[EXHIBIT 10.1]
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), effective as of January
1, 2003, and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Executive") and BBJ
Environmental Technologies, Inc., a Nevada corporation (the
"Company").
WHEREAS, the Executive currently is an employee of the Company;
and
WHEREAS, the Company wishes to modify and continue the
Executive's employment upon the terms and conditions hereinafter set
forth, and the Executive is willing and able to accept such employment
on such terms and conditions.
NOW, THERFORE in consideration of the mutual promises set forth
below, the Company and the Executive agree as follows:
1. Term of Employment. Subject to earlier termination
pursuant to Section 4 hereof, the Executive's employment hereunder
commenced effective January 1, 2003 (the "Effective Date"), and shall
continue until June 30, 2005 (the "Term"). The Term of this Agreement
may be extended upon mutual written agreement of the parties.
2. Employment Duties. During the Term, the Company shall
employ the Executive, and the Executive agrees to serve and accept
employment as the Company's Executive Chairman. Unless otherwise
determined by the Company's Board of Directors (the "Board"), the
Executive will sign Company SEC filings, together with the Chief
Financial Officer of the Company. In addition, he shall perform such
duties as may be assigned to him by the Board, in the reasonable
exercise of its discretion. The Executive shall report to the Board,
and not to any officer of the Board. The Vice President, Operations,
shall report to the Executive. The Executive shall devote
substantially all of his business time, energy and experience to the
performance of his duties hereunder, and shall not engage in any other
business activities, as an employee, director, consultant or in any
other capacity, whether or not he receives any compensation from such
activities, without the prior written consent of the Board; provided,
however, that the Executive may (i) manage his own passive
investments, and (ii) serve on civic, charitable or non-profit boards
or committees, including any board of directors of such organization
on which he serves as of the date of this Agreement, so long as any of
such activities do not interfere with the performance of the
Executive's responsibilities as an employee of the Company in
accordance with this Agreement.
3. Compensation and Benefits.
(a) Base Salary. For each year of the Term, the Company
will pay the Executive a base salary of $120,000 per year ("Base
Salary"), payable in accordance with the Company's normal payroll
practices.
(b) Annual Bonus. The Executive shall be eligible to
receive a cash bonus (the "Bonus") with respect to each year of the
Term. The Bonus shall be determined by reference to the Company's
performance against its business plan for such year, using whatever
criteria the Board, in its sole discretion, determines to be
appropriate, including but not limited to
the Company's profitability during such year or any portion thereof.
The amount and timing of payment of any Bonus deemed earned shall he
within the sole discretion of the Board.
(c) Stock Options. Pursuant to the terms of this Section
and the BBJ Environmental Technologies, Inc. 2000 Employee Benefit and
Consulting Services Compensation Plan, as amended (the "Plan"), which
is incorporated into this Agreement by reference, as of January 27,
2003 (the "Date of Grant"), the Executive shall be granted options
(the "Options") to purchase 500,000 shares of the Company's common
stock (the "Stock"), with an exercise price equal to the Fair Market
Value (as defined in the Plan) of such Stock on the Date of Grant, and
with the following vesting schedule: (i) one-half of the Options (for
250,000 shares) shall vest and become exercisable ratably on the first
day of each month during the twenty-four months beginning on the Date
of Grant; (ii) one-quarter of the Options (for 125,000 shares) shall
vest and become exercisable as of December 31, 2003, so long as the
Executive is employed by the Company on such date and the Company
meets certain criteria for the Company's level of sales for calendar
year 2003, as set by the Board and reflected in the Company's business
plan for 2003 (which shall be finalized on or before the last day of
the first quarter of 2003); and (iii) one-quarter of the Options (for
125,000 shares) shall vest and become exercisable as of December 31,
2004, so long as the Executive is employed by the Company on such date
and the Company meets certain criteria with respect to the Company's
level of sales for the calendar year 2004, and its profitability for
such year, as set by the Board and reflected in the Company's business
plan for 2004, which shall be finalized on or before the last day of
the first quarter of 2004. The specific terms and conditions of the
Options are set forth in the form of a Grant of Option, a copy of
which is attached to this Agreement as Schedule A and incorporated
herein by reference (the "Grant of Option").
(d) Benefits. During the Term, the Executive shall be
entitled to participate in all employee benefit plans maintained by
the Company, in accordance with the terms of such plans. The
Executive may take four weeks of paid vacation during each twelve
months of service under this Agreement. Unused vacation may not be
accrued from year to year. At termination, the Executive will not be
entitled to compensation for unused vacation days.
(e) Expenses. The Company shall pay or reimburse the
Executive for ordinary, necessary and reasonable business expenses
incurred by him in the performance of his duties hereunder in
accordance with the Company's usual policies for expenses as
established by the Board.
