EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT is made and entered into as of the date last written below,
between SOLAR NIGHT INDSUTRIES, INC., a Delaware corporation (the “Company”),
and
the undersigned employee (“Employee”).
WHEREAS,
the
Company desires to retain the services of Employee, and Employee desires to
be
employed by the Company, upon the terms and conditions hereinafter set forth;
and
WHEREAS,
as an
integral part of this Agreement, the Company desires to obtain Employee’s
covenant not to compete and other covenants, and Employee desires to make a
covenant not to compete and such other covenants as hereinafter set
forth.
NOW,
THEREFORE,
in
consideration of the premises and agreements herein contained, and other good
and valuable consideration, the receipt and adequacy of which are hereby forever
acknowledged and confessed, the parties agree as follows:
1. Employment.
The
Company hereby employs Employee, and Employee hereby accepts such employment
by
the Company, upon the terms and conditions specified herein for the Term of
Employment (as hereinafter defined).
2. Duties
of Employee.
During
the Term of Employment, Employee is hereby employed as ________________________.
Employee shall report directly to the Company’s Chief Executive Officer or such
other person as determined by the Company. In furtherance of the foregoing,
Employee shall, subject to the direction and instruction of the Company: (a)
devote Employee’s full and entire working time, attention and energies to the
Company, and will diligently and to the best of employee’s ability perform all
duties incident to Employee’s employment hereunder; (b) use Employee’s best
efforts to promote the interests of the Company; and (c) perform such other
duties as the Company may from time to time direct.
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3. Financial
Arrangements.
3.1 Compensation.
As
compensation for Employee’s services hereunder and in consideration of
Employee’s covenant not to compete and other covenants as set forth in that
Section of this Agreement entitled Restrictive
Covenants
hereof,
the Company shall pay Employee a salary of $_________________ per year until
such time as the Company shall have obtained capital financing in an amount
not
less than $2.0 million and $_____________ per year each year thereafter, payable
on at least a monthly basis, subject to such payroll and withholding deductions
as may be required by law or as otherwise authorized by Employee in writing.
Employee’s compensation arrangement will be reviewed annually by the Board of
Directors and may be increased, but not decreased, in the sole discretion of
the
Board of Directors.
3.2 Bonus.
In
addition to the salary payable to Employee described in that Subsection of
this
Agreement entitled Compensation,
the
Company may pay Employee a bonus in accordance with any bonus compensation
program as adopted from time to time by the Company (the “Bonus”).
The
Company shall determine the amount of and pay the Bonus, if any, to Employee
in
accordance with any bonus compensation program then in effect. The payment
of
the Bonus, if any, is subject to such payroll and withholding deductions as
may
be required by law or as otherwise authorized by Employee in
writing.
3.3 Expenses.
Throughout the term of Employee’s employment hereunder, the Company shall
reimburse Employee for all reasonable and necessary travel, entertainment,
and
other business expenses which may be incurred in direct connection with the
performance of Employee’s duties in accordance with policies adopted from time
to time by the Company concerning expense reimbursement for employees. Such
expenses as are authorized for payment or reimbursement shall be paid for by
the
Company or reimbursed to Employee upon presentation to the Company of an
itemized expense statement with respect thereto.
3.4 Fringe
Benefits.
Employee shall be eligible to participate with other employees of the Company,
so long as Employee meets the applicable eligibility requirements, in such
employee fringe benefits as may be authorized and adopted from time to time
by
the Board of Directors of the Company.
4. Definitions.
4.1 As
used
herein, the term “Confidential
Information”
shall
mean any information obtained at any time while Employee is or was employed
by
the Company which is not generally known and which is proprietary to the
Company, including, but is not limited to, trade secrets, Inventions (as defined
herein), information pertaining to research, computer software, development,
techniques, engineering, purchasing, marketing, selling, accounting, licensing,
specialized know-how, processes, discoveries, products, equipment, models,
prototypes, devices, computer programs, lists of employees, mailing lists,
details of contracts, cost systems, pricing policies, operational methods,
marketing plans, business acquisition plans, customer lists, the particular
needs and requirements of customers, and the identity of customers and potential
customers. All information designated or treated as Confidential Information
or
as a trade secret by the Company shall, regardless of its source, be deemed
Confidential Information for all purposes.
