THERMOGENESIS CORP.
EMPLOYMENT AGREEMENT
for
Dan Segal
THERMOGENESIS CORP. ("Employer"), and Dan Segal ("Employee"), agree as follows:
1. Employment. Employer employs Employee and Employee accepts employment with
Employer on the terms and conditions set forth in this Employment Agreement
("Agreement").
2. Position; Scope of Employment. Employee shall have the position of Vice
President of Sales/Marketing for Employer, and shall have the duties and
authority set forth below, and as detailed on the position description
attached as Exhibit "A", which duties and authority may be modified from
time to time by Employer. As Vice President of Sales/Marketing, Employee
shall report directly to the Employer's President and Chief Operating.
2.1. Entire Time and Effort. Employee shall devote Employee's full working
time, attention, abilities, skill, labor and efforts to the
performance of his employment. Employee shall not, directly or
indirectly, alone or as a member of a partnership or other
organizational entity, or as an officer of any corporation (other than
any which are owned by or affiliated with Employer) (i) be
substantially engaged in or concerned with any other commercial duties
or pursuits, (ii) engage in any other business activity that will
interfere with the performance of Employee's duties under this
Agreement, except with the prior written consent of Employer, or (iii)
join the board of directors of any other corporation; provided,
however, that Employee may join the board of directors of no more than
two unaffiliated corporations so long as such corporations are not
competitive to the current or future operations of Employer and those
corporations offer some synergistic prospects or other support for the
Employer's goals.
2.2. Rules and Regulations. Employee agrees to observe and comply with
Employer's rules and regulations as provided by Employer and as may be
amended from time to time by Employer and will carry out and perform
faithfully such orders, directions and policies of Employer. To the
extent any provision of this Agreement is contrary to an Employer rule
or regulation, as such may be amended from time to time, the terms of
this Agreement shall control.
2.3. Limitations Upon Authority to Bind Employer. Employee shall not engage
in any of the following actions on behalf of Employer without the
prior approval of Employer: (i) borrow or obtain credit in any amount
or execute any guaranty, except for items purchased from vendors in
the ordinary course of Employer's operations; (ii) expend funds for
capital equipment in excess of expenditures expressly budgeted by
Employer, if applicable, or in the event not budgeted, not to exceed
the amounts set forth in subparagraph (iii); (iii) sell or transfer
capital assets exceeding ten thousand dollars ($10,000) in market
value in any single transaction or exceeding fifty thousand dollars
($50,000) in the aggregate during any one fiscal year; (iv) execute
any lease for real or personal property; or (v) exercise any authority
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or control over the management of any employee welfare or pension
benefit plan maintained by Employer or over the disposition of the
assets of any such plan.
3. Term. The term of this Agreement shall be for a period of Two years (2)
years which shall commence on August 14, 2000 and end on August 14, 2002;
unless terminated earlier as provided below in section 5.
4. Compensation. Employer shall pay to or provide compensation to Employee as
set forth in this section 4. All compensation of every description shall be
subject to the customary withholding tax and other employment taxes as
required with respect to compensation paid to an employee.
4.1 Base Salary. Employer shall pay Employee a base salary of One Hundred
and Ten Thousand dollars ($116,000) per year commencing on August 14,
2000 ("Base Salary"). Employee's Base Salary shall be payable in
accordance with Employer's regular pay schedule, but not less
frequently than twice per month.
4.2. Annual Review. On the date of the Employer's annual meeting of
shareholders, or within thirty (30) days thereafter, and on each
subsequent annual meeting of shareholders during the term of this
Agreement, Employer shall review the previous year's performance of
Employee for the purpose of making reasonable increases to Employee's
Base Salary; provided that Employer shall not be required to increase
Employee's Base Salary, but may do so at its discretion.
4.3. Cash Bonuses. Conditioned upon cessation of commission based
additional salary, and in addition to the Base Salary provided for in
sections 4.1 and 4.2, Employee is eligible to receive bonuses, paid
through issuance of stock or grant of options, based on Employer
performance and Employee's attainment of objectives periodically
established by the Compensation Committee of the Board of Directors.
