Exhibit 10.1
EMPLOYMENT AGREEMENT
THE OZONE MAN, INC.
THIS AGREEMENT is entered into as of November 16, 2008 by Dr. Xxxxxx Xxxxx
(the "Employee" and The Ozone Man, Inc. (the "Company"), a Florida Corporation.
1) Duties and Scope of Employment.
a) Position. For the term of his employment under this Agreement
(the "Employment"), the Company agrees to employ the
Employee, which, effective as of October 23,2007, shall be in the
position of Chief Executive Officer of the Company or in such
other level equivalent or higher-level position as the Company
Subsequently may assign to the Employee. The Employee shall
report to the Company's Board of Directors (the "Board") and
shall continue to serve throughout the term of this Agreement as
The Chairman of the Board. Throughout the term of his
employment, Employee shall have such power, authority and
responsibility and perform such duties as are prescribed by or
under the Bylaws of the Company and as are customarily
associated with the position of Chief Executive Officer. Schedule
"A" to this Agreement sets forth particular objectives associated
with Employee's position, which Employee shall endeavor to meet.
b) Obligations to the Company. During his Employment, the
Employee shall devote his full business efforts and time to the
Company. During his Employment, the Employee may, during
nonworking hours away from the Company's premises, engage in
lawful conduct as an employee, consultant or volunteer for an
organization other than the Company ("Other Work"); provided,
however, that such Other Work does not include, without
limitation, conduct that (i) constitutes a breach of fiduciary duty
to the Company, (ii) constitutes a breach of the duty of loyalty to
the Company, (iii) constitutes a breach of Employee's Proprietary
Information and Inventions Agreement with the Company, (iv)
constitutes a breach of this Agreement, (v) competes with the
Company's business, (vi) knowingly assists any person or entity
in competing with the Company, (vii) knowingly assists any
person or entity in preparing to compete with the Company, or
(viii) assists any person or entity in soliciting any employees or
consultants of the Company to leave with Company. In the event
that the Employee engages in Other Work, the Employee must, at
least five (5) business days prior to engaging in lawful conduct in
business activities other than the Company's business, or in
material charitable and political activities not directly associated
with the Company during nonworking hours away from the
Company's premises, notify the Company in writing of the
Employee's activity and purpose of activity, name of employer
(if any) or organization, position with respect to the activity or
the entity and any potential conflict that may arise from that
activity, including the number of hours spent engaging in such
activity that may or will detract from the business of the
Company, and the Board shall have the right to approve such
Other Work to activities. The Employee shall comply with the
Company's policies and rules, as they may be in effect from time
to time during his Employment. Notwithstanding the foregoing,
the Company acknowledges and approves Employee's current
role as President and Chairman of the board of Tiger
Management International, LLC.
c) No Conflicting Obligations. The Employee represents and
warrants to the Company that he is under no obligations and/or
commitments, whether contractual or otherwise, that are
inconsistent with his obligations, under this Agreement. The
Employee represents and warrants that he will not use or
disclose, in connection with his employment by the Company,
any trade secrets or other proprietary information or intellectual
property in which the Employee or any other person other than
the Company, has any right, title or interest and that his
employment by the Company as contemplated by this Agreement
will not infringe or violate the rights of any other person. The
Employee represents and warrants to the Company that he has
returned or destroyed all property and confidential information
belonging to any prior employer. The Employee agrees to sign
the current versions and any future versions of the Company's
various agreements related to confidentiality, inventions and
related intellectual property matters.
d) Commencement Date, CEO Date and Location. The Employee
had officially commenced work for the Company effective on
October 23, 2007 ("CEO Start Date") by oral agreement. This
agreement will be effective January 1, 2009. The Employee shall
be located in the Xxxxxxx Hills office of the Company.
