EMPLOYMENT AGREEMENT
Exhibit
10.1
EMPLOYMENT
AGREEMENT, dated as of January 1, 2008 (the “Agreement”) between Axion
International Inc., a Delaware corporation (the “Company”) with offices at 000
Xxxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxx Xxxxxx 00000 and Xxxxx Xxxxxxxx
(the “Executive”).
WHEREAS,
the Executive possesses valuable knowledge and skills that the Company believes
will contribute to the successful operation of the Company's business and will
have a prominent role in the development of the business the Company;
and
WHEREAS,
the Company desires to secure the services of the Executive, and the Executive
desires to be in the employment of the Company and, in connection therewith, the
Company and the Executive desire to enter into an employment agreement to, among
other things, set forth the terms of such employment.
NOW,
THEREFORE, in consideration of the foregoing and the respective covenants and
agreements hereinafter set forth and for other good and valuable consideration,
the Company and the Executive hereby agree as follows:
1. EMPLOYMENT AND
DUTIES
1.1 General. The
Company hereby employs the Executive, and the Executive agrees to serve, as the
Chief Executive Officer of the Company upon the terms and conditions herein
contained during the Employment Term, and in such capacities the Executive
agrees to serve the Company faithfully and to the best of his ability under the
direction of the Board of Directors of the Company (the “Board”). The Executive
also agrees to serve, if elected, at no compensation in addition to that
provided for in this Agreement, in the position of director of the Company and
of any subsidiary of the Company during the Employment Term.
1.2 Exclusive
Services. For so long as the Executive is employed by the
Company, he shall devote his full-time working hours to his duties hereunder.
The Executive shall not, directly or indirectly, render services to any other
person or organization or otherwise engage in activities which would interfere
significantly with his faithful performance of his duties
hereunder.
1.3 Term of
Employment. The Executive’s employment under this Agreement
shall commence on the date hereof (the “Effective Date”) and shall terminate on
the earliest of (i) the five year anniversary of the Effective Date, (ii) the
death of the Executive or (iii) the termination of the Executive’s employment
pursuant to this Agreement (the period during which the Executive is employed
pursuant to this Agreement, including any extension thereof shall be referred to
as the “Employment Term”).
2. SALARY
2.1 (a) Base
Salary. During the Employment Term, the Executive shall be
entitled to receive a base salary (the “Base Salary”) at a rate of $208,000 per
annum, payable weekly in equal installments in accordance with the Company’s
payroll practices, with such increases as the Board may determine or as provided
in the following subparagraph (b). Once increased, such higher amount shall
constitute the Executive’s Base Salary.
(b) The
Base Salary shall be increased during the Employment Term upon the Company’s
achievement of revenue milestones (the “Revenue Milestones”) during each
calendar year of the employment term (an “Employment Year”) based upon revenues
recorded in the Company’s ordinary course of business. Increases of the Base
Salary shall be effective at such time or times in an Employment Year as each
new Revenue Milestone is achieved. In the following Employment Year,
increases in Base Salary shall occur upon achievement of Revenue Milestones for
such Employment Year in excess of the Revenue Milestones previously
achieved. The Revenue Milestones and corresponding increases to Base
Salary are set forth in Schedule I annexed hereto and made a part
hereof.
2.2 Bonus. In
addition to the Executive’s Base Salary, the Company may pay to the Executive
during the Employment Term an annual bonus (the “Annual Bonus”) based upon the
Executive’s performance, the amount of which bonus (if any) shall be solely
within the discretion of the Company as determined by the Board.
3. EMPLOYEE
BENEFITS
3.1 General
Benefits. The Executive shall be eligible to participate in
health and benefit programs of the Company consistent with those benefit
programs provided to other senior executives of the Company.
3.2 Vacation. The
Executive shall be entitled to twenty (20) days paid vacation each year in
accordance with the applicable policies of the Company.
3.3 Reimbursement of
Expenses. The Company will reimburse the Executive for
reasonable, ordinary and necessary business expenses incurred by him in the
fulfillment of his duties hereunder upon presentation by the Executive of an
itemized account of such expenditures, in accordance with Company practices
consistently applied.
