EMPLOYMENT AGREEMENT
Exhibit 10.25
THIS
EMPLOYMENT AGREEMENT ("Agreement")
is entered into by and between Envision
Solar, LLC, a California limited liability company (the "Company"), and Xxxxxx
Xxxxx, an
individual ("Employee"), effective June 15, 2007 ("Effective Date"). The Company
desires to retain
the services of Employee, and Employee desires to continue to be employed by the
Company
for the term of this Agreement.
NOW,
THEREFORE, in the
consideration of the premises and the mutual covenants and
agreements set forth herein, the Company and Employee, intending to be legally
bound, hereby
agree as follows:
AGREEMENT
1. Employment. The
Company hereby employs Employee on an at-will basis for the
position of Chief Executive Officer and President. Employee hereby accepts such
at-will employment,
and agrees to perform services for the Company, upon the terms and conditions
set forth in
this Agreement.
2. Position
and Duties.
2.1 Duties.
During the term of this Agreement, Employee shall perform all
duties and functions customarily performed by the Chief
Executive Officer and President of a business of the size and nature similar to
that of the Company, and such other employment duties as the Company's Board of
Managers (the "Board") shall assign to him from time to time.
2.2 Competitive
Activities. During the term of this Agreement Employee shall not, directly or indirectly, either as an executive,
employer, consultant, agent, principal, partner, stockholder, member, manager,
officer, director, or in any other individual or representative capacity, engage
or participate in any business that is in competition in any manner whatsoever
with the business of the Company or any affiliate. This Agreement shall not be
interpreted to prohibit Employee from making passive personal investments or
conducting private business affairs if those activities do not materially
interfere with the services required under this Agreement. However; Employee
shall not directly or indirectly, acquire, hold, or retain any interest in any
business competing with or similar in nature to the business of the Company or
any affiliate.
3. Compensation.
3.1 Salary. As
compensation for services to be rendered by Employee under this
Agreement, the Company shall pay to Employee an annual salary of One
Hundred and Twenty Thousand and 00/100 Dollars
($120,000.00) (the "Salary"), which shall be paid on a regular basis in
accordance with the Company's regular payroll procedures. In addition, Employee
shall receive an additional allowance of One Thousand and Two Hundred and 00/100
Dollars ($1,200.00) per month to cover automobile expenses, which do not include
parking and gas expenses.
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3.2
Participation
in Benefit Plans. Employee shall be included to the extent eligible
thereunder in any and all plans of the Company providing general benefits for
the Company's employees, including, but not limited to, any group life
insurance, hospitalization, disability, medical, dental, Section 125 cafeteria,
pension, profit sharing, savings and stock bonus plans. Employee's participation
in any such plan or program shall be subject to the provisions, rules, and
regulations applicable thereto. Nothing in this Agreement shall impose on the
Company any affirmative obligation to establish any benefit plan. The Company
reserves the right to prospectively terminate or change benefit plans and
programs it offers to its employees at any time.
3.3
Unit
Options. Employee shall receive options to purchase Units of the
Company
as more fully set forth in a Unit Option Agreement between Employee and the
Company dated, which is attached hereto as Exhibit
A.
3.4 Expenses.
In accordance with the Company's policies established from time to
time, the Company will pay or reimburse Employee for all reasonable and
necessary out-of-pocket expenses incurred by him in the performance of his
duties under this Agreement, provided that:
3.4.1 Each such item is of a type which qualifies it as a
proper item for deduction or capitalization by the Company for federal or state
income tax purposes, or, with respect to business meals, the item qualifies as a
partial deduction; and
3.4.2 Employee furnishes the Company with such records and
other documentary evidence as are customarily sufficient to satisfy the
requirement for substantiation of such expenditures as an income tax deduction
(or capitalization) pursuant to applicable federal and state statutes and/or
regulations.
4. Annual
Vacation. Employee
shall be entitled to 30 days vacation time each year without
loss of compensation. In no event may Employee accrue more than 45 days of
vacation. In the
event Employee at any time has accrued 45 days of vacation, no further vacation
shall accrue
unless and until the accrued time is reduced to less than 45 days. Once this
maximum is reached,
all further accruals will cease. Vacation accruals will recommence after
Employee has taken
vacation and the accrued hours have been dropped below the 45-day maximum.
Employee may be
absent from his employment for vacation only at such times as approved by the
Board.
5. Compensation
upon Termination. In the
event Employee's employment with the
Company is terminated for any reason, voluntarily or involuntarily, Employee
shall be entitled
to receive Employee's then current Salary accrued through the effective date of
termination,
plus accrued but unused vacation time. Employee shall not be entitled to further
compensation
upon termination.
