THIS EMPLOYMENT AGREEMENT, made this 30th day of January, 2006 , by and between VDx, Inc., a Wisconsin corporation (hereinafter called Company), and Monte B. Tobin , an individual residing at 6430 Congress, West Bend, WI 53095 (hereinafter called Employee).
WHEREAS, Employee, as sole shareholder of Company, has entered into a certain Agreement for Stock Purchase (ASP) by and among Mach One Corporation, a Nevada corporation (Purchaser).;
WHEREAS, immediately upon closing under the ASPM, Company shall become a wholly owned subsidiary of Purchaser and
WHEREAS, Employee wishes to enter into the employ of Company and Company wishes to employ Employee on the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the facts, mutual promises and covenants contained herein and intending to be legally bound hereby, and as a material inducement for the consummation of the Merger as contemplated, Company and Employee agree as follows:
Definitions. As used herein, the following terms shall have the meanings set forth below unless the context otherwise requires.
Affiliate shall mean a person who, (i) with respect to any entity, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such entity; or (ii) with respect to Employee, is a parent, spouse or issue of Employee, including persons in an adopted or step relationship; or (iii) any other entity with which Employee has an affiliation as defined herein.
Base Compensation shall mean the annual rate of compensation set forth in Section 5.1, as such amount may be adjusted from time to time.
Board shall mean the Board of Directors of Company.
Business shall mean the business conducted by Company in the past and on the date of execution of this Agreement, including Business as defined in the ASP and business activities under investigation or in developmental stages, all other business activities which flow therefrom by a reasonable expansion of the present activities of Company, all business activities which may be developed by Company during the period of Employees employment by Company, and all business activities now conducted by Company or any Affiliate thereof or which may be developed by Company or such Affiliates, during such period as reasonable expansions of their present activities.
Cause shall mean:
Employee is convicted of a felony or a crime involving moral turpitude or has entered a plea of nolo contendere (or similar plea) to a charge of such an offense;
Employees theft or embezzlement or attempted theft or embezzlement of money or tangible or intangible assets or property of the Company or its employees or business relations;
any act or acts of moral turpitude by Employee which negatively affects the interest, property, operations, business or reputation of the Company;
Employees convicted of or successfully prosecuted for a federal, state or local law or regulation which negatively affects the interest, property, operations, business or reputation of the Company;
Employee uses alcohol or any unlawful controlled substance to an extent that it interferes on a continuing and material basis with the performance of Employees duties under the Agreement; alcoholism or substance addiction on the part of Employee.
Any condition exists which either results from Employees substantial dependence, as determined by the Board of Directors of Employer, on alcohol, or any narcotic drug or other controlled or illegal substance (and if the determination of substantial dependence is disputed by Employee, the parties agree to abide by the decision of a panel of three physicians appointed in the manner and subject to the same penalties for noncompliance as specified in this Agreement).
performance of duties in an grossly incompetent manner;
any demonstrated act of fraud, misappropriation or personal dishonesty;
gross negligence or willful misconduct;
violation of any express direction of the Board of Directors or any supervisor of Employee or material violation of any rule, regulation, policy or plan established by Company from time to time regarding the conduct of its employees and/or its business, that is not an illegal act;
material violations by Employee of Employees obligations hereunder that are demonstrably willful and deliberate on Employees part and are not remedied within a reasonable time period after receipt of written notice from Company;
misrepresentation of a material fact or omission of information necessary to make the information supplied not materially misleading in any information provided by Employee to the Company or any representative of the Company in connection with the ASPM and Employees employment with the Company as contemplated thereby;
Employee engages in the willful, unauthorized disclosure of confidential information, unless such disclosure was required by an order of a court having jurisdiction over the subject matter or a summons, subpoena or order in the nature thereof of any legislative body (including any committee thereof) or any governmental or administrative agency;
Employee fails materially to carry out directives of the Board, that is not an illegal act, or to perform Employees duties under this Agreement;
Employee is in material breach of this Agreement and fails to cure such breach within ten (10) days after written notice thereof;
the existence of any material conflict between the interests of Company and Employee that is not disclosed in writing by Employee to the Board and approved in writing by the authority of the Board;
Employee violates Sections of this Agreement relating to confidentiality and non-competition; or
Confidential Information shall have the meaning specified in Section 12.1 hereof.
