{"id":39660,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-transgenomic-inc-and-collin-d-silva.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-transgenomic-inc-and-collin-d-silva","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-transgenomic-inc-and-collin-d-silva.html","title":{"rendered":"Employment Agreement &#8211; Transgenomic Inc. and Collin D&#8217;Silva"},"content":{"rendered":"<pre>\n                              EMPLOYMENT AGREEMENT\n\n         THIS AGREEMENT is made as of March 1, 2000, by and between\nTransgenomic, Inc., a Delaware corporation (the \"Company\"), and Collin D'Silva\n(\"Employee\").\n\n         The Company and Employee desire to enter into an Employment Agreement\n(this \"Agreement\"). Accordingly, the Company and Employee agree as follows:\n\n         Section 1. EFFECTIVE DATE; POSITION; TERM. This Agreement shall become\neffective on March 1, 2000 (the \"Effective Date\"). The Company shall employ\nEmployee as Chief Executive Officer. The initial term of the Agreement will be\nfor a minimum of four (4) years from the Effective Date, and the Agreement may\nbe extended upon mutual consent of the parties.\n\n         Section 2.  POSITION AND DUTIES.  During the Employment Period:\n\n                  (a) Employee shall have the normal responsibilities, duties\n         and authorities of Chief Executive Officer.\n\n                  (b) Employee shall report to the Board of Directors of the\n         Company and Employee shall perform faithfully the executive duties\n         assigned to him to the best of his ability in a diligent, trustworthy,\n         businesslike and efficient manner and will devote his full business\n         time and attention to the business and affairs of the Company and its\n         Subsidiaries and Affiliates; provided, however, that Employee may serve\n         as a director of or a consultant to other corporations which do not\n         compete with the Company, nonprofit corporations, civic organizations,\n         professional groups and similar entities.\n\n                  (c) For purposes of this Agreement, \"Subsidiary\" shall mean\n         any corporation or other entity of which securities having a majority\n         of the voting power in electing directors or comparable management are,\n         at the time of determination, owned by the Company, directly or through\n         one or more Subsidiaries.\n\n                  (d) For purposes of this Agreement, \"Affiliate\" of any\n         particular person means any other person controlling, controlled by or\n         under common control with such particular person.\n\n\n\n\n\n         Section 3.  BASIC COMPENSATION.\n\n                  (a) BASE SALARY. As compensation for his services hereunder,\nthe Company shall pay to Employee during the Employment Period an initial base\nsalary of $132,000.00 per year.\n\n         Base Salary shall be payable in equal installments in arrears on a\nbiweekly basis or as otherwise may be mutually agreed upon.\n\n         The salary will be reviewed and determined by the Compensation\nCommittee of the Board of Directors.\n\n         Section 4. BONUS. In addition to the Base Salary, Employee shall be\neligible to receive an annual bonus based on Employee's performance in\nconjunction with specific mutually agreed goals and objectives defined prior to\nsuch calendar year payable at such time or times during or following each\ncalendar year as shall be determined by the Chief Executive Officer and the\nBoard of Directors (the \"Board\") or a committee thereof in its sole discretion\nand based on formulas to be determined each year by the Board or such committee\nin its sole discretion for the Company's management bonus plan.\n\n         Section 5. PARTICIPATION IN EMPLOYEE BENEFIT PLANS. Employee will be\nentitled to participate in all Company salaried employee benefit plans and\nprograms, subject to the terms and conditions of each such employee benefit plan\nor program and to the extent commensurate with his position as Chief Executive\nOfficer.\n\n         Section 6.  OTHER BENEFITS.\n\n                  (a) VACATION. Employee shall initially be entitled to four\n         weeks' paid vacation each year.\n\n                  (b) INSURANCE. The Company shall make available to Employee\n         health, hospitalization, major medical insurance and dental insurance\n         (including dependent coverage), and other benefits from time to time\n         provided to employees.\n\n         Section 7. BUSINESS EXPENSES. The Company shall reimburse Employee for\nall reasonable expenses incurred by him in the course of performing his duties\nunder this Agreement which are consistent with the Company's policies in effect\nfrom time to time with respect to travel, entertainment and other business\nexpenses, subject to the Company's requirements with respect to report and\ndocumentation of such expenses.\n\n         Section 8.  TERMINATION OF EMPLOYMENT.