Exhibit 10.19
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated October 23, 2006
By and Between:
XXXXXX INTERNATIONAL, LTD., a Delaware corporation (the "Company" or the
"Employer"),
AND
XXXXXXX XXXXXX , an individual having an address at 0000 Xxxxxx Xxxxx,
Xxxx Xxxxxxxx, Xxx Xxxxxx 00000 ("Executive")
WHEREAS, the Company desires to hire the Executive and employ him in the
position of a President Technology Division ; and
WHEREAS, Executive has agreed to serve as the President Technology Division of
the Company and pursuant to the terms and conditions set forth herein.
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the premises
and the mutual covenants, agreements, representations and warranties contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Executive and the Company hereby agree as
follows:
ARTICLE 1
EMPLOYMENT
1.1 Employer hereby hires the Executive as a President Technology Division of
the Company and Executive hereby affirms and accepts such position and
employment by Employer for the Term (as defined in Article 3 below), upon the
terms and conditions set forth herein.
1.2 The Employer shall utilize its best efforts to cause its Board of Directors
to appoint the Executive as a member of the Employer's Board of Directors
throughout the Term.
ARTICLE 2
DUTIES
During the Term, Executive shall serve Employer faithfully, diligently and to
the best of his ability, under the direction and supervision of the Board of
Directors of Employer ("Board of Directors") and the Company's Chief Executive
Officer and shall use his best efforts to promote the interests and goodwill of
Employer and any affiliates, successors, assigns, parent corporations,
subsidiaries, and/or future purchasers of Employer. Executive shall render such
services during the Term at Employer's principal place of business or at such
other place of business as may be determined by the Board of Directors, as
Employer may from time to time reasonably require of him, and shall devote all
of his business time to the performance thereof. Executive shall have those
duties and powers as generally pertain to each of the offices of which he holds,
as the case may be, subject to the control of the Board of Directors. Employer
and Executive also agree that Executive shall serve as a member of the
Employer's Board of Directors during the Term.
ARTICLE 3
TERM
3.1 The term of this Agreement (the "Term") shall commence on the date hereof
(the "Effective Date"), and continue thereafter for a term of five (5) years, as
may be extended or earlier terminated pursuant to the terms and conditions of
this Agreement. The Term is renewable upon the agreement of the parties hereto.
ARTICLE 4
GOVERNANCE AND COMPENSATION
4.1 Governance. During the Term, Executive agrees to vote all shares of the
Company's Common Stock owned by him or as to which he had voting power to elect
to the Company's Board of directors at least two directors who qualify as
"independent directors" under the rules of the Securities Exchange Commission
and Nasdaq.
4.2 Salary and Equity Compensation
(a) In consideration of Executive's services to Employer, Employer shall
pay to Executive an annual salary (the "Salary") of Two Hundred Thousand Dollars
($200,000.00), payable in equal installments at the end of each regular payroll
accounting period as established by Employer, or in such other installments upon
which the parties hereto shall mutually agree, and in accordance with Employer's
usual payroll procedures, but no less frequently than monthly. Notwithstanding
the above, payment of the Salary will be deferred until the earlier to occur of:
(I) the closing by the Company of an equity investment of at least $10,000,000;
or (II) December 31, 2006.
(b) In addition to the Salary, Employer shall issue to Executive a Stock
Option to purchase 3,000,000 shares of the Employer's common stock, at an
exercise price equal to Employer's common stock fair market value as of the date
of issuance, as determined by the independent members of the Board (the "Stock
Option"). The Stock Option shall vest (i.e., become exercisable) in three equal
installments, as follows: One third of the Stock Options shall vest on the
Effective Date; an additional third of the Stock Option shall vest on each of
the first and second anniversaries of the Effective Date. Executive must be
continuously a full-time employee of the Company through the time he exercises
part or all of the Stock Option, except, however, in the event this Agreement is
terminated by the Executive for a Good Reason, as defined in Article 10.1 and
10.2 below, or by the Employer without Cause, as defined in Article 10.3 below,
in which cases the Stock Option shall immediately and fully vest upon such
termination provided further that the events surrounding any such termination
have not been the subject of any claim, proceeding or lawsuit by either the
Executive or the Company in which further case the Stock Option shall only vest
upon final adjudication, determining that such termination was a valid
termination by the Executive for Good Reason or by the Employer without Cause
pursuant to the applicable above referenced articles of this Agreement. The
Stock Option shall be deemed a non-qualified stock option (i.e., not an ISO).