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4.2 As
used
herein, the term “Inventions”
shall
mean all ideas, discoveries, and improvements, whether or not shown or described
in writing or reduced to practice or use, and whether or not patentable,
relating in any manner to any of the Company’s present or future products,
computer software, services, manufacturing, or research.
5. Restrictive
Covenants.
5.1 Non-Disclosure.
Employee
represents and warrants that Employee is free of any contractual restrictions
and restraints in entering this Agreement, and has not, and will not, in
connection with his or her employment with the Company divulge any confidential
information, trade secrets, or copyright-protected information of any prior
employer or of any other third party to whom Employee owes an obligation of
confidentiality.
Employee
recognizes Employee’s responsibility to protect all of the Company’s
Confidential Information and agrees to use his or her best efforts and to
exercise utmost diligence to protect and guard the Confidential Information
of
the Company and any subsidiaries or affiliated companies. Employee agrees to
hold in strictest and total confidence all Confidential Information. Employee
will at no time, without prior written authorization by the Company, disclose
or
in any way transfer or communicate, or use for the benefit of any person or
entity other than the Company, any Confidential Information.
5.2 Return
of Confidential Information.
Upon
termination of employment with the Company or at any other time upon the
Company’s request, Employee shall promptly return to the Company all originals
and all copies (including photocopies, facsimiles, and computer or other means
of electronic storage) of all materials relating in any way to Confidential
Information or the business of the Company or any affiliated companies and
subsidiaries of the Company, and will so represent to the Company upon
termination of employment.
5.3 Work
Product.
Employee
shall promptly and fully disclose to the Company and Employee shall hold in
trust for the Company’s sole right and benefit any Invention that Employee
makes, conceives, or reduces to practice, or causes to be made, conceived,
or
reduced to practice during the period when Employee is or was employed with
the
Company; provided, however, that this disclosure obligation shall only be
applicable to those Inventions that relate in any manner to subject matter
pertaining to Employee’s employment, or that relate in any manner or are
directly or indirectly connected with the business, services, products,
projects, or Confidential Information of the Company, or that involve in any
manner the use of any time, material, or facilities of the Company, or services
of any of the Company’s Employees during normal working hours.
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All
items, including without limitation software, specifications, drawings, samples,
tools, technical information, or data, regardless of format or medium, prepared
or originated by or for Employee specifically for the Company at the Company’s
request in connection with his or her employment shall be the exclusive property
of the Company and shall be deemed to be works for hire, and to the extent
they
may not be works for hire, Consultant assigns to the Company all rights, title,
and interest in and to such items (“Work
Product”),
including rights to copyright. Employee hereby assigns to the Company all of
Employee’s right, title and interest in and to all Work Product and Inventions
that are subject to the disclosure obligations hereof and hereby agrees, upon
the Company’s request, to execute, verify, and deliver to the Company documents
including, but not limited to, assignments and applications for Letters of
Patent, and to perform such other acts, including, but not limited to, appearing
as a witness in any action brought in connection with this Agreement, that
is
deemed reasonably necessary or appropriate by the Company to allow it to obtain
the sole right, title, interest and benefit of all such Work Product and
Inventions.
The
assignment of Work Product and Inventions herein and Employee’s agreements in
connection therewith shall not apply to any Invention for which: (i) no
equipment, supplies, facilities, or Confidential Information of the Company
or
services of any of the Company’s Employees during normal working hours was used;
(ii) was developed entirely on Employee’s own time; (iii) does not relate to (a)
the business of the Company or (b) the Company’s actual or demonstratively
anticipated research or development; and
(iv)
which does not result from any work performed by Employee for the
Company.
5.4 Competition.
Employee
recognizes that the Company’s entering into this Agreement is induced primarily
because of the covenants and assurances made by Employee, that Employee’s
covenant not to compete is necessary to insure that continuation of the business
of the Company and its subsidiaries and/or affiliates, and that irreparable
harm
and damage will be done to the Company and its subsidiaries and/or affiliates
in
the event that Employee competes with the Company or its subsidiaries and/or
affiliates.
