EMPLOYMENT AGREEMENT Between TRULITE, INC. and John Sifonis Dated as of October 20, 2004
Exhibit
10.1
Between
TRULITE,
INC.
and
Xxxx
Xxxxxxx
Dated
as
of October 20, 2004
This
EMPLOYMENT
AGREEMENT (this
“Agreement”) is made effective as of the 15th day of September, 2004 by and
between Trulite, Inc., a Delaware corporation (the “Company”), and Xxxx Xxxxxxx
(“Executive”).
W
I T
N E S S E T H:
WHEREAS,
Executive is a Key Employee of the Company
NOW,
THEREFORE, in consideration of the employment of Executive by the Company
and
the payment of salary and other compensation to Executive by the Company,
the
parties hereto agree as follows:
Employment.
The
Company hereby agrees to employ Executive, and Executive hereby agrees to
serve
the Company, on the terms and conditions set forth herein.
Term.
The
employment of Executive by the Company as provided in Section 1 shall commence
on the date hereof and shall continue until January 1, 2005, unless sooner
terminated as hereinafter provided. Should
Executive serve until January 1, 2005, and remain employed by the Company
thereafter, such employment shall convert to a month-to-month, at-will
relationship otherwise subject to the terms of this Agreement and terminable
for
any reason whatsoever by either the Company or Executive upon 30 days prior
written notice to the other party.
Position
and Duties.
The
Company agrees to employ Executive,
and
Executive
agrees
to be so employed, in such capacity and having such duties as are assigned
to
the Chief Executive
Officer
of Trulite Inc.
Executive
agrees
to devote his full business time and attention to the business and affairs
of
the Company and will use his best efforts in performing faithfully his duties
under this Agreement.
Executive
shall
use his reasonable best efforts to perform faithfully and efficiently his
duties
under this Agreement, and shall not engage in or be employed by any other
business; provided, however, that nothing contained herein shall prohibit
Executive
from (i)
serving as a member of the board of directors, board of trustees or the like
of
any for-profit entity that does not compete with the Company, or performing
services of any type for any civic or community entity, whether or not
Executive
receives
compensation therefore, (ii) investing his assets in such form or manner
as
shall not require any significant services on his part in the operation of
the
business of or property in which such investment is made as long as such
business does not compete with the Company, or (iii) serving in various
capacities with, and attending meetings of, industry or trade groups and
associations, as long as Executive’s
engaging in any activities permitted by virtue of clauses (i), (ii) and (iii)
above does not materially interfere with the ability of Executive
to
perform the services and discharge the responsibilities required of him under
this Agreement.
Compensation
and Related Matters.
Salary.
During
the term of this Agreement, the Company shall pay to Executive a monthly
salary
of $1,000.
Equity.
During
the term of this Agreement, the Company shall grant the Executive options
worth
three (3) percent of the outstanding equity of the Company in the form of
Common
Stock. Such options shall vest on a monthly basis over a four year period.
An
additional two (2) percent of the outstanding equity of the Company shall
be
granted to the Executive if the Company achieves a pre-money financing valuation
of equal to or greater than $5 million within twelve months from the date
of
this Agreement. Such options shall vest over four years.
Expenses.
During
the term of Executive’s
employment hereunder, Executive
shall be
entitled to receive prompt reimbursement for all reasonable and necessary
expenses incurred by Executive
in
performing services hereunder, including all travel and living expenses while
away from home on business or at the request of and in the service of the
Company, entertainment expenses incurred by Executive at the request of and
in
the service of the Company, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established
by the
Company.
(a)
Termination.
Executive’s
employment hereunder may be terminated by either party with thirty (30) days
of
written notice. No additional benefits or compensation will be given in
connection with termination.
Company’s
Right to Repurchase Shares.
In the
event that Executive’s employment is terminated, whether by the Company, for
Cause, or by Executive’s voluntary departure, the Company shall have the right
to repurchase all vested Common Stock owned by Executive at fair market value,
as defined below. Notwithstanding the above, in the event that Executive
is
terminated without Cause, the Executive shall be entitled to retain his vested
stock. The Company shall have the right to repurchase his unvested stock
at fair
market value, as defined below. Fair market value, for the purposes of this
Section 6, shall be determined by a qualified business valuation or appraisal
expert chosen jointly by the Executive and the Company’s Board of
Directors.
