EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated April 15, 2000, between BioMarine
Technologies, Inc., a Delaware corporation (the "Company"), and Xxxxxx X.
Xxxxxxx, a resident of Pensacola, Florida ("Employee").
WITNESSETH THAT:
In consideration of the mutual covenants contained below, the parties
hereto agree as follows:
1. Employment Term. The Company hereby agrees to employ Employee,
and Employee hereby agrees to serve the Company, as hereinafter set forth,
for a period of the three (3) years from the later of (i) the date hereof or
(ii) the effective date of and funding from the initial public offering
("IPO") in the United States of securities of the Company (such period being
herein referred to as the "Term"); provided, however, that either party may
terminate this Agreement by giving to the other party 60 days notice
thereof.
2. Duties and Obligations. Employee shall serve the Company during
the Term as President of the Company and shall have such duties and
obligations as are set forth in the By-Laws of the Company and as are
customarily performed by persons employed in such capacity. The precise
services of Employee may be revised by the Company from time; provided,
however, that any such revision of the precise services of Employee must be
consistent with the provisions of the immediately preceding sentence.
3. Compensation.
3.1 In consideration of the services rendered by Employee to the
Company under this Agreement, and subject to the provisions of Sections 5 and
6, the Company shall during the Term pay Employee an annual salary in those
amounts determined under Sections 3.1.1 and 3.1.2 hereof, payable every two
weeks in twenty-six (26) equal installments.
3.1.1 For services rendered during the first year of the Term, Employee
shall receive a salary in an amount equal to thirty thousand ($30,000) per
annum.
3.1.2 For services rendered during the balance of the Term, Employee
shall receive a salary in an amount fixed by the Board of Directors of the
Company during the later part of the first year of the Term for the second
year of the Term and in an amount fixed by the Board of Directors of the
Company during the later part of the second year of the Term for the third
year of the Term, taking into account, among other things, the net sales and
net profits of the Company for the year immediately preceding the year with
respect to which his salary is being fixed and the performance by Employee of
his duties under this Agreement.
3.2 The Company may pay a bonus to Employee for any partial or full
year included in the Term in an amount fixed by the Board of Directors of the
Company, taking into account, among other things, the net sales and net
profits of the Company and the performance by Employee of his duties under
this Agreement. Nothing herein shall obligate the Company to pay Employee any
bonus, irrespective of the payment of a bonus to him in any past or succeeding
year.
3.3 Salary and bonus payments, if any, shall be subject to
withholding and other applicable taxes.
4. Benefits. During the Term, in addition to receiving the
payments described in Section 3 hereof, Employee, to the extent he is eligible
(like any other eligible employee of the Company), shall have the right to
participate in any and all group life, hospital, medical, dental and
disability insurance plans and in any retirement, pension or death benefit
plans, now or hereafter maintained by the Company and generally offered by the
Company to its executive employees, and under any Company stock option plan if
and to the extent the Board of Directors designates Employee a grantee under
such plan in accordance with the terms and conditions of such designation
(hereinafter such plans are collectively referred to as the "Company Benefit
Plans"). Nothing in this Section 4 shall impose upon the Company any
obligation to install or maintain any Company Benefit Plan.
5. Disability. In the event that at any time during the Term Employee
shall suffer a disability, his salary referred to in Section 3.1 shall
continue at the same rate that it was on the date of such disability; and he
shall continue to receive, under applicable Company Benefit Plans (if any),
benefits generally offered to disabled employees to the extent he is eligible
(like any other eligible employee of the Company). If such disability
continues for twelve (12) consecutive months, the obligations of the Company
under this Agreement shall thereupon terminate, and the employment of the
Employee by the Company shall thereupon cease; provided, however, in the event
the Term terminates or expires prior such twelve (12) month period for any
reason (including, without limitation pursuant to Section 6 as a result of the
death of Employee), the obligation of the Company under this Agreement shall
terminate and the employment of Employee by the Company shall cease upon such
termination or expiration of the Term. If Employee shall receive any
disability payment from any disability insurance policies paid for by the
Company, the payments of salary to Employee during any period of disability
shall be reduced by the payments received by Employee under any such insurance
policy or policies. For the purposes of this Agreement, "disability" shall
mean illness, disability or other incapacity, rendering Employee incapable of
performing his duties and obligations under this Agreement. In the event
Employee disagrees with the Company's conclusion that he has suffered a
disability, the determination as to the disability, including the commencement
thereof and the length thereof, is to be conclusively decided by two duly
licensed physicians, one such physician to be designated by the Company and
the other such physician to designated by Employee. In the case of
disagreement between those physicians, the determination will be made by a
third physician selected by said two physicians. Employee hereby agrees to
accept such determination and to submit to such medical examinations as may be
requested by the Company.
6. Death. If Employee shall die at any time during the Term, the
Term and the obligations of the Company under this Agreement shall thereupon
terminate, except that the Company shall pay to Employee's legal
representatives an amount equal to any salary which would, pursuant to Section
3.1, have been payable to Employee through the end of the month of his death,
less the payments therefor actually made to Employee or his legal
representatives prior to his death.
7. Vacation. Employee shall be entitled to regular paid vacations
in accordance with established Company policy in effect from time to time, but
in any event not less than (4) four weeks in any calendar year; providing the
vacation periods do not last long than 14 days at any one period, unless
approved otherwise by management.
