EMPLOYMENT AGREEMENT
Exhibit
10.43
This
Employment Agreement (this “Agreement”)
is
made as of July 27, 2005 but shall be deemed executory only until the date
on
which the Executive becomes legally qualified to be an employee of the Company
under all applicable immigration and other laws (see Section 1 hereof, below),
by and between Ulrik Grape (the “Executive”)
and
EnerDel, Inc., a Delaware corporation (the “Company”). References to the Company
shall include any Affiliated Companies, as that term is defined
below.
WHEREAS,
the Executive and the Company each desire to set forth their agreement with
respect to the Executive’s employment with the Company.
NOW
THEREFORE, in consideration of the premises and the mutual covenants herein
of
the parties hereto, the parties hereby agree as follows:
1. |
Employment
Period.
The Company shall employ the Executive as its Chief Executive Officer
for
the period beginning on the date on which the Executive becomes legally
qualified to be an employee of the Company under all applicable
immigration and other laws (the “Commencement
Date”),
and ending on the date such employment is terminated pursuant to Section
5
(the “Employment
Period”).
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2. |
Performance
of Duties.
The Executive shall be responsible for formulation and implementation
of
the business plan and day-to-day operation of the Company. The duties
of
the Executive shall include those commonly associated with such position,
together with such other duties consistent therewith and herewith as
may
be assigned to the Executive by the Company’s Board of Directors. The
Executive shall report to the Company’s Board of Directors. The Executive
shall provide services primarily at the Company’s offices located in Fort
Lauderdale, Florida. The Executive shall perform Executive’s duties
faithfully and will devote his entire business time and attention and
his
best efforts to the duties and services of his position.
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3. |
Compensation
and Benefits.
The following shall apply during the Employment
period:
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3.1
|
Base
Salary.
The Executive’s base salary as of the Commencement Date will be $250,000
per year, payable in accordance with the applicable payroll practices
of
the Company. The Company’s Board of Directors shall, from time to time,
review the Executive’s performance and consider increasing the Executive’s
Base Salary.
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3.2
|
Sign-on
Bonus.
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i.
|
The
Executive will be entitled to receive an equity sign-on bonus on
his first
day of actual employment by the Company on its payroll, consisting
of
immediately vesting, 10 year options to purchase 100,000 shares of
Ener1,
Inc. common stock at an exercise price of $.00 per share. These options
will be issued under the Ener1, Inc. 2002 Employee Stock Participation
Plan, subject to the terms and conditions thereof, with the option
grant
drafted to be consistent with the terms of this Agreement. The Company
represents that the shares underlying the options have been registered
with the United States Securities and Exchange Commission by Ener1,
Inc.
pursuant to a registration statement on Form
S-8.
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ii.
|
In
addition to the equity sign-on bonus, the Executive shall be paid,
upon
the execution and delivery by the Executive of this Agreement to
the
Company, a cash sign-on bonus of $70,000.
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3.3 |
Performance
Bonus.
The Executive shall have the opportunity to earn an annual bonus
of up to
100% of his annual salary. The bonus will be determined by EnerDel’s Board
of Directors based on the performance of the Executive and of
EnerDel.
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3.4
|
Vacation.
The Executive shall be entitled to three weeks of paid vacation leave
per
year during each of the first three years of the Executive’s employment
with the Company, and 4 weeks of paid vacation for each subsequent
year,
the timing of which shall be approved in accordance with the general
policies and procedures of the Company as amended from time to time
for
executives of the Company and its affiliated entities (“Company
Policies”).
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3.5
|
Medical
Insurance.
The Company shall provide medical insurance coverage to the extent
consistent with that provided to other Executives of the Company
and its
Affiliated Companies, and in accordance with Company
Policies.
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3.6
|
Other
Benefits.
The Executive shall have the right to participate in such pension,
retirement savings, bonus, profit sharing and other employee welfare
and
benefit plans, if any, as are made available generally to employees
of the
Company and its Affiliated Companies, in accordance with Company
Policies.
