EXHIBIT 10.24
EMPLOYMENT AGREEMENT BETWEEN THE REGISTRANT AND XXXXXXX X. XXXXX DATED
NOVEMBER 21, 2005.
EMPLOYMENT AGREEMENT
XXXXXXX X. XXXXX
THIS AGREEMENT is entered into this 21st day of November 2005, by and between
OnScreen Technologies, Inc., a Colorado corporation (hereinafter "OnScreen"),
and Xxxxxxx X. Xxxxx (hereinafter "Xxxxx" or "Employee), collectively referred
to herein as the "Parties", or in the singular as "Party."
WHEREAS, OnScreen is in the business of designing, developing, commercializing,
marketing, manufacturing and distributing advanced LED technologies and other
technologies throughout the United States of America and elsewhere;
WHEREAS, the OnScreen corporate offices are presently located in Portland,
Oregon and other facilities are located elsewhere within the United States of
America;
WHEREAS, OnScreen has agreed to hire Xxxxx and Xxxxx has agreed to provide
services to OnScreen under a written contract wherein he agrees to provide such
services and OnScreen agrees to maintain Xxxxx'x employment, salary and other
benefits, subject to the terms and conditions contained herein,
IT IS AGREED:
1. EFFECTIVE DATE, ASSIGNMENT AND DUTIES. This Agreement is entered into and
is effective on the date indicated above and, except as otherwise noted
herein, shall remain in effect until such time as it is terminated as
provided for herein. Xxxxx'x initial job title is Chairman of the Board and
Chief Executive Officer. Xxxxx brings significant prior experience in
running both large and small companies; developing and implementing new
product development; and associated skills. In the capacity his capacity,
Xxxxx is responsible to direct, implement, control and otherwise manage all
business; operational; administrative; commercialization; and associated
functions within the Company. Xxxxx hereby acknowledges and agrees that,
periodically, his duties and assignments may require overnight travel to
OnScreen's facilities in Safety Harbor, Florida and its customers'
elsewhere. Both in his capacity as Chairman and CEO, Xxxxx shall report
directly to the Company Board of Directors.
2. XXXXX'X WORK DAYS AND HOURS. Xxxxx'x normal work days are not defined in
terms of specific days, however, he is expected to devote to his employment
at least forty working hours per week and such hours as may be necessary
for Xxxxx to satisfactorily perform the duties of his position. It is
understood and agreed that the location of Xxxxx'x assignment, work days,
work hours, and duties are subject to change.
3. COMPENSATION; EXEMPT STATUS. Xxxxx'x rate of compensation is set at
twenty-two thousand nine hundred and twenty dollars ($22,920) per month
payable in bi-weekly installments. Xxxxx acknowledges that he is hired as
an exempt employee, and further acknowledges that he understands the
difference between an exempt and non-exempt employee under the laws of the
State of Oregon.
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4. REIMBURSEMENT OF EXPENSES. In order to perform his duties, Xxxxx will be
required to travel, entertain present and potential customers of OnScreen,
and shall incur other expenses on behalf of OnScreen. OnScreen shall
reimburse Xxxxx for all expenses incurred by him within 30 days of
receiving notice of the expenses. It is also understood that Contractor's
travel and entertainment expenses will be at least "Business" class. Xx.
Xxxxx is granted a monthly automobile allowance of $1,500.
5. OTHER BENEFITS:
x. Xxxxx shall be entitled to participate in any qualified and
non-qualified stock option plans, stock purchase agreements or
Incentive Stock Options Plans of the Company in which he is
eligible to participate pursuant to the terms of such plans.
Xxxxx'x participation in such plan will not obligate the Company
to the continued employment of Xxxxx. The specific terms and
conditions of any such plan(s) approved by the Board of Directors
shall govern and control the rights of all parties hereto.
x. Xxxxx is entitled to participate in all employee benefit programs
that OnScreen maintains or may establish during the term of this
Agreement including, but not limited to: full medical coverage
for himself, and his family, including optical and dental
coverage; pension plans, group life insurance at the Company's
expense; and any other executive plans that may be established at
the sole discretion of OnScreen.
x. Xxxxx shall accrue PTO; holidays; expenses; reimbursement
policies; and other benefits as set forth in the Employee
Handbook in effect at OnScreen. d. If Xxxxx for any reason
whatsoever becomes permanently disabled, so that he is unable to
perform the duties under this Agreement, the Company agrees to
pay Xxxxx seventy five percent of his annual salary, payable in
the same manner as the salary under this Agreement, for six
months.
