EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
EMPLOYMENT AGREEMENT (this “Agreement”) is made,
entered into and effective as of January 7, 2010 (the “Effective Date”),
between GreenHouse Holdings, Inc. (the “Company”), and
___________________, an individual (the “Executive”).
WHEREAS,
the Company and the Executive wish to memorialize the terms and conditions of
the Executive’s employment by the Company in the position of
__________________;
NOW,
THEREFORE, in consideration of the covenants and promises contained herein, the
Company and the Executive agree as follows:
1. Employment
Period. The Company offers
to employ the Executive, and the Executive agrees to be employed by Company, in
accordance with the terms and subject to the conditions of this Agreement,
commencing on the Effective Date and terminating on the fourth anniversary of
the Effective Date (the “Scheduled
Termination Date”), unless
terminated in accordance with the provisions of Section 12 below, in which case
the provisions of Section 12 shall control; provided,
however, that unless
either party provides the other party with written notice of his or its
intention not to renew this Agreement at least 90 days prior to the expiration
of the initial term or any renewal term of this Agreement (as the case may be),
this Agreement shall automatically renew for additional one-year periods
commencing on the day after such expiration date. The Executive affirms that no
obligation exists between the Executive and any other entity which would prevent
or impede the Executive’s immediate and full performance of every obligation of
this Agreement.
2. Position
and Duties. During the
term of the Executive’s employment hereunder, the Executive shall continue to
serve in, and assume duties and responsibilities consistent with, the position
of __________________, unless and until otherwise instructed by the Company. The
Executive agrees to devote to the Company such portion of his working time,
skill, energy and efforts during the term of his employment with the Company as
is reasonably required to fulfill his duties and responsibilities hereunder, and
the Executive shall limit his engagement in business activities outside the
scope of his employment with the Company to the extent such activities would
prevent the Executive from fulfilling his responsibilities and duties under this
Agreement. It is expressly understood that the Executive will be devoting
substantially less than all of his working time to his employment with the
Company and that the Executive’s other continuing employment responsibilities
will require significant amounts of his time and services, which will not be
available to the Company.
3. No
Conflicts. The Executive
covenants and agrees that for so long as he is employed by the Company, he shall
inform the Company of each and every future business opportunity presented to
the Executive that arises within the scope of the Business of the Company (as
defined below) and would be feasible for the Company, and that he will not,
directly or indirectly, exploit any such opportunity for his own
account.
4. Hours of
Work. The nature of the
Executive’s employment with the Company requires flexibility in the days and
hours that the Executive must work.
5. Location. The Executive will not be required to
fulfill his employment obligations with the Company at the Company’s office
located in San Diego, California or at any other locus where the Company now or
hereafter has a business facility, and the Executive may continue to be located
in San Diego, California (or such other location as he may select from time to
time); provided that the Executive will periodically travel to such Company
offices and other locations as is necessary to fulfill his employment
obligations hereunder.
6. Compensation.
(a) Base
Salary. During the term of
this Agreement, the Company shall pay, and the Executive agrees to accept, in
consideration for the Executive’s services hereunder, pro
rata bi-weekly payments of
the annual salary of $_______, less all applicable taxes and other appropriate
deductions.
The
Compensation Committee (the “Compensation
Committee”) of the Board shall also review the Executive’s base salary
annually and shall make a recommendation to the Board as to whether such base
salary should be increased but not decreased, which decision shall be within the
Board’s sole discretion.
(b) Annual
Bonus. During the term of
this Agreement, the Executive shall be entitled to an annual bonus, the actual
amount of which bonus shall be determined according to achievement of
performance-related financial and operating targets established annually for the
Company and the Executive by the Compensation Committee (or by the independent
members of the Board if there exists no Compensation Committee). Such
performance targets for each fiscal year shall be adopted by the Compensation
Committee promptly after the end of the prior fiscal year, but in no event later
than March 31st of the current fiscal year. Each
annual bonus shall be paid by the Company to the Executive promptly after the
first meeting of the Board following the completion of the annual audit, which
meeting shall occur on or about April 15th of each year.
