EMPLOYMENT AGREEMENT
This
Employment Agreement ("Agreement"), is entered into by and between Dais Analytic
Corporation, located at 00000 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxx 00000
("Employer") and Xxxxxxx X. Xxxxxx, currently residing at 00 Xxxxxxxxx Xxxx,
Xxxxxxx Xxxxx, Xxx Xxxxxx 00000 ("Employee"), to be effective on or before March
31, 2008 (the "Effective Date").
W I T N E
S S E T H:
WHEREAS, Employer is desirous of employing
Employee pursuant to the terms and conditions and for the consideration set
forth in this Agreement, and Employee is desirous of entering the employ of
Employer pursuant to such terms and conditions and for such
consideration.
NOW, THEREFORE, for and in consideration of the
mutual promises, covenants, and obligations contained herein, Employer and
Employee agree as follows:
ARTICLE
1: EMPLOYMENT AND DUTIES:
1.1.
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Employer
agrees to employ Employee, and Employee agrees to be employed by Employer
on the terms and conditions set forth in this
Agreement.
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1.2
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Subject
to the provisions for termination and extension as hereafter provided, the
term (“Term” shall include any extension of the term of this
Agreement as provided in section 1.3 below) of this Agreement shall
commence on the Effective Date and shall continue until the first
anniversary hereof (“Term”).
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1.3
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The
Term of this Agreement shall be automatically extended on the first
anniversary of the Effective Date for one (1) year and on each subsequent
anniversary of the Effective Date for an additional one year period,
unless, in any such case, Employer delivers, at least one (1) month prior
to such anniversary of the Effective Date, written notice of its intent
not to renew or extend the Term.
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1.4
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Beginning
as of the Effective Date, Employee shall be employed as Chief Operating
Officer of Employer. Employee shall report to the President and Chief
Executive Officer of the Employer. Employee agrees to serve in said
position or in such capacities as may be requested by the Employer
consistent with duties, responsibilities, etc. consistent with this title
within the industry at a similar size, and to perform diligently and to
the best of Employee's abilities the duties
and services.
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1.5.
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Employee
shall at all times comply with and be subject to such policies and
procedures as Employer may establish from time to time, for members of the
Company whether at the executive level or for members of the entire
Company, including without limitation any Code of Business Conduct (the
"Code of Business Conduct") the Employer has or may establish from time to
time.
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1.6.
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Employee
shall, during the period of Employee’s employment by Employer, devote
Employee's full business time, energy, and best efforts to the business
and affairs of Employer. Employee may not engage, directly or indirectly,
in any other business, investment, or activity that interferes with
Employee’s performance
of Employee’s duties hereunder, is contrary to the interest of Employer.
The foregoing notwithstanding,
the parties recognize and agree that Employee may engage in passive
personal investments and other business activities which do not conflict
with the Business and affairs of the Employer or Employer Entities or
interfere with Employee's performance of his duties
hereunder. Employee may not serve on the board of directors of
any entity other than an Employer Entity during the Term without
Employer’s written approval thereof.
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1.7
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Employee
acknowledges and agrees that Employee owes a fiduciary duty of loyalty,
fidelity and allegiance to act at all times in the best interests of the
Employer and all other Employer Entities and to do no act which would,
directly or indirectly, injure any such entity's business, interests, or
reputation. It is agreed that any direct or indirect interest
in, connection with, or benefit from any outside activities, particularly
commercial activities, which interest might in any way adversely affect
Employer or any Employer Entity involves a possible conflict of
interest. In keeping with Employee's fiduciary duties to
Employer, Employee agrees that Employee shall not knowingly become
involved in a conflict of interest with Employer or the Employer Entities,
or upon discovery thereof, allow such a conflict to continue. Moreover,
Employee shall not engage in any activity which might involve a possible
conflict of interest without first obtaining written approval of
Employer.
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1.8
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The
parties understand and agree that Employee will be employed during the
Term of this Agreement at Employer’s principal offices which are currently
located in Odessa, Florida. However, to the extent business needs do not
require his physical presence at Employer’s principal office he will work
from a suitable location which both parties will agree to on
its suitability prior to use. This notwithstanding the Employee agrees
approximately 50% or more of his time will be spent at the principal
office. At the end of three (3) years – if not earlier if agreed to by
both parties – the parties will review Employee’s location as the goal is
to have the executive team located at the Employer’s principal place of
business.