3.4 Automobile
Allowance. The Company shall pay the Executive an automobile
allowance of $850 per month.
4. STOCK
OPTIONS.
4.1 The
Company shall issue to the Executive options (the "Options") to
purchase up to sixteen (16) shares of Common Stock (the
“Option Shares”) at an exercise price of $1.00 per share for a term of five (5)
years from the date hereof, of which (i) Options to purchase four (4) shares of
Common Stock shall vest on such date as the Company has achieved annual
revenues, in any Employment Year, of $10,000,000; (ii) Options to purchase six
(6) shares of Common
Stock
shall vest on such date as the Company has achieved annual revenues, in any
Employment Year, of $15,000,000; and (iii) Options to purchase the remaining six
(6) shares of Common Stock shall vest on such date as the Company has achieved
annual revenues in any Employment Year of $25,000,000.
4.2 The
Options shall not be exercisable until such time as they have vested in
accordance with the terms herein. Notwithstanding the foregoing, in
the event of (i) a Change of Control; (ii) the Executive's employment is
terminated by the Company Without Cause; and/or (iii) employment hereunder is
terminated by the Executive for Good Reason, the Options which have not
previously vested, shall immediately vest and become exercisable upon such
event. The Options shall provide for cashless exercise and piggyback
registration rights. If the Company at any time after the date hereof
subdivides or combines (by any stock split, stock dividend, recapitalization,
combination, reverse stock split or otherwise) its outstanding shares of Common
Stock, the exercise price and the number of shares obtainable upon exercise of
the Options shall likewise be proportionately reduced or increased, as
applicable. In the event of any recapitalization, merger,
reorganization, reclassification, consolidation or sale of substantially all of
the assets of the Company, the holders of the Company’s Common Stock are
entitled to receive stock, securities or other assets with respect to or in
exchange of the Company’s common Stock, then the Executive shall have the right
thereafter to receive, upon exercise of the Option, the same amount and kind of
stock, securities or other assets as he would have been entitled to received if
he had, immediately prior to such recapitalization, merger, reorganization,
reclassification, consolidation or sale, the holder of the shares of Common
Stock underlying the Options.
4.3 "Change
of Control" shall mean (i) the transfer (in one transaction or a series of
transactions) of all or substantially all of the assets of the Company to any
person or group (as such term is used in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")); (ii) the liquidation or
dissolution of the Company or the adoption of a plan by the stockholders of the
Company relating to the dissolution or liquidation of the Company; or (iii) the
acquisition by any person or group (as such term is used in Section 13(d)(3) of
the Exchange Act) of beneficial ownership, directly or indirectly, of more than
50% of the aggregate ordinary voting power of the Company; provided that the
completion of the currently contemplated merger of the Company with Analytical
(or in the event such merger is not completed, the merger of the Company with a
publicly traded Company where the current shareholders of the Company remain the
majority shareholders of the merged entity), shall not be a Change of Control
for purposes of this Agreement.
5. TERMINATION OF
EMPLOYMENT
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5.1
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Termination
for Cause: Termination Without
Cause:
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Termination
Permanent-Disability- Resignation
5.1.1 General. (a)
If, prior to the expiration of the Employment Term, the Executive’s employment
is terminated by the Company for Cause or by the Executive without Good Reason,
the Executive shall be entitled only to his accrued but unpaid Base
Salary
(“Accrued Base Salary”)
through and including the date of termination and any Options which have not
vested as of the date of such termination shall be terminated and have no
further force or effect.
(b) If,
prior to the expiration of the Employment Term, the Executive’s employment with
the Company is terminated by the Company Without Cause or by the Executive for
Good Reason, the Executive shall be entitled only to (i) his Accrued Base Salary
through and including the date of termination; (ii) his Base Salary from the day
after the termination date through the normal expiration date of the Employment
Term, payable in equal installments on the same terms as at the end of the
Employment Term; and (iii) the benefits set forth under Section 3 of this
Agreement through the normal expiration date of the Employment
Term.
