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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement"), which is dated July 1, 2000,
is made by and between CELL ROBOTICS INTERNATIONAL, INC., a Colorado
corporation, located at 2715 Broadbent Parkway NE, Albuquerque, New Mexico 87107
and hereinafter referred to as "Company", and DR. RONALD K. LOHRDING, whose
address is 512 Roadrunner Lane NE, Albuquerque, New Mexico 87122, hereinafter
referred to as "Executive", based upon the following:
RECITALS
WHEREAS, Executive has been rendering services to Company, and Company
wants Executive to continue rendering services, as its Chief Executive Officer,
President and Chairman of the Board of Directors;
WHEREAS, Company and Executive wish to set forth in this Agreement the
duties and responsibilities that Executive has undertaken on behalf of Company,
and the obligations that Company has undertaken to Executive;
WHEREAS, Company and Executive intend that this Agreement will
supersede and replace any and all other employment agreements or arrangements
for employment entered into by and between Company and Executive, and that upon
execution of this Agreement, any such employment agreements or arrangements
shall have no further force or effect.
THEREFORE, in consideration of the foregoing and of the mutual
promises contained in this Agreement, Company and Executive (who are sometimes
individually referred to as a "party" and collectively referred to as the
"parties") agree as follows:
AGREEMENT
1. SPECIFIED PERIOD.
Company hereby employs Executive pursuant to the terms of this
Agreement and Executive hereby accepts employment with Company pursuant to the
terms of this Agreement for the period beginning on July 1, 2000 and ending on
June 30, 2003 (the "Term").
2. GENERAL DUTIES.
Executive shall report to Company's Board of Directors. During the
first two years of the Term, Executive shall devote his entire productive time,
ability, and attention to Company's business. During the third year of the Term,
Executive shall resign his positions as Chief Executive Officer and President
and shall serve Company as a consultant. As a consultant, Executive shall devote
no less than one-half of his productive time, ability, and attention to
Company's business. In his capacity as Chief Executive Officer and President,
Executive shall be primarily responsible for the day-to-day supervision and
control of the business and the employees of the Company. Executive shall do and
perform all services, acts, or things necessary or advisable to discharge his
duties under this Agreement, and such other duties as are commonly performed by
an employee of his rank in a publicly traded corporation or which may, from time
to time, be prescribed by the Company through its Board of Directors.
Furthermore, Executive agrees to cooperate with and work to the best of his
ability with Company's management team, which includes the Board of Directors
and the officers and other employees, to continually improve Company's
reputation in its industry for quality products and performance.
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3. COMPENSATION.
(a) ANNUAL SALARY. During the first year of the Term, Company shall
pay to Executive an annual base salary in the amount of one hundred thirty
thousand five hundred thirteen dollars ($130,513). During the second year of the
Term, Company shall increase (but not decrease) the annual base salary in an
amount equal to the average percentage increase received by all employees of
Company or in an amount determined by the Compensation Committee of the Board of
Directors, in its sole discretion. During the third year of the Term, the annual
base salary shall be equal to one-half of the annual base salary paid to
Executive during the second year of the Term. The annual base salary shall be
subject to any tax withholdings and/or employee deductions that are applicable.
The annual base salary shall be paid to Executive in equal installments in
accordance with the periodic payroll practices of the Company for executive
employees.
(b) BONUS. Once Company sells and ships, no less than five hundred
(500) Lasettes for three consecutive months, Executive shall receive a bonus
equaling five percent (5%) of the annual base salary. Once Company sells and
ships, no fewer than one thousand (1,000) Lasettes in for three consecutive
months, Executive shall receive an additional bonus equaling five percent (5%)
of the annual base salary. Nothing in this paragraph shall prevent Executive and
the Board of Directors from mutually agreeing to an alternative computation of
this bonus, which may be implemented and paid to Executive in place of the bonus
described herein. The bonus shall be subject to any applicable tax withholdings
and/or employee deductions.