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1.9.
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Nothing
contained herein shall be construed to
preclude the transfer of Employee's employment to another
Employer Entity ("Subsequent Employer") as of, or at any time after, the
Effective Date and no such transfer shall be deemed to be a termination of
employment for the purposes of Article 3 hereof; provided,
however, that, effective with such transfer, all of Employer's
obligations hereunder shall be assumed by and
be binding upon, and all of Employer's rights
hereunder shall be assigned to, such Subsequent Employer and the defined
term "Employer" as used herein shall thereafter be deemed amended to mean
such Subsequent Employer. Except as otherwise provided above, all of the
terms and conditions of this Agreement, including without limitation,
Employee's rights and obligations, shall remain in full force and effect
following such transfer of
employment.
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ARTICLE 2: COMPENSATION AND
BENEFITS:
2.1
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Subject
to the terms and conditions of this Agreement, Employee’s base salary
during the Term shall be One Hundred and Fifty Thousand Dollars ($150,000)
per annum which shall be paid in accordance with Employer's standard
payroll practice. Employee's base salary may be adjusted from
time to time at the sole discretion and approval of the majority of the
Board of Directors (“Board”). Compensation payable under this section will
be reviewed in September of 2008. Any changes to the Compensation to be
paid pursuant to this section or any other provision of this Agreement
shall be made in the sole discretion of
Employer.
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2.2
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In
addition to Employee’s base salary and benefits and subject to the terms
and conditions of this agreement, Employee shall be paid a commission for
each sale of a Employer commercial energy recovery ventilator system
(“ERV”) or Employer commercial energy recovery ventilator system core
“(Core”) to a third party made by the Company’s independent representative
sales organization on behalf of
Employer. Said commission shall be equal to two percent (2%) of
Employer’s Net Sales Price relating to such sale; provided, however, such
commission shall be due only if: (1) the Gross Margin Percentage for the
sale equals or exceeds Thirty- Five Percent (35%), and (2) Employer has
received full payment of the Sales Price relating to the sale.
Notwithstanding the foregoing, if an ERV contains a Core only the ERV
shall be eligible for commission (i.e. a Core contained in an ERV is not
subject to commission). Any commissions due and owing to Employee by
reason of this section shall paid to Employee pursuant to Employer’s
scheduled payroll in the month following Employer’s fiscal quarter in
which the qualifying sale subject to commission was made and shall be
subject to the terms and conditions of this Agreement. Such payment shall
be subject to applicable tax and withholding. For the purpose of Section
2.2, the following terms shall have the meanings provided
below:
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a.
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“Gross
Margin” shall mean Net Sales Price less the sum of the Cost of Goods Sold
and Selling Expenses.
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b.
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"Cost
of Goods Sold" shall mean the aggregate cost of the ERV or Core sold,
prepared in accordance with GAAP consistent with Seller's practices.
Without limiting the generality of the foregoing, "Cost of Goods Sold"
shall include but not be limited to the following: raw material costs,
direct labor costs (including payroll taxes and benefits), manufacturing
overhead (including a reasonable portion of the factory space allocated to
production, any outside buying services or commissions due to the same,
reasonable product development and equipment depreciation costs, product
freight, brokerage fees and,
duties.
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c.
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"Net
Sales Price" shall mean the sales price of the ERV or Core, as applicable,
subject to commission hereunder as prepared in accordance with GAAP
and consistent with Seller's past practices, less (I) returns (including
freight or handling incurred thereon), discounts, refund credits and
allowances made or allowed to customers and (ii) sales and excise taxes
actually paid.
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d.
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"Selling
Expenses" shall mean the selling and advertising expenses of Employer
relating to said Core and ERV including, but not limited to salespersons
loaded salaries (including sales commissions), directly related
promotional costs, freight out, advertising (local, co-op, etc.), photos,
promotion, booth rental and related show expenses (if applicable),
directly related travel expenses, entertainment expenses, and reasonable
directly related travel expenses.
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e.
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“Gross
Margin Percentage” shall mean the percentage derived by dividing the Gross
Margin of the sale subject to commission by the Net Sales Price of that
sale.
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f.
