EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made and entered
into as of the 31st day of January, 2005, by and between DYADIC INTERNATIONAL,
INC., a Delaware corporation (the "Company"), and WAYNE MOOR (the "Executive").
The Company and the Executive are sometimes hereinafter collectively referred to
as the "parties" and individually as a "party," provided that as applicable, any
reference to the Company shall mean the Company, its Subsidiaries and\or their
Affiliates, as the case may be. Certain capitalized terms used in this Agreement
are defined in Article VII hereof.
RECITALS
A. The Company wishes to employ the Executive, and the Executive wishes
to be employed by the Company, as the Company's Chief Financial Officer and a
Vice President of the Company. As a condition of, and as consideration for, that
employment, the Company requires that this Agreement be entered into pursuant to
which the Executive is hereby knowingly and intentionally furnishing the Company
with, among other things, the suite of proprietary covenants of the Executive in
favor of the Company set forth in Article IV hereof, including by way of
illustration, and not in limitation, the Executive's covenant not to compete
with the businesses of the Company, its Subsidiaries and their Affiliates.
B. The Company maintains the "Dyadic International, Inc. 2001 Equity
Compensation Plan" (as the same may be amended, restated or otherwise modified,
the "Equity Compensation Plan") pursuant to which the Company is authorized to
grant stock options to purchase shares of Common Stock of the Company ("Shares")
to employees, officers, directors, consultants and advisors of the Company and
its Subsidiaries.
C. Apart from the Company's employment as consideration to the
Executive for his execution of this Agreement, as additional consideration
therefor, and to incentivize and reward his effort, loyalty and commitment to
the Company, concurrent therewith the Company has granted to the Executive a
certain stock option (the "Option") to purchase Shares under and pursuant to the
terms of the Equity Compensation Plan and a Stock Option Agreement in the form
of Exhibit A attached hereto and by this reference made a part hereof (the
"Stock Option Agreement").
D. The Executive expressly acknowledges that as a member of the
Company's management, he is one of the persons charged with primary
responsibility for the implementation of the Company's business plans, and that
he will have regular access to various confidential and/or proprietary
information relating to the Company, its Subsidiaries, their Affiliates and
their businesses. Further, the Executive expressly acknowledges that the suite
of proprietary covenants of the Executive in favor of the Company set forth in
Article IV hereof which the Executive is knowingly and intentionally furnishing
to the Company, including by way of illustration, and not in limitation, the
Executive's covenant not to engage in competition with the Company, its
Subsidiaries, their Affiliates and their businesses, are (i) being made both in
consideration of the Company's employment of the Executive and in consideration
of the Company's grant of the Option to the Executive and (ii) necessary to
protect the legitimate business interests of the Company, its Subsidiaries and
Affiliates and their respective businesses.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, and the
mutual agreements herein contained and other good and valuable consideration,
the receipt and sufficiency of which are hereby mutually acknowledged, the
parties hereby agree as follows:
ARTICLE I
EMPLOYMENT RELATIONSHIP
1.1 Recitals. The Recitals to this Agreement are hereby incorporated
herein and made a part hereof.
1.2 Employment. Subject to the terms and conditions of this Agreement,
the Company hereby agrees to employ the Executive to serve as a vice president
and as the chief financial officer of the Company, with the titles of Vice
President and Chief Financial Officer, and the Executive hereby accepts such
employment, and agrees to perform his duties and responsibilities to the best of
his abilities in a diligent, trustworthy, businesslike and efficient manner, and
in compliance with the Dyadic International, Inc. Code of Business Conduct and
Ethics, a copy of which appears on the Company's website.
1.3 Duties; Reporting Authority. Subject to the provisions of this
Section 1.3, the Executive shall have full authority over the Company's
financial, financial reporting and accounting functions and such other duties as
may be delegated to him from time to time by the Chief Executive Officer, by the
Board or by the Audit Committee of the Board (the "Audit Committee"). In
connection with the Executive's performance of his duties he shall report to the
Chief Executive Officer or such other Person or Persons as he, the Board or the
Audit Committee may designate from time to time.
1.4 Exclusive Employment. While he is employed by the Company
hereunder, the Executive covenants to the Company that he will devote his entire
business time, energy, attention and skill to the Company, its Subsidiaries and
their Affiliates (except for permitted vacation periods and reasonable periods
of illness or other incapacity), and use his good faith best efforts to promote
the interests of the Company, its Subsidiaries and their Affiliates. The
foregoing shall not be construed as prohibiting the Executive from spending such
time as may be reasonably necessary to attend to his personal affairs and
investments so long as such activities do not conflict or interfere with the
Executive's obligations and\or timely performance of his duties to the Company,
its Subsidiaries and their Affiliates hereunder.
1.5 Executive Representations. The Executive hereby represents and
warrants to the Company that:
(a) the execution, delivery and performance by the Executive
of this Agreement and any other agreements contemplated hereby to which
the Executive is a party do not and shall not conflict with, breach,
violate or cause a default under any contract, agreement, instrument,
order, judgment or decree to which the Executive is a party or by which
he is bound;
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(b) the Executive is not a party to or bound by any employment
agreement, non-competition agreement or confidentiality agreement with
any other Person (or if a party to such an agreement, the Executive has
disclosed the material terms thereof to the Compensation Committee
prior to the execution hereof and promptly after the date hereof shall
deliver a copy of such agreement to the Compensation Committee); and
(c) upon the execution and delivery of this Agreement by the
Company, this Agreement shall be the valid and binding obligation of
the Executive, enforceable in accordance with its terms.
The Executive hereby acknowledges and represents that he has consulted with
independent legal counsel regarding his rights and obligations under this
Agreement and that he fully understands the terms and conditions contained
herein.
1.6 Company Representations. The Company hereby represents and warrants
to the Executive that:
(a) the execution, delivery and performance by the Company of
this Agreement and any other agreements contemplated hereby to which
the Company is a party do not and shall not conflict with, breach,
violate or cause a default under any contract, agreement, instrument,
order, judgment or decree to which the Company is a party or by which
he is bound; and
(b) upon the execution and delivery of this Agreement by the
Executive, this Agreement shall be the valid and binding obligation of
the Company, enforceable in accordance with its terms.
