EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT, dated this 20th day of June, 2008 (the “Agreement”),
by
and between 4C Controls Inc.,
(the
“Company”),
and
Olivier
de Vergnies (the
“Executive”).
WHEREAS,
the Company desires to engage the Executive to serve the Company as the Chief
Executive Officer and the Executive desires to serve as the Chief Executive
Officer of the Company;
NOW
THEREFORE, in consideration of the premises and the mutual agreements made
herein, the Company and the Executive agree as follows:
1. Employment;
Duties.
The
Company shall engage the Executive to serve as Chief Executive Officer of the
Company. The Executive shall serve the Company in such capacity for the
“Employment
Period”
as
defined in Section 2. The Executive agrees that during the term of his
employment hereunder, he shall devote approximately 75% of his professional
working time, attention, knowledge and experience and give his best effort,
skill and abilities to promote the business and interests of the Company as
directed by the Board of Directors of the Company or a committee of the Board
of
Directors to which the Board of Directors has duly delegated authority thereof
(collectively, the “Board”).
The
Company acknowledges and agrees that the services rendered to the Company shall
not be exclusive to the Company and the Executive may pursue other business
activities so long as such other business activities are not in conflict with
the Company. The Executive agrees to faithfully and diligently perform such
reasonable duties commensurate with the position of Chief Executive Officer
as
may from time to time be assigned to the Executive by the Board. For purposes
of
clarity, except with respect to subsidiaries of the Company, to the extent
the
Executive renders services to any other organizations, all such services must
be
rendered in a separate capacity and shall not be deemed to constitute services
of the Executive as an agent of any such other organization to the Company
or by
or on behalf of the Company to such other organizations unless expressly
delegated in writing to such effect.
2. Employment
Period.
This
Agreement shall have an initial term of one (1) year to be effective commencing
as of July
1, 2008
and
ending on the first anniversary of thereof (the “Initial
Employment Period”),
unless sooner terminated in accordance with the provisions of Section 7 or
Section 8. This Agreement shall automatically renew and continue to remain
in
effect after the Initial Employment Period for successive one year periods
(each, a “Renewal
Employment Period”),
until
terminated as provided herein, unless either party provides the other party
with
written notice of non-renewal not later than 30 days prior to the expiration
of
the Initial Period or the anniversary of such date in any subsequent Renewal
Employment Period. The Initial Employment Period and each Renewal Employment
Period of this Agreement is referred to herein as the “Employment
Period.”
3. Compensation.
(a) Base
Compensation.
The
Executive shall be paid a base salary of two
hundred thousand (200,000) Euros per annum,
payable
incrementally on a monthly basis and pro-rated for any partial year of
employment, less any applicable statutory or regulatory deductions (the
“Base
Salary”).
The
Base Salary shall be payable in accordance with the Company’s regular payroll
practices, as the same may be modified from time to time.
(b) Options.
The
Executive shall be eligible to participate in the Company equity incentive
plan
and options as granted at the discretion of the Board of Directors.
(c) Expense
Reimbursement.
The
Executive shall be entitled to reimbursement of reasonable out-of-pocket
expenses incurred in connection with travel and matters related to the Company's
business and affairs if made in accordance with written Company policy as in
effect from time to time as determined by the Board.
(d) Vacation.
The
Executive shall be entitled to paid vacation each calendar year in accordance
with written Company policy as in effect from time to time as determined by
the
Board. No compensation shall be paid for accrued but untaken vacation.
(e) Place
of Employment.
The
parties agree that the principal place of services to be rendered to the Company
by Executive shall be deemed to be Abu Dhabi, United Arab Emirates and all
compensation shall be paid to Executive in such jurisdiction. The Company
acknowledges and agrees that Executive may reside from time to time in other
jurisdictions and may travel to any and all other jurisdictions related to
services to be rendered to the Company and Executive, none of which shall have
the effect of changing the deemed principal place of services rendered by
Executive to the Company unless otherwise required by the laws of such other
jurisdictions.
4. Trade
Secrets.
