Published on July 30, 2009
Exhibit
10.1
July 22,
2009
Grant
Carlson
Dear
Grant,
On behalf
of NeoGenomics Laboratories (“NeoGenomics” or the “Company”), it is my pleasure
to extend this offer of employment for the Vice President of Sales &
Marketing position to you. If the following terms are satisfactory,
please countersign this letter (the “Agreement”) and return a copy to me at your
earliest convenience.
|
Position:
|
You
will be elected to the position of Vice President of Sales & Marketing
at the first scheduled meeting of the Board of Directors after your Start
Date.
|
|
Duties:
|
As
Vice President of Sales & Marketing, you will report to the Chief
Executive Officer (“CEO”) of the Company or such other person as may be
appointed by the CEO and you will be responsible for managing the overall
sales and marketing activities of the Company. These
responsibilities will include hiring, training, developing and managing
that number of sales personnel needed to meet or exceed the Company’s
yearly sales budgets, managing the overall customer acquisition process
for the Company, providing new product development and new marketing
initiatives for the Company and such other duties as may be assigned to
you by the CEO of the Company or the Board’s designee in the absence of
the CEO.
|
|
Start
Date:
|
July
6, 2009, with vacation and certain benefits considered to be effective as
if you were an employee as of January 1, 2009 (giving consideration to
your status as a Consultant as of the beginning of this
year).
|
|
Term:
|
Four
years from the Start Date, provided that either party may cancel this
agreement by giving the other party written notice of a
termination.
|
|
Base
Salary:
|
$200,000/year,
payable bi-weekly. The parties agree that this salary is for a
full-time position. Thereafter, increases in base salary may occur
annually at the discretion of the CEO of the Company with the approval of
the Compensation Committee of the Board of
Directors.
|
Grant
Carlson
Page
2 of 7
|
Relocation:
|
You
will be eligible for relocation assistance should you agree to establish a
residence in the greater Fort Myers area no later than September 1,
2010. Please refer to the terms in the attached Relocation
Agreement.
|
|
Bonus:
|
Beginning
with the fiscal year ending December 31, 2009, you will be eligible to
receive an incentive bonus payment which will be targeted at 30% of your
Base Salary based on 100% achievement of goals as agreed upon between you
and the CEO of the Company and approved by the Board of Directors for such
fiscal year.
|
|
Benefits:
|
You
will be entitled to participate in all medical and other benefits that the
Company has established for its employees in accordance with the Company’s
policy for such benefits at any given time. Other benefits may
include but not be limited to: short term and long term disability,
dental, a 401K plan, a section 125 plan and an employee stock purchase
plan.
|
|
Car
& phone
|
|
|
Allowance:
|
The
parties agree that a significant portion of your time will be spent on
sales and marketing activities and it is expected that you will need to
utilize your personal vehicle and telephones to perform the duties of your
position. As such, the Company agrees to provide you a taxable
automobile allowance of $700 per month plus reimburse you for all
work-related gas expenses according to the current policy. The
Company also agrees to reimburse you for the use of your personal
telephone and cell phone at a taxable rate of $250 per month according to
the current policy.
|
|
Paid
Time Off:
|
You
will be eligible for 4 weeks of paid time off (PTO)/year (160 hours),
which will accrue on a pro-rata basis beginning from your hire date and be
may carried over from year to year. It is company policy that
when your accrued PTO balance reaches 160 hours, you will cease accruing
PTO until your accrued PTO balance is 120 hours or less – at which point
you will again accrue PTO until you reach 160 hours. You are eligible to
use PTO after completing 3 months of employment. In addition to paid time
off, there are also 6 paid national holidays and 1 “floater” day available
to you.