The Stock Option will be issued out of the Employer's stock incentive plan, and
subject to such incentive plan.
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(c) Executive hereby acknowledges that the Stock Option and the shares
issuable upon the exercise thereof shall be "restricted securities" as such term
is defined under Rule 144, unless and until an effective registration covering
these shares takes place, promulgated under the Securities Act of 1933, as
amended (the "1933 Act"); that the Executive hereby represents that he shall
accept such compensation and has no present intent to distribute or transfer
such securities; that such securities shall bear the appropriate restrictive
legend providing that they may not be transferred except pursuant to the
registration requirements of the 1933 Act or pursuant to exemptions therefrom,
and; the Executive further acknowledges that he may be required to hold such
securities for an indeterminable amount of time.
(d) The Company undertakes, that it shall file a Form S-8, that will cover
the shares issuable upon exercise of the Stock Option, within a reasonable time
after a registration statement covering the securities issued in connection with
the Investment becomes effective.
(e) Executive shall not be entitled to any other compensation from the
Company unless they have been unanimously approved by the independent directors
of the Board.
4.3 Benefits
Upon the earlier to occur of: (I) the closing by the Company of an equity
investment of at least $10,000,000; or (II) December 31, 2006, and thereafter
during the Term, Executive shall be entitled to participate in all medical and
other executive benefit plans, including vacation, sick leave, retirement
accounts and other executive benefits provided by Employer to any of the other
senior officers of Employer on terms and conditions no less favorable than those
offered to such senior officers. Such participation shall be subject to the
terms of the applicable plan documents and Employer's generally applicable
policies. In addition, upon the earlier to occur of: (I) the closing by the
Company of an equity investment of at least $10,000,000; or (II) December 31,
2006, Employer shall pay the premiums for : (A) Executive's disability
insurance; and (B) life insurance in the amount of $2,000,000, but only to the
extent that the cost thereof is determined to be reasonable by the independent
directors of the Board. The beneficiary of the life insurance policy shall be
Executive's spouse, and if he has no spouse as directed by Executive. Executive
also agrees to cooperate with the Company in obtaining for the benefit of the
Company "key man" life insurance on Executive's life in the amount of at least
$2,000,000. The amount of such insurance shall be approved by the independent
directors of the Board.
4.4 Expense Reimbursement
Employer shall reimburse Executive for reasonable and necessary expenses
incurred by him on behalf of Employer in the performance of his duties hereunder
during the Term, including any and all travel and entertainment expenses related
to the Employer's business in accordance with Employer's then customary
policies, provided that such expenses are adequately documented.
4.5 Bonus
In addition to the compensation payable under Section 4.2, Executive shall be
entitled to receive during the Term an annual bonus, the amount of which shall
be determined by the unanimous vote of the independent members of the Board of
Directors ("Bonus"). Each year's Bonus shall be paid to the Executive within 110
days of the Employer's calendar year end.
4.6 Other Compensation
Employer shall provide Executive with a leased automobile for his exclusive use
throughout the Term, including costs for gasoline, maintenance and comprehensive
insurance including an "umbrella" policy.
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ARTICLE 5
OTHER EMPLOYMENT
During the Term, Executive shall devote all of his business and professional
time and effort attention, knowledge, and skill to the management, supervision
and direction of Employer's business and affairs as Executive's highest
professional priority. Employer shall be entitled to all benefits, profits or
other remuneration arising from or incidental to all work, services and advice
performed or provided by Executive. Nothing in this Agreement shall preclude
Executive from:
(a) serving as a director or member of a committee of any organization
or corporation involving no conflict of interest with the interests
of Employer, provided that Executive must obtain the prior written
approval of the independent members of the Board;
(b) serving as a consultant in his area of expertise (in areas other
than in connection with the business of Employer), to government,
industrial, and academic panels provided that only de minimis time
shall be devoted thereto and Executive must obtain the prior written
approval of the independent members of the Board of Employer and
where it does not conflict with the interests of Employer, provided
that such written consent shall not be unreasonably withheld,
delayed or conditioned; and
(c) managing his personal investments or engaging in any other
non-competing business; provided that such activities do not
materially interfere with the regular performance of his duties and
responsibilities under this Agreement.
