Exhibit 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement"), dated as of
June 17, 2002 ("Effective Date"), is between Competitive
Technologies, Inc., a Delaware corporation (the "Company") and
Xxxx X. Nano (the "Executive"). In consideration of the mutual
covenants contained in this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which is
acknowledged, the parties agree as follows:
1. Employment. The Company hereby employs the Executive,
and the Executive hereby accepts such employment with the
Company, upon all the terms and conditions set forth below.
Executive represents and warrants that: (a) he has full power
and authority to enter into this Employment Agreement, (b) he is
not restricted in any manner whatsoever from performing the
duties described below, and (c) no agreement, covenant or other
matter prohibits or limits his ability or authority to enter into
this Agreement or perform all of the duties described below.
Executive's employment with the Company shall include service for
the Company's direct and indirect subsidiaries and affiliated
entities (the "Subsidiaries").
2. Employment Term. The "Employment Term" and Executive's
employment under this Agreement shall commence on the Effective
Date and shall continue until the date on which the Agreement is
terminated in accordance with the provisions of Section 8 below.
The Company and the Executive acknowledge that the Executive's
employment is at will and can be terminated by either party at
any time and for any reason. If the Executive's employment
terminates for any reason, with or without Cause, the Executive
shall not be entitled to any payments, benefits, damages, awards,
or compensation other than as provided in Section 8 below. The
parties acknowledge that certain obligations under this Agreement
survive the end of Executive's employment.
3. Position and Duties.
a. President and Chief Executive Officer. The Company
shall employ the Executive as its President and Chief Executive
Officer. Executive shall report to the Company's Board of
Directors (the "Board") or the Board's designee. In addition, as
of the Effective Date, Executive will be appointed to the Board.
Without any additional compensation, Executive will serve as a
member of the Board and as an officer and/or director of any
Subsidiaries. Executive shall have such responsibilities and
duties as are commensurate with the position of chief executive
officer in an entity comparable to the Company, including,
without limitation, developing and implementing an overall
strategic plan for the Company and annual business plans, raising
new capital, and supervising day-to-day operations of the
Company. The Board shall have the right to modify Executive's
duties and responsibilities from time to time as the Board may
deem necessary or appropriate.
b. Manner of Employment. Executive shall faithfully,
diligently and competently perform his responsibilities and
duties. The Executive shall devote his exclusive and full
business efforts and time to the Company. This Section 3(b),
however, shall not preclude the Executive, outside normal
business hours, from engaging in appropriate civic or charitable
activities, or from serving as a director of any not-for profit
entity, as long as such activities do not interfere or conflict
with his responsibilities to the Company. With the Board's
consent, Executive may serve as a director of a for-profit
entity.
4. Base Compensation. The Company shall pay the Executive
base compensation in the gross amount of $250,000 per year,
subject to reviews and increases in the sole discretion of the
Board ("Base Compensation"). Base Compensation shall be paid
periodically in accordance with normal Company payroll practices.
5. Employment Benefits. Executive shall be entitled to
the following benefits during the Employment Term:
a. Expense Allowance. Executive shall be reimbursed for
business related expenses reasonably and necessarily incurred and
advanced by Executive in performing his duties for the Company,
subject to and in accordance with Company policy as it exists
from time to time.
b. Car Allowance. The Company will provide Executive a
car allowance or lease for his use a car equal to a 5-Series BMW
or other vehicle reasonably acceptable to the parties.
c. Other Benefits. Executive may participate in all other
employee benefit plans and programs as the Company may, from time
to time, offer to its executive employees, subject to the same
terms and conditions as such benefits are generally provided by
the Company. All such benefits are subject to plan documents
(where applicable) and the Company's policies and procedures.
Nothing in this Section 5(c) guarantees that any specific benefit
will be provided or offered by the Company which has the right to
add, modify, or terminate benefits at any time.
