Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is being made as of this 1st
day of January, 1997 between InnoPet Brands Corp., a Delaware corporation (the
"Company"), having its principal offices at Xxx Xxxx Xxxxxxx Xxxxxxxxx, Xx.
Xxxxxxxxxx, Xxxxxxx, and Xxxx Bieber (the "Employee"), an individual residing at
.
W I T N E S S E T H:
WHEREAS, the Company desires to employ Employee and Employee
desires to be employed by the Company as its Vice President of Marketing upon
the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, and intending to be legally bound hereby,
the parties hereto agree as follows:
1. Nature of Employment; Term of Employment. The Company
hereby employs Employee and Employee agrees to serve the Company as its Vice
President of Marketing upon the terms and conditions contained herein, for a
term commencing as of January 6, 1997 and continuing until the close of business
on December 31, 1999 (the "Employment Term"). This Agreement will automatically
renew for one additional term of one year if notice of termination is not given
by either party at least forty-five (45) days prior to the end of the Employment
Term.
2. Duties and Powers as Employee. During the Employment Term,
Employee agrees to devote all of his full working time, energy, and efforts to
the business of the Company. The Employee's duties shall include, without
limitation, the supervision of marketing activities of the Company and related
areas of responsibility. In performance of his duties, Employee shall be subject
to the direction of the Chief Executive Officer of the Company. Employee shall
be available to travel as the needs of the business require.
3. Compensation.
(a) As compensation for his services hereunder, the Company
shall pay Employee a salary, payable in equal semi-monthly installments, at the
annual rate of $100,000. Additionally, Employee shall participate in the present
or future employee benefit plans of the Company provided that he meets the
eligibility requirements therefor.
(b) Employee shall be eligible to receive raises each year
of the Employment Term at a minimum to reflect cost of living increases, if any,
and merit raises, subject to satisfactory performance as determined by the Chief
Executive Officer.
(c) Employee shall be reimbursed for all relocation
expenses up to $15,000; which shall be paid upon submission of documented
relocation expenses actually incurred by the Employee.
(d) Employee shall be reimbursed for his reasonable living
expenses for an aggregate amount not to exceed $1,500 a month for up to six (6)
months from January 1997 through and including June 1997. The Employee shall be
reimbursed within thirty (30) days after the submission of written documentation
that such expenses were actually incurred.
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(e) The Employee shall be granted options (the "Options")
to purchase 25,000 shares of Common Stock at an exercise price determined in
accordance with the Company's option plan (the "Plan"). The exercise price of
the Options shall be the closing bid price as reported on the NASDAQ SmallCap
Market for January 2, 1997. The Options shall vest as long as the Employee is
employed by the Company on the following dates:
5,000 on December 31, 1997
10,000 on December 31, 1998
10,000 on December 31, 1999
The Options shall be subject to all of the terms of the
Plan and shall be evidenced by a stock option grant certificate that shall be
issued by the Company.
4. Expenses; Vacations. Employee shall be entitled to
reimbursement for reasonable travel and other out-of-pocket expenses necessarily
incurred in the performance of his duties hereunder, upon submission and
approval of written statements and bills in accordance with the then regular
procedures of the Company. During the first year of this Agreement, Employee
shall be entitled to ten (10) days paid vacation time in accordance with then
regular procedures of the Company governing executives as determined from time
to time by the Company's Board of Directors. After the first year of the
Agreement, Employee shall be entitled to fifteen (15) days paid vacation time
per year.
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5. Representations and Warranties of Employee. Employee
represents and warrants to the Company that (a) Employee is under no contractual
or other restriction or obligation which is inconsistent with the execution of
this Agreement, the performance of his duties hereunder, or the other rights of
the Company hereunder; and (b) Employee is under no physical or mental
disability that would hinder his performance of duties under this Agreement.
6. Non-Competition.
(a) The Employee agrees that during the Employment Term he
will not engage in, or otherwise directly or indirectly be employed by, or act
as a consultant, or be a director, officer, employee, owner, agent, member or
partner of, any other business or organization that is or shall then be
competing with the Company.
(b) If this Agreement is terminated pursuant to Section
9(a), 9(c) or 9(e), Employee, for a period of six (6) months from the date of
termination, shall not, directly or indirectly, be engaged in the marketing or
manufacturing of (i) any form of pet food for cats, dogs, puppies or kittens; or
(ii) any products for cats, dogs, puppies or kittens similar to those that he
worked on or had knowledge of during the Employment Term.
(c) If this Agreement is terminated pursuant to Section
9(b), Employee, for a period of six (6) months from the date of termination,
shall not, directly or indirectly, compete with or be engaged in the same
business as the company, or be employed by, or act as consultant, or be a
director, officer, employee, owner, agent, member or partner of, any business or
organization which, at the time of such termination, competes with or is engaged
in the same business as the Company. At the end of this period, Employee, for a
period of six (6) months thereafter, shall not, directly or indirectly, be
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engaged in the marketing or manufacturing of (i) any pet food to be given to
cats, dogs, puppies or kittens; or (ii) any products for cats, dogs, puppies or
kittens similar to those that he worked on or had knowledge of during the
Employment Term.
7. Inventions; Patents; Copyrights. Any interest in patents,
patent applications, inventions, copyrights, developments, and processes ("Such
Inventions") which Employee now or hereafter during the period he is employed by
the Company under this Agreement may, directly or indirectly, own or develop
relating to the fields in which the Company may then be engaged shall belong to
the Company; and forthwith upon request of the Company, Employee shall execute
all such assignments and other documents and take all such other action as the
Company may reasonably request in order to vest in the Company all his right,
title, and interest in and to Such Inventions, free and clear of all liens,
charges, and encumbrances.