Confidentiality,
Non-Solicitation, and Non-Competition.
Confidential
Information. Executive acknowledges that (i) upon execution of this
Agreement and during the term of this Agreement and as a part of his employment
with the Company and any subsidiaries, whether pursuant to this Agreement
or
otherwise, Executive has been and will be afforded access to “Confidential
Information” as hereinafter defined; (ii) public disclosure of such Confidential
Information could have a material adverse impact on the Company and its
business; and (iii) as a result of his access to such Confidential Information,
Executive will attain substantial technical expertise, skill and knowledge
with
respect to the Company’s business. Executive acknowledges that the provisions of
this Section 7(a) are reasonable and necessary with respect to the improper
use
or disclosure of Confidential Information. As used in this Agreement,
“Confidential Information” means any information, knowledge or data of any
nature and in any form (including information that is electronically transmitted
or stored on any form of magnetic or electronic storage media) relating to
the
past, current or prospective business or operations of the Company and its
Affiliates, that at the time or times concerned is not generally known to
persons engaged in businesses similar to those conducted or contemplated
by the
Company and its Affiliates (other than information known by such persons
through
a violation of an obligation of confidentiality to the Company), whether
produced by the Company and its Affiliates or any of their consultants, agents
or independent contractors or by Executive, and whether or not marked
confidential, including without limitation information relating to the Company’s
or its Affiliates’ products and services, business plans, business acquisitions,
processes, product or service research and development methods or techniques,
inventions and improvements, training methods and other operational methods
or
techniques, quality assurance procedures or standards, operating procedures,
files, plans, specifications, proposals, drawings, charts, graphs, support
data,
trade secrets, supplier lists, supplier information, purchasing methods or
practices, distribution and selling activities, consultants’ reports, marketing
and engineering or other technical studies, maintenance records, employment
or
personnel data, marketing data, strategies or techniques, financial reports,
budgets, projections, cost analyses, price lists and analyses, employee lists,
customer lists, customer source lists, proprietary computer software, and
internal notes and memoranda relating to any of the foregoing.
Non-Disclosure
of Confidential Information. In consideration of the foregoing and of
continued employment by the Company and the compensation and benefits paid
or
provided and to be paid or provided to Executive by the Company pursuant
to this
Agreement, Executive hereby covenants and agrees that during the term of
this
Agreement and for a period of two years thereafter, Executive shall not,
without
the Company’s prior written consent or as may be required by law or legal
process, disclose, communicate, divulge or make available to any person or
entity (other than the Company), or use for any purpose other than for the
exclusive benefit of the Company, any Confidential Information, whether
Executive has such information in his memory or embodied in writing or other
physical form. Upon termination of Executive’s employment hereunder, Executive
shall deliver promptly to the Company any Confidential Information in his
possession, including any duplicates thereof and any notes or other records
Executive has prepared with respect thereto. In the event that the provisions
of
any applicable law or the order of any court would require Executive to disclose
or otherwise make available any Confidential Information then Executive shall
give the Company prompt prior written notice of such required disclosure
and an
opportunity to contest the requirement of such disclosure or apply for a
protective order with respect to such Confidential Information by appropriate
proceedings. Executive agrees that disclosures made by the Company or its
affiliates to governmental authorities, to its customers or potential customers,
to its suppliers or potential suppliers, to its employees or potential
employees, to its consultants or potential consultants or disclosures made
by
the Company or its affiliates in any litigation or administrative or
governmental proceedings shall not mean that the matters so disclosed are
available to the general public. The foregoing, however, shall not limit
the
Company’s authority to determine whether or not any such information has been so
disclosed.
Protection
of Information.
