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Exhibit 10.43
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made as of this 20th day of February, 2001, by and between
UTEK CORPORATION, a Delaware corporation, having an office at 000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx Xxxx, Xxxxxxx 00000 (hereinafter referred to as "Employer"), and
Xxxxxxx X. Xxxx, (hereinafter referred to as "Employee") who resides at: 00000
Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx 00000 (hereinafter referred an individual
"Employee"):
WHEREAS, Employer desires to employ Employee in the position as Chief
Financial Officer, and
WHEREAS, Employee is willing to be employed in said position in the
manner provided for herein, and to perform the duties of the Employer upon the
terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein set forth it is agreed as follows;
1. EMPLOYMENT OF EMPLOYEE: Employer hereby employs Employee as
Chief Financial Officer.
2. TERM.
a. The term of this Agreement shall commence on February 20th,
2001 (the "Commencement Date") and expire one year from such
date, unless sooner terminated or renewed as provided
hereunder. During the term hereof, Employee shall devote
substantially all of his business time and efforts to Employer
and its subsidiaries and affiliates.
b. Unless the Board of Directors of this Company (the "Board") of
Employer shall determine to the contrary and shall so notify
Employee in writing sixty (60) days on or before the end of
any Annual Period or unless the Employee notifies Employer in
writing sixty (60) days on or before the end of each Annual
Period, the term of this Agreement shall be automatically
extended for one (1) additional Annual Period to be added at
the end of the then current term of this Agreement.
3. DUTIES. The Employee shall perform those functions generally
performed by persons of such title and position, shall perform any and all
related duties, and shall be available to confer and consult with and advise the
officers and directors of Employer at such times that may be required by
Employer.
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Exhibit 10.43
4. COMPENSATION
Employee shall be paid as follows:
a. Employee shall be paid a salary of Ninety Thousand
($90,000.00) Dollars per year in monthly installments.
b. The Employer shall grant to the Employee 50,000 stock options
under its incentive stock plan (the "1999 Plan"). Effective
February 22nd, 2001, 12,500 of the options will be vested
immediately at an exercise price of $7.00 per share. The
remaining 37,500 stock options at an exercise price of $7.00
per share will vest at the anniversary date of this Agreement
in installments of 12,500 stock options per year. All of the
stock options as described herein will be vested immediately
in the event that there is greater than 50% change in
ownership of the Employer.
c. The Employer shall provide a car allowance to the Employee of
$500.00 per month.
5. CONFIDENTIAL INFORMATION:
a. The Employee has acquired and will acquire information and
knowledge respecting the intimate and confidential affairs of the Company (for
this purpose including all subsidiaries and affiliates, including without
limitation confidential information with respect to the Company's customer
lists, business methodology, business techniques, promotional materials and
information, and other similar matters treated by the Company as confidential
(the "Confidential Information"). Accordingly, the Employee covenants and agrees
that during his employment by the Company (whether during the Term hereof or
otherwise) and thereafter, the Employee shall not, without the prior written
consent of the Company, disclose to any person, other than a person to whom
disclosure is reasonably necessary or appropriate in connection with the
performance by the Employee of the Employee's duties hereunder, any Confidential
Information obtained by the Employee while in the employ of the Company.
b. The Employee agrees that all memoranda, notes, records,
papers or other documents and all copies thereof relating to the Company's
operations or business, some of which may be prepared by the Employee, and all
objects associated therewith in any way limited by the Employee shall be the
Company's property. This shall include, but is not limited to, documents and
objects concerning any customer contracts, manuals, mailing lists, advertising
materials, and all of their
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Exhibit 10.43
materials and records of any kind that may be in the Employee's possession or
under the Employee's control. The Employee shall not, except for the Company's
use, copy or duplicate any of the aforementioned documents or objects (except
for the purpose of performing Employee's duties) nor remove them from the
Company's facilities, nor use any information concerning them except for the
covenants and agrees that the Employee will deliver to the Company upon
termination of the Employee's employment, or any other time at the Company's
request.
6. COVENANT NOT TO COMPETE
a. The Employee covenants and agrees that during the
Employee's employment by the Employer (whether during the Term hereof or
otherwise), and thereafter for a period of one (1) year following the
termination of the Employee's employment with the Employer, the Employee will
not:
(I) Directly or indirectly engage in, continue in or
carry on the business of any corporation,
partnership, firm or other business organization
which is now, becomes or may become a direct
competitor of the Employer in its business
("Employer's Business"), including owning or
controlling any financial interest in, any
corporation, partnership, firm or other form of
business organization which competes with or is
engaged in or carries on any aspect of such business
or any business substantially similar thereto;
(II) Consult with, advise or assist in any way,
whether or not for consideration, any corporation,
partnership, firm or other business organization
which is now, becomes or may become a competitor of
the Employer during the Employee's employment with
the Employer;
(III) Engage in any practice the purpose of which is
to evade the provisions of this Agreement or to
commit any act which is detrimental to the
successful continuation of, or which adversely
affects, the business of the Employer.
b. The Employee agrees that the geographic scope of this
covenant not to compete shall extend to the geographic area where the Company's
customers conduct business or are located at any time during the Term of this
Agreement. For the purposes of this Agreement, "customers" means any person,
university or entity to
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Exhibit 10.43
which the Company provides or has provided services within a period of one (1)
year prior to the Employee's termination of services for the furtherance of such
customer's business within such period of one (1) year the Company has pursued
or communicated with for the purposes of obtaining business for the Company.