6. Bonus.
a. For the period from the Effective Date through July 31,
2003 (the end of the 2003 fiscal year), and in each fiscal year
during the Employment Term thereafter, Executive shall be
eligible to receive a bonus of up to $100,000 based upon the
Company's performance and Executive's performance of objectives
during that time period as determined by the Board in its
reasonable discretion. Such objectives will be established by
the Board after consultation with Executive within 60 days of the
Effective Date, and may relate to, without limitation, financial
performance, raising new capital, successful resolution of
certain outstanding matters that have been discussed with
Executive, development and implementation of a strategic plan,
and management of the Company.
b. With respect to fiscal years after 2003, in lieu of the
bonus described in Section 6(a), the Company may adopt an
executive bonus plan. The terms of such bonus plan and the
payment of any bonuses to Executive shall be in the reasonable
discretion of the Board or its Compensation Committee.
7. Stock Options. The Company shall grant to Executive
certain ten year options ("Plan Options") for the purchase of an
aggregate of 300,000 shares of the Company's common stock
("Common Stock") at the mean average of the high and low price
for such shares on the Effective Date. The Plan Options shall
vest 25 percent on each of the first four anniversaries of the
Effective Date and in each 25 percent which may vest, the maximum
number of such options as permitted by law shall be Incentive
Stock Options ("ISOs") and the remainder shall be Non-statutory
Stock Options ("NSOs"). The grant and exercisability of the Plan
Options described in this Section 7 are granted pursuant to and
subject to: (i) the terms and conditions contained in the
Company's 1997 Employee's Stock Option Plan as may be amended
from time to time in the Company's sole discretion ("Option
Plan"); and (ii) the terms and conditions of a definitive Stock
Option Agreement (the "Option Agreement") to be entered into as
of the Effective Date between the parties pursuant to the Option
Plan that will set forth all of the rights, duties and
obligations regarding such Options.
8. Termination and Severance Benefits.
a. Death. The death of Executive shall automatically
terminate the Company's obligations under this Agreement;
provided however, that: (i) the Company shall pay to Executive's
estate Executive's Base Compensation and accrued benefits through
the date of termination; and (ii) any unvested Plan Options
granted under this Agreement will upon such termination become
fully vested and immediately exercisable.
b. Disability. If Executive is unable, in the reasonable
determination of the Board, to render services of substantially
the kind and nature, and to substantially the extent, required to
be rendered by Executive under this Agreement due to illness,
injury, physical or mental incapacity or other disability, for 90
days, whether consecutive or not, within any 12 month period,
Executive's employment may be terminated by the Company and: (i)
the Company's sole obligation shall be to pay to Executive his
Base Compensation and accrued benefits through the date of
termination; and (ii) any unvested Plan Options granted under
this Agreement will upon such termination become fully vested and
immediately exercisable.
c. Resignation. If Executive resigns his employment
during the Employment Term other than for Good Reason (as defined
below), the Company shall have no liability to Executive except
to pay Executive's Base Compensation and any accrued benefits
through his last day worked, and Executive shall not be entitled
to receive severance or other benefits.
d. Resignation for Good Reason. If Executive resigns his
employment for Good Reason, he shall be entitled to receive all
accrued but unpaid salary and benefits through the date of
termination plus the Severance Benefit (as defined below).
e. Termination By Company for Cause. If the Executive's
employment is terminated for Cause (as defined below), the
Company shall have no liability to Executive except to pay
Executive Base Compensation and any accrued benefits through his
last day worked and Executive shall not be entitled to receive
severance or other benefits.
f. Termination By Company Without Cause. If the Company
terminates Executive's employment during the Employment Term
without Cause (and for reasons other than death or Disability),
Executive shall be entitled to receive all accrued but unpaid
salary and benefits through the date of termination plus the
Severance Benefit.
g. Termination Due to Change in Control. If the Company
terminates Executive's employment without Cause (and for reasons
other than death or Disability) in conjunction with a Change in
Control (as defined below), Executive shall be entitled to
receive all accrued but unpaid salary and benefits through the
date of termination plus the Change in Control Benefit (as
defined below).
