Exhibit 10.4
October 11, 1999 Employment Agreement
EXECUTIVE'S EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of October 11, 1999, between H Power Corp.,
a Delaware corporation, having its principal place of business at 00 Xxxxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as the "Company"),
and Xxxxxx Xxxxxxx, residing at 00 Xxxxxxx Xxxxxxx, Xxxx Xxxxxx XX 00000
(hereinafter referred to as "Executive").
1. TERM OF EMPLOYMENT
Subject to the provisions of this employment agreement, the Company hereby
agrees to employ Executive, and Executive hereby agrees to be employed by the
Company, for a term commencing October 11, 1999 and ending October 10, 2002.
2. TITLE AND DUTIES
Subject at all times to the supervision and direction of the Chief
Executive Officer and the Board of Directors of the Company (the "Board"),
Executive shall be employed as "Vice President of Technology" of the Company and
shall have such duties, authority, rights and obligations as are usually
inherent in such position and as the Board may reasonably require. In general,
Executive shall use his very best efforts to promote the business of the
Company.
In the event that Executive is elected or appointed as an officer of the
Company's affiliated or subsidiary companies, whether now existing or hereafter
acquired, Executive consents to serve in such capacity or capacities as the
Board may determine, without additional compensation.
Executive shall render his services at the Company's principal place of
business or at such other place or places as the Company shall designate,
providing that such services are not required on a regular basis at a location
more than 40 miles from the Company's existing place of business.
3. EXCLUSIVE EMPLOYMENT
Executive shall devote his entire productive time, ability and attention
to the business of the Company during his employment. Executive shall not
directly or indirectly render any services of a business, commercial, or
professional nature, to any other person or organization, whether for
compensation or otherwise, without the prior approval of the Board.
(a) Executive shall refrain from any act which involves a conflict of
interest between the exercise of his position in the Company and his
personal interest.
(b) Executive shall refrain from exploiting any business opportunity of
the Company
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October 11, 1999 Employment Agreement
for the achievement of an advantage for himself or for another.
(c) Executive shall disclose to the Company any information and deliver
to it any document that pertains to its affairs and which came into
his possession by virtue of his position with the Company.
4. COMPENSATION & BENEFITS
For the full and faithful performance of his services as set forth
hereunder, Executive shall be entitled to the following during the term of his
employment hereunder:
(a) Base Salary. Executive shall be paid an annual salary of one hundred
thirty-five thousand dollars ($135,000), payable in bi-weekly
installments, subject to all applicable withholding, social security and
other payroll taxes.
(b) Salary Adjustments. The rate of salary shall be reviewed by the Board
not less often than annually and may be increased (but not decreased) from
time to time in such amounts as the Board in its discretion may provide;
it being understood, however, that the Board shall have no obligation to
increase said salary.
(c) Benefit Programs. Executive shall be entitled to participate in all
employee benefit programs of the Company available to senior executives of
the Company, as such programs maybe in effect from time to time,
including, without limitation: pension or other retirement plans; profit
sharing plans; group life insurance; accidental death and dismemberment
insurance; hospitalization, surgical and major medical coverage; sick
leave, vacation and holiday benefits; and other employee benefit programs
sponsored by the Company. Such programs may be amended or terminated if
done so for all or a material portion of the Company's executives.
(d) Business Expense Reimbursement. Executive shall be entitled to receive
reimbursement from the Company for all reasonable and actual out-of-pocket
expenses incurred by him (in accordance with the policies and procedures
established by the Company) in performing services during his employment,
provided that Executive timely submits reasonable documentation with
respect to such expenses.
(e) Automobile. Executive shall be entitled to an automobile allowance of
$10,000 dollars per annum.
(f) Bonuses. In addition to all other compensation, Executive shall be
entitled to receive such bonuses as the Board shall determine, in its sole
discretion, from time to time; it being understood that the Board shall
have no obligation to award such bonuses.
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October 11, 1999 Employment Agreement
5. TERMINATION OF EMPLOYMENT
(a) For Cause. The Company shall have the right to terminate this
employment agreement immediately after written notification to Executive
specifying the basis for the termination, upon the occurrence of any one
of the following events which shall constitute "cause": (i) the willful
failure by Executive to abide by the terms of this employment agreement;
or (ii) fraud, misappropriation, embezzlement, theft, dishonesty or
similar actions by Executive; or (iii) the habitual or willful neglect by
Executive of his employment duties; or (iv) the habitual or willful
disregard of Board mandates; or (v) the willful performance of an
unauthorized act outside the scope of his office; or (vi) an act of moral
turpitude by Executive which tends to reflect unfavorably on the Company.
In the event that the Company terminates Executive's employment for
cause, Executive shall be entitled only to the unpaid bi-weekly
installments of his Base Salary up to and including the date of
termination and to his approved Business Expense Reimbursement not paid
prior to termination.