1.7 Indemnification.
(a) By the Executive. The Executive shall indemnify and hold
the Company and its Subsidiaries and Affiliates harmless from and
against any and all claims, demands, losses, judgments, costs,
expenses, or liabilities incurred by the Company and/or any of its
Subsidiaries or Affiliates arising out of or in connection with the
breach of any representation or warranty of the Executive contained in
this Agreement.
(b) By the Company. The Company shall indemnify and hold the
Executive harmless from and against any and all claims, demands,
losses, judgments, costs, expenses, or liabilities incurred by the
Executive arising out of or in connection with the breach of any
representation or warranty of the Company contained in this Agreement.
Further, the Company shall defend, indemnify and hold harmless the
Executive (including without limitation, the prompt advance payment of
all reasonable legal fees and expenses) to the fullest extent permitted
by applicable law and the by-laws of the Company.
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ARTICLE II
PERIOD OF EMPLOYMENT
2.1 Employment Period. The Executive's employment hereunder shall
commence on the date hereof and shall continue hereunder until the date fixed by
the provisions of Section 2.2 hereof, subject to the early termination
provisions of Article V hereof (the "Employment Period"), it being acknowledged
that the Company's fiscal year ends on December 31, and that the Employment
Period shall therefore be denominated in calendar years.
2.2 Initial Term of Employment Period and Extension Terms. The
Employment Period shall initially continue for a term commencing on the date
hereof and ending on December 31, 2007 (the "Initial Term"). The Employment
Period shall be automatically extended for successive calendar years of the
Company following the expiration of the Initial Term (each such one year period
being hereinafter referred to as an "Extension Term") upon the same terms and
conditions provided for herein unless either party provides the other party with
advance written notice of its or his intention not to extend the Employment
Period; provided, however, that such notice must be delivered by the
non-extending party to the other party not later than ninety (90) days prior to
the expiration of the Initial Term or any Extension Term, as the case may be.
ARTICLE III
COMPENSATION
3.1 Annual Base Compensation. During the Employment Period the Company
shall pay to the Executive an annual base salary (the "Annual Base
Compensation") in the amount of $225,000.00. The Annual Base Compensation shall
be paid in regular installments in accordance with the Company's general payroll
practices, and shall be subject to all required federal, state and local
withholding taxes. The Executive's Annual Base Compensation shall be reviewed by
the Chief Executive Officer and the Compensation Committee of the Board (the
"Compensation Committee") annually, and may, in the discretion of the Chief
Executive Officer and the Compensation Committee be increased, provided that
there shall be no obligation on the part of the Company to increase the
Executive's Annual Base Compensation.
3.2 Potential Annual Target Bonuses. In respect of each calendar year
falling within the Employment Period, the Executive shall be eligible to earn an
annual bonus, depending upon the results of operation of the Company, its
Subsidiaries and their Affiliates and the personal performance of the Executive,
of up to forty percent (40%) of the Executive's Annual Base Compensation for
that calendar year (the "Potential Annual Target Bonus") in accordance with the
terms of a bonus plan which shall be adopted and maintained in effect by the
Compensation Committee for that calendar year. The amount of the Potential
Annual Target Bonus, if any, which is earned by the Executive (the "Bonusable
Amount") shall be paid by the Company to the Executive following the close of
the Company's calendar year consistent with the timing of similar bonus payments
being made to other executives of the Company for such year, provided that,
unless expressly provided otherwise herein, it shall be a condition precedent to
the Executive's right to receive any Bonusable Amount that the Executive be
employed by the Company on the last day of that calendar year, regardless of any
subsequent termination of employment. In the absolute discretion of the
Compensation Committee, the Executive may be entitled to receive an additional
bonus, as and if the Compensation Committee shall determine from time to time.
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3.3 Expenses. During the Employment Period, the Executive shall be
entitled to reimbursement of all travel, entertainment and other business
expenses reasonably incurred in the performance of his duties for the Company,
upon submission of all receipts and accounts with respect thereto, and approval
by the Company thereof, in accordance with the business expense reimbursement
policies adopted by the Company from time to time.
3.4 Vacation. In respect of each calendar year falling within the
Employment Period, the Executive shall be entitled to four (4) weeks of vacation
time, provided that unused vacation may be used by the Executive in the
following calendar year only in accordance with and as permitted by the
Company's then current vacation policies in effect from time to time.
3.5 Other Fringe Benefits. During the Employment Period, the Executive
shall be entitled to receive such of the Company's other fringe benefits as are
being provided to other employees of the Company holding vice president
positions with the Company comparable to the Executive's position, including but
not limited to health insurance benefits, disability benefits and retirement
benefits.
3.6 Grant of Stock Option. As additional consideration for the
Executive's execution and delivery of this Agreement, conferral upon the Company
of the covenants set forth in Article IV hereof, and the Executive's performance
of his duties hereunder, concurrently with the execution and delivery of this
Agreement, the parties are executing and delivering the Option Agreement
pursuant to which the Company has granted to the Executive an Option to purchase
Two Hundred Seventy Seven Thousand Eight Hundred Eighty Nine (277,889) Shares
for a per Share purchase price of equal to the mean of the final "asked" and
"bid" prices of the Shares on the date hereof, in accordance with the provisions
of the Equity Compensation Plan.
ARTICLE IV
COVENANTS OF THE EMPLOYEE
4.1 Proprietary Rights. The Executive hereby expressly agrees that all
research, Biological Materials, discoveries, inventions and innovations (whether
or not reduced to practice or documented), improvements, developments, methods,
designs, analyses, drawings, reports and all similar or related information
(whether patentable or unpatentable, and whether or not reduced to writing),
trade secrets (being information about the business of the Company, its
Subsidiaries and their Affiliates which is considered by the Company or any such
Subsidiary or Affiliate to be confidential and is proprietary to the Company or
any such Subsidiary or Affiliate) and confidential information, copyrightable
works, and similar and related information (in whatever form or medium), which
(x) either (i) relate to the Company's, its Subsidiaries' or their Affiliates'
actual or anticipated business, research and development or existing or future
products or services or (ii) result from any work performed by the Executive for
the Company, its Subsidiaries or any of their Affiliates and (y) are conceived,
developed, made or contributed to in whole or in part by the Executive during
the Employment Period ("Work Product") shall be and remain the sole and
exclusive property of the Company, such Subsidiary or such Affiliate. The
Executive shall communicate promptly and fully all Work Product to the Company.