h. Cause. The following acts by Executive, as determined
by the Board in its reasonable discretion, shall constitute
"Cause" for termination:
i. theft or embezzlement, or attempted theft or
embezzlement, of money or material tangible or intangible
assets or property of the Company or its employees or
business relations;
ii. a violation of any law or any act or acts of moral
turpitude which negatively affects the interests, property,
business, operations or reputation of the Company;
iii. other than as a result of a disability, a material
failure to carry out effectively Executive's duties and
obligations to the Company, or failure to devote to the
Company's business the time required in Section 3(b) above,
upon not less than ten (10) days' advance written notice of
the asserted problem and a reasonable opportunity to cure;
iv. gross negligence or willful misconduct in the
performance of Executive's duties;
v. Executive's material breach of this Agreement
which, after written notice by the Company of such breach,
is not cured within ten (10) days of such notice.
i. Resignation for Good Reason. Resignation by Executive
of his employment for "Good Reason" shall mean a resignation by
Executive with sixty days after the following events which occur
without Executive's consent:
i. a material diminution in Executive's position,
duties or responsibilities;
ii. a relocation of the Company's headquarters more
than 50 miles from its present location;
iii. a reduction in Executive's then Base Compensation;
or
iv. the Company's material breach of this Agreement.
Prior to a Resignation for Good Reason, Executive shall give the
Company written notice of the basis for his claim that he has
Good Reason to terminate his employment and 10 days to cure.
j. Change in Control. For purposes of this Agreement, a
"Change in Control" shall mean the occurrence of any of the
following events:
i. a merger or consolidation involving the Company or
any subsidiary of the Company after the completion of which:
(A) in the case of a merger (other than a triangular merger)
or a consolidation involving the Company, the stockholders
of the Company immediately prior to the completion of such
merger or consolidation beneficially own (within the meaning
of Rule 13d-3 promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), or comparable
successor rules), directly or indirectly, outstanding voting
securities representing less than fifty percent (50%) of the
combined voting power of the surviving entity in such merger
or consolidation, and (B) in the case of a triangular merger
involving the Company or a subsidiary of the Company, the
stockholders of the Company immediately prior to the
completion of such merger beneficially own (within the
meaning of Rule 13d-3 promulgated under the Exchange Act, or
comparable successor rules), directly or indirectly,
outstanding voting securities representing less than fifty
percent (50%) of the combined voting power of the surviving
entity in such merger and less than fifty percent (50%) of
the combined voting power of the parent of the surviving
entity in such merger;
ii. an acquisition by any person, entity or "group"
(within the meaning of Section 13(d) or 14(d) of the
Exchange Act or any comparable successor provisions), other
than any employee benefit plan, or related trust, sponsored
or maintained by the Company or an affiliate of the Company
and other than in a merger or consolidation of the type
referred to in clause "(i)" of this Section 7(b), of
beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act, or comparable successor
rules) of outstanding voting securities of the Company
representing more than fifty percent (50%) of the combined
voting power of the Company (in a single transaction or
series of related transactions); or
iii. in the event that the individuals who, as of the
Effective Date, are members of the Board (the "Incumbent
Board"), cease for any reason to constitute at least fifty
percent (50%) of the Board. (However, if the subsequent
election, or nomination by the Board for election by the
Company's stockholders, of any new member of the Board is
approved by a vote of at least fifty percent (50%) of the
Incumbent Board, such new member of the Board shall be
considered as a member of the Incumbent Board.)
x. Xxxxxxxxx Benefit. The "Severance Benefit" shall mean:
(i) continuation of Executive's Base Compensation in effect
immediately prior to such termination or resignation for a period
of six months ("Severance Benefit Period"); (ii) continuation of
Executive's group insurance benefits (to the extent such can be
continued under the terms of the governing plans) for the
Severance Benefit Period; and (iii) continued vesting of the Plan
Options through the end of the Severance Benefit Period or the
next employment anniversary date, whichever is longer.
l. Change in Control Benefit. The "Change in Control
Benefit" shall mean: (i) continuation of Executive's Base
Compensation in effect immediately prior to such termination or
resignation for a period of twelve months ("Change in Control
Benefit Period"); (ii) continuation of Executive's group
insurance benefits (to the extent such can be continued under the
terms of the governing plans) for the Change in Control Benefit
Period; and (iii) any unvested Plan Options granted under this
Agreement will become fully vested and immediately exercisable.
m. Resignations. Upon the end of Executive's employment
for any reason, Executive shall be deemed to have resigned from
any positions which he holds as a director or officer of the
Company and any of its Subsidiaries or affiliates.
n. Release. Payment of the Severance Benefit or the Change
in Control Benefit will be subject to Executive signing an
agreement reconfirming his post-employment obligations contained
in this Agreement and releasing the Company and all Subsidiaries
and related parties from any claims, such agreement to be
prepared by the Company or its designee.