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"Sales
Price" shall mean the full invoiced price, including shipping, handling
and taxes, of the ERV or Core less returns, discounts, refunds, credits
and allowances made or allowed to
customers.
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g.
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“Commercial”
shall mean a non-residential use of the referenced product in a
building-related heating ventilation or air-conditioning application
requiring at least One Thousand (1,000) cubic feet per minute of air such
application.
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2.3
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Employer
shall grant to Employee, pursuant to the Dais Analytic Corporation 2000
Incentive Compensation Plan (the "2000 Plan"), a stock option to purchase
up to Eight Hundred Thousand (800,000) Shares of Employer's $.01 par value
common stock. Said option shall vest ratably over a three year period with
Sixty Thousand Six Hundred and Sixty Six (66,666) shares vesting on the
anniversary of third (3rd)
month following the date of the option grant and every three (3) months
thereafter until the entire sum is vested; provided, Employee is employed
hereunder as of the date of such vesting. Each share subject to the option
shall have an exercise price equal to the fair market value of Employer's
common stock on the date of the option grant as determined in the sole
discretion of the Board of Directors,
or if such authority has been delegated to the Compensation Committee, the
Compensation Committee. All other terms and conditions said option grant
are set forth in Exhibit A attached hereto, which forms a part of this
Agreement.
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2.4
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Subject
to the terms and conditions of this Agreement, if during the course of
Employee’s employment hereunder, Employer receives net cash proceeds of
One Million Dollars ($1,000,000) or more from the private or public sale
of its $.01 par value common stock, with said stock being sold at no less
than Twenty Five ($.25) per share (or in later rounds at a price per share
which does not trigger anti-dilution or other related dilutive actions)
and said sale being both initiated after the commencement of Employee’s
employment and closed upon during the 2008 calendar year, Employee shall
receive a cash bonus of Fifty Thousand Dollars ($50,000) payable in four
equal monthly payments of Twelve Thousand Five Hundred Dollars $12,500)
each. Said payments, if any, shall be commence on the month following the
close of said sale and shall be paid with Employer’s scheduled monthly
payroll. Any such payment hereunder shall be subject to all applicable tax
and withholding requirements. Notwithstanding the foregoing, no payment
shall be due or payable by reason of this section if condition of said
sale precludes such a payment to
Employee.
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2.5
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Employee
shall be entitled to three (3) weeks of paid vacation per year of
employment. Said time shall accrue ratably over the year and any unused
vacation time from one year may be carried to the next year of employment,
if any, upon Employer’s written consent with said consent being require
for each such request. Employee shall be paid for fifty percent
(50%) of any unused vacation at The time of termination if the said
termination was not made for Cause. If said termination was made for Cause
no payment for any unused vacation will be
made.
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2.6
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Subject
to the terms and conditions of this Agreement, beginning on the Effective
Date and continuing for the remainder of the Term, Employee
shall participate in any incentive plan instituted and approved by the
Board of Directors of Employer provided, however, that all determinations
relating to Employee’s participation, including, without limitation, those
related to the performance goals applicable to Employee and Employee’s
level of participation and payout opportunity, shall be made by a majority
vote of the Company’s Board of
Directors.
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2.7
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During
the Term, Employer shall reimburse Employee for all actual, reasonable and
customary expenses incurred by Employee in the course of this employment
provided that such expenses are incurred and accounted for in accordance
with Employer's applicable policies and customary
practices.
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2.8
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While
employed by Employer, Employee shall be allowed to participate, on the
same basis generally as other employees of Employer, in all general
employee benefit plans and programs, including improvements or
modifications of the same, which may exist as of the Effective Date or
thereafter and which are made available by Employer to all or
substantially all of Employer’s employees. Such benefits, plans, and
programs may include, without limitation, any health, and dental insurance
or 401K programs, if and when instituted. Any benefit plan currently
existing or instituted by Employer after the Effective Date may be
altered, change or discontinued by Employer at its sole discretion and at
any time without obligation of any nature to Employee. Except
as specifically provided herein, nothing in this Agreement is to be
construed or interpreted to increase or alter in any way the rights,
participation, coverage, or benefits under such benefit plans or programs
to other than those provided to other employees pursuant to the terms and
conditions of such benefit plans and programs. While employed by Employer,
Employee shall be eligible to receive awards under and subject to the
terms and conditions of the 2000 Plan or any successor plan adopted by
Employer; provided, however, that the foregoing shall not be construed as
a guarantee with respect to the type, amount or frequency of such awards,
if any, such decisions being solely within the discretion of discretion of
the person or committee to whom such authority has been granted pursuant
to such plan's terms. Employer shall reimburse
Employee up to $1,800 for the cost of the Employee’s continuation coverage
(“COBRA”) elected by Employee as a result of the termination of Employee’s
most recent prior
employment.
