EXHIBIT 10.17
PERSONAL & CONFIDENTIAL
Dear Xxxxx Xxxxx:
This letter will confirm our agreement with respect to the terms of your
employment by Bridgetech Holdings International, Inc., a Delaware corporation
(referred to herein as "the Company").
The Company desires to retain your services, and you wish to be employed
by the Company. In furtherance of the mutual desires of the parties, you and the
Company have agreed, effective November 21, 2005, as follows:
1. EMPLOYMENT. The Company hereby agrees to employ you, and you hereby agree
to be employed by the Company, upon the terms and subject to the
conditions set forth in this Agreement.
2. TERM OF EMPLOYMENT. The period of employment under this Agreement shall
begin on November 21, 2005 and shall continue through November 20, 2006
(the "Term"), unless sooner terminated in accordance with Section 5 below
or unless extended by mutual agreement of the parties (the "Employment
Term").
3. DUTIES AND. RESPONSIBILITIES.
3.1. The Company will employ you as President of the Contract Research
Organization (CRO) (or such amended name as agreed to by the
parties). In such capacity, you shall perform the customary duties
and have the customary responsibilities of such position and such
other related duties as may be reasonably assigned to you from time
to time by the Company and such other or different duties as you may
agree to in writing.
3.2. You agree to faithfully serve the Company, to devote your full
working time, attention and energies to the business of the Company,
and to perform the duties under this Agreement to the best of your
abilities.
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3.3. You agree (i) to comply with all applicable laws, rules and
regulations, and all requirements of all applicable regulatory,
self-regulatory, and administrative bodies; (ii) to comply with the
Company's Policies and Procedures; (iii) to comply with the terms of
this Agreement; and (iv) not to engage in any other business or
employment without the written consent of the Company except as
otherwise specifically provided herein.
4. COMPENSATION AND BENEFITS. During the Employment Term, your compensation
shall be as follows:
4.1. BASE SALARY. The Company shall pay you an annual Base Salary of ONE
HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000.00). Base Salary shall
be paid periodically at the same times as the Company generally pays
Base Salary to its other professional staff employees.
4.2 BONUS COMPENSATION. In addition to Base Salary, as incentive
compensation, the Company shall provide you with Bonus Compensation
earned during the Employment Term. Bonus shall be range from 25% to
75% of Base Salary based upon the completion of certain agreed upon
performance criteria. The total amount of the annual cash bonus
earned shall be paid 45 days after year-end.
4.3 STOCK. The Company shall award you 50,000 shares of Restricted
Common Stock upon acceptance of the position. The shares are to be
Rule 144 shares that can not be sold for a period of twelve months.
In addition, you will be granted 50,000 non-qualified stock options
upon acceptance of the position, which will vest immediately. You
will also be able to participate in the company's stock option plan
and additional options will be granted to you on an annual basis,
based upon your performance with the company.
4.2. OTHER BENEFITS. During the Employment Term, you also shall be
eligible to participate in the Company's other employee benefit
plans and programs as from time to time may generally be made
available to the Company's similarly-situated employees, subject in
each case to the terms and provisions of such plans and programs.
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4.3. BUSINESS EXPENSES. The Company recognizes that, in connection with
your duties and responsibilities under this Agreement, you will
incur ordinary and necessary business expenses. The Company agrees
to reimburse you for such ordinary and necessary business expenses
in accordance with the Company's applicable guidelines and
procedures.
5. TERMINATION OF EMPLOYMENT PRIOR TO LAST DAY OF THE TERM. Notwithstanding
anything to the contrary herein, your employment under this Agreement
shall terminate prior to the expiration of the Term upon the occurrence of
any of the circumstances set forth in this Section 5. Upon termination,
you (or your beneficiary or estate, as the case may be) shall be entitled
to receive the compensation and benefits described in Section 6 below.
5.1. DEATH. Your employment shall terminate upon your death.
5.2. TOTAL DISABILITY. The Company may terminate your employment upon
your becoming "Totally Disabled." For purposes of this Agreement,
you will be considered to be "Totally Disabled" as of the date you
become entitled to receive disability benefits under the Company's
long-term disability plan as in effect at the time.