The
Executive agrees that it is in the Company's legitimate business interest to
restrict his disclosure or use of Trade Secrets and Confidential Information
relating to the Company or its affiliates as provided herein, and agrees not
to
disclose or use the Trade Secrets and/or Confidential Information relating
to
the Company or its affiliates for any purpose other than in connection with
his
performance of his duties to the Company. For purposes of this Agreement,
“Trade
Secrets”
shall
mean all confidential and proprietary information belonging to the Company
(including prospective client lists, ideas, formulas, compositions, inventions
(whether patentable or unpatentable and whether or not reduced to practice),
know-how, manufacturing and production processes and techniques, research and
development information, drawings, specifications, designs, plans, proposals,
technical data, copyrightable works, financial and marketing plans and customer
and supplier lists and information). For
purposes of this Agreement, “Confidential
Information”
shall
mean all information other than Trade Secrets belonging to, used by, or which
is
in the possession of the Company and relating to the Company’s business or
assets specifically including, but not limited to, information relating to
the
Company’s products, services, strategies, pricing, customers, representatives,
suppliers, distributors, technology, finances, employee compensation, computer
software and hardware, inventions, developments, in each case to the extent
that
such information is not required to be disclosed by applicable law or compelled
to be disclosed by any governmental authority. Notwithstanding the foregoing,
the terms “Trade
Secrets”
and
“Confidential
Information”
do
not
include information that (i) is or becomes generally available to or known
by
the public (other than as a result of a disclosure by the Executive),
provided,
that
the
source of such information is not known by the Executive to be bound by a
confidentiality agreement with the Company; or (ii) is independently developed
by the Executive without violating this Agreement.
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5. Return
of Documents and Property.
Upon
the expiration or termination of the Executive's employment with the Company,
or
at any time upon the request of the Company, the Executive (or his heirs or
personal representatives) shall deliver to the Company (a) all documents and
materials (including, without limitation, computer files) containing Trade
Secrets and Confidential Information relating to the business and affairs of
the
Company or its affiliates, and (b) all documents, materials, equipment and
other
property (including, without limitation, computer files, computer programs,
computer operating systems, computers, printers, scanners, pagers, telephones,
credit cards and ID cards) belonging to the Company or its affiliates, which
in
either case are in the possession or under the control of the Executive (or
his
heirs or personal representatives).
6. Discoveries
and Works.
All
Discoveries and Works made or conceived by the Executive during his employment
by the Company, solely, jointly or with others, that relate to the Company's
present or anticipated activities, or are used or useable by the Company shall
be owned by the Company. For the purposes of this Section 6, (including the
definition of “Discoveries
and Works”)
the
term “Company”
shall
include the Company and its affiliates. The term “Discoveries
and Works”
includes, by way of example but without limitation, Trade Secrets and other
Confidential Information, patents and patent applications, service marks, and
service xxxx registrations and applications, trade names, copyrights and
copyright registrations and applications. The Executive shall (a) promptly
notify, make full disclosure to, and execute and deliver any documents requested
by the Company, as the case may be, to evidence or better assure title to
Discoveries and Works in the Company, as so requested, (b) renounce any and
all
claims, including but not limited to claims of ownership and royalty, with
respect to all Discoveries and Works and all other property owned or licensed
by
the Company, (c) assist the Company in obtaining or maintaining for itself
at
its own expense United States and foreign patents, copyrights, trade secret
protection or other protection of any and all Discoveries and Works, and (d)
promptly execute, whether during his employment with the Company or thereafter,
all applications or other endorsements necessary or appropriate to maintain
patents and other rights for the Company and to protect the title of the Company
thereto, including but not limited to assignments of such patents and other
rights. Any Discoveries and Works which, within one year after the expiration
or
termination of the Executive's employment with the Company, are made, disclosed,
reduced to tangible or written form or description, or are reduced to practice
by the Executive and which pertain to the business carried on or products or
services being sold or delivered by the Company at the time of such termination
shall, as between the Executive and, the Company, be presumed to have been
made
during the Executive's employment by the Company. The Executive acknowledges
that all Discoveries and Works shall be deemed “works
made for hire”
under
the U.S. Copyright Act of 1976, as amended 17 U.S.C. Sect. 101.
7. Termination.
(a) Manner
of Termination.
The
Company and the Executive may terminate this Agreement, with or without cause,
only in accordance with the provisions of this Section 7.
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(b) Termination
Without Cause.