(f) Life Insurance. During the Term, the Company shall
maintain in full force and effect the following life insurance
policies on the life of the Executive: (i) Policy # V1103414,
Variable Universal life, Prudential Insurance Company, in the face
amount of $200,000, and (ii) Policy # 7132450, Lincoln Life Insurance
Company, in the face amount of $300,000 ("the Life Insurance
Policies"). The Company shall pay the premiums for the Life Insurance
Policies during the Term, and as part of its obligation to maintain
this insurance, shall not take any action to decrease the face amounts
of insurance provided by the Life Insurance Policies. The Executive
has provided the Company with written information as to the premiums
that are in effect with respect to the Life Insurance Policies as of
the Effective Date of this Agreement. The Company will provide the
Executive each year, at the time premiums are due and payable, with
timely evidence that premiums have been paid when due. Any
continuation of
2
insurance under the Life Insurance Policies after termination of
employment shall be at the Executive's own expense. Upon termination
of employment, the Executive shall have the right to purchase the Life
Insurance Policies from the Company for their cash surrender value.
4. Termination.
(a) For Any Reason Other Than Death, Disability or Cause.
The Company and the Executive shall have the right to terminate the
Executive's employment at any time upon thirty (30) days' prior
written notice to the other, and upon such termination if initiated by
the Executive, the Executive shall have the right to receive any (i)
earned but unpaid Base Salary, and (ii) any expenses incurred but
unreimbursed at the date of termination, which shall be paid in cash
within thirty (30) days of such termination date (the "Termination
Benefits"). Upon the making of this payment, the Company shall have
no further obligation to the Executive except as provided in this
Section 4(a) and theGrant of Option. If the Executive is terminated
without Cause, he shall be entitled to receive (i) his Base Salary
through June 30, 2005, paid at regular payroll intervals, less all
payroll taxes required to be withheld by law ("Salary Continuation
Benefits"), and (ii) in the event that the Executive elects
continuation of Company group insurance benefits under COBRA, a
monthly payment shall be made to the Executive equivalent to the
difference between the amounts he paid for equivalent insurance
coverage while employed by the Company and the amount of the monthly
charge for continued insurance benefits under COBRA ("COBRA
Differential Benefits"), less all taxes required to be withheld by
law, as long as the Executive remains eligible for insurance
continuation benefits under COBRA, or until June 30, 2005, whichever
occurs first; provided, however, that in the event of the Executive's
death, the Company's obligation to make these payments of Salary
Continuation Benefits and COBRA Differential Benefits shall terminate
as of the date of death.
(b) On Death and Disability. The Executive's employment
hereunder shall terminate upon his death or upon a finding that he has
become Disabled. For purposes hereof, the Executive shall be Disabled
if he is physically or mentally incapacitated so as to render him
incapable of performing his usual and customary duties hereunder for a
period of ninety (90) consecutive days or for ninety (90) days during
any six (6) month period. The Executive's receipt of Social Security
disability benefits shall be deemed conclusive evidence that he is
Disabled for purposes of this Agreement; provided, however, that, in
the absence of payment of such Social Security benefits, the
Executive's Disability shall be evidenced by the written determination
of a physician, licensed in the State of Florida, mutually selected by
the Executive and the Board. Upon termination for Disability or
death, the Executive (or his legal representative, as applicable)
shall be entitled to the Termination Benefits.
(c) For Cause. The Company may terminate this Agreement
for Cause by giving the Executive written notice of termination.
Advance notice of termination is not required, when termination is for
Cause. For purposes of this Agreement, "Cause" includes, but is not
limited to, the following: (i) commission of fraud, embezzlement, or
an act or omission by the Executive which would be either a felony
under applicable law, or a misdemeanor involving moral turpitude under
applicable law, regardless of the eventual disposition of the case, as
long as there is sufficient evidence of misconduct by the Executive,
admissible in a court of law, to prove, by a preponderance of the
evidence, as determined by the Board, that the Executive committed
such acts; (ii) a serious act of misconduct in connection with Company
work by the
3
Executive, including, but not limited to, falsification of
Company documents, dishonesty in connection with Company business,
misrepresentations to the Board, or a breach of the Executive's duty
of loyalty to the Company; (iii) the Executive's failure or refusal to
render services to the Company pursuant to this Agreement, where such
services are reasonably directed by the Board, which is not cured
within a period of fifteen (15) days after written notice by the
Company to the Executive of the alleged failure or refusal to render
services; and (iv) a material breach of this Agreement by the
Executive, which is not cured within a period of fifteen (15) days
after written notice by the Company to the Executive of the alleged
breach. In the event this Agreement is terminated by the Company for
Cause, the Executive shall have the right, within ten (10) days
following notice of termination, to submit a letter to the Board
explaining his position regarding the termination decision, and in the
event such a letter is received by the Board, the Board shall promptly
meet and reconsider its decision, taking into account any arguments or
facts set forth in the Executive's letter. The Executive would have
the right to attend this meeting.
