EMPLOYMENT AGREEMENT
Published on April 15, 2005
EXHIBIT 10.7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made this 14th day of December,
2004 by and between NeoGenomics, Inc. a Nevada corporation ("Employer" or the
"Company"), located at 12701 Commonwealth Drive, Suite #9, Fort Myers, Florida
33913 and Robert Gasparini ("Employee"), and is effective as of the date set
forth below.
The parties to this Agreement state and acknowledge as follows:
Section 1 - Recitals - The Employer is engaged in the business of providing
genetic and molecular diagnostic testing services to doctors, hospitals and
other healthcare institutions.
The Employee is willing to be employed by the Employer, and the Employer is
willing to employ the Employee, in accordance with the terms, covenants, and
conditions as set forth in this Agreement.
In consideration of the mutual promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Employer and the Employee agree as follows:
Section 2 - Effective Date - Employment shall begin on January 3, 2005 (the
"Effective Date"). If Employer has previously hired Employee, pursuant to a
different agreement, this Agreement shall supercede it, shall take priority over
it, and all previous agreements relating to the subject matter of this Agreement
shall be deemed null and void except that all prohibitions against Employee
misappropriating or misusing confidential information, trade secrets and
soliciting clients of Employer shall continue to be enforceable back to the
original date of execution of such other agreements.
Section 3 - Employment and Duties - The Employer shall employ the Employee
as an employee at will, as such term is construed under Florida law in the
capacity of President and Chief Science Officer. The Employee accepts this
employment, subject to the general supervision of and pursuant to the orders and
direction of the Employer. The Employee shall perform such duties as are
customarily performed by one holding such position in other, same, or similar
businesses or enterprises as that engaged in by the Employer. The Employee shall
also render such other and unrelated services and duties as the Employer may
assign from time to time. The Employee will report to the Company's Chief
Executive Officer and if there is no Chief Executive Officer, then to the Board
of Directors of the Company.
Section 4 - Compensation and Benefits of the Employee - The Employer shall
compensate Employee for Employee's services rendered under this Agreement, as
follows:
a. Base Salary. Employee shall be paid a base salary by Employer at such
times as is consistent with normal Company policy according to the
following schedule:
1.) Until June 30, 2005, a salary equating to $150,000 per annum.
2.) Beginning on July 1, 2005 and continuing until June 30, 2006,
a salary equating to $175,000 per annum.
3.) Beginning on July 1, 2006, and continuing until the Board of
Directors of the Company determines otherwise, a base salary
equating to $185,000 per annum.
b. Bonus. Employee will be eligible for an annual cash bonus based on
performance. The amount of such bonus shall be based on the available
resources of the Company and shall be at the discretion of the
Compensation Committee of the Board of Directors; provided, however,
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if the Employee meets the annual performance goals specified in
writing by the Board of Directors for any given fiscal year (which
shall be based on the approved Company budget for such year), the
Employee shall be entitled to a cash bonus of at least 15% of his
annual salary for such year. The Company agrees that such cash bonus,
if any, will be paid no later than 90 days after the end of any given
fiscal year. For the fiscal year ending December 31, 2005, such
performance goals will be as follows:
1) Revenue from the Company's core testing operations, excluding
the revenues from any other companies or businesses acquired
during the year of $2.5 million; and ---
2) Net Income from continuing operations of the Company's core
testing operations, excluding the effects of any other companies
or businesses acquired during the fiscal year, of $150,000.
c. Benefits. After 90 days of employment, Employee will be entitled to
participate in all medical and other benefits that the Company has
established for employees of the Company, including, but not limited
to reimbursement of 100% of any health insurance premium for the
Employee in accordance with the Company's policy for such
reimbursement. All benefits that may be payable by the Company are
identified in the Employee Handbook and are subject to change without
notice or explanation.
d. Relocation. The Company will pay for all reasonable out-of-pocket
expenses associated with employee's temporary commuting between his
current residence in Orange County, CA and Fort Myers, FL and his move
to the Fort Myers, FL area up to a maximum of $25,000. The Employee
agrees to use his best efforts to relocate his primary residence to
the Fort Myers area not later than June 30, 2005. The Employee
acknowledges and agrees that such relocation expenses may be deemed as
compensation expense to the Employee and agrees that if they are
deemed as such, he will have to deduct such moving expenses on his
federal tax returns in order not to incur any incremental taxable
income. The Employee further agrees that if he resigns for any reason
prior to 12 months from the Effective Date, he will reimburse the
Company for such relocation expenses.
e. Temporary Quarters. During the period from the Effective Date until
the earlier of the date upon which the Employee establishes permanent
quarters in the Fort Myers, FL area or than June 30, 2005, the Company
agrees to pay for and maintain furnished temporary quarters for the
Employee.
