EMPLOYMENT AGREEMENT
Exhibit 10.E.09
This EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into by and between
OPTICON SYSTEMS, INC., and its Subsidiaries, (the “Company”), and Xxxxxxx X.
Xxxxx (“Chairman/Employee”) effective as of October 6, 2009 (“Start
Date”).
RECITAL
The Company desires to employ Employee, and Employee is willing to accept
employment by the Company, in each case on the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
AGREEMENT
1. Position
and Duties.
1.1. a.
Position. During the term of this Agreement, Employee agrees to be employed by
and to serve the Company as the Chairman of the Board (Chairman); reporting
directly to the Board of Directors. You will also serve as Chairman of all
wholly owned subsidiaries, until such time that the Board of Directors considers
it appropriate to segregate that position. You will also be appointed to the
Board of Directors.
The
Chairman’s principal place of business with respect to his services to the
Company shall be either Mableton, GA or St. Petersburg, FL, provided that
Employee agrees to undertake such travel as may be required in the performance
of his duties when face to face meetings are required.
1.1. b.
Duties. As the Company’s Chairman, the Chairman is responsible for the strategic
and financial growth of the Company, and to provide leadership, innovation,
creativity, and direction to its future. The fundamental goals of the Chairman
at this stage of the Company’s development are to:
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Leading
the board and board discussions. The chairman’s overarching
responsibility is to ensure the board's effective
functioning. It is broadly understood that boards should only
"govern," and must delegate the running of the company to management. It
is up to each chair to lead the board to a clear understanding of its
role. The chair's job is to lead such discussions, and should
ensure that the rest of the board and members of management are equally
clear--that the essence of his job is as a
facilitator.
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Keep
the Board Focused on Governance, and Out of
Management.
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Shape
Board Calendar and Meeting Agendas. The chairman should oversee the
planning of the board, the board calendar, the scheduling of board
meetings, detailed strategy discussions, and annual budget and operating
plan reviews. Keying off the annual board calendar, the
chairman should play a leading role--working closely with the CEO, and
consulting with the other board directors--in producing the agendas for
each board meeting, and in reviewing the agendas developed for any
committee meetings.
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Ensure
that all Directors Receive Appropriate and Timely
Information.
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Serve
as an Occasional Spokesperson
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Lead
the Outside Directors. Stock exchange rules now require the board's
independent directors to meet in "executive session"--without the
CEO/President or other members of management present--on a regular
basis.
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Deep
involvement in producing a Long-Term Strategy and ensuring the management
team produces an effective operating plan to support the
strategy.
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Coaching
and Mentoring the CEO (President).
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Be
Prepared. There is an important distinction between the role in "normal
times" and in extraordinary situations to act such as when management is
compromised or conflicted (as in an underperformance scenario). The
chairman's role under such circumstances is to recognize the situation for
what it is, and to orchestrate the board's response. This contingency
requires that the chairman have enough flexibility in his schedule to be
capable of devoting his undivided attention to the board's business for
what could be a period of weeks, and
someti
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1.2.
Supervision and Direction. The Chairman shall carry out his duties under
the direction of and shall report to the Board of the Company in accordance with
the Company’s policies, rules and procedures in force at the
time. Employee agrees to support the efforts of all Company employees
and understands that achievement of the overall goals of the Company will
require Employee to contribute to initiatives not defined in Employee’s Position
Profile.
1.3. Time
Required. Employee shall devote his time, attention, skill and efforts to
his tasks and duties hereunder to the affairs of the Company. Company
recognizes that employee has an existing business which has ongoing consulting
engagements which will continue independently but going forward, Employee agrees
that during the Term of his employment by the Company, as defined in paragraph
2.1, Employee will keep the Company informed of the names and addresses of all
persons, firms or corporations by or for whom he acts as an agent or consultant
or in whom he may own any one percent (1%) or more equity
interest. Employee and Company agree that investing in the public
stock market and other private investments such as real estate, shall not be
deemed “business activity” for purposes of this Section. As a member
of the Management Team, Employee is expected to contribute to the internal
development of the Company.
2.
Term of Employment, Termination.
