MEMORANDUM OF AGREEMENT made and entered this 24th day of October, 1997.
BY AND BETWEEN: XXXXXXX A CHECK, Executive, of Radnor,
Pennsylvania, hereinafter referred to as "EXECUTIVE"
AND: NOCOPI TECHNOLOGIES, INC., a company
incorporated under the laws of the State of Maryland,
hereinafter referred to as "COMPANY"
WHEREAS the COMPANY desires that EXECUTIVE serve as President and Chief
Executive Officer of the COMPANY and EXECUTIVE is willing to serve in such
capacity, subject to the terms and conditions of this agreement; and
WHEREAS all of the terms, conditions and undertakings of this agreement,
have been approved, authorized and directed by its Board of Directors;
NOW, THEREFORE, for valuable consideration, it is mutually agreed by and
between the parties hereto as follows:
1. EMPLOYMENT PERIOD AND DUTIES
1.1 The COMPANY agrees to and does hereby employ the EXECUTIVE as President
and Chief Executive Officer and the EXECUTIVE agrees to serve the COMPANY in
such capacity for a period commencing on the effective date of this agreement
and continuing for three (3) years thereafter (the "Employment Period"). This
agreement shall become effective when the COMPANY will have received not less
than $500,000 pursuant to a financing commitment which commitment shall be in
form and substance satisfactory to Executive.
1.2 The COMPANY agrees and undertakes to nominate the EXECUTIVE as a Director
of the COMPANY during each year of the Employment Period and further agrees that
it will support the EXECUTIVE's nomination in the COMPANY's annual proxy
statement.
2. COMPENSATION
2.1 Subject to the provisions of Clause 2.3, the COMPANY shall pay to said
EXECUTIVE, and said EXECUTIVE shall accept from the COMPANY as basic payment for
his services during the Employment Period, (the "BASIC PAYMENT") compensation at
the rate of One hundred eighty thousand and 00/100 ($180,000.00) Dollars per
annum, payable in weekly or semi-monthly installments.
2.2 In addition to the BASIC PAYMENT during the Employment Period, the
EXECUTIVE shall receive a sum, with respect to any fiscal year of the COMPANY
during the Employment Term, in which the net income of the COMPANY before taxes
and as determined solely by the firm of public accountants of the COMPANY shall
exceed Two hundred and fifty thousand 00/100 ($250,000.00) Dollars equal to ten
percent (10%) of such excess, the amount of any such additional sum shall not
exceed One hundred eighty thousand 00/100 ($180,000.00) Dollars in any fiscal
year.
2.3 The COMPANY and the EXECUTIVE acknowledge that as of the date of signing
this agreement, the EXECUTIVE's salary as well as other salaries being paid to
personnel of the COMPANY are being disbursed at reduced rates because of cash
flow constraints. The COMPANY and the EXECUTIVE agree that notwithstanding the
provisions of Clause 2.1 hereof that the EXECUTIVE's salary shall remain at the
presently reduced rate until such time as the COMPANY's cash flow from
operations is positive for two consecutive quarters at which time the
EXECUTIVE's salary shall revert to the rate of One hundred eighty thousand
00/100 ($180,000.00) Dollars set out in Clause 2.1. The COMPANY and the
EXECUTIVE
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acknowledge that the reduced salary of the EXECUTIVE is One hundred fifty
thousand 00/100 $150,000.00) Dollars per annum.
3. EXPENSES
3.1 During the Employment Period the COMPANY will pay all reasonable business
related expenses incurred by the EXECUTIVE in furtherance of or in connection
with the business of the COMPANY and its subsidiaries.
3.2 The EXECUTIVE shall be supplied with a leased car by the COMPANY provided
that the annual lease monthly payments do not exceed the sum of Nine hundred
00/100 ($900.00) Dollars per month. The COMPANY shall pay or reimburse the
EXECUTIVE for all operating costs of this vehicle including leasing costs (to
the extent only of the amount heretofore mentioned), insurance, maintenance, gas
and oil.