The
Company may terminate this Agreement without cause at any time during the
Employment Period effective immediately upon giving written notice of
termination to the Executive, provided however, that if the Company terminates
this Agreement other than for cause during the Employment Period the Company
shall pay the Executive payments equivalent to Executive’s annual Base Salary
following such termination date in accordance with the Company’s regular payroll
procedures through the remainder of the Employment Period, plus vesting of
any
options, plus reimbursement of any and all reasonable and pre-approved expenses
incurred by Executive as of the date of notice of such date, and all of such
payments shall completely and fully discharge any and all obligations and
liabilities of the Company to the Executive.
(c) Termination
for Cause.
The
Company may terminate this Agreement for cause at any time during the Employment
Period effective immediately upon giving written notice of termination to the
Executive. For purposes of this Agreement, “cause”
shall
mean, with respect to the Executive, (i) any act of fraud or dishonesty, willful
misconduct or negligence in connection with the Executive's performance of
his
duties, (ii) repeated failure of the Executive to follow reasonable instructions
of the Board, (iii) dishonesty of the Executive which causes a material
detriment to the Company or its affiliates, (iv) a breach by the Executive
of
any provision hereof or of any contractual or legal fiduciary duty to the
Company (including, but not limited to, the unauthorized disclosure of Trade
Secrets or other Confidential Information, non-compliance with the policies,
guidelines and procedures of the Company or engaging during his employment
in
any other employment or business without the express written approval of the
Company’s Board of Directors), (v) the arrest of the Executive for the
commission of a felony, whether or not such alleged felony was committed in
connection with the Company's business or (vi) the commencement of any
bankruptcy proceedings (whether voluntary or involuntary), the appointment
of a
trustee or receiver for the Executive or the general assignment of the
Executive's assets to his creditors.
(d) Termination
by Executive .
The
Executive may terminate this Agreement with or without cause at any time during
the Employment Period upon two weeks’ prior written notice of termination to the
Company. For purposes of this Agreement, with respect to the Company,
“cause”
shall
mean the failure to pay any amounts due Executive hereunder (and not disputed
in
good faith by the Company) within one month after their due date.
(e) Effect
of Termination.
Except
as otherwise provided herein with respect to a termination pursuant to Section
7(b), in the event this Agreement is terminated pursuant to this Section 7,
the
Executive's rights and the Company's obligations hereunder shall cease as of
the
effective date of the termination, including, without limitation, the right
to
receive Base Salary, options and all other compensation or benefits provided
for
in this Agreement, and the Executive shall not be entitled to any further
compensation, options, or severance compensation of any kind, and shall have
no
further right or claim to any compensation, options, benefits or severance
compensation under this Agreement or otherwise against the Company or its
affiliates, from and after the date of such termination, except as required
by
applicable law. Any termination under this Section 7 is subject to the
provisions of Sections 18 and 20 hereof.
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(f) Relinquishment
of Authority.
Notwithstanding anything to the contrary set forth herein, upon written notice
to the Executive, the Company may immediately relieve the Executive of all
his
duties and responsibilities hereunder and may relieve the Executive of authority
to act on behalf of, or legally bind, the Company.
8. Disability:
Death.
(a) If,
prior
to the expiration of any applicable Employment Period, the Executive shall
be
unable to perform his duties hereunder by reason of physical or mental
disability for at least ninety (90) calendar days, the Company shall have the
right to terminate this Agreement and the remainder of the Employment Period
by
giving written notice to the Executive to that effect. Immediately upon the
giving of such notice, the Employment Period shall terminate.
(b) Upon
termination of this Agreement pursuant to Section 8(a), the Executive shall
(i) be paid his Base Salary through the effective date of such termination
and (ii) all options previously granted shall remain in full force and effect.
All other compensation and benefits provided for in Section 3 of this
Agreement shall cease upon termination pursuant to Section 8(a), except as
otherwise required by applicable law.
(c) In
the
event of a dispute as to whether the Executive is disabled within the meaning
of
Section 8(a), either party may from time to time request a medical examination
of the Executive by a doctor appointed by the chief of staff of a hospital
selected by mutual agreement of the parties, or as the parties may otherwise
agree, and the written medical opinion of such doctor shall be conclusive and
binding upon the parties as to whether the Executive has become disabled and
the
date when such disability arose. The cost of any such medical examination shall
be borne by the requesting party.