|
|
Stock
Options:
|
Upon
your Start Date, you will be granted stock options to purchase up to
150,000 shares of NeoGenomics common stock at an exercise price equivalent
to the closing price per share at which NeoGenomics stock was quoted on
the NASDAQ Bulletin Board the day prior to your start date. The grant of
such options will be made pursuant to the Company’s stock option plan then
in effect and will be evidenced by a separate Option Agreement, which the
Company will execute with you within 60 days of receiving a copy of the
Company’s Confidentiality, Non-Competition and Non-Solicitation Agreement
which has been executed by you. So long as you remained
employed by the Company, such options will have a five-year term from the
grant date and will vest according to the following
schedule:
|
Grant
Carlson
Page
3 of 7
Time-Based
Vesting
|
|
18,750
|
at
your first year anniversary
|
|
|
18,750
|
at
your second year anniversary
|
|
|
18,750
|
at
your third year anniversary
|
|
|
18,750
|
at
your fourth year anniversary
|
Company
Performance-Based Vesting
|
|
9,375
|
if
the Company achieves the board approved budgeted revenue for FY
2009;
|
|
|
9,375
|
if
the Company achieves the board approved budged adjusted EBITDA projections
for FY 2009.
|
|
|
9,375
|
if
the Company achieves the board approved budgeted revenue for FY
2010;
|
|
|
9,375
|
if
the Company achieves the board approved budged adjusted EBITDAprojections
for FY 2010.
|
|
|
9,375
|
if
the Company achieves the board approved budgeted revenue for FY
2011;
|
|
|
9,375
|
if
the Company achieves the board approved budged adjusted EBITDAprojections
for FY 2011.
|
|
|
9,375
|
if
the Company achieves the board approved budgeted revenue for FY
2012;
|
|
|
9,375
|
if
the Company achieves the board approved budged adjusted EBITDAprojections
for FY 2012.
|
If for
any reason you resign prior to the time which is 12 months from your Start Date,
you will forgo all such options. Furthermore, you understand that the Company’s
stock option plan requires that any employee who leaves the employment of the
Company will have no more than three (3) months from their termination date to
exercise any vested options.
The
Company agrees that it will grant to you the maximum number of Incentive Stock
Options (“ISO’s”) available under current IRS guidelines and that the remainder,
if any, will be in the form of non-qualified stock options.
Termination
|
Without
Cause:
|
If
the Company terminates you without “Cause” for any reason during the Term
or any extension thereof, then the Company agrees that as severance it
will continue to pay you your Base Salary and maintain your employee
benefits for a period that is equal to six (6) months of your employment
by the Company, beginning on the date of your termination
notice.
|
Grant
Carlson
Page
4 of 7
|
For
the purposes of this letter agreement, the Company shall have “Cause” to
terminate your employment hereunder upon: (i) failure to
materially perform and discharge your duties and responsibilities under
this Agreement (other than any such failure resulting from incapacity due
to illness) after receiving written notice and allowing you ten (10)
business days to cure such failures, if so curable, provided, however,
that after one such notice has been given to you, the Company is no longer
required to provide time to cure subsequent failures under this provision,
or (ii) any breach by you of the provisions of this Agreement; or (iii)
misconduct which, in the opinion and sole discretion of the Company, is
injurious to the Company; or (iv) any felony conviction involving the
personal dishonesty or moral turpitude, or (v) engagement in illegal drug
use or alcohol abuse which prevents you from performing your duties in any
manner, or (vi) any material misappropriation, embezzlement or conversion
of the Company’s or any of its subsidiary’s or affiliate’s property or
business opportunities by you; or (vii) willful misconduct by you in
respect of your duties or obligations under this Agreement and/or the
Confidentiality, Non-Solicitation, and Non-competition
Agreement.
|
|
|
You
acknowledge and agree that any and all payments to which you are entitled
under this Section are conditioned upon and subject to your execution of a
general waiver and release, in such reasonable form as counsel for each of
the Company and you shall agree upon, of all claims you have or may have
against the Company.
