EXHIBIT 10-25 EMPLOYEMNT AGREEMENT
Published on April 14, 2008
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (“Agreement”) is made
this 12th day of March, 2008 by and between NeoGenomics, Inc. a Nevada
corporation ("Employer" and
collectively with any entity that is wholly or partially owned by the Employer,
the “Company”),
12701 Commonwealth Drive, Suite #5, Fort Myers, Florida 33913 and Robert P.
Gasparini (“Employee”), an
individual who resides at 20205 Wildcat Run Drive, Estero, FL 33928, and is
effective as of the date set forth below.
RECITALS:
WHEREAS, The Company is
engaged in the business of providing genetic and molecular diagnostic testing
services to doctors, hospitals and other healthcare institutions;
and
WHEREAS, The Employee has been
employed by the Employer for the last three years and the parties desire to
renew the Employee’s employment contract, and the Employee is willing to
continue to be employed by the Employer, and the Employer is willing to continue
to employ the Employee, in accordance with the terms, covenants, and conditions
as set forth in this Agreement.
Now, therefore, in consideration of the
mutual promises set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Employer and the
Employee agree as follows:
1. Employment
Period. Subject to the terms and conditions set forth herein
and unless sooner terminated as hereinafter provided, Company shall employ
Employee and Employee agrees to serve as an employee of Company for a four-year
period, beginning on January 1, 2008 (the “Effective Date”) to
and including the 4th
anniversary of the Effective Date (the “Initial Employment
Term”), and after the Initial Employment Term, the Agreement shall
automatically renew for consecutive one year periods (“renewal term”),
unless a written notice of a party’s intention to terminate this Agreement at
the expiration of the Initial Employment Term (or any renewal term) is delivered
by either party at least three (3) months prior to the expiration of the Initial
Employment Term or any renewal term, as applicable. For purposes of
this Agreement, the Initial Employment Term and any renewal term thereof are
collectively referred to herein as the “Employment Period” or
the “Term”. This
Agreement shall supersede all previous agreements between the Employer and the
Employee and shall take priority over all previous agreements relating to the
subject matter of this Agreement, provided, however, that all prohibitions
against Employee misappropriating or misusing confidential information, trade
secrets and soliciting clients of Employer and/or competing with Employer after
termination shall continue to be enforceable back to the original date of
execution of such other agreements.
2. 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 Scientific 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 positions in the 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 (the “Board of Directors”
or the “Board”)..
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3. Compensation
and Benefits of the Employee. The Employer shall compensate
Employee for Employee's services rendered under this Agreement as
follows:
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a.
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Base
Salary. Unless otherwise adjusted by the Compensation
Committee of the Board of Directors of the Company, Employee shall be paid
a base salary by Employer at such times as is consistent with normal
Company policy according to the following
schedule:
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1.) A
Base Salary equating to two hundred twenty five thousand dollars
($225,000) per annum until the end of the Term or until the conditions
outlined in Section 3a(2) or Section 3a(3) have been met. Such
Base Salary will be retroactive to the Effective
Date.
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2.) Beginning
on the first day of the fiscal quarter after any fiscal quarter in which
the Company has achieved quarterly revenues as prepared in accordance with
GAAP of $7,000,000 and continuing until the end of the Term or until the
conditions outlined in Section 3a(3) have been met, a salary equating to
two hundred fifty thousand dollars ($250,000) per
annum.
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3.) Beginning
on the first day of the fiscal quarter after any fiscal quarter in which
the Company has achieved quarterly revenues as prepared in accordance with
GAAP of $12,000,000 and continuing until the end of the Term, a salary
equating to two hundred seventy five thousand dollars ($275,000) per
annum.
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b.
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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, 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 the cash bonuses outlined below.