f. Stock Options. Upon the Effective Date, Employee will be granted stock
options to purchase 1,000,000 shares of NeoGenomics's common stock at
an exercise price of $0.25/share. The grant of such options will be
made pursuant to the Company Stock Option Plan and will be evidenced
by a separate Option Agreement, which the Company will execute with
you after the Effective Date. The Company agrees that if such original
option is cancelled for any reason, the vesting of any time based
options in any replacement option shall give credit to the time
already lapsed on such original option. So long as you remained
employed by the Company, such options will have a ten-year term from
the grant date and will vest according to the following schedule:
1.) Time-Based Vesting
75,000 on the Effective Date;
100,000 on the first anniversary of the Effective Date;
125,000 on the second anniversary of the Effective Date;
12,500 per month from the 25th to 36th month from the Effective Date;
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2.) Performance-Based Vesting
150,000 if the company achieves the predetermined milestones agreed to
in the consulting agreement at (25,000 per milestone) as
follows:
25,000 revenues generated from FISH by December 15, 2004
25,000 revenues generated from FLOW by January 31, 2005
25,000 revenues generated from Amniocentesis by January 31, 2005
25,000 hiring a lab director by September 30, 2005
25,000 bringing in 4 new clients to the lab by June 30, 2005
25,000 closing on first acquisition by December 31, 2005
In addition:
50,000 if the Company achieves the consolidated revenue for FY 2005 outlined in
Section 4(b)(1);
50,000 if the Company achieves the net income projections for FY 2005 outlined in
Section 4(b)(2);
50,000 if the Company achieves the consolidated revenue goal for FY 2006 outlined by
the Board of Directors as part of the Employee's FY 2006 bonus plan;
50,000 if the Company achieves the consolidated net income goal for FY 2006 outlined
by the Board of Directors as part of the Employee's FY 2006 bonus plan;
50,000 if the Company achieves the consolidated revenue goal for FY 2007 outlined by
the Board of Directors as part of the Employee's FY 2007 bonus plan;
50,000 if the Company achieves the consolidated net income goal for FY 2007 outlined
by the Board of Directors as part of the Employee's FY 2007 bonus plan;
50,000 when the Company's stock maintains an average closing bid price (as quoted
on NASDAQ Bulletin Board) of $0.75/share over the previous 30 trading
days;
50,000 when the Company's stock maintains an average closing bid price (as quoted on
NASDAQ Bulletin Board) of $1.50/share over the previous 30 trading days;
The Company agrees that it will grant to you the maximum number
of Incentive Stock Options ("ISO's") available under current SEC
guidelines and that the remainder, if any, will be in the form of
non-qualified stock options. The Employee further understands
that under the Company's Option Plan, upon termination he will
only have 90 days to exercise any vested options.
Section 5 - Best Efforts of the Employee and Place of Employment - Employee
agrees to perform all of the duties pursuant to the express and implicit terms
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of this contract to the reasonable satisfaction of Employer. Employee further
agrees to perform such duties faithfully and to the best of his/her ability,
talent, and experience, and spend full-time (at least forty (40) hours per week)
on Employer's business. Employee shall render such duties at such places as
Employer shall require or as the interest, needs, business, or opportunity of
Employer shall require.
Section 6 - Termination - The parties agree that any termination of the
Employee under this Agreement will be governed as follows:
a. By the Company Without Cause. Beginning 180 days after the Effective
Date, if the Company terminates you without "Cause" for any reason,
then the Company agrees that as severance it will continue to pay the
Executive's Base Salary in accordance with Section 4(a) and maintain
the Executive's employee benefits in accordance with Section 4(c) for
a period that is equal to six months from the notice of termination.
If termination occurs between the first and six month of employment,
severance will be paid on a prorated basis of one month of severance
for each month of service. In addition, if such termination without
cause shall occur at anytime after twelve months from the Effective
Date, than the pro rata portion of any unvested options up until the
date of notice of termination that are due to vest in the year of
termination shall vest. For the purposes of this Agreement, the
Company shall have "Cause" to terminate the Employee's employment
hereunder upon:
(i) negligence and continued failure by the Employee to
substantially perform his duties as President (other than any
such failure resulting from incapacity due to physical or mental
illness) for a period of ten days after demand for substantial
performance is delivered in writing by the Company that
specifically identifies the manner in which the Company believes
the Employee has not substantially performed his duties; or
(ii) the active participation by the Employee in an act or series
of acts of willful malfeasance or gross misconduct, recklessness
or gross negligence (including, without limitation, any action
that results in the Employee's conviction of or pleading guilty
to any misdemeanor or regulatory sanction placed upon you or
moral turpitude) which a reasonable person would expect to have a
potentially damaging or detrimental effect on the Company; or
(iii) the Employee's being convicted of, or pleading guilty to, a
felony.
