Exhibit 10.4 Employment Agreement with X.X. Comu
EMPLOYMENT AGREEMENT
--------------------
This Agreement is made by and between HUMITECH INC, a Nevada Corporation (the
"Corporation") and X.X. Comu (the "Executive") effective the 1st day of October
2001.
WHEREAS, The Corporation is the holding company that's business of manufacturing
and marketing of Humidity control technology, WHEREAS, The Executive has
considerable experience in the management of a successful businesses, WHEREAS,
The Corporation desires to hire Executive as Chief Executive Officer of the
Company. NOW, THEREFORE, in consideration of the promises and of the mutual
covenants and agreements contained in this Agreement, the parties hereby agree
as follows:
1. EMPLOYMENT SCOPE AND AUTHORITY. The Corporation hereby employs the
Executive and Executive accepts employment as Chief Executive Officer
of the Corporation, The Executive shall report and be responsible to
the Corporation's Board of Directors. The management powers shall be
superior to all other officers or employees of the Corporation.
Executive shall become and remain a Director of the Corporation during
the term of this agreement.
2. TERM. The initial term of the Agreement shall be for ten (10) years
from the date the Agreement is signed by all of the parties.
3. CONTINUED TERM. The Executive Committee of the Board of Directors,
after the initial term of the Agreement has expired, may extend and
renew this Agreement for additional ten (10) year terms.
4. DUTIES. The Executive shall serve as Chief Executive Officer of the
Corporation and shall have such duties, responsibilities and authority
as is customary to such position and such other duties,
responsibilities as may from time to time be assigned by the Board of
Directors of the Corporation.
5. TIME, ABILITY AND ATTENTION. The Executive shall devote substantially
all of his working time, ability and attention to the business of the
Corporation. Corporation recognizes that the Executive any have other
business interest, to which he may devote a reasonable amount of time,
provided such do not conflict with the conduct of the business affairs
of the Corporation.
6. PLACE OF PERFORMANCE. The Executive shall maintain his office at the
principal Executive offices of the Corporation, subject to required
travel on behalf of the Corporation.
7. COMPENSATION. The Corporation shall pay the Executive the salary,
reimbursement of expenses and provide the benefits as specified below.
(a) SALARY. The Corporation shall pay the Executive a salary at an
annual rate of $250,000 commencing on the effective date
hereof, payable bimonthly or otherwise in accordance with the
Corporation payroll practices for all employees;
(b) INCENTIVE BONUS. As a further inducement to accept the
position with the Corporation, during the term of this
Agreement and extensions thereof, Corporation shall pay to
Executive an annual bonus to be determined in good faith by
the Board of Directors. The Board of Directors if the
Corporation shall, within six (6) months of the date of this
Agreement, structure, institute and establish an incentive
bonus program specifying how and when bonuses are to paid
pursuant to this paragraph.
(c) BENEFITS. Executive shall be entitled to participate in the
Corporation's employee benefit programs in effect from time to
time for employees at comparable levels of responsibility.
Participation will be in accordance with any applicable
policies adopted by the Board of Directors. Executive shall be
entitled to vacations, absences for illness. And to similar
benefits of employment to the extent such benefits are
generally offered to employees of the Corporation at a
comparable level of responsibility, subject to the policies
and procedures adopted by the Board of Directors.
(d) EXPENSES. Subject to the policies and procedures as may be
adopted by the Corporation's Board of Directors, Executive
shall be entitled to reimbursement for auto, insurance,
travel, entertainment and other expenses actually incurred on
behalf of Corporation (upon presentation of reasonable
evidence thereof) to the extent such expenses are incurred in
connection with direct activities of the Corporation, and to
the extent similar reimbursements are generally available to
employees of the Corporation at a comparable level of
responsibility.
(e) SERVICES. The Corporation shall furnish Executive office
space, personnel and such other facilities and services as
reasonably required for Executive to perform the duties of
Chief Executive Officer of the Corporation.
8. TERMINATION BY CORPORATION. This Agreement, and the employment of
Executive, hereunder, shall terminate immediately upon the occurrence
of any one of the following events:
(a) DEATH. Upon the death of Executive.
(b) DISABILITY. The Executive becomes incapacitated due to
physical or mental illness and Executive shall have been
absent from employment on a full-time basis for one hundred
fifty (150) consecutive days, and fails to return to perform
the duties assigned by the Corporation on a full-time basis
within thirty (30) days after delivery of written notice of
termination of the Agreement.