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2) Cash and Incentive Compensation
a) Salary. The Company initially shall pay the Employee as
compensation for his services a base salary at a gross annual rate,
excluding incentive bonuses that may be approved by the Board,
of Three Hundred Ninety Thousand Dollars ($390,000) from the
Commencement Date. However Employee may elect to have his
compensation deferred until a later date. When paid such base
salary shall be payable in accordance with the Company's
standard payroll procedures. (The annual base salary specified in
this subsection (a), together with any increases in such
compensation that the Company may grant from time to time, is
referred to in this Agreement as "Base Compensation.") All
future changes to compensation will be based on the results of
evaluations of the Employee's performance, whether such
evaluations are performed annually, or more frequently as may be
initiated by Employee's senior management or the Board;
provided, however, that $390,000 base salary referred to above
shall be increased by a minimum of eight percent (8%) during
each of the first and second twelve (12) month periods following
the Commencement Date.
b) Incentive Bonuses. The Employee will be eligible for annual
incentive bonuses based on objective or subjective criteria
established in advance by the Board and or the Compensation
Committee of the Board in its sole discretion (but after
consultation with the Employee) and presented to the Employee,
and the determinations of the Board with respect to such bonuses
shall be in the sole discretion of the Board and shall be final
and binding.
c) Performance Bonus Stock. Subject to the approval of the Board,
the Company may grant the Employee restricted stock, stock
options or other equity securities, from time-to-time, covering the
shares of the Company's equity securities. The terms of such
grants, options and other equity securities shall be as determined
by the Board at the time of any such grant. Such terms shall be
provided in writing to the Employee at the time of any such
grant. In accordance with the Company's 2008 Stock Incentive
Plan (the "Plan"). The restricted stock described above will be
subject to the terms and conditions of the Plan. The Company
will review the Employee annually for purposes of making
equity grants; provided that such grants shall based on objective
or subjective criteria established by the Board and or the
Compensation Committee of the Board in its sole discretion (but
after consultation with the Employee). The determinations of the
Board with respect to such grants shall be in the sole discretion of
the Board and shall be final and binding.
3) Vacation and Employee Benefits.
During his Employment, the Employee shall be eligible for paid
time off ("PTO") in accordance with the Company's standard
policy for similarly situated employees, as it may be amended
from time to time, with his initial accrual at the rate of thirty nine
(39) days per year, accrued hourly in accordance with the
Company's payroll practices, with a maximum accrual of thirty-
nine (39) days or three hundred and twelve (312) hours. During
his Employment, the Employee shall be eligible to participate in
any employee benefit plans maintained by the Company for
similarly situated employees, subject in each case to the generally
applicable terms and conditions of the plan in question and to the
determinations of any person or committee administering such
plan based on the terms of the plan and Company policy.
4) COBRA Reimbursement.
a) During his Employment, if the Employee declines for a period of
time to participate in the employee health insurance (medical
and/or dental) benefit plans maintained by the Company and
instead timely elects to continue his health insurance coverage
pursuant to COBRA (as defined in Section 8(c)) under his prior
plan, the Company agrees to pay the Employee as reimbursement
for payments made by the Employee for such Health coverage.
b) The Company shall use commercially reasonable efforts to
procure a term policy of life insurance on the life of Executive
with a death benefit of at least Five Million Dollars ($5,000,000)
for a beneficiary or beneficiaries to be designated by Executive,
and the Company shall pay all premiums and any other ordinary
costs or expenses incident to maintaining such policy in effect
during the Term. In connection with the procurement of such
policy, Executive shall, at such time or times and at such place or
places as the Company may reasonable direct, submit Himself to
such physical examinations and execute and deliver such
documents as the Company may deem necessary or appropriate.
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As an alternative to procuring such policy, the Company may
authorize Executive to procure such policy, and the Company
shall reimburse Executive for the reasonable costs incurred by
Him in connection with the procurement of such policy. Upon the
expiration or termination of the Employee for "good reason" by
the Company other than for "cause", Executive shall have the
right to maintain such policy at Executive's cost and expense.
5) Parking.
During the term of this Agreement, but only for so long as the
Company, in its reasonable discretion, determines that it is cost-
effective, the Company shall pay for a parking space for the
Employee's use in a parking garage close to the Company's
Xxxxxxx Hills Office.
6) Legal and Business Expenses.
During his Employment, the Employee shall be authorized to
incur necessary and reasonable travel, entertainment and other
business expenses in connection with his duties hereunder. The
Company shall reimburse the Employee for such, legal and other
business expenses upon presentation of an itemized account and
appropriate supporting documentation, all in accordance with the
Company's generally applicable policies.
