EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
the 9th day of February 2003, by and between Invisa Inc., a Nevada corporation,
(the "Company") and Xxxxxx X. Xxxx ("Employee").
R E C I T A L S:
WHEREAS, the Company and the Employee are desirous of setting forth in
this definitive Employment Agreement their respective rights and obligations in
respect to Employee's employment with the Company.
NOW, THEREFORE, in consideration of Employee's employment or continued
employment by the Company and in consideration of the mutual promises in this
Agreement, and for additional good and valuable consideration, the receipt and
sufficiency of which is acknowledged by the parties hereto, the Company and the
Employee agree as follows:
1. EMPLOYMENT AND TERM. On the terms and subject to the conditions of
this Agreement, the Company agrees to employ the Employee and the Employee
accepts such employment. Employee's employment under this Agreement shall
commence on the date hereof, and shall continue in effect for a period of three
years from the date hereof and it shall terminate at the end of said three-year
period ("Termination Date"), unless earlier terminated or continued by the
parties pursuant to Paragraph 6 hereinbelow.
2. DUTIES. The Employee is employed by the Company to perform the
Duties specified from time to time by the President and as set forth on Exhibit
"A" which is attached hereto, incorporated herein and made a part hereof
("Duties").
3. COMPENSATION. As compensation for Employee performing the Duties,
the Company shall pay Employee the compensation, as set forth on Exhibit "B"
which is attached hereto, incorporated herein and made a part hereof
("Compensation").
4. VACATIONS. Employee shall be entitled each year to a vacation as
provided in Exhibit "B", during which time Employee's Compensation shall be paid
in full.
5. FRINGE BENEFITS AND REIMBURSEMENT OF EXPENSES.
A. Employee shall be entitled to participate in any group plans or
programs maintained by the Company, if any, such as health insurance or other
related benefits as may be in effect from time to time and offered to the other
Employees of the Company ("Benefits").
B. The Company will reimburse Employee for Employee's out-of-pocket
expenses for entertainment, travel, and similar expenses reasonably incurred by
Employee in the performance of Employee's Duties hereunder ("Expenses") provided
such Expenses are consistent with policy and budgets established by the Board of
Directors from time to time. The Employee shall provide an itemized account of
such Expenses, itemizing such Expenses in reasonable detail, and reimbursement
for Expenses approved by the Board of Directors or its designated officer shall
be made in a reasonable time following the Employee's delivery of the itemized
account.
6. TERMINATION OF EMPLOYMENT.
6.1 The Company shall have no right or entitlement under any
circumstances to terminate this Agreement except in accordance with the
provisions of this Section 6. Prior to the end of the term of this Agreement,
the Company may only terminate this Agreement as follows: (i) in the event of
Employee's death with termination only in accordance with the provisions of
Paragraph 6.2; or (ii) at the election of the Company in accordance with Section
6.3, provided that the Company fully and completely satisfies the obligation to
pay the Severance Package Compensation provided for in Section 6.3.
6.2 In the event of Employee's death, this Agreement will terminate,
and the Company shall pay to Employee's estate or as otherwise designated by
Employee, the following death benefit: an amount equal to the base salary to
Employee for the remaining term of the Agreement, which may be paid at the same
intervals as the compensation would have been paid had the employment not been
terminated by Employee's death.
6.3 Prior to the Termination Date, the Company may, upon 30 days
written notice to the Employee, immediately thereafter terminate the Employee's
employment for any reason and without regard to cause. In the event of such
termination, the Company shall pay to Employee, a severance package consisting
of the Compensation (as set forth on Exhibit "B") and Benefits as described in
Paragraph 5 hereinabove (jointly referred to as the "Severance Package
Compensation"), which would have been due and owing to Employee during the
remaining term of the Agreement following the date of such Termination
("Severance Payment Period"). The Severance Package Compensation shall be paid
during the Severance Payment Period at the same intervals as the Compensation
and Benefits would have been paid had the employment not been terminated.
6.4 Prior to the Termination Date, the Employee may, upon 30 days
written notice to the Company, terminate Employee's employment with the Company,
and in such event, Employee shall not be entitled to any Compensation or
Severance Package Compensation following the date of such termination.
6.5 In the event this Agreement is not terminated prior to its
Termination Date, as set forth hereinabove in this Paragraph 6, then in such
event this Agreement shall terminate upon the Termination Date. Notwithstanding
the foregoing, if the Company is profitable as determined by the Company's
auditors, based upon generally accepted accounting principles consistently
applied during the 12 month period immediately prior to the end of the term of
this Agreement, this Agreement shall automatically be renewed for an additional
three-year term, all pursuant to the terms and conditions of this Agreement.
