EMPLOYMENT AGREEMENT
between
ATLANTIS AQUAFARM, INC.
and
XXXXXX XXXXXXXXXX
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of May 1, 1997, between ATLANTIS AQUAFARM,
INC. a New York corporation (the "Company") and XXXXXX XXXXXXXXXX (the
"Executive"). The parties hereto agree as follows:
1. Employment.
(a) Agreement to Employ. Upon the terms and subject to the
conditions of this Agreement, the Company shall hereby employ the Executive and
the Executive hereby agrees to be employed by the Company.
(b) Term of Employment. Subject to Section 5, the Company shall
employ the Executive pursuant to the terms hereof for the period commencing on
September 1, 1997 (the "Commencement Date") and ending on the third anniversary
of the Commencement Date (the "Third Anniversary"), provided that the
Executive's employment with the Company shall be deemed to be automatically
renewed upon the same terms and conditions for additional one-year periods
thereafter unless either party hereto shall have given the other party written
notice that such party does not intend to renew the Agreement no later than two
(2) months prior to the date on which the term would otherwise expire. The
period during which the Executive is employed pursuant to this Agreement,
including any renewal thereof in accordance with this Section l(b), shall be
referred to as the "Employment Period."
2. Position and Duties.
During the Employment Period, the Executive shall serve on the Board
of Directors of the Company (the "Board") and shall have the following duties,
responsibilities and obligations:
(i) marketing and sales;
(ii) controller.
The Executive shall devote such time as reasonably necessary to
perform the services required of him hereunder (which shall in no event be less
than 15 hours per week), and shall use his best efforts, judgement, skill and
energy to perform such services in a manner consonant with the duties of his
position and to improve and advance the business and interests of the Company.
Nothing contained in this Agreement shall prohibit the Executive from owning,
directly or indirectly, any shares of capital stock or any equity or ownership
interest in any corporation, partnership joint venture, proprietorship or other
business organization except one which is engaged in competition with the
Company it being understood that the Executive's employment with the Company
does not otherwise constitute an exclusive relationship. During the Employment
Period, the Executive shall report to the Company's Board of Directors.
3. Compensation. From the Commencement Date until the first anniversary of
the Commencement Date (the "First Anniversary"), the Company shall pay the
Executive a base salary of $30,000. The Executive's annual base salary shall be
$40,000 for the period between the First Anniversary and the second anniversary
of the Commencement Date (the "Second Anniversary") and shall be $50,000 for the
period between the Second Anniversary and the Third Anniversary. The Company
shall pay the Executive such base salary in equal bi-monthly installments or in
such other installments as the parties may agree.
4. Benefits and Vacation. During the Employment Period, the Executive shall
be eligible to participate in any health, disability and life insurance plans
sponsored or maintained by the Company for the benefit of its senior executive
corporate officers to the extent that the Executive is eligible to participate
in any such plans under the generally applicable provisions thereof. The Company
may, in its discretion, amend or terminate any such plans in accordance with the
terms thereof. During the Employment Period, the Executive shall be entitled to
two weeks of paid vacation annually. The Executive shall be furnished with an
office at and shall conduct his duties primarily at the Company's headquarters
in New York.
5. Termination of Employment. If the Executive's employment with the
Company terminates earlier than upon the expiration of the Employment Period
specified in Section 1(b), determined without regard to this Section 5, the
Executive shall be entitled to receive the following payments under the
following circumstances:
(a) Termination for Cause or a Resignation Other than for Good
Reason. If the Executive's employment terminates under this Section 5 due to a
Termination for Cause or a Resignation Other than for Good Reason, the Executive
shall receive his Earned Salary and any other benefits under any benefit plan of
the Company to which he is entitled pursuant to the terms of such plan.
(b) Termination Without Cause or Resignation for Good Reason. If the
Executive's employment terminates under this Section 5 due to a Termination
Without Cause or a Resignation for Good Reason, the Executive shall receive both
his Earned Salary and the full salary that would otherwise be payable under
Section 3 through the remaining term of the Employment Period, determined
without regard to this Section 5 and any other benefits under any benefit plan
of the Company to which he is entitled pursuant to the terms of such plan.
(c) Definitions. For purposes of this Section, capitalized terms
have the following meanings:
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"Cause" means a termination of Executive's employment by the Company
due to (i) the continued failure (other than any such failure resulting from
incapacity due to reasonably documented physical or mental illness) by Executive
substantially to perform his duties, responsibilities or obligations as an
officer, director or employee of the Company after having been given written
notice of such failure to perform and after having failed to improve such
performance, in the judgement of the Board (determined without the Executive's
participation) within the time period (which shall not be less than 30 days)
specified in such notice or (ii) the engaging by Executive in serious misconduct
which is material to the performance by Executive of his duties and obligations
for the Company, including, without limitation, gross negligence, dishonesty,
willful malfeasance, gross misconduct, the disclosure of material secret or
confidential information of the Company or any subsidiary or conviction of a
felony or the entry of a plea of nolo contendere to a felony.
"Earned Salary" means the base salary earned, but unpaid, for
services rendered to the Company on or prior to the date of disability,
resignation or termination of the Executive's employment, as the case may be.
Earned Salary shall be paid in a single lump sum as soon as practicable, but in
no event more than 30 days following such date.