The
Company shall disclose to Executive,
or
place Executive
in a
position to have access to or develop, trade secrets or confidential information
of the Company; and/or shall entrust Executive
with
business opportunities of the Company; and/or shall place Executive
in a
position to develop business good will on behalf of the Company.
Executive
agrees
not to disclose or utilize, for Executive’s
personal benefit or for the direct or indirect benefit of any other person
or
entity, or for any other reason, whether for consideration or otherwise,
during
the term of his employment hereunder or at any time thereafter, any information,
ideas, concepts, improvements, discoveries or inventions, whether patentable
or
not, which are conceived, made, developed, or acquired by Executive,
individually or in conjunction with others, during Executive’s
employment by the Company (whether during business hours or otherwise and
whether on the Company’s premises or otherwise) which relate to the business,
products, or services of the Company (including, without limitation, all
such
business ideas, prospects, proposals or other opportunities which are developed
by Executive
during
his employment hereunder, or originated by any third party and brought to
the
attention of Executive
during
his employment hereunder, together with information relating thereto (including,
without limitation, data, memoranda, opinions or other written, electronic
or
charted means, or any other trade secrets or other confidential or proprietary
information of or concerning the Company)) (collectively, “Business
Information”). Moreover, all documents, drawings, notes, files, data, records,
correspondence, manuals, models, specifications, computer programs, E-mail,
voice mail, electronic databases, maps, and all other writings or materials
of
any type embodying any such Business Information are and shall be the sole
and
exclusive property of the Company. Upon termination of Executive’s
employment hereunder, for any reason, Executive
promptly
shall deliver all Business Information, and all copies thereof, to the Company.
As a result of knowledge of confidential Business Information of third parties,
such as customers, suppliers, partners, joint ventures, and the like, of
the
Company, Executive
also
agrees to preserve and protect the confidentiality of such third party Business
Information to the same extent, and on the same basis, as the Company’s Business
Information.
Executive
agrees
that, during his employment, any inventions (whether or not patentable),
concepts, ideas, expressions, discoveries, or improvements, including, without
limitation, products, processes, methods, publications, works of authorship,
software programs, designs, trade secrets, technical specifications, algorithms,
technical data, know-how, internal reports and memoranda, marketing plans
and
any other patent or proprietary rights conceived, devised, developed, or
reduced
to practice, in whole or in part, by Executive
during
the term of his employment by the Company that pertain to hydrogen fuel
technology (the “Developments”) are the sole and exclusive property of the
Company on a worldwide basis as works made for hire or otherwise, and further
that any revenue or other consideration obtained from the sale, license or
other
transfer or conveyance of any such Development, or a product or service
incorporating such Development, is solely for the benefit of and becomes
the
property of the Company. To the extent a Development may not be considered
work
made by Executive
for hire
for the Company, Executive
agrees
to assign, and automatically assigns at the time of creation of the Development,
without any requirement of further consideration, any and all right, title
and
interest he may have in such Development. Executive
shall
preserve each such Development as confidential and proprietary information
of
the Company. Executive
shall
promptly disclose each such Development and shall, upon demand, at the Company’s
expense, execute and deliver to the Company such documents, instruments,
deeds,
acts and things as the Company may request to evidence or maintain the Company’s
ownership of the Development, in any and all countries of the world, or to
effect enforcement thereof, and to assign all rights, if any, of Executive
in and
to each of such Developments. In addition, Executive
agrees
not to publish or seek to publish any information whatsoever concerning any
Development without the prior written consent of the Company, which may be
withheld in its sole and absolute discretion.
Any
inventions relating to the business of the Company that pertain to hydrogen
fuel
technology conceived or reduced to practice after Executive
leaves
the employ of the Company shall be conclusively deemed to have been conceived
and/or reduced to practice during the period of the employment if conceived
and/or reduced to practice within six months from termination of employment,
and
shall be subject to the terms of this Section 7(c).
Non-Solicitation
of Customers or Other Persons.