|
|
|
Confidentiality,
|
|
|
Non-Compete,
&
|
|
|
Work
+Products:
|
You
agree that prior to your Start Date, you will execute the Company’s
Confidentiality, Non-Competition and Non-Solicitation Agreement attached
to this letter as Exhibit 1. You understand that if you should
fail to execute such Confidentiality, Non-Competition and Non-Solicitation
Agreement in the
|
|
agreed-upon
form, it will be grounds for revoking this offer and not hiring
you. You understand and acknowledge that this Agreement shall
be read in pari
materia with the Confidentiality, Non-Competition and
Non-Solicitation Agreement and is part of this
Agreement.
|
|
|
Executive’s
|
|
|
Representations:
|
You
understand and acknowledge that this position is an officer level position
within NeoGenomics. You represent and warrant, to the best of
your knowledge, that nothing in your past legal and/or work experiences,
which if became broadly known in the marketplace, would impair your
ability to serve as an officer of a public company or materially damage
your credibility with public shareholders. You further
represent and warrant, to the best of your knowledge, that, prior to
accepting this offer of employment, you have disclosed all material
information about your past legal and work experiences that would be
required to be disclosed on a Directors and Officers’ 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, you
also agree to fill out a Director’s and Officer’s questionnaire in form
and substance satisfactory to the Company’s counsel. You
further represent and warrant, to the best of your knowledge, that you are
currently not obligated under any form of non-competition or
non-solicitation agreement which would preclude you from serving in the
position indicated above for NeoGenomics or soliciting business
relationships for any laboratory services from any potential customers in
the United States.
|
Grant
Carlson
Page
5 of 7
|
Miscellaneous:
|
(i) This
Agreement supersedes all prior agreements and understandings
between the parties and may not be modified or terminated
orally. No modification or attempted waiver will be valid
unless in writing and signed by the party against whom the same is sought
to be enforced.
|
|
(ii)
|
The
provisions of this Agreement are separate and severable, and if any of
them is declared invalid and/or unenforceable by a court of competent
jurisdiction or an arbitrator, the remaining provisions shall not be
affected.
|
|
(iii)
|
This
Agreement is the joint product of the Company and you and each provision
hereof has been subject to the mutual consultation, negotiation and
agreement of the Company and you and shall not be construed for or against
either party hereto.
|
|
(iv)
|
This
Agreement will be governed by, and construed in accordance with the
provisions of the law of the State of Florida, without reference to
provisions that refer a matter to the law of any other
jurisdiction. Each party hereto hereby irrevocably submits
itself to the exclusive personal jurisdiction of the federal and state
courts sitting in Florida; accordingly, any matters involving the Company
and the Executive with respect to this Agreement may be adjudicated only
in a federal or state court sitting in Lee County,
Florida.
|
|
(v)
|
This
Agreement may be signed in counterparts, and by fax, each of which shall
be an original, with the same effect as if the signatures thereto and
hereto were upon the same
instrument.
|
|
(vi)
|
Within
three days of your start date, you will need to provide documentation
verifying your legal right to work in the United States. Please
understand that this offer of employment is contingent upon your ability
to comply with the employment verification requirements under federal laws
and that we cannot begin payroll until this requirement has been
meet.
|
|
(vii)
|
Employment
with NeoGenomics is an “at-will” relationship and not guaranteed for any
term. You or the Company may terminate employment at anytime
for any reason by providing written
notice.
|
(Signatures
Appear on the Next Page)
Grant
Carlson
Page
6 of 7
Grant, I
know that with your help we can build a world-class team to help drive this
company. Welcome aboard!
Sincerely,
/s/
Douglas M. VanOort
Douglas
M. VanOort
Executive
Chairman and Interim CEO
Agreed
and Accepted:
|
/s/ Grant Carlson
|
7/22/2009
|
||
|
Grant
Carlson
|
Date
|
Grant
Carlson
Page
7 of 7
Exhibit
1
Form
of Confidentiality, Non-Competition and Non-Solicitation Agreement
Exhibit
2
Relocation
Agreement