7) Term of Employment.
a) Background Check. This employment is contingent on the
Company receiving a satisfactory background and consumer
credit report. When the credit report is conducted, the Company
will comply with the federal Fair Credit Reporting Act and
applicable state laws, including providing the Employee with any
required notices or forms.
b) Basic Rule. The Company agrees to continue the Employee's
Employment, and the Employee agrees to remain in Employment
with the Company, from the period commencing on the
Commencement Date until the date when the Employee's
Employment terminates pursuant to subsection (c) or (d) below.
c) Termination. Executive's employment and Term will terminate
on the first of the following to occur:
(1) Automatically upon Executives death.
(2) Upon written notice by the Company to Executive of
termination due to Disability (as defined below). For the
purpose of this agreement, "Disability" shall mean a
condition that entitles Executive to benefits under an
applicable Company long-standing disability plan or, if no
such plan exists, a physical or mental disability which, in
the reasonable judgment of the Company's board of
directors, is likely to render Executive unable to perform
his duties and obligations under this agreement for 180
days in any 12-month period.
(3) Upon written notice by the company to the Executive of a
termination for "cause" under Section 8d of this Agreement.
(4) Upon termination for "Constructive Termination or for
"Change of Control" under Xxxxxxx 0x (x), 0x (xx), 0x
(xxx),0x (xx) and 8e.
(5) Upon "Voluntary Termination" by the Executive under
Section 8b (v) of this Agreement.
d) Rights Upon Termination. Except as expressly provided in
Section 8, upon the termination of the Employee's Employment
for any reason (or no reason), including for Cause, the Employee
shall only be entitled to the compensation, benefits and
reimbursements described in Sections 2,3,4,5 and 6 for the period
preceding the effective date of termination, except for benefits
that by their terms are for periods following such effective date.
The payments under this Agreement shall fully discharge all
responsibilities of the Company to the Employee.
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e) Termination of Agreement. This Agreement shall take effect on
the Commencement Date and shall terminate when all obligations
of the parities hereunder have been satisfied. The termination of
this Agreement shall not limit or otherwise affect any of the
Employee's obligations under Section 8.
8) Termination Benefits.
a) General Release. In order to receive the benefits described in
subsections (b) and (c) below, the Employee must (i) execute a
reasonable general release (in a form prescribed by the Company)
of all known and unknown claims that he may then have against
the Company or persons affiliated with the Company, (ii) as part
of such general release, agree to a mutual non-disparagement
with the Company, and (iii) agree not to prosecute any legal
action or other proceeding based upon any of such claims.
b) Severance Pay.
i. If, during the term of this Agreement, the Company
terminates the Employee's Employment (including
through "Constructive Termination" as defined
below) for any reason other than Cause or Permanent
Disability (as defined below), then the Company shall
pay the Employee his Base Compensation for a period
of twelve (12) months (the "Base Continuation
Period"), shall pay monthly and ratably over such
twelve (12) month period the average of the last two
annual incentive bonuses paid during the 24 months
prior to termination (the "Average Bonus"), and shall
accelerate the vesting of any outstanding stock options
or other equity securities such that the Employee will
become vested in an additional number of shares
subject to such stock options or other equity
securities, as if the Employee provided another twelve
(12) months of service with the Company.
Notwithstanding anything in this Agreement to the
contrary, to the extent require by Section 409A of the
Internal Revenue Code of 1986, as amended (the
"Code"), if at the time of termination of Employment,
the Company has a class of stock that is publicly
traded on an established securities market or
otherwise, and Employee is a "specified employee" of
the Company within the meaning of section
409A(a)(2)(B)(i) of the Code, or any successor
provision thereto, any severance payments
contemplated hereunder that are otherwise due during
the six month period beginning on the date of
termination shall be paid instead on the first date of
the seventh month following termination or, if earlier,
Employee's date of death (the "Six Month Delay
Period"). For purposes of this Agreement, if a
termination of Employment occurs when there had
been only one incentive bonus paid, then the
"Average Bonus" shall be the amount of such single
incentive bonus, and if a termination of Employment
occurs prior to the payment of any incentive bonus,
then the "Average Bonus" shall be the guaranteed
amount equal to 70% of the Target Level bonus
amount described in Section 2(b).