7. Expenses. During the term of this Agreement,
the Executive shall be entitled to payment or reimbursement of any reasonable
expenses paid or incurred by him in connection with and related to the
performance of his duties and responsibilities hereunder for the Company
(including, without limitation, transportation, food and lodging expenses
related to the Executive’s travels as set forth in Section 5). All requests by
the Executive for payment of reimbursement of such expenses shall be supported
by appropriate invoices, vouchers, receipts or such other supporting
documentation in such form and containing such information as the Company may
from time to time require, evidencing that the Executive, in fact, incurred or
paid said expenses.
8. Vacation. During the term of this Agreement,
the Executive shall be entitled to accrue, on a pro rata
basis, 20 vacation days,
per year. The Executive shall be entitled to carry over any accrued, unused
vacation days from year to year without limitation.
9. Other
Benefits.
(a) During the term of this Agreement, the
Executive shall be eligible to participate in incentive, savings, retirement
(401(k)), and welfare benefit plans, including, without limitation, health,
medical, dental, vision, life (including accidental death and dismemberment) and
disability insurance plans (collectively, “Benefit
Plans”), in substantially
the same manner, including but not limited to responsibility for the cost
thereof, and at substantially the same levels, as the Company makes such
opportunities available to all of the Company’s managerial or salaried executive
employees.
(b) The Executive’s spouse and dependent
minor children will be covered under the Benefit Plans providing health,
medical, dental, and vision benefits, in substantially the same manner,
including but not limited to responsibility for the cost thereof, and at
substantially the same levels, as the Company makes such opportunities available
to the spouses and dependent minor children to all of the Company’s managerial
or salaried executive employees.
(c) The Company shall purchase and maintain
traditional directors and officers liability insurance coverage in the amount of
at least $5,000,000 covering the Company’s officers and directors, including the
Executive, as soon as practicable after the closing date of the Merger, but in
no event later than 30 days following the Effective Date, provided such coverage
is available on commercially reasonable terms.
(d) Until such time as Executive becomes
covered by Company medical coverage, the Company shall pay the cost of COBRA
coverage provided by Executive’s prior employer, to the same extent as such
coverage was paid for by such prior employer.
10. Termination
of Employment.
(a) Death. In the event that during the term of
this Agreement the Executive dies, this Agreement and the Executive’s employment
with the Company shall automatically terminate and the Company shall have no
further obligations or liability to the Executive or his heirs, administrators
or executors with respect to compensation and benefits accruing thereafter,
except for the obligation to pay the Executor’s heirs, administrators or
executors any earned but unpaid base salary, unpaid pro
rata annual bonus and
unused vacation days accrued through the date of death; provided, that nothing contained in this
paragraph shall be deemed to excuse any breach by the Company of any provision
of this Agreement. The Company shall deduct, from all payments made hereunder,
all applicable taxes, including income tax, FICA and FUTA, and other appropriate
deductions.
(b) “Disability.” In the event that, during the term
of this Agreement the Executive shall be prevented from performing his duties
and responsibilities hereunder to the full extent required by the Company by
reason of Disability (as defined below) this Agreement and the Executive’s
employment with the Company shall automatically terminate and the Company shall
have no further obligations or liability to the Executive or his heirs,
administrators or executors with respect to compensation and benefits accruing
thereafter, except for the obligation to pay the Executive or his heirs,
administrators or executors any earned but unpaid base salary, unpaid
pro
rata annual bonus and
unused vacation days accrued through the Executive’s last date of Employment
with the Company; provided, that nothing contained in this
paragraph shall be deemed to excuse any breach by the Company of any provision
of this Agreement including any failure to maintain the long-term disability
insurance coverage required pursuant to Section 10(b)(iv). The Company shall
deduct, from all payments made hereunder, all applicable taxes, including income
tax, FICA and FUTA, and other appropriate deductions through the last date of
the Executive’s employment with the Company. For purposes of this Agreement,
“Disability” shall mean a physical or mental
disability that prevents the performance by the Executive, with or without
reasonable accommodation, of his duties and responsibilities hereunder for a
period of not less than an aggregate of three months during any twelve
consecutive months.
(c) “Cause.”