5. Protective Covenants.
(a) Reasons for Protective Covenants. The Company is
engaged in the business of manufacturing and distributing products and
services that inhibit the uncontrolled growth of microorganisms, mold
or mildew in the indoor environment, removing such growths when they
become excessive, and otherwise enhancing the quality of the indoor
environment (the "Company Business"). Over the course of time the
Company has developed goodwill, substantial Customer and Prospective
Customer relationships and Protected Information, as such terms are
defined below, all of which are legitimate business interests worthy
of protection. The Executive acknowledges that the Company's
legitimate business interests justify the following restrictive
covenants, and that each of the following restraints and covenants are
reasonably necessary to protect the Company's legitimate business
interests. These protective covenants are specifically designed to
permit the Executive to engage in work appropriate for an individual
with the Executive's experience and qualifications outside the Company
Business, while restricting his ability to engage in certain specific
business activities that would or might cause competitive injury to
the Company's goodwill and business relationships, or compromise trade
secrets or confidential proprietary information, or otherwise damage
the business of the Company. The Executive acknowledges that the
protective covenants will not prevent him from obtaining employment.
The Executive further agrees that the protective covenants are neither
overbroad, nor overlong, nor otherwise inappropriate. The Executive
acknowledges having received an opportunity to review these covenants
with counsel, that these covenants were the result of negotiation
between the parties, and that he desires to be bound by the covenants
in order to obtain the compensation provided by this Agreement.
(b) Covenants Relating to Protected Information. During
his employment relationship with the Company, the Executive will have
access to Protected Information. The Executive covenants and agrees
to keep all Protected Information confidential for the benefit of the
Company, and as part of that obligation, shall not at any time,
directly or indirectly, disclose, divulge, reveal, report, publish,
transfer or use any Protected Information, other than in furtherance
of his duties. These covenants and promises shall not apply to any
conduct for which the Company has given prior written consent, or if
the conduct is a disclosure directly pursuant to a valid and existing
order of a court or other governmental body or agency within the
4
United States; provided, however, that (1) the Executive shall first
have given prompt notice to the Company of any such possible or
prospective order; (2) the Company shall have been afforded a
reasonable opportunity to prevent or limit any such disclosure; and
(3) the Executive shall use his best efforts to obtain reasonable
assurances that confidential treatment will be accorded to any
Protected Information so disclosed. Both parties further agree that
the employment relationship between the Executive and the Company is a
confidential and fiduciary relationship, and that as a consequence of
the existence of this relationship, the Executive has a duty neither
to use nor disclose Protected Information independent of any of the
protective covenants set forth in this Agreement.
(c) Covenant not to Compete. The Executive agrees that
for a two (2) year period of time following termination of his
employment relationship with the Company, he will not engage, either
directly or indirectly, in the Company Business, or in any similar
business, within the United States. "Engaging" in the Company
Business includes, but is not limited to, being employed by,
contracting with, working for, providing services to or for, lending
assistance to or for, or consulting with or for the benefit of, any
legal or natural person that produces, sells, markets, represents or
services any products in the Company Business. It is the parties'
intent that this provision be construed as broadly as possible during
the time period and within the geographic scope of the covenant. Both
parties agree that the two-year period provided in this covenant shall
be extended by any length of time during which the Executive is in
breach of the covenant.
(d) Covenants Relating to Customers and Prospective
Customers. The Executive agrees that for a two (2) year period of
time following termination of his employment relationship with the
Company, he shall not do the following: (i) solicit (directly or
indirectly) any Customer or Prospective Customer of the Company to do
business with a legal or natural person other than the Company, or
(ii) solicit (directly or indirectly) any Customer of the Company to
cease doing business with the Company; provided, however, that nothing
in these covenants is intended to prohibit the Executive from
soliciting business from any Company Customer or Prospective Customer
where such business would not involve competition with the Company.
It is otherwise the parties' intent that this covenant be construed as
broadly as possible to protect and preserve the Company's Customer and
Prospective Customer relationships within the temporal scope of the
covenant. The parties agree that the two-year period provided in this
covenant shall be extended by any length of time during which the
Executive is in breach of the covenant.
(e) Post-Termination Consulting Work by the Executive.
Both parties acknowledge that the Executive intends to provide
Consulting Services to individuals or entities that may be Customers
or Prospective Customers during the two (2) years following
termination of his employment with the Company, where such work would
not be to the detriment of the Company's business, as determined by
the Board in its sole discretion. "Consulting Services" shall consist
of the following business activities by the Executive: (i) training
of remediators and indoor environmental quality investigators in
proper work practices; (ii) performing investigations of buildings
with identified or suspected indoor environmental concerns and
preparing recommendations as to the proper methods for correcting
those problems; and (iii) providing expert witness services for indoor
environmental litigation. Consulting Services shall not be regarded
as a violation of the covenants set forth in this Agreement, where
they would not
5
be to the detriment of the Company's business; however,
the Executive agrees that in rendering Consulting Services during the
two (2) years following termination of his employment, or otherwise
engaging in post-termination consulting work during this two-year
period, he shall not disparage the Company in any manner harmful to
the Company, its business, its products, or its business reputation,
or solicit customers to reduce their business with the Company or
cease doing business with the Company, or otherwise do any act or make
any statement to the detriment of the Company's business.
