EMPLOYMENT AGREEMENT
EXHIBIT
10.2
NP Capital Corp Logo"/>THIS EMPLOYMENT AGREEMENT
("Agreement") is made and entered into as of the 6th day of March, 2008,
between Xxxxx Xxxx ("Executive") and NP Capital Corp., a Delaware corporation
(the "Company").
WHEREAS, the Company desires
to employ Executive and Executive desires to be employed by the Company upon the
terms and conditions set forth herein.
NOW, THEREFORE, in
consideration of the promises and mutual agreements hereafter set forth, and
upon the terms and conditions contained in this Agreement, Executive and the
Company hereby agree as follows:
1. Certain
Definitions.
"Business of the Company"
shall at any time mean any line of business then engaged in, or planned to be
engaged in by the Company or any of its affiliates and
subsidiaries.
"Common Stock" shall mean the
common stock of the Company.
"Competing Enterprise" shall
at any time mean any person, firm, corporation or other individual or entity
that is engaged, directly or indirectly, wholly or in part, in any line of
business then engaged in, or then planned to be engaged in, by the Company or
any of its affiliates and subsidiaries.
"Corporate Transaction" shall
mean (A) any merger or consolidation of the Company with another entity, whether
or not the Company is the continuing or surviving entity, in which fifty-one
percent (51%) or more of the Company's voting capital stock is transferred to
holders different from persons or their affiliates who held the stock
immediately prior to such transaction or (B) any sale of all or substantially
all of the Company's assets to another entity or person of which fifty-one
percent (51%) or more of the capital stock is held by holders different from
persons or their affiliates who hold voting capital stock of the
Company.
All other
capitalized terms used herein are defined in other provisions of this
Agreement.
2. Duties.
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2.1
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Capacity.
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(a) Executive
shall serve as VP of Corporate Communications of the Company reporting to the
Board of Directors and shall perform such customary, appropriate and reasonable
executive duties as are usually performed by a Vice President of Communications
or as may be delegated to him from time to time by the CEO.and or the Board of
Directors Executive shall principally perform his duties hereunder at the
executive offices of the Company in Jacksonville, Florida on a part-time
basis. Executive shall serve in the same employee position set forth
in this Section 2.1 to the extent set forth in this Section 2.1 of any successor
entity or holding company resulting from a reorganization of the Company other
than a Corporate Transaction. Such obligation does not apply to
Executive’s status as a Director of the Company.
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3. Cash Compensation and
Benefits.
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3.1
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Salary.
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Executive
shall be paid an annual base salary of One Hundred Twenty Thousand Dollars
($120,000.00) ("Base Compensation"), payable in accordance with the Company's
general payroll practices commencing January 1, 2008 (the "Effective Date. Such
base salary shall be subject to increase from time to time in the sole
discretion of the CEO and Board of Directors, or if established the Compensation
Committee thereof) based on Executive's performance and that of the Company.
However, the Executives annual base salary shall increase to One Hundred Fifty
Thousand Dollars ($150,000) upon receipt by the Company of One Million Dollars
($1,000,000) from the sale of stock beginning December 1, 2007.
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3.2
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Annual
Bonus.
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Commencing
with the Company's 2008 fiscal year and for each fiscal year of the Company
thereafter during the Term, the Executive shall be eligible to receive, in
addition to his Base Compensation, an annual bonus, to be determined and awarded
in the sole discretion of the Board (or compensation committee thereof), payable
within sixty (60) days of the end of each such fiscal year (the "Annual Bonus").
The schedule as approved by the Board of Directors and the CEO for 2008 is
attached as Exhibit B
3.3 Benefits.
In
addition to the Base Compensation and any Annual Bonus, Executive shall further
be entitled to participate in any employee benefits programs offered generally
from time to time to senior management employees of the Company to the extent
Executive qualifies for participation under such programs
3.4 Business Expenses.
The
Company shall pay the reasonable and necessary business expenses incurred by
Executive in performing his duties hereunder in accordance with such policies
regarding employee expenses generally as the Company may have in effect from
time to time.
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3.5 Vacation and
Holidays.
Executive
shall be entitled to fully paid vacation time of eight (8) weeks per calendar
year. In addition, Executive shall be entitled to all holidays
provided under the Company's regular holiday schedule.
3.6 Severance
Compensation.
