EMPLOYMENT AGREEMENT
This
Executive Employment Agreement, dated February 28, 2007 (the “Commencement Date”),
is between Pools Press, Inc., an Illinois corporation (the “Company”) and Xxxx
Xxxxxxx, an individual residing at ___________________________, (“Executive”).
1.
Position and Responsibilities
(a)
Position. Executive is
employed by the Company to render services to the Company in the position of
President. Executive shall perform such duties and responsibilities
as are normally related to such position in accordance with the standards of
the
industry and any additional duties now or hereafter assigned to Executive by
the
Company. Executive shall abide by the rules, regulations, and practices as
adopted or modified from time to time in the Company’s sole
discretion.
(b)
Other Activities. Except
upon the prior written consent of the Company, Executive will not, during the
term of this Agreement, (i) accept any other employment, or (ii) engage,
directly or indirectly, in any other business activity (whether or not pursued
for pecuniary advantage) that might interfere with Executive’s duties and
responsibilities hereunder or create a conflict of interest with the
Company.
(c)
No Conflict. Executive
represents and warrants that Executive’s execution of this Agreement,
Executive’s employment with the Company, and the performance of Executive’s
proposed duties under this Agreement shall not violate any obligations Executive
may have to any other employer, person or entity, including any obligations
with
respect to proprietary or confidential information of any other person or
entity.
(d)
Term. The term of
employment of Executive by the Company pursuant to this Agreement shall be
for
the period commencing on the Commencement Date and ending on the three year
anniversary of the Commencement Date, or such earlier date that Employee’s
employment is terminated in accordance with the provisions of this Agreement
(the “Term”).
2.
Compensation and Benefits
(a)
Base Salary. In
consideration of the services to be rendered under this Agreement, the Company
shall pay Executive a salary at the rate of One Hundred Two Thousand Dollars
($102,000) per year (the “Base Salary”). The
Base Salary shall be paid in accordance with the Company’s regularly established
payroll practice. Executive’s Base Salary will be reviewed from time
to time in accordance with the established procedures of the Company for
adjusting salaries for similarly situated employees and may be adjusted in
the
sole discretion of the Company.
(b)
Benefits. Executive shall
be eligible to participate in the benefits made generally available by the
Company to similarly-situated employees, in accordance with the benefit plans
established by the Company, and as may be amended from time to time in the
Company’s sole discretion.
(c)
Expenses. The Company
shall reimburse Executive for reasonable business expenses incurred in the
performance of Executive’s duties hereunder in accordance with the Company’s
expense reimbursement guidelines.
3.
Effect of Stockholders’ Agreement
(a) As
provided in Section 4(a)
of the Stockholders’ Agreement of even date herewith, by and among the
Company,Derycz
Scientific, Inc., a corporation
organized under the laws of Nevada (“Derycz”),
and Executive (the “Stockholders’
Agreement”), Derycz may
purchase Executive’s shares of the Company’s capital stock at certain dates
before the expiration of the Term of this Agreement. If Derycz
exercises such option, and Executive is still employed by the Company at
such time, Executive may either
(i) continue his employment with the Company through the end of the Term at
an
increased base salary of One Hundred Thirty Five Thousand Dollars ($135,000)
per
year plus an amount, payable quarterly after the Company’s financial statements
have been reviewed or audited, as applicable (the “Bonus”),
equal to 5% of the net income, if
any, as calculated under U.S. Generally Accepted Accounting Principles, of
the
Company before deduction of the Bonus; or (ii) resign from his position at
the
Company and collect a severance payment equal to his current Base Salary through
the end of the term of this Agreement and will continue to be eligible to
participate in the benefits made generally available by the Company to its
executive staff, in accordance with the benefit plans established by the
Company, and as may be amended from time to time in the Company’s sole
discretion, until the end of the Term of this Agreement.
(b) As
provided in Section 4(b) of the
Stockholders’ Agreement, Executive may require Derycz to purchase Executive’s
shares of the Company’s capital stock at certain dates before the expiration of
the Term of this Agreement. If Executive exercises such option and if
this Agreement and/or Executive’s employment is not earlier terminated, this
Agreement and Executive’s employment will terminate immediately upon the closing
of such purchase without any further obligations owed by the company to
Executive.
