EXHIBIT 10.25
EMPLOYMENT AGREEMENT BETWEEN THE REGISTRANT AND XXXXXXX X. XXXXXX, ESQ. DATED
NOVEMBER 21, 2005.
EMPLOYMENT AGREEMENT
--------------------
XXXXXXX X. XXXXXX, ESQ.
THIS AGREEMENT is entered into this 21st day of November 2005, by and between
OnScreen Technologies, Inc., a Colorado corporation (hereinafter "OnScreen"),
and Xxxxxxx X. Xxxxxx, Esq. (hereinafter "Xxxxxx" or "Employee), collectively
referred to herein as the "Parties", or in the singular as "Party."
WHEREAS, OnScreen is in the business of designing, developing, commercializing,
marketing, manufacturing and distributing advanced LED technologies and other
technologies throughout the United States of America and elsewhere;
WHEREAS, the OnScreen corporate offices are presently located in Portland,
Oregon and other facilities are located elsewhere within the United States of
America;
WHEREAS, OnScreen has agreed to hire Xxxxxx and Xxxxxx has agreed to provide
services to OnScreen under a written contract wherein he agrees to provide such
services and OnScreen agrees to maintain Xxxxxx'x employment, salary and other
benefits, subject to the terms and conditions contained herein,
IT IS AGREED:
30. EFFECTIVE DATE, ASSIGNMENT AND DUTIES. This Agreement is entered into and
is effective on the date indicated above and, except as otherwise noted
herein, shall remain in effect until such time as it is terminated as
provided for herein. Xxxxxx'x initial job title is General Counsel and
Executive Vice President of Corporate Development. Currently Xxxxxx also
serves as Corporate Secretary, a non-salaried position. Xxxxxx is a
practicing attorney at law, licensed in state and federal courts of
California, Illinois and Hawaii. In the capacity as General Counsel, Xxxxxx
is responsible to direct, implement, control and otherwise manage all legal
affairs and corporate governance. In the capacity as Executive Vice
President of Corporate Development, Xxxxxx is responsible for advising and
otherwise working with corporate top management relating to corporate
funding, acquisitions, mergers, product approval and general corporate
guidance and oversight of operations. Xxxxxx hereby acknowledges and agrees
that, periodically, his duties and assignments may require overnight travel
to OnScreen's facilities in Safety Harbor, Florida and its customers'
elsewhere. Both in his capacity as General Counsel and Executive Vice
President of Corporate Development, Xxxxxx shall report directly to the
Company CEO/Chairman of the Board of Directors.
31. XXXXXX'X WORK DAYS AND HOURS. Xxxxxx'x normal work days are not defined in
terms of specific days, however, he is expected to devote to his employment
at least forty working hours per week and such hours as may be necessary
for Xxxxxx to satisfactorily perform the duties of his position. It is
understood and agreed that the location of Xxxxxx'x assignment, work days,
work hours, and duties are subject to change.
55
32. COMPENSATION; EXEMPT STATUS. Xxxxxx'x rate of compensation is set at
fifteen thousand dollars ($15,000) per month payable in bi-weekly
installments. Xxxxxx acknowledges that he is hired as an exempt employee,
and further acknowledges that he understands the difference between an
exempt and non-exempt employee under the laws of the State of Oregon.
33. REIMBURSEMENT OF EXPENSES. In order to perform his duties, Xxxxxx will be
required to travel, entertain present and potential customers of OnScreen,
and shall incur other expenses on behalf of OnScreen. OnScreen shall
reimburse Xxxxxx for all expenses incurred by him within 30 days of
receiving notice of the expenses. It is also understood that Contractor's
travel and entertainment expenses will be at least "Business" class. Xx.
Xxxxxx is granted a monthly automobile allowance of $1,000.
34. OTHER BENEFITS:
x. Xxxxxx shall be entitled to participate in any qualified and
non-qualified stock option plans, stock purchase agreements or
Incentive Stock Options Plans of the Company in which he is
eligible to participate pursuant to the terms of such plans.
