Contract
Exhibit
10.27
THER EMPLOYMENT AGREEMENT
(“Agreement”) is entered into by and between Envision Solar
International, Inc., a California Corporation (the “Company”), and Xxxxxx Xxx,
an individual (“Employee”), effective February 2, 2009 (“Effective Date”). The
Company desires to retain the services of Employee, and Employee desires to
continue to be employed by the Company for the term of ther
Agreement.
NOW, THEREFORE, in the
consideration of the premises and the mutual covenants and agreements set forth
herein, the Company and Employee, intending to be legally bound, hereby agree as
follows:
AGREEMENT
1. Employment. The Company hereby
employs Employee on an at-will basis for the position of Executive Vice
President and Chief Operating Officer of Envision Solar International, Inc.
Employee hereby accepts such at-will employment, and agrees to perform services
for the Company, upon the terms and conditions set forth in ther
Agreement.
2. Position and
Duties.
2.1Duties. During the term of
ther Agreement, Employee shall perform all duties
and functions customarily performed by an Executive Vice President of a business
of the size and nature similar to that of the Company, and such other employment
duties as the Company’s CEO shall reasonably assign to her from time to
time.
2.2Competitive
Activities. During the term of
ther Agreement Employee
shall
not, directly or indirectly, either as an executive, employer, consultant,
agent, principal, partner, stockholder, member, manager, officer, director, or
in any other individual or representative capacity, engage or participate in any
business that is in competition in any manner whatsoever with the business of
the Company or any affiliate. Ther Agreement shall not be interpreted to
prohibit Employee from making passive personal investments or conducting private
business affairs if those activities do not materially interfere with the
services required under ther Agreement. However, Employee shall not directly or
indirectly, acquire, hold, or retain any interest in any business competing with
or similar in nature to the business of the Company or any
affiliate.
3. Compensation.
3.1Salary. As compensation for
services to be rendered by Employee under ther
Agreement, the Company shall pay to Employee an annual salary of One Hundred
Sixty Five Thousand and 00/100 Dollars ($165,000.00) (the “Salary”), which shall
be paid on a regular basis in accordance with the Company’s regular payroll
procedures (exception: see 3.5 below).
3.2Participation
in Benefit Plans. Employee shall be
included to the extent
eligible
thereunder in any and all plans of the Company providing general benefits for
the Company’s employees, including, but not limited to, any group life
insurance, hospitalization, disability, medical, dental, Section 125 cafeteria,
pension, profit sharing, savings and stock bonus plans. Employee’s participation
in any such plan or program shall be subject to the provisions, rules, and
regulations applicable thereto. Nothing in ther Agreement shall impose on the
Company
any affirmative obligation to establish any benefit plan. The Company reserves
the right to prospectively terminate or change benefit plans and programs it
offers to its employees at any time.
3.3Options. Employee shall be
entitled to receive options to purchase
Common
Stock of the Company under the same terms and conditions as other senior level
executives.
3.4Expenses. In accordance with
the Company’s policies established from
time to
time, the Company will pay or reimburse Employee for all reasonable and
necessary out-of-pocket expenses incurred by her in the performance of her
duties under ther Agreement, provided that:
3.4.1
Each such item is of a type which qualifies it as a proper item for deduction or
capitalization by the Company for federal or state income tax purposes, or, with
respect to business meals, the item qualifies as a partial deduction;
and
3.4.2
Employee furnishes the Company with such records and other documentary evidence
as are customarily sufficient to satisfy the requirement for substantiation of
such expenditures as an income tax deduction (or capitalization) pursuant to
applicable federal and state statutes and/or regulations.
3.5Equity in
Lieu of Salary. For a period of up
to six months, or until Company
secures additional financing of at least $500,000, Employee agrees to accept
options in lieu of Salary at the following conversion rate:
# of Common Shares (as
defined below) x 2 = # of options with FMV strike price.
# of Common Shares = Amount
of salary forgiven divided by (FMV) $/share (at the time of salary
earned).
4. Annual
Vacation. Employee shall be
entitled to 30 days vacation time each year without loss of compensation. In no
event may Employee accrue more than 45 days of vacation. In the event Employee
at any time has accrued 45 days of vacation, no further vacation shall accrue
unless and until the accrued time is reduced to less than 45 days. Once ther
maximum is reached, all further accruals will cease. Vacation accruals will
recommence after Employee has taken vacation and the accrued hours have been
dropped below the 45-day maximum.