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1.) For
any given fiscal year during the Term, if the Company’s actual revenue for
such fiscal year, after excluding the effects of any Revenue Exclusions
(as defined in Section 3e(1) below), exceeds the annual revenue goals
approved in writing by the Board of Directors for such fiscal year based
on the board-approved Company budget for such year, Employee shall receive
a cash bonus of at least fifteen percent (15%) of his Base Salary as such
Base Salary was in effect as of the end of such fiscal year; and
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2.) For
any given fiscal year during the Term, if the Company’s actual net income
from continuing operations, after excluding the effects of any Net Income
Exclusions (as defined in Section 3e(2) below), exceeds the annual net
income goals approved in writing by the Board of Directors for such fiscal
year based on the Board-approved Company budget for such year, Employee
shall receive a cash bonus of at least fifteen percent (15%) of his Base
Salary as such Base Salary was in effect as of the end of such fiscal
year.
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The
Company agrees that such cash bonus, if any, will be paid no later than
ninety (90) days after the end of any given fiscal
year.
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c.
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Benefits. Employee
will be entitled to participate in and the Company shall pay for all
medical and other benefits that the Company has established for employees
of the
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Company,
including, but not limited to one hundred percent (100%) of any health
insurance premium for the Employee in accordance with the Company’s policy
for such reimbursement as well as any other benefits established for
officers of the Company by the Board of Directors. All benefits
that may be payable by the Company are identified in the Employee Handbook
and are subject to change without notice or explanation. In
addition to the forgoing, the Company shall pay for the following
additional benefits for the
Employee:
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1.)
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Long-term
disability insurance in an amount sufficient to cover sixty percent (60%)
of the Employee’s Base Salary, which shall include any long-term
disability insurance premiums paid by the Employee within the six month
period prior to the Effective Date.
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2)
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Term
life insurance subject to a cap of $2.0 million in death
benefits.
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3.)
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Up
to six thousand dollars ($6,000) of estate planning expenses incurred by
the Employee, which shall include any estate planning expenses incurred by
the Employee within the six month period prior to the Effective
Date.
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d.
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Stock
Options. On the Effective Date, the Employee will be
granted an option to purchase 784,000 shares of the Company’s common stock
(the “Options”) on
the terms and conditions listed below. Such Options will have a
strike price of $0.80/share and the vesting and other terms of such
Options shall be as outlined below.
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1.)
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Time-based
Options - 384,000 of such options will be time-based options and
will vest 8,000 options per month for the forty eight (48) months of the
Initial Employment Term. For the purposes of this Agreement
each month’s time-based options will be deemed vested at 5:00 PM on the
last day of each calendar month during such monthly vesting
period. These time-based options will be Incentive Stock
Options (ISOs) to the extent allowable under current SEC and IRS
guidelines, and that the remainder, if any, will be in the form of
non-qualified stock options. The grant of these time-based
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
within sixty (60) days of the date of this Agreement, provided that it has
received an executed copy of the Company’s Confidentiality,
Non-Competition and Non-Solicitation Agreement from the
Employee. So long as the Employee remains employed by the
Company, such time-based options will have a seven-year term with which to
be exercised from the grant date.
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2.)
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Performance-based
Options - 400,000 of such options will be performance-based options
and will vest according to the schedule outlined below. These
performance-based options will be non-qualified options (NQOs) and will be
granted under a board approved form of stock option agreement that is
outside of the Company’s Stock Option Plan, which the Company will execute
within sixty 60 days of the date of this Agreement, provided that it has
received an executed copy of the Company’s Confidentiality,
Non-Competition and Non-Solicitation Agreement from the
Employee. So long as the Employee remains employed by the
Company, such performance-based options will have a seven-year term with
which to be exercised from the grant date. Employee understands
and acknowledges that if the performance metrics for any given year are
not met, then such options shall be forfeited and may not be rolled into
successive years.
