EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated April 15, 2000, between BioMarine
Technologies, Inc., a Delaware corporation (the "Company"), and Xxxx X.
Ericsson, a resident of Gulf Breeze, Florida ("Employee").
WITNESSETH THAT:
In consideration of the mutual covenants contained below, the parties
hereto agree as follows:
1. Employment Term. The Company hereby agrees to employ Employee, and
Employee hereby agrees to serve the Company, as hereinafter set forth, for a
period of the three (3) years from the later of (i) the date hereof or (ii) the
effective date of and funding from the initial public offering ("IPO") in the
United States of securities of the Company (such period being herein referred
to as the "Term"); provided, however, that either party may terminate this
Agreement by giving to the other party 60 days notice thereof.
2. Duties and Obligations. Employee shall serve the Company during the
Term as President of the Company and shall have such duties and obligations as
are set forth in the By-Laws of the Company and as are customarily performed by
persons employed in such capacity. The precise services of Employee may be
revised by the Company from time; provided, however, that any such revision of
the precise services of Employee must be consistent with the provisions of the
immediately preceding sentence.
3. Compensation.
3.1 In consideration of the services rendered by Employee to the Company
under this Agreement, and subject to the provisions of Sections 5 and 6, the
Company shall during the Term pay Employee an annual salary in those amounts
determined under Sections 3.1.1 and 3.1.2 hereof, payable every two weeks in
twenty-six (26) equal installments.
3.1.1 For services rendered during the first year of the Term, Employee
shall receive a salary in an amount equal to one hundred twenty thousand
($120,000) per annum.
3.1.2 For services rendered during the balance of the Term, Employee shall
receive a salary in an amount fixed by the Board of Directors of the Company
during the later part of the first year of the Term for the second year of the
Term and in an amount fixed by the Board of Directors of the Company during the
later part of the second year of the Term for the third year of the Term,
taking into account, among other things, the net sales and net profits of the
Company for the year immediately preceding the year with respect to which his
salary is being fixed and the performance by Employee of his duties under
this Agreement.
3.2 The Company may pay a bonus to Employee for any partial or full year
included in the Term in an amount fixed by the Board of Directors of the
Company, taking into account, among other things, the net sales and net profits
of the Company and the performance by Employee of his duties under this
Agreement. Nothing herein shall obligate the Company to pay Employee any bonus
irrespective of the payment of a bonus to him in any past or succeeding year.
3.3 Salary and bonus payments, if any, shall be subject to withholding
and other applicable taxes.
4. Benefits. During the Term, in addition to receiving the payments
described in Section 3 hereof, Employee, to the extent he is eligible (like any
other eligible employee of the Company), shall have the right to participate in
any and all group life, hospital, medical, dental and disability insurance
plans and in any retirement, pension or death benefit plans, now or hereafter
maintained by the Company and generally offered by the Company to its executive
employees, and under any Company stock option plan if and to the extent the
Board of Directors designates Employee a grantee under such plan in accordance
with the terms and conditions of such designation (hereinafter such plans are
collectively referred to as the "Company Benefit Plans"). Nothing in this
Section 4 shall impose upon the Company any obligation to install or maintain
any Company Benefit Plan
5. Disability. In the event that at any time during the Term Employee
shall suffer a disability, his salary referred to in Section 3.1 shall continue
at the same rate that it was on the date of such disability; and he shall
continue to receive, under applicable Company Benefit Plans (if any), benefits
generally offered to disabled employees to the extent he is eligible (like any
other eligible employee of the Company). If such disability continues for
twelve (12) consecutive months, the obligations of the Company under this
Agreement shall thereupon be reduced to 50% of the previous annual
compensation paid or accrued with continuation of all health insurance and
miscellaneous coverages (including, without limitation pursuant to Section
6 as a result of the death of Employee). If Employee shall receive any
disability payment from any disability insurance policies paid for by the
Company, the payments of salary to Employee during any period of disability
shall be reduced by the payments received by Employee under any such
insurance policy or policies. For the purposes of this Agreement,
"disability" shall mean illness, disability or other incapacity,
rendering Employee incapable of performing his duties and obligations under
this Agreement. In the event Employee disagrees with the Company's
conclusion that he has suffered a disability, the determination as to the
disability, including the commencement thereof and the length thereof, is
to be conclusively decided by two duly licensed physicians, one such
physician to be designated by the Company and the other such physician to
designated by Employee. In the case of disagreement between those
physicians, the determination will be made by a third physician selected by
said two physicians. Employee hereby agrees to accept such determination and
to submit to such medical examinations as may be requested by the Company.
6. Death. If Employee shall die at any time during the Term, the
Term and the obligations of the Company under this Agreement shall thereupon
terminate, except that the Company shall pay to Employee's legal
representatives an amount equal to any salary which would, pursuant to
Section 3.1, have been payable to Employee through the end of the month of
his death, less the payments therefor actually made to Employee or his
legal representatives prior to his death.
7. Vacation. Employee shall be entitled to regular paid vacations in
accordance with established Company policy in effect from time to time, but in
any event not less than (4) four weeks in any calendar year.
8. Expenses. In addition to the payments described in Section 3
hereof, the Company shall reimburse Employee for the reasonable expenses
incurred by Employee during the Term in promoting the Company's business,
including expenses for entertainment, travel and similar items, after
presentation by Employee of an itemized account of such expenditures.