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(a) Work Made for Hire. The Executive acknowledges that,
unless otherwise agreed in writing by the Company, all Work Product
eligible for any form of copyright protection made or contributed to in
whole or in part by the Executive within the scope of the Executive's
employment by the Company during the Employment Period shall be deemed
a "work made for hire" under the copyright laws and shall be owned by
the Company, its Subsidiaries or their Affiliates, as applicable.
(b) Assignment of Proprietary Rights. The Executive hereby
assigns, transfers and conveys to the Company, and shall assign,
transfer and convey to the Company, all right, title and interest in
and to all inventions, ideas, improvements, designs, processes,
trademarks, service marks, trade names, trade secrets, trade dress,
data, discoveries and other proprietary assets and proprietary rights
in and of the Work Product (the "Proprietary Rights") for the Company's
exclusive ownership and use, together with all rights to sue and
recover for past and future infringement or misappropriation thereof,
provided that if a Subsidiary or Affiliate of the Company is the owner
thereof, such assignment, transfer and conveyance shall be made to such
Subsidiary or Affiliate, which shall enjoy exclusive ownership and use,
together with all rights to sue and recover for past and future
infringement or misappropriation thereof.
(c) Further Instruments. At the request of the Company (its
Subsidiaries or their Affiliates, as the case may be), at all times
during the Employment Period and thereafter, the Executive will
promptly and fully assist the Company (its Subsidiaries or their
Affiliates, as the case may be) in effecting the purpose of the
foregoing assignment, including but not limited to the further acts of
executing any and all documents necessary to secure for the Company
(its Subsidiaries or their Affiliates, as the case may be) such
Proprietary Rights and other rights to all Work Product and all
confidential information related thereto, providing cooperation and
giving testimony.
(d) Inapplicability of Section 4.1 In Certain Circumstances.
The Company expressly acknowledges and agrees that, and the Executive
is hereby advised that, this Section 4.1 does not apply to any
invention for which no equipment, supplies, facilities or trade secret
information of the Company, its Subsidiaries or any of their Affiliates
was used and which was developed entirely on the Executive's own time,
unless (i) the invention relates to the business of the Company, its
Subsidiaries or any of their Affiliates or to the Company's, its
Subsidiaries' or any of their Affiliates' actual or demonstrably
anticipated research or development or (ii) the invention results from
any work performed by the Executive for the Company, its Subsidiaries
or any of their Affiliates.
4.2 Ownership and Covenant to Return Documents, etc. The Executive
agrees that all Work Product and all documents or other tangible materials
(whether originals, copies or abstracts), including without limitation, price
lists, quotation guides, outstanding quotations, books, records, manuals, files,
sales literature, training materials, customer records, correspondence, computer
disks or print-out documents, contracts, orders, messages, phone and address
lists, invoices and receipts, and all objects associated therewith, which in any
way relate to the business or affairs of the Company, its Subsidiaries and their
Affiliates either furnished to the Executive by the Company, its Subsidiaries or
any of their Affiliates or are prepared, compiled or otherwise acquired by the
Executive during the Employment Period, shall be the sole and exclusive property
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of the Company, such Subsidiaries or such Affiliates. The Executive shall not,
except for the use of the Company, its Subsidiaries or any of their Affiliates,
use, copy or duplicate any of the aforementioned documents or objects, nor
remove them from the facilities of the Company or such Subsidiaries or such
Affiliates, nor use any information concerning them except for the benefit of
the Company, its Subsidiaries and their Affiliates, either during the Employment
Period or thereafter. The Executive agrees that he will deliver all of the
aforementioned documents and objects that may be in his possession to the
Company on the termination of his employment with the Company, or at any other
time upon the Company's request, together with his written certification of
compliance with the provisions of this Section 4.2 in the form of Exhibit B to
this Agreement in accordance with the provisions of Section 5.3 hereof.
4.3 Non-Disclosure Covenant. For a period commencing on the date of
this Agreement and ending on the last to occur of five (5) years following the
date of execution of this Agreement or three (3) years following the date of the
termination of the Employment Period (the "Non-Disclosure Period"), the
Executive shall not, either directly or indirectly, disclose to any
"unauthorized person" or use for the benefit of the Executive or any Person
other than the Company, its Subsidiaries or their Affiliates any Work Product or
any knowledge or information which the Executive may acquire while employed by
the Company (whether before or after the date of this Agreement) relating to (i)
the financial, marketing, sales and business plans and affairs, financial
statements, analyses, forecasts and projections, books, accounts, records,
operating costs and expenses and other financial information of the Company, its
Subsidiaries and their Affiliates, (ii) internal management tools and systems,
costing policies and methods, pricing policies and methods and other methods of
doing business, of the Company, its Subsidiaries and their Affiliates, (iii)
customers, sales, customer requirements and usages, distributor lists, of the
Company, its Subsidiaries and their Affiliates, (iv) agreements with customers,
vendors, independent contractors, employees and others, of the Company, its
Subsidiaries and their Affiliates, (v) existing and future products or services
and product development plans, designs, analyses and reports, of the Company,
its Subsidiaries and their Affiliates, (vi) computer software and data bases
developed for the Company, its Subsidiaries or their Affiliates, trade secrets,
research, records of research, models, designs, drawings, technical data and
reports of the Company, its Subsidiaries and their Affiliates and (vii)
correspondence or other private or confidential matters, information or data
whether written, oral or electronic, which is proprietary to the Company, its
Subsidiaries and their Affiliates and not generally known to the public
(individually and collectively "Confidential Information"), without the
Company's prior written permission. For purposes of this Section 4.3, the term
"unauthorized person" shall mean any Person who is not (i) an officer or
director of the Company or an employee of the Company for whom the disclosure of
the knowledge or information referred to herein is necessary for his performance
of his assigned duties, or (ii) an employee, officer or director of a Subsidiary
or Affiliate of the Company for whom the disclosure of the knowledge or
information referred to herein is necessary for his performance of his assigned
duties, or (iii) a Person expressly authorized by the Company to receive
disclosure of such knowledge or information. The Company expressly acknowledges
and agrees that the term "Confidential Information" excludes information which
is (A) in the public domain or otherwise generally known to the trade, or (B)
disclosed to third parties other than by reason of the Executive's breach of his
confidentiality obligation hereunder or (C) learned of by the Executive
subsequent to the termination of his employment hereunder from any other party
not then under an obligation of confidentiality to the Company, its Subsidiaries
and their Affiliates. Further, the Executive covenants to the Company that in
the Executive's performance of his duties hereunder, the Executive will violate
no confidentiality obligations he may have to any third Persons.