2.1. Term.
The term of employment under this Agreement (the “Term”) shall begin on Start
Date and shall continue through one calendar years after the Start Date (the
last day of such period being the “Expiration Date”), unless earlier terminated
in accordance with Article 2 or extended pursuant to the following
sentence. Unless written notice is given by the Company or by Employee to
the other at least ninety days prior to the Expiration Date (or any later date
to which the Term shall have been extended in accordance with this Section 2.1)
advising that the one giving such notice does not desire to extend or further
extend this Agreement, the Term shall automatically be extended for additional,
successive one-year periods without further action of either the Company or
Employee.
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2.2. Termination
for Cause. Termination for Cause (as defined in Section 2.7(a) below) may
be effected by the Company at any time during the Term of this Agreement and
shall be effected following approval by the Board of Directors by written
notification to Employee from the President, stating the reason for
termination. Such termination shall be effective immediately upon the
giving of such notice, unless the Board of Directors shall otherwise
determine. Upon Termination for Cause, Employee shall be paid all accrued
salary, any benefits under any plans of the Company in which Employee is a
participant to the full extent of Employee’s rights under such plans, accrued
vacation pay and any appropriate business expenses incurred by Employee in
connection with his duties hereunder prior to such termination, all to the date
of termination, but Employee shall not be entitled to any other compensation or
reimbursement of any kind, including without limitation, severance
compensation.
2.3. Voluntary
Termination. In the event of a Voluntary Termination (as defined in
Section 2.8.c. below), the Company shall pay to Employee all accrued salary,
bonus compensation to the extent earned, any benefits under any plans of the
Company in which Employee is a participant to the full extent of Employee’s
rights under such plans, accrued vacation pay and any appropriate business
expenses incurred by Employee in connection with his duties hereunder, all to
the date of termination, but no other compensation or reimbursement of any kind,
including without limitation, severance compensation. Employee may affect
a Voluntary Termination by giving sixty days’ prior written notice of such
termination to the Company.
2.4.
Termination by Death. In the event of Employee’s death during the Term of
this Agreement, Employee’s employment shall be deemed to have terminated as of
the last day of the month during which his death occurs and the Company shall
pay to his estate or such beneficiaries, as Employee may from time to time
designate, all accrued salary, any benefits under any plans of the Company in
which Employee is a participant to the full extent of Employee’s rights under
such plans, accrued vacation pay and any appropriate business expenses incurred
by Employee in connection with his duties hereunder, all to the date of
termination. Employee’s estate shall be paid additional compensation,
including a pro rata computation of all partially vested compensation,
calculated on a per week basis, from the first date of the current vesting
period until the last date the employee reported to work.
2.5. a.
Termination by Reason of Disability. If, during the Term of this
Agreement, a physician selected by the Company certifies that Employee has
become physically or mentally incapacitated or unable to perform his full-time
duties under this Agreement, and that such incapacity has continued for a period
of 180 calendar days within any period of 365 consecutive days, the Company
shall have the right to terminate Employee’s employment hereunder by written
notification to Employee, and such termination shall be effective on the seventh
day following the giving of such notice (“Termination by Reason of
Disability”). In such event, the Company will pay to Employee all accrued
salary, any benefits under any plans of the Company in which Employee is a
participant to the full extent of Employee’s rights under such plans, accrued
vacation pay, any appropriate business expenses incurred by Employee in
connection with his duties hereunder, all to the date of termination, and all
severance compensation required under Section 4.1. Employee shall be
paid additional compensation, including a pro rata computation of all partially
vested compensation, calculated
on a per week basis, from the first date of the current vesting period until the
last date the employee reported to work.
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b. In the
event of a Termination by Reason of Disability, upon the termination of the
disability, the Company will use its best efforts to reemploy Employee, provided
that such reemployment need not be in the same capacity or at the same salary or
benefits level as in effect prior to the Termination by Reason of Disability,
and compensation paid for a partial vesting period will not be eligible toward
future vesting opportunity.
2.6. Employee’s
Obligation Upon Termination. Upon the Termination of Employee’s employment
for any reason, Employee shall immediately return to the Company all personal
property and proprietary information in Employee’s possession belonging to the
Company. Unless and until Employee has complied with this Section (which
shall be determined by the Company’s standard termination and check-out
procedures), the Company shall have no obligation to make any payment of any
kind to Employee hereunder.
2.7.