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3.7
|
Withholding.
There shall be deducted from any payments made hereunder any taxes
or
other amounts required to be withheld by any government entity or
taxing
authority having jurisdiction over the
matter.
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3.8
|
Option
Plan.
The Executive will be entitled to the following equity participations:
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2
i.
|
The
Executive shall be granted, pursuant to a separate option plan, effective
on his first day of actual employment with the Company on its payroll
,
options to purchase 1,000,000 shares of Ener1, Inc. common stock,
vesting
25% on each of the first four anniversaries of the date of this Agreement.
Exercise price for these options will be equal to fair market value
on the
date of the option, and the term of the options shall be ten years.
The
Executive’s right to exercise any of the options shall be subject to the
Company’s reporting revenue equal to $1.5 million for calendar 2005 and
$7.0 million for calendar 2006, as confirmed by review or audit by
its
independent registered auditors. If the Company revenue falls short
of the
target(s) for any of the time frames involved by 20% or more, the
Executive shall not be able to exercise any of the options referred
to in
this provision that have vested unless and until the Company revenue
for
subsequent time frames reaches more than 80% of said target revenue.
The
Company may also consider granting to the Executive options to purchase
the Company’s common stock, on terms to be determined by the Company’s
Board of Directors. Based on the Executive’s performance and the
performance of the Company and Ener1, Inc., the Boards of Directors
of
Ener1, Inc. and the Company may, in their separate and independent
discretion and subject to any applicable corporate and legal requirements
and tax and accounting considerations, in lieu of directly granting
options to purchase the Company’s common stock, instead grant to the
Executive the opportunity to exchange some or all of the Executive’s
Ener1, Inc. stock options for options to purchase the Company’s common
stock, on terms and conditions to be established by the Company and
Ener1,
Inc. at the appropriate time.
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ii. |
In
the event of Change of Control of the Company, any unvested options
granted to the Executive shall vest and shall be fully exercisable
immediately. “Change
in Control”
shall be deemed to occur if any Person shall acquire direct or
indirect
beneficial ownership (whether as a result of stock ownership, revocable
or
irrevocable proxies or otherwise) of securities of the Company,
pursuant
to one or more transactions, such that after consummation and as
a result
of such transaction, such Person has direct or indirect beneficial
ownership of 50% or more of the total combined voting power with
respect
to the election of directors of the issued and outstanding securities
of
the Company. “Person”
shall mean any person, corporation, partnership, joint venture
or other
entity or any group (as such term is defined for purposes of Section
13(d)
of the Exchange Act), other than a Parent or Subsidiary, and “beneficial
ownership” shall be determined in accordance with Rule 13d-3 under
the Exchange Act. Notwithstanding the foregoing, for purposes of
this
Agreement, “Change of Control” shall not include any change of control,
actual or implicit, resulting from any Person or Persons gaining
50% or
more of the combined voting power for the Company (or less than
50%, even
though such lesser amount may represent effective voting control)
through
an Initial Public Offering by the Company or other financing conducted
by
or on behalf of the Company.
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3
4. |
Expenses.
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4.1
|
Throughout
the term of this Agreement, the Executive shall be reimbursed in
accordance with Company Policies for reasonable out-of-pocket expenses
incurred by him in the performance of his services hereunder.
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4.2
|
In
addition, the Company shall reimburse the Executive for up to $10,000
in
personal travel expenses incurred by the Executive during his first
year
of actual employment with the Company.
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4.3
|
In
addition, the Company will reimburse the Executive for the reasonable,
documented costs of the Executive’s relocation to the Ft. Lauderdale,
Florida area. Such costs shall include the cost of moving his (and
his
family’s) personal property from California and the cost of airfare for
himself and his family from California.
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4.4
|
In
addition, the Company shall reimburse the Executive for automobile
rental
and hotel expenses incurred by the Executive during his first year
of
actual employment with the Company (or until his relocation to Ft.