5. Compensation
upon Termination. In the event
Employee’s employment with the Company is terminated for any reason, voluntarily
or involuntarily, Employee shall be entitled to receive Employee’s then current
Salary accrued (subject to 3.5 above) through the effective date of termination,
plus accrued but unused vacation time. Employee shall not be entitled to further
compensation upon termination.
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6. Proprietary
Matter.
Except as permitted or directed by the company, Employee shall not during the
term of her employment or at any time thereafter divulge, furnish, disclose or
make accessible (other than in the ordinary course of the business of the
Company) to anyone for use in any way any confidential, secret, or proprietary
knowledge or information of the Company
(“Proprietary
Matter”) which Employee has acquired or become acquainted with or will acquire
or become acquainted with, whether developed by herself or by others, including,
but not limited to, any trade secrets, confidential or secret designs,
processes, formulae, software or computer programs, plans, devices, or material
(whether or not patented or patentable, copyrighted or copyrightable) directly
or indirectly useful in any aspect of the business of the Company, any
confidential customer, distributor or supplier lists of the Company, any
confidential or secret development or research work of the Company, or other
confidential, secret or non-public aspects of the business of the Company.
Employee acknowledges that the Proprietary Matter constitutes a unique and
valuable asset of the Company acquired at great time and expense by the Company,
and that any disclosure or other use of the Proprietary Matter other than for
the sole benefit of the Company would be wrongful and would cause irreparable
harm to the Company. Both during and after the term of ther Agreement, Employee
will refrain from any acts or omissions that would reduce the value of
Proprietary Matter to the Company. The foregoing obligations of confidentiality,
however, shall not apply to any knowledge or information which is now published
or which subsequently becomes generally publicly known, other than as a direct
or indirect result of the breach of ther Agreement by Employee.
7. Inventions. Any and all
inventions, innovations or improvements (“Inventions”) made, developed or
created by Employee (whether at the request or suggestion of the Company or
otherwise, whether alone or in conjunction with others, and whether during
regular hours of work or otherwise) during her employment by the Company which
may be directly or indirectly useful in, or relate to, the business of the
Company shall be promptly and fully disclosed by Employee to the Managers of the
Company and shall be the Company’s exclusive property, and Employee shall
promptly deliver to an appropriate representative of the Company as designated
by the Managers all papers, drawings, models, data and other material relating
to any inventions made, developed or created by her. Employee shall, at the
request of the Company and without any payment therefor, execute any documents
necessary or advisable in the opinion of the Company’s counsel to direct
issuance of patents or copyrights to the Company with respect to such Inventions
or to vest in the Company title to such Inventions. The expense of securing any
such patent or copyright shall be borne by the Company. Employee hereby
irrevocably designates and appoints the Company and each of its duly authorized
officers and agents as Employee’s agent and attorney-in-fact to act for and in
Employee’s behalf and stead to execute and file any document(s) and to do all
other lawfully permitted acts to further the prosecution, issuance and
enforcement of patents, copyrights and other proprietary rights with the same
force and effect as if executed and delivered by Employee.
8. Ventures. If, during the term
of the Agreement, Employee is engaged in or associated with the planning or
implementing of any project, program or venture involving the Company and a
third party or parties, all rights in the project, program or venture shall
belong to the Company and shall constitute a corporate opportunity belonging
exclusively to the Company. Except as expressly approved in writing by the
Company, Employee shall not be entitled to any interest in such project, program
or venture or to any commission, finder’s fee or other compensation in
connection therewith, other than the compensation to be paid to Employee as
provided in the Agreement.
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9. Copyright. Employee recognizes
and understands that Employee’s duties for the Company may include the
preparation of materials, including software, written or graphic
materials,
and that any such materials conceived or written by Employee shall be “work made
for hire” within the meaning of United States and other applicable copyright
laws. Employee understands that since such works are “works made for hire,” The
Company will retain exclusive ownership of all rights in such materials,
including copyrights.
10. Solicitation
of Customers. During her
employment by the Company, Employee will not, either directly or indirectly, on
her own behalf or in the service or on behalf of others, solicit, divert or
appropriate, or attempt to solicit, divert or appropriate, to any competing
business any customer or client of the Company, or any person or entity whose
account has been solicited by the Company.
11. Solicitation
of Employees. Employee agrees
that during her employment by the Company and for the one-year period following
the termination of such employment for any reason, Employee shall not, either
directly or indirectly, on her own behalf or in the service or on behalf of
others solicit, divert or hire away, or attempt to solicit, divert or hire away
any person then employed by the Company or any affiliate.