5.3. TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate your
employment at any time for "Cause." As used herein, "Cause" shall
mean (i) any material act of dishonesty committed by you affecting
the Company, (ii) your continued failure to perform substantially
your duties as President and Chief Operating Officer with the
Company (other than any such failure resulting from your incapacity
due to physical or mental illness) reasonably promptly after a
written demand for substantial performance is delivered to you by
the Company which specifically identifies the manner in which the
Company believes that you have not substantially performed your
duties, (iii) your use of alcohol, drugs or other controlled
substances in such a manner as to interfere materially with the
performance of your duties for the Company if such material
interference shall continue for 30 days after notice in writing from
the Company specifying such interference in reasonable detail, (iv)
material violation by you of any material Company policy in the
Company policy manual, as
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amended from time to time, or other Company policies and procedures
which prior to such violation were set forth in writing and provided
or made available to you (including, without limitation, policies
and procedures relating to proprietary information,
nondiscrimination, sexual harassment or other unlawful conduct)
which could otherwise result in termination of employment
(collectively, the "Policies and Procedures"), or (v) your failure
to comply with the obligations of this Agreement in any material
respect if such failure shall continue for 30 days after notice, in
writing, from the Company specifying such failure in reasonable
detail.
5.4. TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company may terminate
your employment at any time, without Cause, upon 30 days' prior
written notice to you.
5.5. TERMINATION BY YOU FOR GOOD REASON. You may terminate your
employment at any time for "Good Reason."
5.5.1. As used herein, "Good Reason" shall mean (i) that the Company
has changed the level or nature of your duties and
responsibilities without your written consent such that an
objective observer, considering your duties and
responsibilities (as so changed) as a whole, would conclude
that there has been an adverse change in your duties and
responsibilities as compared to those in effect prior to the
first such change to which you have not so consented; (ii) the
Company has changed the amount of your Base Salary and/or the
percentage and corresponding cash bonus levels of your Bonus
Compensation as stated under 4.1 and 4.2 without your written
consent such that an objective observer, considering your Base
Salary and Bonus Compensation (as so changed) as a whole,
would conclude that there has been an adverse change in your
compensation and benefits as compared to those in effect prior
to the first such change to which you have not so consented;
(iii) the Company materially breaches any of its obligations
hereunder (it being understood that, without limitation, any
reduction in, or failure to pay, Base Salary or Bonus
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Compensation or failure to provide any of the benefits you are
entitled to be provided under the benefit plans referred to in
Section 4.3 and Section 4.4 would be a material breach); or
(iv) that the Company has required without your consent that
you render your regular duties at an office located more than
50 miles from the locations at which you perform your regular
duties as of the date of this Agreement.
5.5.2. In order for you to effect a termination for Good Reason
after the occurrence of an event described above, (A) within
60 days after the occurrence of such event or, in the case of
clause (i) the last such change, you must give written notice
to the Company of the occurrence of such event constituting
Good Reason, and (B) the Company shall have failed to cure
such event within 30 days from the date you deliver the
written notice to the Company. If such event has occurred and
you provide the notice and the Company fails to cure such
event as provided in the preceding sentence, you shall
thereupon be entitled to terminate your employment with the
Company for Good Reason within the following 30 days and, upon
doing so, you shall be treated as if you were terminated by
the Company without Cause under Section 5.4; provided that if
you do not so terminate your employment within such 30 day
period you will forfeit your right to terminate your
employment for Good Reason due to such Good Reason event.
5.6. TERMINATION BY YOU WITHOUT GOOD REASON. You may terminate your
employment at any time without Good Reason upon 30 days' prior
written notice to the Company.
6. CONSEQUENCES OF TERMINATION. The following provisions shall apply if your
employment under this Agreement is terminated prior to the expiration of
the Term.
6.1. COMPENSATION AND BENEFITS. Except as otherwise provided in this
Section 6, upon termination of your employment under this Agreement:
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6.1.1. Your right to receive compensation under this Agreement shall
cease as of the effective date of such termination.
6.1.2. The Company shall pay you any accrued but unpaid Base Salary
and Bonus Compensation for services rendered to the date of
termination and any unpaid expenses required to be reimbursed
under this Agreement. Such amounts shall be paid within 30
days after such termination or as otherwise required by law.