During
the term of Executive’s
employment under this Agreement and for a period of two years thereafter,
Executive
shall
not solicit, induce, or attempt to induce any past, current or potential
customer of the Company or its Affiliates to (A) cease doing business in
whole
or in part with or through the Company or its Affiliates or otherwise disrupt
any previously established relationship existing between such customer and
the
Company or its Affiliates, or (B) do business with any other person or entity
which performs services materially similar to or competitive with those provided
by the Company or its Affiliates.
During
the term of Executive’s
employment under this Agreement and for a period of two years thereafter,
Executive
shall
not solicit, induce, or attempt to induce any supplier, lessor, licensor,
or
other person who has a business relationship with the Company or its Affiliates,
or who on the date Executive’s
employment hereunder is terminated is engaged in discussions or negotiations
to
enter into a business relationship with the Company or its Affiliates, to
discontinue or reduce the extent of such relationship with the Company or
its
Affiliates.
Non-Competition
with the Company.
Executive
acknowledges and agrees that the services which have been and will be performed
by Executive
for the
Company or its Affiliates, whether during his employment with the Company
or any
Affiliates otherwise than pursuant to this Agreement, include services of
a
special, unique, unusual, extraordinary and intellectual character. Executive
further
acknowledges that the business of the Company and its subsidiaries is worldwide
in scope, that Executive
has been
and will be an integral part of conceiving, developing, marketing and selling
such products and services on a worldwide basis, and that the Company and
its
subsidiaries compete with other organizations that are or could be located
in
any part of the world. Executive
further
acknowledges that, by virtue of the character of his services, Executive
will be
deemed to have worked for the Company or its subsidiaries at any and every
location and geographic area in which Executive’s
services have been or will be applied on behalf of the Company or any subsidiary
during his employment by the Company or any subsidiary whether pursuant to
this
Agreement or otherwise, irrespective of whether or not Executive
was
physically present at such location or geographic area. Therefore, Executive
hereby
covenants and agrees that during the term of Executive’s
employment hereunder and for a period of two years thereafter, Executive
will not
directly or indirectly engage or invest in, own, manage, operate, control
or
participate in the ownership, management, operation or control of, be employed
by, associated or connected with, or render services or advice to, any other
business whose services, products or activities compete in whole or in part
with
the services, products or activities of the Company relating to Company’s
hydrogen fuel technology or its subsidiaries, within all geographic areas
worldwide in which Executive’s
services were applied by the Company or its subsidiaries at any time during
Executive’s
employment by the Company or its subsidiaries otherwise than pursuant to
this
Agreement.
Reasonableness
of Covenants.
It is
understood and agreed by the parties hereto that the covenants by Executive
set
forth in this Section 7 are essential elements of this Agreement and that
but
for Executive’s
agreement to comply with such covenants, the Company would not have entered
into
this Agreement. The parties also acknowledge that the time, scope, geographic
area and other provisions of Section 7(b) through 7(f) have been specifically
negotiated at arm’s length by sophisticated commercial parties with peculiar
knowledge of the Company’s business. It is further agreed that all such
provisions are reasonable under the circumstances pertaining to the Company’s
business and Executive’s
key
role therein, and necessary for the protection of the Company’s legitimate
business interests. The Company and Executive
have
independently consulted their respective legal counsel and have been advised
in
all respects concerning the reasonableness and propriety of such covenants,
with
specific regard to the nature of the businesses conducted by the Company
and its
subsidiaries.
Injunctive
Relief and Other Remedies with Respect to Covenants.
Executive
acknowledges and agrees that the covenants and obligations of Executive
as set
forth in this Section 7 relate to special, unique and extraordinary matters
and
that a violation of any of the terms of such covenants and obligations will
cause the Company irreparable injury for which adequate remedies are not
available at law. Executive
further
agrees that if, at any time, despite express agreement of the parties hereto,
a
court of competent jurisdiction holds that any portion of Section 7(b) through
7(f) of this Agreement is unenforceable for any reason, the maximum permissible
restrictions of time, scope or geographic area as determined by such court,
will
be substituted for any such restrictions held unenforceable. In the event
Executive’s
breach
(or threatened breach in the case of clause (i) below) of any of the covenants
and obligations set forth in this Section 7, Executive
agrees
that the Company will (i) be entitled to an injunction, restraining order
or
such other equitable relief restraining Executive
from
violating such covenants and obligations contained in this Section 7, without
requiring the Company to post any bond or surety therefore, and (ii) have
no
further obligation to make any payments to Executive
hereunder. These remedies are cumulative and are in addition to any other
rights
and remedies the Company may have at law or in equity, including, but not
limited to, recovery of costs and expenses such as reasonable attorneys’ fees by
reason of any such breach, actual damages sustained by the Company as a result
of any such breach, and cancellation of any unpaid salary, bonus, commissions
or
reimbursements otherwise outstanding at such time.