(f) Covenant not to Solicit Employees. The Executive
agrees that for a two (2) year period of time following termination of
his employment relationship with the Company, he will not solicit or
attempt to persuade Company employees to terminate their employment
with the Company and accept other employment with a similar business
within the United States. This covenant specifically prohibits
solicitation of employees, in the event of termination of the
Executive's employment, to work with or for the Executive in a
business competing with the Company in the United States during the
two-year period of the covenant. The Executive acknowledges that this
covenant is appropriate in view of the specialized training provided
by the Company to its employees, and the fact that the covenant is
limited to solicitation of employees to terminate their employment and
work for competitors or similar businesses. Both parties agree that
the two-year period provided in this Section shall be extended by any
length of time during which the Executive is in breach of the
covenant.
(g) Covenant of Duty of Loyalty. The Executive agrees
that during the time that the Executive is working for the Company,
the Executive will owe the Company a duty of loyalty, and that as part
of this duty of loyalty, the Executive shall not engage in any form of
business activity representing competition with the Company, or plan
any post-employment competitive business activity. Similarly, the
Executive, while employed by the Company, shall not appropriate for
the Executive's own use any business opportunity for the Company, or
plan such appropriation, or otherwise engage in conduct amounting to a
conflict of interest.
(h) Related Provisions. The Executive agrees that the
rights of the Company provided by this Section 5 of this Agreement are
special, unique and of extraordinary character and that the Company
will be without an adequate remedy at law if the Executive violates
any of those covenants. Accordingly, the Executive agrees that the
Company shall be entitled to injunctive relief to enforce such
covenants. It is also agreed that each of the covenants set forth in
Section 5 of this Agreement is an agreement independent of any other
provisions in this Agreement. If any such covenant is held invalid,
void or unenforceable by a court of competent jurisdiction, such
invalidity, voidness or unenforceability shall not render any other
provision of this Agreement unenforceable. It is the parties' intent
that any covenant held overbroad by any court be enforced to the
maximum extent deemed reasonable by that court. The existence of any
claim or cause of action of the Executive against the Company, whether
based on this Agreement or otherwise, shall not constitute a defense
to the enforcement by the Company of such covenants.
(i) Definitions. For purposes of this Section:
(1) Customer and Prospective Customer. The term
"Customer" shall mean any legal or natural person who purchased goods
or services from the Company, or who
6
was a referral source for such a purchase, during the two years preceding
the date of the Executive's termination, and the term "Prospective
Customer" shall mean any legal or natural person from whom the Company
solicited business, either directly or as a referral source, during the
two years preceding the date of the Executive's termination.
(2) Company. The term "Company" shall mean,
individually and collectively, the Company (as defined in the first
paragraph of this Agreement) and each of the Company's Affiliates.
(3) Affiliate. The term "Affiliate" shall mean any
corporation or other entity that, directly or indirectly, controls, is
controlled by, or is under common control with, the Company (as
defined in the first paragraph of this Agreement).
(4) Protected Information. The term "Protected
Information" shall mean any and all information and materials, in
whatever form, whether or not reduced to writing and whether or not
registerable, recordable or otherwise protected under applicable
patent, copyright, trade secret, trademark or other form of
intellectual property law, that the Executive has received, received
access to, conceived or developed, in whole or in part, directly or
indirectly, in connection with rendition of services to the Company,
or through the use of any of the Company's facilities or resources,
and regardless of how such information was communicated, disclosed,
created or discovered, including both trade secrets and "know-how."
Protected Information includes, but is not limited to, the following:
(i) Company marketing plans, techniques and arrangements, sales plans,
techniques and arrangements, customer lists, parts lists, budgets,
projections, cost analyses and data, sales data, value data, prospect
lists (including, without limitation, prospects and non-prospects, and
ratings of potential), pricing and ▇▇▇▇-up information, customer
service plans and techniques, vendor data and lists, other mailing
lists having business value, purchasing information, pricing policies,
quoting procedures, and other materials or information relating to the
Company's business and activities and the manner in which the Company
does business; (ii) application, operating system, database,
communication and other computer software, developed for use on any
operating system, all modifications, enhancements and versions and all
options available with respect thereto, all future products developed
or derived therefrom, and all source and object codes, algorithms, and
any related documentation or manuals; (iii) financial information of
the Company, including, without limitation, information relating to
profits and losses; (iv) any information or materials received by the
Company from third parties in confidence or subject to non-disclosure
or similar covenants; and (v) any notes, tapes, reference items,
sketches, drawings, memoranda, analyses, compilations, studies,
summaries and other material relating to other Protected Information,
however documented. Notwithstanding the foregoing, Protected
Information shall not include information that becomes publicly
available, or is made available to the Executive by unaffiliated third
parties, without breach of (1) this Agreement, (2) any other agreement
or instrument to which the Company is a party or a beneficiary or to
which such third party is a party or by which it is bound, or (3) any
duty owed to the Company by the Executive or any third party, whether
by contractual, legal, fiduciary or other obligation.