(c) If,
prior to the expiration of the Employment Term, the Executive’s employment is
terminated by the Company for Permanent Disability (as defined in Section 6),
the Executive shall be entitled only to the payments and benefits provided for
in Section 6 hereof.
(d) If
the Executive’s employment is due to the death of the Executive, the Executive
(or his estate) shall be entitled only to (i) payment of his Accrued Base Salary
through and including the date of death and (ii) six (6) months of his Base
Salary as severance, payable in equal installments on the same terms as at the
end of the Employment Term.
(e) Notwithstanding
anything to the contrary herein, the Company may elect, in its sole discretion,
to pay any remaining installments of severance or other payments hereunder in a
lump sum rather than in installments over time.
5.1.2 Date of
Termination/Resignation. The date of termination for a
termination by the Company for Cause shall be the date of the written notice of
termination provided for in Section 5.1.3. The date of termination for a
Termination Without Cause shall be as provided in Section 5.1.4. The date of
termination for a termination for Permanent Disability shall be as provided in
Section 6. The date of resignation shall be the date specified in the written
notice of resignation from the Executive to the Company, or if no date is
specified therein, ten (10) business days after receipt by the Company of
written notice of resignation from the Executive.
5.1.3 Notice of Termination for
Cause. Termination of the Executive’s employment by the
Company for Cause shall be effected by delivery of a written notice of
termination from the Company to the Executive, which notice shall specify the
event or events set forth in Section 5.2 giving rise to such
termination.
5.1.4 Notice of Termination
Without Cause. Termination of the Executive’s employment
for a Termination Without Cause shall be effected by written notice of
termination from the Company to the Executive, specifying a termination
date.
5.2 Definition of “for
Cause”. For purposes of this Agreement, “Cause” shall mean
(i)
a good
faith finding by the Board of Directors of the Company that (A) the Executive
has materially failed to perform his assigned duties for the Company and has
failed to remedy such failure within twenty (20) days following written notice
from the Company to the Executive notifying him of such failure, (B) the
Executive has breached any material term of this Agreement, any Confidentiality,
Non-Disclosure, Assignment of Inventions or other similar agreement between the
Executive and the Company, or (C) the Executive has engaged in dishonesty, gross
negligence or willful misconduct which could result in any material loss, damage
or injury to the Company, or (ii) the conviction of the Executive of, or the
entry of a pleading guilty or nolo contendere by the Executive to,
any felony punishable by imprisonment for more than one (1)
year.
5.3 Definition of “Without
Cause”. Termination “Without Cause” shall
mean any termination by the Company of the Executive’s employment at any time
during the Employment Term for any reason other than Cause, death or Permanent
Disability.
5.4 Definition of “Good
Reason”. Termination by Executive for “Good Reason” shall
mean termination by the Executive because of (i) a material reduction in the
nature or scope of Executive’s position as Chief Executive Officer or his
authorities, powers, duties, or responsibilities in such capacity; or (ii) a
material breach by the Company of its affirmative or negative covenants or
undertakings hereunder and such breach shall not be remedied within fifteen (15)
days after notice to Company thereof (which notice shall be signed by Executive
and refer to a specific breach of this Agreement).
6. PERMANENT
DISABILITY
If, prior to the expiration of the
Employment Term, the Executive shall fail because of illness, physical or mental
disability or other incapacity, for a period of three (3) consecutive months, or
for shorter periods aggregating three (3) months during any twelve-month period,
to render the services provided for by this Agreement, then the Company may, by
written notice to the Executive after the last day of the third consecutive
month of disability or the day on which the shorter periods of disability equal
an aggregate of three (3) months, terminate the Executive’s employment for
“Permanent
Disability”, specifying a termination date no earlier than ten (10)
business days after the date on which such notice is given. The determination of
the Executive’s illness, physical or mental disability or other incapacity for
purposes of determining Permanent Disability shall be made by an independent
physician who is reasonably acceptable to the Executive and the Company and
shall be final and binding and shall be based on such competent medical evidence
as shall be presented to it by the Executive or by any physician or group of
physicians or other competent medical experts employed by the Executive and/or
the Company to advise such independent physician.