Disability shall mean Employees inability, for a period of three consecutive months, or a cumulative period of 75 business days (i.e., Mondays through Fridays, exclusive of days on which Company is generally closed for a holiday) out of a period of 12 consecutive months, to perform the essential duties of Employees position, even taking into account any reasonable accommodation required by law, due to a mental or physical impairment which substantially limits one or more major life activity. Due to the nature of Employees position, Employee acknowledges that it would be an undue hardship on the Company if the time periods specified in the preceding sentence were longer.
Employment Year shall mean each twelve-month period, or part thereof, during which Employee is employed hereunder, commencing on the date of this Agreement, the first such subsequent Employment Year being the twelve-month period which will begin on September 20, 2005 .
Exchange Act shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
Restricted Area shall have the meaning specified in Section 12.1 hereof.
Restricted Period shall have the meaning specified in Section 12.2 hereof.
Subsidiary shall mean any corporation in which Company owns directly or indirectly 50% or more of the Voting Stock; or any other venture in which it owns 50% or more of the equity.
Term of Employment shall mean the period specified in Section 4 hereof as such period may be extended pursuant to such Section and as the same may be terminated in accordance with this Agreement.
Voting Stock shall mean capital stock of any class or classes having general voting power under ordinary circumstances, in the absence of contingencies, to elect the directors of a corporation.
Employment. Company hereby employs Employee and Employee hereby accepts employment by Company for the period and upon the terms and conditions specified in this Agreement.
Office and Duties.
Employee shall serve Company generally as President and shall have such authority and responsibilities as Company may determine from time to time and consistent with such position. Employee shall perform any other duties reasonably required by Company and, if requested by Company, shall serve as an officer or director of Company or any Subsidiary without additional compensation.
So long as Employee shall remain an employee of Company, Employees entire working time, energy, skill and efforts shall be devoted to the performance of Employees duties hereunder in a manner which will faithfully and diligently further the business and interests of Company. Employee may engage in charitable, civic, fraternal and trade association activities that do not interfere with Employees obligations to Company, but Employee shall not work for any other business.
Employee shall render Employees service at Companys principal executive office in the City of Newburg.
Term. Employee shall be employed by Company for an initial Term of Employment of three (3) years, commencing on September 20, 2004 and ending on September 19, 2007, unless sooner terminated as hereinafter provided. Unless either party elects to terminate this Agreement at the end of the initial or any renewal term by giving the other party written notice of such election at least ninety (90) days before the expiration of the then current term, the Term of Employment shall be deemed to have been renewed for an additional term of one (1) year commencing on the day after the expiration of the then current term.
Compensation and Benefits.
For all of the services rendered by Employee to Company, Employee shall receive:
(i) Base Compensation at the gross annual rate (subject to authorized or legally required deductions and withholdings) of One Hundred and Eight Thousand Dollars ($108,000), payable in installments in accordance with Companys regular payroll practices in effect from time to time.
In addition to the foregoing compensation, Company from time to time may pay Employee such bonuses or other additional compensation as Company may determine, but there is no agreement regarding any such additional payments, the existence and amounts of which shall be within Companys sole discretion and may be changed or eliminated from time to time.
In addition to the foregoing compensation, Employee shall have the right to exercise certain stock options for stock in Parent as set forth in that certain stock option agreement and matrix attached as Exhibit B to this Agreement.
Fringe Benefits. Employee shall be entitled to the benefits set forth in Exhibit A during the Term of Employment for so long as Employees employment with Company continues. In addition, Company will reimburse Employee for all reasonable and necessary expenses incurred by Employee in connection with the performance of Employees duties hereunder upon receipt of documentation therefor in accordance with Companys regular reimbursement procedures and practices in effect from time to time. The Board of Directors from time to time may require prior approval for individual expense items in excess of pre-established aggregate amounts for a fixed period or in excess of pre-established amounts for any type of expenditure during any fixed period.