Definitions. For purposes of this Agreement the following terms shall have
the following meanings:
(a). “Termination
for Cause” shall mean termination by the Company of Employee’s employment by the
Company by reason of:
(i)
Employee’s willful dishonesty towards, fraud upon, or deliberate injury or
attempted injury to, or breach of fiduciary duty to, the Company;
(ii)
Employee’s material breach of this Agreement, including any Exhibit hereto, or
any other agreement to which Employee and the Company are parties;
(iii)
Employee’s use or possession of illegal drugs at any time, illegal use of
prescription drugs during working hours or on Company property or Employee
reporting to work (which includes activities away from Company offices) under
the influence of illegal drugs, above the legal limit of alcohol or illegal
use of prescription drugs;
(iv)
Conduct by Employee, whether or not in connection with the performance of the
duties contemplated hereunder, that would result in serious prejudice to the
interests of or material embarrassment to the Company if Employee were to
continue to be employed, including, without limitation, the conviction of a
felony or a good faith determination by the Board of Directors that Employee has
committed acts involving moral turpitude;
(v)
Any material violation of any written rule, regulation or policy of the Company
by Employee or Employee’s failure to follow reasonable instructions or
directions of the Board of directors of the Company (as it relates to the
Employee’s written job description) or any policy, rule or procedure of the
Company in force from time to time; provided, that Employee shall have fifteen
days to cure such violation upon written notice of his violation described in
reasonable detail. Any changes to Company policies, rules and procedures
must be provided to Employee in writing ten days prior to the changes becoming
effective.
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(b). “Voluntary
Termination” shall mean termination by Employee of Employee’s employment other
than (i) Termination by Reason of Disability and (ii) Termination by reason of
Employee’s Death.
3.
Salary, Bonus, and Benefits Compensation.
3.1. Base
Salary As compensation for the services to be rendered by Employee to the
Company as provided in Section 1 and subject to the terms and conditions of
Section 2, the Company agrees to pay to Employee $7,000.00 per month; $5,000.00
is to be paid in S8 Shares of Company stock, and $2,000.00 will be deferred
compensation in PowerCon.
a. The
Company also agrees that Employee, per this Agreement, must receive a “net” of
$5,000.00 per month as a result of selling the monthly allocation of Company S8
stock, or the Company will allocate additional shares until the minimum net of
$5,000.00 per month is payable to Employee.
b.
Amounts deferred will be paid upon receipt of Company’s funding of its PowerCon
Systems, Inc. Subsidiary in the amount of $250,000 or greater. Employee agrees
that deferred compensation, $2,000 per month, will be deferred compensation for
the first 90 days. If Company is unable to secure investment capital, debt
financing, grant funding, or revenue by December 31, 2009, it may be necessary
to extend the deferred compensation or a portion of it for an additional number
of days. If at that time the employee no longer wishes to continue in this
manner, the initial deferred compensation will be paid in S8 Company
stock.
3.2 Share
Compensation. The Employee Incentive Plan, (EIP) will define bonuses to be paid
for the achievement of specific goals and objectives approved by the Board of
Directors. Bonus compensation may be in cash, common stock, stock
options, stock grants and other elements of participation at the discretion of
the Board of Directors. The Board has approved the
following:
a.
Employee is eligible to receive 375,000 shares of stock in the Company’s
wholly-owned Subsidiary, PowerCon Systems, Inc., (PCS) by achievement of goals
and objectives, established and approved by the Board of
directors. Annually on the anniversary of his Start Date, 125,000 of
these restricted shares will be eligible to vest, based on Employee’s percentage
of accomplishment of his approved goals and objectives.
b.
Performance reviews will be conducted on a six-month basis. Employee
will be eligible to vest 50% of his annual stock allocation if the goals and
objectives approved by the Board of Directors spanning the past six months’
performance have been achieved. Under the conditions of achievement
aforementioned, vesting shall occur over a three year term, on the six (6) month
anniversary dates from the Employee’s Start Date. Should Employee
miss his objectives at his six-month performance review, he shall be eligible to
vest said shares upon achievement of those objectives, subject to the approval
of the Board of Directors.
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c.
Employee will receive an allocation equal to 100% of vested PCS stock, in stock
options of Company stock at $.08 per share. For every one (1) share
of PCS stock earned and vested, the matching allocation of Company stock options
shall be one (1) share, eligible at any point in time that PCS shares are
vested.