Xxxxxx'x participation in such plan will not obligate the
Company to the continued employment of Xxxxxx. The specific
terms and conditions of any such plan(s) approved by the Board
of Directors shall govern and control the rights of all
parties hereto.
x. Xxxxxx is entitled to participate in all employee benefit
programs that OnScreen maintains or may establish during the
term of this Agreement including, but not limited to: full
medical coverage for himself, his wife and his daughter,
including optical and dental coverage; pension plans, group
life insurance at the Company's sole expense; and any other
executive plans that may be established at the sole discretion
of OnScreen. x. Xxxxxx shall accrue PTO; holidays; expenses;
reimbursement policies; and other benefits as set forth in the
Employee Handbook in effect at OnScreen. d. If Xxxxxx for any
reason whatsoever becomes permanently disabled, so that he is
unable to perform the duties under this Agreement, the Company
agrees to pay Xxxxxx seventy five percent of his annual
salary, payable in the same manner as the salary under this
Agreement, for six months.
35. BONUS PROVISION. Xxxxxx shall receive a one time sign on bonus of
$50,000.00, due and payable upon completion of the Equity Round of
financing. In addition, Xxxxxx shall receive an annual bonus as follows:
a. During the first year of employment the annual bonus is
guaranteed to be at least twenty-five percent (25%) of his
annual base salary with the potential of receiving up to fifty
percent (50%) of his annual base salary based upon
performance. Said annual bonus to be paid within thirty (30)
days of Xxxxxx'x first anniversary date with the Company;
b. During ensuing years, Xxxxxx shall receive a minimum annual
bonus of at least fifteen percent (15%) of his base annual
salary with the potential of receiving up to twenty-five
percent (25%) of his annual base salary based upon
performance. Said annual bonus to be paid within thirty (30)
days of each subsequent anniversary date with the Company.
56
36. TERM OF EMPLOYMENT. OnScreen agrees to employ Xxxxxx and Xxxxxx agrees to
serve OnScreen in his capacity of General Counsel and Executive Vice
President of Corporate Development for a period of three (3) years, to and
through November 21, 2008. The Employment Period shall be automatically
renewed for successive three year periods unless terminated by either
Xxxxxx or the Company by giving written notice of termination six (6)
months in advance of the renewal date for each term
37. TERMINATION WITH CAUSE. The Company shall have the option to terminate
Xxxxxx, effective upon written notice of such termination to Xxxxxx, for
Just Cause. For purpose of this Agreement, the term "Just Cause" shall mean
the occurrence of any one or more of the following events: (i) the
commission by Xxxxxx of theft or embezzlement of Company property or other
acts of dishonesty against the Company; (ii) the commission by Xxxxxx of a
crime resulting in injury to the business, property or reputation of the
Company or any affiliate of the Company or commission of other significant
activities harmful to the business or reputation of the Company, (iii)
Xxxxxx entering into a written agreement with a competitor which provides
that Xxxxxx will perform related activities on behalf of that competitor;
(iv) Xxxxxx engaging in a conflict of interest activity which the Board
reasonably considers to be harmful to the best interests of the Company.
In the event OnScreen terminates this Agreement for just cause, OnScreen's
duty to pay salary will be excused from the date of termination forward,
but its duty to award bonus stock which has already been earned shall
continue, as will its duty to pay any expenses already incurred by Xxxxxx
before termination.
38. TERMINATION WITHOUT CAUSE. Should OnScreen terminate this contract without
cause, it must:
a. Give Xxxxxx no less than thirty (30) days written notice of
such decision to terminate;
b. Pay the salary due to Xxxxxx for the remainder of his three
(3) year term. However, such payment shall not be less than
$180,000, no matter how much time remains on the three (3)
year term;
c. Continue medical benefits as described herein through the end
of the contract term; and
d. Pay to Xxxxxx any then outstanding expenses incurred by Xxxxxx
before the termination.
39. VOLUNTARY TERMINATION. Xxxxxx may voluntarily terminate his employment with
OnScreen upon sixty (60) days written notice. If Xxxxxx voluntarily
terminates his employment then OnScreen's duty to pay salary ends on the
date of that termination and OnScreen(TM) shall to pay all expenses already
incurred by Xxxxxx before termination.