(c) AGREEMENT. The mutual written agreement of the Corporation and
the Executive.
(d) TERM. The expiration of the term, as extended, of this
Agreement
(e) FOR CAUSE. (i) Willful, intentional and continued failure to
perform the duties of Chief Executive Officer of the
Corporation, except disability, for more than thirty (30) days
after delivery of written demand by the Corporation for
performance which shall specify the manner and means which the
Corporation believes that the Executive is not performing the
duties of Chief Executive Officer, (ii) the conviction of the
Executive of a criminal act of moral turpitude, have or liable
to have an adverse affect on the Corporation, its business,
reputation or good will. For purposes of this paragraph, no
act, or failure to act, on the Executive's part shall be
considered "willful" or "intentional" unless done, omitted to
be done, knowingly, in bad faith, and without reasonable
belief that such action or omission was in the best interest
of the Corporation. The Executive shall not be terminated for
cause by the Corporation without first having received the
opportunity, together with legal counsel, to be heard before
the Board of Directors and delivery of written notice
specifying the provisions of this Agreement and the facts and
circumstances relied upon as basis for termination and a
written finding of facts and good faith opinion of the Board
of Directors that the Executive violated clause (i) and/or
(ii) of this paragraph.
9. TERMINATION BY EXECUTIVE. This Agreement may be terminated by the
Executive upon the occurrence of any one of the following events:
(a) DISABILITY. In the event the Executive's health impairs the
performance of the duties of President and such is hazardous
to Executive's physical or mental health or life, provided a
written statement form a qualified physician is delivered to
the Board of Directors reasonably describing such impairment.
(b) GOOD CAUSE. (i) the Board of Directors fails to reelect
Executive as President and Director of the Company or removes
Executive from such position or position, (ii) the Board of
Directors shall fail to vest the powers and authority of Chief
Executive Officer, (iii) the Board of Directors shall fail to
comply with any material provision of the Agreement which is
not cured within ten (10) days of delivery of written notice
to the Board of Directors; or, (iv) any purported termination
by Corporation not in compliance with the requirements of
paragraph 8 (e).
10. EXECUTIVE COMPENSATION UPON TERMINATION. The Corporation shall pay the
Executive upon the event of termination the compensation set forth
below:
(a) DEATH. The corporation shall continue the salary for a period
of twelve (12) months from and including the month of death
and pay such in accordance with the payroll policies of the
Corporation to the representative of the deceased Executive's
estate.
(b) DISABILITY. The Corporation shall continue the salary for a
period of six (6) months after this agreement is terminated
pursuant to paragraph 8 (b), provided the salary payments may
be reduced by the amount of payment received by the Executive
under disability benefits plans of the Company, if any.
(c) BREACH OF AGREEMENT. In the event this Agreement is terminated
pursuant to paragraph 9 (b) the Corporation shall pay
Executive (i) full salary through Date of Termination at the
annual rate then in effect at the time Notice of Termination,
the Corporation shall pay as severance pay to Executive, the
greater of one million dollars ($1,000,000) or an amount equal
to two times the salary remaining unpaid under the term of
this agreement or two times the amount equal to the annual
salary in effect at the Date of Termination, payable in one
lump sum on or before five (5) business days after the Date of
Termination; and (iii) if the termination arises out of a
breach by the Company of this agreement, the Corporation shall
pay all other damages for loss of benefits, legal expenses
incurred and costs of court. In the event this Agreement is
terminated pursuant to paragraph 8(e) the Corporation shall be
obligated to pay Executive any salary due to the Date of
Termination.
(d) OPTIONAL SEVERANCE PAYMENT. Executive upon the event of the
Corporation's obligation to pay severance, may in Executive's
sole discretion and option elect to accept a number of shares
of registered stock of the Corporation determined by dividing
the severance amount due by $1.00 which number of shares when
delivered shall be in full payment and satisfaction of the
Corporation's obligation to Executive.
(e) CONTINUATION OF BENEFITS. Except for termination for Cause,
the Corporation shall maintain in full force and effect, for
the benefit of the Executive for twelve (12) months, all
employee benefits, plans and programs in which Executive was
entitled to participate and did participate immediately prior
to the Corporation shall terminate all employee benefits,
plans and programs in which Executive was entitled to
participate and did participate immediately prior to the Date
of Termination.
(f) MITIGATION. The Executive shall not be required to mitigate
the amount of any payment provided under this paragraph 10 by
seeking other employment or otherwise.