(c) PARTICIPATION IN EMPLOYEE BENEFIT PLANS. Executive shall have the
same rights, privileges, benefits and opportunities to participate in any of
Company's employee benefit plans which may now or hereafter be in effect on a
general basis for executive officers or employees. Company may delete benefits
and otherwise amend and change the type and quantity of benefits it provides in
its sole discretion. In the event Executive receives payments from a disability
plan maintained by Company, Company shall have the right to offset such payments
against the annual base salary otherwise payable to Executive during the period
for which payments are made by such disability plan. Company will purchase
directors and officers liability insurance and shall include Executive as an
insured thereunder.
(d) OPTIONS TO PURCHASE STOCK. Upon execution of this Agreement,
Company grants Executive a fully-vested option to purchase one hundred thousand
(100,000) shares of Company's common stock. Stock issued pursuant to the
exercise of the option shall be restricted stock, although Company agrees to
register the stock, once issued, on any registration statement it undertakes to
file without the assistance of an underwriter or, if an offering is
underwritten, then with the permission of the underwriter, in its sole and
absolute discretion. The exercise price for each share of common stock covered
by the option shall be the fair market value on the date this Agreement is
executed. The option shall expire five (5) years from the date on which this
Agreement is executed.
4. REIMBURSEMENT OF BUSINESS EXPENSES.
Company shall promptly reimburse Executive for all reasonable business
expenses incurred by Executive in connection with the business of Company.
However, each such expenditure shall be reimbursable only if Executive furnishes
to Company adequate records and other documentary evidence required by federal
and state statutes and regulations issued by the appropriate taxing authorities
for the substantiation of each such expenditure as an income tax deduction.
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5. ANNUAL VACATION.
Executive shall be entitled to all previously accrued vacation and
additionally four (4) weeks of vacation time during year one (1) of the Term,
and five (5) weeks of vacation time during years two (2) and three (3) of the
Term without loss of compensation.
6. INDEMNIFICATION OF LOSSES.
So long as Executive's actions were taken in good faith and in
furtherance of Company's business and within the scope of Executive's duties and
authority, Company shall indemnify and hold Executive harmless to the full
extent of the law from any and all claims, losses and expenses sustained by
Executive as a result of any action taken by him to discharge his duties under
this Agreement, and Company shall defend Executive, at Company's expense, in
connection with any and all claims by stockholders or third parties which are
based upon actions taken by Executive to discharge his duties under this
Agreement.
7. PERSONAL CONDUCT.
Executive agrees promptly and faithfully to comply with all present
and future policies, requirements, directions, requests and rules and
regulations of Company in connection with Company's business. Executive further
agrees that he will not at any time commit any act or become involved in any
situation or occurrence tending to bring Company into public scandal, ridicule
or which will reflect unfavorably on the reputation of Company.
8. TERMINATION BY COMPANY FOR CAUSE.
Company reserves the right to declare Executive in default of this
Agreement if Executive willfully breaches or habitually neglects the duties
which he is required to perform under the terms of this Agreement, or if
Executive commits such acts of dishonesty, fraud, misrepresentation, gross
negligence or willful misconduct as would prevent the effective performance of
his duties or which results in material harm to Company or its business. Company
may terminate this Agreement for cause by giving ten (10) days written notice of
termination to Executive. Except as otherwise set forth in this paragraph 8,
upon such termination the obligations of Executive and Company under this
Agreement shall immediately cease. Such termination shall be without prejudice
to any other remedy to which Company may be entitled either at law, in equity,
or under this Agreement. If Executive's employment is terminated pursuant to
this paragraph, Company shall pay to Executive (i) Executive's accrued but
unpaid annual base salary and vacation pay through the effective date of the
termination; (ii) Executive's accrued but unpaid bonus, if any; and (iii)
business expenses incurred prior to the effective date of termination. Executive
shall not be entitled to continue to participate in any employee benefit plans
except to the extent provided in such plans for terminated participants, or as
may be required by applicable law.
9. TERMINATION BY COMPANY OR EXECUTIVE WITHOUT CAUSE.
(a) DEATH. Executive's employment shall terminate upon the death of
Executive. Except as otherwise set forth in paragraph 10 below, upon such
termination, the obligations of Executive and Company under this Agreement shall
immediately cease.
(b) DISABILITY. Company reserves the right to terminate Executive's
employment upon ten (10) days written notice if, for a period of sixty (60)
days, Executive is prevented from discharging his duties under this Agreement
due to any physical or mental disability. Except as otherwise set forth in
paragraph 10 below, upon such termination the obligations of Executive and
Company under this Agreement shall immediately cease.