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2.9
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Employer
shall not, by reason of this Article 2, be obligated to institute,
maintain, or refrain from changing, amending or discontinuing, any
incentive compensation, employee benefit or stock or stock option program
or plan.
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2.10
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Employer
may withhold from any compensation, benefits, or amounts payable under
this Agreement
all federal, state, city, or other tax as may be required pursuant to any
law or governmental regulation or ruling, any required withholdings and
any sums related to Employee portion of health care or other
benefits.
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ARTICLE 3: TERMINATION OF EMPLOYMENT
AND EFFECTS OF SUCH TERMINATION:
3.1
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Employee's
employment with Employer shall be
terminated:
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(i)
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Upon
the death of Employee,
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(ii)
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Upon
Employee's Retirement (as defined below)
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(iii)
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Upon
Employee's Permanent Disability (as defined below)
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(iv)
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At
any time by Employer upon notice to Employee, or by Employee upon thirty
(30) days notice to Employer, for any or no reason or
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(v)
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Upon
expiration of the Term of this
Agreement.
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3.2
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If
Employee's employment is terminated by reason of any of the following
circumstances, Employee shall not be entitled to receive the benefits
set forth in Section 3.3 hereof:
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(i)
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Death.
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(ii)
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Retirement. "Retirement"
shall mean either (a) Employee's voluntary retirement from Employment
pursuant to a bona fide retirement plan maintained by Employer at or after
normal retirement age (either voluntarily or pursuant to any Employer
policy) or
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(b)
The voluntary termination of Employee's employment by Employee in
accordance with Employer's early retirement policy or offer or for other
than Good Reason (as defined below).
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(iii)
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Permanent
Disability. "Permanent Disability" shall mean Employee's physical or
mental illness, injury or condition that renders Employee incapable of
performing his usual duties with such condition likely to remain
continuous for a period of three months as determined, in its sole
discretion, by the Board of Directors.
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(iv)
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Voluntary
Termination. "Voluntary Termination" shall mean a termination of
employment at the election of Employee for other than Good Reason. "Good
Reason" shall mean a termination of employment by Employee because of
a material breach by Employer of any material provision of this Agreement
that which remains uncorrected for thirty (30) days following written
notice of such breach by Employee to Employer provided such
termination occurs within fifteen (15) days after the expiration of the
notice period.
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(v)
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Termination
of Employee's employment by Employer for Cause. "Cause" shall mean any of
the following: (a) Employee's willful misconduct, dishonesty or reckless
disregard of his responsibilities to Employer or in the performance of the
duties and services required of Employee pursuant to this Agreement, and
Employee has not cured such conduct within fifteen (15) days of written
notice of his default, (b) the Employee is convicted or pleads nolo contendre or the
equivalent to either a felony or misdemeanor involving moral turpitude,
(c) a material violation of the Code of Business Conduct (if the Employer
has in place such a plan), and Employee has not cured his default within
fifteen (15) days of written notice of his default or (d) Employee's
breach of any material provision of this Agreement which remains
uncorrected for fifteen (15) days following notice of such breach to
Employee by Employer, or (e) Employer’s failure to follow reasonable,
lawful order or directions of the Chief Executive Officer or
the Bo
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Determination
as to whether or not Cause exists for termination of the Employee’s
employment will be made by a majority vote of the Board of
Directors.
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(vi)
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Expiration
of Term.
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Upon
the occurrence of any of the events described in (i) through (vi) of
Section 3.2, Employee's employment shall terminate and the Employer shall
have no further obligation to Employee hereunder except to pay to Employee
(or his estate, as the case may be), upon the latter of ten (10) days
following the date of termination or upon the date of Employer’s next
scheduled payroll, any accrued but unpaid Base Salary, and earned
commissions calculated to date of termination plus any of un-reimbursed
expenses payable to Employee pursuant to the terms and conditions of this
agreement. All future compensation to which Employee would otherwise have
been entitled and all future benefits for which the Employee was eligible
shall cease and terminate as of the date of
termination.