6. Indemnification. If the Executive becomes a party to any
pending or completed action, suit or proceeding by reason of his
acting as an officer, director, employee, agent or fiduciary of the
Company or is or was serving at the request of the Company as an officer,
7
director, employee, agent or fiduciary of another corporation
or entity, he shall be indemnified by the Company to the maximum
extent permitted by Florida law and not inconsistent with the
provisions of the certificate of incorporation and by-laws of the
Company.
7. Notices. All notices or other communications hereunder
shall be in writing and shall be deemed to have been duly given (a)
when delivered personally, (b) upon confirmation of receipt when such
notice or other communication is sent by facsimile, (c) one day after
delivery to an overnight delivery courier, or (d) on the fifth day
following the date of deposit in the United States mail if sent first
class, postage prepaid, by registered or certified mail. The addresses
for such notices shall be as follows:
(a) For notices and communications to the Company:
BBJ Environmental Technologies
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: CFO
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) For notices and communications to the Executive,
to the address or facsimile set forth below his signature hereto. Any
party hereto may, by notice to the other, change its address for
receipt of notices hereunder.
8. General.
(a) Governing Law; Submission to Jurisdiction. This
Agreement shall be governed by the laws of the State of Florida,
without regard to any conflicts of laws principles thereof that would
call for the application of the laws of any other jurisdiction. Both
parties agree that all disputes, claims, actions or lawsuits between
them, arising out of or relating to this Agreement, or for alleged
breach of this Agreement, shall be heard and determined by a state
court sitting in Hillsborough County, Florida, or by the United States
District Court for the Middle District of Florida, or by any appellate
courts which review decisions of those courts ("the Florida Courts").
The parties expressly submit to the jurisdiction of the Florida Courts
for adjudication of all such disputes, claims, actions and lawsuits
arising out of or relating to this Agreement, or for alleged breach of
this Agreement, and agree not to bring any such action or proceeding
in any other court. Both parties waive any defense of inconvenient
forum as to the maintenance of any action or proceeding brought
pursuant to this section of the Agreement in the Florida Courts, and
waive any bond, surety, or other security that might be required of
the other party with respect to any aspect of such action, to the
extent permitted by law. Provided, however, that either party may
bring a proceeding in a different court, jurisdiction or forum to
8
obtain collection of any judgment, or to obtain enforcement of any
injunction or order, entered against the other party by the Florida
Courts.
(b) Amendment; Waiver. This Agreement may be amended,
modified, superseded, canceled, renewed or extended, and the terms
hereof may be waived, only by a written instrument executed by both of
the parties hereto or, in the case of a waiver, by the party waiving
compliance. The failure of either party at any time or times to
require performance of any provision hereof shall in no manner affect
the right at a later time to enforce the same. No waiver by either
party of the breach of any term or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be, or construed as, a further or
continuing waiver of any such breach, or a waiver of the breach of any
other term or covenant contained in this Agreement.
(c) Non-Disparagement. The Executive agrees that, during
the Term and thereafter (including following the Executive's
termination of employment for any reason) he will not make statements
or representations, or otherwise communicate, directly or indirectly,
in writing, orally, or otherwise, or take any action which may,
directly or indirectly, disparage the Company or any of its affiliates
or their respective officers, directors, employees, advisors,
businesses or reputations.
(d) Successors and Assigns. This Agreement shall be
binding upon the Executive, without regard to the duration of his
employment by the Company or reasons for the cessation of such
employment, and inure to the benefit of his administrators, executors,
heirs and assigns, although the obligations of the Executive are
personal and may be performed only by him. This Agreement shall also
be binding upon and inure to the benefit of the Company and its
subsidiaries, successors and assigns, including any corporation with
which or into which the Company or its successors may be merged or
which may succeed to its assets or business. Accordingly, the
Executive agrees that the restrictive covenants set forth in Section 5
of this Agreement may be assigned to successor employers or purchasers
of the assets of the Company.
(e) Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be considered to have the
force and effect of an original.
(f) Entire Agreement. This Agreement supersedes all prior
agreements between the parties with respect to its subject matter and
is intended (with the documents referred to herein) as a complete and
exclusive statement of the terms of the agreement between the parties
with respect thereto.
(g) Deductions and Withholding. The Executive
acknowledges and agrees that the Company shall be entitled to withhold
from the compensation payable hereunder, including the Base Salary and
Annual Bonus, if any, all federal, state, local or other taxes which
the Company determines are required to be withheld on amounts payable
to the Executive pursuant to this Agreement or otherwise.
(h) Severability. The invalidity of one or more of the
words, phrases, sentences, clauses or sections contained herein shall
nor affect the enforceability of the remaining portions of this
Agreement, or any part thereof, all of which are inserted conditionally
9
on their being valid in law, and, in the event any one of the words,
phrases, sentences, clauses or sections in this Agreement shall be
declared invalid, this Agreement shall be construed as if such invalid
word(s), phrase(s), sentence(s), clause(s) or section(s) had not been
inserted.