7. NON-COMPETITION. Simultaneously with his execution of this
Agreement, Employee shall execute a Covenant Not to Compete Agreement with the
Company, as set forth on Exhibit "C" which is attached hereto, incorporated
herein and made a part hereof.
8. CONFIDENTIALITY/WAIVER OF INTEREST. Simultaneously with the
execution of this Agreement, Employee shall execute a Confidentiality/Waiver of
Interest Agreement with the Company, as set forth on Exhibit "D" which is
attached hereto, incorporated herein and made a part hereof.
9. NOTICES. Any notice provided for in this Agreement must be in
writing and must be either personally delivered or mailed by certified mail,
return receipt required, to the recipient at the address indicated below:
To the Company: To the Employee:
Invisa, Inc. Xxxxxx X. Xxxx
0000 Xxxxxxxxxxxx Xxxxx 0000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
10. SEVERABILITY. In the event that any provision of this Agreement
shall be held to be unreasonable, invalid, or unenforceable for any reason
whatsoever, the parties agree that: (i) such invalidity or unenforceability
shall not affect any other provision of this Agreement and the remaining
covenants, restrictions, and provisions hereof shall remain in full force and
effect; and (ii) any court of competent jurisdiction may so modify the
objectionable provision as to make it valid, reasonable, and enforceable, and
such provision, as so modified, shall be valid and binding as though the
invalid, unreasonable, or unenforceable portion thereof had not been included
therein.
11. COMPLETE AGREEMENT. This Agreement contains the entire agreement of
the parties and supersedes and preempts any prior understandings, agreements or
representations between Employee and the Company regarding the employment of
Employee.
12. COUNTERPARTS. This Agreement may be simultaneously executed in two
counterparts, each of which shall be an original, and all of which shall
constitute but one and the same instrument.
13. CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the laws of the state of Florida, with venue in Sarasota County,
Florida.
14. ATTORNEY'S FEES. In the event that either party to this Agreement
shall be forced to retain the services of any attorney to enforce any of the
provisions hereof, than the prevailing party in any ensuing litigation shall be
entitled to recover from the non-prevailing party the prevailing party's
reasonable attorney's fees, court costs or other expenses of litigation, whether
incurred at trial or upon appeal.
15. AMENDMENTS/WAIVERS. This Agreement may only be modified, amended,
or waived by a writing duly authorized and executed by all parties.
16. PERMITTED ACTIVITIES. It is acknowledged that Employee is engaged
in other business activities and has other employment relationships with
entities that are not in competition with the Company. The Company expressly
permits Employee to engage in such current and future non-competitive business
and employment activities at the discretion of Employee, which are in addition
to the employment of Employee by the Company without any further approval or
consent by the Company and Employee is entitled to earn and retain compensation
as a result of such additional employment relationships or business activities.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
THE COMPANY: EMPLOYEE:
Invisa Inc.
By: /s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxx
------------------------------- ---------------------------------
Xxxxxxx X. Xxxxxxx Xxxxxx X. Xxxx
President
EXHIBIT "A"
EMPLOYMENT AGREEMENT
BETWEEN
INVISA, INC.
AND
XXXXXX X. XXXX
In accordance with Paragraph 2, Employee shall perform the following duties:
All duties associated with serving as Chief Financial Officer.
EXHIBIT "B"
EMPLOYMENT AGREEMENT
BETWEEN
INVISA, INC.
AND
XXXXXX X. XXXX
In accordance with Paragraph 3, Employee shall be paid the following
Compensation payable as set forth below:
1. $120,000 annual base salary, payable monthly in two increments (less
customary withholding for federal and state employment taxes). At least
annually, the Board of Directors shall review the base salary for increase based
upon performance of the Company;
2. Six weeks vacation;
3. A bonus as determined from time to time by the Company's Board of
Directors. The Company's Board of Directors shall, at least annually, review and
declare a bonus to Employee based upon the performance of the Company. It is
anticipated by the parties that, based upon the performance of the Company,
bonus compensation will constitute a significant part of Employee's overall
compensation from the Company.
EXHIBIT "C"
COVENANT NOT TO COMPETE
COVENANT NOT TO COMPETE
INVISA, INC.
This Covenant Not to Compete is made and entered into by and between
Invisa, Inc., a Nevada corporation (hereinafter referred to as the "Company"),
and Xxxxxx X. Xxxx (hereinafter referred to as the "Second Party").