During
the Term of Employment (as defined below) and for a period of 1 year thereafter,
Employee shall not, directly or indirectly, enter into or participate (whether
as owner, partner, shareholder, officer, director, salesman, consultant,
employee, principal or in any other relationship or capacity) in any business,
operating or providing services within the United States which is in direct
competition with the Company or its subsidiaries and/or affiliates, including
without limitation, any business which competes directly with the Company’s
business as being conducted at such time.
Company
and Employee understand and agree that the scope and duration of the covenants
contained in this Section of this Agreement entitled Restrictive
Covenants
are
reasonable both in time and geographical area and are fairly necessary to
protect the Company’s legitimate business interests. Such covenants shall
survive the termination of Employee’s employment except as otherwise provided
herein. The parties further agree that such covenants shall be regarded as
divisible and shall be operative as to time and geographical area to the extent
that they may be made so and, if any part of such covenants is declared invalid
or unenforceable, the validity and enforceability of the remainder shall not
be
affected. Employee hereby warrants to Company that Employee’s compliance with
each of the restrictive covenants set forth in this Agreement will not, upon
the
termination, of Employee’s employment with the Company for any reason
whatsoever, cause Employee to be unable to earn a living that is suitable and
acceptable to Employee.
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5.5 Non-Solicitation.
Because
the Company’s Employees are a valuable resource the loss of whom could cause
significant harm to the Company’s business, Employee agrees that during the term
of Employee’s employment with the Company, and for a period of 1 year
thereafter, Employee will not be materially involved in any manner in the
recruitment or hiring or any attempt to recruit or hire as an employee, officer,
director, consultant, or advisor any person who is at the time or 12 months
prior thereto had been an Employee or consultant of the Company.
5.6 Non-Disparagement.
Employee shall not disparage the business reputation of the Company (or its
management team) or take any actions that are harmful to the Company’s goodwill
with its customers, content providers, network infrastructure providers,
vendors, employees, the media or the public.
5.7 Enforcement.
Company
spends considerable amounts of time, money and effort in developing and
maintaining good will in its industry. Employee agrees the covenants set forth
in this Section of this Agreement entitled Restrictive
Covenants:
(i) are
reasonable and necessary in all respects to protect the goodwill, trade secrets,
confidential information, and business interests of Company; (ii) are not
oppressive to Employee; and (iii) do not impose any greater restraint on
Employee than is reasonably necessary to protect the goodwill, trade secrets,
confidential information and legitimate business interests of
Company.
Without
limiting other possible remedies to the Company for the breach of this
Agreement, Employee agrees that injunctive or other equitable relief shall
be
available to enforce the covenants set forth in this Section of this Agreement
entitled Restrictive
Covenants,
such
relief to be without the necessity of posting a bond, cash or otherwise.
Employee further agrees that if any restriction contained in any such this
Section of this Agreement entitled Restrictive
Covenants
is held
by any court to be unenforceable or unreasonable, a lesser restriction shall
be
severable therefrom and be enforced in its place, and all remaining restrictions
contained herein shall be enforced independently of each other.
If
any
party shall commence a proceeding (whether in arbitration or in court) against
the other to enforce and/or recover damages for breach of this Agreement, the
prevailing party in such proceeding shall be entitled to recover from the other
party all reasonable costs and expenses of enforcement and collection of any
and
all remedies and damages, or all reasonable costs and expenses of defense,
as
the case may be. The foregoing costs and expenses shall include reasonable
attorneys’ fees.
6. Term
and Termination of Agreement.
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6.1 Term
of Employment. The
term
of this Agreement (the “Term
of Employment”)
shall
commence effective as of the date hereof (the “Commencement
Date”),
and
shall continue until the third anniversary of the Commencement Date, unless
extended or earlier terminated as hereinafter provided. This Agreement shall
be
automatically extended for successive 1 year periods at the end of the initial
term and each extended term thereafter, subject to the termination provisions
in
Section 6.2 hereof.
