EXHIBIT 10.5
EMPLOYEE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made by and between Alcohol Sensors
International, Ltd. ("Employer") located at 00 Xxxx Xxxxx, Xxxxxxxx, Xxx Xxxx
00000 and Xx. Xxxxxx X. Xxxxxxxx ("Employee"), residing 0000 Xxxxxx Xxxxxx,
Xxxxxxx Xxxxx, XX 00000.
WHEREAS; The parties to this Agreement declare that:
WHEREAS; The Employer is engaged in the business of design,
development, manufacture, sale and distribution of a Breath Alcohol Ignition
Interlock Devices, and
WHEREAS; The Employee is willing to be employed by the Employer, and
the Employer is willing to employ the Employee, on the terms, covenants, and
conditions set forth in this Agreement, then
IN CONSIDERATION of the mutual promises set forth in this Agreement,
the Employer and the Employee agree as follows:
Section 1. EFFECTIVE DATE. Employment shall begin on January 1, 1996,
the term of this Agreement shall be three (3) years from the effective date.
Section 2. EMPLOYMENT TITLE AND DUTIES. The Employer shall employ the
Employee in the capacity of Vice President, Chief Operating Officer, and
General Counsel. The duties associated with this employment shall include
investor relations, strategic planning, coordination of Employer legal matters
with corporate attorney and other legal specialists, company operations,
policies, procedures and systems, and other day to day duties reasonably and
customarily associated with the position of Vice President, Chief Operating
Officer, and General Counsel. The term "General Counsel" shall mean general
advisor or assistant to other members of top management, and not legal
advisor. The Employee accepts this employment, subject to the general
supervision and pursuant to the orders and direction of the Employer, with
reporting and functional responsibility to the President. The Employee shall
perform such other duties as are customarily performed by one holding such
position in other, same, or similar businesses or enterprises as that engaged
in by the Employer. The Employee shall also render such other and unrelated
services and duties as may be assigned from time to time by the Employer.
Section 3. COMPENSATION OF THE EMPLOYEE. The Employer shall pay the
Employee in full payment for the Employee's services under this Agreement, the
following compensation:
a. An annual salary of ninety-nine thousand nine hundred
forty-four dollars ($99,944.00) per year payable weekly in
the amount of one thousand nine hundred twenty-two dollars
($1,922.00).
b. Bonuses, stock options, vacations, sick leave, retirement
benefits, and expense accounts or other prerequisites, as
either stated herein, in the Employer's manual for other
employees in the same category and as attached by Exhibit
to this Agreement, or as may be decided by the Board of
Directors of the Employer.
c. Term Life Insurance is not presently available to Employee
by the Employer. If a policy should be made available to
the Employee in the future, it shall be equal to the
Employee in the future, it shall be equal to Employee's
annual base salary subject to term and condition then in
effect by Employer.
d. A monthly car allowance or company car commensurate with
that provided to anyone in top management position of the
Employer which shall be provided to Employee for each month
during the term of this Agreement.
e. Employer shall provide comprehensive medical insurance
coverage commensurate with that provided to anyone in top
management position of Employer, and said coverage shall be
provided to Employee and to his immediate family at no cost
to Employee. Comprehensive dental shall also be provided at
no cost to Employee and family when available.
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Section 4. BEST EFFORTS OF THE EMPLOYEE. The Employee agrees to
perform all of the duties pursuant to the express and implicit terms of this
Agreement to the reasonable satisfaction of the Employer. The Employee further
agrees to perform such duties faithfully and to the best of his ability,
talent, and experience.
Section 5. PLACE OF EMPLOYMENT. The Employee shall render such duties
at 00 Xxxx Xxxxx, Xxxxxxxx, X.X. 00000, and at such other places as the
Employer shall in good faith require or as the interest, needs, business, or
opportunity of the Employer shall require.