\n\n                  (a) EVENTS OF TERMINATION AND SEVERANCE PAYMENT. In the event\n         that,\n\n\n2\n\n\n\n         during the term of this Agreement, Employee is discharged for any\n         reason other than for Just Cause (as defined below), Employee shall be\n         entitled to receive certain payment (the \"Severance Payment\") following\n         termination of employment. Severance Payment will be made at the\n         Employees then current base salary for an amount equal to 12 (twelve)\n         months' salary.\n\n                  (b) \"Just Cause\" means embezzlement or misappropriation of\n         corporate funds, other acts of dishonesty, significant activities\n         materially harmful to the reputation of the Company as reasonably\n         defined by the Company, commission of a felony, willful refusal to\n         perform or substantial disregard of the duties properly assigned,\n         significant violation of any statutory or common law, duty of loyalty\n         to the Company or a material violation of Section 10 or 11 below, or\n         takes any other action materially detrimental to the best interest of\n         the Company as reasonably determined by the Company.\n\n                  (c) EFFECT OF BREACH OF NONCOMPETITION PROVISIONS. In the\n         event Employee breaches or otherwise fails to comply with the\n         provisions of Section 10 or 11 below, then, in addition to any other\n         remedies provided herein or at law or in equity, the Company shall have\n         the right to require return of any severance payment made to the\n         Employee. Return of such Severance Payment pursuant to the preceding\n         sentence shall not relieve Employee's obligations pursuant to Section\n         10 or 11 below.\n\n         Section 9. ASSIGNMENT AND SUCCESSION. (a) The rights and obligations of\nthe Company under this Agreement shall inure to the benefit of and be binding\nupon its respective successors and assigns, and Employee's rights and\nobligations hereunder shall inure to the benefit of and be binding upon his\nsuccessors and permitted assigns, whether so expressed or not.\n\n                  (b) Employee acknowledges that the services to be rendered by\n         him hereunder are unique and personal. Accordingly, Employee may not\n         pledge or assign any of his rights or delegate any of his duties or\n         obligations under this Agreement without the express prior written\n         consent of the Company.\n\n                  (c) The Company may not assign its interest in or obligations\n         under this Agreement without the prior written consent of Employee.\n\n         Section 10. CONFIDENTIAL INFORMATION. (a) Employee acknowledges that\nthe information, observations and data obtained by him during the course of his\nperformance under this Agreement concerning the business or affairs of the\nCompany and its Subsidiaries is the property of the Company or such Subsidiary,\nas the case may be. Therefore, during the Employment Period and at all times\nthereafter, Employee will not directly or indirectly use, divulge, furnish or\nmake accessible to any unauthorized person or use for his own account any\nconfidential or proprietary information or trade secrets of the Company or any\nof its\n\n\n3\n\n\n\nSubsidiaries without the Board's prior written consent except and to the extent\nrequired by law (and upon prompt written notice of such requirement to the\nCompany and such Subsidiary) any of such information, observations or data\nwithout the Board's prior written consent unless and to the extent that the\naforementioned matters become generally known to and available for use by the\npublic other than as a result of Employee's acts or omissions to act. In the\nevent Employee shall be required by law to make any disclosure as set forth\nabove, Employee shall promptly notify the Company and such Subsidiary in writing\nof the basis for and the extent of the required disclosure and shall cooperate\nwith the Company and such Subsidiary to preserve in full the confidentiality of\nall intellectual property, trade secrets, confidential information and other\nproprietary rights of the Company and such Subsidiary. For purposes hereof,\nconfidential information does not include any information that has become\npublicly known are made generally available through no wrongful act of Employee\nor of any other person who is subject to a confidentiality agreement with the\nCompany.\n\n                 (b) Employee agrees to deliver to the Company at the\n         termination of his employment, or at any other time upon written\n         request by the Company, all memoranda, notes, plans, records, reports\n         and other documents relating to the business of the Company and its\n         Subsidiaries which he may then possess or have under his control.