ii. If, within sixteen (16) months following a Change of
Control (as defined below), the Employee's
Employment is terminated (including through
"Constructive Termination") for any reason other than
Cause or Permanent Disability, then, subject to the
"Parachute Payment" provisions of subsection (e) of
this Section 9 and, further, subject to the Six Months
Delay Period, if applicable, the Company shall pay the
Employee, his Base Compensation for a period of
twenty four (24) months following the termination of
his Employment (the "Change of Control
Continuation Period"), shall pay monthly and ratably
over the Change of Control Continuation Period an
amount equal to two (2) times the Average Bonus, and
shall accelerate the vesting of any outstanding stock
options or other equity securities such that the
Employee will become vested in an additional number
of shares subject to such stock options or other equity
securities, as if the Employee provided another
twenty-four (24) months of service with the Company.
Such Base Compensation shall be paid at the rate in
effect at the time of the termination of Employment and in
accordance with the Company's standard payroll procedures.
iii. Definition of "Constructive Termination." For all
purposes under this Agreement "Constructive
Termination" shall mean the Employee's resignation
within sixty (60) days following (i) a material
reduction or change in title, job duties, authority,
responsibilities or job requirements inconsistent with
Employee's position with the Company to which the
Employee has not agreed to in writing; (ii) any
material reduction of Employee's Base Compensation
or the guaranteed portion of his incentive bonus, to
which the Employee has not agreed in writing; (iii)
any elimination of a material health, dental, insurance
or other similar benefit or perquisite provided to the
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Employee pursuant to employment with the Company
to which the Employee has not agreed to in writing
unless such material benefit or perquisite is being
eliminated for all Employees in comparable positions
or Employee's class due to a reasonable business need
or condition; (iv) a relocation of place of employment
more than sixty (60) miles from Beverly Hills, California;
(v) the Company's failure to cure any material breach by
it of the terms of this Agreement within a reasonable time
following written notice from the Employee to the
Board or (vi) the failure by any successor to
substantially all of the business of the Company to
assume the Company's obligations under this Agreement
within five business days after a written request from the
Employee. The provisions of subparts (i) through (iii) of
this subparagraph b(iii) shall not apply if any Cause (as
defined in subsection (d) below) has occurred, and, if
curable pursuant to subsection (d), has not been cured
within the period of time permitted pursuant to subsection (d).
iv. Definition of "Change of Control." For all purposes under
this Agreement, "Change of Control" shall mean (A) a
merger or consolidation of the Company with any
other entity, other than a merger or consolidation
which would result in the voting securities of the
Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding
or by being converted into voting securities of the
surviving entity) at least fifty percent (50%) of the
total voting power represented by the voting securities of
the surviving entity outstanding immediately after such
merger or consolidation; or (B) the sale or disposition
by the Company of all or substantially all the Company's assets.
v. In addition to any other rights or remedies provided by
law or in this Agreement. Executive may terminate his
employment hereunder at any time by giving the
Company written notice to such effect at ninety (90)
days prior to the date of termination set forth therein,
such termination to be irrevocable upon receipt of such
notice by the Company.
vi. Notwithstanding anything in this Agreement to the
contrary, for purposes of this Section 8, Employee's
Employment with the Company shall be considered to
have terminated only if (i) Employee provides no
further services for the Company in any capacity
following the termination, or (ii) there is otherwise a
"separation from service" within the meaning of section
409A (a)(2)(A)(i) of the Code. For purposes of the
foregoing, Employment shall not be considered
terminated while Employee is on a bona fide leave of
absence (i) if Employee's right to reemployment is
provided by statute or contract, or (ii) if no such right
exists, until six months following the start of any such
period of leave of absence.
c) Health Insurance. If subsection (b) above applies, and if the
Employee elects to continue his health insurance coverage under
the Consolidated Omnibus Budget Reconciliation Act ("COBRA")
following the termination of his Employment, then the Company
shall reimburse, subject to the Six Months Delay Period, if
applicable, the Employee's monthly premium under COBRA until
the earliest of (i) the close of the Base Continuation Period or the
Change of Control Continuation Period, as applicable, (ii) the
expiration of the Employee's continuation coverage under COBRA
or (iii) the date when the Employee receives substantially equivalent
health insurance coverage in connection with new employment or
self-employment.