6.2 Termination.
Notwithstanding any other provision of this Subsection of this Agreement
entitled Termination,
Employee’s obligations pursuant to that Section of this Agreement entitled
Restrictive
Covenants
shall
continue in full force and effect after termination of Employee’s employment or
expiration of this Agreement.
(a) Death.
Employee’s
employment hereunder shall terminate immediately upon death.
(b) For
Cause. The
Company may terminate Employee’s employment hereunder at any time, effective
immediately upon written notice, for cause. For the purpose of this Agreement
“cause”
shall
mean:
i. The
willful and continued failure by Employee to substantially perform Employee’s
duties hereunder other than any such failure resulting from Employee’s
incapacity due to physical or mental illness or resulting from a diminution
of
Employee’s duties following a Change of Control (as defined below);
ii. The
willful engaging by Employee in conduct which is demonstrably and materially
injurious to the Company, monetarily or otherwise;
iii. Actions
of Employee which constitute a breach of that Section of this Agreement entitled
Restrictive
Covenants;
or
iv. Employee’s
conviction of, or plea of nolo contendere to a felony, provided any right of
appeal has been exercised or has lapsed.
In
the
event that Employee is terminated for cause, the Company shall pay Employee’s
salary through the date of termination, and shall thereafter have no further
obligation to Employee. For purposes of this Subsection of this Agreement
entitled Termination,
no act,
or failure to act, on the part of the Employee shall be deemed “willful”
unless
done, or omitted to be done, by the Employee without good faith and without
reasonable belief that the action or omission was in the best interest of the
Company.
(c) For
Change of Control.
For
purposes of this Agreement, a “Change
of Control”
shall
mean and be deemed to have occurred if:
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i. The
acquisition by any person, entity or “group” within the meaning of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”),
other
than a person, entity or “group” that includes Employee, of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
two-thirds or more of the Company’s then outstanding voting securities;
or
ii. If
the
individuals who serve on the Board of Directors as of the Commencement Date
(the
“Incumbent
Board”)
cease
for any reason to constitute at least a majority of the Board of Directors;
provided, however, any person who becomes a director subsequent to the
Commencement Date, whose election or nomination for election was approved by
a
vote of at least a majority of the directors then constituting the Incumbent
Board, shall for purposes of this Agreement be considered a member of the
Incumbent Board; or
iii. Approval
by the Company’s equity holders of (A) a merger, reorganization or consolidation
whereby the Company’s equity holders immediately prior to such approval do not,
immediately after consummation of such reorganization, merger or consolidation
own more than 50% of the combined voting power of the surviving entity’s then
outstanding voting securities entitled to vote generally in the election of
directors; or (B) the sale of all or substantially all of the assets of the
Company.
Notwithstanding
anything to the contrary herein, a Change of Control shall not be deemed to
have
occurred if the Company sells substantially all of its assets for less than
the
amount of capital (whether in cash or other property) contributed by
shareholders to the Company.
For
purposes of this Agreement, “Change
of Control Date”
shall
mean the date of the Change of Control. If a Change of Control occurs and if
the
Employee’s employment with the Company is terminated prior to the date on which
the Change of Control occurs, and if it is reasonably demonstrated by Employee
that such termination of employment: (i) was at the request of a third party
who
has taken steps reasonably calculated to effect a Change of Control, or (ii)
otherwise arose in connection with or anticipation of a Change of Control,
then
for all purposes of this Agreement, “Change of Control Date” shall mean the date
immediately prior to the date of such termination of employment, and a Change
of
Control shall be deemed to have occurred on the Change of Control
Date.
Following
a Change of Control Date, if: (i) Employee is terminated without cause, or
(ii)
Employee terminates his employment subsequent to the Company assigning Employee
duties which are inconsistent with Employee’s position (including status,
offices, titles, or reporting requirements), or the Company takes action which
results in a material dimunition of Employee’s position, authority, duties, or
responsibilities, then the Company shall be obligated to pay to Employee as
severance pay an amount equal to Employee’s salary in effect upon said
termination for the next twelve consecutive months, payable periodically at
the
same payroll cycle as the Company’s other employees.