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4.4 Non-Interference Covenants. The Executive covenants to the Company
that while the Executive is employed by the Company hereunder and for the two
(2) year period thereafter (the "Non-Interference Period"), he will not, for any
reason, directly or indirectly: (a) solicit, hire, or otherwise do any act or
thing which may induce any other employee of the Company, its Subsidiaries or
their Affiliates to leave the employ or otherwise interfere with or adversely
affect the relationship (contractual or otherwise) of the Company, its
Subsidiaries and their Affiliates with any person who is then or thereafter
becomes an employee of the Company, its Subsidiaries and their Affiliates; (b)
do any act or thing which may interfere with or adversely affect the
relationship (contractual or otherwise) of the Company, its Subsidiaries and
their Affiliates with any vendor of goods or services to the Company, its
Subsidiaries and their Affiliates or induce any such vendor to cease doing
business with the Company, its Subsidiaries and their Affiliates; or (c) except
for Competitive Activities (as defined in Section 4.5) engaged in by the
Employee after the expiration of the Non-Competition Period, do any act or thing
which may interfere with or adversely affect the relationship (contractual or
otherwise) of the Company, its Subsidiaries and their Affiliates with any
customer of the Company, its Subsidiaries and their Affiliates or induce any
such customer to cease doing business with the Company, its Subsidiaries and
their Affiliates.
4.5 Covenant Not To Compete. The Executive expressly acknowledges that
(i) the Executive's performance of his services for the Company hereunder will
afford him access to and cause him to become highly knowledgeable about the
Company's, its Subsidiaries' and their Affiliates' Confidential Information;
(ii) the agreements and covenants contained in this Section 4.5 are essential to
protect the Confidential Information, business and goodwill of the Company, its
Subsidiaries and their Affiliates, and the restraints on the Executive imposed
by the provisions of this Section 4.5 are justified by these legitimate business
interests of the Company; and (iii) his covenants to the Company, its
Subsidiaries and their Affiliates set forth in this Section 4.5 are being made
both in consideration of the Company's employment of the Executive and in
consideration of the Company's grant of the Option to the Executive.
Accordingly, the Executive hereby agrees that during the Non-Competition Period
he shall not, anywhere in the Applicable Territory, directly or indirectly, own
any interest in, invest in, lend to, borrow from, manage, control, participate
in, consult with, become employed by, render services to, or in any other manner
whatsoever engage in, any business which is competitive with any lines of
business actively being engaged in by the Company, its Subsidiaries and their
Affiliates in the Applicable Territory or actively (and demonstrably) being
considered by the Company, its Subsidiaries and their Affiliates for entry into
on the date of the termination of the Employment Period (collectively,
"Competitive Activities"). The preceding to the contrary notwithstanding, the
Executive shall be free to make investments in the publicly traded securities of
any corporation, provided that such investments do not amount to more than 1% of
the outstanding securities of any class of such corporation.
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4.6 Remedies For Breach. If the Executive commits a breach, or
threatens to commit a breach, of any of the provisions of this Article IV, the
Company and its Subsidiaries shall have the right and remedy, in addition to any
other remedy that may be available at law or in equity, to have the provisions
of this Article IV specifically enforced by any court having equity
jurisdiction, by the entry of temporary, preliminary and permanent injunctions
and orders of specific performance, together with an accounting therefor, it
being expressly acknowledged and agreed by the Executive that any such breach or
threatened breach will cause irreparable injury to the Company and its
Subsidiaries and that money damages will not provide an adequate remedy to the
Company and its Subsidiaries. Any such injunction shall be available without the
posting of any bond or other security, and the Executive hereby consents to the
issuance of such injunction. The Executive further agrees that any such
injunctive relief obtained by the Company or its Subsidiaries shall be in
addition to, and not in lieu of, monetary damages and any other remedies to
which the Company or its Subsidiaries may be entitled. Further, in the event of
an alleged breach or violation by the Executive of any of the provisions of
Sections 4.3, 4.4 or 4.5 hereof, the Non-Disclosure Period, the Non-Interference
Period and\or the Non-Competition Period, as the case may be, shall be tolled
until such breach or violation has been cured. The parties agree that in the
event of the institution of any action at law or in equity by either party to
enforce the provisions of this Article IV, the losing party shall pay all of the
costs and expenses of the prevailing party, including reasonable legal fees,
incurred in connection therewith. If any covenant contained in this Article IV
or any part thereof is hereafter construed to be invalid or unenforceable, the
same shall not affect the remainder of such covenant or any other covenants,
which shall be given full effect, without regard to the invalid portions, and
any court having jurisdiction shall have the power to modify such covenant to
the least extent necessary to render it enforceable and, in its modified form,
said covenant shall then be enforceable.