6. Proprietary
Matter. Except
as permitted or directed by the company, Employee shall not during the term of
his employment or at any time thereafter divulge, furnish, disclose or
make
accessible (other than in the ordinary course of the business of the Company) to
anyone for use in
any way any confidential, secret, or proprietary knowledge or information of the
Company ("Proprietary
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Matter")
which Employee has acquired or become acquainted with or will acquire
or become
acquainted with, whether developed by himself or by others, including, but not
limited to, any trade secrets, confidential or secret designs, processes,
formulae, software or computer programs, plans, devices, or material (whether or
not patented or patentable, copyrighted or copyrightable) directly or indirectly
useful in any aspect of the business of the Company, any confidential customer,
distributor or supplier lists of the Company, any confidential or secret
development or research work of the Company, or other confidential, secret or
non-public aspects of the business of the Company. Employee acknowledges that
the Proprietary Matter. constitutes a unique and valuable asset of the Company
acquired at great time and expense by the Company, and that any disclosure or
other use of the Proprietary Matter other than for the sole benefit of the
Company would be wrongful and would cause irreparable harm to the Company. Both
during and after the term of this Agreement, Employee will refrain from any acts
or omissions that would reduce the value of Proprietary Matter to the Company.
The foregoing obligations of confidentiality, however, shall not apply to any
knowledge or information which is now published or which subsequently becomes
generally publicly known, other than as a direct or indirect result of the
breach of this Agreement by Employee.
7. Inventions. Any and
all inventions, innovations or improvements ("Inventions") made,
developed or created by Employee (whether at the request or suggestion of the
Company or
otherwise, whether alone or in conjunction with others, and whether during
regular hours of work or
otherwise) during his employment by the Company which may be directly or
indirectly useful
in, or relate to, the business of the Company shall be promptly and fully
disclosed by Employee
to the Managers of the Company and shall be the Company's exclusive property,
and Employee
shall promptly deliver to an appropriate representative of the Company as
designated by the
Managers all papers, drawings, models, data and other material relating to any
inventions made,
developed or created by him. Employee shall, at the request of the Company and
without any
payment therefor, execute any documents necessary or advisable in the opinion of
the Company's
counsel to direct issuance of patents or copyrights to the Company with respect
to such
Inventions or to vest in the Company title to such Inventions. The expense of
securing any such
patent or copyright shall be borne by the Company. Employee hereby irrevocably
designates
and appoints the Company and each of its duly authorized officers and agents as
Employee's agent and attorney-in-fact to act for and in Employee's behalf and
stead to execute and file
any document(s) and to do all other lawfully permitted acts to further the
prosecution, issuance and enforcement of patents, copyrights and other
proprietary rights with the same force and
effect as if executed and delivered by
Employee.
8. Ventures. If,
during the term of this Agreement, Employee is engaged in or associated
with the planning or implementing of any project, program or venture involving
the Company
and a third party or parties, all rights in the project, program or venture
shall belong to the
Company and shall constitute a corporate opportunity belonging exclusively to
the Company. Except as
expressly approved in writing by the Company, Employee shall not be entitled to
any interest
in such project, program or venture or to any commission, finder's fee or other
compensation
in connection therewith, other than the compensation to be paid to Employee as
provided
in this Agreement.
9. Copyright. Employee
recognizes and understands that Employee's duties for the Company
may include the preparation of materials, including software, written or graphic
materials,
and that any such materials conceived or written by Employee shall be "work made
for
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hire" within the meaning of United States and other
applicable copyright laws. Employee understands that since such works are "works
made for hire," The Company will retain exclusive ownership of all rights in
such materials, including copyrights.
10. Solicitation
of Customers. During
his employment by the Company, Employee will not,
either directly or indirectly, on his own behalf or in the service or on behalf
of others, solicit,
divert or appropriate, or attempt to solicit, divert or appropriate, to any
competing business
any customer or client of the Company, or any person or entity whose account has
been solicited
by the Company.
11. Solicitation
of Employees. Employee
agrees that during his employment by the Company
and for the one-year period following the termination of such employment for any
reason,
Employee shall not, either directly or indirectly, on his own behalf or in the
service or on behalf of
others solicit, divert or hire away, or attempt to solicit, divert or hire away
any person then
employed by the Company or any affiliate.
12. Termination
Upon Notice. This
Agreement and the employment created thereby may be
terminated by the Company or Employee at any time, with or without cause, in the
absolute
and sole discretion of either party, upon the provision of written notice of
termination to the other
party. It is understood that no employee or representative of the Company, other
than a member of
the Board, has any authority to enter into any agreement for any specified
period of time, or
to make any agreement contrary to the foregoing. Termination of this Agreement
pursuant
to this provision shall not prejudice any other remedy to which either party may
be entitled
either at law, in equity, or under this
Agreement.
