EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of June __, 2000
by and between THERMACELL TECHNOLOGIES, INC., a Florida corporation (the
"Company") and XXXXX XXXXXXXX (the "Employee").
WHEREAS, the Employee has been offered the position of Vice President,
Technology, of the Company and will begin to serve in such capacities on or
about July 5, 2000 (the "Effective Date");
WHEREAS, the Company wishes to assure itself of the services of the
Employee, and the Employee is willing to serve in the employ of the Company upon
the terms and conditions hereinafter provided; and
WHEREAS, the Company's Board of Directors has determined that the best
interests of the Company and its shareholders would be served by providing for
the terms and conditions of the Employee's employment as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and intending to be legally bound hereby, the Company and the Employee
hereby agree as follows:
Section 1. Definitions. As used herein, the following terms
shall have the meanings set forth below.
"Fiscal Year" means any fiscal year of the Company, as applicable.
"Intellectual Property" means any and all inventions, discoveries,
improvements, ideas, concepts, creative works, designs (with respect to all of
the foregoing, whether or not reduced to writing), patents, trademarks and
copyrights which relate to the actual or demonstrated anticipated business of
the Company.
"Person" means any individual, sole proprietorship, general or limited
partnership, joint venture, trust, unincorporated organization, association,
corporation, institution, entity, party, limited liability company or government
(whether territorial, national, federal, state, provincial, county, city,
municipal or otherwise, including, without limitation, any instrumentality,
division, agency, body or department thereof).
Section 2. Employment and Term. The Company hereby employs the
Employee, and the Employee hereby accepts such employment by the Company, for
the purposes and upon the terms and conditions contained in this Agreement and
subject to the approval of the Company's Board of Directors. This Agreement
shall have an initial term of three (3) years from the Effective Date; provided,
however, that the Company may terminate this Agreement at will by providing the
Employee with a severance payment equal to six months' salary less the value of
the shares then acquired by the Employee in accordance with section 5(c) hereof
(the "Severance Payment"). The term hereof, until terminated as provided herein,
is referred to herein as the "Employment Period."
Section 3. Employment Capacities and Duties. The Employee shall be
employed throughout the Employment Period as Vice President, Technology of the
Company. The Employee shall have the duties and responsibilities normally
associated and incumbent with that position, including, but not limited to those
set forth on Exhibit A hereto.
Section 4. Employee Performance Covenants. The Employee accepts the
employment described in Section 3 herein and agrees to devote his full working
time and efforts to the business and affairs of the Company and the performance
of the aforesaid duties and responsibilities set forth in Section 3 hereof.
Employee further represents and warrants that his entry into this Employment
Agreement does not violate any other agreement to which he is or has been a
party.
Section 5. Compensation. For the services to be rendered by
Employee hereunder, the Company shall pay to Employee the following
compensation:
a)Salary. The Employee shall be paid a salary (the "Salary") at
an annual rate of One Hundred Thirty Thousand Dollars ($130,000.00),
payable in equal installments in accordance with the Company's payroll
policies, for the period commencing on the Effective Date. The Salary
shall be pro-rated for any Fiscal Year hereunder which is less than a
full Fiscal Year.
b) Bonus. In addition, the Employee may be eligible for a bonus,
to be determined by the Company's Board of Directors, based primarily
on the profitability of the Company.
c) Equity. As additional compensation, the Company will issue to
the Employee up to 500,000 shares of the Company's common stock,
subject to the following vesting schedule and conditioned upon the
Employee continuing to be employed by the Company as of each such
date:
Number of Shares Vesting Date
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125,000 shares Effective Date
125,000 shares Six Month Anniversary of
Effective Date
125,000 shares One Year Anniversary of
Effective Date
125,000 shares Two Year Anniversary of
Effective Date
Shares issued on an Issue Date will be subject to a proportionate refund to the
Company if the Employee terminates his employment without cause during the
succeeding six month period following the Issue Date. By way of example and not
limitation, if the Employee were to terminate this employment without cause ten
months after the Effective Date, he would be entitled to retain all of the
initial 125,000 shares issued on the Effective Date, and the Company would be
entitled to receive back from the Employee one-third of the 125,000 shares
issued on the Six Month Anniversary of the Effective Date.