(i)
At any time during the term
of this Agreement, the Company may terminate this Agreement and the Executive’s
employment hereunder for “Cause.” For purposes of this Agreement, “Cause” shall be defined as the occurrence
of: (A) gross neglect, malfeasance or gross insubordination in performing the
Executive’s duties under this Agreement; (B) the Executive’s conviction for a
felony, excluding convictions associated with traffic violations; (C) an
egregious act of dishonesty (including without limitation theft or embezzlement)
or a malicious action by the Executive toward the Company’s customers or
employees; (D) a willful and material violation of any provision of Sections 13
and 14 hereof; (E) intentional reckless conduct that is materially detrimental
to the business or reputation of the Company; or (F) material failure, other
than by reason of Disability, to carry out reasonably assigned duties or
instructions consistent with the title of ___________________ (provided that
material failure to carry out reasonably assigned duties shall be deemed to
constitute Cause only after a finding by the Board of Directors, or a duly
constituted committee thereof, of material failure on the part of the Executive
and the failure to remedy such performance to the Board’s or the committee’s
satisfaction within 30 days after delivery of written notice to the Executive of
such finding).
(ii) Upon termination of this Agreement for
Cause, the Company shall have no further obligations or liability to the
Executive or his heirs, administrators or executors with respect to compensation
and benefits thereafter, except for the obligation to pay the Executive any
earned but unpaid base salary, unpaid pro
rata annual bonus and
unused vacation days accrued through the Executive’s last day of employment with
the Company. The Company shall deduct, from all payments made hereunder, all
applicable taxes, including income tax, FICA and FUTA, and other appropriate
deductions.
(d) Change of
Control. For purposes of
this Agreement, “Change of
Control” means the
occurrence of, or the Company’s Board votes to approve: (A) any consolidation or
merger of the Company pursuant to which the stockholders of the Company
immediately before the transaction do not retain immediately after the
transaction, in substantially the same proportions as their ownership of shares
of the Company’s voting stock immediately before the transaction, direct or
indirect beneficial ownership of more than 50% of the total combined voting
power of the outstanding voting securities of the surviving business entity; (B)
any sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, of the assets of the Company
other than any sale, lease, exchange or other transfer to any company where the
Company owns, directly or indirectly, 100% of the outstanding voting securities
of such company after any such transfer; (C) the direct or indirect sale or
exchange in a single or series of related transactions by the stockholders of
the Company of more than 50% of the voting stock of the
Company.
(e) “Good
Reason.”
(i) At any time during the term of this
Agreement, subject to the conditions set forth in Section 12(e)(ii) below, the
Executive may terminate this Agreement and the Executive’s employment with the
Company for “Good Reason.” For purposes of this Agreement, “Good
Reason” shall mean the
occurrence of any of the following events: (A) the assignment, without the
Executive’s consent, to the Executive of duties that are significantly different
from, and that result in a substantial diminution of, the duties that he assumed
on the Effective Date; (B) the assignment, without the Executive’s consent, to
the Executive of a title that is different from and subordinate to the title
specified in Section 2 above, provided, however, that the retention of another
executive as Executive Chairman shall, in and of itself, entitle the Executive
to claim a termination for Good reason hereunder; (C) any termination of the
Executive’s employment by the Company, other than a termination for Cause,
within 12 months after a Change of Control; (D) the assignment, without the
Executive’s consent, to the Executive of duties that are significantly different
from, and that result in a substantial diminution of, the duties that he assumed
on the Effective Date within 12 months after a Change of Control; or (E)
material breach by the Company of this Agreement.
(ii) The Executive shall not be entitled to
terminate his employment with the Company and this Agreement for Good Reason
unless and until he shall have delivered written notice to the Company of his
intention to terminate this Agreement and his employment with the Company for
Good Reason, which notice specifies in reasonable detail the circumstances
claimed to provide the basis for such termination for Good Reason, and the
Company shall not have eliminated the circumstances constituting Good Reason
within 30 days of its receipt from the Executive of such written
notice.