Disability. If Employee suffers a Disability, Company may terminate this Agreement at any time thereafter by giving Employee ten (10) days written notice of termination. Upon such termination, Company shall have no obligation to Employee for Base Compensation or other form of compensation or benefits to Employee , except as otherwise required by law, other than amounts accrued through the date of termination.
Death. If Employee dies during the Term of Employment, the Term of Employment and Employees employment with Company shall terminate as of the date of Employees death. Company shall have no obligation to Employee or Employees estate for Base Compensation or other form of compensation or benefit other than amounts accrued through the date of Employees death except as otherwise required by law or by benefit plans provided at Company expense.
In the event of the termination of Employees employment due to Employees death or Disability, Employee or Employees legal representatives, as the case may be, shall be entitled to:
(A) In the case of death, unpaid Base Compensation earned or accrued through Employees date of death and continued Base Compensation at a rate in effect at the time of death for a period of three months following the month in which such termination of employment due to death occurs; or (B) in the case of Disability, unpaid Base Compensation earned or accrued through Employees date of termination and the disability benefit available under and only to the extent of any insurance maintained;
any performance or special incentive bonus earned but not yet paid;
any other compensation and benefits to which Employee or Employees legal representatives may be entitled under applicable plans, programs and agreements of Company to the extent permitted under the terms thereof, including, without limitation, life insurance and stock options as may have been provided.
Termination of Companys Business. If Company shall discontinue the business operation in which Employee is employed, Company may terminate Employees employment on two (2) weeks prior notice, and in such event Company shall have no further obligations or liabilities hereunder other than amounts accrued through the date of termination.
Termination for Cause. Company may terminate Employees employment relationship with Company at any time for Cause. At time of termination, Company shall provide Employee with written notice of termination with grounds of termination being set forth sufficiently in such notice. Company shall have no obligation to Employee for Base Compensation or other form of compensation or benefits, except as otherwise required by law, other than (a) amounts accrued through the date of termination, and (b) reimbursement of appropriately documented expenses incurred by Employee before the termination of employment, to the extent that Employee would have been entitled to such reimbursement but for the termination of employment. Employee agrees that any options to purchase Companys stock or stock of GENETHERA, INC. (whether granted before or after the date hereof) shall terminate on the date Employees employment terminates for Cause notwithstanding any conflicting provision in the option plan or contract.
Company Property. Employee agrees that Employee will not take or retain any Confidential Information (as defined below), whether in written, computerized, machine readable, model, sample, or other medium or form capable of physical delivery, upon or after the termination for any reason of Employees employment with the Company, without the prior written consent of the Companys Board of Directors or its designated officer. Employee also agrees that upon the termination for any reason of Employees employment with the Company or at any other time that the Company may request, Employee shall deliver promptly and return to the Company all such documents and materials, along with any other Confidential Information and all other property of the Company and property relating to the Companys employees, customers and business in Employees possession or control.
Non-Competition, Non-Solicitation, Trade Secrets, etc.
Employee hereby acknowledges that, in hiring Employee hereunder, Employer is specifically relying upon Employees prior and current special knowledge, training and education with respect to the operations of Companys business and other related matters, and access to confidential information, trade secrets and business and professional contacts. In consideration of such special and unique opportunities afforded as a result of Employees employment, the Employee hereby agrees as follows:
The term Confidential Information means information and data not generally known outside the Company (unless as a result of a breach of any of the obligations imposed by this Agreement) concerning the Companys businesses and technical information, including, without limitation, information relating to: (i) information regarding the Companys clients including without limitation their purchasing habits, pricing, needs, credit histories, contact personnel, concepts, and other information; (ii) information regarding freelance sources, suppliers and vendors costs, products, discounts, margins, contact personnel and other information; (iii) the Companys Business, trade secrets, processes, price lists, financial and marketing data, personnel and compensation information, and business plans; (iv) information or data regarding the Companys research, marketing activities, techniques, and p rocesses; and (v) the Companys technical specifications, film, artwork, proof sheets, copy, and designs. Employee acknowledges that Confidential Information is solely the property of the Company. Except as otherwise herein provided, Employee agrees that during the period of employment, and thereafter, Employee will hold in strictest confidence and will not use or disclose to any person or entity without the written authorization of the Board, any of the Companys Confidential Information, except as such use or disclosure may be required in connection with Employees work for the Company or to the extent that such information becomes known in the public or trade other than as a result of Employees actions or failure to act or the wrongful actions of any third party. Employee understands that this Agreement applies to artwork, computerized and written information and to other information, whether or not in written form. The foregoing provisions of this Subsection 1 2.1 shall apply during and after the period when Employee is an employee of the Company and shall be in addition to (and not a limitation of) any legally applicable protections of Companys interest in confidential information, trade secrets and the like.