4. At-Will
Employment; Termination By the
Company
(a)
At-Will Termination by the
Company. The employment of Executive shall be “at-will” at all
times. The Company may terminate Executive’s employment with the
Company at any time, without any advance notice, for any reason or no reason
at
all, notwithstanding anything to the contrary contained in or arising from
any
statements, policies or practices of the Company relating to the employment,
discipline or termination of its employees. Upon and after such
termination, all obligations of the Company under this Agreement shall cease,
unless Executive’s employment is terminated without Cause, in which case Company
shall provide Executive with the severance benefits described in Section 4(b)
below.
(b)
Severance.
Except in situations
where
the employment of Executive is terminated For Cause, By Death or By Disability
(as defined in Section 5 below), in the event that the Company terminates the
employment of Executive at any time, Executive will be eligible to receive
the
then-current Base Salary of the Executive payable in the form of salary
continuation for the remainder of the Term. Such Severance shall be
reduced by any remuneration paid to Executive because of Executive’s employment
or self-employment during the severance period, and Executive shall promptly
report all such remuneration to the Company in writing. Executive’s eligibility
for severance is conditioned on Executive having first signed a release
agreement in the form attached as Exhibit A.1Executive
shall not be entitled to any
severance payments if Executive’s employment is terminated For Cause, By Death
or By Disability (as defined in Section 5 below) or if Executive’s employment is
terminated by Executive (in accordance with Section 6
below).
5.
Other Terminations By Company
(a)
Termination for Cause. For
purposes of this Agreement, “For Cause” shall
mean: (i) Executive commits a crime involving dishonesty, breach of trust,
or
physical harm to any person; (ii) Executive willfully engages in conduct that
is
in bad faith and materially injurious to the Company, including but not limited
to, misappropriation of trade secrets, fraud or embezzlement; (iii) Executive
commits a material breach of this Agreement, which breach is not cured within
twenty (20) days after written notice to Executive from the Company; (iv)
Executive willfully refuses to implement or follow a lawful policy or directive
of the Company, which breach is not cured within twenty (20) days after written
notice to Executive from the Company; or (v) Executive engages in misfeasance
or
malfeasance demonstrated by a pattern of failure to perform job duties
diligently and professionally. The Company may terminate Executive’s
employment For Cause at any time, without any advance notice. The
Company shall pay to Executive all compensation to which Executive is entitled
up through the date of termination, subject to any other rights or remedies
of
Employer under law; and thereafter all obligations of the Company under this
Agreement shall cease.
(b)
By Death. Executive’s
employment shall terminate automatically upon Executive’s death. The
Company shall pay to Executive’s beneficiaries or estate, as appropriate, any
compensation then due and owing. Thereafter all obligations of the
Company under this Agreement shall cease. Nothing in this Section
shall affect any entitlement of Executive’s heirs or devisees to the benefits of
any life insurance plan or other applicable benefits.
(c)
By Disability. If, in the
sole opinion of the Company, Executive is unable to carry out the
responsibilities and functions of the position held by Executive by reason
of
any physical or mental impairment for more than ninety (90) consecutive days
or
more than one hundred and twenty days (120) in any twelve-month period, then,
to
the extent permitted by law, the Company may terminate Executive’s
employment. The Company shall pay to Executive all compensation to
which Executive is entitled up through the date of termination, and thereafter
all obligations of the Company under this Agreement shall
cease. Nothing in this Section shall affect Executive’s rights under
any disability plan in which Executive is a participant.
6.
At-Will Termination by Executive.
Executive
may terminate employment with the Company at any time for any reason or no
reason at all, upon four weeks’ advance written notice. During such notice
period Executive shall continue to diligently perform all of Executive’s duties
hereunder. The Company shall have the option, in its sole discretion,
to make Executive’s termination effective at any time prior to the end of such
notice period as long as the Company pays Executive all compensation to which
Executive is entitled up through the last day of the four week notice period.
Thereafter all obligations of the Company shall cease.