6. BONUS PROVISION. Xxxxx shall receive a one time sign on bonus of
$100,000.00, due and payable upon completion of the Equity Round of
financing. In addition, Xxxxx shall receive an annual bonus as follows:
a. During the first year of employment the annual bonus is
guaranteed to be at least one hundred thousand dollars
($100,000.00) with the potential of receiving up to one hundred
percent (100%) of his annual base salary based upon performance.
Said annual bonus to be paid within thirty (30) days of Xxxxx'x
first anniversary date with the Company;
b. During ensuing years, Xxxxx shall receive a minimum annual bonus
of at least fifteen percent (15%) of his base annual salary with
the potential of receiving up to one hundred percent (100%) of
his annual base salary based upon performance. Said annual bonus
to be paid within thirty (30) days of each subsequent anniversary
date with the Company.
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7. STOCK OPTIONS. Upon full execution of this Agreement, Xxxxx shall receive
stock options allowing him to purchase two million (2,000,000) shares of
the Company's common stock at a par value of one cent ($0.01) per share.
Said options shall be valid for five (5) years following the date on which
they are issued. On the first and second anniversary of this Agreement,
respectively, Xxxxx shall be issued stock options under the same terms and
conditions in equal installments such that at the end of two (2) years he
has options to purchase a total number of common shares equaling five
percent (5%) of the fully diluted common shares upon the closing of the
Equity Financing Round to be completed on or about January 1, 2006. Xxxxx
must satisfy his federal, state and local, if any, withholding taxes
imposed by reason of the exercise of these options. Xxxxx may satisfy this
withholding obligation by paying to the Company the full amount of the
withholding obligation in cash or check acceptable to the Company. If he
fails to make such payment of the withholding taxes to the Company within
five (5) days after the exercise of his options, the actual number of
shares of Common Stock issuable upon exercise shall be reduced by the
smallest number of whole shares of Common Stock which, when multiplied by
the fair market value of the Common Stock as of the date the Option is
exercised, is sufficient to satisfy the amount of withholding tax.
8. TERM OF EMPLOYMENT. OnScreen agrees to employ Xxxxx and Xxxxx agrees to
serve OnScreen in his capacity of Chairman and Chief Executive Officer for
a period of three (3) years, to and through November 21, 2008. The
Employment Period shall be automatically renewed for successive three year
periods unless terminated by either Xxxxx or the Company by giving written
notice of termination six (6) months in advance of the renewal date for
each term.
9. TERMINATION WITH CAUSE. The Company shall have the option to terminate
Xxxxx, effective upon written notice of such termination to Xxxxx, for Just
Cause. For purpose of this Agreement, the term "Just Cause" shall mean the
occurrence of any one or more of the following events: (i) the commission
by Xxxxx of theft or embezzlement of Company property or other acts of
dishonesty against the Company; (ii) the commission by Xxxxx of a crime
resulting in injury to the business, property or reputation of the Company
or any affiliate of the Company or commission of other significant
activities harmful to the business or reputation of the Company, (iii)
Xxxxx entering into a written agreement with a competitor which provides
that Xxxxx will perform related activities on behalf of that competitor;
(iv) Xxxxx engaging in a conflict of interest activity which the Board
reasonably considers to be harmful to the best interests of the Company.
In the event OnScreen terminates this Agreement for just cause, OnScreen's
duty to pay salary will be excused from the date of termination forward,
but its duty to award bonus stock which has already been earned shall
continue, as will its duty to pay any expenses already incurred by Xxxxx
before termination.
10. TERMINATION WITHOUT CAUSE. Should OnScreen terminate this contract without
cause, it must:
a. Give Xxxxx no less than thirty (30) days written notice of such
decision to terminate;
b. Pay the salary due to Xxxxx for the remainder of his three (3)
year term. However, such payment shall not be less than $275,000,
no matter how much time remains on the three (3) year term;
c. Continue medical benefits as described herein through the end of
the contract term;
d. Pay to Xxxxx any then outstanding expenses incurred by Xxxxx
before the termination; and
x. Xxxx in Xxxxx any and all unvested bonus stock not to exceed a
total of five percent (5%) of the fully diluted outstanding
common shares following the equity round schedule to close on or
about January 1, 2006.
