Exhibit 99.9
EMPLOYMENT AGREEMENT
(Xxxxxx X. Xxxxxxx)
This Employment Agreement (this "Agreement") is entered into effective as
of the 1st day of November, 2005, by and between Techsphere Systems
International, Inc. a Georgia corporation ("Company"), and Xxxxxx X. Xxxxxxx
("Employee").
WHEREAS, Company is engaged in the business of designing, developing,
manufacturing, and marketing UAV's and other aerospace products; and
WHEREAS, Company desires to retain the services of Employee in the
capacity of Vice President.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows:
1. Employment. Company agrees to employ Employee and Employee agrees to
accept employment with Company subject to the conditions herein.
2. Term. Subject to the provisions of Section 5, the term of this
Agreement shall commence on the date hereof and shall continue for a period of
one (1) year from such date. At the expiration of the original one-year period,
the term of this Agreement shall be automatically renewed for successive one
year periods unless fourteen (14) days prior written notice to the contrary is
given by Company or Employee to the other. The term of this Agreement is
referred to herein as the "Employment Term." Notwithstanding anything to the
contrary, this is an agreement for employment at-will and may be terminated
immediately by either party with or without cause.
3. Duties and Responsibilities.
(a) Subject to the direction of the president of Company to hire and
remove officers, Employee shall serve Company as Vice President (or in such
other office as the Company may determine) and shall perform, faithfully and
diligently, the supervisory and management services and functions relating to
such office or otherwise reasonably incident to such office as may be designated
from time to time by the president; provided, however, that all such services
and functions shall be reasonable and within Employee's area of expertise.
(b) Employee shall, during the Employment Term, devote such of his
entire time, attention, energies and business efforts to his duties as an
employee of Company as are reasonably necessary to carry out such duties.
Employee shall not, during the Employment Term, engage in any other business
activity (regardless of whether such business activity is pursued for gain,
profit or other pecuniary advantage) if such business activity would materially
impair Employee's ability to carry out his duties hereunder.
4. Compensation and Other Benefits. As compensation for his services under
the terms of this Agreement:
(a) Base Salary. Commencing on the effective date of this Agreement,
Employee shall be paid an annual salary of not less than SIXTY FIVE THOUSAND
DOLLARS ($65,000), payable in accordance with the standard payroll policies of
Company. Such annual salary is herein referred to as the "Base Salary." The Base
Salary shall be reviewed annually by the Company and shall be subject to
adjustment based upon Employee's performance.
(b) Employee shall be eligible to participate in Company's 401(k)
program after completing one year of service to Company.
(c) Benefits. Company shall maintain health insurance for Employee.
Employee shall be responsible for the cost of health insurance coverage for a
spouse and any dependents.
(d) Vacations. Employee shall be entitled to two weeks of vacation
after one year of service to Company. Employee shall accrue one additional day
of vacation for each year of service thereafter.
(e) Bonus. Company shall create a bonus pool ("Bonus Pool"). The
Bonus Pool shall be equal to seven and one half percent (7.5%) of the Company's
net profit. Employee shall be entitle to his pro-rata share of the Bonus Pool
based upon his Base Salary in relationship to the sum total of the Base Salaries
of all of the other Company employees entitle to claim part of the Bonus Pool.
Dispersments from the Bonus Pool shall be made thirty (30) days after the
closing of the Company's accounting year.
(f) Modifications. Company reserves the right to amend the Benefits
Plan and Bonus Plan as it deems necessary.
(g) Stock. Company shall issue to Employee options to purchase
shares of Company stock (Shares) in accordance with the Company Stock Option
Plan. The ownership of the Shares is subject to the conditions outlined in the
Company Stock Option Plan and section 14 of this Agreement.
5. Termination of Employment.
(a) For Due Cause. Nothing herein shall prevent Company from
terminating Employee, without prior notice, for Due Cause, in which event
Employee shall be entitled to receive his Base Salary on a pro rata basis to the
date of termination and all compensation and benefits described in this
Agreement shall then cease. The term "Due Cause" shall mean:
(i) Employee has committed a material breach of this
Agreement, a misappropriation of funds, or other willful serious act
against Company or any of its Affiliates (as defined hereunder)
intending to enrich himself at the expense of Company or any of its
Affiliates, or has been convicted of a felony,
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(ii) Employee has engaged in conduct that has caused
demonstrable and serious injury, monetary or otherwise, to Company
or any of its Affiliates as evidenced by a binding and final
judgment, order, or decree of a court or administrative agency of
competent jurisdiction in effect after exhaustion of all rights of
appeal of the action, suit, or proceeding, whether civil, criminal,
administrative, or investigative,
(iii) Employee, in carrying out his duties hereunder, has been
guilty of willful gross neglect or willful gross misconduct,
resulting in either case in material harm to Company or any of its
Affiliates, or
(iv) Employee has refused to carry out his duties in gross
dereliction of duty and, after receiving notice to such effect from
the Board of Directors, Employee fails to cure the existing problem
within 30 days.
