EXHIBIT 10.9
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement"), dated
as of April 18, 2005, by and between Xxxxxxx.xxx, Inc., an Utah corporation (the
"Company") and Xxxxxx X. Xxxxxxx ("Employee") amends and restates that certain
Consulting Agreement (the "Original Agreement"), dated as of March 23, 2005, by
and between the Company and Employee.
WITNESSETH:
WHEREAS, pursuant to the Original Agreement, Employee was retained by the
Company as a consultant for the provision of consulting services in connection
with the Company's Battery Brain Product (the "Product");
WHEREAS, pursuant to Section 2(c) of the Original Agreement, Employee is
entitled to be provided "all benefits which shall be granted to the Chief
Executive Officer of the Company... including without limitation bonuses and
stock options;"
WHEREAS, the Company has retained Xxxxxx Xxxxxx ("Xxxxxx") as Chief
Executive Officer pursuant to an Employment Agreement (the "Xxxxxx Employment
Agreement"), dated April 1, 2005, and the Company and Employee desire to amend
and restate the Original Agreement so that Employee is granted the same benefits
that have been granted to Xxxxxx pursuant to the Xxxxxx Employment Agreement;
WHEREAS, on March 23, 2005, Employee was appointed by the Board of
Directors of the Company (the "Board") as Chief Technology Officer of the
Company, and the Company and Employee desire to amend and restate the Original
Agreement so that Employee is deemed an employee having an employment
relationship with the Company as its Chief Technology Officer instead of a
consultant having an independent contractor relationship with the Company;
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree to
amend and restate the Original Agreement in its entirety as follows:
1. Duties and Responsibilities.
(a) Position. The Company hereby employs Employee as the Chief
Technology Officer of the Company, which employment Employee hereby accepts, all
in the capacity and on the terms and conditions hereinafter set forth.
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(b) Duties. Employee agrees that during the Term and in accordance
with the other terms and provisions hereof, to provide such services as are
reasonably required in connection with the Product as are necessary the ongoing
development, sales and marketing of the Product. Without limiting the generality
of the foregoing, but subject to the other terms and provisions hereof, Employee
shall during the Term perform for the Company the following services:
(i) assistance in negotiations and communications with suppliers,
and other customers, clients and vendors of the Product;
(ii) advice and assistance regarding marketing, public relations,
circulation, and similar activities;
(iii) assistance with and general liaison with the business
community regarding the Product;
(iv) assistance in identifying, researching and implementing the
Product;
(v) advise the Company on business opportunities related to the
Product; and
(vi) such other services of a similar nature as the Company may
reasonably request from time to time.
All activities of Employee shall only relate to the Battery Brain product and no
other business or activity.
2. Compensation.
(a) Base Salary. During the Term, Employee shall be paid an annual
salary (the "Base Salary") as set forth below, which shall be payable monthly,
in arrears, on or prior to the 1st day of each month during the Term, commencing
on the date hereof. In the event that the Term is extended, the parties shall
negotiate the compensation for such additional term.
i. During the first year of the Term, $160,000;
ii. During the second year of the Term, $200,000;
iii. During the third year of the Term, $240,000; and
iv. During the fourth year of the Term, $240,000.
(b) Bonus. In addition to the Base Salary, Employee shall be
eligible for a bonus (the "Bonus") of up to Eighty Thousand Dollars ($80,000).
The Bonus shall be based on the Company's overall performance and meeting
established objectives which shall be submitted by Employee and approved by the
Board.
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(c) Shares. The Company hereby grants Employee 2,650,000 shares of
common stock of the Company. The shares shall vest pro ratably every 3 months
over a 3-year period commencing on the date hereof.
(d) Expenses. The Company, upon presentation by Employee of
appropriate documentation, shall reimburse Employee for all reasonable and
necessary business expenses incurred by Employee in connection with the
performance of his duties under this Agreement, including reasonable
accommodation expenses during travel required in connection with the performance
of Employee's duties. Such reimbursement shall be paid to Employee within five
(5) business days thereafter.
(e) All benefits which shall be granted to the Chief Executive
Officer of the Company shall be granted to Employee, including without
limitation bonuses and stock options.
3. Term.
The term of this Agreement shall be four years (the "Term") commencing and
effective as of the date of the Original Agreement, and, unless sooner
terminated as provided in Section 5, shall end on March 23, 2009. The Term may
be extended only by mutual consent of the parties.
4. Termination.
In the event that prior to the expiration of the Term, the Company
terminates the services of Employee, including without limitation, whether such
termination is as a result of the death or disability of Employee or for cause,
the Company shall pay Employee or his representatives the balance of the
payments described in Section 2(a) above. For the avoidance of doubt, the
Company further agrees and acknowledges that all payments described in Section
2(a) which have not yet been paid at the time of any termination of the services
of Employee shall become immediately due and payable upon the termination. For
example, if the Company terminates the services of Employee on the third
anniversary of the date hereof, and all payments for the 3-year period have been
paid in full, the Company shall owe Employee $240,000 upon the termination.
5. Non-competition; Non-solicitation.
During the Term, Employee shall not:
(i) directly or indirectly own, produce, engage in, be associated
with, consult for, or have a financial interest in, or take
the initiative in founding or organizing any individual, firm,
corporation, limited liability company, partnership, trust,
estate, association or other entity engaged in a business
competitive with the business of the Company (collectively, a
"Competing Business"); provided, however, that the foregoing
shall not apply to Employee's ownership of less than five
percent (5%) of the capital stock of a company having a class
of capital stock which is traded on any national stock
exchange; or
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(ii) directly or indirectly solicit, induce or cause (or in any
manner attempt to do the same) any individual employed or
engaged by the Company or any of its affiliates during the
Term to leave such employment or engagement, whether or not
such employment or engagement is pursuant to a written
contract with the Company or otherwise, or hire or engage any
such individual (other than through general employment
opportunity solicitations).