40. MERGER, CONSOLIDATION, TRANSFER, DISSOLUTION. THIS AGREEMENT SHALL NOT BE
TERMINATED BY ANY:
a. Merger or consolidation in which the Company is not the new or
surviving corporation;
b. Transfer of all or substantially all of the assets of the
Company; or
c. Voluntary or involuntary dissolution of the Company.
d. In the event of any merger or consolidation or transfer of
assets, the surviving or new corporation or the transferee of
the Company's assets shall be bound by and shall have the
benefit of the provisions of this Agreement. The Company shall
take all actions necessary to insure that the corporation or
transferee is bound by the provisions of this Agreement.
57
41. SURRENDER OF PROPERTIES. Upon termination of Xxxxxx'x employment with the
Company, regardless of the reason therefore, Xxxxxx shall promptly
surrender to the Company all property provided him by the Company for use
in relation to his employment and, in addition, Xxxxxx shall surrender to
the Company any and all materials, lists, files, patent applications,
records, models, notes, copies of documents records, and any written or
recorded information in regards to the business of the Company or other
materials and information of or pertaining to the Company or its customers
or prospective customers or the products, business, and operations of the
Company.
42. NO EXPECTATION OF PRIVACY. It is understood and agreed that there is no
expectation of privacy at OnScreen. All areas of the work place, excluding
only the rest rooms, are subject to physical, audio, video or other means
of surveillance, recording and/or inspection. This includes, without
limitation, all desks, lockers and offices. All items brought into the
workplace, including briefcases and purses, are subject to search at any
time, with or without cause, and without any prior notice. All telephone
conversations are subject to being monitored and/or recorded.
43. COMPLIANCE WITH ONSCREEN'S POLICIES AND PROCEDURES. Xxxxxx acknowledges
that he has been provided with a copy of OnScreen's Employee Handbook, and
understands that he has a duty to read the manual in its entirety, and has
signed a statement to the effect that Xxxxxx has received the manual, has
read it in its entirety, and understands the content of the manual. Xxxxxx
agrees to comply with all rules, regulations and policies of the company.
All rules, regulations, policies and benefits are subject to change.
44. CONFLICTS BETWEEN THIS AGREEMENT AND EMPLOYEE HANDBOOK. Should there exist
any conflict between the terms and conditions contained in this Agreement
and the Employee Handbook then in effect, as to that portion of the
clause(s) in conflict only, the terms and conditions herein shall control.
All other provisions in the Employee Handbook, and all other terms and
conditions contained herein, shall remain in full force and effect.
45. CONFIDENTIALITY. Xxxxxx acknowledges that he will receive, during the
course of his employment with OnScreen, information and documents which are
secret and proprietary, and which are the property of OnScreen. Xxxxxx
acknowledges that all methods, policies, procedures, practices, and
calculations, as well as all lists and other documents prepared by or for
the benefit of OnScreen are secret and proprietary, and, shall not be
copied by any means, or removed from the premises for any reason, without
the express, written permission from the corporation's president. Xxxxxx
agrees that he shall not disclose any information relating to OnScreen, or
provide an original or copy of any document prepared by or for the benefit
of OnScreen, to any third party, or for any reason, without the express,
written permission from the corporation's Board of Directors. It is agreed
that this clause shall survive Xxxxxx'x termination of employment. Xxxxxx
acknowledges that the wrongful disclosure of OnScreen's proprietary
information and/or documents would result in irreparable harm to OnScreen,
and that the damages sustained as a proximate result of said disclosure
would be difficult, if not impossible to measure. As such, Xxxxxx agrees
that OnScreen would be entitled to seek injunctive relief from any court
having competent jurisdiction to prevent the disclosure, or further
disclosure of OnScreen's proprietary information and/or documents.
