Exhibit 10.8
ALTERNATIVE CONSTRUCTION COMPANY, INC.
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made as of January 15, 2005 by and between
Alternative Construction Company, Inc., a Florida corporation ("Employer" or the
"Company"), and Xxxxxxx Xxxxx ("Executive"),
WHEREAS. Alternative Construction Company, Inc. is acquiring Alternative
Construction Technologies, Inc., ("ACT") a Tennessee Corporation, and that
Xxxxxxx Xxxxx is currently a key employee of ATC.
WHEREAS, Employer recognizes Executive's special value and significant
contribution to Employer as its Vice President of Marketing, and Executive
wishes to be employed by Employer with the duties and responsibilities as
hereinafter described, and Employer desires to assure itself of the availability
of Executive's services in such capacity.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Employer and Executive hereby agree as follows:
1. Employment. Employer hereby agrees to employ Executive, and
Executive hereby agrees to serve Employer, upon the terms and conditions
hereinafter set forth. This contract is effective upon the closing of the
acquisition between the Company and ATC.
2. Term and Termination. The Initial Term of this Agreement (the
"Service Period") shall commence on the effective day of the closing of the
acquisition between the Company and ATC. Subject to the provisions for
termination of this Agreement set forth below, the term of employment shall
continue for a period of three years and thereafter shall automatically renew
for two additional three year terms.
(a). This Agreement and Executive's employment may be terminated by
Company at its discretion, provided that in such case, Executive shall be paid
as severance an amount equal to 2 months of Executive's then applicable base
salary for each year of service. In the event of such a discretionary
termination, Executive shall not be entitled to receive any Incentive
Compensation payment or any other compensation then in effect, prorated or
otherwise.
(b). This Agreement may be NOT be terminated by Executive during the
initial term. The Executive may terminate this agreement at Executive's
discretion, after initial term, by providing at ninety (90) days prior written
notice to Company. In the event of termination by Executive pursuant to this
subsection, Company may immediately relieve Executive of all duties and
immediately terminate this Agreement, provided that Company shall pay Executive
at the then applicable base salary rate to the termination
date included in Executive's original termination notice.
(c). In the event that Executive is in breach of any material
obligation owed Company in this Agreement, which in the opinion of 66% of the
members of the Board: habitually neglects the duties to be performed under this
Agreement, engages in any conduct which is dishonest, damages the reputation or
standing of the Company, or is convicted of any criminal act or engages in any
act of moral turpitude, then Company may terminate this Agreement upon five (5)
days notice to Executive. In event of termination of the Agreement pursuant to
this subsection, Executive shall be paid only at the then applicable base salary
rate up to and including the date of termination. Executive shall not be paid
any incentive salary payments or other compensation, prorated or otherwise.
(d). In the event Company is acquired, or is the non-surviving party
in a merger, or sells all or substantially all of its assets, this Agreement may
be terminated, but the Company agrees to use its best efforts to ensure that the
transferee or surviving company is bound by the provisions of this Agreement.
(e) This Agreement shall terminate in the event (i) the death of the
Executive, (ii) disability, where the Executive by reason of accident or illness
in unable to perform his duties for a period of six consecutive months or for a
period of seven months in a period of 12 consecutive months; or (iii) in the
event the Employer ceases operation.
3. Duties. Executive shall, subject to the legal authority vested
in the Board of Directors (the "Board"), serve as, and have all power and
authority inherent in the offices of, Vice President of Marketing, and shall be
responsible for those areas in the conduct of the business assigned to him by
the Board, including, without limitation, (i) providing management, strategic
marketing and sales guidance and direction to the Company and its subsidiaries,
(ii) provide management and supervision of Marketing and Sales employees and
consultants; (iii) involvement in the Company's public relations and investor
relations efforts; and (iv) and such other duties and responsibilities as may
from time to time be assigned by the Board. Executive shall devote all his
business time and efforts to the business of Employer. Executive shall report
directly to the Chief Executive Officer.