(iii) In the event that the Executive
terminates this Agreement and his employment with the Company for Good Reason,
the Company shall pay or provide to the Executive (or, following his death, to
the Executive’s heirs, administrators or executors): (A) any earned but unpaid
base salary, unpaid pro
rata annual bonus and
unused vacation days accrued through the Executive’s last day of employment with
the Company; (B) the Executive’s full base salary through the Scheduled
Termination Date (as the same may have been extended through any extensions of
this Agreement); (C) the value of vacation days that the Executive would have
accrued through the Scheduled Termination Date; (D) continued coverage, at the
Company’s expense, under all Benefits Plans in which the Executive was a
participant immediately prior to his last date of employment with the Company,
or, in the event that any such Benefit Plans do not permit coverage of the
Executive following his last date of employment with the Company, under benefit
plans that provide no less coverage than such Benefit Plans, through the
Scheduled Termination Date; and (E) severance in an amount equal to one year’s
base salary, as in effect immediately prior to the Executive’s termination
hereunder. All payments due hereunder shall be made within 45 days after the
date of termination of the Executive’s employment. The Company shall deduct,
from all payments made hereunder, all applicable taxes, including income tax,
FICA and FUTA, and other appropriate deductions.
(iv) The Executive shall have no duty to
mitigate his damages, except that continued benefits required to be provided
under Section 11(e)(iii)(D) shall be canceled or reduced to the extent of any
comparable benefit coverage offered to the Executive during the period prior to
the Scheduled Termination Date by a subsequent employer or other person or
entity for which the Executive performs services, including but not limited to
consulting services.
(f) Without
“Cause.”
(i) By The
Executive. At any time
during the term of this Agreement, the Executive shall be entitled to terminate
this Agreement and the Executive’s employment with the Company without Cause by
providing prior written notice of at least 90 days to the Company. Upon
termination by the Executive of this Agreement and the Executive’s employment
with the Company without Cause, the Company shall have no further obligations or
liability to the Executive or his heirs, administrators or executors with
respect to compensation and benefits thereafter, except for the obligation to
pay the Executive any earned but unpaid base salary, and unused vacation days
accrued through the Executive’s last day of employment with the Company. The
Company shall deduct, from all payments made hereunder, all applicable taxes,
including income tax, FICA and FUTA, and other appropriate
deductions.
(ii) By The
Company. At any time
during the term of this Agreement, the Company shall be entitled to terminate
this Agreement and the Executive’s employment with the Company without Cause by
providing prior written notice of at least 90 days to the Executive. Upon
termination by the Company of this Agreement and the Executive’s employment with
the Company without Cause, the Company shall pay or provide to the Executive
(or, following his death, to the Executive’s heirs, administrators or
executors): (A) any earned but unpaid base salary, unpaid pro
rata annual bonus and
unused vacation days accrued through the Executive’s last day of employment with
the Company; (B) the Executive’s full base salary through the Scheduled
Termination Date (as the same may have been extended through any extensions of
this Agreement); (C) the value of vacation days that the Executive would have
accrued through the Scheduled Termination Date; (D) continued coverage, at the
Company’s expense, under all Benefits Plans in which the Executive was a
participant immediately prior to his last date of employment with the Company,
or, in the event that any such Benefit Plans do not permit coverage of the
Executive following his last date of employment with the Company, under benefit
plans that provide no less coverage than such Benefit Plans, through the
Scheduled Termination Date; and (E) severance in an amount equal to one year’s
base salary, as in effect immediately prior to the Executive’s termination
hereunder. All payments due hereunder shall be made within 45 days after the
date of termination of the Executive’s employment. The Company shall deduct,
from all payments made hereunder, all applicable taxes, including income tax,
FICA and FUTA, and other appropriate deductions.
11. Confidential
Information.
(a) The Executive expressly acknowledges
that, in the performance of his duties and responsibilities with the Company, he
has been exposed since prior to the Effective Date, and will be exposed, to the
trade secrets, business and/or financial secrets and confidential and
proprietary information of the Company, its affiliates and/or its clients,
business partners or customers (“Confidential
Information”). The term
“Confidential Information” includes information or material that has actual or
potential commercial value to the Company, its affiliates and/or its clients,
business partners or customers and is not generally known to and is not readily
ascertainable by proper means to persons outside the Company, its affiliates
and/or its clients or customers.