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Vesting of Performance-Based
Options
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50,000
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if the Company achieves the consolidated revenue goal for FY 2008 outlined
by the Board of Directors as part of the Company’s FY 2008 budget after
excluding the effects of any Revenue Exclusions for such fiscal year
and;
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50,000
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if
the Company achieves the consolidated net income goal for FY 2008 outlined
by the Board of Directors as part of the Company’s FY 2008 budget after
excluding the effects of any Net Income Exclusions for such fiscal
year;
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50,000
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if
the Company achieves the consolidated revenue goal for FY 2009 outlined by
the Board of Directors as part of the Company’s FY 2009 budget after
excluding the effects of any Revenue Exclusions for such fiscal year
and;
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50,000
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if
the Company achieves the consolidated net income goal for FY 2009 outlined
by the Board of Directors as part of the Company’s FY 2009 budget after
excluding the effects of any Net Income Exclusions for such fiscal
year;
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50,000
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if
the Company achieves the consolidated revenue goal for FY 2010 outlined by
the Board of Directors as part of the Company’s FY 2010 budget after
excluding the effects of any Revenue Exclusions for such fiscal year
and;
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50,000
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if
the Company achieves the consolidated net income goal for FY 2010 outlined
by the Board of Directors as part of the Company’s FY 2010 budget after
excluding the effects of any Net Income Exclusions for such fiscal
year;
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50,000
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if
the Company achieves the consolidated revenue goal for FY 2011 outlined by
the Board of Directors as part of the Company’s FY 2011 budget after
excluding the effects of any Revenue Exclusions for such fiscal year
and;
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50,000
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if
the Company achieves the consolidated net income goal for FY 2011 outlined
by the Board of Directors as part of the Company’s FY 2011 budget after
excluding the effects of any Net Income Exclusions for such fiscal
year;
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The
Employee understands that upon termination of his employment, he will only
have up to ninety (90) days to exercise any vested options. All
Options awarded pursuant to this paragraph will contain a provision that
allows for immediate vesting of such Options in the event of a change of
control of the Company.
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e.
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Revenue
and Net Income Exclusions Defined. For the purposes of
Section 3b and 3d above, to the extent the Company acquires any companies
or businesses during any given fiscal year and the financial impact of
such acquisition was not previously factored into the annual operating
budget approved by the Board of Directors, the following revenue and net
income adjustments shall be made to the Company’s fiscal results in
measuring whether or not the Company has met or exceeded the specific
performance targets outlined in Sections 3b or
3d.
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1.) “Revenue
Exclusions” shall be defined as the pro rated annualized quarterly
GAAP revenue of any company or business acquired by the Company for the
most recent fiscal quarter prior to the date such company or business is
acquired by the
Company. Such
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annualized
quarterly revenue shall be prorated by multiplying the total annualized
quarterly revenue described above by a fraction, the numerator of which is
the number of days of the financial results of the acquired business or
company that are included in the Company’s financial results during the
fiscal year in question, and the denominator of which is
365.
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2.) “Net Income
Exclusions” shall be defined as the pro rated annualized quarterly
GAAP net income of any company or business acquired by the Company for the
most recent fiscal quarter prior to the date such company or business is
acquired by the Company. Such annualized quarterly net income
shall be prorated by multiplying the total annualized quarterly net income
described above by a fraction, the numerator of which is the number of
days of the financial results of the acquired business or company that are
included in the Company’s financial results during the fiscal year in
question, and the denominator of which is 365. Net income
exclusions shall also include a) any non-cash stock compensation expenses
over and above what was included in any budget, and b) any extraordinary
or non-recurring expenses that were not included in the budget for any
given year and in the reasonable judgment of the Compensation Committee
could not have been foreseen by Management during the process to set the
budget for such year.
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f.
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Paid
Time-Off and Holidays. Employee’s paid time-off (“PTO”) and
holidays 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. Notwithstanding the previous sentence, Employee will
be eligible for four (4) weeks of paid time off (PTO)/year (160 hours),
which will accrue on a pro-rata basis throughout the year, provided,
however, that it is the Company’s policy that no more than forty (40)
hours of paid time-off can be accrued and carried forward for any given
employee as of the anniversary of their employment date in any given
year. Thus, when accrued PTO reaches two hundred (200) hours,
Employee will cease accruing PTO until accrued PTO is one hundred sixty
(160) hours or less – at which point Employee will again accrue PTO until
he reaches two hundred (200) hours. In addition to paid time
off, there are also six (6) paid national holidays and two (2) “floater”
days available to Company employees. Employee agrees to
schedule such paid time-off so that it minimally interferes with the
Company’s operations. Such PTO does not include Board of
Directors excused absences.
