EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of this
_____ day of ________________ 2000 by and between THERMACELL TECHNOLOGIES, INC.,
a Florida Corporation (the "Company") and Xxxx X. Xxxxxx (the "Employee")
WHEREAS, the Company recognizes that the Employee's continued employment with
the Company is vital to the success of ThermaCell Technologies, Inc., and
WHEREAS, the Company believes that it is desirable and in its best interest to
secure the continued services of Employee in order to manage and operate
ThermaCell Technologies, Inc., and
WHEREAS, the Company desires to employ Employee as President of ThermaCell
Technologies, Inc., and to be assured of Employee's services on the terms and
conditions set forth in this Agreement, and Employee desires to be employed in
accordance with such terms and conditions.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto mutually agree as follows.
1. Employment. The Company hereby agrees to employ Employee and Employee
hereby accepts such employment on the terms and conditions set forth
herein. The effective date of this Agreement shall be March 3, 2000 (the
"Effective Date").
2. Term. Unless soon terminated pursuant to the provisions of this Agreement,
the term of employment under this Agreement shall be for a period of at
least six (6) months commencing on the March 1, 2001 and ending on when
resignation of the employee is given (the "Employment Term").
3. Compensation. In consideration of the services to be rendered by Employee
to the Company, Employee shall receive the following compensation:
a) Base Salary. During the Employment Term, Employee shall receive an
annual salary in the amount of $60,000.00, payable in monthly
installments.
b) Expenses. Employee shall be entitled, on a basis consistent with the
Company's policy applicable to its executives, to reimbursement for
all normal and reasonable travel, entertainment and other expenses
necessarily incurred by him in the performance of his duties
hereunder. Employee will be entitled to reimbursement for all expenses
upon the presentation to the company of an itemized account of such
expenditures within a reasonable period of time after expenses are
incurred.
c) Board of Directors. Employee shall be elected to the Company's Board
of Directors.
4. Stock Options. Upon execution of this Agreement, the Company
shall grant Employee stock options, which shall entitle Employee
to purchase 50,000 shares (the "Option Shares") of the Company's
common stock, non-cumulatively, at an exercise price equal to
$1.00.
5.
6. Duties and Responsibilities. During the Employment Term, Employee
shall be employed as President of ThermaCell Technologies, Inc.,
Employee shall at all times report to the CEO of the Company and
his activities shall at all times be subject to his direction and
control. Employee agrees to devote his entire time, energy and
skill to the service of ThermaCell Technologies, Inc., and the
Company in general, and shall perform his duties in a good faith,
trustworthy and businesslike manner, in compliance with all
applicable laws and regulations, all for the purpose of advancing
the interests of the Company. In the event that the Company
desires to expand Employee's duties and responsibilities beyond
that which is contemplated herein, the Company and Employee shall
agree upon additional compensation to be paid to Employee.
7. Termination of Employment. This Agreement may be terminated by
the Company only with cause, as defined below, which termination
shall be effective immediately upon delivery of written notice,
provided, however, that if such cause is of the type described in
clause (iv) below and susceptible to being cured, employee to
affect which cure of such longer period of thirty (30) days after
written notice for such cause, provided that Employee to affect
such cure or such longer period of time may be required for such
cure, provided that Employee has commenced and is diligently
pursuing such cure, a termination shall be deemed to be "with
cause" if the Company determines that Employee has committed or
was involved in:
(i) wrongful misappropriation of Company assets;
(ii) conviction of any felony involving fraud, dishonesty or moral
turpitude
(iii) drug or alcohol abuse; or
(iv) if Employee fails to perform substantially his duties in the
manner provided herein, or willfully refuses to perform the
duties reasonably assigned to him by the Company. Employee
acknowledges the sensitive nature of the services provided by the
Company and its affiliates and the importance of the Company's
reputation in its field of endeavors and Employee agrees that his
personal actions which have or are likely to negatively impact
upon the reputation, name, goodwill, business or regulatory
standing of the Company or its affiliates shall be grounds for
"with cause" termination pursuant to this Section 6 (iv).
8. Effects of Termination. Upon termination of this Agreement for any reason
specified in Section 6 above:
(a) Employee's duties shall cease as of the effective date of termination,
provided, however, that where practicable, Employee will in all events
of termination be responsible for arranging for the smooth transition
of duties to appropriate independent contractors and/or employees of
the Company. In the event that the Company shall request Employee to
provide transitional assistance after the effective date of
termination, Employee shall be paid a per diem rate, based up to
eight-hour workdays, calculated upon his then current salary.
(b) The Company's sole financial obligation to Employee shall be for any
accrued and unpaid annual salary upon date of termination. The Company
shall have no further liability to Employee. The Company has the
right, but not the obligation, at the Company's sole discretion to
provide Employee with severance pay upon termination. Such payments
shall be made to Employee no later than 30 days following termination.
(c) All expenses, which are properly reimbursable to Employee pursuant to
Section 3, will be reimbursed following termination.