All shares issued hereunder will be unregistered and will have standard
piggyback registration rights with the cost of registration pursuant to such
piggyback registration rights to be borne by the company (provided, however,
that the Employee will be solely responsible for any fees or costs incurred by
his accountants and attorneys in connection with any such registration).
Section 6. Employee Benefits, Vacations. During the Employment Period,
in addition to any and all compensation and benefits required or permitted to be
made by the Company to the Employee hereunder, the Employee shall receive the
benefits and enjoy the perquisites described below:
a) Vacation. The Employee shall be entitled to Five (5) weeks paid
vacation per annum; and
b) Participation in Benefit Plans. The Employee shall be entitled to
participate in any group hospitalization, health, life or other insurance
or death benefit plan, travel or accident insurance, restricted or stock
purchase plan, stock option plan, retirement income or pension plan, 401(k)
plan, or other present or future group employee benefit plan or program of
the Company for which Employees are or shall become eligible. Nothing
contained in this Agreement shall prevent the Board from amending or
otherwise altering any such plan, program or arrangement during the
Employment Period.
c) Reimbursement of Expenses. The Company shall reimburse the Employee
for reasonable expenses incurred in providing services to the Company, upon
the Employee's submission of appropriate documentation evidencing such
expenses in accordance with the Company's reimbursement policies as
determined from time to time by the Board of Directors. Without limiting
the foregoing, the Company will reimburse the Employee for expenses
incurred in travelling between the Company's offices and Philadelphia,
Pennsylvania, including round trip coach air. In all cases, the Employee
shall use his best efforts to obtain the lowest pricing on travel-related
expenses.
Section 7. Termination of Employment.
a) Notice of Termination; Employment Termination Date.
(1) Any termination of the Employee's employment by the Company or the
Employee shall be communicated by written Notice of Termination to the
other party hereto. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the provision in this
Agreement relied upon.
(2) "Employment Termination Date" shall mean the date on which the
Employment Period and the Employee's right and obligation to perform
employment services for the Company shall terminate effective upon the
first to occur of the following:
(i) If the Employee's employment is terminated for Disability,
the date on which the Notice of Termination is given;
(ii) If the Employee's employment is terminated by voluntary
action of the Employee (See Section 7(e)), the date specified in the
Notice of Termination, which date shall be no more than fifteen (15)
days after the date that the Notice of Termination is given;
(iii) The death of the Employee;
(iv) The expiration of the Employment Period;
(v) If the Employee's employment is terminated by the Company for
Cause (See Section 7(b)), the date on which a Notice of Termination is
given; and
(vi) If the Employee's employment is terminated by the Company
other than for Cause, Disability or death of the Executive, the date
specified in the Notice of Termination which date shall not be more
than thirty (30) days after the date that the Notice of Termination is
given.
b) Termination for Cause.
(1) The Company may terminate the Employee's employment hereunder and
the Employment Period for Cause. For the purposes of this Agreement,
"Cause" shall mean termination because of Employee's personal dishonesty,
willful misconduct, breach of fiduciary duty involving personal profit,
violation of any law, rule or regulation that could result in conviction of
a felony or any material, uncured breach of any provision of this
Agreement.
(2) If the Employee's employment shall be terminated for Cause, the
Company shall pay the Employee (or his successors) his unpaid Salary
through the Employment Termination Date.
c) Termination for Disability. The Company may terminate the
Employee's employment because of the Disability of the Employee and
thereafter the Company shall pay to the Employee (or his successors):
(i) his unpaid Salary through the Employment Termination Date and (ii)
if the Disability occurs after the Employee has been employed by the
Company for at least six months, the Severance Payment.
d) Termination Upon Employee's Death. In the event of the
Employee's death, the Company shall pay to the Employee's estate any
unpaid Salary through the Employment Termination Date.
e) Voluntary Termination by Employee. In the event that Employee
voluntarily terminates his employment with the Company prior to the
expiration of the Employment Period, the Employee shall be entitled
only to payment of the amounts which would be payable to him under
subsection 7(b)(2) above as if he had been terminated for Cause.
