EXHIBIT 6.12
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered into effective
as of the 1st day of October, 2002 (the "Effective Date") by and between Xxxxxx
Capital Corp., a Nevada corporation with its principal place of business at 00
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Company"), and
Xxxxxx X. Xxxxxxxx, an individual residing in Holliston, Massachusetts
("Xxxxxxxx").
WHEREAS, the Company desires to employ Xxxxxxxx in the conduct of its
business; and
WHEREAS, Xxxxxxxx desires to be so employed;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Employment. The Company agrees to employ Xxxxxxxx and Xxxxxxxx accepts
such employment on the terms and conditions of this Agreement.
2. Term. Xxxxxxxx'x employment shall commence on the Effective Date and
continue until terminated as herein provided (the "Term").
3. Capacity and Extent of Service.
(a) From the Effective Date through the end of the Term, Xxxxxxxx shall
serve in such capacities and shall perform such duties and tasks as the
Company's Board of Directors (the "Board") may assign.
(b) During his employment hereunder, Xxxxxxxx shall devote his best
efforts, business judgment, skill and knowledge, on an as needed basis, to the
performance of his duties and responsibilities hereunder. The Company
acknowledges that during the Term, Xxxxxxxx shall continue to serve as the
President of and a principal of Xxxxxx X. Xxxxxxxx & Company, P.C.
(c) Xxxxxxxx'x "Place of Employment" shall be at the principal executive
offices of the Company located at 00 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxxxxxxx. At the direction of the Board, Xxxxxxxx may from time to time be
required to travel to various domestic and foreign locations.
4. Compensation and Benefits.
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(a) Base Compensation. Beginning on the Effective Date, the Company shall
pay Xxxxxxxx in regular periodic installments a base salary of $1,170.00 per
month (the "Base Salary"), subject to applicable withholdings, as compensation
for services performed under and during the Term of this Agreement. The Board
will periodically review Xxxxxxxx'x Base Salary and may adjust said Base Salary
from time to time in its discretion.
(b) Fringe Benefits.
(i) Benefit Plans. Xxxxxxxx shall be entitled to participate in any
employee benefit plans from time to time in effect for executive officers of the
Company during the Term.
(ii) Vacation. Xxxxxxxx shall be entitled to paid holidays in
accordance with the established policies of the Company. Vacation shall accrue
at the rate of 1.67 days per month, in arrears (which equates to 20 days of
vacation per year, assuming continued employment). At the start of each calendar
year during the Term, if Xxxxxxxx'x vacation balance is greater than 5 vacation
days, such vacation balance will be reduced to 5 vacation days.
(c) Business Expenses. The Company shall promptly reimburse Xxxxxxxx for
all reasonable travel and other business expenses he incurs in performing his
duties and responsibilities hereunder, subject to such reasonable requirements
with respect to substantiation and documentation as the Company or its auditors
specify from time to time.
5. Termination and Termination Benefits.
Xxxxxxxx'x employment hereunder shall terminate under the following
circumstances:
(a) Death. If Xxxxxxxx dies during his employment under this Agreement,
Xxxxxxxx'x employment shall terminate on the date of his death; provided,
however, that the Company shall pay all accrued benefits as provided for in
Section 4(b) hereof to Xxxxxxxx'x designated beneficiary (or to his estate, if
he fails to make such designation) as of the date of his death.
(b) Disability. If Xxxxxxxx becomes disabled during the Term through any
illness, injury, accident or condition of either a physical or psychological
nature, Xxxxxxxx shall continue to receive his full salary and benefits under
Sections 4(a) and 4(b) of this Agreement until the three (3) months from the
date of disability. Xxxxxxxx shall have a disability if he has been examined and
declared to be mentally disabled or of diminished capacity by by a licensed
medical doctor or psychiatrist designated by the Company or if he has been
examined and declared to be physically disabled by a licensed medical doctor
designated by the Company Except for the guarantee of not less than three (3)
months of full salary and benefits, all other benefits and rights due Xxxxxxxx
in the event of disability shall be per the Company's then applicable policies
and procedures.
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(c) Xxxxxxxx'x Resignation. Xxxxxxxx may resign from the Company at any
time upon written notice to the Company. From and after the effective date of
Xxxxxxxx'x termination of his employment hereunder, the Company shall have no
further liability to Xxxxxxxx for salary or other compensation (or benefits,
except as provided pursuant to the terms of any compensation or benefit plan of
the Company in which Xxxxxxxx is a participant).
(d) Termination by the Company for Cause. The Board may terminate
Xxxxxxxx'x employment under this Agreement at any time with Cause (as defined
below), on written notice to Xxxxxxxx setting forth in reasonable detail the
nature of such Cause. The Board shall vote separately on the issue of Cause and
on the issue of termination, but such separate votes may be taken at the same
meeting. From and after the effective date of termination of employment by the
Company hereunder, the Company shall have no further liability to Xxxxxxxx for
salary or other compensation (or benefits, except as provided pursuant to the
terms of any compensation or benefit plan of the Company in which Xxxxxxxx is a
participant). The following shall constitute "Cause" for such termination:
(i) Conviction of, or plea of no contest by, Xxxxxxxx in a court of
competent jurisdiction of any felony criminal offense;
(ii) Xxxxxxxx'x commission of an act of fraud, dishonesty or theft
upon the the Company that is materially detrimental to the Company; and
(iii) Willful refusal by Xxxxxxxx to perform the duties reasonably
assigned to him by the Board (which duties are consistent with Xxxxxxxx'x
position with the Company), which failure or breach continues for more than 30
days after written notice given to Xxxxxxxx pursuant to a vote of at least
two-thirds of all of the members of the Board, such vote to set forth in
reasonable detail the nature of such refusal.