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Any
and all payments made To Employee ( or his estate, as the case may
be)pursuant to this Section 3.2 shall be made after deduction of any
non-reimbursable amounts paid by Employer on behalf of Employee and after
all standard and customary withholding including but not limited to
withholding for tax and social security
purposes.
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3.3
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If
Employee's employment is terminated by Employee for Good Reason or by
Employer for any reason other than as set forth in Section 3.2 above,
Employee shall be entitled to the following, as applicable:
(i) Subject to the
provisions of Section 3.4, Employer shall pay to Employee a severance
benefit consisting of eight (8) equal monthly cash payments which in the
aggregate equal two thirds (66%) of Employee's base annual salary in
effect at the date of Employee's termination of employment. Such
severance benefit shall be paid commencing with the first payroll period
of Employer following Employee's termination date. Notwithstanding the
foregoing, if the Employee is terminated by Employer for failure to
adequately perform the duties of his position as determined by the
majority vote of the Board of Directors, then Subject to the provisions of
Section 3.4, Employer shall pay to Employee a severance benefit consisting
of three (3) monthly cash payments equal in the aggregate to Twenty five
percent (25%) of Employee’s base annual salary in effect at the date of
Employee’s termination of employment. Payment of such severance shall be
made pursuant to the same procedure as described in this section (ii)
above.
(ii) In the event Employee’s
employment is terminated by Employer as a direct result of merger or the
sale by Employer of all or substantially all of its assets the vesting of
the options grant made under Section 2.4 shall be modified by the Board of
Directors or, if appropriate, Compensation Committee so as to cause all
shares subject to said grant to vest as of the date of any such merger or
acquisition or any such date prior thereto as said Board of Directors
shall determine in its sole
discretion.
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3.4
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Payments made under this Agreement as well as any severance benefit paid to Employee pursuant to Section 3.3 shall be in consideration of Employee's continuing obligations hereunder (including those after termination), including, without limitation, Employee's obligations under Article 4. Further, as a condition to the receipt of such severance benefit, Employer, in its sole discretion, may require Employee to first execute a release, in the form established by Employer, releasing Employer and all of its affiliates, and their officers, directors, employees, and agents, from any and all claims and from any and all causes of action of any kind or character, including, but not limited to, all claims and causes of action arising out of Employee's employment with Employer and any of its affiliates or the termination of such employment. The performance of Employer's obligations under Section 3.3 and the receipt of the severance benefit provided thereunder by Employee shall constitute full settlement of all such claims and causes of action. Employee's rights under Section 3.3 are Employee's sole and exclusive rights against the Employer or its affiliates and the Employer's sole and exclusive liability to Employee under this Agreement, in contract, tort or otherwise, for the termination of his employment relationship with Employer. Employee agrees that all disputes relating to Employee’s termination of employment, including, without limitation, any dispute as to "Cause" or "Voluntary Termination" and any claims or demands against Employer based upon Employee's employment for any monies other than those specified in Section 3.3, shall be resolved through arbitration as provided in Section 6.6 hereof; provided, however, that decisions specifically reserved herein for either the Board of Directors or the Compensation Committee, including but not limited to those such as to whether "Cause" exists for termination of the employment relationship with Employee and whether and as of what date Employee has become permanently disabled are delegated solely to the Board of Directors of Employer or the Compensation Committee (as the case may be), for determination and any dispute of Employee with any such decision shall be limited to whether the Board of Director or Compensation Committee as the case may be reached such decision in good faith. Nothing contained in this Article 3 shall be construed to be a waiver by Employee of any benefits accrued for or due Employee under any employee benefit plan (as such term is defined in the Employees' Retirement Income Security Act of 1974, as amended) maintained by Employer. |
3.5
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Termination
of the employment relationship does not terminate those obligations
imposed by this Agreement which are continuing obligations, including,
without limitation, Employee’s obligations under Article 4. All
such obligations shall survive termination of this
Agreement.