ARTICLE V
TERMINATION OF EMPLOYMENT
5.1 Termination and Triggering Events. Notwithstanding anything to the
contrary elsewhere contained in this Agreement, the Employment Period shall
terminate at the expiration of the Initial Term or any Extension Term, or prior
to the expiration of the Initial Term or any Extension Term upon the occurrence
of any of the following events (hereinafter referred to as "Triggering Events"):
(a) the Executive's death; (b) the Executive's Total Disability; (c) the
Executive's Resignation; (d) a Termination by the Company for Cause; or (f) a
Termination by the Company Without Cause.
5.2 Rights Upon Occurrence of a Triggering Event. Subject to the
provisions of Section 5.3 hereof, the rights of the parties upon the occurrence
of a Triggering Event prior to the expiration of the Initial Term or any
Extension Term shall be as follows:
(a) Resignation and Termination by the Company for Cause: If
the Triggering Event was the Executive's Resignation or a Termination
by the Company for Cause, the Executive shall be entitled to receive
his Annual Base Compensation and accrued but unpaid vacation through
the date thereof in accordance with the policy of the Company, and to
continue to participate in the Company's health, insurance and
disability plans and programs through that date and thereafter, only to
the extent permitted under the terms of such plans and programs.
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(b) Death or Total Disability: If the Triggering Event was the
Executive's death or Total Disability, the Executive (or the
Executive's designated beneficiary) shall be entitled to receive the
Executive's Annual Base Compensation and accrued but unpaid vacation
through the date thereof plus a pro rata portion of the Executive's
Potential Annual Target Bonus for the calendar year in which such death
or Total Disability occurred (based on the number of days the Executive
was employed during the applicable calendar year), in accordance with
the policy of the Company, and to continue to participate in the
Company's health, insurance and disability plans and programs through
the date of termination and thereafter only to the extent permitted
under the terms of such plans and programs.
(c) Termination by Company Without Cause: If the Triggering
Event was a Termination by the Company Without Cause, the Executive
shall be entitled to receive his Annual Base Compensation and accrued
but unpaid vacation through the date thereof plus, in the reasonable
discretion of the Chief Executive Officer based upon whether it then
appears the Potential Annual Target Bonus for the year would have been
earned by the Executive had he remained employed by the Company, a pro
rata portion of the Executive's Potential Annual Target Bonus for the
calendar year in which such Triggering Event occurred (based on the
number of days the Executive was employed during the applicable
calendar year), payable in accordance with the Company's normal payroll
practices, provided that in addition, for each month of the Severance
Period hereinafter referred to, the Executive shall also be paid an
amount equal to one-twelfth (1/12th) of his then current Annual Base
Compensation, commencing with the last day of the month following the
month in which the termination occurred (collectively, the "Additional
Severance Benefits"); further provided that:
(i) the Executive shall be entitled to receive such
Additional Severance Benefits during the Severance Period if
and only if the Executive has executed and delivered to the
Company the General Release substantially in form and
substance as set forth in Exhibit C to this Agreement and only
so long as the Executive has not breached any of his covenants
to the Company set forth in Article IV of this Agreement; and
(ii) the Executive's entitlement to receive such
Additional Severance Benefits shall immediately cease upon the
Executive's commencement of full or part-time employment,
whether as an employee or a consultant.
During the Severance Period, the Executive covenants to the Company
that he shall promptly advise the Company of any employment and the
existence of any consulting relationship which has a duration, at
inception or following inception, of more than one (1) month.
(d) Cessation of Entitlements and Company Right of Offset.
Except as otherwise expressly provided herein, all of the Executive's
rights to salary, employee benefits, fringe benefits and bonuses
hereunder (if any) which would otherwise accrue after the termination
of the Employment Period shall cease upon the date of such termination.
The Company may offset any loans, cash advances or fixed amounts which
the Executive owes the Company or its Affiliate against any amounts it
owes the Executive under this Agreement.
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5.3 Survival of Certain Obligations and Termination Certificate. The
provisions of Articles IV, V, VI and VIII shall survive any termination of the
Employment Period, whether by reason of the occurrence of a Triggering Event or
the expiration of the Initial Term or any Extension Term. Immediately following
the termination of the Employment Period, the Executive shall promptly return to
the Company all property required to be returned to the Company pursuant to the
provisions of Section 4.2 hereof and execute and deliver to the Company the
Termination Certificate attached hereto as Exhibit B and by this reference made
a part hereof.
ARTICLE VI
ASSIGNMENT
6.1 Prohibition of Assignment by Executive. The Executive expressly
agrees for himself and on behalf of his executors, administrators and heirs,
that this Agreement and his obligations, rights, interests and benefits
hereunder shall not be assigned, transferred, pledged or hypothecated in any way
by the Executive, his executors, administrators or heirs, and shall not be
subject to execution, attachment or similar process. Any attempt to assign,
transfer, pledge, hypothecate or otherwise dispose of this Agreement or any such
rights, interests and benefits thereunder contrary to the foregoing provisions,
or the levy of any attachment or similar process thereupon shall be null and
void and without effect and shall relieve the Company of any and all liability
hereunder.
6.2 Right of Company to Assign. Except as provided in the next
sentence, the rights, but not the obligations of the Company shall be assignable
and transferable to any successor-in-interest without the consent of the
Executive. In the instance of a sale of the Company or all or substantially all
of its assets, the rights and obligations of the Company may be assigned to the
acquiring party without the Executive's consent.
ARTICLE VII
DEFINITIONS
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
that Person, provided that, for purposes of this definition, the terms
"controls," "controlled by," or "under common control with" shall mean that
Person's possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise.
"Applicable Territory" means the United States of America and each
other country in which the Company, any of its Subsidiaries or any of their
Affiliates is actively engaged in the conduct of one or more lines of business.
"Audit Committee" means the Audit Committee of the Board.
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"Board" means the Board of Directors of the Company.