7.
Termination Obligations
(a)
Return of
Property. Executive agrees that all property (including
without limitation all equipment, tangible proprietary information, documents,
records, notes, contracts and computer-generated materials) furnished to or
created or prepared by Executive incident to Executive’s employment belongs to
the Company and shall be promptly returned to the Company upon termination
of
Executive’s employment.
(b)
Resignation and Cooperation.
Upon termination of Executive’s employment, Executive shall be deemed to
have resigned from all offices and directorships then held with the Company,
provided, however,
that is
Executive is still a Stockholder, as defined in the Stockholders’ Agreement, he
may remain a director of the Company. Following any termination of
employment, Executive shall cooperate with the Company in the winding up of
pending work on behalf of the Company and the orderly transfer of work to other
employees. Executive shall also cooperate with the Company in the
defense of any action brought by any third party against the Company that
relates to Executive’s employment by the Company.
(c)
Continuing Obligations.
Executive understands and agrees that Executive’s obligations under
Sections 7, 8, and 9 herein (including Exhibits B and C) shall survive the
termination of Executive’s employment for any reason and the termination of this
Agreement.
8.
Inventions and Proprietary Information; Prohibition on Third Party
Information
(a)
Proprietary Information
Agreement. Executive agrees to sign and be bound by the terms of the
Proprietary Information and Inventions Agreement, which is attached as Exhibit
B
(“Proprietary
Information Agreement”).
(b)
Non-Solicitation.
Executive acknowledges that because of Executive’s position in the
Company, Executive will have access to material intellectual property and
confidential information. During the Term of Executive’s employment
and for one year thereafter, in addition to Executive’s other obligations
hereunder or under the Proprietary Information Agreement, Executive shall not,
for Executive or any third party, directly or indirectly (a) divert or attempt
to divert from the Company any business of any kind, including without
limitation the solicitation of or interference with any of its customers,
clients, members, business partners or suppliers, or (b) solicit or otherwise
induce any person employed by the Company to terminate his
employment.
(c)
Non-Disclosure of Third
Party Information. Executive represents and warrants and covenants that
Executive shall not disclose to the Company, or use, or induce the Company
to
use, any proprietary information or trade secrets of others at any time,
including but not limited to any proprietary information or trade secrets of
any
former employer, if any; and Executive acknowledges and agrees that any
violation of this provision shall be grounds for Executive’s immediate
termination For Cause and could subject Executive to substantial civil
liabilities and criminal penalties. Executive further specifically
and expressly acknowledges that no officer or other employee or representative
of the Company has requested or instructed Executive to disclose or use any
such
third party proprietary information or trade secrets.
9.
Arbitration
Executive
agrees to sign and be bound
by the terms of the Arbitration Agreement, which is attached as Exhibit
C.2
10.
Amendments; Waivers; Remedies
This
Agreement may not be amended or waived except by a writing approved by the Board
of Directors and signed by Executive and by a duly authorized representative
of
the Company other than Executive. Failure to exercise any right under this
Agreement shall not constitute a waiver of such right. Any waiver of any breach
of this Agreement shall not operate as a waiver of any subsequent breaches.
All
rights or remedies specified for a party herein shall be cumulative and in
addition to all other rights and remedies of the party hereunder or under
applicable law.
11.
Assignment; Binding Effect
(a)
Assignment. The
performance of Executive is personal hereunder, and Executive agrees that
Executive shall have no right to assign and shall not assign or purport to
assign any rights or obligations under this Agreement. This Agreement
may be assigned or transferred by the Company; and nothing in this Agreement
shall prevent the consolidation, merger or sale of the Company or a sale of
any
or all or substantially all of its assets.
(b)
Binding
Effect. Subject to the foregoing restriction on assignment by
Executive, this Agreement shall inure to the benefit of and be binding upon
each
of the parties; the affiliates, officers, directors, agents, successors and
assigns of the Company; and the heirs, devisees, spouses, legal representatives
and successors of Executive.
12.
