EXHIBIT 10.4
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT ("Agreement") is effective as of October 4,
2002 (the "Effective Date"), by and between ENER1 TECHNOLOGIES, INC., a Florida
corporation (the "Company"), and XXXXX XXXXX, an individual residing at 0000 X.
Xxxxx Xxxx., Xxx. 0X, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 (the "Employee").
WHEREAS, the Company is engaged in the business of research and
development of solutions in the fields of energy management and the commercial
application of such solutions; and
WHEREAS, the Employee has expertise in the Company's business, the
Company desires to employ the Employee and the Employee is willing to provide
his expertise to the Company as a Company employee.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements contained in this Agreement and other good
and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Employment.
(1) Retention. The Company agrees to employ the Employee as its Vice
President, and the Employee agrees to accept such employment, subject to the
terms and conditions of this Agreement.
(2) Employment Period. This Agreement shall commence on the Effective
Date and shall continue in effect for a period of two (2) years (the "Employment
Period"), unless otherwise terminated by the Company in accordance with the
provisions of Section 3 of this Agreement.
(3) Duties and Responsibilities. During the Employment Period, the
Employee shall serve as Vice President and Chief Technology Officer and shall
have such authority and responsibility and perform such duties as may be
assigned to him from time to time by the Board of Directors of the Company, and
in the absence of such assignment, such duties as are customary to Employee's
office and as are necessary or appropriate to the business and operations of the
Company. During the Employment Period, the Employee shall spend approximately
twenty percent (20%) of total normal working hours in work for the Company.
(4) Other Activities. The Company acknowledges and agrees that the
Employee, during the Employment Period, will have other employment, including
work for Ener1 Group, Inc. and its affiliates, and the Company agrees that the
Employee shall not be prohibited from doing so.
2. Compensation.
(1) Base Salary. In consideration for the Employee's services hereunder
and the restrictive covenants contained herein, the Employee shall be paid an
annual base salary of $50,000 (the "Salary"), payable in accordance with the
Company's customary payroll practices. Notwithstanding the foregoing, Employee's
annual Salary may be increased at anytime and from time to time to levels
greater than the levels set forth in the preceding sentence at the discretion of
the Board of Directors of the Company to reflect merit or other increases.
(2) Expenses. The Employee shall be reimbursed for all out-of-pocket
expenses reasonably incurred by him on behalf of or in connection with the
business of the Company, pursuant to the normal standards and guidelines
followed from time to time by the Company.
3. Termination. The Company may terminate this Agreement, with or
without cause, at any time during the term hereof, by thirty (30) days written
notice to the Employee. The Employee may terminate this Agreement, with or
without cause, at any time during the term hereof, by ninety (90) days written
notice to the Company.
4. Confidentiality. The Employee agrees that at all times during the
term of this Agreement and after the termination of employment for as long as
such information remains non-public information, the Employee shall (i) hold in
confidence and refrain from disclosing to any other party all information,
whether written or oral, tangible or intangible, of a private, secret,
proprietary or confidential nature, of or concerning the Company or any of its
subsidiaries or affiliates and their business and operations, and all files,
letters, memoranda, reports, records, computer disks or other computer storage
medium, data, models or any photographic or other tangible materials containing
such information ("Confidential Information"), including without limitation, any
sales, promotional or marketing plans, programs, techniques, practices or
strategies, any expansion plans (including existing and entry into new
geographic and/or product markets), and any customer lists, (ii) use the
Confidential Information solely in connection with his employment with the
Company or any of its subsidiaries or affiliates and for no other purpose, (iii)
take all precautions necessary to ensure that the Confidential Information shall
not be, or be permitted to be, shown, copied or disclosed to third parties,
without the prior written consent of the Company or any of its subsidiaries or
affiliates, and (iv) observe all security policies implemented by the Company or
any of its subsidiaries or affiliates from time to time with respect to the
Confidential Information. In the event that the Employee is ordered to disclose
any Confidential Information, whether in a legal or regulatory proceeding or
otherwise, the Employee shall provide the Company or any of its subsidiaries or
affiliates with prompt notice of such request or order so that the Company or
any of its subsidiaries or affiliates may seek to prevent disclosure. In
addition to the foregoing the Employee shall not at any time libel, defame,
ridicule or otherwise disparage the Company.
5. Specific Performance; Injunction. The parties agree and acknowledge
that the restrictions contained in Section 4 are reasonable in scope and
duration and are necessary to protect the Company or any of its subsidiaries or
affiliates. If any provision of Section 4 as applied to any party or to any
circumstance is adjudged by a court to be invalid or unenforceable, the same
shall in no way affect any other circumstance or the validity or enforceability
of any other provision of this Agreement. If any such provision, or any part
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thereof, is held to be unenforceable because of the duration of such provision
or the area covered thereby, the parties agree that the court making such
determination shall have the power to reduce the duration and/or area of such
provision, and/or to delete specific words or phrases, and in its reduced form,
such provision shall then be enforceable and shall be enforced. The Employee
agrees and acknowledges that the breach of Section 4 will cause irreparable
injury to the Company or any of its subsidiaries or affiliates and upon breach
of any provision of such Sections, the Company or any of its subsidiaries or
affiliates shall be entitled to injunctive relief, specific performance or other
equitable relief, without being required to post a bond; provided, however,
that, this shall in no way limit any other remedies which the Company or any of
its subsidiaries or affiliates may have (including, without limitation, the
right to seek monetary damages).
6. Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing and shall be deemed given if
delivered by hand delivery, by certified or registered mail (first class postage
pre-paid), guaranteed overnight delivery or facsimile transmission if such
transmission is confirmed by delivery by certified or registered mail (first
class postage pre-paid) or guaranteed overnight delivery to, the following
addresses and telecopy numbers (or to such other addresses or telecopy numbers
which such party shall designate in writing to the other parties): (a) if to the
Company, at its principal executive offices, addressed to the President, with a
copy to the General Counsel; and (b) if to the Employee, at the address listed
on the signature page hereto.
7. Amendment; Waiver. This Agreement may not be modified, amended, or
supplemented, except by written instrument executed by all parties. No failure
to exercise, and no delay in exercising, any right, power or privilege under
this Agreement shall operate as a waiver, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude the exercise of any
other right, power or privilege. No waiver of any breach of any provision shall
be deemed to be a waiver of any preceding or succeeding breach of the same or
any other provision, nor shall any waiver be implied from any course of dealing
between the parties. No extension of time for performance of any obligations or
other acts hereunder or under any other agreement shall be deemed to be an
extension of the time for performance of any other obligations or any other
acts. The rights and remedies of the parties under this Agreement are in
addition to all other rights and remedies, at law or equity, that they may have
against each other.
8. Assignment; Third Party Beneficiary. This Agreement, and the
Employee's rights and obligations hereunder, may not be assigned or delegated by
him. The Company may assign its rights, and delegate its obligations, hereunder
to any affiliate of the Company, or any successor to the Company, specifically
including the restrictive covenants set forth in Section 4 hereof. The rights
and obligations of the Company under this Agreement shall inure to the benefit
of and be binding upon its respective successors and assigns.
9. Severability; Survival. In the event that any provision of this
Agreement is found to be void and unenforceable by a court of competent
jurisdiction, then such unenforceable provision shall be deemed modified so as
to be enforceable (or if not subject to modification then eliminated herefrom)
to the extent necessary to permit the remaining provisions to be enforced in
accordance with the parties intention. The provisions of Section 4 will survive
the termination for any reason of the Employee's relationship with the Company.
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10. Indemnification. The Company agrees to indemnify the Employee
during the term and after termination of this Agreement in accordance with the
provisions of the Company's certificate of incorporation and bylaws and the
Corporation Law of the State of Florida.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument.
12. Governing Law. This Agreement shall be construed in accordance with
and governed for all purposes by the laws of the State of Florida applicable to
contracts executed and to be wholly performed within such State.
13. Entire Agreement. This Agreement contains the entire understanding
of the parties in respect of its subject matter and supersedes all prior
agreements and understandings (oral or written) between or among the parties
with respect to such subject matter. Upon the execution of this Agreement the
provisions of the Existing Employment Agreement shall be superseded and shall be
of no further force and effect except as specifically preserved by the terms of
this Agreement.
14. Headings. The headings of Paragraphs and Sections are for
convenience of reference and are not part of this Agreement and shall not affect
the interpretation of any of its terms.
15. Construction. This Agreement shall be construed as a whole
according to its fair meaning and not strictly for or against any party. The
parties acknowledge that each of them has reviewed this Agreement and has had
the opportunity to have it reviewed by their respective attorneys and that any
rule of construction to the effect that ambiguities are to be resolved against
the drafting party shall not apply in the interpretation of this Agreement.
16. Attorney's Fees. If at any time during the Employment Period or
afterwards there should arise any dispute as to the validity, interpretation or
application of any term or condition of this agreement, the Company agrees, upon
written demand by the Employee (and Employee shall be entitled upon application
to any court of competent jurisdiction, to the entry of a mandatory injunction,
without the necessity of posting any bond with respect thereto, compelling the
Company) to promptly provide sums sufficient to pay on a current basis (either
directly or by reimbursing Employee) Employee's costs and reasonable attorneys'
fees (including expenses of investigation and disbursements for the fees and
expenses of experts, etc.) incurred by the Employee in connection with any such
dispute or any litigation, provided that Employee shall repay any such amounts
paid or advanced if Employee is not the prevailing party with respect to at
least one material claim or issue in such dispute or litigation. The provisions
of this Section 19, without implication as to any other section hereof, shall
survive the expiration or termination of this Agreement and Employee's
employment hereunder.
17. Withholding. All payments made to the Employee shall be made net of
any applicable withholding for income taxes, Excise Tax and the Employee's share
of FICA, FUTA or other taxes. The Company shall withhold such amounts from such
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payments to the extent required by applicable law and remit such amounts to the
applicable governmental authorities in accordance with applicable law.
[Signature page follows.]
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
ENER1 TECHNOLOGIES, INC., a Florida corporation
By:/s/ R. Xxxxxxx Xxxxxx
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Name: R. Xxxxxxx Xxxxxx
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Title: Chief Financial Officer
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EMPLOYEE:
/s/ XXXXX XXXXX
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XXXXX XXXXX
Address for Notices:
0000 X. Xxxxx Xxxx., Xxx. 0X,
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
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