6.1.3 Any compensation or benefits to which you may be entitled
upon termination pursuant to the plans, policies and
arrangements referred to in Sections 4.3, 4.4 and 4.5 shall
be determined and paid or forfeited in accordance with the
terms of such plans, policies and arrangements. Nothing in
this Agreement shall limit any benefits or rights to which
you are entitled under "COBRA."
6.2. DEATH OR TOTAL DISABILITY. If your employment is terminated by
reason of your death pursuant to Section 5.1 or Total Disability
pursuant to Section 5.2, the Company shall not be obligated to make
any payments to you under this Agreement following the date of
termination, except that the Company shall pay you (or your
beneficiary in the event of death) the amounts described in Section
6.1 above.
6.3. TERMINATION BY THE COMPANY FOR CAUSE OR TERMINATION BY YOU WITHOUT
GOOD REASON. If your employment is terminated by the Company for
Cause pursuant to Section 5.3 or is terminated by you without Good
Reason pursuant to Section 5.6, the Company shall not be obligated
to make any payments to you under this Agreement following the date
of termination, except that the Company shall pay to you the amounts
described in Section 6.1 above.
6.4. TERMINATION BY THE COMPANY WITHOUT CAUSE OR TERMINATION BY YOU FOR
GOOD REASON. In addition to the amounts described in Section 6.1
above, you will be entitled to the following benefits if your
employment is
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terminated by the Company without Cause pursuant to Section 5.4 or
by you for Good Reason pursuant to Section 5.5:
6.4.1 The Company shall provide for your continued coverage at the
Company's expense in the Company's comprehensive medical and
dental insurance program and any other health, disability or
death related programs until the earliest to occur of: (i) 6
months after the termination of your employment, subject to an
extension for an additional 6 months as contemplated by
Section 8.1; (ii) your death; or (iii) the date you commence
coverage under any other group health insurance plan, provided
that the foregoing shall not limit any rights to which you are
entitled under "COBRA."
6.4.2 The Company shall pay you an amount equal to your average
monthly cash compensation over the prior 12 months (including
Base Salary and Bonus Compensation, for a period of 12 months
("Severance Pay"), such amount to be paid in substantially
equal installments on a monthly basis, beginning 30 days
following the date of termination.
7. CONFIDENTIALITY; OWNERSHIP OF PROPRIETARY INFORMATION. You agree that, at
all times during the Employment Term and thereafter, the proprietary
information and inventions provisions set forth in Appendix B shall be
effective.
8. RESTRICTIVE COVENANTS. By entering into this Agreement with you, the
Company is providing you with the contractual benefits hereunder,
including, without limitation, (i) the income opportunities made available
to you hereunder (including, without limitation, the Base Salary set forth
in Section 4.1, Bonus Compensation under Section 4.2, and (ii) the
provisions of Section 6 hereof providing for certain payments to you or
your beneficiary in certain circumstances following termination of your
employment hereunder, which income opportunities and post-termination
payment benefits are not afforded generally to other employees of the
Company. In consideration of the Company's providing you with such
benefits and opportunities, and as a material inducement from you to the
Company's entering into this Agreement, you hereby agree to each of the
following covenants:
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8.1. COVENANT NOT TO COMPETE. At all times during the Restricted Period
(as defined below), you shall not participate or agree to
participate in any business (or in any competing sub-unit in the
case of a diversified business), as a stockholder, employee,
consultant, officer, director, trustee, partner, proprietor or
otherwise, that provides any services directly in competition with
the company. You shall not be deemed to be participating in such a
competing business if you are the beneficial owner of no more than
5% of the ownership interests in any entity, provided you do not
participate, directly or indirectly, in the conduct of the business
of such company or render assistance to it other than such
investment. The "Restricted Period" shall begin on the date hereof
and continue until the date that is 12 months after the termination
of your employment with the Company, but in no event beyond the date
of December 31, 2009; provided, however, that if your employment is
terminated by the Company without Cause or you terminate for Good
Reason, then the Restricted Period shall end 12 months following
your termination of employment..