In the event of a termination of the
Executive’s employment by the Company for Permanent Disability, the Executive
shall be entitled only to (i) his Accrued Base Salary through and including the
date of termination, (ii) six months of his Base Salary as severance, payable in
equal installments on the same terms as at the end of the Employment Term and
(iii) receive the benefits set forth under Section 3 of this Agreement during
the six-month severance period.
Except as
otherwise provided in this Section 6, following the effective date of a
termination for Permanent Disability, the Company shall have no further
obligation to the Executive under this Agreement.
7. NONCOMPETITION/NONSOLICITATION
AND CONFIDENTIALITY
7.1 Confidential
Information. During and after the Executive’s employment with
the Company, the Executive will hold in confidence and not use, disclose or
allow disclosure of Confidential Information (as defined below) except in the
proper performance of the Executive’s duties to the Company. Upon termination of
the Executive’s employment, the Executive will immediately deliver to the
Company all Confidential Materials (as defined below) and destroy all electronic
embodiments of Confidential Information.
7.2 Definition of “Confidential
Information”. For purposes of this Agreement, “Confidential
Information” means Trade Secrets (as defined below) and other information
of the Company identified as confidential and all Work Product (as defined
below), whether disclosed in tangible form (including without limitation written
documents, photographs, drawings, models, prototypes, samples, and magnetic
and/or electronic media), or orally or visually or in other non-tangible form
(including without limitation presentations, displays or inspections of tangible
media or facilities). Confidential Information shall also include information
received by the Company from third parties under an obligation of
confidentiality. Confidential Information does not include
information which: (i) was known to the Executive prior to disclosure by the
Company; (ii) is or becomes public knowledge without breach of this Agreement;
or (iii) is received by the Executive from a third party without any violation
of any obligation of confidentiality and without confidentiality restrictions;
or (iv) is independently developed by the Executive without use of or reference
to Confidential Information.
7.2.1 “Confidential
Materials” means tangible objects, materials or media in which
Confidential Information is embodied, including all copies, excerpts,
modifications, translations, enhancements and adaptations of the
foregoing.
7.2.2 “Intellectual
Property” means all rights of every nature relating to intellectual
property, including without limitation (i) all United States and foreign patents
and patent applications now or hereafter filed (including continuations,
continuations-in-part, divisionals, reissues, reexaminations and foreign
counterparts thereof), and all rights with respect thereto, (ii) all Trade
Secrets, (iii) all United States and foreign semiconductor mask work rights and
registrations for such rights, and (iv) all copyrights and renewals thereof and
other rights relating to literary or artistic works and data compilations
(including without limitation author’s and moral rights and rights of publicity
and privacy).
7.2.3 “Trade Secrets” means
all trade secrets under the laws of any jurisdiction, including but not limited
to ideas, inventions, discoveries, developments, designs, improvements,
prototypes, know-how, methods, processes, techniques, product specification and
performance data, computer programs, and other data, in each case whether or not
patentable, copyrightable or within any particular definition of trade secret;
unpublished proprietary information relating to
the
Company’s Intellectual Property; and business, marketing, sales, research,
development, manufacturing, production and other plans and strategies;
forecasts, financial statements, budgets and projections, licenses, prices and
costs; customer and supplier lists and terms of customer and supplier contracts;
personnel information; compilations of such information; and the existence and
terms of this Agreement. The Executive’s Work Product is, without implying any
other form of protection that may be available to the Company for such Work
Product, a Trade Secret of the Company.
7.2.4 “Work Product” means
all tangible and intangible results of services rendered by the Executive during
the term of the Executive’s employment with the Company that relate to the
business of the Company or which were developed using the Company materials or
Confidential Information.
7.3 Ownership of Work Product
and Intellectual Property.
7.3.1 The
Executive is performing services and creating Work Product hereunder at the
instance of the Company. It is therefore the parties’ intention that the Company
is to own exclusively all rights and economic interests in the Work Product and
all Intellectual Property embodied therein or related thereto, including without
limitation any invention or discovery made or reduced to practice in the process
of performing the services. This Agreement is to be construed to the maximum
extent possible to produce the foregoing result, including but not limited to
the construction of any ambiguities so as to achieve said result.