For purposes of this Agreement, "Affiliate" shall mean any individual or any
corporation, partnership, association, limited liability company, or other
entity that directly or indirectly through one or more intermediary's controls,
or is controlled by, or is under common control with Company.
(b) Upon Death. In the event of the death of Employee, this
Agreement shall terminate on the date of death and the estate of Employee shall
be entitled to Employee's Base Salary and any additional incentive or bonus
compensation apportioned to the date of death and all compensation described in
this Agreement shall then cease. In the event any of Employee's immediate family
members are covered under any group sickness, accident, dental and health
insurance plan maintained by Company at the date of Employee's death, Company
shall maintain and provide all payments with respect to such coverages for a
period of twelve months.
(c) Upon Disability. In the event Employee suffers a disability (as
hereinafter defined), this Agreement shall terminate on "the date on which the
disability occurs" (as hereinafter defined) and Employee shall be entitled to
his Base Salary apportioned to the date on which the disability occurs and all
compensation and benefits described in this Agreement shall then cease.
(d) Voluntary Termination. Employee may voluntarily terminate his
employment under this Agreement at any time by providing at least fourteen (14)
days' prior written notice to Company. In such event, Employee shall be entitled
to receive his Base Salary until the date his employment terminates and all
compensation and benefits described in this Agreement shall then cease.
(e) Without Due Cause. Anything in this Agreement to the contrary
notwithstanding, this Agreement and Employee's employment hereunder may be
terminated by Company without Due Cause by providing Employee with fourteen (14)
days notice of such termination. Employee's employment shall be interpreted as
employment-at-will.
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6. Acknowledgements by Employee. Employee acknowledges that: (a) the
services to be performed by him under this Agreement are of a special, unique,
and intellectual character; (b) Company's business is national in scope and its
services are marketed throughout the United States; and (c) Company competes
with other businesses that are or could be located in any part of the United
States.
7. Non-Compete and Non-Solicitation Covenants of Employee.
(a) Covenants. During the Employment Term and during the
Post-Employment Period (defined below), Employee covenants that he will not,
directly or indirectly:
(i) engage or invest in, own, manage, operate, finance,
control, or participate in the ownership, management, operation,
financing, or control of, be employed by, associated with, or in any
manner connected with, lend Employee's name or any similar name to,
lend Employee's credit to or render services or advice to, any
business whose products, services, or activities compete in whole or
in part with the products, services, or activities of Company
anywhere within the Applicable Geographic Area (as defined below);
provided, however, that Employee may purchase or otherwise acquire
less than five percent of any class of securities of any enterprise
(but without otherwise participating in the activities of such
enterprise) if such securities are listed on any national or
regional securities exchange or have been registered under Section
12(g) of the Securities Exchange Act of 1934;
(ii) whether for Employee's own account or for the account of
any other person, solicit business of the same or similar type being
carried on by Company, from any person known by Employee to be a
customer of Company, whether or not Employee had personal contact
with such person during and by reason of Employee's employment with
Company; and
(iii) whether for Employee's own account or the account of any
other person, (A) solicit, employ, or otherwise engage as an
employee, independent contractor, or otherwise, any person who is or
was an employee of Company at any time during the Employment Term or
in any manner induce or attempt to induce any employee of Company to
terminate his employment with Company; or (B) interfere with
Company's relationship with any person, including any person who at
any time during the Employment Term was an employee, contractor,
supplier, or customer of Company.
(b) Post-Employment Period. For purposes of this Section 7, the term
"Post-Employment Period" means, (i) with respect to the termination of
Employee's employment with Company for Due Cause or Employee's voluntary
termination of his employment, the greater of the one-year period beginning on
the date of termination or the period beginning on the date of termination and
expiring on the date the Employment Term was to expire under this Agreement,
and, (ii) with respect to the termination of Employee's employment with Company
without cause, the period over which Employee is receiving compensation from
Company pursuant to Section 5(e).