12. Termination
Upon Notice. Ther Agreement and
the employment created thereby may be terminated by the Company or Employee at
any time, with or without cause, in the absolute and sole discretion of either
party, upon the provision of written notice of termination to the other party.
It is understood that no employee or representative of the Company, other than
the CEO, has any authority to enter into any agreement for any specified period
of time, or to make any agreement contrary to the foregoing. Termination of ther
Agreement pursuant to ther provision shall not prejudice any other remedy to
which either party may be entitled either at law, in equity, or under ther
Agreement.
13. Surrender
of Records and Property. Upon termination of
her employment for any reason, Employee shall deliver promptly to the Company
all records, manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables, and calculations or copies thereof, which are
the property of the Company and which relate in any way to the business,
products, practices or techniques of the Company, and all other property of the
Company and Proprietary Matter, including, but not limited to, all documents
which in whole or in part, contain any trade secrets or confidential information
of the Company, which in any of these cases are in her possession or under her
control. If Employee purchases any record book, ledger, or similar item to be
used for keeping records of or information regarding the business of the Company
or its customers, Employee shall immediately notify the Company, which shall
then immediately reimburse Employee for the expense of such
purchase.
14. Assignment. Ther Agreement
shall not be assignable, in whole or in part, by either party without the
written consent of the other party, except that the Company may, without the
consent of Employee, assign its rights and obligations under ther Agreement to
any corporation, firm or other business entity (i) with or into which the
Company may merge or consolidate, (ii) to which the Company may sell or transfer
all or substantially all of its assets, or (iii) to any Affiliate. Upon such
assignment by the Company, the Company shall obtain the assignees’ written
agreement enforceable by Employee to assume and perform, from and after the date
of such assignment, the terms, conditions, and provisions imposed by ther
Agreement upon the Company. After any such assignment by the Company and such
written agreement by the
assignee, the Company shall be discharged from all further liability hereunder
and such assignee shall thereafter be deemed to be the Company for the purposes
of all provisions of ther Agreement including ther section.
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15. Injunctive
Relief.
Employee agrees that it would be difficult to compensate the Company fully for
damages for any violation of the provisions of ther Agreement, including,
without limitation, the provisions of Sections 6, 7, 8, 9, 10, 11 and 13.
Accordingly, Employee specifically agrees that the Company shall be entitled to
temporary and permanent injunctive relief to enforce the provisions of ther
Agreement. Ther provision with respect to injunctive relief shall not, however,
diminish the right of the Company to claim and recover damages in addition to
injunctive relief.
16. Arbitration.
16.1 Claims
Covered.
The parties shall settle by arbitration all statutory, contractual and/or common
law claims or controversies (“Claims”) that the Company may have against
Employee, or that Employee may have against the Company or any of its officers,
directors, executives or agents in their capacity as such or otherwise. Claims
subject to arbitration include (i) claims for discrimination (including but not
limited to, age, disability, marital status, medical condition, national origin,
race, religion, sex, sexual harassment or sexual orientation); (ii) claims for
breach of any contract (express or implied); (iii) claims for any federal, state
or governmental law, statute, regulation or ordinance; and (iv) tort claims
(including but not limited to, negligent or intentional injury, defamation and
termination of employment in violation of public policy).
16.2 Claims
Not Covered. The arbitration of
Claims shall not apply to (i) claims by Employee for workers’ compensation or
unemployment insurance; (ii) claims which even in the absence of these
arbitration provisions could not have been litigated in court or before any
administrative proceeding under applicable federal, state or local law; and
(iii) claims by the Company for injunctive and/or other equitable
relief.
16.3 Procedures. Claims shall be
settled by arbitration by a single, neutral arbitrator in accordance with the
Natural Rules for Resolution of Employment Disputes of the American Arbitration
Association. The parties shall have the right to take depositions and obtain
discovery regarding the subject matter of the arbitration as provided in Title
III of Part 4 (commencing with section 1985) of the California Code of Civil
Procedure. The arbitrator shall determine all questions of fact and law relating
to any Claim, including but not limited to, whether or not any such Claim is
subject to the arbitration provisions contained herein. The arbitrator shall
issue a written arbitration decision which shall include essential findings and
conclusions on which any award is based. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction. Each party shall pay
the fees of its own attorneys, the expenses of its witnesses and all other
expenses connected with presenting its case, except insofar as such fees or
expenses are otherwise recoverable pursuant to a statutory claim or cause of
action, e.g., FEHA, ADEA or EEO claims. Other costs of the arbitration,
including the cost of any record or transcripts of the arbitration,
administrative fees, the fee of the arbitrator, and all other fees and costs,
shall be borne by the Company.