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g.
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Reimbursement
of Normal Business Expenses. The Company will reimburse
all normal business expenses of the Employee not covered by the above
paragraphs, including, but not limited to, cell phone expenses and
business related travel, meals and entertainment expenses in accordance
with the Company’s polices for such
reimbursement.
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4. Best
Efforts of the Employee and Place of Employment. Employee agrees to
perform all of the duties pursuant to the express and implicit terms of this
contract to the reasonable satisfaction of Employer. Employee further
agrees to perform such duties faithfully and to the best of his ability, talent,
and experience, and devote his full-working time and attention on Employer's
business (at least forty (40) hours per week). Employee shall render
such duties at the Employer’s primary place of business in Fort Myers, FL or
such other place or places as the interest, needs, business, or opportunity of
Employer shall require.
5. Termination. The parties agree that
any termination of the Employee under this Agreement will be governed as
follows:
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a. By the
Company for Cause. The Company shall have the right to terminate this
Agreement and to discharge the Employee for Cause (as defined below), at any
time during the Employment Period. For the purposes of this
Agreement, the Company shall have “Cause” to terminate the Employee’s employment
hereunder upon:
(i) failure
to materially perform and discharge the duties and responsibilities of Employee
under this Agreement after receiving written notice and allowing Employee ten
(10) business days to create a plan to cure such failure(s), such plan being
acceptable to the Board of Directors, and a further thirty (30) days to cure
such failure(s), if so curable, provided, however, that after
one such notice has been given to Employee and the thirty (30) day cure period
has lapsed, the Company is no longer required to provide time to cure subsequent
failures under this provision, or
(ii) any
breach by Employee of the material provisions of this Agreement; or
(iii) misconduct
which, in the good faith opinion and sole discretion of the Board of Directors,
is injurious to the Company; or
(iv) felony
conviction involving the personal dishonesty or moral turpitude of Employee; or
a determination by the Board, after consideration of all available information,
that Employee has willfully and knowingly violated Company policies or
procedures involving discrimination, harassment, or work place violence;
or
(v) engagement
in illegal drug use or alcohol abuse which prevents Employee from performing his
duties in any manner, or
(vi) any
misappropriation, embezzlement or conversion of the Company’s opportunities or
property by the Employee; or
(vii) willful
misconduct, recklessness or gross negligence by the Employee in respect of the
duties or obligations of the Employee under this Agreement and/or the
Confidentiality, Non-Solicitation or Non-Competition Agreement.
Any
termination for Cause pursuant to this Section shall be given to the Employee in
writing and shall set forth in detail all acts or omissions upon which the
Company is relying to terminate the Employee for Cause. If an
Employee is terminated for Cause, the Employee shall only be entitled to receive
his accrued and unpaid Salary, bonus and other benefits through the termination
date and the Company shall have no further obligations under this Agreement from
and after the date of termination.
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b.
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Termination
by Company Without Cause. At any time during the
Employment Period, the Company shall have the right to terminate this
Agreement and to discharge the Employee without Cause effective upon
delivery of written notice to the Employee. If the Company
terminates the Employee 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 3a. and maintain the Executive’s
employee benefits in accordance with Section 3c. (the “Severance
Payments”) for twelve (12) months from the notice
of
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termination. Employee
further agrees that in the event that he obtains employment during any
period where Severance Payments are being made, he will promptly notify
the Company. Provided that such employment does not violate the
terms of the Confidentiality, Non-Solicitation and Non-Competition
Agreement, such severance payments will continue to be paid; however, in
the event the Company deems in its sole discretion that such employment is
a violation of the terms of the Confidentiality, Non-Solicitation and
Non-Competition Agreement, then the Company shall have the right to
immediately cease making any such Severance Payments and will no longer be
obligated to the Employee for any unpaid Severance
Payments. Other than the Severance Payments, the
Company shall have no further obligation to the Employee after the date of
such termination; provided, however, that
the Employee shall only be entitled to continuation of the Severance
Payments as long as he is in compliance with the provisions of the
Confidentiality, Non-Compete and Non-Solicit Agreement, which is part of
this Agreement. If termination without cause shall occur at
anytime, then the pro rata portion of any unvested Time-based options (as
specified in Section 3(d)(1)) up until the date of notice of termination
that are due to vest in the year or month of termination shall
vest.