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10. EFFECT OF TERMINATION ATTRIBUTABLE TO DEATH OR DISABILITY.
In the event Executive's employment is terminated due to Executive's
death or disability, then:
(a) Company shall pay Executive's accrued but unpaid annual base
salary and vacation time through the effective date of the termination,
provided, however, that Company shall also pay to Executive an amount equal to
one-half of Executive's then effective annual base salary as set forth in
paragraph 3(a);
(b) Company shall pay to the Executive any accrued but unpaid bonus;
(c) Company shall reimburse Executive for any business expenses
incurred prior to the effective date of the termination;
(d) Executive (including Executive's heirs) shall be entitled to
continue to participate in any employee benefit plans to the extent provided in
such plans for terminated participants, or as may be required by applicable law.
11. EFFECT OF TERMINATION DUE TO A TERMINATION BY COMPANY WITHOUT CAUSE.
If Executive's employment is terminated before the expiration of the
term, and such termination is attributable to Company's election to terminate,
then:
(a) Company shall pay to Executive, in a lump sum and without discount
to present value, an amount equal to the annual base salary, as set forth in
paragraph 3(a), due to Executive for the balance of the term, but in no event
shall such payment total less than fifty thousand dollars ($50,000);
(b) Company shall pay to Executive, in a lump sum and without discount
to present value, Executive's accrued but unpaid bonus;
(c) At the election of Executive, Company shall (i) provide to
Executive and his spouse and dependents (if any), for a period of twelve (12)
months, medical benefits which shall be comparable to the benefits received by
Executive at the time of termination of his employment; or (ii) provide to
Executive additional compensation, payable on a monthly basis, which would
approximate the cost to Executive to obtain such comparable benefits;
(d) Company shall reimburse Executive for Executive's business
expenses incurred through the effective date of the termination;
(e) Irrespective of anything included in the agreements memorializing
them, the vesting conditions imposed on any stock options, warrants or other
rights subject to vesting shall be accelerated and shall vest on the date of
Executive's termination and Executive shall have a period of twelve (12) months
to exercise such stock options, warrants or other rights (the "Exercise
Period"). If Executive's stock, stock options, warrants or other securities are
subject to any restriction that prevents their immediate sale in the
marketplace, then Company shall, at the request of Executive, purchase such
securities, or any part of them, from Executive at their fair market value.
Executive may exercise this right at any time and from time-to-time during the
Exercise Period.
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Executive shall not be required to mitigate the amount of any payment
made pursuant to this paragraph 11 by seeking other employment or otherwise, and
no such payment shall be offset or reduced by the amount of any compensation or
benefits provided to Executive in any subsequent employment. The provisions of
this paragraph 11 shall be in lieu of any remedy or damages to which Executive
may be entitled by reason of a breach of this Agreement by Company, whether such
remedy may be recovered at law or in equity.
12. EFFECT OF CHANGE OF CONTROL.
In the event of a Change of Control (as defined below), then:
(a) Company shall pay to Executive, in a lump sum and without discount
to present value, an amount equal to the annual base salary, as set forth in
paragraph 3(a), due to Executive for the balance of the term, but in no event
shall such payment total less than fifty thousand dollars ($50,000);
(b) Company shall pay to Executive, in a lump sum and without discount
to present value, Executive's accrued but unpaid bonus;
(c) At the election of Executive, Company shall (i) provide to
Executive and his spouse and dependents (if any), for a period of twelve (12)
months, medical benefits which shall be comparable to the benefits received by
Executive at the time of termination of his employment; or (ii) provide to
Executive additional compensation, payable on a monthly basis, which would
approximate the cost to Executive to obtain such comparable benefits;
(d) Company shall reimburse Executive for Executive's business
expenses incurred through the effective date of the termination;
(e) Irrespective of anything included in the agreements memorializing
them, the vesting conditions imposed on any stock options, warrants or other
rights subject to vesting shall be accelerated and shall vest on the date of
Executive's termination and Executive shall have a period of twelve (12) months
to exercise such stock options, warrants or other rights (the "Exercise
Period"). If Executive's stock, stock options, warrants or other securities are
subject to any restriction that prevents their immediate sale in the
marketplace, then Company shall, at the request of Executive, purchase such
securities, or any part of them, from Executive at their fair market value.