ARTICLE 6
CONFIDENTIAL INFORMATION/INVENTIONS
Confidential Information
6.1 Executive shall not, in any manner, for any reasons, either directly or
indirectly, divulge or communicate to any person, firm or corporation, any
confidential information concerning any matters not generally known in the
internal combustion engine industry (the "Engine Industry") or otherwise made
public by Employer which affects or relates to Employer's business, finances,
marketing and/or operations, research, development, inventions, products,
designs, plans, procedures, or other data (collectively, "Confidential
Information") except in the ordinary course of business or as required by
applicable law. Without regard to whether any item of Confidential Information
is deemed or considered confidential, material, or important, the parties hereto
stipulate that as between them, to the extent such item is not generally known
in the Engine Industry, such item is important, material, and confidential and
affects the successful conduct of Employer's business and goodwill, and that any
breach of the terms of this Section 6.1 shall be a material and incurable breach
of this Agreement. Confidential Information shall not include: information in
the public domain other than because of a breach of this Agreement.
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Documents
6.2 Executive further agrees that all documents and materials furnished to
Executive by Employer and relating to Employer's business or prospective
business are and shall remain the exclusive property of Employer. Executive
shall deliver all such documents and materials, and all copies thereof and
extracts therefrom, to Employer upon demand therefor and in any event upon
expiration or earlier termination of this Agreement.
Inventions and Intellectual Property
6.3 Inventions and Intellectual Property. The Company's rights in patents,
ideas, inventions, and other intellectual property rights, including with
respect to the CSRV engine, shall be as set forth in the License Agreement
executed by the parties of even date herewith (the "License Agreement"). The
Company shall have no rights to any intellectual property developed by Employee
that (i) do not relate to and are not useful in the conduct of the Company's
business; and (ii) were not developed with the use of any Company facilities.
Disclosure
6.4 During the Term, Executive will promptly disclose to the Board of Directors
full information concerning any interest, direct or indirect, of Executive (as
owner, shareholder, partner, lender or other investor, director, officer,
executive, consultant or otherwise) or any member of his immediate family in any
business that is reasonably known to Executive to purchase or otherwise obtain
services or products from, or to sell or otherwise provide services or products
to, Employer or any of their suppliers or customers.
ARTICLE 7
COVENANT NOT TO COMPETE
7.1 No Competitive Activities. Except as expressly permitted in Article 5 above,
during the Term, Executive shall not engage in any activities that are
competitive with the actual or prospective business of the Company including
without limitation: (a) engaging directly or indirectly in any business
substantially similar to any business or activity engaged in (or proposed to be
engaged in) by Employer, including and not limited to business that relates to
internal combustion engines; (b) engaging directly or indirectly in any business
or activity competitive with any business or activity engaged in (or proposed to
be engaged in) by Employer; (c) soliciting or taking away any executive,
employee, agent, representative, contractor, supplier, vendor, customer,
franchisee, lender or investor of Employer, or attempting to so solicit or take
away; (d) interfering with any contractual or other relationship between
Employer and any executive, employee, agent, representative, contractor,
supplier, vendor, customer, franchisee, lender or investor; or (e) using, for
the benefit of any person or entity other than Employer any Confidential
Information of Employer.
7.2 Results of Termination. In the event that the employment of Executive is
terminated for Cause, or if Executive terminates his employment with Company
without Good Reason prior to the Threshold Date (as defined in the License
Agreement), then the foregoing covenant prohibiting competitive activities shall
survive the termination of this Agreement and shall extend, and shall remain
enforceable against Executive, for the period of two (2) years following the
date of termination of employment. In addition, during the two-year period
following such termination, neither Executive nor Employer shall make or permit
the making of any negative statement of any kind concerning Employer or their
affiliates, or their directors, officers or agents or Executive.
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ARTICLE 8
SURVIVAL
Except as otherwise provided, Executive agrees that the provisions of Articles
6, 7, 8 and 9 shall survive expiration or earlier termination of this Agreement
for any reasons whether voluntary or involuntary, with or without Cause, and
shall remain in full force and effect thereafter.