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The
Employee acknowledges and agrees that any and all payments to which he would be
entitled under this Paragraph 5b 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.
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c.
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By
Resignation of the Employee. The Employee may terminate
his employment hereunder, upon giving sixty (60) days written notice to
the Company. The Employee agrees that during such sixty (60)
day period no more than one week of unused vacation may be utilized and
that all other unused vacation up to the time of termination shall be
forfeited. 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 and the pro rata portion of
any unvested Time-based options (as specified in Section 3(d)(1)) up until
the date of separation that are due to vest in the year or month of
separation shall vest.
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d.
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Disability
of the Employee. This Agreement may be terminated by the
Company upon the Disability of the Employee. "Disability" shall
mean any mental or physical illness, condition, disability or incapacity
which prevents the Employee from reasonably discharging his duties and
responsibilities under this Agreement for a period of ninety (90) days in
any one hundred eighty (180) day period. In the event that any
disagreement or dispute shall arise between the Company and the Employee
as to whether the Employee suffers from any Disability, then, in such
event, the Employee shall submit to the physical or mental examination of
a physician licensed under the laws of the State of Florida, who is
agreeable to the Company and the Employee, and such physician shall
determine whether the Employee suffers from any Disability. In
the absence of fraud or bad faith, the determination of such physician
shall be final and binding upon the Company and the
Employee. The entire cost of such examination shall be paid
solely by the Company. In the event the Company has purchased
disability insurance for Employee, the Employee shall be deemed disabled
if he is disabled as defined by the terms of the disability
policy.
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On
the date that the Employee is deemed to have a Disability, this Agreement
will be deemed to have been terminated and the Employee shall be entitled
to receive from the Company his accrued and unpaid Base Salary, bonus and
other benefits through the termination date. If a termination
of the Employee by Disability shall occur at anytime, than the pro rata
portion of any unvested Time-based options (as specified in Section 3d(1))
up until the date of the Employee’s termination that were due to vest in
the year or month of the Employee’s termination shall vest. In
addition, if a termination of the Employee by Disability shall occur after
September 30th
of any given year, than the pro rata portion of any unvested
performance-based options (as specified in Section 3d(2)) up until the
date of the Employee’s termination that would have vested at the end of
such year if the Employee were still employed by the Company and the
Company met the relevant performance metric, shall vest. Other than as set
forth in the immediately preceding three sentences, the Company shall have
no further salary or bonus payment or other benefits obligations under
this Agreement from and after the date of termination due to
Disability.
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e.
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Death
of the Employee. In the event of the death of Employee,
the employment of the Employee by the Company shall automatically
terminate on the date of the Employee's death and the Company shall be
obligated to pay Employee’s estate (i) the Employee’s accrued and unpaid
Base Salary, bonus and other benefits through the termination
date. If the death of the Employee shall occur at anytime, than
the pro rata portion of any unvested Time-based options up until the date
of the Employee’s death that were due to vest in the year or month of the
Employee’s death shall vest. Other than as set forth in the
immediately preceding two sentences, the Company shall have no further
obligations under this Agreement from and after the date of termination
due to the death of the Employee.
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6. Confidentiality,
Non-Compete & Non-Solicitation Agreement. Employee agrees
to the terms of the Confidentiality, Non-Compete and Non-Solicitation Agreement
attached hereto as Addendum A and has
signed that Agreement. Such Confidentiality, Non-Compete &
Non-Solicitation Agreement is hereby incorporated into and part of this
Agreement.
7. Importance
of Certain Clauses. Employee and Employer state that the
covenants contained in the Confidentiality, Non-Compete and Non-Solicitation
Agreement attached hereto and incorporated into this Agreement are material
terms of this Agreement 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.