3.3
Bonus. The Board of Directors may establish a goal or incentive for the Company,
which may include a target revenue goal, delivery of a product, consummation of
a merger, asset base, etc. Employee shall be considered for a bonus
for achievement of the goals or initiatives established by the
Board.
a. In
support of the Company’s Strategic Goal to acquire investment capital and
funding in PowerCon Systems, Inc., Employee is eligible to participate in a
Bonus Incentive Program that offers incremental compensation based on the
following achievement(s):
Upon
successful identification, introduction, and substantial contribution to sources
of funding, Employee will receive Bonus compensation equivalent to the goal
achievement defined by the following guidelines:
Funding
from $250,000 to $750,000 will entitle Employee to a $10,000.00 Bonus; for every
incremental $250,000 received from the same source, Employee will be entitled to
an additional $7,500.00 Bonus, payable upon receipt of funding. This Bonus
Incentive Program is effective immediately and will remain in effect until
October 31, 2010.
3.4
Additional Benefits. During the Term of this Agreement, Employee shall be
entitled to the following benefits:
(a)
Employee Benefits. Employee shall be included in all group insurance plans
and other benefit plans and programs made available to Senior Management
Employees of the Company when available.
(b)
Vacation. In consideration for Employee’s prior work efforts for the
Company, Employee is entitled to take two (2) weeks of paid vacation during the
first year of employment. One year from his Starting Date, Employee will
be entitled to 4 weeks paid vacation, accrued quarterly.
(c)
Approved Absences. Employee will notify the Board of Directors of
necessary absence on an individual basis for legitimate reasons including, but
not limited to, sick days, family emergencies, and religious
holidays.
(d)
Reimbursement for Expenses. The Company shall reimburse Employee for
reasonable out-of-pocket business, travel and entertainment expenses incurred by
Employee in connection with his duties under this Agreement in accordance with
the Company’s reimbursement policy in effect at the time. To receive
reimbursement, the Employee must submit a written expense report, attaching
receipts thereto, listing all expenses to be reimbursed, the amount of each, the
business purpose or benefit of the expense and such other information as may be
required to satisfy the requirements of the Internal Revenue Code for deduction
of such expenses by the Company. Reimbursement
will occur within six working days of Expense Report submission.
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In
support of the Company’s goal of improving margins and the cost of sales,
Employee agrees to contribute to the Company’s financial viability by managing
all expenditures with a P&L perspective.
(e)
Allowances. The Company shall pay to or for the benefit of Employee
allowances for parking, telephone, computers, and other necessities for the
conduct of business, at the discretion and approval of the Board of
Directors.
4. Other
Agreements.
4.1.
Severance Compensation. In the event that Employee is terminated without
cause, the Employee will receive an allocation of stock commensurate with their
contributions to Company, as determined by their prior Performance Appraisal,
based on the achievement of their Objectives. If the Employee is
terminated without cause, has achieved their Objectives, and has been
employed with the Company:
a. for a
period of up to 6 months, Employee will receive 1/6 of their total stock
allocation;
b. for a
period of 6 to 12 months, Employee will receive 1/3 of their total stock
allocation;
c. for a
period of 12 to 18 months, Employee will receive 1/2 of their total stock
allocation;
d. for a
period of 18-24 months, Employee will receive 2/3 of their total stock
allocation;
e. for a
period of 24-30 months, Employee will receive 5/6 of their total stock
allocation;
f. for a
period of 30-36 months, Employee will receive 100% of their total stock
allocation.
g. In
appreciation for their contribution to the start-up efforts of the Company,
Employee will receive Company S8 stock, equivalent to three months base
salary.
h.
Employee will receive an additional allocation of Company S8 shares of stock,
equal to 50% of vested PCS stock.
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4.2
Employee agrees that to induce the Company to enter into this Agreement, he has
concurrently executed and delivered to the Company (a) an Employee
Non-Disclosure Agreement and Proprietary Rights Assignment dated as of event
date herewith, in the form of Exhibit A hereto, and (b) a Non-Solicitation and
Non-Competition Agreement dated as of even date herewith, in the form of Exhibit
B hereto. Employee hereby covenants and agrees to fully abide by each and
every term of such agreements, and agrees and understands that a breach or
violation by Employee of any provision of any provision of either of such
agreements shall constitute grounds for Termination for Cause, and that no such
termination shall limit or affect any other rights and remedies of the Company
arising out of or in connection with any such breach or violation. The
covenants on the part of Employee contained in such agreements shall survive
termination of this Agreement, regardless of the reason for such termination,
unless specifically excluded by this Agreement. Employee hereby represents and
acknowledges that the Company is relying on the covenants contained in such
agreements in entering into this Agreement, and that the terms and conditions of
the covenants contained in such agreements are fair and reasonable.