\n\n         Section 11. COVENANT NOT TO COMPETE. (a) Employee agrees that during\nthe Employment Period, and for one year after the Termination Date (the\n\"Noncompete Period\"), he will neither directly nor indirectly engage in, have\nany interest in, own, manage, operate, control, be connected with as a\nstockholder, joint venturer, officer, employee, partner or consultant or invest\nor participate in a business competing with any of the businesses then conducted\n(or, to the knowledge of Employee, planned to be conducted within one year) by\nthe Company or any of its successors or then Subsidiaries, within any\ngeographical area in which the Company or its Subsidiaries engage or plan within\none year to engage in any such businesses. During the Noncompete Period,\nEmployee shall not directly or indirectly through another entity (i) induce or\nattempt to induce any employee of the Company or any Subsidiary to leave the\nemploy of the Company or such Subsidiary, or in any way interfere with the\nrelationship between the Company or any Subsidiary and any employee thereof,\n(ii) hire any person who was an employee of the Company or any Subsidiary at any\ntime during the Employment Period or (iii) induce or attempt to induce any\ncustomer, supplier, licensee or other business relation of the Company or any\nSubsidiary to cease doing business with the Company or such Subsidiary, or in\nany way interfere with the relationship between any such customer, supplier,\nlicensee or business relation and the Company or any Subsidiary.\n\n                  (b) Nothing contained in this Section 11 shall prevent\n         Employee from owning up to a 5% interest in any corporation or entity\n         having one or more classes of its securities listed on a national\n         securities exchange or publicly traded in the over-the-counter market,\n         provided Employee is not actively involved in the operation or\n         management of such corporation or entity. Nothing contained herein\n         shall prevent Employee from serving as a paid consultant to other\n         companies or serving as a \n\n\n4\n\n\n\n         member of the Board of Directors of other corporations.\n\n                  (c) If, under the circumstances existing at the time of\n         enforcement of this Section 11, the period, scope or geographic area\n         described in this Section 12 shall be found or held to be unreasonable,\n         the parties hereto agree that the maximum period, scope or geographic\n         area reasonable under the circumstances shall be substituted for the\n         stated period, scope or geographic area.\n\n         Section 12. CONFLICTS OF INTEREST POLICIES. Employee shall diligently\nadhere to the Company's Conflict of Interest Policy as adopted by the Board and\nin effect from time to time.\n\n         Section 13. ARBITRATION AND EQUITABLE REMEDIES. (a) Except as provide\nin Section 13(b) hereof, the parties agree that any dispute or controversy\narising out of, relating to, or concerning the interpretation, construction,\nperformance or breach of this Agreement, shall be settled by arbitration to be\nheld in Nebraska, in accordance with the Employment Dispute Resolution rules of\nthe American Arbitration Association then in effect. The arbitrator may grant\ninjunctions or other relief in such dispute or controversy and the decision of\nthe arbitrator shall be final, conclusive and binding on the parties to the\narbitration. Judgment may be entered on the arbitrator's decision in any court\nhaving jurisdiction. The Company and Employee shall each pay one-half of the\ncosts and expenses of such arbitration, and each shall separately pay the fees\nand expenses of their respective legal counsel.\n\n         THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EMPLOYEE'S RIGHT TO A\nJURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS\nOF THE EMPLOYER\/EMPLOYEE RELATIONSHIP.\n\n                  (b) Notwithstanding paragraph (a) of this Section 13, the\n         parties agree that, in the event of the breach or threatened breach of\n         Sections 10, 11 or 12 of this Agreement by Employee, monetary damages\n         alone would not be an adequate remedy to the Company and its\n         Subsidiaries for the injury that would result from such breach, and\n         that the Company and its Subsidiaries shall be entitled to apply to any\n         court of competent jurisdiction for specific performance and\/or\n         injunctive relief (without posting bond or other security) in order to\n         enforce or prevent any violation of such provisions of this Agreement.\n         Employee further agrees that any such injunctive relief obtained by the\n         Company or any of its Subsidiaries shall be in addition to monetary\n         damages.\n\n         Section 14. INDEMNIFICATION. The Company agrees to indemnify and hold\nharmless Employee for any and all actions taken by Employee in carrying out his\nduties under this Agreement.\n\n         Section 15 ENTIRE AGREEMENT. This Agreement represents the entire\nagreement\n\n\n5\n\n\n\nbetween the parties relating to the subject matters covered hereby and shall\nsupersede any prior understandings, agreements or representations by or between\nthe parties, written or oral, which may have related to the subject matter\nhereof in any way and shall not be amended or waived except in a writing signed\nby the parties hereto.