8. Consideration. Employee
acknowledges and agrees that the provision of employment under this Agreement
and the execution by the Employer of this Agreement constitute full, adequate
and sufficient consideration to Employee for the Employee's duties, obligations
and covenants under this Agreement and under the Confidentiality,
Non-Competition & Non-Solicit Agreement incorporated into this
Agreement.
9. Exit
Interview. Upon the effective date of termination of
employment (unless due to Employee’s death), the Employee shall participate in
an exit interview with Employer and certify in writing that the Employee has
complied with his contractual obligations and intends to
comply with his continuing obligations under this Agreement,
including, but not limited to, the terms of the Confidentiality,
Non
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Compete
and Non-Solicit 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.
10. Withholding.
All payments made to the Employee shall be made net of any applicable
withholding for income taxes and the Employee's share of FICA, FUTA or other
taxes. The Company shall withhold such amounts from such payments to the extent
required by applicable law and remit such amounts to the applicable governmental
authorities in accordance with applicable law.
11. Representations
of Employee. Employee represents and warrants to the Company
that (a) nothing in his past legal and/or work and/or personal 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; (b) that there are no restrictions,
agreements, or understandings whatsoever to which he is a party which
would prevent or make unlawful his execution of this Agreement or employment
hereunder, (c) that Employee’s execution of this Agreement and employment
hereunder shall not constitute a breach of any contract, agreement or
understanding, oral or written, to which he is a party or by which he is bound,
(d) that Employee is free and able to execute this Agreement and to
continue employment with the Company, and (e) that
Employee has not used and will not use confidential information or trade secrets
belonging to any prior employers to perform services for Company.
12. 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.
13. Entire
Agreement. This Agreement including Addendum A reflects the
complete agreement between the parties regarding the subject matter identified
herein and shall supersede all other previous 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 it or he has not relied upon any representation of any third party in
executing this Agreement, but rather have relied exclusively on his own judgment
in entering into this Agreement.
14. Assignment. Employer
may assign its interest and rights under this Agreement at its sole discretion
and without approval of Employee to a successor in interest by Employer’s
merger, consolidation or other form of business combination with or into a third
party where Employer’s stockholders before such event do not control
a majority of the resulting business entity after such event. All
rights and entitlements arising from this Agreement, including but not limited
to those protective covenants and prohibitions set forth in the Confidentiality,
Non-Compete and Non-Solicitation Agreement attached as Addendum A and
incorporated into this Agreement 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 employment status conferred with its execution is assignable or subject
to transfer in any manner by Employee.
15. 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 either party shall so designate in writing to
the other party.
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16. 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, the
prevailing party may, if the court or arbitrator hearing the dispute, so
determines, have its reasonable attorneys’ fees and costs of enforcement
recouped from the non-prevailing party.
17. Amendment/Waiver. No
waiver, modification, amendment or change of any term of this Agreement shall be
effective unless it is in a written agreement 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 unless it
so provides by its terms.
18. 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
Employee and Employer.
19. 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 a single unbiased arbitrator skilled in arbitrating such
disputes under 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, but
only with respect to any alleged breach of the Confidentiality, Non-Compete and
Non-Solicitation Agreement.
20. 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.
21. Miscellaneous
Terms. The parties to this Agreement declare and represent
that:
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a.
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They
have read and understand this
Agreement;
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b.
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They
have been given the opportunity to consult with an attorney if they so
desire;
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c.
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They
intend to be legally bound by the promises set forth in this Agreement and
enter into it freely, without duress or
coercion;
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d.
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They
have retained signed copies of this Agreement for their records;
and
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e.
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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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22. Counterparts. This Agreement
may be executed in counterparts and by facsimile, or by pdf,
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each of
which shall be deemed an original for all intents and purposes.
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the date first written above.
EMPLOYEE:
_/s/
Robert Gasparing_______________________________
Robert P.
Gasparini
NEOGENOMICS,
INC.
/s/ Steve
Jones______________________
Name:_Steven
Jones_________________
Title: _Acting Principal Financial
Officer________________________
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Addendum
A
Form
of Confidentiality, Non-Compete and Non-Solicitation Agreement
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