The Employee acknowledges and agrees that any and all payments to
which he would be entitled under this Section are conditioned
upon and subject to his execution of a general waiver and
release, in such reasonable form as counsel for the Company shall
determine, of all claims the Employee has or may have against the
Company.
b. By the Company for Cause. The Company may terminate the Employee's
employment hereunder for Cause at any time by notifying the Employee
in writing. Upon such a termination, the Employee shall be entitled to
collect his Base Salary up until the date of the notice of termination
for Cause.
c. By Resignation of the Employee. The Employee may terminate his
employment hereunder, upon giving 30 days written notice to the
Company. In the event of such a termination, the Employee shall comply
with any reasonable request of the Company to assist in providing for
an orderly transition of authority, but such assistance shall not
delay the Employee's termination of employment longer than sixty (60)
days beyond the Employee's original notice of termination. Upon such a
termination, the Employee shall become entitled to any accrued but
unpaid salary and other benefits up to and including the date of
Termination.
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Section 7 - Restrictive Covenant -
a. Employer is engaged in the business of providing genetic and molecular
diagnostic testing services to doctors, hospitals and other healthcare
facilities. Employee expressly covenants and agrees that during his or
her employment and for a period of two (2) years following termination
of such employment, whether termination is by Employer, with or
without cause, wrongful discharge, or for any other reason whatsoever,
or by Employee (such period of time is hereinafter referred to as the
"Restrictive Period"), Employee shall not, directly or indirectly, for
himself or herself, or on behalf of others, as an individual on
Employee's own account, or as a partner, joint venturer, employee,
agent, salesman, contractor, officer, director or otherwise, for any
person, partnership, firm, corporation, or other entity, enter into,
engage in, accept employment from, or participate in, any business
that is in competition with the business of Employer in any state east
of the Mississippi River (other than Massachusetts or New Jersey) of
Employer.
b. Without limiting the restriction of Paragraph 7(a), above, Employee
specifically agrees that during the Restrictive Period, Paragraph 7(a)
prohibits Employee, in any of the capacities identified in Paragraph
7(a), from soliciting and/or accepting business from Employer's
customers. Employee acknowledges and agrees that the term "customers"
includes any business entity, doctor or institution that has ordered
any product or service from Employer and/or any entity that is wholly
or partially owned by the Company (all of such entities being
hereinafter referred to as the "Affiliated Entities") or is in the
process of ordering any product or service "pending customer".
c. This covenant is given and made by Employee to induce Employer to
employ Employee, and Employee acknowledges sufficiency of
consideration for this covenant.
d. This covenant shall be construed as an agreement independent of any
other provision in this Agreement and the existence of any claim or
cause of action of Employee against Employer or any Affiliated Entity
shall not constitute a defense to the enforcement of this covenant.
Employer has performed all obligations entitling it to this covenant
and it is therefore not executory or otherwise subject to rejection
under the Bankruptcy Code.
e. Employee agrees that these covenants are supported by legitimate
business interests, including, but not limited to: Employer's
valuable, confidential business information and "trade secrets" as
defined in Chapters 688 and 812 of the Florida Statutes, which
include, but are not limited to, the Employer's unique marketing
plans, advertising strategy and/or methodology as described in
paragraph 7(b) above, business plans, financial plans, forms, training
manuals and customer lists, which have been provided to the Employee
solely for use in Employer's business, and which the Employee agrees
have been developed through the Employer's expenditure of a great
amount of time, money and effort to refine other existing plans, forms
and lists in the industry, and which the Employee agrees contain
detailed information that could not be independently created from
public sources.
f. Employee agrees that this covenant is reasonably necessary to protect
the Employer's legitimate business interests, including, but not
limited to, the interests identified in Sections 7(b) and 7(e) above.
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g. This covenant may be enforced by the Employer's assignee or successor
or any of the Affiliated Entities and Employee acknowledges and agrees
that the Affiliated Entities are intended beneficiaries of this
Agreement .
h. If any portion of this covenant is held by an arbitration panel or
court of competent jurisdiction to be unreasonable, arbitrary or
against public policy for any reason, this covenant shall be divisible
as to time, geographic area and line of business and shall be
enforceable as to a reasonable time, area and line of business.
i. If the Employee violates the Restrictive Covenant, in any capacity
identified herein, any and all sales by Employee for himself or
herself, other individual(s), partnership, corporation, joint venture,
or any other entity with which he or she is associated, shall be
conclusively presumed to have been made by the Employer, but for the
violation.
j. Employee agrees that any failure of Employer to enforce the
Restrictive Covenant against any other Employee, for any reason, shall
not constitute a defense to enforcement of the Restrictive Covenant.