"Biological Materials" means (i) classical or genetically modified
strains, micro or other organisms, genes, proteins, peptides, sugars,
metabolites, small molecules, enzymes or DNA, vectors, plasmids, promoters,
expression cassettes or other genomic tools and assay materials which are being
worked with or on by the Company, its Subsidiaries or any of their Affiliates or
which are being worked with or on the Company's, its Subsidiaries' or any of
their Affiliates' behalf by the Company's, its Subsidiaries' or any of their
Affiliates' advisors, research and business collaborators, and (ii) "Biological
Materials" and fermentation or other manufacturing processes being utilized by
the Company, its Subsidiaries or any of their Affiliates, the Company's, its
Subsidiaries' or any of their Affiliates' research or business collaborators or
the Company's, its Subsidiaries' or any of their Affiliates' third party
manufactures for research, pilot scale and/or commercial manufacture of
biotechnology and other products.
"Chief Executive Officer" means the chief executive officer of the
Company.
"Compensation Committee" means the Compensation Committee of the Board.
"Non-Competition Period" means the Employment Period and the one (1)
year period thereafter.
"Person" means an individual, partnership, limited liability company,
trust, estate, association, corporation, governmental body or other juridical
being.
"Resignation" means the voluntary termination of employment hereunder
by the Executive (except if made in contemplation of a Termination by the
Company for Cause), provided that if such action is taken by the Executive
without the giving of at least ninety (90) days prior written notice, such
termination of employment shall not be a "Resignation," but instead shall
constitute a Termination for Cause.
"Severance Period" means the six (6) month period immediately following
the date of the termination of the Employment Period.
"Subsidiary" means, with respect to any Person of which (i) if a
corporation, a majority of the total voting power of shares of stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries
of such Person or a combination thereof, or (ii) if a limited liability company,
partnership, association or other business entity, a majority of the partnership
or other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by any Person or one or more Subsidiaries of such Person
or a combination thereof. For purposes hereof, a Person or Persons shall be
deemed to have a majority ownership interest in a limited liability company,
partnership, association or other business entity if such Person or Persons
shall be allocated a majority of limited liability company, partnership,
association or other business entity gains or losses or shall be or control any
managing director or general partner of such limited liability company,
partnership, association or other business entity.
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"Termination by the Company for Cause" means termination by the Company
of the Executive's employment on account of a finding by the Compensation
Committee that the Executive has: (i) breached this Agreement or any other
agreement between the Executive and the Company, any Subsidiary or any of their
Affiliates; (ii) engaged in disloyalty to the Company, including without
limitation, the diversion of corporate opportunity, fraud, embezzlement, theft,
commission of a felony or proven dishonesty, in the course of his performance of
his services hereunder; (iii) disclosed trade secrets or other Confidential
Information of the Company to Persons not entitled to receive such information;
or (iv) engaged in such other behavior detrimental to the interests of the
Company as the Compensation Committee determines; provided that the termination
of the Executive's employment hereunder by the Company shall not be deemed a
Termination by the Company for Cause unless and until there shall have been
delivered to the Executive a written notice from the Chief Executive Officer
(after reasonable notice (in light of the circumstances surrounding the
termination) to and an opportunity for the Executive, alone and in person, to
have a face-to-face meeting with the Compensation Committee) stating that in the
good faith opinion of the Compensation Committee, the Executive was guilty of
the conduct set forth in one or more of the foregoing clauses.
"Termination by the Company Without Cause" means a termination of the
Executive's employment by the Company which is not a Termination by the Company
for Cause, provided that the termination of the Employment Period on account of
the failure of the Company to extend the Employment Period in accordance with
the provisions of Section 2.2 hereof shall constitute a Termination by the
Company Without Cause.
"Total Disability" means the Executive's inability, because of illness,
injury or other physical or mental incapacity, to perform his duties hereunder
(as determined by the Compensation Committee in good faith) for a continuous
period of ninety (90) consecutive days, or for a total of ninety (90) days
within any three hundred sixty (360) consecutive day period, in which case such
Total Disability shall be deemed to have occurred on the last day of such ninety
(90) day or three hundred sixty (360) day period, as applicable.
ARTICLE VIII
GENERAL
8.1 Notices. All notices under this Agreement shall be in writing and
shall be deemed properly sent, (i) when delivered, if by personal service or
reputable overnight courier service, or (ii) when received, if sent (x) by
certified or registered mail, postage prepaid, return receipt requested, or (y)
via facsimile transmission (provided that a hard copy of such notice is sent to
the addressee via one of the methods of delivery or mailing set forth above on
the same day the facsimile transmission is sent); to the recipient at the
address indicated below:
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Notices to Executive:
---------------------
Wayne Moor
132 Hidden Hollow Terrace
Palm Beach Gardens, Florida 33418
The parties agree that when Executive's relocation is complete, his new address
will be substituted for the above temporary address.
Notices to Company:
-------------------
Dyadic International, Inc.
c/o Chief Executive Officer
140 Intracoastal Pointe Drive, Suite 404
Jupiter, Florida 33477
Facsimile (561-743-8513)
With a copy to:
--------------
Robert I. Schwimmer, Esq.
Jenkens & Gilcrhist
225 West Washington, Suite 2600
Chicago, Illinois 60606
Facsimile (312) 425-3909
8.2 Governing Law. This Agreement shall be subject to and governed by
the laws of the State of Florida without regard to any choice of law or
conflicts of law rules or provisions (whether of the State of Florida or any
other jurisdiction), irrespective of the fact that the Executive may become a
resident of a different state.
8.3 Binding Effect. The Agreement shall be binding upon and inure to
the benefit of the Company, its successors and assigns, and the Executive and
his executors, administrators, personal representatives and heirs.
8.4 Complete Understanding. This Agreement constitutes the complete
understanding among the parties hereto with regard to the subject matter hereof,
and supersedes any and all prior agreements and understandings relating to the
employment of the Executive by the Company.
8.5 Amendments. No change, modification or amendment of any provision
of this Agreement shall be valid unless made in writing and signed by all of the
parties hereto.
8.6 Waiver. The waiver by the Company of a breach of any provision of
this Agreement by the Executive shall not operate or be construed as a waiver of
any subsequent breach by the Executive. The waiver by the Executive of a breach
of any provision of this Agreement by the Company shall not operate as a waiver
of any subsequent breach by the Company.