For so long as Employee remains an employee of the Company and for a period of twenty four (24) months after the termination of employment with Company for any reason, as such period may be extended as hereinafter set forth (the Restricted Period), Employee shall not directly or indirectly (i) engage in (as a principal, shareholder, partner, director, officer, agent, employee, consultant or otherwise) or be financially interested in any business operating in business activities which are the same as, similar to or in competition with business activities carried on by Company, or being definitely planned by Company, at the time of the termination of Employees employment; provided, however, nothing contained in this Section 12 shall prevent Employee from holding for investment no more than five percent (5%) of any class of equity securities of a company whose securities are publicly traded on a national securities exchange or in a national market system.
During the Restrictive Period, Employee shall not, on Employees own behalf or on behalf of any other person or entity, without the express written consent of the Board, solicit, induce or attempt to solicit or induce: (i) any then current employee, representative, supplier, vendor or service provider of the Company to terminate or modify his, her or its employment or business relationship with the Company; and (ii) any then current client or prospective client of the Company either to terminate or modify its use of the Companys products or services or to provide products or services competitive with the products or services offered by the Company. Current client shall mean any person or entity for which the Company has provided services to or has received payment from during the two year period prior to the termination of Employees employment. Prospective client shall mean any person o r entity with which Employee has had contact on behalf of the Company within the two year period prior to the termination of Employees employment
Any and all writings, inventions, improvements, processes, procedures and/or techniques which Employee may make, conceive, discover or develop, either solely or jointly with any other person or persons, at any time when Employee is an employee of Company, whether or not during working hours and whether or not at the request or upon the suggestion of Company, which relate to or are useful in connection with any business now or hereafter carried on or contemplated by Company, including developments or expansions of its present fields of operations, shall be the sole and exclusive property of Company. Employee shall make full disclosure to Company of all such writings, inventions, improvements, processes, procedures and techniques, and shall do everything necessary or desirable to vest the absolute title thereto in Company. Employee shall write and prepare all specifications and procedures regarding such inventions, improvements, processes, procedures and techniques and otherwise aid and assist Company so that Company can prepare and present applications for copyright or Letters Patent therefor and can secure such copyright or Letters Patent wherever possible, as well as reissues, renewals, and extensions thereof, and can obtain the record title to such copyright or patents so that Company shall be the sole and absolute owner thereof in all countries in which it may desire to have copyright or patent protection. Employee shall not be entitled to any additional or special compensation or reimbursement regarding any and all such writings, inventions, improvements, processes, procedures and techniques.
Employee acknowledges that the restrictions contained in the foregoing Subsections 12.1 through 12.4, in view of the nature of the business in which Company is engaged, are reasonable and necessary in order to protect the legitimate interests of Company, the Companys confidential and proprietary information and its permanent and near-permanent relationships with its customers, that their enforcement will not impose a hardship on Employee or significantly impair Employees ability to earn a livelihood, and that any violation thereof would result in irreparable injuries to Company. Employee therefore acknowledges that, in the event of Employees violation of any of these restrictions, Company shall be entitled to obtain from any court of competent jurisdiction preliminary and permanent injunctive relief as well as damages and an equitable accounting of all earnings, profits and other benefits arising from such vi olation, which rights shall be cumulative and in addition to any other rights or remedies to which Company may be entitled.