58
46. COVENANT NOT TO COMPETE.
(a) DURING EMPLOYMENT PERIOD. During the Employment Period, Xxxxxx
shall not, without the prior written consent of the Company,
engage in any other business activity for gain, profit, or
other pecuniary advantage (excepting the investment of funds
in such form or manner as will not require any services on the
part of Xxxxxx in the operation of the affairs of the
companies in which such investments are made) or engage in or
in any manner be connected or concerned, directly or
indirectly, whether as an officer, director, stockholder,
partner, owner, employee, creditor, or otherwise, with the
operation, management, or conduct of any business that
competes with or is of a nature similar to that of the
Company.
(b) FOLLOWING TERMINATION OF EMPLOYMENT PERIOD. Within a one year
period immediately following the termination of Xxxxxx'x
employment with the Company, regardless of the reason
therefore, Xxxxxx shall not, without the prior written consent
of the Company: (a) engage in or in any manner be connected or
concerned, directly or indirectly, whether as an officer,
director, stockholder, partner, owner, employee, creditor, or
otherwise with the operation, management, or conduct of any
business similar to the business of the Company being
conducted at the time of such termination; (b) solicit,
contact, interfere with, or divert any customer served by the
Company, or any prospective customer identified by or on
behalf of the Company, during Xxxxxx'x employment with the
Company; or (c) solicit any person then previously employed by
the Company to join Xxxxxx, whether as a partner, agent,
employee or otherwise, in any enterprise engaged in any
business similar to the business of the Company being
conducted at the time of such termination.
47. NOTICES. Any notice to be given pursuant to the provisions of this
Agreement shall be in writing, and shall be either personally served or
mailed to the recipient of the notice at that Party's last known address.
Any notice to be mailed shall deposited in the United States mail, first
class with all postage prepaid.
48. ASSIGNMENT. None of the rights or privileges contained herein may be
assigned, conveyed, licensed or transferred to any other person, firm,
corporation or organization.
49. WAIVER. Waiver by one Party of any breach of any provision of this
Agreement shall not operate or be construed as a waiver by that PARTY of
any subsequent or continuing breach.
50. JURISDICTION, VENUE AND SERVICE OF PROCESS. Both Parties consent to the
jurisdiction of the state and federal courts for Multnomah County, Oregon.
51. INVALIDITY. Should any term or condition contained herein be adjudged
invalid or contrary to law by any court with competent jurisdiction, the
remaining terms and provisions shall continue with full force and effect.
52. ONLY AGREEMENT. This Agreement constitutes the entire agreement between the
parties relating to the matter contained herein, and all prior agreements,
proposals, and discussions, whether written or oral, shall be null and
void. This Agreement may not be amended except by written agreement
executed by both Parties.
59
53. LEGAL FEES. Should any action be brought by one Party against the other
Party due to any alleged breach of this Agreement, or interpretation or
enforcement of any term or condition contained herein, the prevailing Party
shall be entitled to recover, in addition to any relief awarded by the
court, jury or arbitrator, reasonable attorney's fees and expenses.
54. INTERPRETATION. This Agreement is intended to be performed in the State of
Oregon and shall be interpreted under the laws of the State of Oregon.
55. SECTION HEADINGS. Section headings have been included in this Agreement
merely for convenience or reference. They are not to be considered part of,
or to be used in interpreting this Agreement.
56. AUTHORIZATION. Those persons executing this Agreement on behalf of the
Parties represent that the execution and performance of the terms of this
Agreement have been duly authorized by their respecting governing board(s),
and that this Agreement is a valid and legal obligation enforceable in
accordance with its terms.
57. ACKNOWLEDGMENT. The parties hereto acknowledge that they have read this
Agreement, encompassing six (6) pages, and understand and agree to be bound
by its terms and conditions. In addition to this Agreement, Xxxxxx agrees
to sign and abide by the terms of OnScreen's Employee Handbook. This
Agreement may be signed in counterparts. Any exact copy of this Agreement
may be used as an original for any purpose. A facsimile signature may be
used, and shall have the same affect, as an original signature.
OnScreen Technologies, Inc.
Dated: 11/21/05 By: /s/
-------- -----------------------------------
Xxxxxxx X. Xxxxx, CEO/Chairman
Dated: 11/21/05 /s/
-------- ---------------------------------
Xxxxxxx X. Xxxxxx, Esq.
60