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(c) Applicable Geographic Area. For purposes of this Section 7, the
term "Applicable Geographic Area" means the United States.
(d) Reformation. If any covenant in this Section 7 is held to be
unreasonable, arbitrary, or against public policy, such covenant will be
considered to be divisible with respect to scope, time, and geographic area, and
such lesser scope, time, or geographic area, or all of them, as a court of
competent jurisdiction may determine to be reasonable, not arbitrary, and not
against public policy, will be effective, binding, and enforceable against
Employee.
(e) Future Employment. Employee will, while the covenant under this
Section 7 is in effect, give notice to Company, within ten days after accepting
any other employment, of the identity of Employee's employer. Company may notify
such employer that Employee is bound by this Agreement and, at Company's
election, furnish such employer with a copy of this Agreement or relevant
portions thereof.
8. Property Rights. Employee agrees promptly to disclose to Company any
and all ideas, concepts, discoveries, inventions, developments, original works
of authorship, software programs, software and systems documentation, trade
secrets, technical data, and know-how that are conceived, devised, invented,
developed, or reduced to practice or tangible medium by Employee, under
Employee's direction, or jointly with others during any period that Employee is
employed or engaged by Company, whether or not during normal working hours or on
the premises of Company, which relate, directly or indirectly, to the business
of Company and arise out of Employee's employment with Company (hereinafter
"Property and Rights"). Employee hereby assigns (and agrees to assign in the
future) to Company all of his right, title and interest to the Property and
Rights and any and all related patent rights, copyrights, and applications and
registrations therefore. During and after his employment, Employee shall
cooperate with Company, at Company's expense, in obtaining proprietary
protection for the Property and Rights and Employee shall execute all documents
which Company shall reasonably request in order to perfect Company's rights in
the Property and Rights. Employee hereby appoints Company his attorney to
execute and deliver any such documents on his behalf in the event Employee
should fail or refuse to do so within a reasonable period following Company's
request. Property and Rights which are subject to copyright registration shall
be "works made for hire" and shall be the property of Company. Employee
understands that, to the extent this Agreement shall be construed in accordance
with the laws of any state which limits the assignability to Company of certain
employee inventions, this Agreement shall be interpreted not to apply to any
such invention which a court rules or Company agrees is subject to such state
limitation.
9. Confidentiality. Employee understands that Company continually obtains
and develops valuable proprietary and confidential information concerning its
business, business relationships, and financial affairs (the "Confidential
Information") which may become known to Employee in connection with his
employment. Employee acknowledges that all Confidential Information, whether or
not in writing and whether or not labeled or identified as confidential or
proprietary, is and shall remain the exclusive property of Company or the third
party providing such information to Company. By way of illustration, but not
limitation, Confidential Information may include Property and Rights, trade
secrets, technical information, know-how, research and development activities of
Company, product and marketing plans, customer and supplier information, and
information disclosed to Company or Employee by third parties of a proprietary
or confidential nature or under an obligation of confidence. Confidential
Information is contained in various media, including without limitation, patent
applications, documentation, manuals, plans, drawings, designs, technical
specifications, laboratory notebooks, supplier and customer lists, internal
financial data and other documents and records of Company. Employee agrees that
Employee shall not, during the Employment Term and thereafter, publish,
disclose, or otherwise make available to any third party, other than employees
of Company, any Confidential Information except as expressly authorized in
writing by Company. Employee agrees that Employee shall use such Confidential
Information only in the performance of his duties for Company and in accordance
with any Company policies with respect to the protection of Confidential
Information. Employee agrees not to use such Confidential Information for his
own benefit or for the benefit of any other person or business entity. Employee
agrees to exercise all reasonable precautions to protect the integrity and
confidentiality of Confidential Information in his possession and not to remove
any materials containing Confidential Information from Company's premises except
to the extent necessary to his employment. Upon the termination of his
employment, or at any time upon Company's request, Employee shall return
immediately to Company any and all materials containing any Confidential
Information then in his possession or under his control. Confidential
Information shall not include information which (a) is or becomes generally
known within Company's industry through no fault of Employee; (b) is lawfully
and in good faith made available to Employee by a third party who did not derive
it from Company and who imposes no obligation of confidence on Employee; or (c)
is required to be disclosed by a governmental authority or by order of a court
of competent jurisdiction, provided that such disclosure is subject to all
applicable governmental or judicial protection available for like material and
reasonable advance notice is given to Company.