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16.4 Remedies. Employee
understands that Employee is waiving the right to seek remedies in court,
including the right to a jury trial. The arbitrator shall be empowered to award
any relief which might have been available in a court of law or
equity.
16.5 Required
Notice and Statute of Limitations. Arbitration shall
be initiated by serving or mailing a written notice to the other party within
one year of the date the complaining party has knowledge of the event first
giving rise to the claim. If the claim is not properly submitted in ther time
frame, all rights and claims that the complaining party has or may have had
against the other party shall be waived and void, even if there is a federal or
state statute of limitations which would have given the complaining party more
time to pursue the claims. Any notice to be sent to the Company shall be
delivered to the Chairman of the Board of the Company or, if none, to any member
of the Board. The notice shall identify and describe the nature of all claims
asserted and the facts upon which such claims are based.
17. Indemnification.
17.1 Indemnification
of Employee. The Company shall,
to the maximum extent permitted by law, indemnify and hold Employee harmless for
any acts or decisions made in good faith while performing services for the
Company. To the same extent, the Company will pay, and subject to any legal
limitations, advance all expenses, including reasonable attorneys’ fees and
costs of court-approved settlements, actually and necessarily incurred by
Employee in connection with the defense of any action, suit or proceeding and in
connection with any appeal, which has been brought against Employee by reason of
her service as an officer or agent of the Company.
18. Miscellaneous.
18.1 Governing
Law.
Ther Agreement is made under and shall be governed by and construed in
accordance with the laws of the State of California.
18.2 Prior
Agreements. Ther Agreement
contains the entire agreement of the parties relating to the subject matter
hereof and supersedes all prior agreements and understandings with respect to
such subject matter. The parties hereto have made no agreements, representations
or warranties relating to the subject matter of ther Agreement which are not set
forth herein.
18.3 Taxes. The Company may
withhold from any benefits payable under ther Agreement all federal, state, city
or other taxes as shall be required pursuant to any law or governmental
regulation or ruling.
18.4
Successors.
18.4.1 Company’s
Successors. Any successor to
the Company (whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) or to all or substantially all of the
Company’s business and/or assets shall assume the Company’s obligations under
ther Agreement and agree expressly to perform the obligations under ther
Agreement in the same manner and to the same extent as the Company would be
required to perform such obligations in the absence of a succession. For all
purposes under ther Agreement, the term
“Company” shall include any successor to the Company’s business and/or assets
which executes and delivers the assumption agreement described in ther
subsection or which becomes bound by the terms of ther Agreement by operation of
law.
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18.4.2 Employee’s
Successors. The terms of ther
Agreement and all rights of Employee hereunder shall inure to the benefit of,
and be enforceable by, Employee’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees.
18.5
Amendments. No amendment or
modification of ther Agreement shall be deemed effective unless made in writing
signed by the parties hereto.
18.6 No
Waiver.
No term or condition of ther Agreement shall be deemed to have been waived nor
shall there be any estoppel to enforce any provisions of ther Agreement, except
by a statement in writing signed by the party against whom enforcement of the
waiver or estoppel is sought. Any written waiver shall not be deemed a
continuing waiver unless specifically stated, shall operate only as to the
specific term or condition waived and shall not constitute a waiver of such term
or condition waived and shall not constitute a waiver of such term or condition
for the future or as to any act other than that specifically
waived.
18.7
Severability. To the extent any
provision of ther Agreement shall be invalid or unenforceable, it shall be
considered deleted herefrom and the remainder of such provision and of ther
Agreement shall be unaffected and shall continue in full force and
effect.
18.8
Counterparts. Ther Agreement may
be executed in any number of counterparts, each of which shall be deemed to be
an original and all which together shall be deemed to be one and the same
instrument.
18.9
Notices.
Any notice to Employee provided for in ther Agreement shall be given by personal
delivery or by mailing such notice by first-class mail addressed to Employee at
the address specified on the execution page of the Agreement or at such other
address as Employee may designate by written notice to the Company. All notices
shall be deemed delivered upon personal delivery, or, if mailed in accordance
with ther provision, three days after deposit in United States
mail.
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THE
COMPANY:
ENVISION
SOLAR, LLC
a
California limited liability company
By:
/s/ Xxxxxx
Xxxxx
Name: Xxxxxx Xxxxx
Title: CEO
EMPLOYEE:
/s/ Xxxxxx Xxx
Xxxxxx
Xxx
Address
for Notice:
00000 Xxxxx Xxxxx
Xxx
Xxx, XX
00000
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