4. Executive's Loyalty to Employer's Interests. Executive shall
devote all of his time, attention, knowledge and skill solely and exclusively to
the business and interests of Employer, and Executive shall be entitled to all
benefits, emoluments, profits and other issues arising from or incident to any
and all work, services and advice of Executive. Executive expressly agrees that
during the term hereof he will not be interested, directly or indirectly, in any
form, fashion, or manner, as partner, officer, director, stockholder, advisor,
employee, or in any other form or capacity, in any other business similar to
Employer's business or any allied trade, except that nothing herein contained
shall be deemed to prevent or limit the right of Executive to invest any or his
surplus funds in the capital stock or other securities of any corporation whose
stock or securities are publicly owned or are regularly traded on any public
exchange, nor shall anything herein contained by deemed to prevent or limit
Executive from investing his surplus funds in real estate.
5. Confidentiality, Non-Compete, Non-Solicitation and Investments.
The Executive recognizes and agrees that all copyrights, trademarks, or other
intellectual property rights to created works arising in any way from, or
related to, the Executive's employment by the Company are the sole and exclusive
property of the Company, agrees to not assert any rights to those works against
the Company or any third-parties and agrees to assist the Company in any way
requested to procure or protect the Company's rights to those works. Upon
cancellation of this Agreement by either party for any reason, or if requested
by the Board at any time, the Executive will return to the Company all
documents, books, manuals, lists, records, publications or other materials,
whether in written, electronic or other form, passwords, keys, credit cards,
equipment, or other articles that came into the Executive's possession in
connection with the Executive's employment by the Company and to maintain no
copies or duplicates without the prior written approval of the Board of
Directors of the Company. The Executive will maintain in confidence during and
subsequent to the Executive's employment any information about the Company or
its members which is confidential information or which might reasonably be
expected by the Executive to be regarded by the Company as confidential and will
not use that information except for the benefit of the Company. Upon
cancellation of this Agreement by either party for any reason, the Executive
will refrain for three (3) years from (a) undertaking employment or any
compensated duties on behalf of any company or firm that provides services or
products to clients in competition with the Company, or (b) soliciting any
individual who is then or was at any time within the preceding six months an
employee of the Company to leave the Company's employment, in either case unless
the Board of Directors of the Company provides prior written approval of the
employment, duties or solicitation. The Executive will not make or direct any
personal investments in the pharmaceutical field based substantially upon
information conveyed to the Executive as an employee of the Company where the
information is conveyed with a request for, or in the expectation of,
confidentiality. The provisions of this paragraph will survive cancellation of
this Agreement.
6. Compensation and Other Provisions. Executive shall be entitled
to the compensation and benefits hereinafter described in subsections (a)
through (g) (such compensation and benefits being hereinafter referred to as
"Compensation Benefits").
(a) Base Salary. Employer shall pay to Executive a base salary of
$48,000 per annum for the period commencing the effective date of the
acquisition of ACT by the Employer through the remainder of the Service Period
(such amount, as it may be increased from time to time, may sometimes
hereinafter be referred to as "Base Salary"). However, Executive's base salary
shall be reviewed each year by the Board and the Compensation Committee during
the Service Period and may be increased (but not decreased) as the Board may
determine. In the event that Employer for reasons of cash flow is unable to make
full salary payment to Executive, and without regard to IRS rules governing the
income tax treatment of such compensation, any unpaid amounts shall accrue,
without interest, and shall be paid to Executive when the Board determines that
such amount could reasonably be paid. Such unpaid amounts shall remain
obligations of the Employer until paid in full.
(a) For purposes of this Agreement, "Confidential Information" means
knowledge, information and material which is proprietary to Employer, of which
Executive may obtain knowledge or access through or as a result of his
employment by Employer (including information conceived, originated, discovered
or developed in whole or in part by Executive). Confidential Information
includes, but is not limited to, (i) technical knowledge, information and
material such as trade secrets, processes, formulas, data, know-how,
improvements, inventions, computer programs, drawings, patents and experimental
and development work techniques, and (ii) marketing and other information, such
as supplier lists, customer lists, marketing and business plans, business or
technical needs of customers, consultants, licensees or suppliers and their
methods of doing business, arrangements with customers, consultants, licensees
or suppliers, manuals and personnel records or data. Confidential Information
also includes any information described above which Employer obtains from
another party and which Employer treats as proprietary or designates as
confidential, whether or not owned or developed by Employer. Notwithstanding the
foregoing, any information which is or becomes generally available to the
general public otherwise than by breach of this Section 11 shall not constitute
Confidential Information for purposes of this Agreement.