9. Key Executive Insurance. The Company, at its
discretion, may apply for and procure in its own name for its own
benefit life and/or disability insurance on Executive in any
amount specified by the Company. Executive agrees to cooperate
in any medical or other examination, supply information and
execute such applications as may be reasonably necessary to
obtain and continue such insurance at the Company's expense.
Executive represents that he has no reason to believe his life is
not insurable at prevailing rates for men of his age.
10. Confidential and Proprietary Information.
a. Executive agrees that he will not use or disclose to
any person, entity, association, firm or corporation, any of the
Company's Confidential Information, except with the written
authorization of the Board or as necessary to perform his duties
under this Agreement. The term "Confidential Information" means
information and data not generally known outside of the Company
(unless as a result of Executive's breach of any of the
obligations imposed by this Agreement or the duties imposed by
any then existing statute, regulation, ordinance or common law)
concerning the Company's business and technical information, and
includes, without limitation, information relating to: (i) the
identities of clients and the Company's other Business Relations
(as defined below) and their purchasing habits, needs, business
information, contact personnel and other information; (ii)
suppliers' and vendors' costs, products, contact personnel and
other information; and (iii) the Company's trade secrets,
products, research and development, financial and marketing
information, personnel and compensation information, and business
plans. Executive understands that this Section 10 applies to
computerized as well as written information and to other
information, whether or not in written form. It is expressly
understood, however, that the obligations of this Section 10
shall only apply for as long as and to the extent that the
Confidential Information has not become generally known to or
available for use by the public other than by Executive's act or
omission in violation of this Agreement.
b. Executive agrees that upon the end of his employment
with the Company for any reason, he will not take with him any
Confidential Information that is in written, computerized,
machine readable, model, sample, or other form of capable of
physical delivery, without the prior written consent of the
Board. The Executive also agrees that upon the end of his
employment with the Company for any reason or at any other time
that the Company may request, he will deliver promptly and return
to the Company all such documents and materials in his possession
or control, along with all other property and documents of the
Company or relating to the Company's employees, suppliers,
customers, and business.
11. Non-Solicitation. Executive agrees that he will not
through the date one year after the end of his employment with
the Company for any reason, directly or indirectly, on his own
behalf or on behalf of any other person or entity, without the
express written permission of the Board: (a) solicit or attempt
to solicit any employee or representative of the Company to
terminate or modify his or her relationship with the Company or
to work for or provides services to another person or entity; or
(b) solicit or attempt to solicit, any client, vendor, service
provider or other business relation of the Company (each a
"Business Relation"), about whom he learned or with whom he came
into contact during his employment with the Company on behalf of
any entity or with respect to any service or products which is or
may be competitive with the Company or its services or products.
12. Non-Competition.
a. Executive agrees that during the Restrictive Period (as
defined below), he will not, without the express written consent
of the Board, be associated with or engage in, directly or
indirectly, as employee, consultant, proprietor, stockholder,
partner, agent, representative, officer, or otherwise, the
operation of any business that directly competes with the Company
in business activities that are the same or substantially similar
to the business activities engaged in by the Company within the
United States or any other geographic area in which the Company
does business during the Restrictive Period (the "Restricted
Territory").
b. The term "Restrictive Period" shall mean the Employment
Term plus a period of twelve months after the end of the
Employment Term; provided that the twelve month period following
the end of the Employment Term shall not apply if: (i)
Executive's employment is terminated by the Company for reasons
other than death, Disability or Cause, or (ii) Employee resigns
his employment for Good Reason.
c. Passive investment in less than two percent of the
outstanding equity securities of an entity which is listed on a
national or regional securities exchange shall not, in itself,
constitute a violation of this Section 12.