Lauderdale, Florida is completed, whichever comes first).
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4.5
|
The
expenses referenced in subsections 4.1 through 4.4, inclusive, shall
be
(i) reimbursed by the Company to the Executive as and when incurred
by the
Executive, and promptly after receipt by the Company of written
documentation which substantiates each reimbursement request, and
(ii)
grossed-up to offset the income tax liability, if any, which Executive
incurs in connection with the receipt of such reimbursed amounts.
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5. |
Termination.
The Executive and the Company shall have the right to terminate this
Agreement as provided in this Section 5.
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5.1
|
Voluntary
Resignation.
The Executive may terminate his employment hereunder at any time
upon 30
days’ prior written notice.
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5.2 |
Termination
by the Company without Cause or Termination by the Executive with Good
Reason.
The Company shall have the right to terminate the Executive’s employment
hereunder without Cause (as Cause is defined below in Section 5.3)
upon 30
days’ written notice to the Executive. The Executive shall have the right
to terminate his employment hereunder with Good Reason as (defined
below)
upon 30 days’ written notice to the Company. “Good Reason” shall mean the
occurrence of any of the following
events:
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i.
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(a)
the assignment to the Executive of responsibilities which are, or
to a
position with the Company which is substantially different from,
Executive’s responsibilities or position as set forth in this Agreement
(but not including promotions of the Executive), and which have an
adverse
effect upon the Executive; or (b) the reduction of the Executive’s
authority from that set forth herein or otherwise customary for a
chief
executive officer of a corporation.
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4
ii. |
a
reduction by the Company in the Executive’s Base Salary;
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iii.
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the
Company’s material breach of any provision of this Agreement, provided
that
if such breach is curable the Executive has given the Company written
notice of such breach, and the Company has failed to cure such breach
within 30 days after such notice;
or
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iv.
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the
Company shall fail to maintain directors and officers liability coverage.
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5.3
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Termination
for Cause.
The company shall have the right to terminate the Executive’s employment
hereunder at any time upon written notice on account of the existence
or
occurrence of one or more of the following events
(“Cause”):
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i. |
the
Executive discloses Confidential Information in violation of Section
7 or
engages in competition in violation of Section 8 of this
Agreement;
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ii. |
the
Executive materially breaches any other provision of this Agreement,
and
fails to cure such breach within 30 days after written notice thereof
from
the Company;
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iii. |
the
Executive is convicted of a felony; or indicted for any crime involving
moral turpitude;
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iv. |
the
Executive’s use of narcotics, alcohol or illicit drugs has a detrimental
effect on the performance of his employment responsibilities, as
determined in the reasonable judgment of the Board of Directors; or
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v. |
any
failure of the Executive (unless solely and directly caused by, or
materially contributed to by, the wrongful action or any inaction of
the
Company) to maintain his employment eligibility under all applicable
employment laws, including without limitation, the laws pertaining
to
employment of foreign nationals by U.S. companies, or failure of the
Executive qualify under such laws for employment by the Company on
or
before November 15, 2005.
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5.4
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Disability.
The Company may terminate the Executive’s employment hereunder upon 30
days’ written notice if the employee is unable to perform his duties, in
any material respect, whether by reason of a physical or mental injury,
physical incapacity or disability, physical or mental illness or
otherwise, for a period of more than 180 consecutive days, exclusive
of
vacations, holidays, and leaves of absence approved in writing by
the
Company, and which, in the written opinion of a practicing physician,
resident in Florida of recognized ability and reputation selected
by the
Company, who has examined the Executive after such 180 days, reasonably
determines that the Executive is unable to perform his duties hereunder
as
an Executive of the Company.
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5
5.5 |
Death.
The Executive’s employment hereunder automatically shall be terminated by
reason of his death.
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6. |
Rights
and Obligations of the Parties Upon Early Termination.