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8.7 Venue, Jurisdiction, Etc. The Executive hereby agrees that any
suit, action or proceeding relating in any way to this Agreement may be brought
and enforced in the Circuit Court of Palm Beach County of the State of Florida
or in the District Court of the United States of America for the Southern
District of Florida, and in either case the Executive hereby submits to the
jurisdiction of each such court. The Executive hereby waives and agrees not to
assert, by way of motion or otherwise, in any such suit, action or proceeding,
any claim that the Executive is not personally subject to the jurisdiction of
the above-named courts, that the suit, action or proceeding is brought in an
inconvenient forum or that the venue of the suit, action or proceeding is
improper. The Executive consents and agrees to service of process or other legal
summons for purpose of any such suit, action or proceeding by registered mail
addressed to the Executive at his or her address listed in the business records
of the Company. Nothing contained herein shall affect the rights of the Company
to bring suit, action or proceeding in any other appropriate jurisdiction. The
Executive and the Company do each hereby waive any right to trial by jury, he or
it may have concerning any matter relating to this Agreement.
8.8 Severability. If any portion of this Agreement shall be for any
reason, invalid or unenforceable, the remaining portion or portions shall
nevertheless be valid, enforceable and carried into effect.
8.9 Headings. The headings of this Agreement are inserted for
convenience only and are not to be considered in the construction of the
provisions hereof.
8.10 Counterparts. This Agreement may be executed in one or more
counterparts, all of which, taken together, shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above-written.
COMPANY: EXECUTIVE:
- ------- ---------
DYADIC INTERNATIONAL, INC., a
Delaware Corporation
/s/ Wayne Moor
-------------------
WAYNE MOOR
By:/s/ Mark A. Emalfarb
--------------------------
Chief Executive Officer
15
EXHIBIT A
to
EXECUTIVE EMPLOYMENT AGREEMENT
between
DYADIC INTERNATIONAL, INC.
and
WAYNE MOOR
STOCK OPTION AGREEMENT
EXHIBIT B
to
EXECUTIVE EMPLOYMENT AGREEMENT
between
DYADIC INTERNATIONAL, INC.
and
WAYNE MOOR
TERMINATION CERTIFICATE
This is to certify that, except as permitted by the Employment
Agreement (as defined below) I do not have in my possession, nor have I failed
to return, any software, inventions, designs, works of authorship, copyrightable
works, formulas, data, marketing plans, forecasts, product concepts, marketing
plans, strategies, forecasts, devices, records, data, notes, reports, proposals,
customer lists, correspondence, specifications, drawings, blueprints, sketches,
materials, patent applications, continuation applications, continuation-in-part
applications, divisional applications, other documents or property, or
reproductions of any aforementioned items belonging to DYADIC INTERNATIONAL,
INC. (the "Company"), its Subsidiaries and their Affiliates, successors or
assigns.
I further certify that I have complied with all the terms of the
Employment Agreement dated as of January 31, 2005 between the Company and me
(the "Employment Agreement"), relating to the reporting of any Work Product (as
that term is defined therein), conceived or made by me (solely or jointly with
others) covered by the Employment Agreement.
I acknowledge that the provisions of the Employment Agreement relating
to Confidential Information, as defined in the Employment Agreement, continue in
effect beyond the termination of the Employment Agreement, as set forth therein.
Finally, I further acknowledge that the provisions of the Employment
Agreement relating to my (i) anti-pirating, (ii) non-interference and (iii)
non-competition covenants to the Company, its Subsidiaries and their Affiliates,
also remain in effect following the date of my termination of employment with
the Company.
Date:
------------------------------ ----------------------------
Executive
2
EXHIBIT C
to
EXECUTIVE EMPLOYMENT AGREEMENT
between
DYADIC INTERNATIONAL, INC.
and
WAYNE MOOR
GENERAL RELEASE
I, WAYNE MOOR, in consideration of and subject to the performance by
DYADIC INTERNATIONAL, INC., a Delaware corporation (the "Company"), of its
material obligations under the Employment Agreement, dated as of January 31,
2005 (the "Agreement"), do hereby release and forever discharge as of the date
hereof the Company, its Subsidiaries and their Affiliates (as those terms are
defined in the Agreement) and all present and former directors, officers,
agents, representatives, employees, successors and assigns of the Company, its
Subsidiaries and their Affiliates and their direct or indirect owners
(collectively, the "Released Parties") to the extent provided below.
1. I understand that any payments or benefits paid or granted to me under
Section 5.2(c) of the Agreement represent, in part, consideration for
signing this General Release and are not salary, wages or benefits to
which I was already entitled. I understand and agree that I will not
receive the payments and benefits specified in Section 5.2(c) of the
Agreement unless I execute this General Release and do not revoke this
General Release within the time period permitted hereafter or breach
this General Release.
2. Except as provided in paragraph 4 of this General Release, I knowingly
and voluntarily release and forever discharge the Company and the other
Released Parties from any and all claims, controversies, actions,
causes of action, cross-claims, counterclaims, demands, debts,
compensatory damages, liquidated damages, punitive or exemplary
damages, other damages, claims for costs and attorneys' fees, or
liabilities of any nature whatsoever in law and in equity, both past
and present (through the date of this General Release) and whether
known or unknown, suspected, or claimed against the Company or any of
the Released Parties which I, my spouse, or any of my heirs, executors,
administrators or assigns, may have, which arise out of or are
connected with my employment with, or my separation from, the Company
(including, but not limited to, any allegation, claim or violation,
arising under: Title VII of the Civil Rights Act of 1964, as amended;
the Civil Rights Act of 1991; the Age Discrimination in Employment Act
of 1967, as amended (including the Older Workers Benefit Protection
Act); the Equal Pay Act of 1963, as amended; the Americans with
Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the
Civil Rights Act of 1866, as amended; the Worker Adjustment Retraining
and Notification Act; the Executive Retirement Income Security Act of
1974; any applicable Executive Order Programs; the Fair Labor Standards
Act; or their state or local counterparts; or under any other federal,
state or local civil or human rights law, or under any other local,
state, or federal law, regulation or ordinance; or under any public
policy, contract or tort, or under common law; or arising under any
policies, practices or procedures of the Company; or any claim for
wrongful discharge, breach of contract, negligent or intentional
infliction of emotional distress, defamation; or any claim for costs,
fees, or other expenses, including attorneys' fees incurred in these
matters) (all of the foregoing collectively referred to herein as the
"Claims").