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ARTICLE
4: OWNERSHIP AND PROTECTION OF INTELLECTUAL PROPERTY AND
CONFIDENTIALINFORMATION:
4.1
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Any and all intellectual property rights, title
and interest in works, including but not limited to all information,
ideas, concepts, improvements, discoveries, and inventions, whether
patentable or not, which are conceived, made, developed or acquired by
Employee, individually or in conjunction with others, during Employee's
employment with Employer or any of its affiliates (whether during business
hours or otherwise, whether on Employer’s premises or otherwise and
whether with or without use of Employer’s facilities, materials,
processes, equipment or supplies) which relate to the actual or intended
business, products or services of Employer or its affiliates (including,
without limitation, all such information relating to corporate
opportunities, research, products, financial and sales data, pricing and
trading terms, evaluations, opinions, interpretations, acquisition
prospects, the identity of customers or their requirements, the identity
of key contacts within the customer's organizations or within the
organization of acquisition prospects, or marketing and merchandising
techniques, prospective names, and marks), and all writings or materials
of any type embodying any of such items, shall vest exclusively in and be
the sole and exclusive property of Employer or its affiliates, as the case
may be. Employee will promptly disclose to Employer, any such intellectual
property rights, title and interest in works and any such intellectual
property rights, title and interest in works made in whole or in part by
Employee within one year following the termination of his employment shall
be deemed to fall within the provisions of this Agreement unless proven by
Employee to have been first conceived and made following such
termination.
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4.2
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Employee
acknowledges that the businesses of Employer and its affiliates are highly
competitive and that their strategies, methods, books, records, and
documents, their technical information concerning their products,
materials, equipment, research and development, services, and processes,
procurement procedures and pricing techniques, the names of and other
information (such as credit and financial data) concerning their customers
and business affiliates, all comprise confidential business information
and trade secrets which are valuable, special, and unique assets which
Employer or its affiliates use in their business to obtain a competitive
advantage over their competitors. Employee further acknowledges that
protection of such confidential business information and trade secrets
against unauthorized disclosure and use is of critical importance to
Employer and its affiliates in maintaining their competitive position.
Employee hereby agrees that, except as required in connection with the
performance of his duties under this Agreement, Employee shall keep
confidential and shall not, at any time during or after his employment by
Employer, directly or indirectly, disclose any confidential business
information or trade secrets of Employer or its affiliates (other than to
Employer’s other employees and/or agents in connection with such party’s
performance of its obligation to Employer), or make any use thereof,
except in the carrying out of his employment responsibilities hereunder.
Confidential business information shall not include information in the
public domain (but only if at the time of the disclosure such information
was in the public domain and the same became a part of the public domain
through a means other than a disclosure prohibited hereunder). The above
notwithstanding, a disclosure shall not be unauthorized if (I) it is
required to be disclosed by law or a court of competent jurisdiction
provided, however, that Employee shall, to the extent practicable and
lawful in any such events, give prior notice to Employer of his intent to
disclose any such confidential business information in such context so as
to allow Employer or its affiliates an opportunity (which Employee will
not oppose) to obtain such protective Orders or similar relief with
respect thereto as may be deemed
appropriate.
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4.3
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All
tangible materials including but not limited to written materials,
listing, notes, data, sketches, drawings, memorandums, models, reference
materialism accounts, records, and other documents made by, or coming into
the possession of, Employee during the period of Employee's employment by
Employer which relate in any way to or contain or disclose confidential
business information or trade secrets of Employer or its affiliates shall
be and remain the property of Employer, or its affiliates, as the case may
be. Upon termination of Employee's employment by Employer, for any reason,
Employee promptly shall deliver the same, and all copies thereof, to
Employer.
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4.4
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For
purposes of this Article 4, "affiliates" shall mean entities in which
Employer has a direct or indirect equity
interest.
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4.5
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Employee shall not use or disclose to anyone
affiliated in any manner with Employer or Employer Entities,
at any time any confidential information secured from any source,
including but not limited to any former employer of Employee, to whom he
has a duty of confidentiality with respect to said
information. Employee represents and covenants that to the best
of his knowledge, he is under no such obligation at this
time.
