
only and shall not affect the meaning or construction hereof.
7.2 WITHHOLDING
All payment under this Agreement shall be subject to withholding of such
amounts, if any, relating to tax or other payroll deductions as the Employer may
reasonably determine and should withhold pursuant to any applicable law or
regulation.
7.3 COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed to
be an original but all of which together shall constitute one and the same
instrument.
7.4 WAIVER
The failure of any party to enforce its rights under this Agreement at any time
for any period shall not be construed as a waiver of such rights and a waiver
shall only be construed as such if made in writing signed by a duly authorized
representative of the waiving party.
7.5 SEVERABILITY
If any provision of this Agreement or application of any such provision to any
person or circumstances shall be invalid under the law of any jurisdiction the
remainder of this Agreement or the application of such provision to persons or
circumstances other than those as to which it is invalid shall not be effected
thereby. In the event a court of competent jurisdiction rules any
32
provision of this Agreement to be invalid, then such ruling shall have no effect
on the remaining provisions of this Agreement and they shall continue in full
force and effect.
7.6 ENTIRE AGREEMENT
This Agreement, together with SCHEDULES "A" and "B", contains the entire
contract of Employment between the parties hereto and supersedes and replaces
all previous negotiations, understandings and agreements whether verbal or
written with respect to any matters herein referred to, including the agreement
between the parties effective April 1, 1999.
7.7 GOVERNING LAW
Except as otherwise provided in Article 4, this Agreement shall be governed by
and construed in accordance with the laws of the Province of Ontario and the
laws of Canada applicable therein. Except as otherwise provided in Article 4,
each of the parties hereby irrevocably attorns to the jurisdiction of the courts
of the Province of Ontario with respect to any matters arising out of this
Agreement.
7.8 SURVIVAL
The provisions of Articles 2, 3, 4, 5 and 6 hereof shall survive the termination
of this Agreement for the periods of time specified or contemplated therein.
7.9 DIRECTORS AND OFFICERS
If the Executive is a director or officer at the relevant time, the Executive
agrees that after termination of his employment with the Employer for any
reason, he will, on the date of his termination, tender his resignation from any
position he may hold as an officer or director of the Employer or any of its
affiliated or associated companies.
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7.10 TAX EQUALIZATION
The Employer agrees to pay a cost of living supplement, such supplement to
include an equalization payment to be made by the Employer in the event that the
net after tax income in respect of the Executive's employment pursuant to the
Secondment Agreement is less than the net after tax income which would have
resulted had all the Executive's salary and any sums paid by way of bonus been
taxed only in the jurisdiction in which they would otherwise have been taxed,
but for the Executive's secondment pursuant to the Secondment Agreement. Such
equalization payment shall be in an amount such that, after tax, it will equal
the shortfall in net after tax income.
ARTICLE 8
MISCELLANCEOUS
8.1 NO BREACH OF THIRD PARTY AGREEMENT
The Executive covenants and acknowledges with the Employer that by entering into
this Agreement he will not be in breach of any agreement with any third party.
8.2 INDEMNIFICATION AGREEMENT
The Employer and Executive have entered into an Indemnification Agreement
attached hereto as SCHEDULE "B".
8.3 ARBITRATION
Any dispute, controversy, claim or difference between the parties hereto arising
out of Article 3 hereof including questions of fact, procedures, practices or
standards relevant to Article 3 hereof which cannot be resolved or settled by
the parties, shall be settled and determined by arbitration. The provisions of
this Section shall be deemed to constitute a "submission within the meaning of
34
the ARBITRATIONS ACT (Ontario) (the "Act") and the provisions of the Act, except
to the extent that a contrary intention is expressed herein, shall apply to any
arbitration hereunder. Either party may at any time give written notice to the
other of its desire to submit such dispute to arbitration stating with
reasonable particularity the subject matter of such dispute. Within five (5)
business days after receipt of such notice, the parties shall appoint a single
arbitrator with appropriate experience to determine such dispute. If the parties
fail to appoint an arbitrator, either party may apply to a Judge of the Superior
Court of Ontario to appoint an arbitrator to determine such dispute. The
arbitrator so appointed shall forthwith proceed to arbitrate the dispute. The
award of the arbitrator shall be delivered to the parties within sixty (60) days
of his appointment. The costs of the arbitration shall be paid as determined by
the arbitrator. Notwithstanding anything to the contrary contained in the Act,
the award of the arbitrator shall be final and binding upon the parties and all
persons claiming through or under them. An award of the arbitrator shall be in
substitution for and precludes either party or any person claiming through or
under a party to bring any suit, action or other proceeding in any court of law
or equity against either party or any person claiming through or under a party
or against the arbitrator in respect of any matter for which arbitration is
herein provided. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction and thereupon execution or other legal
process may issue thereon. The parties hereto and all persons claiming through
or under them hereby attorn to the jurisdiction of the arbitrator and to the
jurisdiction of any court in which the judgment may be entered. Arbitration may
not be waived except upon delivery by the parties of a written notice to that
affect.
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8.4 NOTICES
Notices and all other communications contemplated by this Agreement shall be in
writing and shall be deemed to have been duly given when personally delivered by
either FedEx or other reputable overnight courier service or by registered or
certified U.S. mail, return receipt requested. In the case of the Executive,
mailed notices shall be addressed to him at the home address which he most
recently communicated to the Employer in writing. In the case of the Employer,
mailed notices shall be addressed to its corporate headquarters, and all notices
shall be directed to the attention of its President, with a copy to Visible
Genetics Inc., 000 Xxx Xxxxxx, Xxxxxxx, Xxxxxxx, X0X 0XX Xxxxxx, attention:
General Counsel. All notices to VGI shall be delivered to the foregoing address.
Notices shall be deemed delivered and received upon receipt or refusal of
receipt.
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This Agreement is binding upon and is for the benefit of the parties
and their respective successors.
IN WITNESS OF WHICH the Parties have duly executed this Agreement.
VISIBLE GENETICS INC.
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
VISIBLE GENETICS CORP.
By:
----------------------------------------
Name:
Title:
-------------------------------------------
Name:
Title:
EXECUTIVE
-------------------------------------------
Xxxxxxx X. Xxxx
37