If a court of competent jurisdiction rules that any restriction of this Section 12, including without limitation the Restricted Area and Restricted Period, is overbroad or unreasonable under the circumstances then existing, the court shall modify or revise such restriction to include the maximum reasonable restriction allowed by law. If Employee violates any of the restrictions contained in this Section 12, the Restricted Period shall be extended by a period equal to the length of time from the commencement of any such violation until such time as such violation shall be cured by Employee to the satisfaction of Company. Company shall have the right and remedy to require Employee to account for and pay over to Company all compensation, profits, monies, accruals, increments or other benefits derived or received by Employee as the result of any transact ions constituting a breach of this Section 12, and Employee shall account for and pay over such amounts to Company upon Companys request therefor. Employee hereby expressly consents to the jurisdiction of any court within the Restricted Area to enforce the provisions of this Section 12, and agrees to accept service of process by mail relating to any such proceeding. Company may supply a copy of Section 12 of this Agreement to any future or prospective employer of Employee or to any person to whom Employee has supplied information if the Company determines in good faith that there is a reasonable likelihood that Employee has violated or will violate such Section.
Conflicts of Interest. Employee represents to Company: (a) that there are no restrictions, agreements or understandings, oral or written, to which Employee is a party or by which Employee is bound that prevent or make unlawful Employees execution or performance of this Agreement; (b) none of the information supplied by Employee to Company or any representative of Company or placement agency in connection with Employees employment by Company misstated a material fact or omitted information necessary to make the information supplied not materially misleading; and (c) Employee does not have any business or other relationship that creates a conflict between the interests of Employee and the Company.
Binding Nature of Agreement. This Agreement shall be binding upon Company and shall inure to the benefit of Company, its present and future Affiliates, successors and assigns including any transferee of the business operation, as a going concern, in which Employee is employed and shall be binding upon Employee, Employees heirs and personal representatives. None of the rights or obligations of Employee hereunder may be assigned or delegated, except that in the event of Employees death or Disability, any rights of Employee hereunder shall be transferred to Employees estate or personal representative, as the case may be. Any entity into which Company is merged or with which Company is consolidated or which acquires the business of Company or the business unit in which Employee is to be principally employed shall be deemed to be a successor of Company for purposes hereof.
Provisions Separable. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
Entire Agreement. This Agreement contains the entire understanding among the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements and understandings, inducements or conditions, express or implied, oral or written, except as herein contained. The express terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof. This Agreement may not be modified or amended other than by an agreement in writing. Notwithstanding the foregoing, nothing herein shall limit the application of any generally applicable Company policy, practice, plan or the terms of any manual or handbook applicable to Companys employees generally.
Governing Law. This Agreement shall be governed by the substantive laws of the State of Wisconsin regarding contracts made and performed in this State.
Deductions and Withholding. All payments to be made to Employee under this Agreement or otherwise related to Employees employment by the Company are subject to all deductions or withholding authorized or required by law.
Right of First Offer
In the event that Company or Parent shall, at any time after Closing, (i) decide to make the Business available for sale to a third party, or (ii) receive a bona fide written offer to purchase the Business from a third party which is acceptable to Company or Parent, then Company shall first notify Employee of same in writing, and provide Employee with the relevant terms and conditions of same in writing. Thereafter, Lessee shall have the right, exercisable only within 10 business days following receipt of such notice, in which to notify Company and Parent that Employee wishes to purchase the Business on the terms contained in said notice (Notice of Interest). If Employee does not give such Notice of Interest within the time required, or, alternatively, if Employee does give such Notice of Interest but the parties do not enter into a binding Agreement for purchase of the Business within 14 days following the giving of suc h Notice of Interest by Employee, then in either event Employee shall have no right or interest in the Business and Company or Parent shall be free to sell same to a third party on substantially similar terms to those contained in the notice first mentioned above. Notwithstanding the foregoing, the rights granted under this Article 15 shall (i) be in consideration for Employees execution of, and employment under, this Agreement, (ii) be exclusive to Employee (and in no way assignable or transferable), (iii) immediately terminate, without notice, in the event that Employee is no longer employed by Company for any reason.
IN WITNESS WHEREOF, the parties have executed this Agreement on January 30, 2006 .
Monte B. Tobin