\n\n         Section 16. NOTICES. Any notice or request required or permitted to be\ngiven hereunder shall be in writing and will be deemed to have been given (i)\nwhen delivered personally, sent by telecopy (with hard copy to follow) or\novernight express courier or (ii) five days following mailing by certified or\nregistered mail, postage prepaid and return receipt requested, to the addresses\nbelow unless another address is specified by such party in writing:\n\n\n                               \n        To the Company:           Transgenomic, Inc.\n                                  5600 South 42nd Street\n                                  Omaha, NE  68107\n                                  Telephone:  (402) 738-5480\n                                  Telecopy:   (402) 733-1264\n\n        To the Employee:          Collin D'Silva\n                                  5600 South 42nd Street\n                                  Omaha, NE  68107\n                                  Telephone: (402)  738-5480\n                                  Telecopy:  (402) 733-1264\n\n\n         Section 17. HEADINGS. The article and section headings herein are for\nconvenience of reference only and shall not define or limit the provisions\nhereof.\n\n         Section 18. APPLICABLE LAW. The corporate law of the State of Delaware\nwill govern all questions concerning the relative rights of the Company and its\nstockholders. All other questions concerning the construction, validity and\ninterpretation of this Agreement shall be governed by the internal laws of the\nState of Nebraska.\n\n         Section 19. SEVERABILITY. Whenever possible, each provision of this\nAgreement will be interpreted in such manner as to be effective and valid under\napplicable law, but if any provision of this Agreement is held prohibited by,\ninvalid or unenforceable in any respect under applicable law, such provision\nwill be ineffective only to the extent of such prohibition or invalidity,\nwithout invalidating the remainder of such provision or the remaining provisions\nof this Agreement.\n\n         Section 20. AMENDMENTS AND WAIVERS. Any provision of this Agreement may\nbe amended or waived only with the prior written consent of the Company and\nEmployee.\n\n         Section 21. NO STRICT CONSTRUCTION. The language used in this Agreement\nwill be\n\n\n6\n\n\n\ndeemed to be the language chosen by the parties hereto to express their mutual\nintent, and no rule of strict construction will be applied against any party\nhereto.\n\n         Section 22. COUNTERPARTS. This Agreement may be executed in separate\ncounterparts, each of which is deemed to be an original and all of which taken\ntogether constitute one and the same agreement.\n\n         Section 23. EMPLOYEE REPRESENTATIONS. Employee hereby represents and\nwarrants to the Company that (i) the execution, delivery and performance of this\nAgreement by Employee does not and will not conflict with, breach, violate or\ncause a default under any contract, agreement, instrument, order, judgment or\ndecree to which Employee is a party or by which he is bound, (ii) Employee is\nnot a party to or bound by any employment agreement, noncompete agreement or\nconfidentiality agreement with any other person or entity and (iii) upon the\nexecution and delivery of this Agreement by the Company, this Agreement shall be\nthe valid and binding obligation of Employee, enforceable in accordance with its\nterms.\n\n         Section 24. SURVIVAL. Sections 10, 11 and 14 shall survive and continue\nin full force in accordance with their terms notwithstanding any termination of\nthe Employment Period.\n\n         IN WITNESS WHEREOF, the Company has caused this Agreement to be signed\nby its duly authorized officer and Employee has signed this Agreement as of the\ndate first written above.\n\n                               TRANSGENOMIC, INC.\n\n                               By \/s\/Stephen F. Dwyer\n                                  ---------------------------\n                                  Name:  Stephen F. Dwyer\n                                  Title:    Director\n\n                              EMPLOYEE\n\n\n                              \/s\/Collin D'Silva\n                              ---------------------------\n                              Name: Collin D'Silva\n\n\n7\n\n\n\n\n TYPE:  EX-10.9\n SEQUENCE:  13\n DESCRIPTION:  EXHIBIT 10.9\n\n\n\n\n                                                                    EXHIBIT 10.9\n\n                              EMPLOYMENT AGREEMENT\n\n         THIS AGREEMENT is made as of March 1, 2000, by and between\nTransgenomic, Inc., a Delaware corporation (the \"Company\"), and John Allbery\n(\"Employee\").\n\n         The Company and Employee desire to enter into an Employment Agreement\n(this \"Agreement\"). Accordingly, the Company and Employee agree as follows:\n\n         Section 1. EFFECTIVE DATE; POSITION; TERM. This Agreement shall become\neffective on March 1, 2000 (the \"Effective Date\"). The Company shall employ\nEmployee as Chief Financial Officer and Managing Director, European Operations.\nThe initial term of the Agreement will be for a minimum of four (4) years from\nthe Effective Date, and the Agreement may be extended upon mutual consent of the\nparties.