5.
Miscellaneous.
5.1. Waiver.
The waiver of the breach of any provision of this Agreement shall not operate or
be construed as a waiver of any subsequent breach of the same or other provision
hereof.
5.2. Entire
Agreement; Modifications. This Agreement represents the entire
understanding among the parties with respect to the subject matter hereof, and
this Agreement supersedes any and all prior understandings, agreements, plans
and negotiations, whether written or oral with respect to the subject matter
hereof including without limitation, any understandings, agreements or
obligations respecting any past or future compensation, bonuses, reimbursements
or other payments to Employee from the Company. All modifications to this
Agreement must be in writing and signed by both parties hereto.
5.3. Notices.
All notices and other communications under this Agreement shall be in writing
and shall be given by first class mail, certified or registered with return
receipt requested, and shall be deemed to have been duly given three (3) days
after mailing to the respective persons named below:
If to the
Company:
OptiCon
Systems Inc., 000 Xxxxxxx Xxxxxx, Xx. Xxxxxxxxxx, XX 00000
Attn: Xxx
Xxxxxx, Chairman of the Board
If to
Employee:
Xxxxxxx
X. Xxxxx, 000 Xxxxxxx Xxxxxx Xxx, Xxxxxxxx, XX 00000
Any party
may change such party’s address for notices by notice duly given pursuant to
this Section.
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5.4. Headings.
The Section headings herein are intended for reference and shall not by
themselves determine the construction or interpretation of this
Agreement.
5.5. Governing
Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida.
5.6. Severability.
Should a court or other body of competent jurisdiction determines that any
provision of this Agreement is invalid or unenforceable, such provision shall be
adjusted rather than voided, if possible, and all other provisions of this
Agreement shall be deemed valid and enforceable to the extent
possible.
5.7. Benefits
of Agreement. The provisions of this Agreement shall be binding upon and
inure to the benefit of the executors, administrators, heirs, successors and
assigns of the parties; provided, however, that except as herein expressly
provided, this Agreement shall not be assignable either by the Company (except
to an affiliate of the Company) or by Employee.
5.8. Counterparts.
This Agreement may be executed in one or more counterparts, all of which taken
together shall constitute one and the same Agreement.
5.9. Withholdings.
All compensation and benefits to Employee hereunder shall be subject to all
applicable federal, state, local and other withholdings and similar taxes and
other payments required by applicable law.
5.10. Remedies.
All rights and remedies of the Company and of the Employee hereunder shall be
cumulative and the exercise of any right or remedy shall not preclude the
exercise of another.
5.11. Interpretation
Review. Counsel in the negotiation and execution of this Agreement has
represented both parties to this Agreement, and no inference shall be drawn
against the drafting party. Employee acknowledges that he has in fact
reviewed and discussed this Agreement with his counsel and that he understands
and assents to the terms hereof.
5.12. Arbitration.
Any controversy or claim arising out of or relating to this agreement, or breach
thereof (other than any action by the Company seeking an injunction or equitable
relief under the Employee Non-Disclosure Agreement and Proprietary Rights
Assignment or the Non-Solicitation and Non-Competition Agreement executed by the
Employee, as amended from time to time) shall be settled by binding arbitration
to be held in Tampa, Florida, in accordance with the Rules of the American
Arbitration Association, and judgment upon any proper award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. There
shall be three arbitrators, one to be chosen directly by each party at will, and
the third arbitrator to be selected by the two arbitrators so chosen. To
the extent permitted by the rules of the American Arbitration Association, the
selected arbitrators may grant equitable relief. Each party shall pay the
fees of the arbitrator selected by him and his own attorneys, and the expenses
of his witnesses and all other expenses connected with the presentation of his
case. The cost of the arbitration including the cost of the record of
transcripts thereof, in any, administrative fees, and all other fees and
cost
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shall be
borne equally by the parties. The rules of discovery of the Federal
District Court for the Middle District of Florida shall govern discovery
conducted by the parties, who shall have the right to apply to said court for
enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement presented on
October 1, 2009,
By:
/s/ Xxx
Xxxxxx
Xxx
Xxxxxx,
Chairman,
OPTICON SYSTEMS, INC.
