EMPLOYMENT AGREEMENT
Employment Agreement dated as of January 3, 1997 between BATTERY
NETWORK, INC., an Illinois corporation (the "Company") and Xxxxxxx Xxxxxx Xxxx
("Employee"), an individual residing at 00000 Xxx Xxxxxx Xxx, Xxxxx,
Xxxxxxxxxx 00000.
WITNESSETH:
WHEREAS, the Company desires to employ, and Employee wishes to be
employed as Vice President of the Company on the terms and conditions
hereinafter contained;
NOW, THEREFORE, it is hereby agreed as follows:
1. Employment. The Company hereby employs Employee as Vice President
of the Company for the Term as defined in paragraph 2 to perform the duties
described in Section 3 hereof.
2. Term. Unless terminated earlier pursuant to the provisions of
Section 7 hereof, the employment of Employee by the Company shall begin on the
date hereof (hereinafter the "Effective Date") and continue through the third
anniversary date of the Effective Date. The period from the Effective Date
until the date of termination of employment pursuant to this Agreement is
herein referred to as the "Term of Employment".
3. Duties.
(a) Employee shall devote substantially all his time to the
affairs and business of the Company for which he will serve as Vice President
and perform the duties designated by the Board of Directors of the Company.
Employee shall use his best efforts to promote the interests and welfare of
the Company.
(b) Employee agrees that following the Term of Employment
and as long as the option referred to in Section 7 is outstanding and subject
to his availability, he will provide such consulting services as the Company
may request to the Company as to the operations of the Company. Such services
shall be rendered for no additional compensation from his residence and shall
not require Employee to expend more than 15 hours in any twelve-month period.
4. Salary. As his compensation hereunder, Employee shall be paid by
the Company a base salary of $100,000 per annum during each year of the Term,
payable in equal biweekly installments.
5. Expenses. Employee will be authorized to incur reasonable and
necessary expenses in connection with the discharge of Employee's duties and
in promoting the business of the Company. The Company will, according to its
practices, reimburse Employee for all such expenses
1
upon presentation of a properly itemized account of such expenditures, setting
forth the business reasons for such expenditures.
6. Other Benefits; Vacation.
6.1 Employee shall be entitled to receive from the Company
such medical, hospital and disability benefits consistent with those
customarily made available to employees of Batteries Batteries, Inc. ("BBI"),
which owns the outstanding capital stock of the Company or its subsidiaries,
with similar responsibilities, except that the medical benefits shall at least
be in the form and coverage as made available to Employee by the Company
during the twelve-month period ended with the Effective Date.
6.2 Employee shall be entitled to four weeks vacation per
year.
7. Options. There are granted on this date options to Employee under
the Stock Option Plan of Batteries Batteries, Inc., which owns the outstanding
capital stock of the Company ("BBI") to purchase 16,905 shares of the Common
Stock of BBI at a price of $4.50 per share which option is in the form of
Exhibit A hereto.
8. Termination By the Company Due to Death, Disability or Cause.
8.1 In the event of Employee's death during the Term, this
Agreement shall terminate automatically as of the date of death, except with
respect to any accrued but unsatisfied obligations to the date of death. In
the event of Employee's disability (as hereinafter defined) for ninety (90)
consecutive calendar days or one-hundred and twenty (120) calendar days in the
aggregate during any twelve (12) months of the Term, the Company shall have
right, by written notice to Employee, to terminate this Agreement as of the
date of such notice, except with respect to any accrued but unsatisfied
obligation to the date of such termination. "Disability" for the purposes of
this Agreement shall mean Employee's physical or mental disability so as to
render Employee incapable of carrying out Employee's essential duties under
this Agreement, except with respect to any accrued but unsatisfied obligation
to the date of death.
8.2 The Company shall have the right to discharge Employee
and terminate this Agreement for Cause (as hereinafter defined) by written
notice to Employee and this Agreement shall be deemed terminated as of the
date of such notice. For the purpose of this agreement, "Cause" shall mean (a)
conviction of a felony, (b) gross neglect or gross misconduct (including
conflict of interest) in the carrying out of Employee's duties, (c) repeated
or substantial failure, refusal or neglect to perform Employee's duties in
accordance with paragraph 3 hereof, (d) the engaging by Employee in a material
act or acts of dishonesty affecting the Company, BBI or its subsidiaries, or
(e) drunkenness or the illegal use of drugs by Employee materially and
repeatedly interfering with performance of Employee's obligations under this
Agreement. In the event of a termination by the Company pursuant to this
paragraph 8.2, the Company shall not be under any further obligation to
Employee hereunder except to pay Employee, subject to the rights and remedies
of the Company in the circumstances, (i) salary and benefits accrued and
payable up to the date of such termination,
2
and (ii) reimbursement for expenses accrued and payable under paragraph 5
hereof through the date of termination.