8.2. COVENANT NOT TO SOLICIT CLIENTS. At all times from and after the
date hereof until the date that is 12 months after the termination
of your employment with the Company, you shall not, directly or
indirectly through any other person or entity, solicit, entice,
persuade or induce any person or entity, which is then, or has been
within the twelve months preceding termination of your employment, a
client, customer, or other person or entity having a material
business relationship (each, a "Covered Person") with the Company or
any subsidiary of the Company to terminate, reduce or disrupt or to
otherwise alter adversely its contractual or other relationship with
the Company or such entity or subsidiary.
8.3. COVENANT NOT TO SOLICIT EMPLOYEES. At all times from and after the
date hereof until the date that is 12 months after the termination
of your employment with the Company, you shall not, directly or
indirectly through any other person or entity, solicit for
employment, or employ or otherwise retain the services (through
another entity or otherwise) of, any person who is then, or has been
within the preceding twelve months, an employee, agent or consultant
of the Company.
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8.4. ACKNOWLEDGMENT REGARDING RESTRICTIVE COVENANTS. You acknowledge and
agree that the restraints contained in Section 8 are reasonable and
enforceable in view of the Company's legitimate interests in
protecting its business and customer goodwill and that you received
consideration for your agreement to these covenants, including,
without limitation, consideration provided in this Agreement. You
further understand that the restrictive covenants will preclude, for
a time, your employment with some of the competitors of the Company.
You understand that the restrictions of Section 8 are limited
geographically in view of the Company's operations, and that,
accordingly, the restrictions contained in this Section shall apply
in: (i) any city, county or other political subdivision of the State
of California.
9. ENFORCEMENT OF COVENANTS.
9.1. TERMINATION OF EMPLOYMENT AND FORFEITURE OF COMPENSATION. You agree
that in the event that you breach any of the covenants set forth in
Section 8 above, or breach in any significant respect the
Proprietary Information and Inventions Agreement, the Company shall
have the right to terminate your employment for Cause pursuant to
Section 5.3 above; provided, that if the Company does not so
terminate your employment within 90 days after final determination
of such breach, it shall not thereafter be entitled to terminate
your employment for Cause on account of such breach. In addition,
you agree that if so terminated, the Company shall have the right to
discontinue any or all remaining benefits payable pursuant to
Section 6 above, subject to any rights that might otherwise be
already vested. Such termination of employment or discontinuance of
benefits shall be in addition to and shall not limit any and all
other rights and remedies that the Company may have against you.
9.2. RIGHT TO INJUNCTION. You acknowledge that a breach of the covenants
set forth in Section 8 or in the Proprietary Information and
Inventions Agreement will cause irreparable damage with respect to
which any remedy at law for damages will be inadequate. Therefore,
in the event of breach or anticipatory breach of the covenants set
forth in Section 8 or in the Proprietary Information and Inventions
Agreement by you, you and the
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Company agree that the Company shall be entitled to the following
particular forms of relief, in addition to remedies otherwise
available to it at law or equity: (i) injunctions, both preliminary
and permanent, enjoining or restraining such breach or anticipatory
breach and you hereby consent to the issuance thereof forthwith
(subject to your right to appeal the issuance thereof) and without
bond by any court of competent jurisdiction; and (ii) recovery of
all reasonable sums expended and costs, including reasonable
attorney's fees, incurred to enforce the covenants set forth in
Section 8 or in the Proprietary Information and Inventions
Agreement; provided, however, that there may not be any recovery of
any such sum to the extent that a court of competent jurisdiction
finds that you have not breached or are not in anticipatory breach,
as the case may be, of any such covenant.
9.3. SEPARABILITY OF COVENANTS. The covenants contained in Section 8 and
in the Proprietary Information and Inventions Agreement constitute
separate covenants. If in any judicial proceeding, a court shall
hold that any of the covenants set forth in Section 8 or in the
Proprietary Information and Inventions Agreement is not permitted by
applicable laws, you and the Company agree that such provisions
shall and are hereby reformed to the maximum time, geographic, or
occupational limitations permitted by such laws. Further, in the
event a court shall hold unenforceable any of the separate covenants
deemed included herein, then such unenforceable covenant or
covenants shall be deemed eliminated from the provisions of this
Agreement for the purpose of such proceeding to the extent necessary
to permit the remaining separate covenants to be enforced in such
proceeding. You and the Company further agree that the covenants in
Section 8 and in the Proprietary Information and Inventions
Agreement shall each be construed as a separate agreement
independent of any other provisions of this Agreement, and the
existence of any claim or cause of action by you against the Company
whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of any of the
covenants set forth in Section 8 or in the Proprietary Information
and Inventions Agreement.