(d) If,
prior
to the expiration of the Employment Period or the termination of this Agreement,
the Executive shall die, the Executive's estate shall be paid his Base Salary
and other compensation due through such date of death. Except as otherwise
provided in this Section 8(d), upon the death of the Executive, the Employment
Period shall terminate without further notice and the Company shall have no
further obligations hereunder, including, without limitation, obligations with
respect to compensation, options and benefits provided for in Section 3 of
this Agreement, other than as set forth in the immediately preceding sentence
or
as otherwise required by law.
(e) Any
termination under this Section 8 is subject to the provisions of Section 18
hereof.
9. No
Conflicts.
The
Executive has represented and hereby represents to the Company and its
affiliates that the execution, delivery and performance by the Executive of
this
Agreement do not conflict with or result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default under
any
contract, agreement or understanding, whether oral or written, to which the
Executive is a party or of which the Executive is or should be aware and that
there are no restrictions, covenants, agreements or limitations on his right
or
ability to enter into and perform the terms of this Agreement, and agrees to
indemnify and save the Company and its affiliates harmless from any liability,
cost or expense, including attorney’s fees, based upon or arising out of any
such restrictions, covenants, agreements, or limitations that may be found
to
exist.
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For
purposes of this Agreement, “affiliate”
shall
include any subsidiary in the case of the Company, and any person or entity
directly or indirectly controlled by or controlling the Company.
10. Non-competition.
Except
as authorized by the Board of Directors, during the Executive’s employment by
the Company and for a period of one year thereafter, Executive will not (except
as an officer, director, stockholder, employee, agent or consultant of the
Company or any subsidiary or affiliate thereof) either directly or indirectly,
whether or not for consideration, (i) in any way, directly or indirectly,
solicit, divert, or take away the business of any person who is or was a
customer of the Company, or in any manner influence such person to cease doing
business in part or in whole with Company; (ii) engage in a Competing Business;
(iii) except for investments or ownership in public entities, mutual funds
and similar investments, none of which constitute more than 5% of the ownership
or control of such entities, own, operate, control, finance, manage, advise,
be
employed by or engaged by, perform any services for, invest or otherwise become
associated in any capacity with any person engaged in a Competing Business
in
the United States; or (iv) engage in any practice the purpose or effect of
which
is to intentionally evade the provisions of this covenant. For purposes of
this
section, “Competing
Business”
means
any company or business which is engaged directly or indirectly in any business
carried on or planned to be carried on by the Company or any of its subsidiaries
or affiliates. In the event that the Executive’s employment by the Company is
terminated without cause, as described in Section 7(b) hereof, the limitations
of this Section 10 shall cease to apply as of the final payment made in respect
of the termination of the Executive’s employment with the Company as set forth
in Section 7(b) above.
11. Non-Solicitation.
During
the Executive’s employment by the Company and for a period of one year
thereafter (the “Restricted
Period”),
the
Executive, directly or indirectly, whether for his account or for the account
of
any other individual or entity, shall not solicit or canvas the trade, business
or patronage of, or sell to, any individuals or entities that were either
customers of the Company during the time the Executive was employed by the
Company, or prospective customers with respect to whom a sales effort,
presentation or proposal was made by the Company or its affiliates, during
the
one year period prior to the termination of the Executive’s employment. The
Executive further agrees that during the Restricted Period, he shall not,
directly or indirectly, (i) solicit, induce, enter into any agreement with,
or
attempt to influence any individual who was an employee or consultant of the
Company at any time during the time the Executive was employed by the Company,
to terminate his or her employment relationship with the Company or to become
employed by the Executive or any individual or entity by which the Executive
is
employed or (ii) interfere in any other way with the employment, or other
relationship, of any employee or consultant of the Company or its
affiliates.
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12. Enforcement.
The
Executive agrees that any breach of the provisions of this Agreement would
cause
substantial and irreparable harm, not readily ascertainable or compensable
in
terms of money, to the Company for which remedies at law would be inadequate
and
that, in addition to any other remedy to which the Company may be entitled
at
law or in equity, the Company shall be entitled to temporary, preliminary and
other injunctive relief in the event the Executive violates or threatens to
violate the provisions of this Agreement, as well as damages, including, without
limitation consequential damages, and an equitable accounting of all earnings,
profits and benefits arising from such violation, in each case without the
need
to post any security or bond. Nothing herein contained shall be construed as
prohibiting the Company from pursuing, in addition, any other remedies available
to the Company for such breach or threatened breach. A waiver by the Company
of
any breach of any provision hereof shall not operate or be construed as a waiver
of a breach of any other provision of this Agreement or of any subsequent breach
by the Executive.