9. Non-Competition.
9.1 Subject to the Company not then being in default of its
obligations under this Agreement, Employee, for a period ending the later of
(i) two years from the date hereof or (ii) two years following the last day of
his employment as an employee by the Company (the "Noncompetition Period"),
shall not perform services or otherwise act in any capacity (including without
limitation as an employee, independent contractor, officer, director or
consultant) for, or otherwise be engaged by or have any financial interest in
or affiliation with, any individual corporation, partnership or any other
entity involved in or connected with the business in which the Company (for
purposes of Sections 9, 10 and 11, "Company" shall also include BBI and the
subsidiaries of BBI) is engaged other than for or on behalf of the Company;
provided, however, that nothing contained in this Section 9.1 shall prevent
(A) Employee from purchasing as an investment securities of any corporation
whose securities are regularly traded on any national securities exchange or
in the over-the-counter market, provided that the amount of such securities
along with securities held at or after such purchase by other members of his
family, including his parents, siblings and members of their families do not
aggregate at least 5% of the outstanding securities of such corporation or (B)
the wife of the Employee and her brother from continuing to own and manage
Battery Connection Inc., a battery catalogue business.
9.2 During the Non-competition Period and subject to the
Company's not being in default of this Agreement, Employee shall not solicit
or induce any employee of the Company to leave the employ of the Company.
9.3 Employee agrees that during and after the Term any
confidential information concerning the Company or its business which comes to
Employee in the course of Employee's employment and which is not (independent
of disclosure by Employee) public knowledge or general knowledge in the trade,
shall remain confidential and, except as required by legal process, may not be
used or made available for any purpose.
10. Remedies.
10.1 Nothing herein contained is intended to waive or
diminish any rights the Company may have at law or in equity at any time to
protect and defend its legitimate property interests including its business
relationship with third parties, the foregoing provisions being intended to be
in addition to and not in derogation or limitation of any other rights the
Company may have at law or in equity.
10.2 A breach by Employee of the provisions of Section 9.1,
9.2 or 9.3 of this Agreement may cause the Company irreparable injury and
damage. Employee therefore agrees that damages may be an inadequate remedy and
the Company shall be entitled to injunctive and/or other
3
equitable relief to prevent any breach of such Section of this Agreement and
to secure its enforcement, without being required to provide any security or
post any bond.
11. Employee for Hire. The Company shall own forever and throughout
the world (exclusively during the current and renewed or extended term of
patent anywhere in the world and thereafter, non-exclusively) all rights of
any kind or nature now or hereafter known in and to all of the product of
Employee's services hereunder in any capacity and any and all parts thereof,
including, without limitation, patent, copyright and all other property or
proprietary rights in or to any ideas, concepts, designs, drawings, plans,
prototypes or any other similar creative works and to the product of any or
all of such services, Employee acknowledging and agreeing that for the
foregoing purposes, Employee is performing his services as the Company's
employee-for-hire. Without limiting the generality of the previous sentence,
Employee acknowledges and agrees that all memoranda, notes, records and other
documents made or compiled by Employee or made available to Employee during
the Term concerning the business of the Company, shall be the property of the
Company, and shall be delivered by Employee to the Company, upon termination
of this Agreement or at any other time at the Company's request.
12. Notices. Any notices pertaining to this Agreement if to the
Company shall be addressed to Batteries Network, Inc. c/o Batteries Batteries,
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, with a copy of any notice
to the Company to be sent to Xxx Xxxxxxxxxxx, Esq., Brock, Fensterstock,
Xxxxxxxxxxx, XxXxxxxxx & Xxxx, LLC, One Citicorp Center, 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 and if to Employee shall be addressed to him at his
address stated in the opening of paragraph of this Agreement, with a copy of
any notice to Employee to be sent to Xxxxxx, Newmark & Xxxxxxx PC, 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000, attention: Xxxxxxx
X. Xxxxx, Esq.. All notices shall be in writing and shall be deemed duly given
if personally delivered or sent by registered or certified mail, overnight or
express mail or by telefax. If sent by registered or certified mail, notice
shall be deemed to have been received and effective three days after mailing;
if by overnight or express mail or by telefax, notice shall be deemed received
the next business day after being sent. Any party may change its address for
notice hereunder by giving notice of such change in the manner provided
herein.
13. Entire Agreement. This Agreement contains the entire agreement of
the parties respecting the subject matter contained herein. No modification of
any provision hereof shall be effective except by a written agreement signed
by the parties hereto.
14. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts
entirely made and performed therein.
(b) This Agreement shall be binding upon and inure to the
benefit of the parties, their respective successors, heirs and assigns (where
permitted).
4
(c) The waiver by one party hereto of any breach by the
other (the "Breaching Party") of any provision of this Agreement shall not
operate or be construed as a waiver of any other (prior or subsequent) breach
by the Breaching Party, and waiver of a breach of a provision in one instance
shall not be deemed a waiver of a breach of such provision in any other
circumstance.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as
of the year and date first above written.
BATTERY NETWORK, INC.
By: /s/ Xxxx Xxxxxx
--------------------------------
EMPLOYEE:
/s/ Xxxxxxx Xxxxxx Xxxx
-----------------------------------
Xxxxxxx Xxxxxx Xxxx
Attorney & Agent
5