(i) Section Headings. The section headings in this
Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
(j) Waiver of Jury Trial. THE PARTIES WAIVE ANY RIGHT
TO JURY TRIAL IN CONNECTION WITH ANY LAWSUIT BROUGHT BY EITHER PARTY
UNDER OR PURSUANT TO THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
BBJ Environmental Technologies, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: CFO
EXECUTIVE:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Address and Facsimile:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax ▇▇▇-▇▇▇-▇▇▇▇
10
SCHEDULE A
GRANT OF OPTION
PURSUANT TO THE
BBJ ENVIRONMENTAL TECHNOLOGIES, INC.
2000 EMPLOYEE BENEFIT AND CONSULTING SERVICES COMPENSATION PLAN,
AS AMENDED
THIS GRANT OF OPTION (this "Agreement"), made on the _____ day of
____________, 200__, by and between BBJ Environmental Technologies,
Inc., a Nevada corporation (the "Company"), and ____________ (the
"Optionee").
1. Grant of Option. Subject to terms and conditions of this
Agreement and those set forth in the BBJ Environmental Technologies,
Inc. 2000 Employee Benefit and Consulting Services Compensation Plan,
as amended (the "Plan"), the Company, with the approval and at the
direction of its Board of Directors, hereby grants to Optionee an
option (the "Option") to purchase _______________________ (________)
shares of common stock, $0.001 par value per share (the "Common
Stock" or "Shares"), of the Company at the Exercise Price set forth in
this Agreement. The Shares that may be purchased upon the exercise of
the Option are sometimes referred to in this Agreement as the "Option
Shares". Capitalized terms not otherwise defined in this Agreement
shall have the meaning ascribed to them in the Plan.
2. Exercise Price. The Exercise Price of the Option is
$_____ per Option Share.
3. Terms of the Option.
(a) Type of Option. The Option is intended to be a
nonstatutory option and is NOT an incentive stock option within the
meaning of Section 422 of the Internal Revenue Code.
(b) Exercise Period. Subject to Section 3(c) of this
Agreement, during the period commencing on the date of this Agreement
("Date of Grant") and terminating five (5) years after the Date of
Grant (the "Exercise Period"), the Option may be exercised with
respect to all or a portion of the Option Shares (in full Shares) to
the extent that the Option has not previously been exercised in
accordance with the vesting schedule ("Vesting Schedule"), which is
attached hereto as Exhibit A and incorporated herein by reference.
(c) Termination of Service. Notwithstanding the
provisions of Section 3(b) of this Agreement:
(i) Termination By Reason Of Death. If the
Optionee's Employment Agreement with the Company, dated
effective January 1, 2003 (the "Employment Agreement")
terminates due to the death of the Optionee, then for a
period of one year from the date of such death or until the
end of the Exercise Period, whichever is shorter, the
Option may be exercised to the extent that the Optionee was
entitled to the exercise same under the Vesting Schedule at
the time of death.
(ii) Termination By Reason Of Disability. If the
Employment Agreement terminates by reason of Optionee's
Disability, as defined in the Employment Agreement, then
the Option, then for a period of one year from the date of
such termination of employment or until the end of the
Exercise Period, whichever is shorter, the Option may be
exercised to the extent that the Optionee was entitled to
exercise same under the Vesting Schedule at the time of
such termination; provided, however, that if the Optionee
should die during such one year period, the unexercised
portion of the Option shall thereafter be exercisable, but
only to the extend that Optionee was entitled to exercise
same under the Vesting Schedule at the time of termination
referenced to in this Section 3(c)(ii), for a period of one
year from the date of such death or until the end of the
Exercise Period, whichever is shorter.
(iii) Termination For Cause. If the Employment
Agreement is terminated by the Company for Cause, as
defined in the Employment Agreement, the unexercised
portion of the Option shall terminate immediately and shall
be null and void as of the time of such termination. As of
the time of such termination, the unexercised portion of
the Option will no longer be exercisable and no Shares
pursuant to the unexercised portion of the Option may be
purchased by the Optionee.
(iv) Termination Without Cause. If the Employment
Agreement is terminated by the Company for other than Cause
or Disability, then any portion of the Option that has not
vested as of the date of such termination shall become
vested as of the date of such termination and the
unexercised portion of the Option shall be exercisable
until the end of the Exercise Period.
(v) Other Termination Of Employment Agreement.
If the Employment Agreement terminates for any reason other
than a termination described in clauses Section 3(c)(i)
through (iv) of this Agreement, then the unexercised
portion of the Option shall terminate immediately and shall
be null and void as of the time of such termination. As of
the time of such termination, the unexercised portion of
the Option will no longer be exercisable and no Shares
pursuant to the unexercised portion of the Option may be
purchased by the Optionee.