Section 6. NON-COMPETITION WITH THE EMPLOYER DURING THE TERM OF
EMPLOYMENT. The Employee shall not, during the term of this Agreement, be
interested directly or indirectly, in any manner, as partner, officer,
director, consultant, shareholder, advisor, employee, or in any other capacity
in any other Breath Alcohol Ignition Interlock Business. However, nothing
contained in this section shall prevent or limit the right of the Employee
from investing in the capital stock or other securities of any corporation
whose stock or securities are publicly owned and traded on any public
exchange, nor shall anything contained in this section prevent or limit the
Employee from investing in real estate, or working in investing in or managing
any other enterprise(s) not competitive with Employer (Breath Alcohol Ignition
Interlock Industry only); and if competitive Employee agrees not to compete
with Employer for a period not to exceed 18 months after the expiration or
termination of this Agreement, unless Employee is terminated without cause, in
which event Employee shall not be restricted whatsoever.
Section 7. RESTRICTIONS ON THE USE OF TRADE SECRETS AND RECORDS.
During the term of employment under this Agreement, the Employee may have
access to various trade secrets, consisting of formulas, patterns, devices,
inventions, processes, and compilations of information of information,
records, and specifications, all of which are owned by the Employer and
regularly used in the operation of the Employer's business. All files,
records, customer lists, documents, drawings, specifications, equipment, and
similar items relating to the business of the Employer, whether they are
prepared by the Employee or come into the Employee's possession in any other
way and whether or not they contain or constitute trade secrets owned by the
Employer, are and shall remain the exclusive property of the Employer and
shall not be removed from the premises of the Employer under any circumstances
whatsoever without the prior written consent of the Employer. The Employee
agrees not to divulge, misappropriate, or disclose any of these trade secrets
and records directly or indirectly, to any person, firm, corporation, or other
entity in any manner whatsoever, except as required in the course of
employment, either during the term of this Agreement or for eighteen (18)
months thereafter.
Section 8. THE EMPLOYEE SHALL CONTRACT FOR THE EMPLOYER. The Employee
shall have the right to make any contracts or commitments for or on behalf of
the Employer, subject to the authority vested in Employee by the Board of
Directors of the Employer.
Section 9. VACATION AND HOLIDAYS. Immediately upon employment, the
Employee shall be entitled to an annual vacation leave equivalent to four
calendar weeks and such other vacation time as the Board of Directors may deem
reasonable and appropriate at full pay. In addition, the Employee shall be
entitled to paid holidays and other days off with pay as specified by the
Employer.
Section 10. ILLNESS. The Employee shall be entitled to unlimited days
per year of sick leave (except for disability) with full pay.
Section 11. TERMINATION WITHOUT CAUSE. This Agreement may not be
terminated without cause by the Employer. However, if Employer requests
Employee to remove himself from his position, as described in this Agreement,
and or Employ of the Employer without cause at any time during the term of
this Agreement, and Employee so consents, Employer must pay Employee a sum of
$300,000.00 in consideration of premature termination without cause, and said
payment shall be immediately payable at the date of termination, and shall be
considered liquidated damages with no further obligation among the parties
unless otherwise provided for herein, or damage to Employee results from an
intentional tort or criminal act.
Section 12. TERMINATION FOR SUBSTANTIAL CAUSE INCLUDING BREACH,
NEGLECT, OR INCAPACITY. If the Employee willfully and substantially breaches
or habitually neglects the performance of duties required under the terms of
the Agreement, or demonstrates continued and substantial or profound
incapacity to perform those duties, he is required to perform under this
Agreement, the Employer may terminate this Agreement by giving written notice
of termination to the Employee without prejudice to any other remedy to which
the Employer may be entitled either at law, in equity, or under this
Agreement.
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Section 13. TERMINATION FOR DISABILITY. The Employer may also
terminate this Agreement in the event that the Employee shall, during the term
of this Agreement, become permanently disabled as the term is fixed and
defined in this section. Such option shall be exercised by the Employer giving
notice to the Employee as required by this Agreement. On the giving of such
notice, this Agreement shall cease on the last day of the month in which the
notice is so mailed, with the same force and effect as if such last day of the
month were the date originally set forth in this Agreement as the termination
date of this Agreement.
For the purposes of this Agreement, the Employee shall have
become permanently disabled, if, during any year of the term of this
Agreement, because of ill health, physical, or mental disability or for other
causes beyond the Employee's control the Employee shall have been continuously
unable or unwilling or shall have failed to perform the duties under this
Agreement for one hundred and eighty (180) days, or if, during any year of the
term of this Agreement, the Employee shall have been unable or unwilling or
shall have failed to perform such duties for a total period of one year (365)
days, whether or not such days are consecutive. In all events, Employee shall
be paid his full weekly salary during any said disability, or until disability
can be verified as provided below for a maximum of 52 weeks, or 365 days.