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11. VOLUNTARY TERMINATION. Xxxxx may voluntarily terminate his employment with
OnScreen upon sixty (60) days written notice. If Xxxxx voluntarily
terminates his employment then OnScreen's duty to pay salary ends on the
date of that termination and OnScreen(TM) shall to pay all expenses already
incurred by Xxxxx before termination. If Xxxxx voluntarily terminates his
employment, he shall receive options for those shares which have previously
vested, but shall receive no further shares or options scheduled to vest
after the date of his voluntary separation.
12. MERGER, CONSOLIDATION, TRANSFER, DISSOLUTION. THIS AGREEMENT SHALL NOT BE
TERMINATED BY ANY:
a. Merger or consolidation in which the Company is not the new or
surviving corporation;
b. Transfer of all or substantially all of the assets of the
Company; or
c. Voluntary or involuntary dissolution of the Company.
d. In the event of any merger or consolidation or transfer of
assets, the surviving or new corporation or the transferee of the
Company's assets shall be bound by and shall have the benefit of
the provisions of this Agreement. The Company shall take all
actions necessary to insure that the corporation or transferee is
bound by the provisions of this Agreement.
13. SURRENDER OF PROPERTIES. Upon termination of Xxxxx'x employment with the
Company, regardless of the reason therefore, Xxxxx shall promptly surrender
to the Company all property provided him by the Company for use in relation
to his employment and, in addition, Xxxxx shall surrender to the Company
any and all materials, lists, files, patent applications, records, models,
notes, copies of documents records, and any written or recorded information
in regards to the business of the Company or other materials and
information of or pertaining to the Company or its customers or prospective
customers or the products, business, and operations of the Company.
14. NO EXPECTATION OF PRIVACY. It is understood and agreed that there is no
expectation of privacy at OnScreen. All areas of the work place, excluding
only the rest rooms, are subject to physical, audio, video or other means
of surveillance, recording and/or inspection. This includes, without
limitation, all desks, lockers and offices. All items brought into the
workplace, including briefcases and purses, are subject to search at any
time, with or without cause, and without any prior notice. All telephone
conversations are subject to being monitored and/or recorded.
15. COMPLIANCE WITH ONSCREEN'S POLICIES AND PROCEDURES. Xxxxx acknowledges that
he has been provided with a copy of OnScreen's Employee Handbook, and
understands that he has a duty to read the manual in its entirety, and has
signed a statement to the effect that Xxxxx has received the manual, has
read it in its entirety, and understands the content of the manual. Xxxxx
agrees to comply with all rules, regulations and policies of the company.
All rules, regulations, policies and benefits are subject to change.
16. CONFLICTS BETWEEN THIS AGREEMENT AND EMPLOYEE HANDBOOK. Should there exist
any conflict between the terms and conditions contained in this Agreement
and the Employee Handbook then in effect, as to that portion of the
clause(s) in conflict only, the terms and conditions herein shall control.
All other provisions in the Employee Handbook, and all other terms and
conditions contained herein, shall remain in full force and effect.
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17. CONFIDENTIALITY. Xxxxx acknowledges that he will receive, during the course
of his employment with OnScreen, information and documents which are secret
and proprietary, and which are the property of OnScreen. Xxxxx acknowledges
that all methods, policies, procedures, practices, and calculations, as
well as all lists and other documents prepared by or for the benefit of
OnScreen are secret and proprietary, and, shall not be copied by any means,
or removed from the premises for any reason, without the express, written
permission from the corporation's president. Xxxxx agrees that he shall not
disclose any information relating to OnScreen, or provide an original or
copy of any document prepared by or for the benefit of OnScreen, to any
third party, or for any reason, without the express, written permission
from the corporation's Board of Directors. It is agreed that this clause
shall survive Xxxxx'x termination of employment. Xxxxx acknowledges that
the wrongful disclosure of OnScreen's proprietary information and/or
documents would result in irreparable harm to OnScreen, and that the
damages sustained as a proximate result of said disclosure would be
difficult, if not impossible to measure. As such, Xxxxx agrees that
OnScreen would be entitled to seek injunctive relief from any court having
competent jurisdiction to prevent the disclosure, or further disclosure of
OnScreen's proprietary information and/or documents.