Executive may exercise this right at any time and from time-to-time during the
Exercise Period.
Executive shall not be required to mitigate the amount of any payment
made pursuant to this paragraph 12 by seeking other employment or otherwise, and
no such payment shall be offset or reduced by the amount of any compensation or
benefits provided to Executive in any subsequent employment. The provisions of
this paragraph 12 shall be in lieu of any remedy or damages to which Executive
may be entitled by reason of a breach of this Agreement by Company, whether such
remedy may be recovered at law or in equity.
For purposes of this paragraph 12, a Change of Control shall be
defined as a transfer or acquisition by a third party of at least thirty percent
(30%) of Company's capital stock in one or a series of transactions. A "third
party" shall not include any employee benefit plan maintained by Company or any
corporation or entity in which Company holds fifty percent (50%) of more of the
voting securities.
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13. MISCELLANEOUS.
(a) PREPARATION OF AGREEMENT. It is acknowledged by each party that
such party either had separate and independent advice of counsel or the
opportunity to avail itself or himself of same. In light of these facts it is
acknowledged that no party shall be construed to be solely responsible for the
drafting hereof, and therefore any ambiguity shall not be construed against any
party as the alleged draftsman of this Agreement.
(b) COOPERATION. Each party agrees, without further consideration, to
cooperate and diligently perform any further acts, deeds and things and to
execute and deliver any documents that may from time to time be reasonably
necessary or otherwise reasonably required to consummate, evidence, confirm
and/or carry out the intent and provisions of this Agreement, all without undue
delay or expense.
(c) INTERPRETATION.
(i) Entire Agreement/No Collateral Representations. Each party
expressly acknowledges and agrees that this Agreement, including all exhibits
attached hereto: (1) is the final, complete and exclusive statement of the
agreement of the parties with respect to the subject matter hereof; (2)
supersedes any prior or contemporaneous agreements, promises, assurances,
guarantees, representations, understandings, conduct, proposals, conditions,
commitments, acts, course of dealing, warranties, interpretations or terms of
any kind, oral or written (collectively and severally, the "Prior Agreements"),
and that any such prior agreements are of no force or effect except as expressly
set forth herein; and (3) may not be varied, supplemented or contradicted by
evidence of Prior Agreements, or by evidence of subsequent oral agreements. Any
agreement hereafter made shall be ineffective to modify, supplement or discharge
the terms of this Agreement, in whole or in part, unless such agreement is in
writing and signed by the party against whom enforcement of the modification or
supplement is sought.
(ii) Waiver. No breach of any agreement or provision herein
contained, or of any obligation under this Agreement, may be waived, nor shall
any extension of time for performance of any obligations or acts be deemed an
extension of time for performance of any other obligations or acts contained
herein, except by written instrument signed by the party to be charged or as
otherwise expressly authorized herein. No waiver of any breach of any agreement
or provision herein contained shall be deemed a waiver of any preceding or
succeeding breach thereof, or a waiver or relinquishment of any other agreement
or provision or right or power herein contained.
(iii) Remedies Cumulative. The remedies of each party under this
Agreement are cumulative and shall not exclude any other remedies to which such
party may be lawfully entitled.
(iv) Severability. If any term or provision of this Agreement or
the application thereof to any person or circumstance shall, to any extent, be
determined to be invalid, illegal or unenforceable under present or future laws
effective during the term of this Agreement, then and, in that event: (A) the
performance of the offending term or provision (but only to the extent its
application is invalid, illegal or unenforceable) shall be excused as if it had
never been incorporated into this Agreement, and, in lieu of such excused
provision, there shall be added a provision as similar in terms and amount to
such excused provision as may be possible and be legal, valid and enforceable,
and (B) the remaining part of this Agreement (including the application of the
offending term or provision to persons or circumstances other than those as to
which it is held invalid, illegal or unenforceable) shall not be affected
thereby and shall continue in full force and effect to the fullest extent
provided by law.
(v) No Third Party Beneficiary. Notwithstanding anything else
herein to the contrary, the parties specifically disavow any desire or intention
to create any third party beneficiary obligations, and specifically declare that
no person or entity, other than as set forth in this Agreement, shall have any
rights hereunder or any right of enforcement hereof.