R E C I T A L S:
WHEREAS, the Company is in the business of developing, manufacturing
and marketing safety and security systems based upon proprietary technology; and
WHEREAS, Second Party is an employee of the Company; and
WHEREAS, Second Party acknowledges that the Company's business
activities extend throughout the world; and
WHEREAS, Second Party acknowledges that through such consulting or
employment he has and/or will acquire a special knowledge of the processes,
technologies, drawings, designs and methods of manufacture of the Company's
products; and the clients, accounts, business lists, prospects, records,
corporate policies, operational methods and techniques and other useful
information and trade secrets of the Company (hereinafter all collectively
referred to and defined as "Confidential Information"); and
WHEREAS, Second Party acknowledges that the Company's legitimate
business interests include the Confidential Information and the Company's
customer goodwill (hereinafter referred to and defined as the "Company's
Legitimate Business Interests") and that the Company's Legitimate Business
Interests would be harmed if Second Party engaged in competitive activities with
the Company anywhere in the United States of America; and
WHEREAS, the Company and Second Party, pursuant to the provisions of
Florida Statute 542.33 and 542.335 and the provisions of this Agreement, wish to
enter into an agreement as embodied herein whereby Second Party will refrain
from owning, managing, or in any manner or capacity working for a business
conducting business activities which are similar to or competitive with those of
the Company as defined herein and from soliciting customers of the Company and
employees of the Company for competitive purposes as defined herein during
Second Party's employment with the Company and during the period of three years
after Second Party's cessation of employment with the Company in the
geographical location of anywhere within the United States of America.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, and for additional
good and valuable consideration the receipt and sufficiency of which is
acknowledged by the parties, including, but not limited to, the Second Party's
employment with the Company and the continuation of the Second Party's
employment with the Company, the parties mutually agree as follows:
1. CONFIRMATION OF RECITALS - The foregoing recitals are true and
correct and are hereby ratified and confirmed by the parties and made an
integral part of this Agreement; as such, the recitals shall be used in any
construction of this Agreement, especially as it relates to the intent of the
parties.
2. DEFINITION OF COMPETITION - For purposes of this Agreement
"competition" shall mean the manufacture or sale of: (a) safety systems or
devices to prevent strikes, damage, injury or entrapment from the movement of a
closure device. Closure devices include, but not by way of limitation, powered
gates, powered doors, parking gates, swinging gates, sliding gates, automatic
doors, residential and commercial garage doors and elevator doors; and (b)
security systems or devices for proximity sensing, anti-theft sensing, barrier
sensing, perimeter sensing, security sensing, contact avoidance, presence
recognition or other sensing applications. The term "competition" does not
include any employment or other relationships or activities of Second Party
which are permitted by the Employment Agreement between the Company and Second
Party.
3. NON-COMPETE - The Second Party will not do, or intend to do, any of
the following, either directly or indirectly, during Second Party's employment
with the Company and during the period of three (3) years after Second Party's
cessation of employment with the Company, anywhere within in the United States
of America:
A. Own, manage, operate, control, consult for, be an officer or
director of, work for, or be employed in any capacity by any company or any
other business, entity, agency or organization which conducts operations or
activities that are in competition, as defined herein, with those of the
Company; or
B. Solicit prior or current customers of the Company for any purpose
in competition (as defined herein) with the Company; or
C. Solicit any then current employees employed by the Company
without the Company's consent.
The Second Party and Company agree that the phrase "Second
Party's cessation of employment with the Company" as used in this Agreement,
refers to any separation of Second Party from his employment at the Company
either voluntarily or involuntarily, either with cause or without cause, or
whether the separation is at the behest of the Company or the Second Party
(hereinafter referred to and defined as "Second Party's Cessation of
Employment"). For purposes of this Agreement and for purposes of determining
activity which is covered by the non-compete provisions of this Agreement,
Second Party's Cessation of Employment shall not include non-voluntary
termination of employment by the Company unless all severance obligations of the
Company are being fully and completely honored and satisfied by the Company. In
the event that the Company involuntarily terminates Second Party's employment
and fails to fully and completely honor and satisfy the severance provisions,
this Covenant Not to Compete shall be non-enforceable even though Second Party
may fully pursue and enforce his rights and entitlement to the severance package
as provided in the Employment Agreement.
The Employment Agreement between Second Party and the Company
expressly authorizes and permits Second Party to continue in or enter into
employment and ownership relationships with other entities whose business is not
in competition with that of the Company. Entering into and carrying out such
employment and ownership relationships permitted by the Employment Agreement
between the Company and Second Party shall not be deemed to be a violation of
this Covenant Not to Compete. Furthermore, such companies, by virtue of an
employment or ownership relationship with Second Party, shall not be deemed to
have participated in any violation or breach of this Agreement.