3. I represent that I have made no assignment or transfer of any right,
claim, demand, cause of action, or other matter covered by paragraph 2
of this General Release.
4. I and the Company mutually agree that this General Release does not
waive or release any rights or claims that I may have under: (a) the
Age Discrimination in Employment Act of 1967 which arise after the date
I execute this General Release; and (b) any agreements to which I and
the Company are parties pertaining to any shares or options to purchase
shares of capital stock of the Company owned by me. I acknowledge and
agree that my separation from employment with the Company in compliance
with the terms of the Agreement shall not serve as the basis for any
claim or action (including, without limitation, any claim under the Age
Discrimination in Employment Act of 1967).
5. In signing this General Release, I acknowledge and intend that it shall
be effective as a bar to each and every one of the Claims hereinabove
mentioned or implied. I expressly consent that this General Release
shall be given full force and effect according to each and all of its
express terms and provisions, including those relating to unknown and
unsuspected Claims (notwithstanding any state statute that expressly
limits the effectiveness of a general release of unknown, unsuspected
and unanticipated Claims), if any, as well as those relating to any
other Claims hereinabove mentioned or implied. I acknowledge and agree
that this waiver is an essential and material term of this General
Release and that without such waiver the Company would not have agreed
to the terms of the Agreement. I further agree that in the event I
should bring a Claim seeking damages against the Company, or in the
event I should seek to recover against the Company in any Claim brought
by a governmental agency on my behalf, this General Release shall serve
as a complete defense to such Claims. I further agree that I am not
aware of any pending charge or complaint of the type described in
paragraph 2 as of the execution of this General Release.
6. I agree that neither this General Release, nor the furnishing of the
consideration for this General Release, shall be deemed or construed at
any time to be an admission by the Company, any Released Party or
myself of any improper or unlawful conduct.
2
7. I agree that if I challenge the validity of this General Release, I
will forfeit all unpaid amounts otherwise payable by the Company
pursuant to Section 5.2(c) of the Agreement other than the very first
payment due me thereunder, provided that nothing herein contained in
this Agreement shall prohibit or bar me from filing a charge, including
a challenge to the validity of the Agreement, with the United States
Equal Employment Opportunity Commission ("EEOC"), or any state or local
fair employment practices agency, or from participating in any
investigation, hearing or proceeding conducted by the EEOC, or any
state or local fair employment practices agency. I also agree that if I
violate this General Release by suing the Company or the other Released
Parties, I will pay all costs and expenses of defending against the
suit incurred by the Released Parties, including reasonable attorneys'
fees, and return all payments received by me pursuant to the Agreement.
8. I agree that this General Release is confidential and agree not to
disclose any information regarding the terms of this General Release,
except to my immediate family and any tax, legal or other counsel I
have consulted regarding the meaning or effect hereof or as required by
law, and I will instruct each of the foregoing not to disclose the same
to anyone.
9. Any non-disclosure provision in this General Release does not prohibit
or restrict me (or my attorney) from responding to any inquiry about
this General Release or its underlying facts and circumstances by the
Securities and Exchange Commission (SEC), the EEOC (or a state or local
fair employment practices agency), the National Association of
Securities Dealers, Inc. (NASD), any other self-regulatory organization
or governmental entity.
10. I agree to reasonably cooperate with the Company in any internal
investigation or administrative, regulatory, or judicial proceeding. I
understand and agree that my cooperation may include, but not be
limited to, making myself available to the Company upon reasonable
notice for interviews and factual investigations; appearing at the
Company's request to give testimony without requiring service of a
subpoena or other legal process; volunteering to the Company pertinent
information; and turning over to the Company all relevant documents
which are or may come into my possession all at times and on schedules
that are reasonably consistent with my other permitted activities and
commitments, provided that I shall have no obligation to expend more
than one week of my time in connection with the performance of these
activities which out reasonable recompense, as mutually and reasonably
agreed upon by me and the Company. I understand that in the event the
Company asks for my cooperation in accordance with this provision, the
Company will reimburse me solely for reasonable travel expenses,
including lodging and meals, upon my submission of receipts.
11. Notwithstanding anything in this General Release to the contrary, this
General Release shall not relinquish, diminish, or in any way affect
any rights or claims arising out of any breach by the Company or by any
Released Party of the Agreement.
12. Whenever possible, each provision of this General Release shall be
interpreted in, such manner as to be effective and valid under
applicable law, but if any provision of this General Release is held to
be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality
or unenforceability shall not affect any other provision or any other
jurisdiction, but this General Release shall be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
3
BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
(a) I HAVE READ IT CAREFULLY;
(b) I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT
RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE
DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE
CIVIL RIGHTS ACT OF 1964, AS AMENDED; THE EQUAL PAY ACT OF 1963, THE
AMERICANS WITH DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED;
(c) I VOLUNTARILY CONSENT TO EVERYTHING IN IT;
(d) I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND
I HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION I HAVE
CHOSEN NOT TO DO SO OF MY OWN VOLITION;
(e) I HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE
SUBSTANTIALLY IN ITS FINAL FORM ON _______________ ____, ____ TO
CONSIDER IT AND THE CHANGES MADE SINCE THE ______________ _____,
_____VERSION OF THIS RELEASE ARE NOT MATERIAL AND WILL NOT RESTART THE
REQUIRED 21-DAY PERIOD;
(f) THE CHANGES TO THE AGREEMENT SINCE ____________ ___, _____ EITHER ARE
NOT MATERIAL OR WERE MADE AT MY REQUEST.
(g) I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS RELEASE
TO REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR
ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS EXPIRED;
(h) I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH
THE ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND
(i) I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED,
WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED
BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME.
DATE: ,
--------------- ---- --------- --------------------------------
4