Annual bonuses to be provided to Employee shall not exceed thirty-five
percent (35%) of Employee's Base Salary then in effect in any given
year. Notwithstanding the foregoing, Employee may be eligible for a
bonus at the end of the fiscal year ending June 30, 2001, provided
that the Board approved Revenue Plan is achieved during that period
and Employee meets all other criteria established by Employer's
Compensation Committee with respect to an award payable through the
issuance of stock, restricted stock, options or other manner as
directed by Employer's Compensation Committee.
4.4. Stock Option Grants. In addition to Base Salary provided for in
sections 4.1 and 4.2, Employee is eligible to receive, in addition to
any cash bonus provided for in section 4.3, an award of stock options
as may be determined from time to time by Employer's Compensation
Committee which consists of disinterested directors who administer
Employer's Amended 2000 Stock Option Plan and Employer's 2000 Employee
Equity Incentive Plan.
4.5. Vacation and Sick Leave. Employee shall be entitled to accrue up to
Three (3) weeks vacation annually; provided, however, that vacation
time may not accrue beyond two weeks of accrued and unused time.
Vacation pay shall not accrue beyond two (2) weeks at any given time.
Employee shall be entitled to sick leave in accordance with Employer's
sick leave policy, as amended from time to time. At the end of each
anniversary of this Agreement, subject to the limit on two weeks
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accrued and unused vacation, all such unused and accrued vacation time
shall be paid in cash.
4.6. Other Fringe Benefits. Employee shall participate in all of Employer's
fringe benefit programs in substantially the same manner and to
substantially the same extent as other similar employees of Employer,
excluding only those benefits expressly modified by the terms hereof.
4.7. Expenses. Employee shall be reimbursed for his reasonable business
expenses; subject to the presentation of evidence of such expenses in
accordance with established policies adopted by Employer from time to
time.
4.8. Compensation From Other Sources. Any proceeds that Employee shall
receive by virtue of qualifying for disability insurance, disability
benefits, or health or accident insurance shall belong to Employee.
Employee shall not be paid Base Salary in any period in which he
receives benefits as determined and paid under Employer's long-term
disability policy. Benefits paid to Employee under Employer's
short-term disability policy shall reduce, by the same amount, Base
Salary payable to Employee for such period.
5. Early Termination. Employee's employment with Employer may be terminated
prior to the expiration of the term of this Agreement, upon any of the
following events: (i) the mutual agreement of Employer and Employee in
writing; (ii) the disability of Employee, which shall, for the purposes of
this Agreement, mean Employee's inability, for a period exceeding three (3)
months as determined by a qualified physician, and which qualifies Employee
for benefits under Employer's long-term disability policy, to perform in
the usual manner the material duties usually and customarily pertaining to
Employee's long-term employment; (iii) Employee's death; (iv) notice of
termination by Employer for cause; (v) Employer's cessation of business;
(vi) written notice of termination by Employer without cause upon fourteen
(14) days' notice, subject to the provisions for compensation upon early
termination in section 5.3(b); or (vii) upon a Change in Control (as
defined below) of Employer (as defined in and under the circumstances
described in section 5.4).
5.1. Definition of Cause. For purposes of this Agreement, any of the
following shall constitute cause: (i) willful or habitual breach of
Employee's duties; (ii) fraud or intentional material
misrepresentation by Employee to Employer or any others; (iii) theft
or conversion by Employee; (iv) unauthorized disclosure or other use
of Employer's trade secrets, customer lists or confidential
information; (v) habitual misuse of alcohol or any nonprescribed drug
or intoxicant; or (vi) willful violation of any other standards of
conduct as set forth in Employer's employee manual.
5.2. Damages. If Employer terminates Employee for cause, Employer shall be
entitled to damages and all other remedies to which Employer may
otherwise be entitled.
5.3. Compensation Upon Early Termination.
(a) If Employee resigns during the term of this Agreement, or if this
Agreement is terminated by Employer for cause, Employee shall be
entitled to all accrued but unpaid Base Salary and vacation pay
accrued through the date of delivery of notice of termination.