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4.6
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Employee
will execute any documents reasonably necessary to transfer the
intellectual property described in Section 4 to Employer, including but
not limited to, all patent applications and any continuations in part,
reexaminations, reissues or foreign counterparts thereof. In the event
Employer is unable, after reasonable effort, the secure Employee’s
signature on any documents, letters patent, copyright or other analogous
protection relating to an Invention, whether because of Employee’s
physical or mental incapacity or for any other reason whatsoever, Employee
hereby irrevocably designates and appoints Employer and its
duly authorized officers and agents as Employee’s agent and
attorney-in-fact, to act for and in Employee’s behalf and stead to execute
and file any such application or applications and to do all other lawfully
permitted acts to further the prosecution and issuance of letters patent,
copyright or other analogous protection thereon with the same legal force
and effect as is executed by Employee. Employee’s obligation to assist
Employer in obtaining and enforcing patents and copyrights for such
Inventions in any and all countries shall continue beyond the termination
of this Agreement and in such circumstances Employer shall compensate
Employee, at a reasonable rate and for a reasonable number of hours but in
no event more than the hours actually spent by Employee, to provide said
assistance pursuant to a written request by
Employer.
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ARTICLE
5: NON-COMPETE AND NON-SOLICITATION
5.1
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Employee
covenants and agrees that (a) during the Term of this Agreement and (b)
for a period of one (1) year after termination of Employee’s employment
with Employer for any reason, Employee will not, without prior written
consent of Employer, directly or indirectly, have an interest in, be
employed by or be connected with, as an employee, consultant, officer,
director, partner, member, stockholder or joint venture, any person or
entity owning, managing controlling or otherwise participating or
assisting in any business that is in competition with Employer’s business
or intended business. Notwithstanding the foregoing, Employee’s ownership
of greater than five (5%) of the issued and outstanding securities of any
class of a corporation listed on a national securities exchange or
designated as national market system securities on an inter-dealer
quotation system by the National Association of Securities Dealer’s, Inc.
shall not be deemed a violation of this Agreement. Employee agrees that he
will not interfere with, disrupt or attempt to disrupt the relationship,
contractual or otherwise, between Employer and any other party including
but not limited to any investor, banker, broker, agent, customer, client,
supplier, consultant or employee of Employer. In addition Employee agrees
that (a) upon termination and a for a period of one (1) year thereafter,
Employee will not solicit, assist any other party in the solicitation of
or hire any person employed by Employer at any time during such one (1)
year period. The foregoing restriction shall not apply to any employee or
former employee of Employer whose employment with the Employer terminated
after the date which is one year prior to the date of the termination of
the Employee.
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5.2
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It
is the desire and the intent of the parties that the provisions of Section
5 shall been forced to the fullest extent possible under the laws and
public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, if any particular portion of Section 5 shall be
adjudicated to be invalid or unenforceable, the invalid or unenforceable
portion of Section 5 shall be deemed amended or deleted, if necessary,
preserving the provision to the fullest extent possible in accordance with
the intent of the parties, thereby rendering the invalid or unenforceable
section to be valid and enforceable, such amendment or deletion to apply
only with respect to the operation of Section 5 in the particular
jurisdiction in which such adjudication is made. Nothing in Section 5
shall reduce or abrogate the Employees obligations under the other
provisions of this Agreement including but not limited to Section 4
hereof.
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ARTICLE 6: MISCELLANEOUS:
6.1
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Except
as otherwise provided in Section 4.4 hereof, for purposes of this
Agreement, the terms "affiliate" or "affiliated" means an entity who
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with Employer or in which
Employer has a 5% or more equity
interest.
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6.2
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For
purpose of this Agreement, notices and all other communications provided
for herein shall be in writing and delivered in person or deposited,
certified or registered, return receipt requested and postage prepaid in
the United States or deposited with an internationally- reputable air
courier with written verification of
receipt:
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If to
Employer, to: Dais Analytic
Corporation at 00000 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxx 00000, to the
attention of the General Counsel, with a copy simultaneously sent by facsimile
to the attention of Chief Executive Officer at 727-375-8485
(facsimile).
If to
Employee, to________[intentionally omitted]_____________________, or at such
other address as either party may from time to time designate by notice
hereunder.
Notices
shall be effective upon delivery in person or, if mailed or deposited with an
internationally reputable air courier on the earlier of the day following
receipt or midnight on the fourth business day following the date of said
mailing or deposit.
6.3
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This
Agreement shall be governed by and construed and enforced, in all respects
in Accordance with the law of the State of Florida without regard to
principles of conflicts of law.