13. Surrender
of Records and Property. Upon
termination of his employment for any
reason, Employee shall deliver promptly to the Company all records, manuals,
books, blank forms, documents, letters, memoranda, notes, notebooks, reports,
data, tables, and calculations or copies
thereof, which are the property of the Company and which relate in any way to
the business,
products, practices or techniques of the Company, and all other property of the
Company
and Proprietary Matter, including, but not limited to, all documents which in
whole or in part, contain any trade secrets or confidential information of the
Company, which in any of these
cases are in his possession or under his control. If Employee purchases any
record book, ledger, or similar item to be used for keeping records of or
information regarding the business of the
Company or its customers, Employee shall immediately notify the Company, which
shall then
immediately reimburse Employee for the expense of such
purchase.
14. Assignment. This
Agreement shall not be assignable, in whole or in part, by either
party without the written consent of the other party, except that the Company
may, without the
consent of Employee, assign its rights and obligations under this Agreement to
any corporation,
firm or other business entity (i) with or into which the Company may merge or
consolidate,
(ii) to which the Company may sell or transfer all or substantially all of its
assets, or (iii) to
any Affiliate. Upon such assignment by the Company, the Company shall obtain the
assignees' written agreement enforceable by Employee to assume and perform, from
and after the date
of such assignment, the terms, conditions, and provisions imposed by this
Agreement upon the Company. After any such assignment by the Company and such
written agreement by the
assignee, the Company shall be discharged from all further liability hereunder
and such assignee shall thereafter be deemed to be the Company for
the purposes of all provisions of this Agreement including this
section.
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15. Injunctive
Relief. Employee agrees that it would be difficult to compensate the
Company fully for damages for any violation of the provisions of this Agreement,
including, without limitation, the provisions of Sections 6, 7, 8, 9, 10, 11 and
13. Accordingly, Employee specifically agrees that the Company shall be entitled
to temporary and permanent injunctive relief to enforce the provisions of this
Agreement. This provision with respect to injunctive relief shall not,
however, diminish the right of the Company to claim and recover damages in
addition to injunctive relief.
16. Arbitration.
16.1 Claims
Covered. The parties shall settle by arbitration all statutory,
contractual and/or common law claims or controversies ("Claims") that the
Company may have against Employee, or that Employee may have against the Company
or any of its officers, directors, executives or agents in their capacity as
such or otherwise. Claims subject to arbitration include (i) claims for
discrimination (including but not limited to, age, disability, marital status,
medical condition, national origin, race, religion, sex, sexual harassment or
sexual orientation); (ii) claims for breach of any contract (express or
implied); (iii) claims for any federal, state or governmental law, statute,
regulation or ordinance; and (iv) tort claims (including but not limited to,
negligent or intentional injury, defamation and termination of employment in
violation of public policy).
16.2 Claims
Not Covered. The arbitration of Claims shall not apply to (i) claims by
Employee for workers' compensation or unemployment insurance; (ii) claims which
even in the absence of these arbitration provisions could not have been
litigated in court or before any administrative proceeding under applicable
federal, state or local law; and (iii) claims by the Company for injunctive
and/or other equitable relief
16.3 Procedures.
Claims shall be settled by arbitration by a single, neutral arbitrator in
accordance with the Natural Rules for Resolution of Employment Disputes of the
American Arbitration Association. The parties shall have the right to take
depositions and obtain discovery regarding the subject matter of the arbitration
as provided in Title III of Part 4 (commencing with section 1985) of the
California Code of Civil Procedure. The arbitrator shall determine all questions
of fact and law relating to any Claim, including but not limited to, whether or
not any such Claim is subject to the arbitration provisions contained herein.
The arbitrator shall issue a written arbitration decision which shall include
essential findings and conclusions on which any award is based. Judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction. Each party shall pay the fees of its own attorneys, the expenses
of its witnesses and all other expenses connected with presenting its case,
except insofar as such fees or expenses are otherwise recoverable pursuant to a
statutory claim or cause of action, e.g., FEHA, ADEA or EEO claims. Other costs
of the arbitration, including the cost of any record or transcripts of the
arbitration, administrative fees, the fee of the arbitrator, and all other fees
and costs, shall be borne by the Company.
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16.4 Remedies. Employee
understands that Employee is waiving the right to seek remedies in court,
including the right to a jury trial. The arbitrator shall be empowered to award
any relief which might have been available in a court of law or
equity.