Section 8 - Restrictive Covenant-Remedies - Employer and Employee agree
that in the event of a breach of the Restrictive Covenant, such a breach would
irreparably injure Employer and would leave it with no adequate remedy at law,
and if legal proceedings should have to be brought by Employer to enforce the
Restrictive Covenant, Employer shall be entitled to all available civil
remedies, including:
a. Temporary and permanent injunctive relief restraining the Employee from
violating, directly or indirectly, the restrictions of the Restrictive
Covenant in any capacity identified in Section 7, supra, and restricting
third parties from aiding and abetting any violations of the Restrictive
Covenant.
b. Attorney's fees in arbitration, trial and appellate courts.
c. Costs and expenses of investigation and litigation, including expert
fees, deposition costs, bond premiums, and other costs and expenses.
d. Nothing in this Agreement shall be construed as prohibiting Employer
from pursuing any other legal or equitable remedies available to it for
breach or threatened breach of the Restrictive Covenant.
Notwithstanding the foregoing, the Company acknowledges and agrees that the
Employee will not be liable for the payment of any damages or fees owed to the
Company through the operation of Paragraph No. 8b-8c above, unless and until a
court of competent jurisdiction or arbitration panel has determined conclusively
that the Company is entitled to such recovery.
Section 9 - Confidentiality, Non-Solicitation and Title to Work Product
Agreement - Employee agrees to the terms of the Confidentiality,
Non-Solicitation and Title to Work Product Agreement attached hereto as Addendum
A and has signed that Agreement.
Section 10 - Importance of Certain Clauses - Employee and Employer state
that the Restrictive Covenant and Confidentiality Agreement incorporated into
this contract are material terms of this contract and all parties understand the
importance of such provisions to the ongoing business of Employer. As such,
because Employer's continued business and viability depend on the protection of
such secrets and non-competition, these clauses are interpreted by the parties
to have the widest and most expansive applicability as may be allowed by law and
Employee understands and acknowledges his or her understanding of same.
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Section 11 - Consideration - Employee acknowledges and agrees that the
provision of Employment under this Agreement and the execution by Employer of
this Agreement constitute full, adequate and sufficient consideration to
Employee for the Employee's duties, obligations and covenants under this
Agreement.
Section 12 - Vacation and Holidays - Vacation time shall be consistent with
the standards set forth in the Employee Handbook, as revised from time to time
or as otherwise published by the Company. Further, before taking vacation and
holiday time, Employee must submit a written request to take such time and such
request must be approved by the Employer. Notwithstanding the above, employee
will have 3 weeks vacation the first year of service prorated for time of
service, and 4 weeks vacation thereafter.
Section 13 - Exit Interview - Upon the effective date of termination of
employment, the Employee shall participate in an exit interview with Employer
and certify in writing that the Employee has complied with his or her
contractual obligations and agrees to comply with his or her continuing
obligations under this Agreement, including, but not limited to, the Restrictive
Covenant and the Confidentiality Agreement. The Employee shall also provide the
Employer with information concerning the Employee's subsequent employer and the
capacity in which the Employee will be employed. The Employee's failure to
comply shall be a material breach of this Agreement, for which the Employer, in
addition to any other civil remedy, may seek equitable relief.
Section 14 - Death - If Employee dies during the term of his or her
employment, Employer shall pay to the Employee's estate any accrued salary
consistent with the terms of this Agreement, and estate will have 90 days to
purchase all vested stock options. Employer shall have no further financial
obligations under this Agreement.
Section 15 - Representations of Employee - Employee represents and warrants
that nothing in his past legal and/or work experiences, which if became broadly
known in the marketplace, would impair his ability to serve as the President of
a publicly-traded company or materially damage his credibility with public
shareholders. Employee further represents and warrants that, prior to accepting
this offer of employment, he has disclosed all material information about his
past legal and work experiences that would be required to be disclosed on a
Directors and Officer's questionnaire for the purpose of determining what
disclosures, if any, will need to be made with the SEC. Prior to the Company's
next public filing, the Employee also agrees to fill out a Director's and
Officer's questionnaire in form and substance satisfactory to the Company's
counsel.
Section 16 - Effect of Partial Invalidity - The invalidity of any portion
of this Agreement shall not affect the validity of any other provision. In the
event that any provision of this Agreement is held to be invalid, the parties
agree that the remaining provisions shall remain in full force and effect.
Section 17 - Entire Agreement - This Agreement reflects the complete
agreement between the parties regarding the subject matter identified herein and
shall supersede all other agreements, either oral or written, between the
parties. The parties stipulate that neither of them, nor any person acting on
their behalf has made any representations except as are specifically set forth
in this Agreement and each of the parties acknowledges that they have not relied
upon any representation of any third party in executing this Agreement, but
rather have relied exclusively on their own judgment in entering into this
Agreement.