(b) During the term of this Agreement and thereafter, Executive
agrees, to hold in confidence all Confidential Information and not to use such
information for Executive's own benefit or to reveal, report, publish, disclose
or transfer, directly or indirectly, any Confidential Information to any person
or entity, or to utilize any Confidential Information for any purpose, except in
the course of Executive's work for Employer.
(c) Executive will abide by any and all security rules and
regulations, whether formal or informal, that may from time to time be imposed
by Employer for the protection of Confidential Information, and will inform
Employer of any defects in, or improvements that could be made to, such rules
and regulations.
(d) Executive agrees that all inventions, innovations, improvements,
developments, methods, designs, analysis, drawings, reports, and all similar or
related information which relates to Employer's actual or anticipated business,
research and development or existing or future products or services and which
are conceived, developed or made by Executive at any time while employed by
Employer, or made thereafter as a result of any invention conceived or work done
at any time during employment with Employer (hereinafter referred to as "Work
Product"), and all Executive's right, title and interest in and to Work Product,
shall be regarded as made and held by Executive in a fiduciary capacity solely
far the benefit of Employer and shall exclusively belong to Employer. Executive
will promptly disclose such Work Product to the Board of Directors of Employer
and perform all actions reasonably requested by the Board of Directors of
Employer (whether during or after the term of Executive's employment with
Employer) to establish and confirm such ownership (including, without
limitation, execution of any and all assignments, conveyances, consents, powers
of attorney and other instruments).
(b) Bonus. In addition to the base salary, employee will receive
annual incentive bonus compensation equal to one half of one percent (.5%) of
annual Gross Revenues (GR) plus one percent (1%) of Net Income (NI). The formula
for calculation of the annual incentive bonus is: .005GR + .01NI where GR and NI
are greater than or equal to zero. The annual incentive bonus will be calculated
based on the Corporation's financial results as of December 31st of each year
with the bonus payable by April 15th of the following year.
(c) Participation in Benefit Plans. During the Service Period,
Executive shall be eligible to participate in all employee benefit plans and
arrangements now in effect or which may hereafter be established, including,
without limitation, all life, group insurance and medical care plans and all
disability, incentive stock option plans, 401(k) plans, pension plans, profit
sharing plans, retirement and other employee benefit plans of Employer
consistent with such benefits provided to executive management of Employer.
Employer shall in all events provide and pay the full costs of all medical and
insurances for Executive as noted above or as may be added throughout the
Service Period.
(d) Expense Reimbursement. Employer will promptly reimburse
Executive for all reasonable out-of-pocket business expenses incurred in
connection with the performance of Executive's services hereunder, including,
without limitation, all travel, telephone, entertainment and similar business
expenses. Expenses exceeding $100 per event requires prior approval.
(e) Disability Insurance Policy. The Company shall have the option
to maintain and be the owner of a disability insurance policy on the Executive's
life, and Executive agrees to submit to any physical examination, and to
otherwise cooperate in any other procedures required to obtain such policy.
7. Stock Options. Concurrent herewith, Employer and Executive shall
enter into a certain Stock Option Agreement ("Stock Option Agreement") providing
for certain rights to Executive, participation in the Employer's qualified
incentive stock option plan, and cashless exercise. The terms of the rights
shall be provided in the separate Stock Option Agreement.
8. Representations and Warranties. Executive hereby represents and
warrants to the Employer that (i) the execution, delivery and performance of
this Agreement by Executive do not and shall not conflict with, breach, violate
or cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which Executive is bound, and (ii)
Executive is not a party to or bound by any employment agreement,
non-competition agreement or confidentiality agreement with any other person or
entity which in any way may restrict, impair or limit the performance of his
duties hereunder.
9. Disclosure and Protection of Confidential Information.
(e) Executive will notify Employer in writing immediately upon
receipt of any subpoena, notice to produce, or other compulsory order or process
of any court of law or government agency if such document requires or may
require disclosure or other transfer of Confidential Information.
(f) Upon termination of employment, Executive will deliver to
Employer any and all records and tangible property that contain Confidential
Information that are in his possession or under his control. The provisions of
this Section 11 shall survive the termination of Executive's employment with
Employer.