4. Method of Exercise.
(a) Notice of Exercise. In order to exercise any portion
of this Option, the Optionee shall notify the Company in writing of
the election to exercise the Option and the number of Option Shares in
respect of which the Option is being exercised. Such notice shall be
delivered to the Secretary of the Corporation and shall be accompanied
with the Exercise Price payable in the manner set forth in
Section 4(b) below. The date specified in Optionee's notice as the
date of exercise of the Option shall be deemed to be the date of
exercise ("Date of Exercise"); provided, that, such date is at least
five (5) days after the giving of such notice and that payment in full
for the Option Shares to be purchased upon such exercise shall have
been received by such date. Otherwise, the Date of Exercise shall be
the date on which all conditions for issuance of Option Shares have
been satisfied and such Option Shares have been issued by the Company.
The certificate or certificates for Shares as to which the Option has
been exercised shall be registered in the name of the Optionee. The
notice must refer to this Agreement and it must specify the number of
shares being purchased, and recite the consideration being paid
therefor. Notice shall be deemed given on the date on which the
notice is delivered to the Company by facsimile transmission,
certified mail or hand-delivery bearing an authorized signature of
Optionee.
(b) Payment of Exercise Price. The Exercise Price for the
Option Shares to be purchased upon exercise of an Option, in whole or
in part, shall be paid to the Company in full on or before the Date of
Exercise. The Exercise Price shall be paid by Optionee in immediately
available funds by wire transfer, cash or by check deemed acceptable
to the Committee.
-2-
(c) Failure to Pay or Accept Delivery. If the Optionee
fails to pay for any of the Option Shares specified in its notice to
exercise or fails to accept delivery thereof, the Optionee's right to
purchase such Option Shares shall terminate and have no force and
effect, in which event the Company and Optionee shall have no
liability to each other with respect to this Option.
5. Restrictions on Exercise. This Option may not be exercised
if the issuance of the Option Shares upon such exercise or the method
of payment of consideration for such Option Shares would constitute a
violation of any applicable federal or state securities law or any
other law or regulation. As a condition to the exercise of this
Option, the Company may require the Optionee to make any
representation or warranty to the Company at the time of exercise of
the Option as in the opinion of legal counsel for the Company may be
required by any applicable law or regulation. Accordingly, the stock
certificates for the Option Shares issued upon exercise of this Option
may bear appropriate legends restricting transfer.
6. Sale of Common Stock Upon Exercise of Option; Legend. The
Common Stock to be acquired pursuant to the exercise of this Option
has been registered for resale pursuant to a Registration Statement on
Form S-8 (Registration Statement No. 333-90700), which has been
declared effective by the Securities and Exchange Commission.
Notwithstanding the foregoing, for so long as the Optionee shall be an
"affiliate" of the Company as defined under Rule 144 promulgated under
the 1933 Act: (a) the Common Stock shall be subject to the
restrictions on transfer set forth in Rule 144 applicable to an
"affiliate" as defined under Rule 144, and (b) the Common Stock may
not be sold, exchanged, assigned, transferred or permitted to be
transferred, whether voluntarily, involuntarily or by operation of
law, delivered, encumbered, discounted, hypothecated or otherwise
disposed of until an Opinion of Counsel, satisfactory to the Company,
has been received by the Company, which opinion establishes that the
transfer or resale of the Common Stock may be made by the Optionee in
compliance with Rule 144. The stock certificates evidencing the
Common Stock acquired by the Optionee upon exercise of the Option
shall bear the following legend:
"The Common Stock represented by this
certificate is subject to the
restrictions on transfer set forth in
Rule 144 promulgated under the
Securities Act of 1933, as amended,
applicable to an "affiliate" as
defined under Rule 144, and may not be
sold, exchanged, assigned, transferred
or permitted to be transferred,
whether voluntarily, involuntarily or
by operation of law, delivered,
encumbered, discounted, hypothecated
or otherwise disposed of until an
Opinion of Counsel, satisfactory to
the Company, has been received by the
Company, which opinion establishes
that the transfer or resale of the
Common Stock may be made in compliance
with Rule 144."
7. Non-Transferability of Option. Except as otherwise
provided by the Plan, this Option may be exercised during the lifetime
of the Optionee only by the Optionee and may not be transferred in any
manner other than by will or by the laws of descent and distribution.
Any purported transfer in violation of this Section 7 shall be void ab
initio and shall be of no force or effect. The terms of this Option
shall be binding upon the executors, administrators, heirs, and
successors of the Optionee.
-3-
8. Adjustments Upon Changes in Capitalization or Merger. In
the event of changes in the capitalization or organization of the
Company (including, without limitation, a stock split or a stock
dividend) or, if the Company is a party to a merger or other corporate
reorganization, the number of Shares covered by this Option shall be
adjusted in accordance with the provisions of Section 15 of the Plan.
9. Term of Option. Unless modified, extended, or renewed in
accordance with Section 16 of the Plan, this Option may not be
exercised after the expiration of the Exercise Period and may be
exercised during such term only in accordance with the Plan and the
terms of this Option.
10. Amendment of Option. The Board of Directors or the
Committee may amend the Option and Plan at anytime, subject only to
the limitations set forth in Section 16 of the Plan and by applicable
law.