13. Determinations
by the Company.
All
determinations and calculations with respect to this Agreement shall be made
by
the Board or any committee thereof to which the Board has delegated such
authority, in good faith in accordance with applicable law, the certificate
of
incorporation and by-laws of the Company, in its sole discretion, and shall
be
final, conclusive and binding on all persons, including the Executive and the
personal representative of his estate.
14. Successors
and Assigns.
This
Agreement shall inure to the benefit of and shall be binding upon (i) the
Company, its successors and assigns, and any company with which the Company
may
merge or consolidate or to which the Company may sell substantially all of
its
assets, and (ii) Executive and his executors, administrators, heirs and legal
representatives. Since the Executive’s services are personal and unique in
nature, the Executive may not transfer, sell or otherwise assign his rights,
obligations or benefits under this Agreement.
15. Notices.
Any
notice required or permitted under this Agreement shall be deemed to have been
effectively made or given if in writing and personally delivered, or sent
properly addressed in a sealed envelope postage prepaid by certified or
registered mail, or delivered by a reputable overnight delivery service. Unless
otherwise changed by notice, notice shall be properly addressed to the Executive
if addressed to the address of record on file with the Company; and if to the
Company as properly addressed to the Company’s corporate registered office.
16. Severability.
It is
expressly understood and agreed that although the Company and the Executive
consider the restrictions contained in this Agreement to be reasonable and
necessary for the purpose of preserving the goodwill, proprietary rights and
going concern value of the Company, if a final determination is made by
arbitration or any court having jurisdiction that any provision contained in
this Agreement is invalid, the provisions of this Agreement shall not be
rendered void but shall be deemed amended to apply as to such maximum time
and
territory and to such other extent as such arbitral body or court may determine
or indicate to be reasonable. Alternatively, if the arbitrable body or court
finds that any provision or restriction contained in this Agreement or any
remedy provided herein is unenforceable, and such restriction or remedy cannot
be amended so as to make it enforceable, such finding shall not affect the
enforceability of any of the other restrictions contained therein or the
availability of any other remedy. The provisions of this Agreement shall in
no
respect limit or otherwise affect the Executive's obligations under any other
agreements with the Company.
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17. Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original but all of which together will constitute one and the same
instrument.
18. Effects
of Termination.
Notwithstanding anything to the contrary contained herein, if this Agreement
is
terminated pursuant to Section 7 or Section 8 or expires by its terms, the
provisions of Sections 4-6 and 10-20 of this Agreement shall survive and
continue in full force and effect.
19. Arbitration.
All
disputes and controversies arising out of or relating to this Agreement shall
be
finally settled and binding under the Rules of International Commercial Dispute
Resolution of the American Arbitration Association (“ICDR”). The place of
arbitration shall be New York. The Arbitration shall be conducted in English
by
a single arbitrator appointed in accordance with the ICDR rules. Any award,
verdict or settlement issued under such arbitration may be entered by any party
for order of enforcement by any court of competent jurisdiction. The arbitrator
shall have no power to take interim measures he or she deems necessary,
including injunctive relief and measures for the protection or conservation
of
property.
20. Miscellaneous.
This
Agreement constitutes the entire agreement, and supersedes all prior agreements,
of the parties hereto relating to the subject matter hereof, and there are
no
written or oral terms or representations made by either party other than those
contained herein. This Agreement cannot be modified, altered or amended except
by a writing signed by both parties. No waiver by either party of any provision
or condition of this Agreement at any time shall be deemed a waiver of such
provision or condition at any prior or subsequent time or of any other provision
or condition at the same or any prior or subsequent time.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first above written.
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EXECUTIVE
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| /s/ Olivier de Vergnies | |||
|
Name:
Olivier
de Vergnies
|
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|
THE
COMPANY: 4C CONTROLS INC.
|
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|
By:
|
/s/ Xxxxxxx X. Xxxx | ||
|
Name:
Xxxxxxx X. Xxxx
|
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|
Title:
Corporate Secretary
|
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