f) Compensation Upon Termination other than for Cause. If the
Company shall terminate the Employee's employment for any reason other
than pursuant to Sections 7(b), (c) or (d), then the Company shall pay
to the Employee his unpaid Salary through the Employment Termination
Date. In addition, if the Company terminates the Employee's employment
under this paragraph before the third anniversary of the Effective
Date, then the Employee will immediately be entitled to receive the
Severance Payment as calculated in Section 2 hereof
Section 8. Certain Company Protection Provisions. The following provisions
apply for the protection of the Company, and shall survive indefinitely, beyond
the duration of this Agreement:
a) Non-Competition and Non-Solicitation. During the Restricted Period
(as hereinafter defined), the Employee shall not directly or indirectly
compete with the Company or own, manage, control or participate in the
ownership, management or control of, or be employed or engaged by or
otherwise affiliated or associated with any Competitive Business (as
hereinafter defined). As used herein, the term "Restricted Period" means
the Employment Period and a period of one (1) year thereafter. As used
herein, a "Competitive Business" is any other corporation, limited
liability company, partnership, proprietorship, firm, association or other
business entity which is engaged in the production of hollow microsphere
products in the United States. During the Restricted Period, the Employee
shall not directly or indirectly solicit any customer or known prospective
customer who has contracted with the Company to purchase products or
services during the then-preceding twelve month period.
b) Non-Interference. During the Restricted Period, the Employee shall
not induce or solicit any employee of the Company or any person doing
business with the Company to terminate his or her employment or business
relationship with the Company or otherwise interfere with any such
relationship.
c) Confidentiality. The Employee agrees and acknowledges that, by
reason of the nature of his duties as an officer and employee, he will have
or may have access to and become informed of confidential and secret
information which is a competitive asset of the Company ("Confidential
Information"), including without limitation any lists of customers or
subscribers, financial statistics, research data or any other statistics
and plans contained in profit plans, capital plans, critical issue plans
strategic plans or marketing or operation plans or other trade secrets of
the Company and any of the foregoing which belong to any person or company
but to which the Employee has had access by reason of his employment
relationship with the Company. The Employee agrees faithfully to keep in
strict confidence, and not, either directly or indirectly, to make known,
divulge, reveal, furnish, make available or use (except for use in the
regular course of his employment duties) any such Confidential Information;
provided, however, that the Employee will not be deemed to have violated
this provision if he is compelled by valid legal process to disclose any
Confidential Information; provided further, however, that in the event the
Employee is called upon to provide Confidential Information, the Employee
will give the Company prompt notice of such demand and cooperate with the
Company in making any objections that the Company deems appropriate to the
disclosure of Confidential Information. The Employee acknowledges that all
manuals, instruction books, price lists, experiment logs or papers,
information and records and other information and aids relating to the
Company's business, and any and all other documents containing Confidential
Information furnished to the Employee by the Company or otherwise acquired
or developed by the Employee during the term hereof, shall at all times be
the property of the Company. Upon the Employment Termination Date, the
Employee shall return to the Company any such property or documents which
are in his possession, custody or control, but his obligation of
confidentiality shall survive the Employment Termination Date until and
unless any such Confidential Information shall have become, through no
fault of the Employee, generally known to the trade. The obligations of the
Employee under this subsection are in addition to, and not in limitation or
preemption of, all other obligations of confidentiality which the Employee
may have to the Company under general legal or equitable principles.
d) Intellectual Property. The Employee acknowledges and agrees that
all Intellectual Property developed during the Employment Term (whether
with or without any participation or involvement by Employee) is and shall
remain the property of the Company, and the Employee covenants to cooperate
with and provide reasonable assistance to the Company in the assertion of
its rights in any such Intellectual Property, including without limitation,
the assignment to the company of any rights the Employee may have, and
cooperation in securing for the Company copyright, patent or trademark
protection or similar rights, in the Intellectual Property.
e) Remedies. It is expressly agreed by the Employee and the Company
that these provisions are reasonable for purposes of preserving for the
Company its business, goodwill and proprietary information. It is also
agreed that if any provision is found by a court having jurisdiction to be
unreasonable because of scope, area or time, then that provision shall be
amended to correspond in scope, area and time to that considered reasonable
by a court and as amended shall be enforced and the remaining provisions
shall remain effective. In the event of any breach of these provisions by
the Employee, the parties recognize and acknowledge that a remedy at law
will be inadequate and the Company may suffer irreparable injury. The
Employee acknowledges that the services to be rendered by him are of a
character giving them peculiar value, the loss of which cannot be
adequately compensated for in damages. Accordingly, the Employee consents
to injunctive and other appropriate equitable relief without the posting of
any type of bond or surety upon the institution of proceedings therefor by
the Company in order to protect the Company's rights. Such relief shall be
in addition to any other relief to which the Company may be entitled at law
or in equity.
