EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made effective the 11th day of September,
1997, by and between TANISYS TECHNOLOGY, INC., a Wyoming corporation, with
principal offices located at 00000 Xxxxxxxxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxx
00000 (hereinafter referred to as the "Employer"), and Xxx XxXxxx, a resident of
Austin, Texas (hereinafter referred to as the "Employee").
WITNESSETH:
WHEREAS, the Employer desires to continue to employ the Employee, and the
Employee and Employer desire to enter into an agreement relating to such
continuance of employment, outlining the duties and obligations of each:
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein set forth, it is agreed as follows:
1. EMPLOYMENT. The Employer agrees to employ the Employee, and the
Employee agrees to be employed by the Employer, subject to the terms and
conditions set forth herein.
2. TERM. Subject to the provisions hereof, the term of the Employee's
employment by the Employer under this Agreement shall expire September 11, 1998;
provided that such term of employment shall continue thereafter unless and until
terminated by either the Employer or the Employee upon no less than one hundred
twenty (120) days prior written notice to the other of the desire to terminate
such employment. The term of the Employee's employment hereunder, including any
continuation of the original term, is hereinafter referred to as the "Employment
Period."
3. POSITION AND DUTIES. During the Employment Period, the Employee
shall serve as Vice President of Marketing of the Employer with such
assignments, powers and duties as are assigned or delegated to him by the CEO of
the Employer. Such assignments, powers and duties may, from time to time, be
modified by the Employer, as the Employer's needs may require. The Employee
shall also, at the request of the Employer, perform similar services for any
Affiliate (as hereinafter defined) of the Employer without additional
compensation. The Employee agrees to devote all of his business time, skill,
attention and best efforts to the business
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of the Employer and its Affiliates in the advancement of the best interests
of the Employer and its Affiliates. As used in this Agreement, the term
"Affiliate" of the Employer means any person or corporation that, directly or
indirectly through one or more intermediaries, controls or is controlled by
or is under the control of the Employer.
4. COMPENSATION.
A. For all services rendered by the Employee to the Employer during
the Employment Period, the Employer shall pay the Employee a salary at the rate
of $100,000 per year. The compensation is to be payable, subject to such
withholdings as are required by law.
B. The Employer will grant to the Employee an option to purchase
100,000 shares of its common stock at an option price that is set at the
discretion of the Board of Directors but at no event shall be less then fair
market value. The term "fair market value" on any day shall mean that which is
determined by the closing price of the Common Stock as reported for that day in
the Wall Street Journal and shall expire seven (7) years from the date of grant.
5. OFFICE FACILITIES. During the Employment Period, the Employer will
furnish the Employee, without charge, suitable office facilities for the purpose
of performing his duties hereunder, which facilities shall include secretarial,
telephone, clerical and support personnel and services and shall be similar to
those furnished to employees of the Employer having comparable positions.
6. FRINGE BENEFITS; VACATIONS. During the Employment Period, the
Employee shall be entitled to three weeks of vacation a year, and to participate
in or receive benefits under such pension, medical and life insurance and other
employee benefit plans of the Employer which may be in effect form time to time,
to the extent he is eligible under the terms of those plans, on the same basis
as other employees of the Employer having comparable positions.
7. EXPENSES.
A. Subject to such policies regarding expenses and expense
reimbursement as may be adopted from time to time by the Employer and compliance
therewith by the Employee, the Employee is authorized to incur reasonable
expenses in the performance of his duties hereunder, and the Employer will
reimburse Employee for such reasonable out-of-pocket
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expenses upon the presentation by the Employee of an itemized account and
receipts satisfactory to the Employer.
8. TERMINATION.
A. If the Employee dies or becomes disabled during the Employment
Period, the Employee's salary and other rights under this Agreement or as an
employee of the Employer (except for salary and other rights accrued prior
thereto) shall terminate at the end of the month during which death or
disability occurs. For purposes of this Agreement, the Employee shall be deemed
to be "disabled" if, at any time during the Employment Period, the Employee
shall have been unable to perform the duties of his employment hereunder due to
physical or mental incapacity for a period of ninety (90) days or any ninety
(90) days in a period of two hundred seventy (270) days.