(b) Except as authorized in writing by the
Board, during the performance of the Executive’s duties and responsibilities for
the Company and until such time as any such Confidential Information becomes
generally known to and readily ascertainable by proper means to persons outside
the Company, its affiliates and/or its clients, business partners or customers,
the Executive agrees to keep strictly confidential and not use for his personal
benefit or the benefit to any other person or entity (other than the Company)
the Confidential Information. “Confidential Information” includes the following,
whether or not expressed in a document or medium, regardless of the form in
which it is communicated, and whether or not marked “trade secret” or
“confidential” or any similar legend: (i) lists of and/or information concerning
customers, prospective customers, suppliers, employees, consultants,
co-venturers and/or joint venture candidates of the Company, its affiliates or
its clients or customers; (ii) information submitted by customers, prospective
customers, suppliers, employees, consultants and/or co-venturers of the Company,
its affiliates and/or its clients or customers; (iii) non-public information
proprietary to the Company, its affiliates and/or its clients or customers,
including, without limitation, cost information, profits, sales information,
prices, accounting, unpublished financial information, business plans or
proposals, expansion plans (for current and proposed facilities), markets and
marketing methods, advertising and marketing strategies, administrative
procedures and manuals, the terms and conditions of the Company’s contracts and
trademarks and patents under consideration, distribution channels, franchises,
investors, sponsors and advertisers; (iv) proprietary technical information
concerning products and services of the Company, its affiliates and/or its
clients, business partners or customers, including, without limitation, product
data and specifications, diagrams, flow charts, know how, processes, designs,
formulae, inventions and product development; (v) lists of and/or information
concerning applicants, candidates or other prospects for employment, independent
contractor or consultant positions at or with any actual or prospective customer
or client of Company and/or its affiliates, any and all confidential processes,
inventions or methods of conducting business of the Company, its affiliates
and/or its clients, business partners or customers; (vi) acquisition or merger
targets; (vii) business plans or strategies, data, records, financial
information or other trade secrets concerning the actual or contemplated
business, strategic alliances, policies or operations of the Company or its
affiliates; or (viii) any and all versions of proprietary computer software
(including source and object code), hardware, firmware, code, discs, tapes, data
listings and documentation of the Company; or (ix any other confidential
information disclosed to the Executive by, or which the Executive obligated
under a duty of confidence from, the Company, its affiliates, and/or its
clients, business partners or customers.
(c) The Executive affirms that he does not
possess and will not rely upon the protected trade secrets or confidential or
proprietary information of his prior employer(s) in providing services to the
Company.
(d) In the event that the Executive’s
employment with the Company terminates for any reason, the Executive shall
deliver forthwith to the Company any and all originals and copies of
Confidential Information.
13. Non-Competition
And Non-Solicitation.
(a) The Executive agrees and acknowledges
that the Confidential Information that the Executive has already received and
will receive is valuable to the Company and that its protection and maintenance
constitutes a legitimate business interest of the Company, to be protected by
the non-competition restrictions set forth herein. The Executive agrees and
acknowledges that the non-competition restrictions set forth herein are
reasonable and necessary and do not impose undue hardship or burdens on the
Executive. The Executive also acknowledges that the products and services
developed or provided by the Company, its affiliates and/or its clients or
customers are or are intended to be sold, provided, licensed and/or distributed
to customers and clients in and throughout the United States of America (the
“Geographic
Boundary”) (to the extent
the Company comes to own or operate any material asset in other areas of the
United States during the term of the Executive’s employment, the definition of
Geographic Boundary shall be automatically expanded to cover such other areas),
and that the Geographic Boundary, scope of prohibited competition, and time
duration set forth in the non-competition restrictions set forth below are
reasonable and necessary to maintain the value of the Confidential Information
of, and to protect the goodwill and other legitimate business interests of, the
Company, its affiliates and/or its clients or customers.