Notices
All
notices or other communications required or permitted hereunder shall be made
in
writing and shall be deemed to have been duly given if delivered: (a)
by hand; (b) by a nationally recognized overnight courier service; or (c) by
United States first class registered or certified mail, return receipt
requested, to the principal address of the other party, as set forth
below. The date of notice shall be deemed to be the earlier of (i)
actual receipt of notice by any permitted means, or (ii) two (2) business days
following dispatch by overnight delivery service or five (5) business days
following dispatch by the United States Mail. Executive shall be
obligated to notify the Company in writing of any change in Executive’s
address. Notice of change of address shall be effective only when
done in accordance with this paragraph.
Company’s
Notice Address:
Pools
Press, Inc.
c/o
Derycz Scientific, Inc.
00000
Xxxxxxxx Xxxxxxxxx Xxxxx 0000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: General
Counsel
Executive’s
Notice Address:
13.
Severability
If
any
provision of this Agreement shall be held by a court or arbitrator to be
invalid, unenforceable, or void, such provision shall be enforced to the fullest
extent permitted by law, and the remainder of this Agreement shall remain in
full force and effect. In the event that the time period or scope of any
provision is declared by a court or arbitrator of competent jurisdiction to
exceed the maximum time period or scope that such court or arbitrator deems
enforceable, then such court or arbitrator shall reduce the time period or
scope
to the maximum time period or scope permitted by law.
14.
Taxes
All
amounts paid under this Agreement (including without limitation Base Salary
and
Severance) shall be paid less all applicable state and federal tax withholdings
and any other withholdings required by any applicable jurisdiction.
15.
Governing Law
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Illinois.
16.
Interpretation
This
Agreement shall be construed as a whole, according to its fair meaning, and
not
in favor of or against any party. Sections and section headings contained in
this Agreement are for reference purposes only, and shall not affect in any
manner the meaning or interpretation of this Agreement. Whenever the
context requires, references to the singular shall include the plural and the
plural the singular.
17.
Obligations Survive Termination Of Employment
Executive
agrees that any and all of Executive’s obligations under this agreement,
including but not limited to Exhibits B and C, shall survive the termination
of
employment and the termination of this Agreement.
18.
Counterparts
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original of this Agreement, but all of which together shall constitute
one and the same instrument.
19.
Authority
Each
party represents and warrants that such party has the right, power and authority
to enter into and execute this Agreement and to perform and discharge all of
the
obligations hereunder; and that this Agreement constitutes the valid and legally
binding agreement and obligation of such party and is enforceable in accordance
with its terms.
20.
Entire Agreement
This
Agreement is intended to be the final, complete, and exclusive statement of
the
terms of Executive’s employment by the Company and may not be contradicted by
evidence of any prior or contemporaneous statements or agreements, except for
agreements specifically referenced herein (including the Stockholders’ Agreement
of even date herewith, the Executive Proprietary Information and Inventions
Agreement attached as Exhibit B and the Arbitration Agreement attached as
Exhibit C). To the extent that the practices, policies or procedures
of the Company, now or in the future, apply to Executive and are inconsistent
with the terms of this Agreement, the provisions of this Agreement shall
control. Any subsequent change in Executive’s duties, position, or compensation
will not affect the validity or scope of this Agreement.
21.
Executive Acknowledgement
EXECUTIVE
ACKNOWLEDGES EXECUTIVE HAS HAD THE OPPORTUNITY TO CONSULT LEGAL COUNSEL
CONCERNING THIS AGREEMENT, THAT EXECUTIVE HAS READ AND UNDERSTANDS THE
AGREEMENT, THAT EXECUTIVE IS FULLY AWARE OF ITS LEGAL EFFECT, AND THAT EXECUTIVE
HAS ENTERED INTO IT FREELY BASED ON EXECUTIVE’S OWN JUDGMENT AND NOT ON ANY
REPRESENTATIONS OR PROMISES OTHER THAN THOSE CONTAINED IN THIS
AGREEMENT.
IN
WITNESS WHEREOF, the
parties have duly executed this Agreement as of the date first written
above.
POOLS
PRESS, INC.
By:
____________________________________
Name:
Title:
____________________________________
XXXX
XXXXXXX