d) Definition of "Cause." For all purposes under this Agreement,
"Cause" shall mean:
i. Any material breach of this Agreement, the
Proprietary Information and Inventions Agreement
between the Employee and the Company, or any other
written agreement between the Employee and the
Company, without Employee's satisfactory and
reasonable cure, if curable, within sixty (60) days of
Employee's receipt of written notice from the Company
of such failure to comply, provided that such notice by
Company to Employee specifies the material breach(es)
compliance issues and shall delineate the performance
improvements, modifications or action items necessary
for Employee to effect a satisfactory and reasonable cure;
ii. Any material failure to comply with the Company's
written policies or rules, as they may be in effect from
time to time during the Employee's Employment, which
adversely impacts any aspect of the business or personnel
of the Company without Employee's satisfactory and
reasonable cure, if curable, within sixty (60) days of
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Employee's receipt of written notice from the Company of
such failure to comply, provided that such notice by
Company to Employee shall specify the material failure(s)
to comply and delineate the performance improvements,
modifications or action items necessary for Employee to
effect a satisfactory and reasonable cure;
iii. Conviction of, or a plea of "guilty" or "no contest" to,
a felony under the laws of the United States or any state
thereof;
iv. Threats or acts of violence or unlawful harassment
directed at any present, former or prospective employee,
independent contractor, vendor, customer or business
partner of the Company or directed to the Company;
v. The sale, possession or use of illegal drugs on the premises
of the Company or of a customer or business partner of the
Company or when engaged in the business of the Company at
Company events, Company sponsored events and at any other
events, premises and venues at which the Employee is engaged
in the business of the Company;
vi. Illegal or unethical business practices;
vii. Gross misconduct or gross negligence in the performance
of duties assigned to the Employee under this Agreement; or
ix. Failure to perform reasonable duties assigned to the
Employee under this Agreement without Employee's
satisfactory and reasonable cure, if curable, within sixty
(60) days of Employee's receipt of written notice from
the Company of such failure to perform, provided that
such notice by Company to Employee shall specify
the failure(s) to perform and delineate the performance
improvements, modifications or action items necessary for
Employee to effect a satisfactory and reasonable cure.
e) Parachute Payments. If any payment or benefit an Employee
would receive in connection with a Change of Control from the
Company or otherwise ("Payment") would (i) constitute a
"parachute payment" within the meaning of Section 280G of the
Code, and (ii) but for this sentence, be subject to the excise
tax imposed by Section 4999 of the Code (the "Excise Tax"), then
such Payment shall be equal to the Reduced Amount. The "Reduced
Amount" shall be either (x) the largest portion of the Payment that
would result in no portion of the Payment being subject to the Excise
Tax or (y) the largest portion, up to and including the total, of the
Payment, whichever amount, after taking into account all
applicable federal, state and local employment taxes, income
taxes, and the Excise Tax (all computed at the highest applicable
marginal rate), results in the Employee's receipt, on an after-tax
basis, of the greater amount of the Payment notwithstanding that
all or some portion of the Payment may be subject to the Excise
Tax. If a reduction in payments or benefits constituting
"parachute payments" is necessary so that the Payment equals the
Reduced Amount, reduction shall occur in the following order:
reduction of cash payments; cancellation of accelerated vesting of
stock awards; reduction of employee benefits. In the event that
acceleration of vesting of stock award compensation is to be
reduced, such acceleration of vesting shall be cancelled in the
reverse order of the date of grant of the Employee's stock awards.