13. Intellectual Property Rights. Executive will, during
the period of his employment, disclose to the Company promptly
and fully all Intellectual Property made or conceived by
Executive (either solely or jointly with others) including but
not limited to Intellectual Property which relate to the business
of the Company or the Company's actual or anticipated research or
development, or result from work performed by him for the
Company. All Intellectual Property and all records related to
Intellectual Property, whether or not patentable, shall be and
remain the sole and exclusive property of the Company.
"Intellectual Property" means all copyrights, trademarks, trade
names, trade secrets, proprietary information, inventions,
designs, developments, and ideas, and all know-how related
thereto. Executive hereby assigns and agrees to assign to the
Company all his rights to Intellectual Property and any patents,
trademarks, or copyrights which may be issued with respect to
Intellectual Property. Executive further acknowledges that all
work shall be work made for hire. During and after the
Employment Term, Executive agrees to assist the Company, without
charge to the Company but at its request and expense, to obtain
and retain rights in Intellectual Property, and will execute all
appropriate related documents at the request of the Company.
Executive understands that this Paragraph 13 shall not apply
to any Intellectual Property for which no equipment, supplies,
facilities, trade secret, or other confidential information of
the Company was used and which was developed entirely on his own
time, and does not relate to the business of the Company, its
actual or anticipated research, and does not result from any work
performed by him for the Company.
14. Successors and Assignees. This Agreement may be
assigned by the Company to any successor or assignee of a
substantial portion of the business of the Company (whether by
transfer of assets or stock, merger or other business
combination). Executive may not assign his rights or obligations
under this Agreement.
15. Binding Effect. This Agreement shall inure to the
benefit of and be binding upon the parties and their respective
heirs, successors, legal representatives and permitted assigns.
16. Notices. Any notice required or permitted to be given
under this Agreement shall be sufficient if in writing and either
delivered in person by reputable messenger or overnight delivery
service, by telecopy (with confirmation of receipt) or sent by
certified mail, postage prepaid, if to the Company at the
Company's principal place of business, c/o Chairman of the Board,
and if to the Executive, at his home address most recently filed
with the Company, or to such other address as either party shall
have designated in writing to the other party.
17. Law Governing. This Agreement shall be governed by and
construed in accordance with the laws of the State of Connecticut
for contracts to be performed in that State.
18. Severability and Construction. If any provision of
this Agreement is declared void or unenforceable or against
public policy, such provision shall be deemed severable and
severed from this Agreement and the balance of this Agreement
shall remain in full force and effect. If a court of competent
jurisdiction determines that any restriction in this Agreement is
overbroad or unreasonable under the circumstances, such
restriction shall be modified or revised by such court to include
the maximum reasonable restriction allowed by law.
19. Reasonable Restrictions/Remedies. Execution
acknowledges that the provisions contained in Sections 10 through
13 of this Agreement are reasonable in scope, area and duration
and are necessary for the Company to protect its legitimate
business interests, including its confidential information and
business relationships. Executive and Company acknowledge and
agree that damages would not adequately compensate Company if
Executive were to breach any of his covenants contained in
Sections 10 through 13 above. Consequently, Executive agrees
that in the event of any such breach, Company shall be entitled
to enforce this Agreement by means of an injunction or other
equitable relief, in addition to any other remedies including
without limitation monetary damages, set off against any amounts
due Executive by Company and termination of Executive's
employment for Cause.
20. Waiver. Failure to insist upon strict compliance with
any of the terms, covenants or conditions hereof shall not be
deemed a waiver of such term, covenant or condition.
21. Entire Agreement; Modifications. This Agreement
constitutes the entire agreement of the parties with respect to
its subject matter and supersedes all prior agreements, oral and
written, between the parties with respect to the subject matter
of this Agreement. This Agreement may be modified or amended
only by an instrument in writing signed by both parties.
22. Employment and Income Taxes. All payments made to
Executive by the Company will be subject to withholding of
employment taxes and other lawful deductions, as applicable.
COMPETITIVE TECHNOLOGIES, INC.
S/ Xxxx X. Nano By: S/ Xxxxxxx X. Xxxxxx
Xxxx X. Nano Title: Chairman