ARTICLE 9
INJUNCTIVE RELIEF
Executive acknowledges and agrees that the covenants and obligations of
Executive set forth in Articles 6 and 7 with respect to non-competition,
non-solicitation, confidentiality and Employer's property relate to special,
unique and extraordinary matters and that a violation of any of the terms of
such covenants and obligations will cause Employer irreparable injury for which
adequate remedies are not available at law. Therefore, Executive agrees that if
Executive breaches this Agreement than Employer shall be entitled to apply for
an injunction, restraining order or such other equitable relief as a court of
competent jurisdiction as limited by Section 13.3 may deem necessary or
appropriate to restrain Executive from committing any violation of the covenants
and obligations referred to in this Article 9. Executive shall have the right to
appeal from such injunction or order and to seek reconsideration, These
injunctive remedies are cumulative and in addition to any other rights and
remedies Employer may have at law or in equity.
ARTICLE 10
TERMINATION
Termination by Executive
10.1 Executive shall be entitled to terminate this Agreement, for any, or no
reason, upon providing a 60 days' written notice, only upon the earlier to occur
of: (i) the fifth (5th) anniversary of this Agreement; or (ii) the Threshold
Date.
Executive may terminate this Agreement for Good Reason at any time upon 30 days'
written notice to Employer, provided the Good Reason has not been cured within
such period of time.
Good Reason
10.2 In this Agreement, "Good Reason" means, without Executive's prior written
consent, the occurrence of any of the following events, unless Employer shall
have fully cured all grounds for such termination within thirty (30) days after
Executive gives notice thereof:
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(i) any reduction in his then-current Salary or benefits, other than in
connection a percentage pay cut that is applicable to all senior
executives and which is the same percentage for all such persons or
in connection with a general reduction in benefits;
(ii) any material failure to timely grant, or timely honor, the Stock
Option set forth in Article 4.2;
(iii) failure to pay or provide required expenses;
(iv) Any diminution in authority or responsibility to a non-executive
position;
The written notice given for Good Reason by Executive to Employer
shall specify in reasonable detail the cause for termination, and
such termination notice shall not be effective until thirty (30)
days after Employer's receipt of such notice, during which time
Employer shall have the right to respond to Executive's notice and
cure the breach or other event giving rise to the termination.
Termination by Employer
10.3 Employer may terminate its employment of Executive under this Agreement
only with Cause and only by written notice to Executive. For purposes of this
Agreement, the term Cause for termination by Employer shall be (a) a conviction
of or plea of guilty or nolo contendere by Executive to a felony, or any crime
involving fraud, securities laws violations, embezzlement or moral turpitude;
(b) the refusal by Executive to perform his material duties and obligations
hereunder or to follow the proper instructions of the Board of Directors after a
written warning with respect thereto; (c) Executive's willful or intentional
misconduct in the performance of his duties and obligations; or (d) conduct that
is known or that should have been known by Executive to be detrimental to the
best interests of the Company, as determined by the independent members of the
Board; (e) if Executive or any member of his family makes any personal profit
arising out of or in connection with a transaction to which Employer is a party
or with which it is associated without making disclosure to and obtaining the
prior written consent of the independent members of the Board; or (f) the entry
by the Securities and Exchange Commission or a self-regulatory organization of a
consent decree relating to a securities law violation by Executive. The written
notice given hereunder by Employer to Executive shall specify that it is with
Cause shall specify in reasonable detail the cause for termination. For purposes
of this Agreement, "family" shall mean "immediate family" as defined in the
rules of the Securities and Exchange Commission. In the case of a termination
for the causes described in (a), (d) and (e) above, such termination shall be
effective upon receipt of the written notice. In the case of the causes
described in (b) and (c) above, such termination notice shall not be effective
until thirty (30) days after Executive's receipt of such notice, during which
time Executive shall have the right to respond to Employer's notice and cure (if
curable) the breach or other event giving rise to the termination.
Severance
10.4 Upon a termination of this Agreement with Good Reason by Executive,
Employer shall pay to Executive all accrued and unpaid compensation and expense
reimbursement, as of the date of such termination and the "Severance Payment."
The Severance Payment shall be payable in a lump sum, subject to Employer's
statutory and customary withholdings. The Severance Payment shall be paid by
Employer within thirty (30) business days of the expiration of any applicable
cure period. The "Severance Payment" shall equal the total amount of the Salary
payable to Executive under Section 4.2 of this Agreement for a period of one
year, or if the Threshold Date has been achieved, two years .