Section 9. Successors and Assigns. Except as hereinafter expressly
provided, the agreements, covenants, terms and provisions of this Agreement
shall bind the respective heirs, executors, administrators, successors and
assigns of the parties. This Agreement is personal in nature and neither of the
parties hereto shall, without the consent of the other, assign or transfer this
Agreement or any rights or obligations hereunder, except as provided in this
Section 9. Without limiting the foregoing, the Employee's right to receive
payments hereunder shall not be assignable or transferable, whether by pledge,
creation of a security interest or otherwise, and in the event of any attempted
assignment or transfer in contravention of this Section 9, the Company shall
have no liability to pay to the purported assignee or transferee any amount so
attempted to be assigned or transferred.
Section 10. Notices. All notices and other communications that are required
or may be given under this Agreement shall be in writing and shall be delivered
personally or by certified mail addressed to the party concerned at the
following addresses:
If to the Company: Thermacell Technologies, Inc.
000 Xxxxxxxx Xxxx.
Xxxxxxx Xxxxx, XX 00000
Attn: President
With a copy to: Couture & Company
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
If to Employee: Xxxxx Xxxxxxxx
00 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
All notices shall be effective upon receipt.
Section 11. Waiver: Remedies Cumulative. No waiver of any right or
option hereunder by any party shall operate as a waiver of any other right or
option, or the same right or option as respects any subsequent occasion for its
exercise, or of any legal remedy. No waiver by any party of any breach of this
Agreement or of any agreement or covenant contained herein shall be held to
constitute a waiver of any other breach or a continuation of the same breach.
All remedies provided by this Agreement are in addition to all other remedies
provided under this Agreement or applicable law.
Section 12. Governing Law: Severability. A substantial portion of
negotiations, anticipated performance and execution of this Agreement occurred
or shall occur in Sarasota, Florida, and the various terms, provisions,
covenants and agreements, and the performance thereof, shall be construed,
interpreted and enforced under and with reference to the substantive laws of the
State of Florida. It is the intention of the Company and the Employee to comply
fully with all laws and matters of public policy relating to employment
agreements and restrictive covenants, and this Agreement shall be construed
consistently with such laws and public policy to the extent possible. If and to
the extent any one or more covenants, agreements, terms and provisions of this
Agreement or any portion or portions thereof shall be held invalid or
unenforceable by a court of competent jurisdiction, then such covenants,
agreements, terms and provisions (or portions thereof) shall be deemed separable
from the remaining covenants, agreements, terms and provisions of this Agreement
and such holding shall in no way affect the validity or enforceability of any of
the other covenants, agreements, terms and provisions hereof.
Section 13. Miscellaneous. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof.
This Agreement may not be modified, changed or amended except in a writing
signed by each of the parties hereto. This Agreement may be signed in
counterparts, both of which shall be deemed an original hereof. The captions of
the several sections and subsections of this Agreement are not a part of the
context hereof, are inserted only for convenience in locating such subsections
and shall be ignored in construing this Agreement.
Section 14. Jurisdiction and Venue. The parties acknowledge that a
substantial portion of negotiations, anticipated performance and execution of
this Agreement occurred or shall occur in Sarasota, Florida and that, therefore,
without limiting the jurisdiction or venue of any other federal or state courts,
each of the parties irrevocably and unconditionally (a) agrees that any suit,
action or legal proceeding must be brought in the state courts in Sarasota,
Florida; (b) consents to the jurisdiction of such court in any suit, action or
proceeding; (c) waives any objection which it may have to the laying of venue of
any such suit, action or proceeding in any of such courts; and (d) agrees that
service of any court paper may be effected on such party by mail, as provided in
this Agreement, or in such other manner as may be provided under applicable laws
or court rules in the State of Florida.
IN WITNESS WHEREOF, the Company and Employee have executed this
Agreement as of the Effective Date.
EMPLOYEE:
Xxxxx Xxxxxxxx
COMPANY:
Thermacell Technologies, Inc.
By:
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Name: Xxxxxx Xxxxxxx
Title: Vice President