10. Availability of Injunctive Relief. Executive acknowledges and
agrees that any breach by him of the provisions of Section 10 hereof will cause
Employer irreparable injury and damage for which it cannot be adequately
compensated in damages. Executive therefore expressly agrees that Employer shall
be entitled to seek injunctive and/or other equitable relief, on a temporary or
permanent basis to prevent any anticipatory or continuing breach of this
Agreement or any part hereof, and is secured as enforcement. Nothing herein
shall be construed as a waiver by Employer of any right it may have or hereafter
acquired to monetary damages by reason of any injury to its property, business
or reputation or otherwise arising out of any wrongful act or omission of it.
11. Indemnification. Employer hereby releases and agrees to
unconditionally indemnify and hold Executive harmless from and against all
losses, liabilities, claims, actions, judgments, demands, costs, expenses,
fines, penalties, fees, and damages, of any kind or nature, including, without
limitation, attorney's fees and costs and whether or not suit is instituted,
that are suffered or incurred by Executive, directly or indirectly, relating to,
arising out of or in connection with any events, occurrences or circumstances of
or involving Employer prior to the effective date of this Agreement,
irrespective of whether or not Executive is now aware or shall hereafter become
aware of such events, occurrences or circumstances or additional facts relating
thereto.
12. Directors and Officers Liability Insurance. Company agrees to
obtain Directors and Officers Liability Insurance in such amounts and under such
terms as the Board of Directors may agree, and to provide such Directors and
Officers Liability Insurance coverage to Executive during the term of his
employment with the Company,
13. Survival. The covenants, agreements, representations and
warranties contained in or made pursuant to this Agreement shall survive
Executive's termination of employment, irrespective of any investigation made by
or on behalf of any party.
14. Entire Agreement; Modification. This Agreement sets forth the
entire understanding of the parties with respect to the subject matter hereof,
supersedes all existing agreements between them concerning such subject matter,
and may be modified only by a written instrument duly executed by each party.
15. Notices. Any notice required or permitted hereunder shall be
deemed validly
given if delivered by hand, verified overnight delivery, or by first class,
certified mail to the following address of Executive (or to such other address
as Executive may notify in writing to Employer):
16. Waiver. Any waiver by either party of a breach of any provision
of this Agreement shall not operate as or be construed to be a waiver of any
other breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. All waivers must be in writing.
17. Binding Effect. The provisions of this Agreement shall be
binding upon the Executive and his heirs and personal representatives, and shall
be binding upon and inure to the benefit of Employer, its successors and
assigns.
18. No Assignment. Neither this Agreement nor any or interest in
this Agreement may be assigned by Executive without the prior express written
approval of Company, which may be withheld by Company at Company's absolute
discretion.
19. Severability. If any term of this Agreement is held by a court
of competent jurisdiction to be invalid or unenforceable, then this Agreement,
including all of the remaining terms, will remain in full force and effect as if
such invalid or unenforceable term had never been included.
20. Headings. The headings in this Agreement are solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
21. Governing Law; Venue. This Agreement will be governed and
construed under the laws of the State of Florida, without giving effect to rules
governing conflicts of law, with proper venue with respect to all disputes
related to this Agreement being Brevard County, Florida,
22. Invalidity. The invalidity or unenforceability of any term of
this Agreement shall not invalidate, make unenforceable or otherwise affect any
other term of this Agreement, which shall remain in full force and effect.
23. Attorneys' Fees. In the event any dispute or litigation arises
hereunder between any of the parties hereto, the prevailing party shall be
entitled to all reasonable costs and expenses incurred by it in connection
therewith (including, without limitation, all reasonable attorneys' fees and
costs incurred before and at any trial or other proceeding and at all tribunal
levels), as well as all other relief granted in any suit or other proceeding.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first hereinabove written.
EMPLOYER: Alternative Construction Company, Inc.
SIGNATURE: /s/
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NAME:
TITLE:
DATE: January 15, 2005
EXECUTIVE: Xxxxxxx Xxxxx
SIGNATURE: /s/ Xxxxxxx Xxxxx
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DATE: January 15. 2005
EO