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6.4
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No
failure by either party hereto at any time to give notice of any breach by
the other party of or to require compliance with, any condition or
provision of this Agreement shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time.
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6.5
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It
is a desire and intent of the parties that the terms, provisions,
covenants, and remedies contained in this Agreement shall be enforceable
to the fullest extent permitted by law. If any such term, provision,
covenant, or remedy of this Agreement or the application thereof to any
person, association, or entity or circumstances shall, to any extent, be
construed to be invalid or unenforceable in whole or in part, then such
term, provision, covenant, or remedy shall be construed in a manner so as
to permit its enforceability under the applicable law to the fullest
extent permitted by law. In any case, the remaining provisions of this
Agreement or the application thereof to any person, association, or entity
or circumstances other than those to which they have been held invalid or
unenforceable, shall remain in full force and
effect.
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6.6
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It
is the mutual intention of the parties to have any dispute concerning this
Agreement resolved out of court. Accordingly, the parties agree that any
such dispute shall, as the sole and exclusive remedy, be submitted for
resolution to arbitration in a proper venue in Washington, DC as agreed by
both parties by a single arbitrator pursuant to the rules of the American
Arbitration Association and the arbitration award shall be final and
binding upon the parties and enforceable in any court of competent
jurisdiction. The cost of the arbitration shall be borne equally by the
parties. Notwithstanding the foregoing the parties agree that
Employer, on its own behalf and on behalf of any of the Employer Entities,
shall be entitled to seek a restraining order or injunction in any court
of competent jurisdiction to prevent any breach or the continuation of any
breach of the provisions of Article 4 and/or Article
5.
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Page 10
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6.7
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This
Agreement shall be binding upon and inure to the benefit of Employer, to
the extent herein provided, and any other person, association, or entity
which may hereafter acquire or succeed to all or substantially all of the
business or assets of Employer by any means whether direct or indirect, by
purchase, merger, consolidation, or otherwise. Employee's right and
obligations under this Agreement are personal and such rights, benefits,
and obligations of Employee shall not be voluntarily or involuntarily
assigned, alienated, or transferred, whether by operation of law or
otherwise, without the prior written consent of Employer, other than in
the case of death or incompetence of
Employee.
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6.8
|
This
Agreement supercedes and replaces any previous agreements and discussions
pertaining to the subject matter covered herein. This
Agreement, constitutes the entire agreement of the parties with regard to
the terms of Employee’s employment, termination of employment and
severance benefits, and contains all of the covenants, promises,
representations, warranties, and agreements between the parties with
respect to such matters. Each party to this Agreement acknowledges that no
that no agreement, statement, or promise relating to the employment of
Employee by Employer that is not contained in this Agreement shall be
valid or binding. Any modification of this Agreement will be
effective only if it is in writing and signed by each party whose rights
hereunder are affected thereby, provided that any such modification must
be authorized or approved by the Board of Directors of Employer or, if
delegated by the Board to the Compensation Committee, the Compensation
Committee or its delegate, as
appropriate.
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6.9
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Employee
represents and warrants that the execution, delivery and performance of
this Agreement does not and will not contravene, conflict with or
otherwise violate the terms of any written or oral agreement among
Employee and one or more third
parties.
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6.10
|
The
section headings used herein are for convenience and reference only and
are not intended to define, limit or describe the scope or intent If any
provision of this agreement. When used in this Agreement, the term
“including” shall mean without limitation by reason of enumeration. Words
used in the singular shall include the
plural.
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6.11
|
The
failure of either party to insist, in any one or more instances, upon
strict performance of any of the terms or conditions of this Agreement
shall not be construed as a waiver or a relinquishment of any right
granted hereunder or of the future performance of any such term, covenant
or condition, but the obligations of either party with respect thereto
shall continue in full force and
effect.
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IN
WITNESS WHEREOF, Employer and Employee have duly executed this Agreement in
multiple originals to be effective on the Effective Date.
DAIS
ANALYTIC CORPORATION
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EMPLOYEE
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|||
/s/Xxxxxxx
X. Xxxxxxxx
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/s/Xxxxxxx
X. Xxxxxx
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Xxxxxxx
X. Xxxxxxxx
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Xxxxxxx
X. Xxxxxx
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|||
Chief
Executive Officer
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