\n\n         Section 2. POSITION AND DUTIES. During the Employment Period:\n\n                  (a) Employee shall have the normal responsibilities, duties\n         and authorities of Chief Financial Officer and Managing Director,\n         European Operations to be defined prior to the Effective Date.\n\n                  (b) Employee shall report to the Chief Executive Officer of\n         the Company and Employee shall perform faithfully the executive duties\n         assigned to him to the best of his ability in a diligent, trustworthy,\n         businesslike and efficient manner and will devote his full business\n         time and attention to the business and affairs of the Company and its\n         Subsidiaries and Affiliates; provided, however, that Employee may serve\n         as a director of or a consultant to other corporations which do not\n         compete with the Company, nonprofit corporations, civic organizations,\n         professional groups and similar entities.\n\n                  (c) For purposes of this Agreement, \"Subsidiary\" shall mean\n         any corporation or other entity of which securities having a majority\n         of the voting power in electing directors or comparable management are,\n         at the time of determination, owned by the Company, directly or through\n         one or more Subsidiaries.\n\n                  (d) For purposes of this Agreement, \"Affiliate\" of any\n         particular person means any other person controlling, controlled by or\n         under common control with such particular person.\n\n\n\n\n\n         Section 3. BASIC COMPENSATION.\n\n                  (a) BASE SALARY. As compensation for his services hereunder,\nthe Company shall pay to Employee during the Employment Period an initial base\nsalary of $200,000 per year.\n\n         Base Salary shall be payable in equal installments in arrears on a\nbiweekly basis or as otherwise may be mutually agreed upon.\n\n         The salary shall be increased over the previous year's salary as\nmutually agreed to.\n\n         Section 4. BONUS. In addition to the Base Salary, Employee shall be\neligible to receive an annual bonus based on Employee's performance in\nconjunction with specific mutually agreed goals and objectives defined prior to\nsuch calendar year payable at such time or times during or following each\ncalendar year as shall be determined by the Chief Executive Officer and the\nBoard of Directors (the \"Board\") or a committee thereof in its sole discretion\nand based on formulas to be determined each year by the Board or such committee\nin its sole discretion for the Company's management bonus plan.\n\n         Section 5. PARTICIPATION IN EMPLOYEE BENEFIT PLANS. Employee will be\nentitled to participate in all Company salaried employee benefit plans and\nprograms, subject to the terms and conditions of each such employee benefit plan\nor program and to the extent commensurate with his position as Chief Financial\nOfficer and Managing Director, European Operations.\n\n         Section 6. OTHER BENEFITS.\n\n                  (a) VACATION. Employee shall initially be entitled to four\n         weeks' paid vacation each year.\n\n                  (b) INSURANCE. The Company shall make available to Employee\n                      health, hospitalization, major medical insurance and\n                      dental insurance (including dependent coverage), and other\n                      benefits from time to time provided to employees,\n                      including such coverage reasonably required while living\n                      abroad.\n\n                      Cost not to exceed $1,000 per month while living in\n                      Europe, to provide health insurance coverage similar to\n                      what the Company normally provides its employees.\n\n                  (c) Relocation. Employee shall be entitled to reimbursement\n                      of all reasonable costs of relocation back to the U.S.\n                      as previously discussed and agreed.\n\n\n2\n\n\n\n         Section 7. BUSINESS EXPENSES. The Company shall reimburse Employee for\nall reasonable expenses incurred by him in the course of performing his duties\nunder this Agreement which are consistent with the Company's policies in effect\nfrom time to time with respect to travel, entertainment and other business\nexpenses, subject to the Company's requirements with respect to report and\ndocumentation of such expenses, including temporary office and support costs,\nand periodic travel back to the U.S. while living abroad.\n\n         Section 8. STOCK OPTIONS AND OPTION SHARES. Employee shall be granted\n100,000 shares at $10.00 per share of options, 20,000 shares to vest immediately\nupon starting, and 20,000 shares to vest per year on the anniversary date of\neach of the next four years of your employment.\n\n         Section 9. TERMINATION OF EMPLOYMENT.