8. Expenses. In addition to the payments described in Section 3
hereof, the Company shall reimburse Employee for the reasonable expenses
incurred by Employee during the Term in promoting the Company's business,
including expenses for entertainment, travel and similar items, after
presentation by Employee of an itemized account of such expenditures.
9. Covenant Not To Compete.
9.1 Employee hereby agrees that, during the Term of this Agreement
(as such Term may be extended), he will devote his business time and efforts
to the business and affairs of the Company and do the utmost to promote its
interests. Employee further agrees that, during this Agreement (as such Term
may be extended) and for a period of one (1) year thereafter, he shall not
engage, directly or indirectly, and whether or not for compensation,
individually or as an officer, consultant, advisor, partner or co-venturer or
other proprietor, in any business or enterprise or be concerned with any other
commercial duties or pursuits whatsoever, except as the Company has already
agreed to (i.e. Gulf Marine Institute of Technology).
9.2 Employee hereby agrees that, during a period of two years after
the termination or expiration of the Term of this Agreement (as such Term may
be extended), he will not, directly or indirectly, solicit, or cause the
soliciting of, the services or the employment of any employee of the Company,
its subsidiaries or affiliates, or employ, or cause the employment of, any
such employee.
10. Non-Disclosure. Without authorization by the Board of Directors
of the Company, Employee will not, at any time, publish or disclose any
confidential information or trade secrets relating to the business of the
Company known by Employee on the date hereof or as a consequence of or through
his employment under this Agreement. All business records, papers and
documents kept or made by Employee and relating to the business of the Company
or its parent or any of its subsidiaries or affiliates shall be and remain the
property of the Company and shall be surrendered to the Company upon the
termination or expiration of this Agreement. Upon termination or expiration of
this Agreement, Employee shall not take with him, publish, or disclose,
without authorization by the Board of Directors of the Company, any business
record, paper or document or any correspondence, cost data, customer list,
estimate or market survey containing information or trade secrets relating to
the Company.
11. Notices.
11.1 All notices and consents required or desired to be given
pursuant hereto shall be in writing and shall be deemed properly given (a) if
delivered to the addressee, in person, at the following address, or (b) if
mailed, by registered or certified mail, return receipt requested, to the
following address:
To the Company: BioMarine Technologies, Inc.
0000 Xxxx Xxxxxx Xxxx., Xxxxx 0X
Xxxx Xxxxxx, XX 00000
Attention: President
To the Employee: Xxxxxx X. Xxxxxxx
000 Xxxxxxxx Xxxx.
Xxxxxxxxx, XX 00000
11.2 Any address specified above may be changed by notice given as
herein provided, by the party hereto whose address is being changed to the
other party hereto. 11.3 If any such notice or consent is delivered in
person, the date of delivery shall be deemed the date of delivery of such
notice or consent; and if any notice or consent is mailed, the date of mailing
shall be deemed the date of such notice or consent.
12. Amendment; Breach and Waiver. This Agreement may not be amended
or modified in any manner, except by an instrument in writing signed by both
parties hereto and approved by the Board of Directors of the Company. The
failure of either party hereto to enforce at any time any of the provisions of
this Agreement shall in no way be construed to be a waiver of any such
provision or any other provision, or of the right of such party thereafter to
enforce each and every such provision or other provision in the event of a
subsequent breach.
13. Agreement Binding Upon Successors. This Agreement shall inure to
the benefit of, and shall be binding upon, the Company, its successors and
assigns, and upon Employee, his heirs, executors, administrators, and legal
representatives, provided that the obligations of Employee hereunder may not
be delegated.
14. Construction. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Florida.
15. Arbitration. Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled by arbitration in
the State, City and County where BioMarine Technologies, Inc.'s main corporate
residence is located in accordance with the Commercial Arbitration Rules of
the American Arbitration Association, and judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction thereof.
Notwithstanding the provisions of the immediately preceding sentence, in the
event the Company seeks to enforce the specific performance of Section 9 or 10
by Employee, or to enjoin Employee from violating any term, covenant or
provision set forth in Section 9 or 10, whether or not the Company couples a
demand for damages to its demand for specific performance or for injunctive
relief, the Company at its election may institute and prosecute proceedings in
any court of competent jurisdiction. In the event the court in which the
Company has instituted proceedings, as permitted by the immediately preceding
sentence, refuses or fails to grant to the Company equitable relief and the
court has not yet passed on the issue of whether the Company should be awarded
damages, unless in its sole and absolute discretion the Company agrees to
refer such damage issue to arbitration, the court in which the Company
instituted the proceedings shall remain the appropriate forum for the
determination of whether any damages shall be awarded to the Company.
Employee and the Company each hereby consents to the jurisdiction of (a)
the American Arbitration Association in Northwest Florida or Pensacola,
Florida for the purpose of adjudicating any claim or controversy arising out
of or relating to this Agreement or a breach thereof, and (b) to the federal
and state courts within the State of Florida for the purposes of confirming
the arbitrators' award and entering a judgment thereon. 16. Condition
Precedent. Notwithstanding anything herein to the contrary, this Agreement
shall terminate if the Company abandons the IPO or if the IPO is not
consummated.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
_____________________________
Xxxxxx X. Xxxxxxx - Employee
BioMarine Technologies, Inc.
By:__________________________
Xxxx X. Ericsson
President
By: __________________________
Xxxx X. Xxxxxx
CFO/Director