4. SERVICES
4.1 The EXECUTIVE shall be entitled to a minimum vacation period totaling at
least one (1) month each year which he may take, at his option, either in whole
or in part, consecutively or not, in any given year, and which vacation periods
shall be cumulative over the term of the Employment Period.
4.2 The EXECUTIVE shall perform his duties faithfully, diligently, and to the
best of his ability during the Employment Period. These duties shall include the
customary duties, responsibilities and authority of a chief executive officer
with a view to establishing a positive cash flow from operations and
profitability of the company.
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5. RESTRICTIVE COVENANT
5.1 The EXECUTIVE agrees that so long as this agreement is in full force and
effect, he will not, directly or indirectly, either as principal, agent,
stockholder, or in any other capacity, engage in or have a financial interest
in, any business which is competitive to the business of the COMPANY and its
subsidiaries, (except that nothing contained herein shall preclude the EXECUTIVE
from purchasing or owning stock in any such business, providing that his
holdings do not exceed one (1%) percent of the issued and outstanding capital
stock.) For the purpose hereof, a business will be deemed competitive if it
involves the production, manufacture or distribution of any product similar to
those produced, manufactured or distributed by the COMPANY or any of its
subsidiaries. The EXECUTIVE expressly agrees that upon a breach or violation of
the foregoing provision of this agreement, the COMPANY in addition to all other
remedies shall be entitled, as a matter of right, to injunctive relief in any
court of competent jurisdiction.
6. SECRET PROCESSES
6.1 The EXECUTIVE will not divulge, furnish or make accessible to any one
(otherwise than in the regular course of the business of the COMPANY or any of
its subsidiaries) any knowledge or information with respect to confidential or
secret processes, formula, machinery, plans, devices or material of the COMPANY
or any of its subsidiaries, with respect to any confidential or secret
engineering, development or research work of the COMPANY or any of its
subsidiaries, or with respect to any other confidential or secret aspect of the
business of the COMPANY or any of its subsidiaries.
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7. DEATH
7.1 In the event of the death of the EXECUTIVE the COMPANY shall pay to his
surviving spouse an amount equal to one (1) year compensation calculated on the
basis of the compensation payable to the EXECUTIVE under this agreement at the
date of his death. Such payments shall be made in equal monthly installments
over a period of two (2) years from the date of the death of the EXECUTIVE. If
the EXECUTIVE has no surviving spouse, then such amount shall be paid to the
EXECUTIVE's estate in a lump sum. If the EXECUTIVE's spouse survives him but
dies before all of the aforementioned monthly payments have been made, then the
balance of such payments shall be paid to the EXECUTIVE's estate in a lump sum.
8. TERMINATION
a) Death. Employment of the Executive hereunder shall terminate upon his
death, subject to the payments to be made to his surviving spouse
pursuant to Section 7 hereof.
b) Disability. In the event that during the Employment Period the
EXECUTIVE shall be disabled from rendering services hereunder as Chief
Executive Officer to the COMPANY for three (3) consecutive months, the
Board of Directors of the COMPANY may terminate the Employment Period
after sixty (60) days written notice.
c) Termination for cause. The Company may, in its sole discretion,
terminate Executive's Employment Period under the following
circumstances:
(1) Executive breaches his obligations under the terms of this
agreement; or
(2) the Executive has committed an act of dishonesty, moral turpitude
or theft or has breached his duties of loyalty to the Company or
an act of insubordination to its Board of Directors.
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It is specifically understood that during the Employment Period, Executive
shall not be terminated pursuant to either 8(c) (1) or (2) unless and until
(a) Executive has received reasonable written notice from the Company of
the applicable reasons for termination and Executive has had a reasonable
opportunity to remedy such a breach of duties or act of insubordination;
however, the Company may immediately terminate Executive in the event of
the commission of an of dishonesty, moral turpitude or theft.