Accepted
and Agreed To By:
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/s/ Xxxxxxx X.
Xxxxx
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October 6, 2009
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Xxxxxxx
X. Xxxxx
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Date
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Exhibit
“A”
EMPLOYEE
NON-DISCLOSURE AGREEMENT
AND
PROPRIETARY RIGHTS ASSIGNMENT
In return for new or continued employment by OptiCon Systems, Inc., and its
Subsidiaries, (“Company “), the undersigned, Xxxxxxx X. Xxxxx
(“Employee”) agrees as follows:
1. I agree during the Term of my employment to promptly disclose and
describe to the Company all ideas, inventions, improvements, discoveries,
enhancements, modifications, technical developments, and works of authorship
(including all writings, computer programs, software and firmware), whether or
not patentable or copyrightable, and whether in oral, written, or in machine
readable form, which relate to or may be deemed to be useful to the Company’s
business as presently conducted or as it may be conducted in the future, which
are conceived, reduced to practice, or authored by me, solely or jointly with
others, at any future time within the scope of my employment or with the use of
the Company’s time, material, facilities or funds (the “Work
Product”).
2. I hereby assign to the Company my entire right to all of the Work
Product and agree that the Work Product is and will be the sole and exclusive
property of the Company. I will not, however, be required to assign to the
Company any invention that I developed entirely on my own time without using the
Company’s funds, equipment, materials or facilities, unless such invention
either: (i) relates to the Company’s business or actual or demonstrably
anticipated research or development of the Company, or (ii) results from or is
related to or suggested by any Company research, development or other
activities, including without limitation any work performed by me for the
Company. I agree to take any acts and to execute any documents that the
Company reasonably requests in order to evidence any assignment that I am
required to make under this paragraph. Except for any written agreement
between the Company, and me I will not be entitled to any royalty, commission,
or other payment or license or right with respect to the Work Product except as
specifically agreed to in this agreement.
3. No Work Product will be made available by me to others during or
following the term of my employment unless the Company consents in writing
except as specifically agreed to in this agreement.
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4. I hereby grant and agree to grant to the Company the right to obtain,
for its benefit and in its name, patents and patent applications (including
without limitation original, continuation, reissue, utility and design patents,
patents of addition, confirmation patents, registration patents, utility models,
etc., and all other types of patents and the like, and all renewals and
extensions of any of them) for the Work Product in all countries.
5. Both during and after the term of my employment, I will maintain in
confidence, and will not disclosure or use or retain for my benefit or the
benefit of anyone other than the Company any secret, proprietary or confidential
information or trade secrets or know-how belonging to or in the possession of
the Company (the “Proprietary Information”), except to the extent required to
perform my assigned duties on behalf of the Company in my capacity as an
Employee of the Company. The Proprietary Information which I agree to
maintain in confidence includes, but is not limited to, technical and business
information relating to the Company’s inventions or products, research and
development, finances, customers, marketing, future business plans, machines,
equipment, services, systems, supply sources, cost of operations, business
dealings, pricing methods, regulatory matters, software, contracts, contract
performance, formulae, processes, business methods, and any information
belonging to customers and suppliers of the Company which may have been
disclosed to me as the result my being as an Employee of the Company. My
promise to maintain the confidentiality of the Proprietary Information will
apply whether or not the Proprietary Information is in written or permanent
form, whether or not is was developed by me or by others employed by the Company
or was obtained by the Company from third parties, and whether or not the
Proprietary Information has been identified by the Company as secret or
confidential except as specifically agreed to in this agreement.
6. All records, reports, notes, compilations or other recorded matter, and
any copies or reproductions thereof, that relate to the Company’s operations,
activities, or business, which were made or received by me during the term of my
employment (the “Company Materials”) are and shall continue forever to be the
Company’s exclusive property, and I will keep the same at all times in the
Company’s custody and subject to its control. Upon termination of my
employment or at the request of the Company before termination, I will deliver
to the Company all written and tangible material in my possession incorporating
the Work Product, the Proprietary Information and the Company Materials except
as specifically agreed to in this agreement.