(b) The Executive hereby agrees and
covenants that he shall not, without the prior written consent of the Company,
directly or indirectly, in any capacity whatsoever, including, without
limitation, as an employee, employer, consultant, principal, partner,
shareholder, officer, director or any other individual or representative
capacity (other than a holder of less than one percent (5%) of the outstanding
voting shares of any publicly held company), or whether on the Executive’s own
behalf or on behalf of any other person or entity or otherwise howsoever, during
the Executive’s employment with the Company and for a period equal to the
greater of (i) one year (two years, if termination of this Agreement or of
Executive’s employment is pursuant to Section 12(f)(i) hereof) following the
termination of this Agreement or of the Executive’s employment with the Company
or (ii) the period during which the Executive continues to receive his base
salary pursuant to Sections 12(e) or 12(f)(ii) of this Agreement following the
termination of this Agreement and of the Executive’s employment, in the
Geographic Boundary:
(i)
Engage, own,
manage, operate, control, be employed by, consult for, participate in, or be
connected in any manner with the ownership, management, operation or control of
any business in competition with the Business of the Company. The “Business of
the Company” is defined as
the development and production of ethanol within the Geographic Boundary. It is
expressly agreed, however, that Industrial Technology Power (the company with
which the Executive will continue to be associated following the Effective
Date), and any successor thereto, will not be considered a “business in
competition with the Business of the Company” so long as it does not engage in
the development and production of ethanol.
(ii)
Recruit,
solicit or hire, or attempt to recruit, solicit or hire, any employee, or
independent contractor of the Company to leave the employment (or independent
contractor relationship) thereof, whether or not any such employee or
independent contractor is party to an employment agreement.
(iii) Attempt in any manner to solicit or
accept from any customer of the Company, with whom the Executive had significant
contact during the term of the Agreement, business of the kind or competitive
with the business done by the Company with such customer or to persuade or
attempt to persuade any such customer to cease to do business or to reduce the
amount of business which such customer has customarily done or is reasonably
expected to do with the Company, or if any such customer elects to move its
business to a person other than the Company, provide any services (of the kind
or competitive with the Business of the Company) for such customer, or have any
discussions regarding any such service with such customer, on behalf of such
other person.
(iv) Interfere with any relationship,
contractual or otherwise, between the Company and any other party, including;
without limitation, any supplier, co-venturer or joint venturer of the Company
to discontinue or reduce its business with the Company or otherwise interfere in
any way with the Business of the Company.
15. Dispute
Resolution. The Executive
and the Company agree that any dispute or claim, whether based on contract,
tort, discrimination, retaliation, or otherwise, relating to, arising from, or
connected in any manner with this Agreement or with the Executive’s employment
with Company shall be resolved exclusively through final and binding arbitration
under the auspices of the American Arbitration Association (“AAA”). The arbitration shall be held in
Basehor, Kansas. The arbitration shall proceed in accordance with the National
Rules for the Resolution of Employment Disputes of the AAA in effect at the time
the claim or dispute arose, unless other rules are agreed upon by the parties.
The arbitration shall be conducted by one arbitrator who is a member of the AAA,
unless the parties mutually agree otherwise. The arbitrators shall have
jurisdiction to determine any claim, including the arbitrability of any claim,
submitted to them. The arbitrators may grant any relief authorized by law for
any properly established claim. The interpretation and enforceability of this
paragraph of this Agreement shall be governed and construed in accordance with
the United States Federal Arbitration Act, 9. U.S.C. § 1, et seq. More specifically, the parties agree
to submit to binding arbitration any claims for unpaid wages or benefits, or for
alleged discrimination, harassment, or retaliation, arising under Title VII of
the Civil Rights Act of 1964, the Equal Pay Act, the National Labor Relations
Act, the Age Discrimination in Employment Act, the Americans With Disabilities
Act, the Employee Retirement Income Security Act, the Civil Rights Act of 1991,
the Family and Medical Leave Act, the Fair Labor Standards Act, Sections 1981
through 1988 of Title 42 of the United States Code, COBRA, the New York State
Human Rights Law, the New York City Human Rights Law, and any other federal,
state, or local law, regulation, or ordinance, and any common law claims, claims
for breach of contract, or claims for declaratory relief. The Executive
acknowledges that the purpose and effect of this paragraph is solely to elect
private arbitration in lieu of any judicial proceeding he might otherwise have
available to him in the event of an employment-related dispute between him and
the Company. Therefore, the Executive hereby waives his right to have any such
employment-related dispute heard by a court or jury, as the case may be, and
agrees that his exclusive procedure to redress any employment-related claims
will be arbitration.
16. Notice. For purposes of this Agreement,
notices and all other communications provided for in this Agreement or
contemplated hereby shall be in writing and shall be deemed to have been duly
given when personally delivered, delivered by a nationally recognized overnight
delivery service or when mailed United States Certified or registered mail,
return receipt requested, postage prepaid, and addressed as
follows:
If to the
Company:
|
Attn:
|
Facsimile:
(___) ___-____
If to the
Executive:
Facsimile:
(___) ___-____
Any party
may change the address to which communications hereunder are to be delivered by
giving the other party notice in the manner herein set forth.