6. Confidentiality; Non-disparagement.
(a) During the Term, Employee agrees not to reveal or disclose to any
person or use for its own benefit, without the consent of the
Company, any proprietary or confidential information concerning the
Company, the Product or the Company's conduct thereof. Without
limiting the generality of the foregoing, Employee agrees not to
make any copies of materials containing any such proprietary or
confidential information, except with the Company's prior written
consent, and that it will return as soon as practicable after the
termination of this Agreement all such materials (and copies) of
such proprietary or confidential information. This Agreement does
not convey to Employee a license in or any proprietary right to such
information other than the right to use such information in
connection with his provision of the services set forth in Section 1
hereof. For purposes of this Agreement, information shall not be
deemed proprietary or confidential if (i) is generally known to the
public at the time of disclosure or becomes generally known through
no wrongful act on the part of Employee, (ii) becomes known to
Employee through unrestricted disclosure by sources other than the
Company having a legal right to disclose such information, or (iii)
is already known by Employee at the time of disclosure.
(b) Employee shall not make, including through an agent, any oral or
written statements which are or could reasonably be interpreted to
be of a negative or critical nature concerning the Company or its
business.
7. Indemnification.
(a) Generally. The Company shall indemnify and hold harmless
Employee and its officers, directors, shareholders and employees from and
against any loss, damage, liability, cost and expense (including attorneys' fees
and legal costs) caused to or incurred by it or any of them as a result of third
party claims filed against it or any of them and arising out of or resulting
from the performance by Employee of the services under Section 1 hereof and/or
the use by the Company of any information developed or provided by Employee in
the performance of its services under Section 1 hereunder, except for acts which
involve the willful misconduct of Employee. In connection with the
indemnification under this Section 9, the Company will obtain and maintain
adequate levels of liability insurance insuring the performance of Employee
during the Term.
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(b) Directors' and Officers' Liability Insurance. Employee shall be
covered by the directors' and officers' insurance policy to be obtained by the
Company. The Company agrees to defend Employee from and against any and all
lawsuits initiated against the Company and/or Employee.
8. Miscellaneous.
(a) The internal laws of the State of New Jersey, without regard to
conflicts or choice of law principles, will govern the validity of
this Agreement, the construction of its terms, and the
interpretation and enforcement of the rights and duties of the
parties hereto.
(b) Neither party to this Agreement may assign, transfer or otherwise
dispose of any of its rights in this Agreement or delegate, transfer
or otherwise dispose of any of its duties under this Agreement
without the prior written consent of the other party, provided,
however, that Employee shall have the right to assign this Agreement
to another person or entity as long as Employee shall provide the
services hereunder. This Agreement shall be binding upon the
successors of the parties hereto.
(c) If any provision of this Agreement, or the application thereof, is
for any reason held to any extent to be invalid or unenforceable,
the remainder of this Agreement and application of such provision to
other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further
agree to replace such unenforceable provision of this Agreement with
a valid and enforceable provision that will achieve, to the extent
possible, the economic, business and other purposes of the void or
unenforceable provision.
(d) This Agreement may be executed in counterparts, each of which will
be an original as regards any party whose name appears thereon and
all of which together will constitute one and the same instrument.
This Agreement will become binding when one or more counterparts
hereof, individually or taken together, bear the signatures of all
parties reflected hereon as signatories.
(e) Any term or provision of this Agreement may be amended, and the
observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only by a writing signed by the party to be bound
thereby. The waiver by a party of any breach hereof or default in
the performance hereof will not be deemed to constitute a waiver of
any other default or any succeeding breach or default. The failure
of any party to enforce any of the provisions hereof will not be
construed to be a waiver of the right of such party thereafter to
enforce such provisions.
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(f) Any notice or other communication required or permitted to be given
under this Agreement must be in writing, will be deemed duly
received when delivered in person or when sent by facsimile (with
copy of confirmation receipt), or one business day after having been
sent by a nationally recognized overnight courier service, addressed
as follows (or to such other addresses as a party may designate):
If to the Company:
Xxxxxxx.xxx, Inc.
c/o 00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: 9516) 000-0000
If to Employee:
Xxxxxx X. Xxxxxxx
0-00 Xxxxx Xxxxx
Xxxx Xxxx, XX 00000
Tel: 000-000-0000/000-000-0000
(g) The language hereof will not be construed for or against any party
based solely on that party being the drafting party. The titles and
headings in this Agreement are for reference purposes only and will
not in any manner limit the construction of this Agreement. Where
the context permits, the word "including" shall mean "including
without limitation" or words to that effect. For the purposes of
such construction, this Agreement will be considered as a whole.
(h) No provisions of this Agreement are intended, nor will be
interpreted, to provide or create any third party beneficiary
rights.
(i) This Agreement constitutes the entire understanding and agreement of
the parties hereto with respect to the subject matter hereof and
supersedes all prior and contemporaneous agreements or
understandings, inducements or conditions, express or implied,
written or oral, between the parties with respect to the subject
matter hereof. The express terms hereof control and supersede any
course of performance or usage of trade inconsistent with any of the
terms hereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered by their respective officers thereunto duly authorized, all as of the
date first written above.
EMPLOYEE:
/s/ Aharon Y; Levinas
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Xxxxxx X. Xxxxxxx
XXXXXXX.XXX, INC.:
By: /s/
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Name:
Title:
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