Section 18 - Assignment - Employer may sell, assign or transfer its
interest and rights under this Agreement at its sole discretion and without
approval of Employee. All rights and entitlements arising from this Agreement,
including but not limited to those protective covenants and prohibitions set
forth in paragraph 7 herein, shall inure to the benefit of any purchaser,
assignor or transferee of this Agreement and shall continue to be enforceable to
the extent allowable under applicable law. Neither this Agreement, nor the
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employment status conferred with its execution is assignable or subject to
transfer in any manner by Employee. If purchaser does not accept this agreement,
50% of all unvested time-based options will vest immediately and severance will
be honored and immediately go into effect.
Section 19 - Notices - All notices, requests, demands, and other
communications shall be in writing and shall be given by registered or certified
mail, postage prepaid, i) if to the Company, at the Company's then current
headquarters location, and ii) if to the Employee, at the most recent address on
file with the Company for the Employee or to such subsequent addresses as the
parties shall so designate in writing.
Section 20 - Remedies - If any action at law, equity or in arbitration,
including an action for declaratory relief, is brought to enforce or interpret
the provisions of this Agreement, Employer shall be entitled to recover its
reasonable attorneys' fees and costs from Employee.
Section 21- Amendment/Waiver - No waiver, modification, amendment or change
of any term of this Agreement shall be effective unless it is memorialized in a
writing signed by both parties. No waiver by Employer of any breach or
threatened breach of this Agreement shall be construed as a waiver of any
subsequent breach.
Section 22 - Governing Law, Venue and Jurisdiction - This Agreement and all
transactions contemplated by this Agreement shall be governed by, construed, and
enforced in accordance with the Laws of the State of Florida without regard to
any conflicts of laws, statutes, rules, regulations or ordinances. Employee
consents to personal jurisdiction and venue in the Circuit Court in and for Lee
County, Florida regarding any action arising under the terms of this Agreement
and any and all other disputes between with Employer.
Section 23 - Arbitration - Any and all controversies and disputes between
Employee and Employer arising from this Agreement or regarding any other matter
whatsoever shall be submitted to arbitration before the American Arbitration
Association, utilizing its Commercial Rules. Any arbitration action brought
pursuant to this section shall be heard in Fort Myers, Lee County, Florida. The
Circuit Court in and for Lee County, Florida shall have concurrent jurisdiction
with any arbitration panel for the purpose of entering temporary and permanent
injunctive relief.
Section 24 - Headings - The titles to the paragraphs of this Agreement are
solely for the convenience of the parties and shall not affect in any way the
meaning or interpretation of this Agreement.
Section 25 - Miscellaneous Terms - The parties to this Agreement declare
and represent that:
a. They have read and understand this Agreement;
b. They have been given the opportunity to consult with an attorney if
they so desire;
c. They intend to be legally bound by the promises set forth in this
Agreement and enter into it freely, without duress or coercion;
d. They have retained signed copies of this Agreement for their records;
and
e. The rights, responsibilities and duties of the parties hereto, and the
covenants and agreements contained herein, shall continue to bind the
parties and shall continue in full force and effect until each and
every obligation of the parties under this Agreement has been
performed.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
EMPLOYEE:
/s/ Robert Gasparini
Robert Gasparini
NEOGENOMICS, INC.
By:______________________________
Name:____________________________
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Addendum A
CONFIDENTIALITY, NON-SOLICITATION AND TITLE TO WORK PRODUCT AGREEMENT
This Confidentiality, Non-Solicitation and Title to Work Product Agreement
(the "Agreement") is entered into by and between Robert Gasparini ("Employee")
and NeoGenomics, Inc. (the "Company") on this 14th day of December, 2004.
WHEREAS, the Company desires to protect and preserve its Confidential
Information and Trade Secrets and to protect its business; and
WHEREAS, Employee desires to enter into an employment relationship with the
Company and acknowledges that the Company anticipates that Employee may receive
and/or come into contact with such Confidential Information and Trade Secrets in
connection with such employment.