The Company and the Executive shall have the following rights and
obligations upon early termination of the Executive’s employment hereunder
pursuant to Section 5. Nothing herein shall be construed to be in
derogation of any other benefits provided by the Company pursuant to
Company Policies or by law.
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6.1 |
Termination
for Cause.
The Company shall have no obligation to make payments to the Executive
in
accordance with Section 3 for periods after the date on which the
Executive’s employment with the Company is terminated pursuant to Section
5.1 (Voluntary Resignation), Section 5.3 (Termination for Cause), Section
5.4 (Disability) or Section 5.5 (Death), except for payments due and
owing
as of such date.
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6.2 |
Termination
Without Cause or Termination with Good Reason.
If
the Company terminates the Executive’s employment hereunder without Cause,
if the Executive terminates the Executive’s employment hereunder with Good
Reason pursuant to Section 5.2, the Company shall pay the Executive
any
compensation and benefits the Company owes to the Executive through
the
effective date of termination and shall continue to make salary payments
only (subject to required withholding and other applicable taxes) to
the
Executive in accordance with his Base Salary, on the Company’s regularly
scheduled payroll dates, for an additional period of six (6) months
following the effective date of
termination.
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7. |
Confidential
Information.
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7.1 |
“Confidential
Information”
shall mean all trade secrets and other confidential and proprietary
information of the Company or other entities under common control with,
controlled by or controlling the Company (hereinafter referred to as
an
“Affiliated
Company”
or “Affiliated
Companies”),
including but not limited to: (i) inventions (whether or not patented
or
patentable), writings (whether or not copyrighted or copyrightable),
designs, systems, processes, discoveries, works of authorship,
improvements or ideas relating to any products, software, hardware,
apparatus, processes, or uses thereof produced or being developed by
the
Company (“Company
Products”)
or the technology or know-how of the Company or any Affiliated Company;
(ii) the Company’s or any Affiliated Company’s proprietary software,
consisting of computer programs in source or object code and all related
documentation and modifications thereto and including programs and
documentation and training and service materials, including all upgrades,
improvements and modifications thereto and including programs and
documentation in incomplete states of design or research and development;
(iii) the subject matter of the Company’s or any Affiliated Company’s
patents, design patents, copyrights, trade secrets, trademarks, service
marks, trade names materials, operating instructions and other
confidential industrial property, including matters in the process
of
design or research and development; (iv) the Company’s or any Affiliated
Company’s business operations and practices, including marketing,
research, service and product development plans and strategies which
have
been or are being considered, processes product formulations and designs,
and sales or distribution methods and techniques, other than any of
the
foregoing which are published by the Company or otherwise made available
by the Company to the industry; (v) the Company’s or any Affiliated
Company’s pricing information, pricing methods, bidding practices, pricing
structures, cost analysis reports, overhead reports, profit margins
and
supplier and vendor arrangements; (vi) information of the Company or
any
Affiliated Company relating to persons, firms, partnerships, corporations
or other entities which are or have been customers of the Company or
any
Affiliated Company including identification of or lists of past, existing
or potential customers and their business requirements and the method
services can be individually tailored to the needs of particular customers
together with the programs devised for customers and the materials
embodying them; (vii) account information relating to customers, including
payment history, account balances and receivables; and (viii) financial
information relating to the Company or any Affiliated
Company.
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6
7.2 |
Company
Proprietary Rights.