18. COVENANT NOT TO COMPETE.
(a) DURING EMPLOYMENT PERIOD. During the Employment Period, Xxxxx
shall not, without the prior written consent of the Company,
engage in any other business activity for gain, profit, or other
pecuniary advantage (excepting the investment of funds in such
form or manner as will not require any services on the part of
Xxxxx in the operation of the affairs of the companies in which
such investments are made) or engage in or in any manner be
connected or concerned, directly or indirectly, whether as an
officer, director, stockholder, partner, owner, employee,
creditor, or otherwise, with the operation, management, or
conduct of any business that competes with or is of a nature
similar to that of the Company.
(b) FOLLOWING TERMINATION OF EMPLOYMENT PERIOD. Within a one year
period immediately following the termination of Xxxxx'x
employment with the Company, regardless of the reason therefore,
Xxxxx shall not, without the prior written consent of the
Company: (a) engage in or in any manner be connected or
concerned, directly or indirectly, whether as an officer,
director, stockholder, partner, owner, employee, creditor, or
otherwise with the operation, management, or conduct of any
business similar to the business of the Company being conducted
at the time of such termination; (b) solicit, contact, interfere
with, or divert any customer served by the Company, or any
prospective customer identified by or on behalf of the Company,
during Xxxxx'x employment with the Company; or (c) solicit any
person then previously employed by the Company to join Xxxxx,
whether as a partner, agent, employee or otherwise, in any
enterprise engaged in any business similar to the business of the
Company being conducted at the time of such termination.
19. NOTICES. Any notice to be given pursuant to the provisions of this
Agreement shall be in writing, and shall be either personally served or
mailed to the recipient of the notice at that Party's last known address.
Any notice to be mailed shall deposited in the United States mail, first
class with all postage prepaid.
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20. ASSIGNMENT. None of the rights or privileges contained herein may be
assigned, conveyed, licensed or transferred to any other person, firm,
corporation or organization.
21. WAIVER. Waiver by one Party of any breach of any provision of this
Agreement shall not operate or be construed as a waiver by that PARTY of
any subsequent or continuing breach.
22. JURISDICTION, VENUE AND SERVICE OF PROCESS. Both Parties consent to the
jurisdiction of the state and federal courts for Multnomah County, Oregon.
23. INVALIDITY. Should any term or condition contained herein be adjudged
invalid or contrary to law by any court with competent jurisdiction, the
remaining terms and provisions shall continue with full force and effect.
24. ONLY AGREEMENT. This Agreement constitutes the entire agreement between the
parties relating to the matter contained herein, and all prior agreements,
proposals, and discussions, whether written or oral, shall be null and
void. This Agreement may not be amended except by written agreement
executed by both Parties.
25. LEGAL FEES. Should any action be brought by one Party against the other
Party due to any alleged breach of this Agreement, or interpretation or
enforcement of any term or condition contained herein, the prevailing Party
shall be entitled to recover, in addition to any relief awarded by the
court, jury or arbitrator, reasonable attorney's fees and expenses.
26. INTERPRETATION. This Agreement is intended to be performed in the State of
Oregon and shall be interpreted under the laws of the State of Oregon.
27. SECTION HEADINGS. Section headings have been included in this Agreement
merely for convenience or reference. They are not to be considered part of,
or to be used in interpreting this Agreement.
28. AUTHORIZATION. Those persons executing this Agreement on behalf of the
Parties represent that the execution and performance of the terms of this
Agreement have been duly authorized by their respecting governing board(s),
and that this Agreement is a valid and legal obligation enforceable in
accordance with its terms.
29. ACKNOWLEDGMENT. The parties hereto acknowledge that they have read this
Agreement, encompassing seven (7) pages, and understand and agree to be
bound by its terms and conditions. In addition to this Agreement, Xxxxx
agrees to sign and abide by the terms of OnScreen's Employee Handbook. This
Agreement may be signed in counterparts. Any exact copy of this Agreement
may be used as an original for any purpose. A facsimile signature may be
used, and shall have the same affect, as an original signature.
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OnScreen Technologies, Inc.
Dated: 11/21/05 By: /s/
---------------- -----------------------------------------
Xxxx Xxxxxxx, Director, Compensation Committee
Dated: 11/21/05 By: /s/
---------------- -----------------------------------------
Xxxxxxx Xxxx, Director, Compensation Committee
Dated: 11/21/05 /s/
---------------- -----------------------------------------
Xxxxxxx X. Xxxxx
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