Now, therefore, in consideration of the mutual promises set forth herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged by Employee, the parties agree as follows:
1. Definition of Terms
a. The term "Confidential Information" as used herein shall include all
testing recipes, formulas, business practices, methods, techniques, or processes
that: (i) derives independent economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by proper means
by, other persons who can obtain economic value from its disclosure or use; and
(ii) is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy. Confidential Information also includes, but is not limited
to, Marketing Information, Marketing Strategy, Pricing Information, Product
Plans, Business Plans, Financial Plans, Forms, Customer Lists, Salary
Information, Training Manuals, Training Tapes and other business information of
a similar nature, including information about the Company itself, which Employee
acknowledges and agrees has been compiled by the Company's expenditure of a
great amount of time, money and effort, and that contains detailed information
that could not be created independently from public sources. Further, all data,
spreadsheets, reports, records, know-how, verbal communication, proprietary and
technical information and/or other confidential materials of similar kind
transmitted by the Company to Employee are expressly included within the
definition of "Confidential Information." The parties further agree that the
fact the Company may be seeking to complete a business transaction is
"Confidential Information" within the meaning of this Agreement, as well as all
notes, analysis, work product or other material derived from Confidential
Information.
b. Employee acknowledge(s) that this "Confidential Information" is of value
to the Company by providing it with a competitive advantage over its
competitors, is not generally known to competitors of the Company, and is not
intended by the Company for general dissemination. Employee acknowledges that
this "Confidential Information" derives independent economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use, and is the subject of reasonable efforts to maintain
its secrecy. Therefore, the parties agree that all "Confidential Information"
under this Agreement constitutes "Trade Secrets" under Section 688.002 and
Chapter 812 of the Florida Statutes.
2. Term.
Employee agree(s) that the term of this agreement is effective upon
execution and shall survive and continue to be in force and effect for two years
following the termination of any employment relationship between the parties,
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whether termination is by the Company, with or without cause, wrongful
discharge, or for any other reason whatsoever, or by the Employee.
3. Duty of Confidentiality.
All Confidential Information is considered highly sensitive and strictly
confidential. Accordingly, upon receiving any Confidential Information, Employee
agrees that he/she shall maintain and preserve such Confidential Information and
prevent its disclosure to any third party unless otherwise expressly authorized
by the Company. Employee shall not use or disclose, directly or indirectly, as
an individual or as a partner, joint venturer, employee, agent, salesman,
contractor, officer, director or otherwise, for the benefit of himself or
herself or any other person, partnership, firm, corporation, association or
other legal entity, any Confidential Information, unless expressly permitted by
this Agreement.
4. Limited Right of Disclosure
Employee shall limit disclosure of pertinent Confidential Information to
Employee's attorney, if any, ("Representative(s)") for the sole purpose of
evaluating Employee's relationship with the Company. Paragraph No. 2 of this
Agreement shall bind all such Representative(s), and Employee shall show this
Agreement to them and shall obtain their signed consent to be bound by this
Agreement prior to any disclosures.
In the event Employee wishes to employ counsel for the sole purpose of
assisting Employee in determining whether to establish an employment
relationship with the Company, Employee may disclose the Confidential
Information to such attorney provided that before doing so, the Company is
notified of and approves all such attorney. Such attorney will then be defined
as a Representative pursuant to this Agreement and shall be bound by this
Agreement in like fashion.
5. Return of Confidential Materials
All Confidential Information provided to Employee is the exclusive property
of the Company and must be returned to the Company in accordance with the
instructions of the Company. Employee agree(s) that upon termination of
employment with the Company, whether termination is by the Company, with or
without cause, wrongful discharge, or for any other reason whatsoever, or by the
Employee, Employee shall return all copies, in whatever form, including hard
copies and computer disks, of Confidential Information to the Company, and
Employee shall delete any copy of the Confidential Information on any computer
file or database maintained by Employee and shall certify in writing that he/she
has done so. In addition to returning all information to the Company as
described above, Employee will destroy any analysis, notes, work product or
other materials relating to or derived from the Confidential Information.
Further, Employee agree(s) that any intentional or unauthorized retention of
Confidential Information may constitute "civil theft" as such term is defined in
Chapter 772 of the Florida Statutes.
6. Imputation of Liability to Employee
The actions or negligence of any person or entity lawfully granted access
to Confidential Information, pursuant to Paragraph No. 4. above, will be deemed
to be the actions or negligence of the Employee with respect to the Confidential
Information, and the Employee shall be fully liable for any violations of
Paragraph No. 2 above by any such persons, and shall be subject to the relief
authorized in Paragraph No. 8.
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7. Agreement Not To Solicit
Employee agrees and acknowledges that he/she will not, directly or
indirectly, in one or a series of transactions, as an individual or as a
partner, joint venturer, employee, agent, salesman, contractor, officer,
director or otherwise, for the benefit of himself or herself or any other
person, partnership, firm, corporation, association or other legal entity: (A)
recruit, solicit or otherwise induce or influence any proprietor, partner,
stockholder, lender, director, officer, employee, sales agent, joint venturer,
investor, lessor, supplier, customer, agent, representative or any other person
which has a business relationship with the Company to discontinue, reduce or
modify such employment, agency or business relationship with the Company, or (B)
employ or seek to employ any person or agent who is then (or was at any time
within twelve (12) months prior to the date you or such entity employs or seeks
to employ such person) employed or retained by the Company. Any such
solicitation shall constitute a material breach of this Agreement and will cause
irreparable harm and loss to the Company for which monetary damages will be an
insufficient remedy. Therefore, the parties agree that in addition to any other
remedy available, the Company will be entitled to the relief identified in
Paragraph No. 8 below.