(a) If
Executive's employment with the Company is terminated by the Company without
Cause at any time prior to January 1, 2013, Executive shall receive from the
Company severance pay in an amount equal to the greater of his then-current Base
Compensation in effect at the time of such termination through either December
31, 2012 or eighteen (18) months from the date of notice, whichever is greater,
in a lump sum payable no later than the termination date. and (ii) all unpaid
benefits such as accrued vacation, and (iii) all outstanding expenses, (iv) any
declared but unpaid Annual Bonus, and any and all unvested options or stock
shall become fully vested. If Executive's employment with the Company
is terminated by the Company by virtue of the expiration of this Agreement on
December 31, 2012, Executive shall be entitled to continue to receive from the
Company severance pay in an amount equal to the greater of his then-current Base
Compensation in effect at the time of such termination through December 31, 2013
in accordance with the Company's general payroll practices; and (ii) any
declared but unpaid Annual Bonus. In the event of a Corporate Transaction, the
amount of severance pay will be equal to his then current Base Compensation for
twenty four (24) months plus any annual bonus due plus all PTO time in a lump
sum payable no later than the closing date of the Corporate Transaction.
Additionally, the Company will continue to pay the premiums for Executive’s
health benefits and life insurance for twenty four months.
(b) During
any period in which Executive is receiving severance compensation pursuant to
subsection (a) of this Section 3.6, the Company shall use reasonable efforts to
obtain reasonably and to pay for comparable medical, life and disability
insurance and other benefits on the same terms and conditions and to the same
extent as theretofore provided by the Company to Executive prior to the
effective date of the termination of his employment.
3.7 Compensation Upon a
Corporate Transaction.
If
Executive is terminated without Cause (whether as an employee or as a
consultant) within a twelve (12) month period following the consummation of a
Corporate Transaction (i) Executive's right to receive any earned but unpaid
Annual Bonus shall immediately vest, but not less than a pro rata amount of the
immediately preceding year's Annual Bonus if no Annual Bonus shall have been
earned for the then current year, (ii) the Company or its successor in interest
shall use reasonable efforts to obtain reasonably comparable medical, life and
disability insurance and other benefits on the same terms and conditions and to
the same extent as immediately theretofore provided by the Company to Executive
prior to the consummation of the Corporate Transaction for a period of two (2)
years following such termination and (iii) all severance compensation provided
for in Section 3.6 will be due and payable at time of termination.
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3.8 Coverage
by D&O Insurance
It is the
intent of the Company to purchase Directors and Officers Liability insurance
policy, and the Executive will be covered under this polity when it becomes
available and the Executive will be indemnified by NP Capital Corp for all
activities carried out as an employee and / or agent and/or consultant of NP
Capital Corp and / or its subsidiaries.
3.9 Stock
Options
Executive
will be eligible for the NP Capital Corp Executive Team Stock Option and
Incentive plan as approved by the Board of Directors. The plan for 2008 is
attached hereto as Exhibit A of this Agreement..
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a.
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Options
are redeemable up to 90 days following the later of termination or the end
of the severance period
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b.
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Any
unvested options automatically vest and are transferred into shares of NP
Capital Corp. in the event that there is a change in control (sale or
otherwise of more than 51% of the shares or assets of the Company) of NP
Capital Corp and/or inventory assets, the technology assets or
manufacturing lines or power transaction functions of NP Capital
Corp
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4. Conversion to Consulting
Agreement
The
Executive may select to become a consultant to the Company rather than be an
employee. The Executive must provide the Company with a 60 day notice after
which the Executive will become a consultant to the Company for the remaining
term as stated in Item 7 of this Agreement. The Executive will report to the
then C.E.O. and will perform agreed upon services on a part-time basis (not to
exceed 40 hours per month). The compensation paid will be Ten thousand dollars
($10,000) per month plus all expenses incurred on behalf of the Company. Any
required travel in excess of three and one half hours will be business
class.
5. Restrictive Covenants and
Confidentiality.
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5.1
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Non-Solicitation.
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The
Executive agrees that during the Term and for a period of one (1) year
thereafter and in any event during any period in which he is receiving severance
compensation pursuant to Section 3.6, he shall not solicit, entice, encourage or
induce any person, other than persons known prior to Executive’s employment, who
at any time within one (1) year prior to the Executive's termination of
employment shall have been an employee of the Company or any of its
subsidiaries, to become employed by or associated with any person, firm or
corporation other than the Company, and the Executive shall not approach any
such employee for such purpose or authorize or knowingly approve the taking of
such actions by any other person, firm or corporation or assist any such person,
firm or corporation in taking such action.
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5.2
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Confidentiality.