4. INJUNCTION AND DAMAGES - Second Party agrees that this Agreement is
important, material, confidential, and gravely effects the effective and
successful conduct of the business of the Company, and it effects its reputation
and good will and is necessary to protect the Company's Legitimate Business
Interests. Second Party recognizes and agrees that the Company will suffer
irreparable injury in the event of Second Party's breach of any covenant or
agreement contained herein
and cannot be compensated by monetary damages alone, and Second Party therefore
agrees that the Company, in addition to and without limiting any other remedies
or rights that it may have, either under this Agreement or otherwise, shall have
the right to obtain injunctive relief, both temporary and permanent, against the
Second Party from any court of competent jurisdiction. Second Party further
agrees that in the event of Second Party's breach of any covenant or agreement
contained herein, the Company, in addition to its right to obtain injunctive
relief, shall further be entitled to seek damages, including, but not limited
to, compensatory, incidental, consequential, exemplary, and lost profits
damages. Second Party agrees to pay the Company's reasonable attorney's fees and
costs for enforcement of this Agreement, if the Second Party breaches this
Agreement.
5. MISCELLANEOUS - Wherever used in this Agreement, the phrase
"directly or indirectly" includes, but is not limited to Second Party acting
through Second Party's wife, children, parents, brothers, sisters, or any other
relatives, friends, trustees, agents, associates or entities with which Second
Party is affiliated with in any capacity. The Company may waive a provision of
this Agreement only in a writing signed by a representative of the Board of
Directors of the Company and specifically stating what is waived. The rights of
the Company under this Agreement may be assigned; however, the covenants,
warranties, and obligations of the Second Party cannot be assigned without the
prior written approval of the Company. The title of this Agreement and the
paragraph headings of this Agreement are not substantive parts of this Agreement
and shall not limit or restrict this Agreement in any way. This Agreement
survives after the Second Party's Cessation of Employment. No change, addition,
deletion, or amendment of this Agreement shall be valid or binding upon Second
Party or the Company unless in writing and signed by Second Party and the
Company. This Agreement is intended to be a valid contract under Sections 542.33
and 542.335, Florida Statutes. In the event a court of competent jurisdiction
determines any covenant set forth herein to be too broad to be enforceable or
determines this Agreement to be unreasonable, then said court may reduce the
geographical area and/or the length of time provisions herein, in order to make
this Agreement enforceable and reasonable. This Agreement shall be governed by
Florida law. The parties agree that venue for any action brought under this
Agreement shall be in Sarasota County, Florida. In construing this Agreement,
neither of the parties hereto shall have any term or provision construed against
such party solely by reason of such party having drafted same as each provision
of this Agreement is deemed by the parties to have been jointly drafted by the
Company and Second Party.
6. SECOND PARTY ACKNOWLEDGMENT - The Second Party acknowledges that he
has voluntarily and knowingly entered into this Agreement and that this
Agreement encompasses the full and complete agreement between the parties with
respect to the matters set forth herein.
Executed as of the 9th day of February 2003.
INVISA INC. SECOND PARTY
By: /s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxx
-------------------------------- --------------------------
Xxxxxxx X. Xxxxxxx, President Xxxxxx X. Xxxx
EXHIBIT "D"
CONFIDENTIALITY/WAIVER OF INTEREST AGREEMENT
CONFIDENTIALITY AGREEMENT
INVISA, INC.
THIS AGREEMENT is made and entered into by and between Invisa, Inc. a
Nevada corporation (hereinafter referred to and defined as the "Company") and
Xxxxxx X. Xxxx, (hereinafter referred to and defined as the "Second Party").
WHEREAS, the Company is in the business of creating, developing,
manufacturing and marketing safety and security systems based upon proprietary
technology ("Technology").
WHEREAS, the Company is the owner of the Technology, and all future
inventions, improvements, modifications or alterations to the Technology; and
WHEREAS, Second Party is an officer in the Company who stands to
benefit from an increase in the value of the Company's stock if the Company is
successful and profitable through meeting its business goals and objectives; and
WHEREAS, Second Party is fully aware and knowledgeable of the Company's
products utilizing the Technology in existence as of the date hereof
("Products"); and
WHEREAS, Second Party recognizes that by virtue of Second Party's
relationship with the Company, Second Party has or will acquire a special
knowledge of: the processes, technologies, drawings, designs, and methods of
manufacture of the Products and future Products; and the clients, accounts,
business lists, prospects, records, corporate policies, operational methods and
techniques and other useful information and trade secrets of the Company
(hereinafter all collectively and referred to and defined as "Confidential
Information"); and
WHEREAS, Second Party acknowledges that the Company's Confidential
Information represents valuable, special and unique assets of the Company; and
WHEREAS, Second Party acknowledges that the Company's legitimate
business interests include the Confidential Information and the Company's
customer goodwill (hereinafter referred to and defined as "the Company's
Legitimate Business Interests") and that the Company's Legitimate Business
Interests would be harmed if Second Party would divulge or disclose the
Confidential Information to any third-party while the Second Party is an
employee, officer or stockholder of the Company, or at anytime thereafter; and
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, and for additional
good and valuable consideration the receipt and sufficiency of which is
acknowledged by the parties, the parties mutually agree as follows:
1. CONFIRMATION OF RECITALS. The foregoing recitals are true and
correct and are hereby ratified and confirmed by the parties and are made an
integral part of this Agreement; as such, the recitals shall be used in any
construction of this Agreement, especially as it relates to the intent of the
parties.