8. Relief Authorized
Any unauthorized use or disclosure of information in violation of Paragraph
No. 2 above or any solicitation in violation of paragraph 7 above shall
constitute a material breach of this Agreement, shall constitute
misappropriation under Florida Statutes, and shall cause irreparable harm and
loss to the Company for which monetary damages will be an insufficient remedy.
Therefore, the parties agree that in addition to any other remedy available, the
Company will be entitled to all of the civil remedies provided by Florida
Statutes, including:
a. Temporary and permanent injunctive relief restraining Employee or
Representatives and any other person, partnership, firm, corporation,
association or other legal entity acting in concert with Employee from
any actual or threatened i) unauthorized disclosure or use of
Confidential Information, in whole or in part, or from rendering any
service to any other person, partnership, firm, corporation,
association or other legal entity to whom such Confidential
Information in whole or in part, has been disclosed or used or is
threatened to be disclosed or used; or ii) unauthorized solicitation
by Employee or by any other person, partnership, firm, corporation,
association or other legal entity with whom Employee may have a direct
or indirect relationship;
b. Exemplary damages;
c. Compensatory damages, including actual loss from misappropriation and
unjust enrichment;
d. Attorneys' fees in trial and appellate courts; and
e. Costs and expenses of investigation and litigation, including expert
fees, deposition costs, injunction bond premiums, and all other
reasonable costs and expenses.
Notwithstanding the foregoing, the Company acknowledges and agrees that the
Employee will not be liable for the payment of any damages or fees owed to the
Company through the operation of Paragraph No. 8b-8e above, unless and until a
court of competent jurisdiction or arbitration panel has determined conclusively
that the Company is entitled to such recovery.
Nothing in this Agreement shall be construed as prohibiting the Company
from pursuing any other legal or equitable remedies available to it for actual
or threatened breach of the provisions of Paragraph No. 2 - Paragraph No. 7 of
this Agreement, and the existence of any claim or cause of action by Employee
against the Company shall not constitute a defense to the enforcement by the
Company of any of the provisions of this Agreement. The Company has fully
performed all obligations entitling it to the covenants of Paragraph No. 2 -
Paragraph No. 7 of this Agreement and therefore such prohibitions are not
executory or otherwise subject to rejection under the bankruptcy code.
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9. Agreement Not To Circumvent
Employee agrees not to pursue any transaction or comparable concept
identified herein as Confidential Information, other than through the Company
and its authorized representatives. It is further understood and agreed that the
Employee will direct all communications and requests for Confidential
Information regarding the Company through the Company's General Counsel. Any
violation of this covenant shall subject Employee to the remedies identified in
Paragraph No. 8 in addition to any other available remedies.
10. Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of state of Florida without regard to any statutory or common-law provision
pertaining to conflicts of laws. Employee agrees that courts of competent
jurisdiction in Lee County, Florida and the United States District Court for the
Southern District of Florida shall have concurrent jurisdiction with the
arbitration tribunals of the American Arbitration Association for purposes of
entering temporary, preliminary and permanent injunctive relief and with regard
to any action arising out of any breach or alleged breach of this Agreement.
Employee agrees to submit to the personal jurisdiction of such courts and any
other applicable court within the state of Florida.
11. Arbitration Agreement
Employee agrees that all controversies, claims, disputes and matters in
question arising out of, or related to this Agreement, the breach of this
Agreement, the business relationship between signatories to this Agreement or
any other matter or claim whatsoever shall be decided by binding arbitration
before the American Arbitration Association, utilizing its Commercial Rules.
Venue for any arbitration between the Company and Employee shall be held in Fort
Myers, Lee County, Florida.
12. Legitimate Business Interest
Employee agrees that protection of the Company's Confidential Information
constitutes a legitimate business interest justifying the restrictive covenants
contained herein. Employee further agrees that the restrictive covenants
contained herein are reasonably necessary to protect the Company's legitimate
business interest in preserving its Confidential Information.
13. Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and may not be assigned by Employee at any time. This Agreement
may be assigned only by the Company and shall be inure to the benefit of its
successors and/or assigns.
14. Entire Agreement
This Agreement is the entire agreement of the Parties with regard to the
matters addressed herein, and supersedes all negotiations, preliminary
agreements, and all prior and contemporaneous discussions and understandings of
the signatories in connection with the subject matter of this Agreement, except
however, that this Agreement shall be read in pari materia with any Employment
Agreement executed by Employee. This Agreement may be modified only by written
instrument signed by the Company and Employee.