(c) Long-Term
Disability. Employee’s
employment hereunder shall terminate immediately should Employee commence a
Long-Term Disability, as hereinafter defined. Employee shall have commenced
a
“Long-Term
Disability”
if:
(i)
Employee cannot perform the essential functions of his employment position,
with
or without a reasonable accommodation for his disability; or (ii) Employee
cannot perform the essential functions of his employment position without an
accommodation that would be an undue hardship for the Company to provide. The
foregoing definition of Long-Term Disability is not intended to and shall not
affect the definition of “disability” or any similar term in any insurance
policy the Company may provide.
(d) Without
Cause. Employee’s
employment hereunder may be terminated by the Company at any time, effective
upon written notice of termination. In the event that Employee is terminated
without cause, the Company shall pay Employee’s salary through the date of
termination, and then the Company shall be obligated to pay to Employee as
severance pay an amount equal to Employee’s salary in effect upon said
termination for the next twelve consecutive months, payable periodically at
the
same payroll cycle as the Company’s other employees.
(e) By
Employee.
Employee
may terminate this Agreement upon providing Company with 15 days written notice.
Upon such termination, all compensation and benefits Employee is to receive
pursuant to the terms of this Agreement shall cease as of the effective date
of
such termination.
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7. Additional
Provisions.
7.1 Notices.
Any
notice, demand, or communication required, permitted, or desired to be given
hereunder, shall be deemed effectively given when personally delivered or when
mailed by prepaid, certified mail, return receipt requested, addressed as
follows:
|
Employee
|
Company
|
|||
or
to
such other address, and to the attention of such other person(s) or officer(s)
as either party may designate by written notice.
7.2 Governing
Law. This
Agreement has been executed and delivered in, and shall be interpreted,
construed, and enforced pursuant to and in accordance with the laws of Missouri,
without reference to conflict of laws rules or principles.
7.3 Assignment.
This
Agreement and the rights and obligations hereunder shall bind and inure to
the
benefit of any successor or successors of the Company by way of reorganization,
merger or consolidation, and any assignee of all or substantially all of its
business and properties, but, except as to any such successor or assignee of
the
Company, neither this Agreement nor any rights or benefits hereunder may be
assigned by either party.
7.4 Waiver
of Breach. The
waiver by either party of a breach or violation of any provision of this
Agreement shall not operate as, or be construed to be, a waiver of any
subsequent breach of the same or other provision hereof.
7.5 Headings;
Gender and Number.
The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. Whenever
the context hereof requires, the gender of all words shall include the
masculine, feminine and neuter, and the number of all words shall include the
singular and plural.
7.6 Additional
Assurances. The
provisions of this Agreement shall be self-operative and shall not require
further agreement by the parties except as may be herein specifically provided
to the contrary; provided, however, at the request of the Company, Employee
shall execute such additional instruments and take such additional acts as
the
Company may deem necessary to effectuate this Agreement.
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7.7 Severability.
In
the
event any provision of this Agreement is held to be unenforceable for any
reason, the unenforceability thereof shall not effect the remainder of this
Agreement, which shall remain in full force and effect and enforceable in
accordance with its terms.
7.8 Entire
Agreement. This
Employment Agreement supersedes all previous agreements, and constitutes the
entire Agreement between parties. Employee shall be entitled to no other
benefits than those specified herein. No oral statements or prior written
material not specifically incorporated herein shall be of any force and effect,
and no changes in or additions to this Agreement shall be recognized unless
incorporated herein by amendment as provided herein, such amendment(s) to become
effective on the date stipulated therein. Employee specifically acknowledges
that in entering into and executing this Agreement, Employee relies solely
upon
the representations and agreements contained in this Agreement and no
others.
IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the ______ day of _______________,
2005.
| COMPANY: | SOLAR NIGHT INDUSTRIES, INC. |
|
By
_________________________________
|
|
| EMPLOYEE: |
_________________________________
|
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