All Confidential Information created by the Executive (alone or with
others) during the Employment Period, regardless of whether or not
such
information was created during the Company’s customary business hours or
at the Company’s place of business, shall be and remain the sole property
of the Company free and clear of any rights or claims that may be made
by
the Executive or any other entity. The Executive shall not file any
copyright or patent applications covering or claiming any Confidential
Information except with the prior written consent of the Company. Upon
termination of the Executive’s employment, or at any time upon written
request of the Company, the Executive shall deliver to the Company
all
Confidential Information, whether embodied in Written Materials,
substances, models, mechanisms or the like, including but not limited
to,
customer/client lists, documents, research data, reports, plans,
proposals, marketing and sales plans, equipment, software, discs,
illustrations, samples, and manuals or otherwise containing or relating
to
the Confidential Information in his possession or control. “Written
Material” means letters, memoranda, reports, notes, notebooks, books of
account, data, drawings, prints, plans, specifications, formulae, and
all
other documents or writings, and all copies thereof, including those
stored in forms of electronic media. During the Employment Period and
for
a period of one (1) year thereafter, at the request of the Company
and
without expense to the Executive but also without additional
consideration, the Executive shall execute such documents and perform
such
other reasonable acts as the Company deems necessary to vest in the
Company or its designee title to Confidential Information, or to obtain,
with respect to Confidential Information, copyrights and/or patents
in any
jurisdiction or jurisdictions, including, without limitation, any
application for copyrights or patents, any copyrights or patents issued
pursuant thereto, and any assignment of any of the
foregoing.
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7
7.3 |
Non-Disclosure.
The Executive shall, throughout the term of this Agreement and for
a
period of three (3) years thereafter: (i) hold all Confidential
Information in the strict confidence and not disclose any Confidential
Information to any third party except to, or with the prior written
consent of, the person or persons designated from time to time by the
Board of Directors other than the Executive (an “Authorized
Representative of the Company”),
or as required by law or valid order of a court or other governmental
authority; provided,
however,
that prior to making any such disclosure other than with the consent
of
the Company the Executive shall first notify the Company of the
Executive’s intention to disclose Confidential Information pursuant to
this exception as promptly as is practical under the circumstances
in
order to enable the Company to seek a protective order or injunction
against the making of such disclosure; (ii) not make any use of any
Confidential Information except such use as is required in the due
performance of the Executive’s duties hereunder; (iii) comply with all
non-disclosure and confidentiality agreements to which the Company
is a
party; and (iv) take all reasonable precautions to assure that the
Confidential Information is properly protected and kept from unauthorized
persons.
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7.4 |
Exclusions.
The foregoing shall not apply if (i) the Confidential Information is
known
to the Executive on the date of this Agreement, (ii) the Confidential
Information to be disclosed is or has become public knowledge through
no
fault of the Executive where the disclosing person was not, to the
best of
the Executive’s knowledge, under an obligation not to disclose such
information, (iii) the Confidential Information to be disclosed was
known
to the Executive prior to its disclosure to the Executive; or (iv)
the
Confidential Information is to be disclosed as reasonably required
to
perform the Executive’s duties under this
Agreement.
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8. |
Non-Competition.
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8.1 |
The
Executive agrees that during the Employment Period, and for a period
of
six (6) months following any termination other than a termination by
the
Company without Cause or a termination by the Executive for Good Reason
under Section 5.2, (the “Non-Competition
Period”),
the Executive shall not directly or indirectly, alone or as a partner,
officer, director, employee, consultant, agent, independent contractor,
member, stockholder or other equity owner of any person or entity,
engage
in any business activity which is in competition with the business
of the
Company, including without limitation any business that develops, seeks
to
develop, markets or sells any product that is similar to or competitive
with any product that the Company is, to the best knowledge of the
Executive, seeking to develop, market or sell, or that the Company
is then
engaged in developing, marketing or selling. For purposes hereof, the
“business”
of the Company shall mean the actual business of the Company as of
the
date the Executive leaves the employment of the Company (which, as
of the
date hereof, is the development, marketing and sale of lithium batteries
and their components). Notwithstanding any provision of this subsection
8.1 to the contrary, Executive may, without violating the provisions
of
Section 8 of this Agreement, hold not more than two percent (2%) of
the
issued and outstanding stock of any company which competes with the
Company that is also traded on a public exchange, provided that he
has no
other association with such company.