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15. Attorney's Fees
In the event of any arbitration or civil litigation between the Parties
arising from this Agreement, or with regard to any other matter involving a
dispute between the Parties, the prevailing Party shall be entitled to recover
all costs incurred, with such costs to include, without limitation, reasonable
attorney's fees, including such fees and costs incurred with respect to any
appeal, in any bankruptcy proceeding or in any action to enforce an arbitration
award and/or judgment obtained by one party against the other.
16. Construction
The Parties agree that, notwithstanding the authorship of this Agreement by
the Company, such Agreement shall not be construed more favorably to one Party
than the other.
17. Severability
In case any one or more provisions contained in this Agreement shall, for
any reason, be held invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof and this Agreement shall be construed as if such invalid, illegal were
unenforceable provision had not been contained herein.
18. Waiver
The waiver by the Company of a breach or threatened breach of this
Agreement by Employee cannot be construed as a waiver of any subsequent breach
by Employee. The refusal or failure of the Company to enforce any specific
restrictive covenant in this Agreement against Employee, or any other person for
any reason, shall not constitute a defense to the enforcement by the Company of
any other restrictive covenant provision set forth in this Agreement.
19. Consideration
Employee expressly acknowledge and agree that the provision of Confidential
Information to him, her or them and the Company's execution of this Agreement
constitute full, adequate and sufficient consideration to Employee for the
covenants of Employee under this Agreement.
20. Notices
All notices required by this Agreement shall be in writing, shall be
personally delivered or sent by U.S. Mail, return receipt requested, and shall
be addressed to the signatories at the addresses shown on the signature page of
this Agreement.
21. Title to Workproduct
Employee agrees that all work products (including testing procedures, lab
manuals and other written materials, websites, presentation materials, course
materials, computer programming, advertising campaigns, slogans, videos,
pictures and other materials) created or developed by the Employee for the
Company during the term of the Employee's employment or any period in which the
Employee acted as a consultant (collectively, the "Work Product"), whether
developed specifically as a result of this Agreement or developed prior to the
execution of this Agreement, shall be considered a work made for hire and that
the Company shall be the sole owner of all rights, including copyright, in and
to the Work Product. If the Work Product, or any part thereof, does not qualify
as a work made for hire, the Employee agrees to assign, and hereby assigns, to
the Company for the full term of the copyright and all extensions thereof all of
its right, title and interest in and to the Work Product. All discoveries,
inventions, innovations, works of authorship, programs, improvements and ideas,
whether or not patentable or copyrightable or otherwise protectable, conceived,
completed, reduced to practice or otherwise produced by the Employee in the
course of its services hereunder in connection with or in any way relating to
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the business of the Company or capable of being used or adapted for use therein
or in connection therewith shall forthwith be disclosed to the Company and shall
belong to and be the absolute property of the Company. Employee hereby assigns
to the Company all right, title and interest in all of the discoveries,
inventions, innovations, works of authorship, programs, improvements, ideas and
other work product; all copyrights, trade secrets, and trademarks in the same;
and all patent applications filed and patents granted worldwide on any of the
same for any work previously completed on behalf of the Company or work
performed under the terms of this Agreement. Employee, if and whenever required
to do so (whether during or after the termination of his employment), shall at
the expense of the Company apply or join in applying for copyrights, patents or
trademarks or other equivalent protection in the United States or in other parts
of the world for any such discovery, invention, innovation, work of authorship,
program, improvement, and idea as aforesaid and execute, deliver and perform all
instruments and things necessary for vesting such patents, trademarks,
copyrights or equivalent protections when obtained and all right, title and
interest to and in the same in the Company absolutely and as sole beneficial
owner.
22. Acknowledgements
Employee acknowledge(s) that he or she has reviewed this Agreement prior to
signing it, that he or she knows and understands the contents, purposes and
effect of this Agreement, and that he or she has been given a signed copy of
this Agreement for his or her records. Employee further acknowledges and agrees
that he or she has entered into this Agreement freely, without any duress or
coercion.
23. Counterparts
This Agreement may be executed in counterparts, each of which shall be
deemed an original for all intents and purposes.
IN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ
THIS AGREEMENT AND KNOW AND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE
TO BE BOUND AND ABIDE BY THE REPRESENTATIONS, COVENANTS, PROMISES AND WARRANTIES
CONTAINED HEREIN.
By: _________________________________________________________
Employee Signature Date
Employee Name (Print)
Employee Address:
NeoGenomics, Inc.
12701 Commonwealth Drive, Suite 9
Fort Myers, FL 33913
By: __________________________________________________
Date
Name: _______________________________________________________
Its: ________________________________________________________
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