7.3.2 Accordingly,
the Executive agrees as follows:
(a) All
tangible Work Product which is a copyrightable work of authorship will be deemed
a work made for hire owned by the Company under United States copyright laws; if
an invention, Work Product is deemed to be owned by the Company upon
creation.
(b) The
Executive will maintain adequate and current written records of all Work
Product, which shall be available to and remain the property of the Company at
all times.
(c) The
Executive shall promptly and fully disclose in writing to the Company all Trade
Secrets, including without limitation inventions and works of authorship, which
are related to the business activities of the Company authored, conceived,
created or reduced to practice by the Executive (whether alone or jointly with
others, whether during or outside the hours the Executive is providing services,
and whether or not by the use of the Company’s equipment or other resources)
during the term of this Agreement or within six (6) months thereafter, whether
or not patentable or copyrightable.
(d) The
Executive hereby assigns to the Company irrevocably and unconditionally, to the
fullest extent permitted by law under any interpretation of the relationship
between the parties, all right, title and interest (including without limitation
all Intellectual
Property
rights) embodied in or associated with the Work Product which are related to the
business activities of the Company and are authored, conceived, created or
reduced to practice by the Executive during the term of this Agreement or which
result within six (6) months thereafter from Confidential Information disclosed
by the Company.
(e) Promptly
upon request by the Company and at the Company’s expense, the Executive shall
execute and deliver to the Company all applications, assignments, agreements and
other instruments and take such reasonable actions as the Company may deem
helpful to fully vest the foregoing rights in the Company or to evidence such
vesting. If the Company is unable, after reasonable effort, to secure the
Executive’s signature on any patent application, copyright registration or other
similar document, the Executive hereby irrevocably designates and appoints the
Company and its duly authorized representatives as the Executive’s agent and
attorney-in-fact to execute and file any such application or registration and to
do all other lawfully permitted acts to further the prosecution and issuance of
letters patent, copyright registration and other forms of intellectual property
protection with the same legal force and effect as if executed by the
Executive.
(f) The
Executive hereby waives in favor of the Company and its assigns and licensees
any and all artist’s or moral rights he may have pursuant to any state,
provincial or federal laws or statutes of the United States in respect of any
Work Product, and all similar rights under the laws of all
jurisdictions.
7.4 Covenants Regarding
Employees and Customers. During the Employment Term and for a period of
twelve (12) months after the termination of the Executive’s employment with the
Company for any reason, the Executive will not, without the Company’s prior
consent:
(a) recruit
or solicit, offer employment to, or employ any person who was an employee or
independent contractor of the Company on or within six (6) months before the
termination of the Executive’s employment, or
(b) work
for, or solicit or accept any competing business from, any person or entity that
was a customer of the Company on or within six (6) months before the date of
termination of the Executive’s employment, or
(c) compete
with the Company directly or indirectly anywhere in the world in the business of
developing, manufacturing and distributing prestige cosmetics.
The
Executive will not engage in the actions prohibited in clauses (a), (b) and (c)
directly or indirectly, or by being associated with any person or entity as
owner, partner, employee, agent, consultant, director, officer, stockholder
(other than as the owner of less than 5% of the outstanding stock of a
publicly-traded corporation) or in any other capacity or manner
whatever.
7.5 Injunctive
Relief. Without intending to limit the remedies available to
the Company, the Executive acknowledges that a breach of any of the covenants
contained in this Section 7 may result in material and irreparable injury to the
Company for which there is no
adequate
remedy at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of such a breach or threat thereof, the Company
shall be entitled to obtain a temporary restraining order and/or a preliminary
or permanent injunction restraining the Executive from engaging in activities
prohibited by this Section 7 or such other relief as may be required
specifically to enforce any of the covenants in this Section 7. If
for any reason a final decision of any court determines that the restrictions
under this Section 7 are not reasonable or that consideration therefor is
inadequate, such restrictions shall be interpreted, modified or rewritten by
such court to include as much of the duration and scope (geographic or
otherwise) identified in this Section 7 as will render such restrictions valid
and enforceable.