B. If the Employee fails to perform his duties hereunder or to
comply with any of the provisions hereof or commits any act of misconduct,
malfeasance, gross negligence or disloyalty, the Employment Period and the
Employee's salary and other rights under this Agreement as an employee of the
Employer, subject to 8C below, shall terminate upon written notice from the
Employer to the Employee, but such termination shall not affect the liability of
the Employee by reason of his misconduct, malfeasance, gross negligence or
disloyalty.
C. If it is determined that the Employer has terminated the Employee
without cause as determined in accordance with Section 8B above, the Employee
will not be subject to the provisions of Section 10, COVENANT NOT TO COMPETE,
herein.
9. COVENANTS NOT TO DISCLOSE. The Employee covenants and agrees that
he will not, at any time during or after the termination of his employment by
the Employer, communicate or disclose to any person, or use for his own account,
or advise, discuss with, or in any way assist any other person or firm in
obtaining or learning about, without the prior written consent of the Employer,
or any secret or confidential information (including, without limitation, any
customer lists or trade secrets) concerning, the business and affairs of the
Employer or any of its Affiliates acquired by the Employee during the term of
his employment by the Employer. The Employee further covenants and agrees that
he shall retain all such knowledge and information concerning the foregoing in
trust for the sole benefit of the Employer and its Affiliates and their
respective successors and assigns.
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10. COVENANT NOT TO COMPETE. The Employee covenants and agrees that,
during the Employment Period and for a period of one (1) year after the
voluntary resignation of the Employee or termination for cause as outlined in 8B
herein, he will not directly render services or advice to, or be engaged in a
business during such one-year period where said business' primary products or
services are in direct competition with the primary products or services of the
Employer except in the course of his employment hereunder or except upon the
written consent of the Employer.
11. ESSENTIAL NATURE OF COVENANTS. The covenants of the Employee
contained in Sections 9 and 10 shall be construed as independent of any other
provision of this Agreement; and the existence of any claim or cause of action
of the Employee against the Employer or any of its subsidiaries, whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Employer of said covenants. The Employee understands that
the covenants contained in Sections 9 and 10 are essential elements of the
transactions contemplated by this Agreement and, but for the agreement of the
Employee to Sections 9 and 10, the Employer would not have agreed to enter into
such transactions.
12. REMEDIES. In the event of a breach or threatened breach by the
Employee of Section 9 or 10, the Employer shall be entitled to a temporary
restraining order and an injunction restraining the Employee from the commission
of such breach. Nothing herein contained shall be construed as prohibiting the
Employer from pursuing any other remedies available to it for such breach or
threatened breach, including the recovery of money damages.
13. WAIVER OF BREACH. The waiver by one party of a breach of any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of any subsequent breach by the other party.
14. BINDING EFFECT. This Agreement shall inure to the benefit of and
shall be binding upon the parties hereto and their respective successors,
assigns, heirs and legal representatives. Insofar as the Employee is concerned,
this Agreement, being personal, cannot be assigned.
15. SEVERABILITY. The invalidity of all or any part of any section of
this Agreement shall not render invalid the remainder of this Agreement or the
remainder of such section. If any provision of this Agreement is so broad as to
be unenforceable, such provision shall be interpreted to be only so broad as is
enforceable.
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16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall, when executed, be deemed to be an original,
but all of which together shall constitutes one and the same instrument.
17. GOVERNING LAW. This Agreement shall be construed (both as to
validity and performance) and enforced in accordance with and governed by the
laws of the State of Texas.
18. NOTICE. All Notices which are required or may be give under this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered in person or three (3) days after being mailed by registered or
certified first-class mail, postage prepaid, return receipt requested, if to the
Employee who resides in Austin, Texas, or if to the Employer, at the address
listed above, or to such other address as such party shall have specified by
notice to the other party hereto as provided in this section.
19. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, understanding
and arrangements, oral or written, between the parties hereto with respect to
the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and date first above written.
TANISYS TECHNOLOGY, INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Chief Executive Officer
/s/ Xxx Xxxxxx
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XXX XXXXXX
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