EXHIBIT 10.2
EMPLOYMENT AGREEMENT BETWEEN
BIOQUEST INTERNATIONAL, INC.
AND
ROGER MILLER
<PAGE>
EMPLOYMENT AGREEMENT
AGREEMENT, made as of the 21st day of August 2000, among BIOQUEST
INTERNATIONAL (U.S.A.), INC., a Virginia corporation ("Employer"), and Roger
Miller, residing at 223 Dolphin Cove Court, Bonita Shores, Florida 34134
("Executive").
W I T N E S S E T H:
WHEREAS, Executive is being retained as a key executive officer and
employee of Employer and Employer wishes to retain the services of Executive as
an employee and officer of Employer, and Executive desires to render such
services;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the parties hereto agree as follows:
1. PRIOR AGREEMENTS SUPERSEDED; EFFECTIVENESS. This Agreement supersedes any
employment agreements, oral or written, entered into between Executive and
Employer prior to the date of this Agreement.
2. RETENTION OF SERVICES. The Employer hereby agrees to employ the Executive
and the Executive agrees to accept employment on, and subject to, the terms
and conditions hereinafter set forth.
3. TERM OF EMPLOYMENT. Subject to earlier termination in accordance with
Section 8 hereof, the term of this Agreement shall commence on October 15,
2000 and end on October 14, 2005 ("Term of Employment").
4. DUTIES. During the Term of Employment, the Executive shall be employed by
the Employer as Chief Financial Officer of BioQuest International, Inc. and
Employer. The Executive agrees that he will devote his full business time
and best efforts exclusively to the faithful and diligent performance of
all of the duties and responsibilities incident to that position as well as
all such other executive duties and responsibilities for or on behalf of
the Employer and its parent or subsidiaries (or other affiliates it may
acquire in the future) in that executive capacity as required to be
performed from time to time by the Board of Directors.
5. COMPENSATION. For so long as the Executive is employed by the Employer, in
consideration of the services rendered by the Executive hereunder, the
Employer agrees to pay to the Executive during the Term of Employment, and
the Executive agrees to accept as compensation:
(a) No salary for the first year of the Agreement, and then one hundred
fifty thousand dollars ($150,000), with such subsequent increases in
salary during the term of this Agreement as may be determined by the
Compensation Committee of the Board of Directors. In determining
salary increases, the Compensation Committee may compensate the
Employee for increases in the cost of living and may also provide for
performance or merit increases. The Salary shall be payable in monthly
installments or in accordance with the Employer's normal payroll
policies.
(b) In addition to the foregoing, the Executive shall be entitled to an
incentive in the form of options to be issued under its proposed stock
option plan. Such stock option plan to be established for this
incentive, as described in (c)(iv), is in lieu of or in addition to
cash bonuses. The terms of such incentive plan will be developed and
approved by the Board of Directors acting as a Compensation Committee.
(c) During the Term of Employment, Executive shall be entitled to the
following benefits and perquisites:
(i) participation, subject to qualification requirements, in all
medical and hospitalization plans, presently in effect or
hereinafter instituted by the Employer and applicable to its
Executive employees; (ii) the use of a suitable automobile and
the payment or reimbursement of all expenses incidental thereto
including fuel, repairs, insurance as well as registration and
inspection fees;
(iii)sick leave in accordance with the Employer's policies in effect
from time to time for executives of the Employer;
(iv) participation in any stock option and/or stock purchase plans
existing now or hereafter instituted by Employer;
(v) participation in the existing or any successor pension and profit
sharing plans of the Employer ("Employer's Plans");
(vi) reimbursement of reasonable premiums expended by Executive for
Disability Insurance in the maximum principal amount attainable
commensurate with Executive's Salary;
(vii)reimbursement for all reasonable and customary expenses incurred
by the Employee in performing services for the Employer,
including all travel and living expenses while away from home on
business or at the request of, and in the service of the Company,
provided that such expenses are incurred and accounted for in
accordance with the policies and procedures established by the
Employer;
(viii) without loss of pay, to be absent voluntarily for reasonable
periods of time from the performance of the duties and
responsibilities under this Agreement. All such voluntary
absences shall count as paid vacation time, unless the Board
otherwise approves; and
(ix) entitled to an annual paid vacation of two weeks per year for the
first three (3) years, three (3) weeks for the next three (3)
years and four (4) weeks thereafter with vacation not taken in a
calendar year cumulative for a maximum period of three (3) years.
The timing of paid vacations shall be scheduled in a reasonable
manner by the Employee but, without prior approval of Employer's
CEO, may not be taken more than two (2) consecutive weeks at any
given time.