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8
8.2 |
The
restrictions set forth in Section 8.1 are a material part of the bargain
between the parties. The Executive acknowledges and agrees that the
limitations contained in Section 8.1 with respect to duration and scope
of
activity are reasonable. If, however, the geographic area, duration
or
scope of activity of any restriction contained in Section 8 shall be
held
to be unenforceable, such restriction shall be modified to the extent
necessary to render it legal, valid and enforceable to the fullest
extent
permissible by law.
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9.
|
Non-solicitation
of Consultants and Executives.
During the Employment Period and for a period of six (6) months following
any termination of the Executive hereunder, the Executive shall not,
on
his own behalf or on behalf of any other individual, corporation,
partnership, limited liability company or other entity, employ, solicit
for employment, or otherwise assist in the solicitation for employment,
including any recommendation with respect to employment, of any person
who
is a consultant or employee of the Company at the time of any such
solicitation.
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10.
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Representations
and Warranties.
The Executive represents and warrants as of the date of this Agreement
and
as of the Commencement Date that (i) the Executive does not own or
have
any interest or right in any inventions or discoveries developed,
made or
conceived prior to the Executive’s employment by the Company and relating
to Company Products or any Confidential Information that has not
been
assigned, sold and granted by the Executive to the Company; (ii)
the
Executive does not have any obligations to prior employers or others
relating to Confidential Information related to the business of the
Company or to any inventions or discoveries; and (iii) the Executive
is
not bound by any restriction, agreement, judgment or other limitation
limiting the Executive’s ability to enter into this Agreement or to
carryout its terms.
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11.
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Remedies.
If the Executive breaches, or threatens to commit a breach of any
of the
provisions contained in Sections 7, 8, or 9 (the “Restrictive
Covenants”),
the Company shall have the following rights and remedies, each of
which
shall be enforceable, and each of which is in addition to, and not
in lieu
of, any other rights and remedies available to the Company at law
or in
equity:
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11.1
|
The
Executive shall account for and pay over to the Company all compensation,
profits and other benefits which inure, directly or indirectly, to
the
Executive, any of his affiliates, or any of his family members, or
any
business of which the Executive or any of his relatives, spouse or
other
family members is an employee, director, officer, partner, shareholder
or
other equity owner resulting from any action or transaction constituting
a
breach of any of the Restrictive
Covenants.
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9
11.2
|
In
the event of a violation or threatened violation of any of the Restrictive
Covenants, the Company is likely to suffer irreparable harm for which
monetary damages will not be adequate. Having no adequate remedy
at law,
the Company shall therefore be entitled to seek to enforce each such
provision by temporary or permanent injunction without prejudice
to any
other rights and remedies that may be available at law or in equity,
except as may be required by law. In the event that the Company prevails
in any such action, the Executive shall be responsible to the Company
for
any legal fees and costs incurred by the Company to enforce this
or any
other provisions of this Agreement.
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11.3
|
If
any of the Restrictive Covenants, or any part thereof, are held to
be
invalid or unenforceable, the same shall not affect the remainder
of the
covenant or covenants, which shall be given full effect, without
regard to
the invalid or unenforceable portions. Without limiting the generality
of
the foregoing, if any of the Restrictive Covenants, or any part thereof,
are held to be unenforceable because of the duration of such provision
or
the area covered thereby, the parties hereto agree that the court
making
such determination shall have the power to reduce the duration and/or
area
of such provision and, in its reduced form, such provision shall
then be
enforceable.
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13. |
Notices.
Any notices and other communications hereunder shall be in writing
and
addressed to the parties as follows (with notice deemed given as
indicated): (i) by personal delivery upon signed acknowledgment when
delivered personally; (ii) by certified or registered mail, postage
prepaid, return receipt requested, 5 business days after mailing; (iii)
by
nationally recognized overnight courier service upon confirmation of
receipt or (iv) by telecopy transmission upon electronic or written
confirmation of receipt:
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If
to the
Executive, to:
Ulrik
Grape
00
Xxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
With
a
copy
to:
Xxxxxxx
X. Xxxxxxxx
000
Xxxxx
Xxxxxx, Xxxxx 000
Xxx
Xxxxxxxxx, XX 00000
Telephone:
000-000-0000
Facsimile:
000-000-0000
10
If
to the
Company,
to:
EnerDel,
Inc.