The accounting firm engaged by the Company for general audit
purposes as of the day prior to the effective date of the Change of
Control shall perform the foregoing calculations. If the accounting
firm so engaged by the Company is serving as accountant or auditor
for the individual, entity or group effecting the Change of Control,
the Company shall appoint a nationally recognized accounting firm
to make the determinations required hereunder. The Company shall
bear all expenses with respect to the determinations by such
accounting firm required to be made hereunder. The accounting firm
engaged to make the determinations hereunder shall provide its
calculations, together with detailed supporting documentation, to the
Company and the Employee within fifteen (15) calendar days after
the date on which the Employee's right to a Payment is triggered (if
requested at that time by the Company or the Employee) or such
other time as requested by the Company or the Employee. If the
accounting firm determines that no Excise Tax is payable with
respect to a Payment, either before or after the application of the
Reduced Amount, it shall furnish the Company and the Employee
with an opinion reasonably acceptable to Executive that no Excise
Tax will be imposed with respect to such Payment. Any good faith
determinations of the accounting firm made hereunder shall be
final, binding and conclusive upon the Company and the Employee.
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9) Non-Solicitation and Non-Disclosure.
a) Non-Solicitation. During the period commencing on the date of
this Agreement and continuing until the first anniversary of the
date when the Employee's Employment terminated for any reason, the
Employee shall not directly or indirectly, personally or
through others, solicit or attempt to solicit (on the
Employee's own behalf or on behalf of any other person or
entity) either (i) the employment of any employee of the Company
or any of the Company's affiliates or (ii) the business of any
customer of the Company or any customer of any of the
Company's affiliates with whom the Employee had contact during
his Employment. Notwithstanding the foregoing, the Employee
shall be entitled to solicit the Employee's executive assistance at
the time of termination with the approval of the Company (which
will not be unreasonably withheld.)
b) Non-Disclosure. The Employee has entered into a Proprietary
Information and Inventions Agreements with the Company, which
is incorporated herein by reference.
10) Successors.
a) Company's Successors. This Agreement shall be binding upon any
successor (whether direct or indirect and whether by purchase, lease,
merger, consolidation, liquidation or otherwise) to all or
substantially all of the Company's business and/or assets. For all
purposes under this Agreement, the term "Company" shall include any
successor to the Company's business and/or assets which become bound
by this Agreement.
b) Employee's Successors. This Agreement and all rights of the
Employee hereunder shall inure to the benefit of, and be enforceable
by, the Employee's personal and legal representatives, executors,
administrators, successors, heirs, distributes, devisees and legatees.
11) Miscellaneous Provisions.
a) Notice. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly
given when personally delivered or when mailed by U.S. registered
or certified mail, return receipt requested and postage prepaid. In
the case of the Employee, mailed notices shall be addressed to his
at the home address which he most recently communicated to the
Company in writing, and a copy shall be sent to Phil Adikoff Esq
9454 Wilshire Blvd, third floor, Xxxxxxx Xxxxx Xxxxxxxxxx 00000. In
the case of the Company, mailed notices shall be addressed to its
corporate headquarters, and all notices shall be directed to the
attention of its Secretary.
b) Modifications and Waivers. No provision of this Agreement shall
be modified, waived or discharged unless the modification, waiver or
discharge is agreed to in writing and signed by the Employee and by
an authorized officer of the Company (other than the Employee). No
waiver by either party of any breach of, or of compliance with, any
condition or provision of this Agreement by the other party shall be
considered a waiver of any other condition or provision or of the
same condition or provision at another time.
c) Whole Agreement. This Agreement supersedes any previous
offer letters and employment agreements. No other agreements,
representations or understandings (whether oral or written and
whether express or implied), which are not expressly set forth in
this Agreement have been made or entered into by either party
with respect to the subject matter hereof. This Agreement, the
Proprietary Information and Inventions Agreement, and any
agreements relating to the previously granted options or other stock
awards contain the entire understanding of the parties with respect
to the subject matter hereof.
d) Withholding Taxes. All payments made under this Agreement shall be
subject to reduction to reflect taxes or other charges required to be
withheld by law.
e) Choice of Law and Severability. This Agreement is executed
by the parties in the State of California and shall be interpreted in
accordance with the laws of such State (except its provisions
governing the choice of law). If any provision of this Agreement
becomes or is deemed invalid, illegal or unenforceable in any
jurisdiction by reason of the scope, extent or duration of its
coverage, then such provision shall be deemed amended to the
extent necessary to conform to applicable law so as to be valid and
enforceable or, if such provision cannot be so amended without
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materially altering the intention of the parties, then such provision
shall be stricken and the remainder of this Agreement shall
continue in full force and effect. Should there ever occur any
conflict between any provision contained in this Agreement and
any present or future statute, law, ordinance or regulation contrary
to which the parties have no legal right to contract, then the latter
shall prevail but the provision of this Agreement affected thereby
shall be curtailed and limited only to the extent necessary to bring
it into compliance with applicable law. All the other terms and
provisions of this Agreement shall continue in full force and effect
without impairment or limitation.