(e) Termination by the Company without Cause. The Board may terminate
Xxxxxxxx'x employment under this Agreement at any time, for any reason or no
reason, without Cause, on written notice to Xxxxxxxx. From and after the
effective date of termination of employment by the Company hereunder, the
Company shall have no further liability to Xxxxxxxx for salary or other
compensation (or benefits, except as provided pursuant to the terms of any
compensation or benefit plan of the Company in which Xxxxxxxx is a participant).
Notwithstanding anything to the contrary contained herein, on the effective date
of Xxxxxxxx'x termination without Cause, Xxxxxxxx'x shares of the Company's
Common Stock granted pursuant to all non-qualified stock option grant agreements
subject to time-based vesting shall immediately vest in full and become
immediately exercisable.
6. Non-Competition and Non-Solicitation.
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(a) Non-Competition. During (i) the Term of Xxxxxxxx'x employment under
this Agreement, and (ii) for a period of twelve (12) months following the date
of termination of Xxxxxxxx'x employment for any reason, Xxxxxxxx shall not,
directly or indirectly, whether as owner, partner, shareholder (other than as
the owner of less than 1% of the outstanding capital stock of a publicly-traded
corporation), consultant, agent, employee, co-venturer or otherwise, provide
services to any person or entity in the United States or any other country in
which the Company does business in the areas of developing, marketing, and
distributing consummable products in the beverage and oral care and the animal
breath and alcohol abatement markets.
(b) Non-Solicitation. For a period of twelve (12) months after the
termination of Xxxxxxxx'x employment with the Company for any reason, Xxxxxxxx
will not, directly or indirectly:
(i) Solicit any clients or customers of the Company for any business
that is substantially similar to or competitive with the business or planned
business of the Company, as of the date of Xxxxxxxx'x termination of employment
with the Company;
(ii) Employ, or cause any company or business that is controlled by
Xxxxxxxx to employ, in any business that is substantially similar to or
competitive with the business or planned business of the Company as of
Xxxxxxxx'x termination date, any person who is employed by the Company at the
time of such termination; or
(iii) Induce, solicit, recruit or encourage any employee of the
Company to terminate his or her employment with the Company or to accept
employment elsewhere.
(c) Reasonable Scope; Severability. Xxxxxxxx acknowledges and agrees that
the geographic, length of term, and types of activities restrictions contained
in Section 6(a) and 6(b) are reasonable and necessary to protect the legitimate
business interests of the Company. If a court of competent jurisdiction
determines that any of the provisions of this Section 6 is so broad as to be
unenforceable, then such provision shall be deemed to be reduced in scope or
length, as the case may be, to the extent required to make such provision
enforceable.
(d) Equitable Remedy. Xxxxxxxx acknowledges and agrees that a remedy at
law for any breach or threatened breach of the provisions of this Section 6
would be inadequate and, therefore, agrees that the Company shall be entitled to
injunctive relief in addition to any other available rights and remedies in
cases of any such breach or threatened breach; provided, however, that nothing
contained herein shall be construed as prohibiting the Company from pursuing any
other rights and remedies available for any such breach or threatened breach.
7. Withholding. The Company may withhold from any payments due Xxxxxxxx
under this Agreement any tax or other amounts required to be withheld by the
Company under applicable law.
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8. Notices. Any notices, requests, demands and other communications under
this Agreement shall be sufficient if in writing and delivered in person or sent
by registered or certified mail, postage paid, by overnight delivery, signature
required, or by facsimile to Xxxxxxxx at the last address Xxxxxxxx has filed in
writing with the Company or, in the case of the Company, at its main office,
attention of each member of the Board.
9. Entire Agreement. This Agreement, the Non-Qualified Option and
Xxxxxxxx'x Employee Non-Disclosure and Developments Agreement dated effective as
of October 1, 2002, attached hereto constitute the entire agreement between
Xxxxxxxx and the Company with respect to Xxxxxxxx'x employment with the Company.
10. Binding Effect; Non-assignability. This Agreement is binding upon and
inures to the benefit of the Company and its successors. Xxxxxxxx may not assign
or pledge any rights arising hereunder during his lifetime. This Agreement shall
inure to the benefit of and be enforceable by Xxxxxxxx'x personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
11. Amendment. This Agreement may be amended or modified only by a written
instrument signed by Xxxxxxxx and by a duly authorized representative of the
Company.
12. Enforceability. If a court of competent jurisdiction shall declare
illegal or unenforceable any portion or provision of this Agreement, then the
remainder of this Agreement, or the application of such portion or provision in
circumstances other than those as to which it is so declared illegal or
unenforceable, shall not be affected thereby, and each portion and provision of
this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
13. Applicable Law. This Agreement shall be construed and enforced in all
respects in accordance with the laws of the Commonwealth of Massachusetts
(without consideration of the conflict of laws principles of Massachusetts).
14. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but which together shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument on
behalf of the Company by its duly authorized officer, and by Xxxxxxxx, as of the
date first above written.
XXXXXX CAPITAL CORP.
By:_____________________________
Name:___________________________
Title:__________________________
________________________________
Xxxxxx X. Xxxxxxxx
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