000
X.
Xxxxxxx Xxxxx Xxxx, Xxxxx
000
Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn:
Xxxxxx Xxxxxxx
Telephone:
000-000-0000
Facsimile:
000-000-0000
Either
party may change its contact address for notices and other communications by
means of notice to the other party given in accordance with this Section
13.
14.
|
Governing
Law.
This Agreement shall be construed, interpreted, and enforced according
to
the laws of the State of Florida without regard to the principles
of
conflict of laws.
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15.
|
Severability.
If any of the provisions of this Agreement shall be held invalid,
the
remainder of this Agreement shall not be affected thereby, and shall
remain in full force and effect.
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16.
|
Successors
and Assigns.
The Company may assign its rights under this Agreement to any entity
that
assumes the Company’s obligations hereunder in connection with any sale or
transfer of all or a substantial portion of the Company’s assets to such
entity through merger, consolidation, or
otherwise.
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17.
|
Modifications
in Writing; Waiver.
No modification, alteration, or addition to this Agreement shall
be valid
or effective unless in writing signed by the party against whom
enforcement thereof is sought. No waiver of any breach of any of
the terms
and conditions contained in this Agreement shall be construed to
be a
waiver of any succeeding breach of such term or condition, or of
any other
term or condition.
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18.
|
Arbitration.
Any controversy or claim arising out of or relating to this Agreement
or
the breach thereof, or the Executive’s employment or the termination
thereof, shall be settled in the Fort Lauderdale, Florida area, by
arbitration before a sole arbitrator in accordance with the national
Rules
for the Resolution of Employment Disputes of the American Arbitration
Association. The decision of the arbitrator shall be final and binding
on
the parties, and judgment on the award rendered by the arbitrators
shall
be entered in any court having jurisdiction thereof. The arbitrator
shall
be empowered to enter an equitable decree mandating specific enforcement
of the terms of this Agreement. The state and federal courts located
in
the State of Florida shall have personal jurisdiction over the parties
for
any action or proceeding relating to the enforcement of an award
pursuant
to any arbitration in which the parties are
participants.
|
19.
|
No
Waiver of Attorney-Client Privilege or Ethical Duty of
Confidentiality.
The Company does not hereby waive the attorney-client privilege with
respect to any information provided to or communication with the
Executive
in any respect.
|
20.
|
Amendment.
This Agreement may only be amended or canceled by the mutual, written
agreement of the parties. No person, other than the parties hereto,
shall
have any rights under or interest in this Agreement or the subject
matter
hereof. The parties hereby agree that no oral conversations shall
be
deemed to be a modification of this Agreement and neither party shall
assert the same.
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21.
|
Entire
Agreement.
This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof. This Agreement supersedes any
prior
or contemporaneous agreement between the parties with respect to
the
subject matter thereof. No other agreements, representations or
understandings (whether oral or written and whether express or implied)
which are not expressly set forth in this Agreement have been made
or
entered into by either party with respect to the subject matter
hereof.
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22.
|
Survival.
The rights, benefits, duties and obligations of the parties hereunder,
including, without limitation, the rights, benefits, duties and
obligations contained in Section 7, 8, 9, 11 and 12 herein, and the
representations and warranties made in Section 10 herein, shall survive
the term and/or termination of this
Agreement.
|
[This
space intentionally blank. Signature page follows.]
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IN
WITNESS WHEREOF, the Executive and the Company have executed this Agreement,
as
of the date first written above.
ENERDEL, INC. | |||
By: | /s/ | ||
Name: |
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Title: |
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|
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By: | EXECUTIVE | ||
/s/ | |||
Name: Ulrik Grape |
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