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Executive
shall not, directly or indirectly, publish, disclose or use, or authorize anyone
else to publish, disclose or use, any secret or confidential matter, or
proprietary or other information not otherwise available in the public domain
relating to any aspect of the operations, activities, or obligations of the
Company, including, without limitation, any confidential material or information
relating to the Company's business, customers, suppliers, arrangements with
Practitioners, trade or industrial practices, trade secrets, technology,
know-how or intellectual property. All records, files, data,
documents and the like relating to suppliers, customers, costs, prices, systems,
methods, personnel, equipment and other materials relating to the Company shall
be and remain the sole property of the Company. Upon termination of
Executive's employment with the Company, Executive shall not remove from the
Company's premises or retain any of the materials described in this Section 5.3
without the prior written consent of the Company, and all such materials in
Executive's possession shall be delivered promptly to the Company.
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5.3
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Survival and Company
Definition.
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This
Section 5 shall survive the termination of the Executive's employment with the
Company, irrespective of the reason therefore. For purposes of this
Section 5, the term "Company" shall include all affiliates and
subsidiaries.
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5.4
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Remedies.
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The
Executive acknowledges that the services to be rendered by the Executive are of
a special, unique and extraordinary character and, in connection with such
services, the Executive will have access to confidential information vital to
the Company's business. By reason of this access, the Executive
consents and agrees that if the Executive violates any of the provisions of this
Section 5, the Company shall be entitled, without the need to show actual
damages, to an injunction and a temporary restraining order from any court of
competent jurisdiction restraining the Executive from committing or continuing
any such violation of this Agreement. The Executive acknowledges that
damages at law would not be an adequate remedy for violation of this Section 5,
and the Executive therefore agrees that the provisions of this Agreement may be
specifically enforced against the Executive in any court of competent
jurisdiction. The rights, powers and remedies of the Company under
this Agreement are cumulative and not exclusive of any other right, power or
remedy which the Company may have under any other agreement or by
law.
6. Term and
Termination.
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6.1
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Term.
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The term
of this Agreement shall be for five (5) years. With
respect to the Executive’s employment period (the “Employment Period”), the term
of this Agreement shall terminate—December 31, 2012. After such
Employment Period, the Board of Directors in its sole discretion may extend the
term with Executive’s consent. The initial term and any term
established after January 1, 2008, is each referred to as a "Term," and, for
purposes of Section 3.6, severance payments through the end of the Term means
through the end of the applicable Term in which Executive is
terminated.
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6.2
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Death.
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This
Agreement shall terminate automatically upon Executive's death and upon complete
payment to Executives estate; all accrued and unpaid Base Compensation including
amounts due as earned but unpaid Annual Bonus and any unpaid travel expenses and
PTO due to the beneficiary. The Company agrees to pay all premiums for a health
insurance policy for executive’s family or designated beneficiary(ies) from Blue
Cross/ Blue Shield through December 31, 2012. The Company will also pay one year
of salary to the designated beneficiary as stated by Executive in Exhibit C
attached hereto. Said payment to be made in twelve equal monthly installments
beginning on the first day of the month following the death All unvested options
or shares of stock will fully vest and transfer to the designated
beneficiary.
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6.3
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Disability.
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In the
event that Executive, because of accident, disability or physical or mental
illness, is incapable of performing his usual duties hereunder, the Company
shall have the right to terminate Executive’s employment. For purposes of this
Section 6.3, Executive shall be deemed to have become incapable of performing
his usual duties hereunder if the Board shall determine that Executive is, by
reason of any medically-determinable physical or mental impairment expected to
result in death or to be of continuous duration of not less than six (6)
consecutive months or more, unable to perform his usual duties for the
Company. If Executive's employment hereunder is terminated pursuant
to this Section 6.3, the Company shall pay to Executive, two years of his then
current Base Compensation as his sole and exclusive right and remedy under this
Agreement (i) all accrued and unpaid Base Compensation through the date of
termination pursuant to this Section 6.3, (ii) any earned but unpaid Annual
Bonus and (iii) continuation of Company benefits for thirty six (36) months to
Executive’s family at no cost to Executive or his family.
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6.4
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Cause and Voluntary
Termination.