Notwithstanding the above, the salary continuation shall be offset by
any EMPLOYER SPONSORED disability policy or income continuation plan by a
qualified third party provider of such plans. However, the Employee salary
continuation shall not be offset by any government sponsored or independent
Employee paid policy, or other collateral source.
For the purposes of this Agreement, the term "any year of the term of
this Agreement" is defined to mean any 12 consecutive month period during the
term of the Agreement. If permanent disability is verified at any time during
the term of this Agreement by a panel of two independent physicians, Employer
shall pay Employee the sum of $100,000 as severance due to disability in
addition to any disability income or salary continuation plan then in effect,
or as provided for above.
Section 14. INDEMNITY. The Employer shall indemnify the Employee and
hold the Employee harmless for any acts, omissions, or decisions made by the
Employee in good faith while performing services for the Employer including,
but not limited to the Employee's capacity as "General Counsel" (General
Advisor), and will use its best efforts to obtain coverage for the Employee
under any insurance policy now in force or later obtained during the term of
this Agreement covering the other officers, and/or employees of the Employer
against lawsuits. The Employer shall pay all expenses, including attorney's
fees, actually and necessarily incurred by the Employee in connection with any
appeal thereon, including the cost of court settlements.
Section 15. EFFECT OF PARTIAL INVALIDITY. The invalidity of any
portion of this Agreement shall not affect the validity of any other
provision. In the event that any provision of this Agreement is held to be
invalid, the parties agree that the remaining provisions shall remain in full
force and effect.
Section 16. ENTIRE AGREEMENT. This Agreement contains the complete
Agreement between the parties and shall supersede all other agreements, either
oral or written, between the parties. The parties stipulate that neither of
them has made any representations except as are specifically set forth in this
Agreement and each of the parties acknowledges that they have relied on their
own judgment in entering into this Agreement.
Section 17. ASSIGNMENT. This is a Personal Service Agreement. This
Agreement may not be assigned by the Employee. Any attempted assignment shall
be null and void. Employer may however, assign this Agreement.
Section 18. NOTICES. All notices, requests, demands, and other
communications shall be in writing and shall be given by registered or
certified mail, postage prepaid, to the addresses shown on the first page of
this Agreement, or to such subsequent addresses as the parties shall so
designate in writing. All notices given under this Agreement shall be deemed
to be a right of 30 days notice from one party to the other, and shall
constitute effective notice
Section 19. ARBITRATION. Any controversy or claim arising out of this
Agreement, or the breach of this Agreement shall be settled by arbitration in
accordance with the Commercial Arbitration Rules for the American Arbitration
Association, and judgment upon the award rendered by the Arbitrator shall be
FINAL AND BINDING and may be entered in any court having jurisdiction.
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Section 20. ATTORNEY'S FEES. If any action at law or in equity,
including an action for declaratory relief, is brought to enforce or interpret
the provisions of this Agreement, the prevailing party will be entitled to
reasonable attorney's fees as determined by the court in the same action.
Section 21. AMENDMENT. Any modification, amendment or change of this
Agreement will be effective only if it is in a writing signed by both parties.
Section 22. GOVERNING LAW. This Agreement, and all transactions
contemplated by this Agreement, shall be governed by, construed, and enforced
in accordance with the laws of the STATE OF NEW YORK. The venue for any
dispute, resolution proceedings shall be maintained exclusively in the COUNTY
OF SUFFOLK IN THE STATE OF NEW YORK.
Section 23. HEADINGS. The titles to the paragraphs of this Agreement
are solely for the convenience of the parties and shall not affect in any way
the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on this
31st day of December, 1995.
Employee: Xx. Xxxxxx X. Xxxxxxxx
EMPLOYER:
-----------------------------------
Alcohol Sensors International, Ltd.
_____________________________ By: ______________________________
(Signature) (Signature)
_____________________________ ______________________________
(Typed or printed name) (Printed name)
Its: ______________________________
(Title)
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