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(b) If Employee is terminated without cause, Employer shall pay to
Employee as liquidated damages and in lieu of any and all other
claims which Employee may have against Employer the greater of
(i) six (6) months of Employee's salary excluding any amounts for
benefits; or (ii) an amount equal to the then current per month
Base Salary multiplied by the number of calendar months remaining
of the term of this Agreement. Employer's payment pursuant to
this subparagraph shall fully and completely discharge any and
all obligations of Employer to Employee arising out of or related
to this Agreement and shall constitute liquidated damages in lieu
of any and all claims which Employee may have against Employer
not including any obligation under the workers' compensation laws
including Employer's liability provisions.
(c) If Employee's employment is terminated as a result of death or
total disability, Employee shall be entitled to accrued but
unpaid Base Salary to date of termination. The date of
termination shall be deemed the date of death or, in the event of
disability, the date Employee qualified for total disability
payments under Employer's long-term disability plan.
(d) If Employee's employment is terminated as a result of a Change in
Control of Employer, Employee shall be entitled to a lump-sum
payment equal to three times Employee's Base Salary at the time.
A "Change in Control" shall mean an event involving one
transaction or a related series of transactions in which one of
the following occurs: (i) Employer issues securities equal to 33%
or more of Employer's issued and outstanding voting securities,
determined as a single class, to any individual, firm,
partnership or other entity, including a "group" within the
meaning of section 13(d)(3) of the Securities Exchange Act of
1934; (ii) Employer issues securities equal to 33% or more of the
issued and outstanding common stock of Employer in connection
with a merger, consolidation or other business combination; (iii)
Employer is acquired in a merger or other business combination
transaction in which Employer is not the surviving company; or
(iv) all or substantially all of Employer's assets are sold or
transferred.
(e) Except as expressly provided in paragraph (d) above, all
compensation described in this section 5.3 shall be due and
payable in installments at least bi-weekly or at the time of the
delivery of notice of termination, at Employer's discretion.
6. Confidential Information of Customers of Employer. Employee during the
course of his duties will be handling financial, accounting, statistical,
marketing and personnel information of customers of Employer. All such
information is confidential and shall not be disclosed, directly or
indirectly, or used by Employee in any way, either during the term of this
Agreement or at any time thereafter except as required in the course of
Employee's employment with Employer.
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7. Unfair Competition. During the term of this Agreement, Employee shall not,
directly or indirectly, whether as a partner, employee, creditor,
shareholder, or otherwise, promote, participate, or engage in any activity
or other business which is competitive in any way with Employer's business.
The obligation of the Employee not to compete with the Employer shall not
prohibit the Employee from owning or purchasing any corporate securities
that are regularly traded on a recognized stock exchange or on
over-the-counter market. In order to protect the trade secrets of Employer,
after the term, or upon earlier termination of this Agreement, the Employee
shall not, directly or indirectly, either as an employee, employer,
consultants, agent, principal, partner, stockholder, corporate officer,
director, or any other individual or representative capacity, engage or
participate in any business that is in direct competition with the business
of the Employer for a period of one (1) year from the date of the
expiration of this Agreement in the areas related to blood processing
equipment or procedures.
8. Trade Secrets. Employee shall not disclose to any others, or take or use
for Employee's own purposes or purposes of any others, during the term of
this Agreement or at any time thereafter, any of Employer's trade secrets,
including without limitation, confidential information, customer lists,
computer programs or computer software of Employer. Employee agrees that
these restrictions shall also apply to (i) trade secrets belonging to third
parties in Employer's possession and (ii) trade secrets conceived,
originated, discovered or developed by Employee during the term of this
Agreement. Information of Employer shall not be considered a trade secret
if it is lawfully known outside of Employer by anyone who does not have a
duty to keep such information confidential.
8.1 Inventions; Ownership Rights. Employee agrees that all ideas,
techniques, inventions, systems, formulas, discoveries, technical
information, programs, prototypes and similar developments
("Developments") developed, created, discovered, made, written or
obtained by Employee in the course of or as a result, directly or
indirectly, of performance of his duties hereunder, and all related
industrial property, copyrights, patent rights, trade secrets and
other forms of protection thereof, shall be and remain the property of
Employer. Employee agrees to execute or cause to be executed such
assignments and applications, registrations and other documents and to
take such other action as may be requested by Employer to enable
Employer to protect its rights to any such Developments. If Employer
requires Employee's assistance under this section 8.1 after
termination of this Agreement, Employee shall be compensated for his
time actually spent in providing such assistance at an hourly rate
equivalent to the prevailing rate for such services and as agreed upon
by the parties.