17. Miscellaneous.
(a) All issues and disputes concerning,
relating to or arising out of this Agreement and from the Executive’s employment
by the Company, including, without limitation, the construction and
interpretation of this Agreement, shall be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to that State’s principles of conflicts of law.
(b) The Executive and the Company agree
that any provision of this Agreement deemed unenforceable or invalid may be
reformed to permit enforcement of the objectionable provision to the fullest
permissible extent. Any provision of this Agreement deemed unenforceable after
modification shall be deemed stricken from this Agreement, with the remainder of
the Agreement being given its full force and effect.
(c) The Company shall be entitled to
equitable relief, including injunctive relief and specific performance as
against the Executive, for the Executive’s threatened or actual breach of
Sections 13 or 14 of this Agreement, as money damages for a breach thereof would
be incapable of precise estimation, uncertain, and an insufficient remedy for an
actual or threatened breach of Sections 13 or 14 of this Agreement. The
Executive and the Company agree that any pursuit of equitable relief in respect
of Sections 13 or 14 of this Agreement shall have no effect whatsoever regarding
the continued viability and enforceability of Section 15 of this
Agreement.
(d) Any waiver or inaction by the Company
for any breach of this Agreement shall not be deemed a waiver of any subsequent
breach of this Agreement.
(e) The Executive and the Company
independently have made all inquiries regarding the qualifications and business
affairs of the other which either party deems necessary. The Executive affirms
that he fully understands this Agreement’s meaning and legally binding effect.
Each party has participated fully and equally in the negotiation and drafting of
this Agreement. Each party assumes the risk of any misrepresentation or mistaken
understanding or belief relied upon by him or it in entering into this
Agreement.
(f)
The Executive’s
obligations under this Agreement are personal in nature and may not be assigned
by the Executive to any other person or entity. This Agreement shall inure to
the benefit of and be binding upon the Company and its successors and assigns.
The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
have been required to perform it if no such succession had taken place. Failure
of the Company to obtain such assumption and agreement prior to the effective
date of any such succession shall be a breach of this Agreement and shall
entitle the Executive to compensation from the Company. For purposes of
implementing the foregoing, the Date of Termination as defined in Section
4(d)(iii) shall be considered the date this Agreement was breached and shall
entitle Executive to compensation from the Company. Upon the closing of the
contemplated reverse merger (the “Merger”) of the Company with a wholly-owned
subsidiary of a public company to be identified at a later date (the
“PubCo”), this Agreement shall be assigned to
and assumed by the PubCo concurrently with the closing of the Merger. As used in
this Agreement, "Company" shall mean both the Company as defined above and any
such successor that assumes and agrees to perform this Agreement, by operation
of law or otherwise.
(g) This instrument constitutes the entire
Agreement between the parties regarding its subject matter. When signed by all
parties, this Agreement supersedes and nullifies all prior or contemporaneous
conversations, negotiations, or agreements, oral and written, regarding the
subject matter of this Agreement. In any future construction of this Agreement,
this Agreement should be given its plain meaning. This Agreement may be amended
only by a writing signed by the Company and the Executive.
(h) This Agreement may be executed in
counterparts, a counterpart transmitted via facsimile, and all executed
counterparts, when taken together, shall constitute sufficient proof of the
parties’ entry into this Agreement. The parties agree to execute any further or
future documents which may be necessary to allow the full performance of this
Agreement. This Agreement contains headings for ease of reference. The headings
have no independent meaning.
(i) THE EXECUTIVE STATES
THAT HE HAS FREELY AND VOLUNTARILY ENTERED INTO THIS AGREEMENT AND THAT HE HAS
READ AND UNDERSTOOD EACH AND EVERY PROVISION THEREOF. THIS AGREEMENT IS
EFFECTIVE UPON THE EXECUTION OF THIS AGREEMENT BY BOTH
PARTIES.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the Company and the Executive have executed this Employment
Agreement as of the day and year first above written.
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By:
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Name:
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Title:
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