In the event of the termination of Executive under this section 8(c)
Executive's right to the compensation and benefits provided herein shall
immediately terminate and or cease to accrue, provided, however, that
Executive shall receive (i) the unpaid portion, if any, of his base salary
computed on a pro-rated basis to the date of termination of employment and
(ii) any unpaid accrued benefits owed to the Executive in accordance with
the term of any Plan or Program in which he is a participant.
d) Termination other than for cause. The Company may terminate the
employment of Executive during the Employment Period for reasons other
than those enumerated in Section 8(c); however, in such event the
Company shall be liable to Executive for compensation for the
remainder of the Employment Period and, to the extent not inconsistent
with applicable law and/or the terms and conditions of any Plan or
Program, all other remaining benefits shall continue to accrue until
the end of the Employment Period, which shall constitute the full
liquidated damages to which Executive is entitled.
e) In the event of termination of this agreement for any reason other
than death, Executive shall be entitled to purchase any life insurance
policies on his life then owned by the Company for the case value
thereof or, if such policies have no cash value, upon payment of $100.
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9. STOCK OPTION
9.1 As a further inducement to the EXECUTIVE to enter into this agreement and
to provide a means of enhancing the EXECUTIVE's proprietary interest in the
COMPANY and to increase the EXECUTIVE's incentive, the COMPANY hereby grants to
the EXECUTIVE the right and option to purchase from the COMPANY up to two
hundred thousand (200,000) shares of its par value common stock, exercisable
upon the following terms and conditions and in accordance with the terms and
conditions of the Stock Option Plan of the COMPANY and intended to the extent
permitted by the Internal Revenue Code) be an Incentive Stock Option.:
a) The option price shall be one hundred (100%) percent of the highest
price at which said common stock is sold on the open market on the
date that the execution of this agreement was authorized by the Board
of Directors;
b) Subject to the provisions hereof, this option shall be exercisable as
follows:
(i) After the expiration of one (1) year from the effective date
hereof this option may be exercised with respect to all or any
part of one hundred thousand (100,000) of the said two hundred
thousand (200,000) shares;
(ii) After the expiration of two (2) years from the effective date
hereof, this option may be exercised with respect to all or any
part of two hundred thousand (200,000) of the said two hundred
thousand (200,000) shares less such number of shares as may have
been taken down by the EXECUTIVE hereunder prior thereto;
c) The option shall be granted pursuant to and subject to the terms and
conditions of the COMPANY's stock option plan.
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10. EXECUTIVE'S RIGHTS UNDER CERTAIN PLANS
10.1 The COMPANY agrees that nothing contained herein is intended to or shall be
deemed to be granted to the EXECUTIVE in lieu of any rights and privileges which
the EXECUTIVE may be entitled to as an employee of the COMPANY under any
retirement, pension, insurance, hospitalization, or other plans which may now be
in effect or which may hereafter be adopted, it being understood that the
EXECUTIVE shall have the same rights and privileges to participate in such plans
or benefits as any other employee.
11. SUCCESSORS, ETC. OF THE COMPANY
11.1 This agreement shall inure to the benefit of and be binding upon the
COMPANY, its successors and assigns, including without limitation any person,
partnership or corporation which may acquire all or substantially all of the
COMPANY's assets and business, or into which the COMPANY may be consolidated or
merged, and this provision shall apply in the event of any subsequent merger,
consolidation or transfer, and the EXECUTIVE, his heirs, assigns, executors and
personal representatives.
12. ENTIRE AGREEMENT
12.1 The parties hereto agree that this agreement supersedes any employment
agreement between the EXECUTIVE and the COMPANY and contains the entire
understanding and agreement between the parties and cannot be amended, modified
or supplemented in any respect, except by a subsequent written agreement entered
into by both parties hereto.
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13. APPLICABLE LAW
13.1 The agreement shall be construed according to the laws of the State of
Pennsylvania.
IN WITNESS WHEREOF, the parties hereto have executed this agreement the day
and year first above mentioned.
NOCOPI TECHNOLOGIES, INC.
Per:___________________________
XXXXXXX X. CHECK
Per:___________________________
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