7. I agree to cooperate with the Company or its designees, both during and
after the term of my employment, in procuring, maintaining and protecting the
Company’s rights in the Work Product and the Proprietary Information, including
without limitation patents and copyrights. I will sign all papers which
the Company deems necessary or desirable for the procurement, maintenance and
protection of such rights. I will keep and maintain adequate and current
written records of all Work Product in the form of notes, sketches, drawings, or
reports related to the Work product in the manner and form requested by the
Company, and such records shall be and remain the property of the Company and be
available to the Company at all times except as specifically agreed to in this
agreement.
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8. There is no other contract or duty on my part now in existence to
assign Work Product or that is inconsistent with this Agreement. I will
not disclose or induce the Company to use or bring onto the Company’s premises
any confidential information or material that I am now aware of or become aware
of which belongs to anyone other than the Company. During my employment by
the Company, I will not accept or engage in any employment, consulting, or other
activity (a) detrimental or incompatible with my obligations to the Company,
including without limitation my obligations under this Agreement, or (b) in any
business competitive with the Company’s business as it is presently conducted or
as it may be conducted at any future time during my employment.
9. I acknowledge that my obligations and promises under this Agreement are
of a unique and intellectual character, which gives them particular value.
A breach of any of the promises or agreements contained herein will result in
irreparable and continuing damage to the Company for which there will be no
adequate remedy at law, and I agree that in addition to any other rights and
remedies of the Company for such breach (including monetary damages, if
appropriate), the Company is entitled to injunctive relieve and/or a decree for
specific performance if I breach this Agreement. All rights and remedies
of the Company for a breach by me of this Agreement shall be cumulative and the
exercise of any right or remedy by the Company will not preclude the exercise of
another.
10. Unless there is a written employment agreement for a specified term in
effect between the Company and I, the Company or I may terminate my employment
at any time, with or without cause, however, such termination will not affect
the Company’s rights or my obligations under this Agreement except as
specifically defined in this agreement. This Agreement represents the
entire understanding between me and the Company as to the subject matter
hereof. This Agreement may not be modified or amended except in a written
document signed by me and the Company. This Agreement shall inure to the
benefit of the Company’s successors and assigns and shall be binding on my
heirs, administrators and legal representatives.
11. If the Company waives a breach by me of any provision of this
Agreement, such waiver shall not operate or be construed as a waiver of any
other or subsequent breach by me. If any provision of this Agreement is
held to be invalid, void, or unenforceable, the remaining provisions shall
nevertheless continue in full force and effect without being impaired or
invalidated in any way.
12. I agree that my promises contained in this Agreement are a material
inducement to the Company’s giving me employment, that the matters I have agreed
to are fair and reasonable under the circumstances, that any Proprietary
Information I receive during the course of my employment may affect the
effective and successful conduct of the Company’s business and goodwill, and
that the proprietary Information is provided to me in confidence due to my
employment and my need to know such information in order to completely and
competently perform my duties and obligations on behalf of the
Company.
13. I agree that Article 6 - Miscellaneous of my Employment Agreement with
the Company is incorporated herein by this reference
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida.
Page 13
of 17
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement presented on
October 1, 2009,
By:
/s/ Xxx
Talari_
Xxx
Xxxxxx,
Chairman,
OPTICON SYSTEMS, INC.
Accepted
and Agreed To By:
|
/s/ Xxxxxxx X.
Xxxxx
|
October 6, 2009
|
|
Xxxxxxx
X. Xxxxx
|
Date
|
Page 14
of 17
EXHIBIT
“B”
Non-Solicitation
and Non-Competition Agreement
This Non-Solicitation and Non-Competition Agreement (“Agreement”) is made and
entered into as of the date set forth below, by Xxxxxxx X. Xxxxx
(“Employee”) in favor and for the benefit of OptiCon Systems, Inc., and its
Subsidiaries, a Florida corporation (the “Company”).