8. Confidential Information. All confidential information
which Employee may now possess, may obtain during the Employment Term, or may
create prior to the end of the period he is employed by the Company under this
Agreement, relating to the business of the Company or of any customer or
supplier of the Company shall not be published, disclosed, or made accessible by
him to any other person, firm, or corporation during the Employment Term or any
time thereafter without the prior written consent of the Company. Employee shall
return all tangible evidence of such confidential information to the Company
prior to or at the termination of his employment.
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9. Termination.
(a) Notwithstanding anything herein contained, if on or
after the date hereof and prior to the end of the Employment Term, Employee is
terminated "For Cause" (as defined below) then the Company shall have the right
to give notice of termination of Employee's services hereunder as of a date to
be specified in such notice, and this Agreement shall terminate on the date so
specified. Termination "For Cause" shall mean Employee shall (i) be convicted of
a felony crime, (ii) commit any act or omit to take any action in bad faith and
to the detriment of the Company, (iii) commit an act of moral turpitude, (iv)
commit an act of fraud against the Company, or (v) materially breach any term of
this Agreement and fail to correct such breach within ten (10) days after
commission thereof. In the event that this Agreement is terminated "For Cause",
pursuant to Section 9(a), then Employee shall be entitled to receive only his
salary at the rate provided in Section 3 to the date on which termination shall
take effect.
(b) In the event that Employee, prior to the end of the
Employment Term, is terminated by the Company other than pursuant to Section
9(a) hereof, he shall be entitled to receive six (6) months of his annual salary
at the rate provided in Section 3 (the "Severance Payment"). The Severance
Payment shall be paid by the Company in six (6) equal installments beginning
thirty (30) days after the date of termination and every thirty (30) days
thereafter until fully paid. The date of termination shall be specified in a
notice of termination to be provided by the Company.
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(c) In the event that Employee shall be physically or
mentally incapacitated or disabled or otherwise unable fully to discharge his
duties hereunder for a period of six (6) consecutive calendar months, then this
Agreement shall terminate upon 90 days' written notice to Employee, and no
further compensation shall be payable to Employee, except as may otherwise be
provided under any disability insurance policy.
(d) In the event that Employee shall die, then this
Agreement shall terminate on the date of Employee's death, and no further
compensation shall be payable to Employee, except as may otherwise be provided
under any insurance policy or similar instrument.
(e) The Employee may terminate this Agreement on sixty (60)
days notice. If the Employee terminates this Agreement pursuant to this Section
9(e) he shall not be entitled to receive any Severance Payment.
(f) Nothing contained in this Section 9 shall be deemed to
limit any other right the Company may have to terminate Employee's employment
hereunder upon any ground permitted by law.
10. Merger, Etc. In the event of a future disposition of the
properties and business of the Company, as or substantially as an entirety, by
merger, consolidation, sale of assets, sale of stock, or otherwise, then the
Company may elect to assign this Agreement and all of its rights and obligations
hereunder to the acquiring or surviving corporation; and upon such assignment
Employee's rights and obligations hereunder shall continue with the same force
and effect as if such acquiring or surviving corporation had ab initio been a
party hereto in lieu and stead of InnoPet Brands Corp.
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11. Survival. The covenants, agreements, representations, and
warranties contained in or made pursuant to this Agreement shall survive
Employee's termination of employment, irrespective of any investigation made by
or on behalf of any party.
12. Modification. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof,
supersedes all existing agreements between them concerning such subject matter,
and may be modified only by a written instrument duly executed by each party.
13. Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be mailed by
certified mail, return receipt requested, or delivered against receipt to the
party to whom it is to be given at the address of such party set forth in the
preamble to this Agreement (or to such other address as the party shall have
furnished in writing in accordance with the provisions of this Section 13). In
the case of a notice to the Company, a copy of such notice (which copy shall not
constitute notice) shall be delivered to Camhy Xxxxxxxxx & Xxxxx LLP, 0000
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn. Xxxxxx X. XxXxxx, Esq.
Notice to the estate of Employee shall be sufficient if addressed to Employee as
provided in this Section 13. Any notice or other communication given by
certified mail shall be deemed given at the time of certification thereof,
except for a notice changing a party's address which shall be deemed given at
the time of receipt thereof.
14. Waiver. Any waiver by either party of a breach of any
provision of this Agreement shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
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this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement on one or more occasions shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
15. Binding Effect. Employee's rights and obligations under
this Agreement shall not be transferable by assignment or otherwise, such rights
shall not be subject to encumbrance or the claims of Employee's creditors, and
any attempt to do any of the foregoing shall be void. The provisions of this
Agreement shall be binding upon and inure to the benefit of Employee and his
heirs and personal representatives, and shall be binding upon and inure to the
benefit of the Company and its successors and those who are its assigns under
Section 10.
16. Headings. The headings in this Agreement are solely for
the convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
17. Counterparts; Governing Law. This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. It shall be governed by, and construed in accordance with, the laws
of the State of Florida, without given effect to the rules governing the
conflicts of laws.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first written above.
INNOPET BRANDS CORP.
By:
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Name: Xxxx Xxxx
Title: CEO
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Xxxx Bieber