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The
Company shall have the right to terminate this Agreement and Executive's
employment hereunder for Cause. Cause" shall mean any of the following
occurrences: (1) Executive's conviction of (A) a felony or (B) another serious
crime involving material harm to the standing or reputation of the Company; (2)
Executive's gross negligence or willful misconduct in the performance of his
duties for the Company which causes or may cause material harm to the Company;
(3) conduct by the Executive which brings the Company into public disgrace or
disrepute, including, without limitation, dishonesty and fraud; or (4) a
material breach by Executive of any of the terms or conditions of this Agreement
or any other agreement between the Company and the Executive, which, if curable,
is not cured to the Company's reasonable satisfaction within thirty (30) days of
written notice thereof The Executive shall have the right to voluntarily
terminate this Agreement at any time upon fifteen (15) days prior written
notice. If Executive voluntarily terminates his employment hereunder
or the Company terminates Executive's employment for Cause, the Executive's sole
and exclusive right and remedy hereunder shall be the right to receive his Base
Compensation through the date of such termination only and the Company shall
have no responsibility for the payment of any other compensation or benefits to
the Employee for any time period subsequent to such termination, including,
without limitation, any Annual Bonus or other employee
benefits. Nothing herein shall affect the Company's obligation to
provide benefits as required by COBRA or any other applicable federal or state
law.
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6.5
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Termination Without
Cause.
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The
Company may terminate Executive's employment with the Company pursuant to this
Agreement without cause by giving written notice to Executive at least sixty
(60) days prior to the effective date of such termination, subject to the
provisions of Section 3.6.
7. Non-competition and
Non-solicitation Agreement.
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7.1
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The
Executive acknowledges and agrees that information, including the
Confidential Information, he acquires at the time of signing this
Employment Agreement and continues to acquire during the course of his
employment will enable the Executive to irreparably injure the Company if
the Executive should engage in unfair competition. The
Executive also acknowledges that his position is one which requires public
involvement with the Company, thus the position requires loyalty to
preserve a positive public image of the Company and to prevent injury to
the Company by soliciting employees or customers for the direct benefit of
a competitor. Moreover, the Executive acknowledges that the
services he provides are of a special, peculiar and extraordinary
character that gives such services a unique value, the loss of which
cannot be reasonably or adequately compensated for in damages by way of a
lawsuit.
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6
Therefore,
in consideration of the compensation, benefits and continued employment provided
to the Executive and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Executive hereby agrees as
follows:
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a)
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Non-Competition. During
the Term of this Employment Agreement and for a period of one (1) year
following the termination of this Employment Agreement or of the
Executive’s employment with the Company for any reason, the Executive
shall not, directly or indirectly, be employed by any other entity engaged
in any business relating to the specific businesses the Company is engaged
in; solar panel sales, franchising solar businesses, in the State or
State(s) in which the Company has made sales of panels to customers,
transacted a franchise business in the solar energy industry or solar park
projects, during the last twelve months of his employment with the
Company.
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b)
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Reasonableness of
Restrictions. The
Executive has carefully read and considered the provisions contained in
this Section 7, and having done so, agrees that the restrictions set forth
herein, including, but not limited to, the time period of restriction, the
geographic areas of restriction, and the scope of the restriction are fair
and reasonable, are supported by sufficient and valid consideration, and
these restrictions do not impose any greater restraint than is necessary
to protect the goodwill and other legitimate business interests of the
Company and its affiliated entities, officers, directors, shareholders and
other employees. The Executive acknowledges that these
restrictions will not prevent him from obtaining gainful employment in the
Executive’s occupation or field of expertise or cause him undue hardship;
that there are numerous other employment and business opportunities
available to him that are not affected by these restrictions; and that the
Executive’s ability to earn a livelihood without violating such
restrictions is a material condition to employment with the
Company.
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8. Miscellaneous.
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8.1
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Successors and
Assigns.
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This
Agreement shall be binding on and inure to the benefit of the parties hereto and
their heirs, executors, legal representatives, successors and
assigns. Neither party shall have the right to assign its
obligations, or all or any portion of their rights or interests under this
Agreement without the prior written consent of the other party hereto, and any
attempt to do so will be null and void; provided, that the Company shall have
the right to assign this Agreement in connection with any Corporate
Transaction.
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8.2
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Notices.
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Any
notice, request, demand or other communication required or permitted by this
Agreement shall be in writing and shall be deemed to have been properly given
upon the earlier of receipt or five (5) days after being sent by certified or
registered mail with postage prepaid, return receipt requested, addressed to the
parties as follows:
If to
Executive: Xxxxx
Xxxx
000 Xxxxx Xxxx Xxxxx
Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
If to
Company: NP
Capital Corp.