(b) In the Event of Death. This employment agreement shall terminate in
the event of Executive's death, in which case Executive's estate shall be
entitled to the bi-weekly installments of Executive's Base Salary for a
period of six months following the date of death and Executive's Business
Expense Reimbursement not paid prior to his death.
(c) In the Event of Disability. The Company shall have the right to
terminate this employment agreement in the event of Executive's inability
to substantially perform his duties hereunder for a period of three months
out of any six month period during his employment, whether such inability
results from illness, accident or otherwise.
In the event that the Company terminates Executive's employment
during the term of this employment agreement as a result of Executive's
Disability, Executive shall be entitled to the bi-weekly installments of
his Base Salary for a period of six months following the date of
termination; Executive's Business Expense Reimbursement not paid prior to
termination; and the continuation of Executive's health and welfare
benefits through the end of the term of this employment agreement.
6. UNAUTHORIZED DISCLOSURE
During the period of his employment and for a period of three (3) years
thereafter, Executive shall not, without the prior written consent of the Board,
disclose to any person other than as required by law or court order, or other
than to an employee of the Company, or to a person to whom disclosure is
necessary or appropriate in connection with the performance by Executive of his
duties as an executive of the Company, any confidential information obtained by
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October 11, 1999 Employment Agreement
him while in the employ of the Company with respect to any of the Company's
products, services, customers, suppliers, marketing techniques, patents,
proprietary technologies, trade secrets, methods, or future plans, the
disclosure of which will be damaging to the Company; provided, however, that
confidential information shall not include any information known generally to
the public (other than as a result of unauthorized disclosure by Executive).
7. RESTRICTIVE COVENANT
During the period of his employment and for a period of one (1) year
thereafter, Executive shall not enter into competition with the Company or any
affiliate of the Company without the prior consent of the Board. For the purpose
of this paragraph 7, competition shall mean the association of Executive with a
company, corporation, firm or partnership, whether as an employee, consultant,
partner, principal, agent, representative or shareholder, directly or indirectly
(except as a holder, directly or indirectly, of less than Five (5%) Percent of
the outstanding securities of any corporation whose stock is listed for trading
on any securities exchange or are traded in the over-the-counter market), which
competes, directly or indirectly, with the Company in any business in which the
Company is presently engaged or will be engaged upon termination of Executive's
employment, unless such association shall be for purposes and shall impose
duties upon Executive that do not directly relate to the Company's business
activities. If a court of competent jurisdiction should determine that the
period, scope, or geographical area of the restrictions set forth in this
paragraph 7 are unreasonable under the circumstances then existing, the Parties
agree that the period, scope, or geographical area that is reasonable under such
circumstances shall be substituted for the stated period, scope, or geographical
area.
During the term of his employment and for a period of two (2) years
thereafter, Executive shall neither solicit, induce and/or suggest to any of the
employees, consultants to, or other persons having a substantial contractual
relation with, the Company to leave such employ, cease counseling or terminate
such contractual relationship with the Company nor to join Executive as a
partner, co-venturer, employee, investor, or otherwise, in any substantial
business activity whatsoever.
Executive shall at no time take any action or make any statement that
could discredit the reputation of the Company or its personnel, products or
services.
8. INVENTIONS OR DISCOVERIES
Executive shall fully and promptly disclose to the Company any and all
improvements, discoveries, and inventions made or conceived by him, whether or
not patentable, whether or not during the working hours of his employment or
with the use of the Company's facilities, materials or personnel, and whether
solely or jointly with others, during his employment by the Company, which
result from or relate to the business of the Company in any way.
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October 11, 1999 Employment Agreement
Any and all such improvements, discoveries, and inventions are and remain
the sole and exclusive property of the Company without royalty or payment of any
further consideration to Executive, on his own behalf and on the behalf of his
heirs, assigns, executors, administrators, and any other legal representative.
Executive hereby assigns and transfers all of his right, title and interest in
and to all such improvements, discoveries, and inventions to the Company,
including, but not limited to, any applications for United States and/or foreign
letter patents and any United States and/or foreign patents that shall be
granted. Executive shall apply, at the Company's request and expense, for United
States and foreign letters patent, whether in his name or otherwise as the
Company shall desire, and shall execute and deliver to the Company without
charge to the Company, but at its expense, such written instruments and shall do
such other acts as may be necessary or appropriate in the opinion of he Company
to obtain and maintain United States and/or foreign letters patent or other
proprietary rights and shall vest the entire right entitled thereto in the
Company.
9. EQUITABLE RELIEF
Executive hereby represents that the services to be performed by him are
of a special, unique, unusual, extraordinary and intellectual character which
gives them a peculiar value, the loss of which cannot be reasonably or
adequately compensated in damages in an action at law and that any violation of
this employment agreement will cause the Company immediate and irreparable harm.
Executive therefore expressly agrees that, in addition to any other rights or
remedies which the Company may possess, the Company shall be entitled to
injunctive and other equitable relief to prevent a breach of this contract by
the Company.