\n\n                  (a) EVENTS OF TERMINATION AND SEVERANCE PAYMENT. In the event\n         that, during the term of this Agreement, Employee is discharged for any\n         reason other than for Just Cause (as defined below), Employee shall be\n         entitled to receive certain payment (the \"Severance Payment\") following\n         termination of employment. Severance Payment will be made at the\n         Employees then current base salary for an amount equal to 12 (twelve)\n         months' salary. In addition, in case of such discharge, Employee will\n         retain all vested stock options. All unvested stock options will lapse.\n\n                  (b) \"Just Cause\" means embezzlement or misappropriation of\n         corporate funds, other acts of dishonesty, significant activities\n         materially harmful to the reputation of the Company as reasonably\n         defined by the Company, commission of a felony, willful refusal to\n         perform or substantial disregard of the duties properly assigned,\n         significant violation of any statutory or common law, duty of loyalty\n         to the Company or a material violation of Section 11 or 12 below, or\n         takes any other action materially detrimental to the best interest of\n         the Company as reasonably determined by the Company.\n\n                  (c) EFFECT OF BREACH OF NONCOMPETITION PROVISIONS. In the\n         event Employee breaches or otherwise fails to comply with the\n         provisions of Section 11 or 12 below, then, in addition to any other\n         remedies provided herein or at law or in equity, the Company shall have\n         the right to require return of any severance payment made to the\n         Employee. Return of such Severance Payment pursuant to the preceding\n         sentence shall not relieve Employee's obligations pursuant to Section\n         11 or 12 below.\n\n\n3\n\n\n\n         Section 10. ASSIGNMENT AND SUCCESSION. (a) The rights and obligations\nof the Company under this Agreement shall inure to the benefit of and be binding\nupon its respective successors and assigns, and Employee's rights and\nobligations hereunder shall inure to the benefit of and be binding upon his\nsuccessors and permitted assigns, whether so expressed or not.\n\n                  (b) Employee acknowledges that the services to be rendered by\n         him hereunder are unique and personal. Accordingly, Employee may not\n         pledge or assign any of his rights or delegate any of his duties or\n         obligations under this Agreement without the express prior written\n         consent of the Company.\n\n                  (c) The Company may not assign its interest in or obligations\n         under this Agreement without the prior written consent of Employee.\n\n         Section 11. CONFIDENTIAL INFORMATION. (a) Employee acknowledges that\nthe information, observations and data obtained by him during the course of his\nperformance under this Agreement concerning the business or affairs of the\nCompany and its Subsidiaries is the property of the Company or such Subsidiary,\nas the case may be. Therefore, during the Employment Period and at all times\nthereafter, Employee will not directly or indirectly use, divulge, furnish or\nmake accessible to any unauthorized person or use for his own account any\nconfidential or proprietary information or trade secrets of the Company or any\nof its Subsidiaries without the Board's prior written consent except and to the\nextent required by law (and upon prompt written notice of such requirement to\nthe Company and such Subsidiary) any of such information, observations or data\nwithout the Board's prior written consent unless and to the extent that the\naforementioned matters become generally known to and available for use by the\npublic other than as a result of Employee's acts or omissions to act. In the\nevent Employee shall be required by law to make any disclosure as set forth\nabove, Employee shall promptly notify the Company and such Subsidiary in writing\nof the basis for and the extent of the required disclosure and shall cooperate\nwith the Company and such Subsidiary to preserve in full the confidentiality of\nall intellectual property, trade secrets, confidential information and other\nproprietary rights of the Company and such Subsidiary. For purposes hereof,\nconfidential information does not include any information that has become\npublicly known are made generally available through no wrongful act of Employee\nor of any other person who is subject to a confidentiality agreement with the\nCompany.\n\n                 (b) Employee agrees to deliver to the Company at the\n         termination of his employment, or at any other time upon written\n         request by the Company, all memoranda, notes, plans, records, reports\n         and other documents relating to the business of the Company and its\n         Subsidiaries which he may then possess or have under his control.