Published on July 20, 2010
Exhibit
10.47
June 16,
2010
Ms.
Marydawn Miller
3316
Paseo Halcon
Irvine,
CA 92672
Dear
Marydawn,
On behalf
of NeoGenomics Laboratories (“NeoGenomics” or the “Company”), it is my pleasure
to extend this offer of employment for the Vice President of Information
Technology 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: |
Vice
President (VP) of Information Technology
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Duties:
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As
VP of Information Technology, you will report to the CFO or such other
person as may be appointed by the CEO and you will have overall
responsibility for the Company’s entire information technology (IT)
platform and related services and all personnel in the IT
Department. This will include the management of the IT
infrastructure at all of the Company’s facilities and all
related software running on such infrastructure. In addition
you may be assigned other duties by the CFO or
CEO.
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|
Start
Date:
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July
16, 2010
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| Base Salary: |
$140,000/year,
payable bi-weekly. The parties agree that this salary is for a
full-time position. Increases in base salary may occur annually
at the discretion of the President of the Company with the approval of the
CEO and the Compensation Committee of the Board of
Directors.
|
| Relocation: |
You
understand that this position is located in Fort Myers, FL, and you agree
to relocate your primary residence to the greater Fort Myers, FL area not
later than June 30, 2011. The Company agrees to provide
financial assistance for your relocation up to an aggregate cap of $20,000
in accordance with the terms of the Relocation Agreement attached hereto
as Exhibit 1.
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Bonus:
|
Beginning
with the fiscal year ending December 31, 2010, you will be eligible to
receive an incentive bonus payment which will be targeted at 20% of your
Base Salary based on 100% achievement of the goals set forth for you by
the President or CEO of the Company and approved by the Board of Directors
for such fiscal year. Such goals will have overall company
performance targets and individual performance
targets.
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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.
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1
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Paid Time
Off:
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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.
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|
Stock
Options:
|
You
will be granted stock options to purchase up to 40,000 shares of the
common stock of the Company’s publicly-traded holding company,
NeoGenomics, Inc., a Nevada corporation, at an exercise price equivalent
to the closing price per share at which such stock was quoted on the
NASDAQ Bulletin Board on 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:
|
|
Time-Based
Vesting
10,000
options will vest on the anniversary of your Start Date for each of the
next four years.
The
Company also agrees that you will be eligible for additional stock option
grants at any time based on performance.
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.
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Confidentiality,
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|
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Non-Compete,
&
|
|
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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 2. 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.
|
2
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Executive’s
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|
|
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.
|
|
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
themis declared invalid and/or unenforceable by a court of competent
jurisdiction oran arbitrator, the remaining provisions shall not be
affected.
|
|
| (iii) | This Agreement is the joint product of the Company and you and each provisionhereof has been subject to the mutual consultation, negotiation and agreement ofthe Company and you and shall not be construed for or against either partyhereto. | |
| (iv) | This Agreement will be governed by, and construed in accordance with theprovisions of the law of the State of Florida, without reference to provisions thatrefer a matter to the law of any other jurisdiction. Each party hereto herebyirrevocably 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 or by PDF, 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. |
3
Marydawn,
I know that with your help we can build a world-class laboratory with a national
footprint and a team focused on the highest quality standards. I am
looking forward to working with you as we drive NeoGenomics to new
heights. Welcome aboard!
Sincerely,
/s/
George Cardoza
George
Cardoza
Chief
Financial Officer
Agreed
and Accepted:
| /s/ Marydawn Miller | 7/12/10 | ||
| Marydawn Miller | Date |
4
Exhibit
1
RELOCATION
AGREEMENT
Marydawn
Miller
Vice
President of Information Technology
NeoGenomics
Laboratories (the “Company”) acknowledges that you will incur certain relocation
expenses as a result of accepting employment with us. We consider the
reimbursement of these expenses to be related to the employer-employee
relationship that we are attempting to establish and that these are items that
we share as the
relationship is established.