11. Not Employment or Consulting Contract. Nothing in this
Agreement or in the Plan shall confer upon the Optionee any right to
continue in the employ or service of the Company (or continue as a
consultant of the Company). This is not an employment or consulting
contract.
12. Income Tax Withholding. The Optionee authorizes the
Company to withhold in accordance with applicable law from any
compensation payable to him or her any taxes required to be withheld
by Federal, state or local laws as a result of the exercise of this
Option. Furthermore, in the event of any determination that the
Company has failed to withhold a sum sufficient to pay all withholding
taxes due in connection with the exercise of this Option, the Optionee
agrees to pay the Company the amount of any such deficiency in cash
within five (5) days after receiving a written demand from the Company
to do so, whether or not Optionee is an employee of the Company at
that time.
13. Notice. Any notice furnished pursuant to this Agreement
shall be delivered in accordance with Section [7] of the Employment
Agreement.
14. Incorporation by Reference. The Option is granted, and the
Option Shares will be issued, pursuant to the Plan, the terms and
conditions of which are incorporated herein by reference, and the
Options and this Agreement shall in all respects be interpreted in
accordance with the Plan. The Committee shall interpret and construe
the Plan and this Agreement, and its interpretations and
determinations shall be conclusive and binding on the parties hereto
and any other person claiming an interest hereunder, with respect to
any issue arising hereunder or thereunder.
15. Governing Law. This Agreement shall be interpreted,
construed and governed according to the law of the State of Florida
without regard to conflicts of laws principles that would result in
the application of the laws of any other jurisdiction.
16. Submission to Jurisdiction. Both parties agree that all
disputes, claims, actions or lawsuits between them, arising out of or
relating to this Agreement, or for alleged breach of this Agreement,
shall be heard and determined by a state court sitting in Hillsborough
County, Florida, or by the United States District Court for the Middle
District of Florida, or by any appellate courts which review decisions
of those courts ("the Florida Courts"). The parties expressly submit
to the jurisdiction of the Florida Courts for adjudication of all such
disputes, claims, actions and lawsuits arising out of or relating to
this Agreement, or for alleged breach of this Agreement, and agree not
to bring any such action or proceeding in any other court. Both
parties waive any defense of inconvenient forum as to the maintenance
of any action or proceeding brought pursuant to this section of the
Agreement in the Florida Courts, and waive any bond, surety, or other
security that might be required of the other party with respect to any
aspect of such action, to the extent permitted
-4-
by law. Provided, however, that either party may bring a proceeding
in a different court, jurisdiction or forum to obtain collection of any
judgment, or to obtain enforcement of any injunction or order, entered
against the other party by the Florida Courts.
[Rest of Page Intentionally Left Blank; Signatures on Following Page]
-5-
BBJ ENVIRONMENTAL TECHNOLOGIES, INC.
a Nevada corporation
By:_________________________________
Name:_______________________________
Title:______________________________
The Optionee acknowledges receipt of a copy of the Plan and the
related prospectus and represents that he is familiar with the terms
and provisions thereof, and hereby accepts this Option subject to all
of the terms and provisions thereof. The Optionee hereby agrees to
accept as binding, conclusive and final all decisions or
interpretations of the Board of Directors or the Committee upon any
questions arising under the Plan.
Dated:__________________ OPTIONEE:___________________________
Printed Name
___________________________
Signature
-6-
EXHIBIT A
---------
Grant of Option pursuant to the BBJ Environmental Technologies, Inc.
2000 Employee Benefit and Consulting Services Compensation Plan, as
amended
Optionee:
Options Granted: ______________Shares
Exercise Price: $______ per Share
Date of Grant: __________, 200___
Exercise Period: ________, 200__ to_________, 200__
Expiration Date: _______, 200__
Vesting
Schedule: option on (assuming continued employee
# of shares date vested or consultant status, etc.)
----------- -----------
Vested Options Exercised to Date: __________ (including this exercise)
Balance of Vested Options to be
Exercised: __________
Page 1 of 2
EXHIBIT A
---------
NOTICE OF EXERCISE
(TO BE SIGNED ONLY UPON EXERCISE OF THE OPTION)
TO: BBJ Environmental Technologies, Inc.
The undersigned, the holder of the attached Grant of Option,
hereby irrevocably elects to exercise the purchase rights represented
by such Grant of Option for, and to purchase thereunder, _______
shares of the Common Stock of BBJ Environmental Technologies, Inc. and
herewith makes payment of _______________ therefor. Optionee requests
that the certificates for such shares be issued in the name of
Optionee and he delivered to Optionee at the address of ______________
_____________________________________________________________, and if
such shares shall not be all of the shares purchasable hereunder,
represents that a new Subscription of like tenor for the appropriate
balance of the shares, or a portion thereof, purchasable under the
Grant of Option pursuant to the BBJ Environmental Technologies, Inc.
2000 Employee Benefit and Consulting Services Compensation Plan, as
amended, be delivered to Optionee when and as appropriate.
OPTIONEE:
Dated:________________________ _________________________________
Page 2 of 2