\n\n\n4\n\n\n\n         Section 12. COVENANT NOT TO COMPETE. (a) Employee agrees that during\nthe Employment Period, and for one year after the Termination Date (the\n\"Noncompete Period\"), he will neither directly nor indirectly engage in, have\nany interest in, own, manage, operate, control, be connected with as a\nstockholder, joint venturer, officer, employee, partner or consultant or invest\nor participate in a business competing with any of the businesses then conducted\n(or, to the knowledge of Employee, planned to be conducted within one year) by\nthe Company or any of its successors or then Subsidiaries, within any\ngeographical area in which the Company or its Subsidiaries engage or plan within\none year to engage in any such businesses. During the Noncompete Period,\nEmployee shall not directly or indirectly through another entity (i) induce or\nattempt to induce any employee of the Company or any Subsidiary to leave the\nemploy of the Company or such Subsidiary, or in any way interfere with the\nrelationship between the Company or any Subsidiary and any employee thereof,\n(ii) hire any person who was an employee of the Company or any Subsidiary at any\ntime during the Employment Period or (iii) induce or attempt to induce any\ncustomer, supplier, licensee or other business relation of the Company or any\nSubsidiary to cease doing business with the Company or such Subsidiary, or in\nany way interfere with the relationship between any such customer, supplier,\nlicensee or business relation and the Company or any Subsidiary.\n\n                  (b) Nothing contained in this Section 12 shall prevent\n         Employee from owning up to a 5% interest in any corporation or entity\n         having one or more classes of its securities listed on a national\n         securities exchange or publicly traded in the over-the-counter market,\n         provided Employee is not actively involved in the operation or\n         management of such corporation or entity. Nothing contained herein\n         shall prevent Employee from serving as a paid consultant to other\n         companies or serving as a member of the Board of Directors of other\n         corporations.\n\n                  (c) If, under the circumstances existing at the time of\n         enforcement of this Section 12, the period, scope or geographic area\n         described in this Section 12 shall be found or held to be unreasonable,\n         the parties hereto agree that the maximum period, scope or geographic\n         area reasonable under the circumstances shall be substituted for the\n         stated period, scope or geographic area.\n\n         Section 13. CONFLICTS OF INTEREST POLICIES. Employee shall diligently\nadhere to the Company's Conflict of Interest Policy as adopted by the Board and\nin effect from time to time.\n\n         Section 14. ARBITRATION AND EQUITABLE REMEDIES. (a) Except as provide\nin Section 14(b) hereof, the parties agree that any dispute or controversy\narising out of, relating to, or concerning the interpretation, construction,\nperformance or breach of this Agreement, shall be settled by arbitration to be\nheld in Nebraska, in accordance with the Employment Dispute Resolution rules of\nthe American Arbitration Association then in effect. The arbitrator may grant\ninjunctions or other relief in such dispute or controversy and the decision of\nthe\n\n\n5\n\n\n\narbitrator shall be final, conclusive and binding on the parties to the\narbitration. Judgment may be entered on the arbitrator's decision in any court\nhaving jurisdiction. The Company and Employee shall each pay one-half of the\ncosts and expenses of such arbitration, and each shall separately pay the fees\nand expenses of their respective legal counsel.\n\n         THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EMPLOYEE'S RIGHT TO A\nJURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS\nOF THE EMPLOYER\/EMPLOYEE RELATIONSHIP.\n\n                  (b) Notwithstanding paragraph (a) of this Section 14, the\n         parties agree that, in the event of the breach or threatened breach of\n         Sections 11, 12 or 13 of this Agreement by Employee, monetary damages\n         alone would not be an adequate remedy to the Company and its\n         Subsidiaries for the injury that would result from such breach, and\n         that the Company and its Subsidiaries shall be entitled to apply to any\n         court of competent jurisdiction for specific performance and\/or\n         injunctive relief (without posting bond or other security) in order to\n         enforce or prevent any violation of such provisions of this Agreement.\n         Employee further agrees that any such injunctive relief obtained by the\n         Company or any of its Subsidiaries shall be in addition to monetary\n         damages.\n\n         Section 15. INDEMNIFICATION. The Company agrees to indemnify and hold\nharmless Employee for any and all actions taken by Employee in carrying out his\nduties under this Agreement.\n\n         Section 16 ENTIRE AGREEMENT. This Agreement represents the entire\nagreement between the parties relating to the subject matters covered hereby and\nshall supersede any prior understandings, agreements or representations by or\nbetween the parties, written or oral, which may have related to the subject\nmatter hereof in any way and shall not be amended or waived except in a writing\nsigned by the parties hereto.