Termination Upon Death
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10.5 If Executive dies during the Term, this Agreement shall terminate, except
that Executive's legal representatives shall be entitled to receive any earned
but unpaid compensation or expense reimbursement due hereunder through the date
of death.
Termination Upon Disability
10.6 If, during the Term, Executive suffers and continues to suffer from a
"Disability" (as defined below), then Employer may terminate this Agreement by
delivering to Executive ten (10) calendar days' prior written notice of
termination based on such Disability, setting forth with specificity the nature
of such Disability and the determination of Disability by Employer. For purposes
hereof, "Disability" means "permanent and total disability" as defined in
Section 22(e)(3) of the Internal Revenue Code. Upon any such termination for
Disability, Executive shall be entitled to receive any earned but unpaid
compensation or expense reimbursement due hereunder through the date of
termination and the Severance Payment.
ARTICLE 11
PERSONNEL POLICIES, CONDITIONS, AND BENEFITS
During the Term, Executive shall be entitled to vacation during each year
of the Term at the rate of four (4) weeks per year. Within 30 days after the end
of each year of the Term, Employer shall elect to (a) carry over and allow
Executive the right to use any accrued and unused vacation of Executive, or (ii)
pay Executive for such vacation in a lump sum in accordance with its standard
payroll practices.
ARTICLE 12
BENEFICIARIES OF AGREEMENT
This Agreement shall inure to the benefit of the parties hereto, their
respective heirs, successors and permitted assigns.
ARTICLE 13
GENERAL PROVISIONS
No Waiver
13.1 No failure by either party to declare a default based on any breach by the
other party of any provisions of this Agreement, nor failure of such party to
act quickly with regard thereto, shall be considered to be a waiver of any such
breach , or of any future breach.
Modification
13.2 No waiver or modification of this Agreement or of any covenant, condition,
or limitation herein contained shall be valid unless in writing and duly
executed by the parties to be charged therewith.
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Submission to Jurisdiction; Consent to Service of Process.
13.3 Submission to Jurisdiction; Consent to Service of Process. This Agreement
shall be governed in all respects, by the laws of the State of New York,
including validity, interpretation and effect, without regard to principles of
conflicts of law. The parties hereto irrevocably and unconditionally consent to
submit to the exclusive jurisdiction of the state and federal courts in the
State of New Jersey for any lawsuits, actions or other proceedings arising out
of or related to this Agreement and agree not to commence any lawsuit, action or
other proceeding except in such courts. The parties hereto further agree that
service of process, summons, notice or document by mail to their addresses set
forth above shall be effective service of process for any lawsuit, action or
other proceeding brought against them in any such court. The parties hereto
irrevocably and unconditionally waive any objection to the laying of venue of
any lawsuit, action or other proceeding arising out of or related to this
Agreement in such courts, and hereby further irrevocably and unconditionally
waive and agree not to plead or claim in any such court that any such lawsuit,
action or proceeding brought in any such court has been brought in an
inconvenient forum.
Entire Agreement
13.4 This Agreement embodies the whole agreement between the parties hereto
regarding the subject matter hereof and there are no inducements, promises,
terms, conditions, or obligations made or entered into by Employer or Executive
other than contained herein and except for the License Agreement.
Severability
13.5 In the event a court of competent jurisdiction determines that a term or
provision contained in this Agreement is overly broad in scope, time,
geographical location or otherwise, the parties hereto authorize such Court to
modify and reduce any such term or provision deemed overly broad in scope, time,
geographic location or otherwise so that it complies with then applicable law.
Headings
13.6 The headings contained herein are for the convenience of reference and are
not to be used in interpreting this Agreement.
Independent Legal Advice
13.7 Employer and Executive each acknowledge that he or it has obtained legal
advice concerning this Agreement.
No Assignment
13.8 No party may pledge or encumber its respective interests in this Agreement
nor assign any of its rights or duties under this Agreement without the prior
written consent of the other party.
IN WITNESS WHEREOF the parties have executed this Agreement as of the day
and year first above written.
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XXXXXX INTERNATIONAL, LTD. Xxxxxxx Xxxxxx
By: __________________________
Name: _______________________
Title: ________________________
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