EMPLOYMENT AGREEMENT
Exhibit 10.4
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is entered into this 12th day of May 2017, by and between Caleminder, Inc., (the “Company”), and Xxxxx Xxxxxxxx (“Executive”).
The Company wishes to employ Executive as President and Chief Executive Officer upon the terms and conditions set forth in this Agreement and Executive is willing to accept employment subject to the terms and conditions set forth below. Accordingly, the parties, intending to be legally bound, agree as follows:
1. | Employment and Term |
1.1 Employment. Subject to the terms and conditions hereof, the Company hereby employs Executive during the term of employment set forth in Section 1.2 to serve as President and Chief Executive Officer of the Company and perform such services and duties as are normally and customarily associated with such position as well as such other associated duties as the Board of Directors (the “BOD”) shall determine. Executive hereby accepts such employment and agrees to devote sufficient time, attention and energies during regular business hours to effectively perform his duties and obligations hereunder. Executive will work from offices in New York and travel as needed to perform his duties and obligations hereunder.
3. | Benefits. |
4. | Early Termination of Employment |
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4.3 Compensation Upon Early Termination.
(a) In the event of termination of this Agreement for “justifiable cause” as described in Section 4.1, or pursuant to Section 1.2 hereof, Executive shall be entitled to the compensation earned by him before the effective date of termination, as provided for in this Agreement, computed pro rata up to and including that date, in lieu of salary and other benefits under this Agreement.
(b) If prior to the expiration of the term of this Agreement Executive dies, the Company shall continue Executive’s compensation and coverage of Executive’s direct dependents (if any and if they are eligible) under all plans or programs of the types listed in Section 3.1 for a period of 120 days, provided that no benefits will continue past the end of the term of this Agreement.
(c) Upon a Change of Control (as defined in the Plan) or upon Executive’s termination for “Good Reason” as defined below, Executive shall then be entitled to receive, in lieu of salary and other benefits under this Agreement, (i) an amount equal to his then-current base salary, payable monthly in arrears without interest for a period of one year, (ii) continued coverage under all plans or programs of the types listed in Section 3.1 until the sooner of 1.5 years or one (1) month after Executive becomes otherwise employed and eligible for other comparable coverage, and (iii) all other benefits provided to Executive under this Agreement for a period of thirty (30) days.
4.4 Vesting Upon Early Termination. In the event Executive is terminated for any reason other than for “justifiable cause” as defined in Section 4.1 hereof, death, disability or voluntary termination (unless the Company and Executive mutually agree to such voluntary termination), or if Executive terminates for Good Reason, then any and all unexercised options and/or restricted stock granted to Executive under a Company option plan (including without limitation the Options granted pursuant to Section 2(b) hereof) shall be deemed fully vested and exercisable immediately upon Executive’s termination, as provided in the applicable option plan or agreement, and the initial Option granted under Section 2 shall continue to be exercisable for the full 10-year term thereof. For purposes of this Agreement, the term “Good Reason” shall mean the material breach of this Agreement by the Company (including the Company requiring the Executive to relocate outside of New York or assigning Executive duties inconsistent with his position under Section 1), which is not cured after 30-days’ notice from Executive.
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5. | Confidentiality and Non-Competition. |
5.1 (i) Confidentiality. During the term of employment under this Agreement, Executive will have access to and become acquainted with various confidential information including without limitation, trade secrets, customer relationships, formulas, devices, inventions, processes, know-how, financial information and other compilations of information, records, and specifications, which are owned by the Company. Executive shall not disclose any of the Company’s confidential information, directly or indirectly, or use them in any way, either during the term of this Agreement or at any time thereafter, except as required in the course of his employment for the Company. All files, records, documents, drawings, specifications, equipment and similar items relating to the business of the Company, whether prepared by Executive or otherwise coming into his possession, shall remain the exclusive property of the Company and shall not be removed from the premises of the Company under any circumstances whatsoever without the prior written consent of the Company, and if removed shall be immediately returned to the Company upon any termination of his employment and no copies thereof shall be kept by Executive, provided, however, that Executive shall be entitled to retain documents reasonably related to his interest as a shareholder.