f) Arbitration. Any controversy or claim arising out of or relating to
this Agreement or the breach thereof, or the Employee's Employment
or the termination thereof, shall be settled in Beverly Hills,
CA, by arbitration before a single neutral arbitrator in accordance
with the Employment Arbitration Rules and Procedures of the Judicial
Arbitration and Mediation Services. The decision of the arbitrator
shall be final and binding on the parties, and judgment on the
award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. The parties hereby agree that the
arbitrator shall be empowered to enter an equitable decree
mandating specific enforcement of the terms of this Agreement.
The Company will pay all costs unique to arbitration. The Company
shall also pay to the fullest extent permitted by law, all legal fees
and expenses which the Employee may incur as a result of or in
connection with or arising out of such arbitration (including as a
result of any contest by the Employee about the amount or timing of
any payment due under this paragraph); provided that the arbitrator
or other person(s) presiding over the arbitration affirmatively finds
that the Employee "prevailed" in the arbitration. Each of the
Company and the Employee agree that such arbitrator or other
person shall be instructed to make a determination as to whether
the Company or the Employee "prevailed" in the arbitration. The
parties hereby agree to waive their right to jury trial to the extent
permitted by law.
g) No Assignment. This Agreement and all rights and obligations of
the Employee hereunder are personal to the Employee and may
not be transferred or assigned by the Employee at any time. The
Company may assign its rights under this Agreement to any
entity that assumes the Company's obligations hereunder in
connections with any sale or transfer of all or a substantial
portion of the Company's assets to such entity.
h) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
i) No Mitigation/Offset. In the event of any termination of
employment, Employee shall not be required to mitigate damages
or the amount of any payment provided for under this Agreement
by seeking other employment or otherwise, and compensation
earned from such employment or otherwise shall not reduce the
amounts otherwise payable under this Agreement. No amounts
payable under this Agreement shall be subject to reduction or
offset in respect to any claims which the Company or any of its
subsidiaries or affiliates (or any other person or entity) has or
may have against Employee.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized representative, as of the day
and year first above written.
_______________________________________
Xx. Xxxxxx X. Xxxxx
For The Ozone Man, Inc.
_______________________________________
Name: Xxxxxxx Xxxxxxx, Esq.
Title: Member of the Board of Directors
_______________________________________
Name: Honorable Xxxxxx Xxxxx, Esq.
Title: Member of the Board of Directors
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Schedule A
EMPLOYEE DUTIES
1. Position and Structure:
Chief Executive Officer, Reporting to the Board
2. Position Overview:
i. Overall accountability for and the leadership, management,
development and continuous improvement of the Company
and all of its operations, finances, transactions, business
relationships, M & A activity and human resources.
ii. Strategic planning and strategic business development for
the business and implementation of transactions, tasks and
projects is resulting from such planning through the organization.
iii. Leadership, management, recruiting, and continuous
development of the Company's leadership team.
iv. Consistent and accurate planning, forecasting, and budgeting
related to all areas of the business and managing to meet or
exceed those plans, forecasts and budgets.
v. Managing, meeting and exceeding those expectations of
member, client and business partner, as are specified in
advance in writing between the Employee and the Company.
vi. As the most senior leader, with integrity, wisdom and
prudence, interacting with, communicating to, and helping to
educate and to develop up line management, peer management,
and non-reporting staff throughout the Company to the benefit
of all Company personnel and the business as a whole.
vii. Representing the Company and its personnel in formal and
informal communications and presentations, on panels, with
the press, in the field, with clients and other business partners,
and in all other business-related circumstances, with the highest
attainable form of professionalism, integrity, honesty, and
sincerity in the desire to serve, provide service, and relate
information, and in all other forms of communication and presentation.
viii. Responsibilities as further defined in written descriptions of
the job and other roles and responsibilities.
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