NeoGenomics
agrees to reimburse you for up to $20,000 in the aggregate (the “Relocation Cap”) for
commuting, temporary housing and permanent relocation expenses. This
assistance will be comprised of two parts: (i) reimbursement for commuting,
temporary housing and other related transition expenses (the “Temporary Commuting
Allowance”), and (ii) reimbursement for permanent relocation expenses
that are identified by the Internal Revenue Service (“IRS”) as “deductible
moving expenses” (the “Permanent Relocation
Assistance”).
You may
use up to $15,000 of the Relocation Cap for the Temporary Commuting
Allowance. Expenses reimbursable under the Temporary Commuting
Allowance include pre-move travel, related lodging and meal expenses, and other
related transition expenses, incurred in accordance with the Company’s
applicable policies in effect from time to time.
All such
payments made by the Company as part of your Temporary Commuting Allowance shall
be subject to withholding for federal, state or local taxes as the Company
reasonably may determine. However, you should consult with your own
tax advisor to determine what payments (or reimbursements), if any, may be tax
deductible to you.
The
dollar amount of Permanent Relocation Assistance available to you is the
difference between the Relocation Cap and any payments made to you (or on your
behalf) under the Temporary Commuting Allowance. The Permanent
Relocation Assistance is available to you for your permanent move to Fort Myers,
Florida, which will need to occur on or prior to June 30,
2011. Any relocation expenses incurred by you (or on your
behalf) occurring after July 1, 2011 will not be reimbursable by the Company
unless otherwise mutually agreed upon in writing by you and the CFO of the
Company. The Company will require two (2) quotes from vendors prior
to payment for moving expenses.
The
Permanent Relocation Assistance payments will not be taxable to you to the
extent the expenses are identified by the IRS as “deductible moving expenses,”
and, accordingly, reimbursable expenses shall be limited to: (i) moving your
household goods and personal effects, and (ii) travel (including lodging, but
not meals) to your new home.
All
claims for reimbursable expenses, together with proper receipts and supporting
documentation, must be submitted to the Company within 45 days following the
date(s) the expenses are incurred. Thereafter, reimbursement by the
Company will be made in accordance with the Company’s normal payroll practices
no later than 45 days following the timely submission of applicable
claims.
5
I,
Marydawn Miller, agree to provide proper receipts and documentation in a form
acceptable to the Company in order to receive reimbursement from the Company,
and I understand that failure to do so in accordance with the requirements set
forth herein (including, but not limited to, timely submission) will jeopardize
my rights to any reimbursements under this Agreement.
I further
agree that:
|
(a)
|
I
will reimburse NeoGenomics all Permanent Relocation Assistance and
Temporary Commuting Allowance payments paid on my behalf directly to
vendors or to me by NeoGenomics should I resign my employment for any
reason with NeoGenomics Laboratories according to the below listed
schedule. Reimbursement will not be required should NeoGenomics
initiate the separation of
employment.
|
Reimbursement
will be based on the following schedule:
|
1)
|
100
% reimbursement if resignation occurs within a 12 month time period from
the start of employment or within six months after my permanent relocation
to Fort Myers, Fl.
|
|
2)
|
50%
reimbursement if resignation occurs within 6 months to 12 months after my
permanent relocation to Fort Myers,
FL.
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|
(b)
|
Any
reimbursements paid to me in error will be returned to the Company within
60 days of (i) the date the expense was incurred, or (ii) becoming aware
of the existence of an
erroneous reimbursement.
|
|
(c)
|
My
final paycheck for any wages and/or accrued paid time-off will be reduced,
to the extent allowable by law, in the amount of any monies I owe to the
Company pursuant to the terms of this Agreement. If the amount
of my final paycheck is insufficient to cover all the monies I owe to the
Company hereunder, the Company may pursue any and all remedies available
under the law.
|
This
agreement will be governed by the laws of the State of Florida.
Agreed
and Accepted:
| By: /s/ Marydawn Miller |
Date
|
7/12/10 | |
| Marydawn Miller |
NEOGENOMICS
LABORATORIES
By: /s/ George
Cardoza
Name:
George Cardoza
Title:
CFO
6