(ii) Inventions and Shop Right. Every invention, discovery or improvement made or conceived by Executive related to the business of the Company during his employment by the Company whenever and wherever made or conceived, and whether or not during business hours, of any product, article, appliance, tool, device, formula, process, machinery or pattern similar to, or which constitutes an improvement, on those heretofore, now or at any time during this employment, manufactured or used by the Company in connection with the manufacture or process of any product heretofore or now or hereafter manufactured by the Company, or of any product which shall or could reasonably be manufactured in the reasonable expansion of the Company’s business, shall be and continue remain the Company’s exclusive property, without any added compensation or any reimbursement for expenses to Executive, and upon the conception of any and every such invention, discovery or improvement and without waiting to perfect or complete it, Executive promises and agrees that he will immediately disclose it to the Company and to no one else and thenceforth will treat it as the property and secret of the Company. Executive will also execute any instruments requested from time to time by the Company to vest in it complete title and ownership to such invention, discovery or improvement and will, at the request of the Company, do such acts and execute such instruments as the Company may require but at the Company’s expense to obtain Letters Patent in the United States and foreign countries, for such invention, discovery or improvement and for the purpose of vesting title thereto in the Company, all without any reimbursement for expenses or otherwise and without any additional compensation of any kind to Executive.
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5.3 Subsequent to the termination of this Agreement, Executive will not for a period of one (1) year materially interfere with or disrupt the Company’s business relationship with its customers or suppliers or employ any person who was employed with the Company at any time during the 6 months prior to Executive’s termination.
(a) Should Executive at any time violate or threaten to violate any of the provisions of this Agreement, the Company shall be entitled to an injunction restraining Executive from doing or continuing to do or performing any such acts, and Executive hereby consents to the issuance of such an injunction.
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(b) In the event that a proceeding is bought in equity to enforce the provisions of this paragraph, Executive shall not urge as a defense that there is an adequate remedy at law, nor shall the Company be prevented from seeking any other remedies which may be available.
(c) The existence of a claim or cause of action by the Company against Executive, or by Executive against the Company, whether predicated upon this Agreement or otherwise, shall not constitute a defense to the endorsement by the Company of the foregoing restrictive covenants but shall be litigated separately.
(d) The provisions of this Section 9 shall survive termination of this Agreement.
(a) This Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”). Payments of “Non-Qualified Deferred Compensation” (as such term is defined under Code Section 409A and the regulations promulgated thereunder) may only be made under this Agreement upon an event and in a manner permitted by Code Section 409A. For purposes of Code Section 409A, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with Code Section 409A including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the period of time specified in this Agreement, (ii) the amount of expenses available for reimbursement, or the in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made no later than the last day of the calendar year following the year in which the expense in incurred, and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
(b) To the extent required by Code Section 409A, and notwithstanding any other provision of this Agreement to the contrary, no payment of Non-Qualified Deferred Compensation will be provided to, or with respect to, you on account of your separation from service until the first to occur of (i) the date of your death or (ii) the date which is one day after the six month anniversary of your separation from service, and in either case only if you are a “specified employee” (as defined under Code Section 409A(a)(2)(B)(i) and the regulations promulgated thereunder) in the year of your separation from service. Any payment that is delayed pursuant to the provisions of the immediately preceding sentence shall instead be paid in a lump sum (subject to all applicable withholding) promptly following the first to occur of the two dates specified in such immediately preceding sentence.
(c) Any payment of Non-Qualified Deferred Compensation made under this Agreement pursuant to a voluntary or involuntary termination of your employment with the Company shall be withheld until you incur both (i) a termination of your employment relationship with the Company and (ii) the first instance of a “separation from service” with the Company, as such term is defined in Treas. Reg. Section 1.409A-1(h).
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(d) The preceding provisions of this Section 10 shall not be construed as a guarantee by the Company of any particular tax effect to you under this Agreement, under any plan or program sponsored or maintained by the Company or under any other agreement by and between you and the Company. The Company shall not be liable to you for any additional tax, penalty or interest imposed under Code Section 409A nor for reporting in good faith any payment made under this Agreement or under any such other plan, program or agreement as an amount includible in gross income under Code Section 409A.
11. Governing Law and Jurisdiction. This Agreement in its interpretation and application and enforcement shall be governed by the law of the State of New York without application of its conflict of laws provisions, and any legal action commenced by either party seeking interpretation, application and/or enforcement of this Agreement shall be brought only in the State of New York.
14. Effective Date. The effective date of this Agreement shall be May 12, 2017.
IN WITNESS WHEREOF, the parties have executed this Agreement.
Caleminder, Inc. | EXECUTIVE | ||||
By: | /s/ Xxxxx Xxxxxxxx | /s/ Xxxxx Xxxxxxxx | |||
Xxxxx Xxxxxxxx | Xxxxx Xxxxxxxx |
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