RECITALS
In order to induce the Company to enter into and perform that certain Employment
Agreement dated as of even date herewith between the Company and Employee (the
“Employment Agreement” and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Employee hereby agrees
as follows:
1. Non-Solicitation; Non-Competition. The period from the Start Date
through the Termination Date, as defined in Section 2 of the Employment
Agreement, plus one year after the Termination Date is defined for this
Agreement as the “Non-Competition Period”. During the Non-Competition
Period, Employee shall not, without the Company’s prior written consent,
directly or indirectly, (a) call on any person or entity who, at the time of
such call, is a customer of the Company or any parent or subsidiary of the
Company, with respect to the purchase of any goods or services which are, at the
time, being offered by the Company or any parent or subsidiary of the Company or
which are under development by the Company or any parent or subsidiary of the
Company at the time of Employee’s employment, (b) solicit or induce or attempt
to solicit or induce any customer of the Company or any parent or subsidiary of
the Company to reduce, or take any action which would reduce, its business with
the Company or any parent or subsidiary of the Company, (c) solicit or attempt
to solicit any Employees of the Company or any parent or subsidiary of the
Company to leave the employ of the Company or any parent or subsidiary of the
Company, or (d) hire any Employees or former Employees of the Company or any
parent or subsidiary of the Company or cause any entity with which Employee is
affiliated or in which Employee owns an equity interest to hire any such
Employees or former Employees except as specifically defined in this
agreement. As used herein, the term “former Employee” means a person who
has been an Employee of the Company or any parent or subsidiary of the Company
within the twelve-month period prior to the date of determination.
2. Notice of Subsequent Employment. Employee agrees that during the
Non-Competition Period Employee will keep the Company informed of the names and
addresses of all persons, firms or corporations by or for whom he is employed
full time from time to time, or for whom he acts as agent or consultant or in
whom he may own any one percent (1%) or more equity interest
Page 15
of 17
3. Breach. Employee agrees that a remedy at law for breach of the
covenants contained herein would be inadequate, that the Company would suffer
irreparable harm as a result of such breach and that in addition to any other
rights and remedies of the Company for such breach, the Company shall be
entitled to apply to a court of competent jurisdiction for temporary and
permanent injunction or an order for specific performance of such covenants,
and, if the Company prevails, to recover from Employee all costs of any such
action brought by the Company, including without limitation reasonable
attorneys’ fees and expenses.
4. Enforcement. It is the desire and intent of Employee that the
covenants of Employee contained herein shall be enforced to the fullest extent
permissible under the laws and public policies of each jurisdiction in which
enforcement is sought. If any particular provision(s) of this Agreement
shall be adjudicated to be invalid or unenforceable, such provision(s) shall be
deemed amended to provide restrictions to the fullest extent permissible,
consistent with applicable law and policies, and such amendment shall apply only
with respect to the particular jurisdiction in which such adjudication is
made. If such deemed amendment is not allowed by the adjudicating body,
the offending provision shall be deleted and the remainder of this Agreement
shall not be affected. This Agreement shall be in addition to and not in
lieu of any other noncompetition or similar covenants of Employee entered into
prior to or after the date hereof (unless otherwise provided in a written
agreement signed by the Company).
5. Miscellaneous.
5.1 Waiver. The waiver of the breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
of the same or other provision hereof.
5.2 Modification; Amendment. Any modification or amendment to this
Agreement must be in writing and signed by the Company and
Employee.
5.3 Notices. All notices and other communications under this
Agreement shall be in writing and shall be given as specified in Section 6.3 of
the Employment Agreement.
5.4 Headings. The Section headings herein are intended for reference
and shall not by themselves determine the construction or interpretation of this
Agreement.
5.5 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida.
5.6 Severability. Should a court or other body of competent
jurisdiction determine that any provision of this Agreement is excessive in
scope or otherwise invalid or unenforceable, such provision shall be adjusted
rather than voided, if possible, and all other provisions of this Agreement
shall be deemed valid and enforceable to the extent possible.
Page 16
of 17
5.7 Benefits of Agreement. The provisions of this Agreement shall be
binding upon the executors, administrators, heirs, successors and assigns of
Employee, and shall inure to the benefit of the Company and its successors and
assigns.
5.8 Remedies. All rights and remedies of the Company hereunder shall
be cumulative and the exercise of any right or remedy shall not preclude the
exercise of another.
5.9 Interpretation; Review. Employee acknowledges that he has in fact
reviewed and discussed this Agreement with his counsel and that he understands
and voluntarily agrees to all of the terms hereof.
5.10 I agree that Article 6 - Miscellaneous of my Employment Agreement
with the Company is incorporated herein by this reference.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement presented on
October 1, 2009
By:
/s/ Xxx
Talari_
Xxx
Xxxxxx,
Chairman,
OPTICON SYSTEMS, INC.
Accepted
and Agreed To By:
|
/s/ Xxxxxxx X.
Xxxxx
|
October 6, 2009
|
|
Xxxxxxx
X. Xxxxx
|
Date
|
Page 17
of 17