11. NON-COMPETITION. Executive expressly agrees that while this agreement
is in effect, and, except for termination for Good Cause, for a period
of one (1) years following the termination of this Agreement, Executive
will not directly or indirectly, as an employee, agent, proprietor,
partner, broker, stockholder, officer, director, or otherwise, render
any services to, on Executive's own behalf or on behalf of any other
person or entity, engage in as an employee or owner of any competitive
business or organization located within a 100 mile radius of the
Counties of Dallas, Tarrant, Denton, Collin, Rockwell, Texas or any
other county in any state in which the Corporation then maintains an
office that would compete directly or indirectly with Corporation's
Business, without prior written consent of Corporation. The term
"competitive business" shall include but shall not be limited to any
business that manufactures and markets commercial air purification
technology. Executive further expressly agrees that Executive will not
use for Executives' own benefit or disclose to any person any
information, including confidential information, which is obtained or
learned while acting as Executive, without prior written consent of the
Corporation. The agreements contained in this paragraph on the part of
Executive shall be construed as an integral part of an enforceable
agreement and the agreements contained herein were made at the time
this agreement was consummated by the parties. The Executive
acknowledges and agrees that the non-competition restrictions contained
herein are fair and reasonable as to geographical area, length of time
and scope of activity restrained. The existence of any claim or cause
of action against Executive by the Corporation, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Corporation of the agreements contained in this
paragraph.
12. ADMINISTRATIVE PROVISIONS. The terms of this Agreement shall be
administered pursuant to the following provisions:
(a) DEFINITION. "Date of Termination" shall mean (i) the date of
death of Executive, (ii) thirty (30) days after notice of
termination is given for disability, (iii) the date specified
in the notice of termination for cause or good cause;
provided, if within thirty (30) days after delivery of a
notice of termination the person receiving such notice
notifies the other in writing that a dispute exists, the Date
of Termination shall be the date he dispute is finally
determined by mutual agreement or otherwise.
(b) PARTIES BOUND. This Agreement shall be binding on and inure to
the benefit of the parties and their respective heirs,
executors, administrators. Legal representatives, successors
and assigns.
(c) ASSIGNMENT. Executive shall have no right to transfer or
assign any interest in this Agreement without the prior
written consent of the Corporation.
(d) TIME LIMITS. Time is of the essence in this Agreement; and all
time limits shall be strictly construed and rigidly enforce.
(e) NO WAIVER. A failure or delay in the enforcement of the rights
detailed in this Agreement by Corporation shall not constitute
a waiver of those rights or be considered a basis for
estoppel. Corporation may exercise its rights under this
Agreement despite any delay or failure to enforce those
rights.
(f) DISPUTE OR CONTEST. In the unlikely event that a dispute
occurs or an action in law or equity arises out of the
operation, construction, or interpretation of this Agreement,
the prevailing party shall be entitled, in addition to any
other relief granted to reasonable expenses for attorneys'
fees and costs incurred by such party in the action.
(g) PARAGRAPH HEADINGS. The paragraph headings used in this
Agreement are descriptive only and shall have no legal force
or effect whatever.
(h) TEXAS LAW. This Agreement shall be subject to and governed by
the laws of the State of Texas. Any and all obligations or
payments are due and payable in Dallas County, Texas.
(i) SEVERABILITY. If any provision of this Agreement shall, for
any reason, be hold violative of any applicable law, and so
much of the Agreement is held to be unenforceable, then the
invalidity of such a specific provision of this Agreement
shall not be deemed to invalidate any other provisions of this
Agreement, which other provisions shall remain in full force
and effect unless removal of the invalid provisions destroy
the legitimate purposes of this Agreement, in which event this
Agreement shall be canceled.
(j) MODIFICATION OF AGREEMENT. This Agreement represents the
entire Agreement by and between the parties, except as
otherwise provided in this Agreement, and it may not be
changed except by written amendment duly executed by all
parties.
(k) NOTICES. All notices and communications pursuant to this
Agreement shall be in writing and delivered when sent by
United States certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to Executive: X.X. Comu
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX, 00000
If to Corporation: Humitech Inc.
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX, 00000
Or such other address any party may have furnished to the other in
writing upon receipt by such party.
SIGNED, accepted and agreed to the first date stated above, by the
undersigned parties.
CORPORATION:
HUMITECH INC:
/s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx, CFO & General Counsel
EXECUTIVE:
/s/ X.X. Comu
------------------------------------
X.X. Comu, Chief Executive Officer