8. INDEMNIFICATION
The Company shall, to the fullest
extent permitted by Section 145 of the General Corporation Law of the State of
Delaware, indemnify the Executive and his estate, heirs executors and
administrators (the “Indemnitees”) from and against any and all expenses,
liabilities or other matters referred to in or covered by said
section. The Company shall pay in advance of the final disposition of
such action, suit or proceeding any and all expenses incurred by an Indemnitee
upon the receipt of an undertaking by such Indemnitee to repay such amount if it
shall be ultimately be determined that he is not entitled to be indemnified by
the Company.
9. MISCELLANEOUS
9.1 Notices. All
notices or communications hereunder shall be in writing, addressed as
follows:
To the
Company, to it at:
Axion
International Inc.
000
Xxxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx
Xxxxx, Xxx Xxxxxx 00000
To the
Executive:
Xxxxx
Xxxxxxxx
00 Xxxxx
Xxxx
Xxxxxxxx,
XX 00000
Any such
notice or communication shall be sent certified or registered mail, return
receipt requested, or by telefax, addressed as above (or to such other address
as such party may designate in writing from time to time), and the actual date
of receipt shall determine the time at which notice was given.
9.2 Severability. If
a court of competent jurisdiction determines that any term or provision hereof
is invalid or unenforceable, (a) the remaining terms and provisions hereof shall
be unimpaired and (b) such court shall have the authority to replace such
invalid or
unenforceable
term or provision with a term or provision that is valid and enforceable and
that comes closest to expressing the intention of the invalid or unenforceable
term or provision.
9.3 Assignment. This
Agreement shall inure to the benefit of the heirs and representatives of the
Executive and the assigns and successors of the Company, but neither this
Agreement nor any rights hereunder shall be assignable or otherwise subject to
hypothecation by the Executive. The Company may assign this Agreement without
prior written approval of the Executive upon the transfer of all or
substantially all of its business and/or assets (whether by purchase, merger,
consolidation or otherwise), provided that the successor to such business and/or
assets shall expressly assume and agree to perform this Agreement.
9.4 Entire Agreement:
Amendment. This Agreement represents the entire agreement of
the parties with respect to the subject matter hereof and shall supersede any
and all previous contracts, arrangements or understandings between or among the
Company and the Executive, regarding the subject matter hereof. The
Agreement may be amended at any time by mutual written agreement of the parties
hereto.
9.5 Withholding. The
Company shall be entitled to withhold, or cause to be withheld, from payment any
amount of withholding taxes required by law with respect to payments made to the
Executive in connection with his employment hereunder.
9.6 Governing
Law. This Agreement shall be construed, interpreted, and
governed in accordance with the laws of the State of New Jersey without
reference to principles of conflict of laws.
9.7 Survival. Sections
5 (relating to early termination), 6 (relating to Permanent Disability), 7
(relating to noncompetition, nonsolicitation and confidentiality), 8 (relating
to indemnification) and 9.6 (relating to governing law) shall survive the
termination hereof, whether such termination shall be by expiration of the
Employment Term or an early termination pursuant to Sections 5 or 6
hereof.
9.8 Headings. Headings
to sections in this Agreement are for the convenience of the parties only and
are not intended to be a part of or to affect the meaning or interpretation
hereof.
9.9 Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same
instrument.
[signature page
follows]
IN WITNESS WHEREOF, the Company has
caused this Agreement to be duly executed by their authorized representatives
and the Executive has hereunto set his hand, in each case effective as of the
day and year first above written.
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The Company
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Axion
International Inc.
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By:/s/ Xxxxxxx Xxxxxx
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The Executive
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/s/ Xxxxx
Xxxxxxxx
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Xxxxx
Xxxxxxxx
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SCHEDULE
I
Revenue
Milestones Base Salary Rate Increased
to:
0 $
208,000
$10,000,000 $
388,000
$15,000,000 $
448,000
$25,000,000 $ 508,000
Axion International Inc.
By:/s/ Xxxxxxx
Martin_____________
/s/ Xxxxx
Kerstein________________
Xxxxx Xxxxxxxx
