Exhibit 10.10
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is being made as of this 14th day of
October, 1997 between InnoPet Brands Corp., a Delaware corporation (the
"Company"), having its principal offices at Xxx Xxxx Xxxxxxx Xxxxxxxxx, Xx.
Xxxxxxxxxx, Xxxxxxx, and Xxxxxxx X. Xxxxx (the "Employee"), an individual
residing at 0000 Xxxxx Xxxx 00xx Xxxxx, Xxxxx Xxxxxxx, Xxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, the Company desires to employ Employee as its Vice President and
Chief Financial Officer and Employee desires to be employed by the Company in
such positions upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Nature of Employment; Term of Employment. The Company hereby employs
Employee and Employee agrees to serve the Company as its Vice President and
Chief Financial Officer upon the terms and conditions contained herein, for a
term commencing as of October 14, 1997 and continuing until the close of
business on December 31, 2000 (the "Employment Term"). This Agreement will
automatically renew for an additional term of one (1) year if notice of
termination is not given by either party at least forty-five (45) days prior to
the end of the Employment Term.
2. Duties and Powers of Employee; Primary Place of Employment.
(a) During the Employment Term, Employee agrees to devote all of his
full working time, energy, and efforts to the business of the Company. The
Employee's duties shall include, without limitation, those normally performed by
a chief financial officer of a public corporation including, without limitation,
the supervision of all matters of finance relating to or involving the Company.
In performance of his duties, Employee shall be subject to the direction of the
Chief Executive Officer of the Company or such other person or persons as the
Chief Executive Officer shall designate.
(b) Employee shall perform his duties and obligations primarily from
the Company's offices, located in South East Florida, except for required travel
on Company Business. Employee shall be available to travel as the needs of the
Company require.
3. Compensation.
(a) As compensation for his services hereunder, the Company shall pay
Employee a salary, payable in equal semi-monthly installments, at the annual
rate of $104,000 (the "Base Salary"). Additionally, Employee shall participate
in the present or future employee benefit plans of the Company provided that he
meets the eligibility requirements therefor.
(b) Employee's Base Salary shall increase by $25,000 when, commencing
in November, 1997, the Company reports net income after taxes, in accordance
with generally accepted accounting principles consistently applied, for three
(3) consecutive calendar months.
(c) Employee shall be eligible to receive raises each year of the
Employment Term at a minimum to reflect cost of living increases, if any, and
merit raises, subject to satisfactory performance as determined by the Chief
Executive Officer.
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(d) The Employee shall be granted options (the "Options") to purchase
35,000 shares of Common Stock. The exercise price of the Options shall be the
closing bid price of the Company's Common Stock as reported on the NASDAQ
SmallCap Market for the date of the grant (which date shall be the date the
grant of said Options are approved by the Company's Board of Directors). The
Options shall vest as follows so long as the Employee is employed by the Company
on the following dates:
5,000 on December 31, 1998
10,000 on December 31, 1999
20,000 on December 31, 2000
The Options shall be subject to all of the terms of the Company's 1996 Stock
Option Plan and shall be evidenced by a stock option grant certificate that
shall be issued by the Company.
4. Expenses; Vacations. Employee shall be entitled to reimbursement for
reasonable travel and other out-of-pocket expenses necessarily incurred in the
performance of his duties hereunder, upon submission and approval of written
statements and bills in accordance with the then regular procedures of the
Company. During the first year of this Agreement, Employee shall be entitled to
ten (10) days paid vacation time in accordance with then regular procedures of
the Company governing executives as determined from time to time by the
Company's Board of Directors. After the first year of the Agreement, Employee
shall be entitled to fifteen (15) days paid vacation time per year.
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5. Representations and Warranties of Employee. Employee represents and
warrants to the Company that (a) Employee is under no contractual or other
restriction or obligation which is inconsistent with the execution of this
Agreement, the performance of his duties hereunder, or the other rights of the
Company hereunder; and (b) Employee is under no physical or mental disability
that would hinder his performance of duties under this Agreement.
6. Non-Competition.
(a) The Employee agrees that during the Employment Term he will not
engage in, or otherwise directly or indirectly be employed by, or act as a
consultant, or be a director, officer, employee, owner, agent, member or partner
of any other business or organization that is or shall then be competing with
the Company.
(b) If this Agreement is terminated pursuant to Section 9(a), 9(c) or
9(e), Employee, for a period of six (6) months from the date of termination,
shall not, directly or indirectly, be engaged in the marketing or manufacturing
of (i) any form of pet food for cats, dogs, puppies or kittens; or (ii) any
products for cats, dogs, puppies or kittens similar to those that he worked on
or had knowledge of during the Employment Term.
(c) If this Agreement is terminated pursuant to Section 9(b), Employee,
for a period of six (6) months from the date of termination, shall not, directly
or indirectly, compete with or be engaged in the same business as the company,
or be employed by, or act as consultant, or be a director, officer, employee,
owner, agent, member or partner of, any business or organization which, at the
time of such termination, competes with or is engaged in the same business as
the Company. At the end of this period, Employee, for a period of six (6)
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months thereafter, shall not, directly or indirectly, be engaged in the
marketing or manufacturing of (i) any pet food to be given to cats, dogs,
puppies or kittens; or (ii) any products for cats, dogs, puppies or kittens
similar to those that he worked on or had knowledge of during the Employment
Term.