9. Covenant Not To Compete.
9.1 Employee hereby agrees that, during the Term of this Agreement (as
such Term may be extended), he will devote his business time and efforts to
the business and affairs of the Company and do the utmost to promote its
interests.
Employee further agrees that, during this Agreement (as such Term may be
extended) and for a period of one (1) year thereafter, he shall not engage,
directly or indirectly, and whether or not for compensation, individually or as
an officer, consultant, advisor, partner or co-venturer or other proprietor, in
any business or enterprise or be concerned with any other commercial duties or
pursuits whatsoever, except as the Company has already agreed to i.e. Gulf
Marine Institute
of Technology.
9.2 Employee hereby agrees that, during a period of two years after the
termination or expiration of the Term of this Agreement (as such Term may be
extended), he will not, directly or indirectly, solicit, or cause the
soliciting of, the services or the employment of any employee of the Company,
its
subsidiaries or affiliates, or employ, or cause the employment of, any such
employee.
10. Non-Disclosure. Without authorization by the Board of Directors of
the Company, Employee will not, at any time, publish or disclose any
Confidential information or trade secrets relating to the business of the
company known by Employee on the date hereof or as a consequence of or through
his employment under this Agreement. All business records, papers and
documents kept or made by Employee and relating to the business of the
Company or its parent or any of its subsidiaries or affiliates shall be and
remain the property of the Company and shall be surrendered to the Company
upon the termination or expiration of this Agreement. Upon termination or
expiration of this Agreement.
Employee shall not take with him, publish, or disclose, without authorization
by the Board of Directors of the Company, any business record, paper or
document or any correspondence, cost data, customer list, estimate or
market survey containing information or trade secrets relating to the Company.
11. Notices.
11.1 All notices and consents required or desired to be given pursuant
hereto shall be in writing and shall be deemed properly given (a) if delivered
to the addressee, in person, at the following address, or (b) if mailed, by
registered or certified mail, return receipt requested, to the following
address:
To the Company: BioMarine Technologies, Inc.
0000 Xxxx Xxxxxx Xxxx., Xxxxx 0X
Xxxx Xxxxxx, XX 00000
Attention: President
To the Employee: Xxxx X. Ericsson
X.X. Xxx 0000
Xxxx Xxxxxx, XX 00000
11.2 Any address specified above may be changed by notice given as herein
provided, by the party hereto whose address is being changed to the other party
hereto.
11.3 If any such notice or consent is delivered in person, the date of
delivery shall be deemed the date of delivery of such notice or consent; and if
any notice or consent is mailed, the date of mailing shall be deemed the date
ofsuch notice or consent.
12. Amendment; Breach and Waiver. This Agreement may not be amended or
modified in any manner, except by an instrument in writing signed by both
parties hereto and approved by the Board of Directors of the Company. The
failure of either party hereto to enforce at any time any of the provisions
of this Agreement shall in no way be construed to be a waiver of any such
provision or any other provision, or of the right of such party thereafter to
enforce each and every such provision or other provision in the event of a
subsequent breach.
13. Agreement Binding Upon Successors. This Agreement shall inure to the
benefit of, and shall be binding upon, the Company, its successors and assigns,
and upon Employee, his heirs, executors, administrators, and legal
representatives, provided that the obligations of Employee hereunder may not be
delegated.
14. Construction. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida.
15. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration in the
State, City and County where BioMarine Technologies, Inc.'s main corporate
residence is located in accordance with the Commercial Arbitration Rules of the
American Arbitration Association, and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.
Notwithstanding the provisions of the immediately preceding sentence, in the
event the Company seeks to enforce the specific performance of Section 9 or 10
by Employee, or to enjoin Employee from violating any term, covenant or
provision set forth in Section 9 or 10, whether or not the Company couples a
demand for damages to its demand for specific performance or for injunctive
relief, the Company at its election may institute and prosecute proceedings in
any court of competent jurisdiction. In the event the court in which the
Company has instituted proceedings, as permitted by the immediately preceding
sentence, refuses or fails to grant to the Company equitable relief and the
court has not yet passed on the issue of whether the Company should be awarded
damages, unless in its sole and absolute discretion the Company agrees to refer
such damage issue to arbitration, the court in which the Company instituted the
proceedings shall remain the appropriate forum for the determination of whether
any damages shall be awarded to the Company.
Employee and the Company each hereby consents to the jurisdiction of (a)
the American Arbitration Association in Northwest Florida or Pensacola, Florida
for the purpose of adjudicating any claim or controversy arising out of or
relating to this Agreement or a breach thereof, and (b) to the federal and
state courts within the State of Florida for the purposes of confirming the
arbitrators' award and entering a judgment thereon.
16. Condition Precedent. Notwithstanding anything herein to the
contrary, this Agreement shall terminate if the Company abandons the IPO or if
the IPO is not consummated.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
_____________________________
Xxxx X. Ericsson - Employee
BioMarine Technologies, Inc.
By:__________________________
Xxxx X. Ericsson
President
By: _________________________
Xxxxxx Xxxxxxx
Secretary/Treasurer
By: _________________________
Xxxx X. Xxxxxx
CFO/Director