"Resignation for Good Reason" means a resignation by the
Executive as a result of any of the following:
(a) a material breach by the Company of its obligations under this
Agreement with respect to the base salary, benefits and vacation to which the
Executive is entitled under Sections 3 and 4 hereof: or
(b) the taking of any action by the Company that would substantially
diminish the aggregate value of any benefits which may be provided to the
Executive under the benefit plans of the Company that may be in effect at such
time in which he was participating, other than any such reduction which is (i)
required by law, or (ii) implemented in connection with a general concessionary
arrangement affecting all employees or affecting the group of senior corporate
executive employees, or (iii) generally applicable to all similarly situated
beneficiaries of such plans; or
(c) the material reduction by the Company of the Executive's duties
and positions under this Agreement.
"Resignation Other than for Good Reason" shall be any resignation
other than a Resignation with Good Reason.
"Termination for Cause" shall be any termination of the
Executive's employment by the Company for Cause.
"Termination Without Cause" shall be any termination of the
Executive's employment by the Company other than a Termination for Cause.
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5. Full Discharge of Company Obligations. The amounts payable to the
Executive pursuant to Section 5 following termination of his employment shall be
in full and complete discharge of the Executive's rights under this Agreement
and any other claims he may have in respect of his employment by the Company or
any of its subsidiaries. Such amounts payable shall constitute liquidated
damages with respect to any and all such rights and claims and, upon the
Executive's receipt of such amounts, the Company shall be released and
discharged from any and all liability to the Executive in connection with this
Agreement or otherwise in connection with the Executive's employment with the
Company. Notwithstanding the foregoing, nothing herein contained shall affect
(i) Executive's rights as a stockholder in the Company and (ii) Executive's
entitlement to, and rights under, any stock options which may have been granted
to him in connection with his employment or otherwise.
6. Miscellaneous.
(a) Binding Effect. This Agreement shall be binding on the Company
and any person or entity which succeeds to the interest of the Company
(regardless of whether such succession occurs by operation of law, by reason of
the sale of all or a portion of the Company's stock or assets or a merger,
consolidation or reorganization involving the Company). This Agreement shall
also inure to the benefit of the Executive's heirs, executors, administrators
and legal representatives.
(b) Assignment. Except as provided under Section 7(a) above, neither
this Agreement nor any of the rights or obligations hereunder shall be assigned
or delegated by either party hereto without the prior written consent of the
other party.
(c) Entire Agreement. This Agreement supersedes any and all prior
agreements between the parties hereto, and constitutes the entire agreement
between the parties hereto with respect to the matters referred to herein, and
no other agreement, oral or otherwise, shall be binding between the parties
unless it is in writing and signed by the party against whom enforcement is
sought. There are no promises, representations, inducements or statements
between the parties other than those that are expressly contained herein. The
Executive acknowledges that he is entering into this Agreement of his own free
will and accord, and with no duress, that he has read this Agreement and that he
understands it and its legal consequences. No parol or other evidence may be
admitted to alter, modify or construe this Agreement, which may be changed only
by a writing signed by the parties hereto.
(d) Severability; Reformation. If one or more of the provisions of
this Agreement shall become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein shall not be affected thereby.
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(e) Waiver. Waiver by any party hereto of any breach or default by
any other party of any of the terms of this Agreement shall not operate as a
waiver of any other breach or default, whether similar to or different from the
breach or default waived. No waiver of any provision of this Agreement shall be
implied from any course of dealing between the parties hereto or from any
failure by either party hereto to assert its or his rights hereunder on any
occasion or series of occasions.
(f) Notices. Any notice required or desired to be delivered under
this Agreement shall be in writing and shall be delivered personally, by courier
service, by registered mail, return receipt requested, or by telecopy and shall
be effective upon dispatch to the party to whom such notice shall be directed,
and shall be addressed as follows (or to such other address as the party
entitled to notice shall hereafter designate in accordance with the terms
hereof):
If to the Company:
ATLANTIS AQUAFARM, INC.
000 00xx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Secretary
Telecopy #: 000-000-0000
with a copy to:
XXXXXXXX XXXXXXXX LLP
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Fax #: (000) 000-0000
If to the Executive:
XXXXXX XXXXXXXXXX
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
(g) Amendments. This Agreement may not be altered, modified or
amended except by a written instrument signed by each of the parties hereto.
(h) Headings. Headings to sections in this Agreement are for
the convenience of the parties only and are not intended to be part of or to
affect the meaning or interpretation hereof.
(i) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original but both of which
together shall constitute one and the same instrument.
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(j) Withholding. Any payments provided for herein shall be
reduced by any amounts required to be withheld by the Company from time to time
under applicable Federal, state or local income or employment tax laws or
similar statutes or other provisions of law then in effect.
(k) Governing Law. This Agreement shall be governed by the
laws of the State of New York, without reference to principles of conflicts or
choice of law under which the law of any other jurisdiction would apply.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by its duly authorized officers and the Executive has hereunto set
his hand as of the day and year first above written.
ATLANTIS AQUAFARM, INC.
By:/s/Xxxxxxx Xxxxxxx
Title: President
WITNESS:
------------------------------
WITNESS: EXECUTIVE:
------------------------------ By: /s/XXXXXX XXXXXXXXXX
XXXXXX XXXXXXXXXX