7. Inventions; Patents; Copyrights. Any interest in patents, patent
applications, inventions, copyrights, developments, and processes ("Such
Inventions") which Employee now or hereafter during the period he is employed by
the Company under this Agreement may, directly or indirectly, own or develop
relating to the fields in which the Company may then be engaged shall belong to
the Company; and forthwith upon request of the Company, Employee shall execute
all such assignments and other documents and take all such other action as the
Company may reasonably request in order to vest in the Company all his right,
title, and interest in and to Such Inventions, free and clear of all liens,
charges, and encumbrances.
8. Confidential Information. All confidential information which Employee
may now possess, may obtain during the Employment Term, or may create prior to
the end of the period he is employed by the Company under this Agreement,
relating to the business of the Company or of any customer or supplier of the
Company shall not be published, disclosed, or made accessible by him to any
other person, firm, or corporation during the Employment Term or any time
thereafter without the prior written consent of the Company. Employee shall
return all tangible evidence of such confidential information to the Company
prior to or at the termination of his employment.
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9. Termination.
(a) Notwithstanding anything herein contained, if on or after the date
hereof and prior to the end of the Employment Term, Employee is terminated "For
Cause" (as defined below) then the Company shall have the right to give notice
of termination of Employee's services hereunder as of a date to be specified in
such notice, and this Agreement shall terminate on the date so specified.
Termination "For Cause" shall mean Employee shall (i) be convicted of a felony
crime, (ii) commit any act or omit to take any action in bad faith and to the
detriment of the Company, (iii) commit an act of moral turpitude, (iv) commit an
act of fraud against the Company, or (v) materially breach any term of this
Agreement and fail to correct such breach within ten (10) days after commission
thereof. In the event that this Agreement is terminated "For Cause", pursuant to
Section 9(a), then Employee shall be entitled to receive only his salary at the
rate provided in Section 3 to the date on which termination shall take effect.
(b) In the event that Employee, prior to the end of the Employment
Term, is terminated by the Company other than pursuant to Section 9(a) hereof,
he shall be entitled to receive six (6) months of his annual salary at the rate
provided in Section 3 (the "Severance Payment"). The Severance Payment shall be
paid by the Company in six (6) equal installments beginning thirty (30) days
after the date of termination and every thirty (30) days thereafter until fully
paid. The date of termination shall be specified in a notice of termination to
be provided by the Company.
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(c) In the event that Employee shall be physically or mentally
incapacitated or disabled or otherwise unable fully to discharge his duties
hereunder for a period of six (6) consecutive calendar months, then this
Agreement shall terminate upon 90 days' written notice to Employee, and no
further compensation shall be payable to Employee, except as may otherwise be
provided under any disability insurance policy.
(d) In the event that Employee shall die, then this Agreement shall
terminate on the date of Employee's death, and no further compensation shall be
payable to Employee, except as may otherwise be provided under any insurance
policy or similar instrument.
(e) The Employee may terminate this Agreement on sixty (60) days
notice. If the Employee terminates this Agreement pursuant to this Section 9(e)
he shall not be entitled to receive any Severance Payment.
(f) Nothing contained in this Section 9 shall be deemed to limit any
other right the Company may have to terminate Employee's employment hereunder
upon any ground permitted by law.
10. Merger, Etc. In the event of a future disposition of the properties
and business of the Company, as or substantially as an entirety, by merger,
consolidation, sale of assets, sale of stock, or otherwise, then the Company may
elect to assign this Agreement and all of its rights and obligations hereunder
to the acquiring or surviving corporation; and upon such assignment Employee's
rights and obligations hereunder shall continue with the same force and effect
as if such acquiring or surviving corporation had ab initio been a party hereto
in lieu and stead of the Company.
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11. Survival. The covenants, agreements, representations, and warranties
contained in or made pursuant to this Agreement shall survive Employee's
termination of employment, irrespective of any investigation made by or on
behalf of any party.
12. 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.
13. Notices. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested, or delivered against receipt to the party to whom it
is to be given at the address of such party set forth in the preamble to this
Agreement (or to such other address as the party shall have furnished in writing
in accordance with the provisions of this Section 13). In the case of a notice
to the Company, a copy of such notice (which copy shall not constitute notice)
shall be delivered to Camhy Xxxxxxxxx & Xxxxx LLP, 0000 Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn. Xxxxxx X. XxXxxx, Esq. Notice to the estate of
Employee shall be sufficient if addressed to Employee as provided in this
Section 13. Any notice or other communication given by certified mail shall be
deemed given at the time of certification thereof, except for a notice changing
a party's address which shall be deemed given at the time of receipt thereof.
14. 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
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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. Any waiver must be in writing.
15. Binding Effect. Employee's rights and obligations under this
Agreement shall not be transferable by assignment or otherwise, such rights
shall not be subject to encumbrance or the claims of Employee's creditors, and
any attempt to do any of the foregoing shall be void. The provisions of this
Agreement shall be binding upon and inure to the benefit of Employee and his
heirs and personal representatives, and shall be binding upon and inure to the
benefit of the Company and its successors and those who are its assigns under
Section 10.
16. Headings. The headings in this Agreement are solely for the
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
17. Counterparts; Governing Law. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. It shall be
governed by, and construed in accordance with, the laws of the State of Florida,
without given effect to the rules governing the conflicts of laws.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
INNOPET BRANDS CORP.
By:
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Name: Xxxx Xxxx
Title: CEO
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Xxxxxxx X. Xxxxx
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