9. Arbitration. Any disputes regarding the rights or obligations of the
parties under this Agreement shall be conclusively determined by binding
arbitration. Any controversy or claim arising out of or relating to this
contract, or the breach thereof, shall be settled by arbitration in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
10. Actions Contrary to Law. Nothing contained in this Agreement shall be
construed to require the commission of any act contrary to law, and
whenever there is any conflict between any provision of this Agreement and
any statute, law, ordinance, or regulation, contrary to which the parties
have no legal right to contract, then the latter shall prevail; but in such
event, the provisions of this Agreement so affected shall be curtailed and
limited only to the extent necessary to bring it within legal requirements.
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11. Miscellaneous.
11.1.Notices. All notices and demands of every kind shall be personally
delivered or sent by first class mail to the parties at the addresses
appearing below or at such other addresses as either party may
designate in writing, delivered or mailed in accordance with the terms
of this Agreement. Any such notice or demand shall be effective
immediately upon personal delivery or three (3) days after deposit in
the United States mail, as the case may be.
EMPLOYER: THERMOGENESIS CORP.
3146 Gold Camp Drive
Rancho Cordova, California 95670
EMPLOYEE: Dan Segal
11667 Prospect Hill Dr.
Gold River, CA 95670
11.2.Attorneys' Fees; Prejudgment Interest. If the services of an attorney
are required by any party to secure the performance hereof or
otherwise upon the breach or default of another party to this
Agreement, or if any judicial remedy or arbitration is necessary to
enforce or interpret any provision of this Agreement or the rights and
duties of any person in relation thereto, the prevailing party shall
be entitled to reasonable attorneys' fees, costs and other expenses,
in addition to any other relief to which such party may be entitled.
Any award of damages following judicial remedy or arbitration as a
result of the breach of this Agreement or any of its provisions shall
include an award of prejudgment interest from the date of the breach
at the maximum amount of interest allowed by law.
11.3.Choice of Law, Jurisdiction, Venue. This Agreement is drafted to be
effective in the State of California, and shall be construed in
accordance with California law. The exclusive jurisdiction and venue
of any legal action by either party under this Agreement shall be the
County of Sacramento, California.
11.4.Amendment, Waiver. No amendment or variation of the terms of this
Agreement shall be valid unless made in writing and signed by Employee
and Employer. A waiver of any term or condition of this Agreement
shall not be construed as a general waiver by Employer. Failure of
either Employer or Employee to enforce any provision or provisions of
this Agreement shall not waive any enforcement of any continuing
breach of the same provision or provisions or any breach of any
provision or provisions of this Agreement.
11.5.Assignment; Succession. It is hereby agreed that Employee's rights
and obligations under this Agreement are personal and not assignable.
This Agreement contains the entire agreement and understanding between
the parties to it and shall be binding on and inure to the benefit of
the heirs, personal representatives, successors and assigns of the
parties hereto.
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11.6.Independent Covenants. All provisions herein concerning unfair
competition and confidentiality shall be deemed independent covenants
and shall be enforceable without regard to any breach by Employer
unless such breach by Employer is willful and egregious.
11.7.Entire Agreement. This document constitutes the entire agreement
between the parties, all oral agreements being merged herein, and
supersedes all prior representations. There are no representations,
agreements, arrangements, or understandings, oral or written, between
or among the parties relating to the subject matter of this Agreement
that are not fully expressed herein.
11.8.Severability. If any provision of this Agreement is held by a court
of competent jurisdiction to be invalid or unenforceable, the
remainder of the Agreement which can be given effect without the
invalid provision shall continue in full force and effect and shall in
no way be impaired or invalidated.
11.9.Captions. All captions of sections and paragraphs in this Agreement
are for reference only and shall not be considered in construing this
Agreement.
EMPLOYER: THERMOGENESIS CORP.
By: /s/ PHILIP H. COELHO
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(Philip H. Coelho, Chief Executive Officer)
By: /s/ DAVID HOWELL
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(David Howell, Chairman Compensation Committee)
EMPLOYEE: By: /s/ DAN SEGAL
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(Dan Segal)