6. DEATH BENEFIT. If Executive dies during the Term of Employment, then,
provided the Executive was not in breach of this Agreement on the date of
his death, his monthly salary shall be continued for a twelve (12) month
period following the date of death and shall be paid to his widow, or to a
designee other than his widow if such designation is made in writing by
Executive, or if no widow survives him and no designation has been made
hereunder, then to his estate provided that such monthly salary shall not
be paid for any period beyond the Term of Employment.
7. DISABILITY. Subject to Section 8 (c) (iii), if during the Term of
Employment, the Executive becomes unable for six (6) consecutive months or
more or during nine (9) out of any twelve (12) months, due to ill health or
other incapacitation, to perform his duties hereunder, then, on at least
thirty (30) days' written notice, Employer may place Executive on
disability status (and he shall then receive such disability benefits then
provided to other executive employees of Employer) at the end of any month
after said six-month or nine-month period at no salary for the remainder of
the Term of Employment or until his disability ends, whichever first
occurs, in either case so long as he is otherwise in full compliance with
all the terms and conditions of this Agreement.
8. TERMINATION OF EMPLOYMENT. This Agreement and, accordingly, the Term of
Employment, may be terminated earlier than as specified in Section 3
hereof, upon the happening of any of the following events:
(a) Whenever Employer and the Executive shall mutually agree in writing to
terminate this Agreement.
(b) Upon the death of the Executive, provided that in such event, the
amounts due under Paragraph 6 (a) will be paid as provided therein.
(c) At the option of the Employer, for "Good Cause", if the Executive
shall:
(i) be in breach of or default under any material provision of this
Agreement for a period of thirty (30) days after written notice
of such breach is given by Employer to the Executive; or (ii) be
convicted or have acknowledged the commission of fraud,
misappropriation, embezzlement or a felony of any kind; or
(iii)become totally incapacitated so as to preclude performance of
the duties of his employment hereunder for a period of six (6)
consecutive months or nine (9) months in any twelve (12) month
period.
(d) At the Executive's option, if Employer shall be in breach of or
default under any material provision of this Agreement for a period of
thirty (30) days after written notice of such breach is given by the
Executive to the Employer.
9. COVENANTS.
(a) Non-Disclosure of Confidential Information. The Executive agrees, that
at any time during or after he ceases to be employed by the Employer,
he will not directly or indirectly (except where authorized by the
Board of Directors of the Employer) divulge to any persons, firms or
corporations (hereinafter referred to collectively as "third parties")
or use, or cause to authorize any third parties to use, any
information regarded as confidential and valuable by the Employer
which he knows or should know is regarded as confidential and valuable
by the Employer. The non-disclosure obligations of this Section 9 (a)
shall not be imposed with regard to information which is or
subsequently becomes, through no fault of Executive, generally
available to the public or is disclosed as required by court order or
by an order of any state or federal regulatory agency.
(b) Non-Competition.
(i) During the Term of Employment, the Executive will not, anywhere:
(a') engage, directly or indirectly, either individually or as
stockholder, partner, officer, director, employee,
consultant, agent or otherwise, in any business which is in
competition with the Employer or any affiliate thereof;
(b') solicit for employment or employ, or cause or authorize
directly or indirectly to be solicited for employment or
employ, for or on behalf of himself or third parties
("raid") any persons who were at the time the Executive's
employment hereunder ended or within six (6) months prior
thereto, employees of the Employer or any affiliates
thereof; or
(c') at any time remove from the Employer's premises any
drawings, notebooks, data and other documents and materials
relating to the business and procedures of the Employer,
including any patents, intellectual property or inventions
developed by or for the Company, except as reasonably
necessary to the discharge of his duties hereunder and
shall, upon termination of employment for any reason, return
to the Employer all such documents and materials and copies
or extracts thereof.
(ii) For three (3) years following the Term of Employment, the
Executive will not, anywhere:
(a') engage, directly or indirectly, either individually or as
stockholder, partner, officer, director, employee,
consultant, agent or otherwise, in any business which is in
competition with the Employer or any affiliate thereof; (b')
solicit for employment or employ, or cause or authorize
directly or indirectly to be solicited for employment or
employ, for or on behalf of himself or third parties
("raid") any persons who were at the time the Executive's
employment hereunder ended or within six (6) months prior
thereto, employees of the Employer or any affiliates
thereof; or
(c') remove at any time from the Employer's premises any
drawings, notebooks, data and other documents and materials
relating to the business and procedures of the Employer,
including any patents, intellectual property or inventions
developed by or for the Company except as reasonably
necessary to the discharge of his duties hereunder and shall
upon termination of employment for any reason, return to
Employer all such documents and materials and copies or
extracts thereof.