000 X0X, Xxxxx 000
Xxxxx
Xxxxx Xxxxx, XX 00000
Attention: Board
of Directors
Only
giving written notice of such change in the manner provided herein for giving
notices may change the addresses for purposes of this Section 7.2.
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8.3
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Withholding.
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Executive
hereby agrees to make appropriate arrangements with the Company for the
satisfaction of all Federal, State or local income tax withholding requirements
and Federal social security employee tax requirements applicable to this
Agreement.
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8.4
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Governing Law, Venue
and Attorney Fees.
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This
Agreement is made and entered into and is to be governed by the laws of the
State of Florida applicable to agreements made within such State,
without regard to the conflicts of law principles of such State. The
Venue for all purposes in connection with this Agreement shall be the County of
St. Xxxx, State of Florida. In the event any party hereto reasonably
retains counsel for the purpose of enforcing or preventing the breach of this
Agreement or any provision hereof, including, but not limited to, instituting
any action or proceeding to enforce any provision hereof, for damages by reason
of any alleged breach of any provision hereof, for a declaration of such party’s
rights or obligations hereunder, for an action seeking injunctive relief to
enforce any provision herein, or for any other judicial remedy, then the
prevailing party shall be entitled, in addition to such other relief as may be
granted, to be reimbursed by the non-prevailing party for all costs and expenses
incurred thereby, including reasonable attorney’s fees.
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8.5
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Waiver.
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The
failure of either party at any time to require performance by the other party of
any provision hereof shall not affect in any way the full right to require such
performance at any time thereafter, nor shall a waiver by either party of a
breach of any provision hereof be taken or held to be a continuing waiver of
such provision, or waiver of any other breach under any other provision of this
Agreement.
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8.6
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Captions.
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The
captions of the sections referenced herein are inserted as a matter of
convenience only and in no way define, limit, or describe the scope of this
Agreement or any provisions hereof.
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8.7
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Entire
Agreement.
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This
Agreement and any Exhibits hereto set forth the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersede all prior contracts, agreements, arrangements,
communications, discussions, representations and warranties, whether oral or
written, between the parties with respect to such subject
matter. This Agreement may be amended only by a written instrument
signed by both parties hereto making specific reference to this Agreement and
expressing the plan or intention to modify it.
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8.8
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Severability.
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If any
provision of this Agreement shall be adjudicated to be invalid, ineffective or
unenforceable, the remaining provisions of this Agreement shall not be affected
thereby. The invalid, ineffective and unenforceable provision shall,
without further action by the parties, be automatically amended to effect the
original purpose and intent of the invalid, ineffective or unenforceable
provision; provided, that such amendment shall apply only with respect to the
operation of such provision in the particular jurisdiction with respect to which
such adjudication is made.
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8.9
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Counterparts.
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This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, and all of which together will constitute one and the
same Agreement.
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8.10
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No
Conflict.
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Executive
covenants and represents that he is not a party to any agreement or
understanding which impairs or prohibits his ability to enter into and perform
services under this Agreement.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first above
written.
| NP Capital Corp. | |||
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By:
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/s/ Xxxxxxx Xxxxx | |
| Name: | |||
| Title: Director – | |||
| By: | /s/ Xxxx Xxxx | ||
| Name: Xxxx Xxxx | |||
| Title: Director – | |||
| By: | /s/ Xxxx Xxxx | ||
| Name: Xxxx Xxxx | |||
| Title: - CEO | |||
| By: | /s/ Xxxxx Xxxx | ||
| Xxxxx Xxxx | |||
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EXHIBIT
A
Stock
Options
Stock
options may be granted to the Executive by the Board of Directors or the
Compensation Committee of the Board from time to time. The Board of Directors
has granted the Executive 200,000 options convertible into 200,000 common shares
of NP Capital with an exercise price of $.50. These are stock incentive options
that will vest if the Company books contracts for a total value of $12 million
with at least a gross margin of 10% during fiscal year 2008.
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EXHIBIT
B
Annual
Bonus
An Annual
Bonus may be granted to the Executive by the Board of Directors or the
Compensation Committee of the Board from time to time. The Board of Directors
has granted the Executive a performance based Annual Bonus for 2008 of
$10,000.00. The Annual Bonus will be deemed earned when the Company books $12
million in revenue with at least a gross margin of 10%.
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EXHIBIT
C
Beneficiary
of Death Benefits
I elect
as my beneficiary_______________, my wife to receive any and all payments due
from NP Capital as a result of my death. In the event that the above named
Beneficiary does not survive the Executives death, then ______________________
is my beneficiary.
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