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9.4. SURVIVAL OF PROVISIONS. The provisions of this Agreement shall
survive the termination of your employment in accordance with their
respective terms.
10. WITHHOLDING OF TAXES. The Company shall withhold from any amounts payable
under this Agreement all applicable federal, state, local, or other taxes
(including, but not limited to, FICA taxes).
11. NON-DISCLOSURE OF AGREEMENT TERMS. You agree that you will not disclose
the terms of this Agreement (other than the existence of this contract,
the term of employment and the restrictive covenants) to any third party
other than your immediate family, attorneys, accountants, or other
consultants or advisors or except as may be required by any governmental
authority.
12. ASSIGNMENT. This Agreement shall not be assignable by the Company without
your consent, except that if the Company should merge or otherwise
consolidate with or into, or transfer substantially all of its assets to
another corporation or other form of business organization, then this
Agreement shall be binding upon you and inure to the benefit of the
successor corporation or business organization. You may not assign, pledge
or encumber this Agreement or our rights and obligations hereunder or any
part hereunder. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns. Without limiting the generality of the
immediately preceding sentence, this Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of any successor to
the Company as a result of a change in control (whether direct or
indirect, by purchase, merger, consolidation or otherwise) of either such
entity, any intervening successor to each such entity, or any of their
parent entities.
13. NO CLAIM AGAINST ASSETS. Nothing in this Agreement shall be construed as
giving you any claim against any specific assets of the Company or as
imposing any trustee relationship upon the Company on your behalf. Except
as may be specifically provided under the terms of an employee benefit or
other program, the Company shall not be required to establish a special or
separate fund or to segregate any of its assets in order to provide for
the satisfaction of its
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obligations under this Agreement. Your rights under this Agreement shall
be limited to those of an unsecured general creditor of the Company.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA. Any dispute hereunder
shall be subject to the exclusive jurisdiction of the courts in the state
of California, and you and the Company and their successors and permitted
assigns consent to personal jurisdiction in such state.
15. ENTIRE AGREEMENT; AMENDMENT. This Agreement supersedes any and all prior
agreements, whether written or oral, between the Company or any
representative thereof and you relating to the terms of your employment by
you for the Company during the Term or to your compensation for such
services, including, without limitation, any "employment at-will"
agreement, and all such prior agreements shall be and are null and void.
It may not be amended except by a written agreement signed by both
parties.
16. NOTICES. Any notice, consent, request or other communication made or given
in connection with this Agreement shall be in writing and shall be deemed
to have been duly given when delivered or mailed by registered or
certified mail, return receipt requested, or by facsimile or by hand
deliver, to those listed below at their following respective addresses or
at such address as each may specify by notice to the others:
To the Company:
Xxxxxx X. Xxxx XXX, EVP & CFO
Bridgetech Holdings International, Inc.
To you, at your address on file in the records of the Company.
17. MISCELLANEOUS.
17.1. WAIVER. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a
waiver thereof or deprive that party of the right thereafter to
insist upon strict adherence to that term or any other term of this
Agreement.
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17.2. SEPARABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held
to be invalid, illegal or unenforceable in any respect under
applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision
or any other jurisdiction, but this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained therein.
17.3. HEADINGS. Section headings are used herein for convenience of
reference only and shall not affect the meaning of any provision of
this Agreement.
17.4. RULES OF CONSTRUCTION. Whenever the context so requires, the use of
the singular shall be deemed to include the plural and vice versa.
17.5. NO CONFLICTING AGREEMENTS. You represent and warrant to the Company
that you are not a party to or bound by any confidentiality,
noncompetition, nonsolicitation or other agreement or restriction
which could conflict with or be violated by the performance of your
duties to the Company under this Agreement or otherwise.
Acknowledged and Agreed to:
/s/ Xxxxx Xxxxx /s/ Xxxxxxx Xxxxxxx
------------------------------- ----------------------------------
Xxxxx Xxxxx Xxxxxxxxxx Holdings International, Inc.
17 Nov. 05 By: Xxxxxxx Xxxxxxx
Its Chief Executive Officer
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