10. INCENTIVE RELIEF AND OTHER REMEDIES.
(a) Executive agrees that any breach or threatened breach by him of any
Section 9 covenants shall entitle the Employer, on a non-mutually
exclusive basis, in addition to any other legal remedies available to
it, to apply to any court of competent jurisdiction to enforce
specifically the terms of this Agreement. The parties understand and
intend that each restriction agreed to by Executive above and
elsewhere herein will be construed as separable and divisible from
every other restriction and that the unenforceability, in whole or in
part, of any other restriction will not affect the enforceability of
the remaining restriction and that one or more or all of such
restrictions may be enforced in whole or in part, as the circumstances
warrant.
(b) In the event of a breach of the foregoing Section 9 covenants, the
parties acknowledge that the Employer may be irreparably damaged and
may not have an adequate remedy at law. Therefore, Employer may
obtain, without the necessity of posting a bond, injunctive or other
appropriate equitable relief for any breach or threatened breach of
such covenants. The parties hereto further acknowledge that such
covenants are intended to conform to the extent required with the laws
of Virginia. Any court of competent jurisdiction is hereby authorized
to expand or contract the geographical, temporal or other restrictions
of such covenants in order to conform with the laws of Virginia so
that it shall bind the parties hereto and be enforceable by that
court.
(d) If any of the covenants contained in Section 9 or any aspects thereof
are construed to be invalid or unenforceable, the same shall not
affect the remainder of the covenant or covenants, which shall be
given full effect, without regard to the invalid parts.
11. OWNERSHIP. All improvements, discoveries, inventions, designs, documents,
licenses and patents, or other data devised, conceived, made, developed,
obtained, filed, perfected, acquired, or first reduced to practice, in
whole or in part, or in the regular cause of employment by the Employee
during the term of this Agreement, and related in any way to the Business,
including development and research, of the Employer or any subsidiary or
affiliate engaged in business substantially similar to that of the Employer
shall be promptly disclosed to the Employer. The Employee hereby assigns
and transfers to the Employer all his right, interest and title thereon,
and such improvements, discoveries, inventions, designs, documents,
licenses and patents, or other data shall become the property of the
Employer. During the term of this Agreement and at any time therefore, upon
request of the Company, the Employee will join and render assistance in any
proceedings and execute any papers necessary to file and prosecute
applications for, and to acquire, maintain and enforce, letters patent,
trademarks, registrations and/or copyrights, both domestic and foreign,
with respect to such improvements, discoveries, inventions, designs,
documents, licenses and patents or other data as required for vesting and
maintaining title to same in the Employer.
12. COST OF ENFORCEMENT. In the event the employment of the Employee is
terminated by the Employer, whether because of disability or without cause,
or by the Employee for Good Reason, and the Company fails to make timely
payment of the amounts owed to the Employee under this Agreement, the
Employee shall be entitled to reimbursement for all reasonable costs,
incurred by the Employee in taking action to collect such amounts or
otherwise to enforce this Agreement, plus interest on such amounts at the
rate of one percent above the prime rate (defined as the base rate or
corporate loans at large U.S. money center commercial banks as published by
the Wall Street Journal), compounded monthly, for the period from the date
of employment termination until payment is made to the Employee. Such
reimbursement and interest shall be in addition to all rights to which the
Employee is otherwise entitled under this Agreement.
13. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of and
shall be binding upon the parties hereto and the Employer's successors or
assigns (whether resulting from any reorganization, consolidation or merger
of the Employer) and the Executive's heirs, executors and legal regard to
the invalid parts.
14. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding of the parties with respect to the subject matter hereof,
supercedes all prior agreements and understanding with respect thereto and
cannot be modified, amended, waived or terminated, in whole or in part,
except in accordance with the terms hereof or by a writing signed by all of
the parties. No course of dealings between the parties during the term of
this Agreement shall be deemed to amend or expand the obligations of any of
the parties hereto unless incorporated in a written instrument as
aforesaid.
15. NOTICE. Any notice to a party hereto pursuant to this Agreement shall be in
writing. Such notice shall be deemed given (i) when delivered personally,
by nationally recognized overnight courier service or given by facsimile to
such party, upon receipt and confirmation thereof; and (ii) when sent by
certified mail return receipt requested, upon return receipt therefore.
16. GOVERNING LAW. This Agreement and all issues regarding the validity,
construction, interpretation, performance and enforceability thereof, shall
be governed and construed exclusively in accordance with the laws of
Virginia, regardless of the laws that might otherwise govern this Agreement
under applicable conflicts of law principles.
17. MISCELLANEOUS. This Agreement:
(a) may not (except as specifically provided) be assigned by any party
hereto without the prior written consent of the other parties (any
purported assignment hereof in violation of this provision being null
and void); but
(c) may be executed in various counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Employment
Agreement this 21st day of August 2000.
BIOQUEST INTERNATIONAL (U.S.A.), INC.
By: /s/Peter J. Ewens
------------------
Peter J. Ewens, President
By: /s/ Roger Miller
----------------------------------------
Roger Miller, individually ("Executive")