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10. Injunctive Relief and Additional Remedy. Employee acknowledges that
the injury that would be suffered by Company as a result of a breach of the
provisions of this Agreement (including any provisions of Section 7) would be
irreparable and that an award of monetary damages to Company for such a breach
would be an inadequate remedy. Consequently, Company will have the right, in
addition to any other rights it may have, to obtain injunctive relief to
restrain any breach or threatened breach or otherwise to specifically enforce
any provision of this Agreement. and Company will not be obligated to post bond
or other security in seeking such relief. Without limiting Company's rights
under this Section 10 or any other remedies of Company and notwithstanding any
other provisions of this Agreement, if Employee breaches any of the provisions
of Section 7, Company will have the right to cease making any payments otherwise
due to Employee under this Agreement.
11. Preservation of Business and Fiduciary Responsibility. Employee shall
use his best efforts to preserve the business and organization of Company, to
keep available to Company the services of present employees, and to preserve the
business relations of Company with suppliers, distributors, customers, and
others. Employee shall not commit any act, or in any way assist others to commit
any act, that would injure Company or its Affiliates. So long as Employee is
employed by Company, Employee shall observe and fulfill proper standards of
fiduciary responsibility attendant upon his service and office.
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12. Third Party Trade Secrets. Employee shall disclose to Company any
obligations that Employee owes to any third party regarding trade secrets,
know-how or intellectual property whether written, verbal or implied. Employee
shall maintain these obligations and not disclose to Company or any of Company's
employees any information which might violate these obligations.
13. Visa. If the Employee is not a US citizen, Employee shall be
responsible for obtaining and maintaining the proper US visa and other
governmental permits to allow Employee to work in the United States. Employee
shall provide Company with proof of such visas and/or other permits.
14. Stock Transfer Conditions. Employee represents that the Shares will be
acquired solely for the account of the Employee for investment purposes only and
not with a view to or for distribution, assignment, or resale. Employee
understands that the Shares will not be registered under the Securities Act of
1933, as amended, or under the securities laws of any state, and that Company
will not be obligated to register the Shares on the Employee's behalf or to
assist the Employee in complying with any exemption from registration. Employee
further understands that the certificates representing the Shares will bear a
restrictive legend stating that the Shares may not be transferred in the absence
of an effective registration statement with respect to such Shares, or an
opinion of Employee's counsel, satisfactory to Company, that registration is not
required pursuant to a valid exemption therefrom.
15. Miscellaneous.
(a) Notices. All notices, requests, demands and other communications
given under or by reason of this Agreement shall be in writing and shall be
deemed given when delivered in person or when mailed, by certified mail (return
receipt requested), postage prepaid, addressed as follows:
To Company: To Employee:
Techsphere Systems International, Inc. Xxxxxx X. Xxxxxxx
00000 Xxxxxxxxx Xxxx., Xxx. 000X 0000 X. Xxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
(b) Governing Law. The execution, validity, interpretation and
performance of this Agreement shall be governed by and construed in accordance
with the laws of the State of Florida.
(c) Headings. The headings of this Agreement are not part of the
provisions hereof and shall have no force or effect.
(d) Entire Agreement and Amendments. This Agreement contains the
entire agreement of Employee and Company relating to the matters contained
herein and supersedes all prior agreements and understandings, oral or written,
between Employee and Company with respect to the subject matter hereof. This
Agreement may be changed only by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
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(e) Severability. If any provision of this Agreement is rendered or
declared illegal or unenforceable by reason of any existing or subsequently
enacted legislation or by the decision of any arbitrator or by any court of
competent jurisdiction, Employee and Company shall either meet and negotiate
substitute provisions or promptly request the court to substitute provisions for
those rendered or declared illegal or unenforceable to preserve the original
intent of this Agreement to the extent legally possible, but all other
provisions of this Agreement shall remain in full force and effect.
(f) Effect and Assignment of Agreement. This Agreement shall be
binding upon Employee and his heirs, executors, administrators, legal
representatives and assigns and upon Company and its respective successors and
assigns. No assignment of this Agreement or of any of the rights or obligations
hereunder by any party hereto shall be valid without the written consent of the
other party.
IN WITNESS WHEREOF, Employee and Company have executed this Agreement on
the date first above written.
"Company" "Employee"
Techsphere Systems International, Inc.
By:
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Title: Xxxxxx X. Xxxxxxx
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299827.1
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