10. INDEMNIFICATION
Executive shall indemnify and save harmless the Company from all liability
from loss, damage or injury to persons or property resulting from the gross
negligence or willful misconduct of Executive.
11. DISPUTES
Any controversy or claim arising out of or relating to this employment
agreement, or any breach thereof, shall be settled by arbitration in accordance
with the rules of the American Arbitration Association then in effect in the
State of New Jersey, and judgment upon such award rendered by the arbitrator(s)
may be entered in any court having jurisdiction thereof. The arbitration shall
be held in Manhattan or any other location mutually agreed upon by the Parties.
Each Party shall bear its or his own cost of the arbitration. Executive's salary
and benefits shall continue during the period his claim is being arbitrated;
provided, however, that the Company shall not be obligated to make such payment
or provide such benefits after the end of the term of this employment agreement
and that the Company may recover the cost of such payments should the
arbitrator(s) decide that Executive was not entitled to such payments.
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October 11, 1999 Employment Agreement
12. ASSIGNABILITY
No rights or obligations under this employment agreement may be assigned
or transferred by Executive except:
(a) Executive's rights to compensation and benefits hereunder shall, in
the event of death, pass to his estate, or to his designated beneficiary
and may be transferred by will or operation of law, and
(b) Executive's rights under the Company's plans, programs and policies
may be assigned or transferred in accordance with the terms of such
plans, programs and policies.
The rights and obligations of the Company under this employment agreement
shall inure to the benefit of and shall be binding upon the successors and
assigns of the Company. The Company shall have the right to assign this
agreement to a successor in the event of a merger, consolidation, sale of a
substantial portion of its assets or a similar transaction.
13. GOVERNING LAW
This employment agreement shall be governed by the laws of the State of
New Jersey without reference to the principles of conflict of laws.
14. ENTIRE AGREEMENT
Except as otherwise specifically provided herein, this employment
agreement contains all the legally binding understandings and representations
between the Company and Executive pertaining to the subject matter hereof and
supersedes all undertakings and agreements, if any, whether oral or in writing,
previously entered into by the Company and Executive with respect to such
subject matter.
15. AMENDMENT OR MODIFICATION; WAIVER
No provision of this employment agreement may be amended or waived unless
such amendment or waiver is approved by the Board and is signed by Executive and
by a duly authorized officer of the Company. Except as otherwise specifically
provided in this employment agreement, no waiver by the Company or Executive of
any breach by the other of any condition or provision of this employment
agreement to be performed by such other party shall be deemed a waiver of a
similar or dissimilar provision or condition at the same or any prior or
subsequent time.
16. NOTICES
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October 11, 1999 Employment Agreement
Any notice required or permitted to be given under this employment
agreement shall be in writing and shall be deemed to have been given when
delivered personally or sent by certified or registered mail, postage prepaid,
return receipt requested, duly addressed to the party concerned at the address
indicated below or to such changed address as such party may subsequently give
notice of:
If to H Power: H Power Corp.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Secretary
If to Executive: 00 Xxxxxxx Xxxxxxx
Xxxx Xxxxxx, XX 00000
17. SEVERABILITY
In the event that any provision or portion of this employment agreement
shall be determined to be invalid or unenforceable for any reason, the remaining
provisions or portions of this employment agreement shall be unaffected thereby
and shall remain in full force and effect to the fullest extent permitted by
law.
18. SURVIVORSHIP
To the extent contemplated by this employment agreement, the respective
rights and obligations of the Parties hereunder shall survive any termination of
this employment agreement to the extent necessary to the intended preservation
of such rights and obligations.
19. REPRESENTATIONS
(a) By the Executive. Executive represents and warrants that the
performance of his duties under this employment agreement will not violate
any agreement between him and any other person, firm or organization.
(b) By the Company. The Company represents and warrants that it is fully
authorized and empowered to enter into this employment agreement.
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October 11, 1999 Employment Agreement
20. REFERENCES
In the event of Executive's death or a judicial determination of his
incompetence, reference in this employment agreement to Executive will be
deemed, where appropriate, to refer to his legal representative or, where
appropriate, to his beneficiary or beneficiaries.
21. HEADINGS
Headings to the sections in this agreement are intended solely for
convenience and no provision of this employment agreement shall be construed by
reference to any heading.
22. MUTUAL INTENT
The language used in this employment agreement is the language chosen by
the Parties to express their mutual intent. The Parties agree that in the event
that any language, section, clause, phrase or word used in this employment
agreement is determined to be ambiguous, no presumption shall arise against or
in favor of either party and that no rule of strict construction shall be
applied against either party.
IN WITNESS WHEREOF, Executive and the Company have caused this employment
agreement to be executed as of the day and year first above written.
EXECUTIVE H POWER CORP.
a Delaware Corporation
By: /s/ Xxxxxx Xxxxxxx By: /s/ H. Xxxxx Xxxxxxx
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