16.5 Required
Notice and Statute of Limitations. Arbitration shall be initiated by
serving or mailing a written notice to the other party within one year of the
date the complaining party has knowledge of the event first giving rise to the
claim. If the claim is not properly submitted in this time frame, all rights and
claims that the complaining party has or may have had against the other party
shall be waived and void, even if there is a federal or state statute of
limitations which would have given the complaining party more time to pursue the
claims. Any notice to be sent to the Company shall be delivered to the Chairman
of the Board of the Company or, if none, to any member of the Board. The notice
shall identify and describe the nature of all claims asserted and the facts upon
which such claims are based.
17. Indemnification.
17.1 Indemnification
of Employee. The Company shall, to the maximum extent permitted by law,
indemnify and hold Employee harmless for any acts or decisions made in good
faith while performing services for the Company. To the same extent, the Company
will pay, and subject to any legal limitations, advance all expenses, including
reasonable attorneys' fees and costs of court-approved settlements, actually and
necessarily incurred by Employee in connection with the defense of any action,
suit or proceeding and in connection with any appeal, which has been brought
against Employee by reason of his service as an officer or agent of the
Company.
17.2 Indemnification
of Company. Employee shall indemnify and hold the Company harmless for
any acts or decisions made by Employee which constitute gross negligence or
misconduct. Employee shall pay, and subject to any legal limitations, advance
all expenses, including reasonable attorneys' fees and costs of court-approved
settlements, actually and necessarily incurred by the Company in connection with
the defense of any action, suit or proceeding and in connection with any appeal,
which has been brought against the Company by reason of the gross negligence or
misconduct of Employee.
18. Miscellaneous.
18.1 Governing
Law. This Agreement is made under and shall be governed by and construed
in accordance with the laws of the State of California.
18.2 Prior
Agreements. This Agreement contains the entire agreement of the parties
relating to the subject matter hereof and supersedes all prior agreements and
understandings with respect to such subject matter. The parties hereto have made
no agreements, representations or warranties relating to the subject matter of
this Agreement which are not set forth herein.
18.3 Taxes.
The Company may withhold from any benefits payable under this Agreement
all federal, state, city or other taxes as shall be required pursuant to any law
or governmental regulation or ruling.
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18.4
Successors.
18.4.1
Company's
Successors. Any
successor to the Company (whether direct or
indirect and whether by purchase, lease, merger, consolidation, liquidation or
otherwise) or to all
or substantially all of the Company's business and/or assets shall assume the
Company's obligations
under this Agreement and agree expressly to perform the obligations under this
Agreement in the same manner and to the same extent as the Company would be
required to perform
such obligations in the absence of a succession. For all purposes under this
Agreement, the term
"Company" shall include any successor to the Company's business and/or assets
which executes
and delivers the assumption agreement described in this subsection or which
becomes bound by the terms of this Agreement by operation of
law.
18.4.2 Employee's
Successors. The terms of this Agreement and all rights of Employee
hereunder shall inure to the benefit of, and be enforceable by, Employee's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
18.5
Amendments. No
amendment or modification of this Agreement shall be deemed
effective unless made in writing signed by the parties
hereto.
18.6
No
Waiver. No term
or condition of this Agreement shall be deemed to have been
waived nor shall there be any estoppel to enforce any provisions of this
Agreement, except by
a statement in writing signed by the party against whom enforcement of the
waiver or estoppel
is sought. Any written waiver shall not be deemed a continuing waiver unless
specifically
stated, shall operate only as to the specific term or condition waived and shall
not constitute
a waiver of such term or condition waived and shall not constitute a waiver of
such term or
condition for the future or as to any act other than that specifically
waived.
18.7 Severability.
To the extent any provision of this Agreement shall be invalid or unenforceable,
it shall be considered deleted herefrom and the remainder of such provision and
of this Agreement shall be unaffected and shall continue in full force and
effect.
18.8
Counterparts. This
Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and all which together shall be
deemed to
be one and the same instrument.
18.9 Notices.
Any notice to Employee provided for in this Agreement shall be given by
personal delivery or by mailing such notice by first-class mail addressed to
Employee at the address specified on the execution page of the Agreement or at
such other address as Employee may designate by written notice to the Company.
All notices shall be deemed delivered upon personal delivery, or, if mailed in
accordance with this provision, three days after deposit in United States
mail.
[Signature page follows]
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THE
COMPANY:
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ENVISION
SOLAR, LLC
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a
California limited liability company
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By: /s/ Xxxx
Xxxxxxx
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Name: Xxxx
Xxxxxxx
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Title:
COO
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EMPLOYEE:
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/s/
Xxxxxx Xxxxx
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Xxxxxx
Xxxxx
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| Address for Notice | |
| 000 Xxxxxxxxxxx Xxxx | |
| Xxxxxxxxx, XX 00000 | |
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