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(vi) Headings; References; Incorporation; Gender. The headings
used in this Agreement are for convenience and reference purposes only, and
shall not be used in construing or interpreting the scope or intent of this
Agreement or any provision hereof. References to this Agreement shall include
all amendments or renewals thereof. Any exhibit referenced in this Agreement
shall be construed to be incorporated in this Agreement. As used in this
Agreement, each gender shall be deemed to include the other gender, including
neutral genders or genders appropriate for entities, if applicable, and the
singular shall be deemed to include the plural, and vice versa, as the context
requires.
(d) ENFORCEMENT.
(i) Applicable Law. This Agreement and the rights and remedies of
each party arising out of or relating to this Agreement (including, without
limitation, equitable remedies) shall be solely governed by, interpreted under,
and construed and enforced in accordance with the laws (without regard to the
conflicts of law principles thereof) of the State of New Mexico, as if this
agreement were made, and as if its obligations are to be performed, wholly
within the State of New Mexico.
(ii) Consent to Jurisdiction. Any action or proceeding arising
out of or relating to this Agreement shall be filed in and heard and litigated
solely before the state courts of New Mexico.
(e) NO ASSIGNMENT OF RIGHTS OR DELEGATION OF DUTIES BY EXECUTIVE.
Executive's rights and benefits under this Agreement are personal to him and
therefore (i) no such right or benefit shall be subject to voluntary or
involuntary alienation, assignment or transfer; and (ii) Executive may not
delegate his duties or obligations hereunder.
(f) NOTICES. Unless otherwise specifically provided in this Agreement,
all notices, demands, requests, consents, approvals or other communications
(collectively and severally called "Notices") required or permitted to be given
hereunder, or which are given with respect to this Agreement, shall be in
writing, and shall be given by: (A) personal delivery (which form of Notice
shall be deemed to have been given upon delivery), (B) by telegraph or by
private airborne/overnight delivery service (which forms of Notice shall be
deemed to have been given upon confirmed delivery by the delivery agency), (C)
by electronic or facsimile or telephonic transmission, provided the receiving
party has a compatible device or confirms receipt thereof (which forms of Notice
shall be deemed delivered upon confirmed transmission or confirmation of
receipt), or (D) by mailing in the United States mail by registered or certified
mail, return receipt requested, postage prepaid (which forms of Notice shall be
deemed to have been given upon the fifth {5th} business day following the date
mailed). Each party, and their respective counsel, hereby agree that if Notice
is to be given hereunder by such party's counsel, such counsel may communicate
directly with all principals, as required to comply with the foregoing notice
provisions. Notices shall be addressed to the address hereinabove set forth in
the introductory paragraph of this Agreement, or to such other address as the
receiving party shall have specified most recently by like Notice, with a copy
to the other parties hereto. Any Notice given to the estate of a party shall be
sufficient if addressed to the party as provided in this subparagraph.
(g) COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, and all of which together shall constitute
one and the same instrument, binding on all parties hereto. Any signature page
of this Agreement may be detached from any counterpart of this Agreement and
reattached to any other counterpart of this Agreement identical in form hereto
by having attached to it one or more additional signature pages.
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(h) EXECUTION BY ALL PARTIES REQUIRED TO BE BINDING; ELECTRONICALLY
TRANSMITTED DOCUMENTS. This Agreement shall not be construed to be an offer and
shall have no force and effect until this Agreement is fully executed by all
parties hereto. If a copy or counterpart of this Agreement is originally
executed and such copy or counterpart is thereafter transmitted electronically
by facsimile or similar device, such facsimile document shall for all purposes
be treated as if manually signed by the party whose facsimile signature appears.
IN WITNESS WHEREOF, the parties have executed this Agreement.
COMPANY:
Cell Robotics International, Inc.
a Colorado corporation
By:
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Paul Johnson, CFO Date
EXECUTIVE:
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Ronald K. Lohrding, Ph.D. Date
Approved as to content by the Compensation Committee of Cell Robotics
International, Inc. a Colorado corporation.
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Debra Bryant, Ph.D. Date
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Steve Crees Date
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Mark Waller Date