9. Non-Disclosure of Confidential Information. Employee acknowledges that the
Company's business depends to a significant degree upon the possession of
information that is not generally know to others, and that viability of the
Company's business requires this information to remain proprietary to the
Company. Accordingly, Employee agrees that he shall not directly or
indirectly, except, with the written consent of the Company or as otherwise
required in connection with his activities with the Company, disclose or
use at any time, whether during or subsequent to the time that Employee is
employed by the Company, any confidential information, knowledge or date,
including copies thereof, relating to the Company's business of which
Employee becomes aware of by reason of working with the Company's business
of which Employee gains access during such period. Such information,
knowledge and dates includes, but is not limited to, client lists, client
account information, financial documents, computer programs, listings,
books, disks, tapes, system documentation, manuals, operational processes
or methods, information and intangible rights, any of which are developed
by Employee or the Company or to which Employee has access during the
period he works with the Company. All records, files, drawings, documents
(including machine-readable documents), equipment and other materials
relating in any way to any confidential information of the Company shall be
and remain the Company's sole property during and after the period that
Employee works for the Company. Upon leaving the Company, Employee shall
promptly return to a representative of the Company all materials and all
copies of materials involving confidential information, knowledge or data
in Employee's possession or control
10. Equitable Relief. The parties agree that damage to the business of the
Company by virtue of the violation or threatened violation of Employee's
obligations hereunder is impossible to ascertain and would cause
irreparable injury to the Company and its business, for which damages would
be, inadequate compensation. Accordingly, Employee acknowledges, consents
and agrees that in the event of any such violation or threatened permanent
injunction relief and other equitable relief and the Company shall be
entitled to any such relief without the necessity of proving actual damages
and the Company shall further be entitled to an equitable accounting of all
earnings, profits or other benefits arising from any such violation or
threatened violation, which rights shall be cumulative and in addition to
any other rightly or remedies available to the Company.
11. Notice. All notices required to be given under the terms of this Agreement
shall be in writing, shall be effective upon receipt:
If to the Company: ThermaCell Technologies, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
If to the Employee: Xxxx X. Xxxxxx
X.X. Xxx 000
Xxxxxxxxxxx, XX 00000
Or such address as either party shall have designated for notices to be
given to him or it in accordance with this Section.
12. Miscellaneous Provisions.
(a) Governing Law. This Agreement shall be considered for all purposes a
Florida document and shall be construed pursuant to the laws of the
State of Florida, and all of its provisional shall be administered
according to, and its validity shall be determined under, the laws of
the State of Florida. The Company agrees that any legal suit, action
or proceeding arising out of or relating to this Agreement shall be
instituted exclusively in the appropriate state court in the state of
Florida, Volusia County and waives any objection which the Company may
have now or hereafter to the jurisdiction of the sate courts of the
sate of Florida in Volusia County.
(b) Gender and Number. Whenever appropriate, reference in this Agreement
in any gender shall be construed to include all other genders,
references in the singular shall be construed to include the plural,
and references in the plural shall be construed to include the
singular, unless the context clearly indicates to the contrary.
(c) Captions. Paragraph titles or captions contained in this Agreement are
inserted only as a matter of convenience and/or reference, and they
shall in no way be construed as limiting, extending, defining or
describing either the scope or intent of this Agreement or of any
provision hereof.
(d) Counterparts. This Agreement may be executed in one or more
counterparts, any such counterpart shall, for all purposes be deemed
an original, including facsimiles, of such counterparts together shall
constitute but one and the same instrument.
(e) Severability. The invalidity of unenforceability of any provision
hereunder (or any portion of such a provision) shall not affect the
validity or enforceability of the remaining provisions (or remaining
portions of such provisions) of this Agreement.
(f) Entire Agreement. This Agreement constitutes the entire Agreement
among the parties pertaining to the subject matter hereof, and
supersedes and revokes any and all prior or existing agreements,
written or oral, relating to the subject matter hereof.
(g) Waiver. Either the Company or Employee may, at any time or times,
waive (in whole or in part) any rights or privileges to which he or it
may be entitled hereunder. However, no waiver by any party of any
condition or of the breach of any term, covenant, representation or
warranty contained in this Agreement, in any one or more instances,
shall be deemed to be or construed as a further or continuing waiver
of any such condition or breach in other instances or as a waiver of
any other condition or of any breach or any other terms, covenants,
representations or warranties contained in this Agreement, and no
waiver shall be effective unless it is in writing and signed by the
waiving party.
(h) Attorney's Fees. If either party shall be required to retain the
services of an attorney to enforce any of his or its rights hereunder,
the prevailing party shall be entitled to receive from the other party
all costs and expenses including (but not limited to) court costs and
attorney's fees (whether in a court of original jurisdiction or one or
more courts of appellate jurisdiction) incurred by him/her or its in
connection therewith.
(i) Assignment. The rights and obligations of the parities under this
Agreement shall inure to the benefit of and shall be binding upon
their successors, permitted assigns and/or other legal
representatives. This Agreement shall not be assignable by Employee.
The services of Employee are personal and Employee's obligations may
not be delegated by him.
(j) Amendment. This Agreement may not be amended, modified, superseded,
canceled or terminated, and any of the matters, covenants,
representations, warranties or conditions hereof may not be waived,
except by a written instrument executed by the Company and Employee
or, in the case of a waiver, by the party to be charged with such
waiver.
(k) Survival. Notwithstanding the termination or expiration of Employment
Term, the obligations of Employee under Section 8 and 9 of this
Agreement shall survive and remain in full force effect, and the
Company shall be entitled to equitable relief against Employee
pursuant to the provision of Section 10 hereof.
(l) Free Will. Employee affirms that he has and understands the terms of
this Agreement, that Employee has been afforded the opportunity to
seek counsel regarding the terms and conditions of this Agreement and
the Employee has signed this Agreement of his own free will and
accord.
IN WITNESS WHEREOF, the Company and Employee have caused this Agreement to be
executed on the day and year first above written.
THERMACELL TECHNOLOGIES, INC.
By:________________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President
EMPLOYEE
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Name: Xxxx X. Xxxxxx