c. In the event of any breach of this covenant not to compete,
the Employee recognizes that the remedies at law will be inadequate and that in
addition to any relief at law which may be available to the Company for such
violation or breach and regardless of any provisions contained in this
Agreement, the Company shall be entitled to equitable remedies (including an
injunction) and such other relief as a court may grant after considering the
intent of this Section 7. In any action or proceeding by the Company to obtain a
temporary restraining order and/or preliminary injunction to enforce the
covenant, the Employee hereby agrees that the Company shall not be required to
put an injunction bond in excess of One Thousand Dollars ($1,000.00) in order to
obtain the temporary restraining order and/or preliminary injunction. It is
further acknowledged and agreed that the existence of any claim or cause of
action on the part of the Employee against the Company, whether arising from
this Agreement or otherwise, shall in no way constitute a defense to the
enforcement of this covenant not to compete, and the duration of this covenant
not to compete shall be extended in an amount which equals the time period
during which the Employee is or has been in violation of this covenant not to
compete.
d. In the event a court of competent jurisdiction determines
that the provisions of this covenant not to compete are excessively broad as to
duration, geographic scope, prohibited activities or otherwise, the parties
agree that this covenant shall be reduced or curtained to the extent necessary
to render it enforceable.
e. For the purposes of this Section 6, Company shall be deemed
to include the Company, as well as its subsidiaries and affiliates.
f. The parties hereto expressly acknowledge and agree that any
provision of this Section 6 may be amended or waived by the mutual written
agreement of both parties.
7. TERMINATION.
a. Either party may terminate this Agreement for any reason by
giving the other party thirty (30) days written notice.
b. Employer shall also have the right to terminate this
Agreement immediately "For Cause", which shall include, but not be limited to,
fraud, breach of fiduciary duty, conviction of a crime or like conduct.
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Exhibit 10.43
c. If the Employee is terminated for any reason or terminates
his employment, the Company will not be required to make any payment to Employee
during the one year not to compete period.
8. ARBITRATION Any controversies between Employer and Employee
involving the construction or application of any of the terms, provisions or
conditions of this Agreement shall on the written request of either party served
on the other be submitted to arbitration. Such arbitration shall comply with and
be governed by the rules of the American Arbitration Association. An arbitration
demand must be made within one (1) year of the date on which the party demanding
arbitration first had notice of the existence of the claim to be arbitrated, or
the right to arbitration along with such claim shall be considered to have been
waived. An arbitrator shall be selected according to the procedures of the
American Arbitration Association. The cost of arbitration shall be born by the
losing party or in such proportions as the arbitrator shall decide. The
arbitrator shall have no authority to add to, subtract from or otherwise modify
the provisions of this Agreement, or to award punitive damages to either party.
9. ATTORNEY'S FEES AND COSTS If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which he may be entitled.
10. ENTIRE AGREEMENT; SURVIVAL.
a. This Agreement contains the entire agreement between the
parties with respect to the transactions contemplated herein and supersedes,
effective as of the date hereof any prior agreement or understanding between
Employer and Employee with respect to Employee's employment by Employer. The
unenforceability of any provision of this Agreement shall not effect the
enforceability of any other Provision. This Agreement may not be amended except
by an agreement in writing signed by the Employee and the Employer, or any
waiver, change, discharge or modification as sought. Waiver of or failure to
exercise any rights provided by this Agreement and in any respect shall not be
deemed a waiver of any further or future rights.
b. The provisions of Sections 5, 6, 8, 9, 10, 12 and 14 shall
survive the termination of this Agreement.
11. ASSIGNMENT This Agreement shall not be assigned to other
parties.
12. GOVERNING LAW This Agreement and all the amendments hereof,
and waivers and consents with respect thereto shall be governed by the laws of
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Exhibit 10.43
the State of Florida, without regard to the conflicts of laws principles thereof
and the parties agree that the jurisdiction shall be in Hillsborough County,
Florida.
13. NOTICE All notices, responses, demands or other communications
under this Agreement shall be in writing and shall be deemed to have been given
when
a. delivered by hand;
b. sent by fax, (with receipt confirmed), provided that a copy
is mailed by registered or certified mail, return receipt requested; or
c. received by the addressee as sent be express delivery
service (receipt requested) in each case to the appropriate addresses, and fax
numbers as the party may designate to itself by notice to the other parties:
(i) If to the Employer:
UTEK Corporation, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx Xxxx,
Xxxxxxx 00000 Attention: Xxx Xxxxxx, VP & General Counsel
Telephone: 000-000-0000
(ii) If to the Employee:
Address: 00000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx 00000
Telephone #: 000-000-0000: Attention: Xxxxxxx X. Xxxx, CPA
14. SEVERABILITY Should any part of this Agreement for any reason
be declared invalid by a court of competent jurisdiction, such decision shall
not affect the validity of any remaining portion, which remaining provisions
shall remain in full force and effect as if this Agreement had been executed
with the invalid portion thereof eliminated, and it is hereby declared the
intention of the parties that they would have executed the remaining portions of
this Agreement without including any such part, parts or portions which may, for
any reason, be hereafter declared invalid.
IN WITNESS WHEREOF, the undersigned have executed this agreement as of
the day and year first above written.
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Exhibit 10.43
UTEK CORPORATION
By: /s/ Xxxxxxxx Xxxxx
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Xxxxxxxx X. Xxxxx, Ph.D.
Title: CEO
Employer
/s/ Xxxxxxx Xxxx
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Xxxxxxx X. Xxxx, CPA
Employee
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