Applicability
of Certain Sections.
Notwithstanding the foregoing, the parties agree that Sections 7(d), 7(e)
and
7(f) shall be binding upon Executive
only in
the event that Executive
voluntarily terminates his employment hereunder during the term of this
Agreement without the consent of the Company and in the event that Executive
is
discharged by the Company for Disability or Cause.
Successors;
Binding Agreement.
The
terms and conditions of this Agreement shall inure to the benefit of and
be
binding upon the parties hereto and their respective successors and permitted
assigns. Neither this Agreement nor any rights, interests or obligations
hereunder may be assigned by any party hereto without the prior written consent
of the other parties hereto; provided that the Company may assign any rights,
interests or obligations hereunder to any successor (whether direct or indirect,
by merger, purchase, consolidation or otherwise) to all or substantially
all of
the business and/or assets of the Company.
Notice.
All
notices hereunder must be in writing and shall be deemed to have given upon
receipt of delivery by: (a) personal delivery to the designated individual,
(b)
certified or registered mail, postage prepaid, return receipt requested,
(c) a
nationally recognized overnight courier service with confirmation of receipt
or
(d) facsimile transmission with confirmation of receipt. All such notices
must
be addressed as follows or such other address as to which any party hereto
may
have notified the other in writing. For the purpose of this Agreement, notices,
demands and all other communications provided for in this Agreement shall
be in
writing and shall be deemed to have been duly given when delivered or (unless
otherwise specified) mailed by United States certified or registered mail,
return receipt requested, postage prepared, addressed as follows:
| To the Company: | ||
|
000
Xxxx Xxx Xxxx.
Xxxxxxx,
XX 00000
Attention:
Xxxx Xxxxxx
|
| To Executive: | ||
|
Xxxx
Xxxxxxx
|
||
or
to
such other address as any party may have furnished to the others in writing
in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
Miscellaneous.
No
provisions of this Agreement may be modified, waived or discharged unless
such
waiver, modification or discharge is agreed to in writing signed by Executive
and such
officer of the Company as may be specifically designated by the Chief Executive
Officer of the Company. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be
deemed
a waiver of similar or dissimilar provisions or conditions at the same or
at any
prior or subsequent time. No agreements or representations, oral or otherwise
express or implied, with respect to the subject matter hereof have been made
by
either party which are not set forth expressly in this Agreement.
Validity.
The
invalidity or unenforceability of any provision or provisions of this Agreement
shall not affect the validity or enforceability of any other provision of
this
Agreement, which shall remain in full force and effect.
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original but all of which together shall constitute one and
the
same instrument.
Entire
Agreement.
This
Agreement sets forth the entire agreement of the parties hereto in respect
of
the subject matter contained herein and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereto; and any prior agreement of the parties hereto in respect
of
the subject matter contained herein is hereby terminated and
canceled.
Governing
Law.
This
Agreement shall be construed and enforced in accordance with and governed
by the
internal laws of the State of Texas without regard to principles of conflict
of
laws.
[signatures
appear on the following page]
IN
WITNESS WHEREOF, the parties have executed this Agreement on the date and
year
first above written.
| COMPANY: | ||
| TRULITE, INC. | ||
 |
||
| By: | ||
|
Name: Xxxxxxx X. Xxxxxx |
||
| Title: Chief Executive Officer | ||
|
EXECUTIVE:
|
||
 |
||
|
Xxxx
Xxxxxxx
|
||