\n\n         Section 17. NOTICES. Any notice or request required or permitted to be\ngiven hereunder shall be in writing and will be deemed to have been given (i)\nwhen delivered personally, sent by telecopy (with hard copy to follow) or\novernight express courier or (ii) five days following mailing by certified or\nregistered mail, postage prepaid and return receipt requested, to the addresses\nbelow unless another address is specified by such party in writing:\n\n\n                                         \n                  To the Company:           Transgenomic, Inc.\n                                            5600 South 42nd Street\n                                            Omaha, NE  68107\n                                            Attention:  Chief Executive Officer\n                                            Telephone:  (402) 738-5480\n                                            Telecopy:   (402) 733-1264\n\n\n\n6\n\n\n\n\n                                         \n                  To the Employee:          John L. Allbery\n                                            H-1022, Budapest\n                                            Endrodi Sandor u. 75\/B\n                                            Hungary\n                                            Telephone: 36-1-200-5415\n                                            Telecopy: 36-1-274-0071\n\n\n         Section 18. HEADINGS. The article and section headings herein are for\nconvenience of reference only and shall not define or limit the provisions\nhereof.\n\n         Section 19. APPLICABLE LAW. The corporate law of the State of Delaware\nwill govern all questions concerning the relative rights of the Company and its\nstockholders. All other questions concerning the construction, validity and\ninterpretation of this Agreement shall be governed by the internal laws of the\nState of Nebraska.\n\n         Section 20. SEVERABILITY. Whenever possible, each provision of this\nAgreement will be interpreted in such manner as to be effective and valid under\napplicable law, but if any provision of this Agreement is held prohibited by,\ninvalid or unenforceable in any respect under applicable law, such provision\nwill be ineffective only to the extent of such prohibition or invalidity,\nwithout invalidating the remainder of such provision or the remaining provisions\nof this Agreement.\n\n         Section 21. AMENDMENTS AND WAIVERS. Any provision of this Agreement may\nbe amended or waived only with the prior written consent of the Company and\nEmployee.\n\n         Section 22. NO STRICT CONSTRUCTION. The language used in this Agreement\nwill be deemed to be the language chosen by the parties hereto to express their\nmutual intent, and no rule of strict construction will be applied against any\nparty hereto.\n\n         Section 23. COUNTERPARTS. This Agreement may be executed in separate\ncounterparts, each of which is deemed to be an original and all of which taken\ntogether constitute one and the same agreement.\n\n         Section 24. EMPLOYEE REPRESENTATIONS. Employee hereby represents and\nwarrants to the Company that (i) the execution, delivery and performance of this\nAgreement by Employee does not and will not conflict with, breach, violate or\ncause a default under any contract, agreement, instrument, order, judgment or\ndecree to which Employee is a party or by which he is bound, (ii) Employee is\nnot a party to or bound by any employment agreement, noncompete agreement or\nconfidentiality agreement with any other person or entity and (iii) upon the\nexecution and delivery of this Agreement by the Company, this Agreement shall be\nthe valid and binding obligation of Employee, enforceable in accordance with its\nterms.\n\n\n7\n\n\n\n         Section 25. SURVIVAL. Sections 8, 11, 12 and 15 shall survive and\ncontinue in full force in accordance with their terms notwithstanding any\ntermination of the Employment Period.\n\n         IN WITNESS WHEREOF, the Company has caused this Agreement to be signed\nby its duly authorized officer and Employee has signed this Agreement as of the\ndate first written above.\n\n                               TRANSGENOMIC, INC.\n\n                                By \/s\/ Collin D'Silva\n                                   ----------------------------------\n                                    Name:  Collin D'Silva\n                                    Title:  Chief Executive Officer\n\n                                EMPLOYEE\n\n\n\n                                \/s\/ JOHN ALLBERY\n                               -------------------------------------------\n                               Name: John Allbery\n\n8\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9096],"corporate_contracts_industries":[9514],"corporate_contracts_types":[9539,9544],"class_list":["post-39660","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-transgenomic-inc","corporate_contracts_industries-technology__test","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39660","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39660"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39660"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39660"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39660"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}