2. CONFIDENTIAL INFORMATION. As used in this Agreement, "Confidential
Information" shall mean any information and data, oral, written, electronic or
other media relating to the business of the Company including, but not by way of
limitation, the following: product information, sources of supply, contractual
relationships, technological matters, prototypes, other advantageous
relationships, sales, marketing and distribution strategies, customers list and
information, financial information and other data which are the property of the
Company and which the Company has not marked "non-confidential".
3. PROTECTION OF CONFIDENTIAL INFORMATION. Second Party shall maintain,
on a confidential basis, all material and information designated as
"confidential" by the Company and not disclose nor divulge same to any third
party, during the term of Second Party's Employment Agreement with the Company
and for a period of two years thereafter, except as otherwise provided below:
A. With advance approval of the Company;
B. Information already in the possession of the third party;
C. Information which is part of the public domain;
D. Information which is disclosed pursuant to a lawful requirement
or good faith obligation to a governmental agency;
E. Information which was developed independently by the Second
Party; and
F. Information described by requirement of law.
4. INJUNCTION AND DAMAGES. Second Party agrees that this Agreement is
important, material and gravely affects the effective and successful conduct of
the business of the Company, and it also affects the Company's reputation and
goodwill, and is necessary to protect the Company's Legitimate Business
Interests. The Second Party further recognizes and agrees that the Company will
suffer irreparable injury in the event of Second Party's breach of any covenant
or agreement contained in this Agreement and cannot be compensated by monetary
damages alone. Accordingly, the Second Party agrees that, in addition to and
without limiting any other remedies or rights that the Company may have, the
Company shall have the right to obtain injunctive relief, both temporary and
permanent, against the Second Party from any court of competent jurisdiction. In
addition to said injunctive relief, the Company shall also be entitled to seek
damages, including, but not limited to, compensatory, incidental, consequential,
exemplary, and lost profits damages. Second Party agrees to pay the Company's
reasonable attorney's fees and costs for enforcement of this Agreement, if the
Second Party breaches this Agreement.
5. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. The parties agree that venue
for enforcement of any type under this Agreement shall be in Sarasota County,
Florida.
6. SURVIVORS. This Agreement survives after Second Party is no longer a
stockholder in the Company.
7. MISCELLANEOUS. No change, addition, deletion, or amendment of this
Agreement shall be valid or binding upon Second Party or the Company unless in
writing and signed by Second Party and the Company. The rights of the Company
under this Agreement may be assigned; however, the covenants and agreements of
the Second Party pursuant to this Agreement cannot be assigned. The title of
this Agreement and the paragraph headings of this Agreement are not substantive
parts of this Agreement and shall not limit or restrict the Agreement in any
way. In construing this Agreement, neither of the parties hereto shall have any
term or provision of this Agreement construed against such party solely by
reason of such party having drafted same as each provision of this Agreement is
deemed by the parties to have been jointly drafted by the Company and Second
Party.
8. EXCLUDED ACTIVITIES. The Employment Agreement between Second Party
and the Company expressly authorizes and permits Second Party to serve in
employment and ownership relationships with other entities that are not in
competition with the Company ("Other Entities"). Neither this Agreement nor the
assignment or relinquishment set forth in this Agreement affect, in any fashion,
the rights of Second Party to serve in an employment, officer or ownership
relationship with Other Entities.
9. SECOND PARTY ACKNOWLEDGMENT. The Second Party acknowledges that
Second Party has voluntarily and knowingly entered into this Agreement and that
this Agreement encompasses the full and complete agreement between the parties
with respect to the matters set forth herein.
Executed as of the 9th day of February 2003.
INVISA, INC. SECOND PARTY
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxx
-------------------------------- -----------------------------
Xxxxxxx X. Xxxxxxx, President Xxxxxx X. Xxxx
