EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS AGREEMENT (this “Agreement”) made
effective as of the 15st day of
May, 2009 (the “Effective Date”) by and between GUARDIAN ZONE TECHNOLOGIES,
INC., a Delaware corporation with principal offices located at 00 Xxxxxxxx Xxxx,
Xxxxxxx Xxxxx, Xxxx 00000 (the “Corporation”), and XXXXXX X. XXXX, residing at
_______________________________________________ (“Executive”).
W I T N E S S E T H
:
WHEREAS, the Corporation desires to
employ Executive as Chief Operating Officer, and Executive desires to undertake
such employment, upon the terms and subject to the conditions of this
Agreement;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants hereinafter
set forth, the parties hereto agree as follows:
1. Employment of
Executive. Subject to the terms and provisions of this
Agreement, the Corporation hereby employs Executive as its Chief Operating
Officer to perform such duties on behalf of the Corporation consistent therewith
as determined from time to time by the Corporation’s Chief Executive
Officer. In performing such duties Executive will report directly to
the Chief Executive Officer. Executive shall at all times act
with integrity and
in a manner that is consistent and in accordance with the policies and procedures, and in the
best interests, of the Corporation.
2. Acceptance of Employment;
Board Nomination; Full Time and Attention. Subject to the
terms and provisions of this Agreement, Executive hereby accepts such
employment. Executive agrees that throughout the Employment Term (as
hereinafter defined), he will devote his full business time, attention,
knowledge and skills, faithfully, diligently and to the best of his ability, in
furtherance of the business of the Corporation and will perform the duties
described in Section 1 hereof. During the Employment Term, Executive
shall be subject to, observe and carry out such rules, regulations and policies
as the Corporation may from time to time establish and that are generally
applicable to senior executives of the Corporation. During the
Employment Term, Executive shall not directly or indirectly, without the prior
written consent of the CEO, accept (i) serve on corporate, civic or charitable
boards or committees (other than in contravention of Section 8(a) hereof) with
or without compensation and (ii) participate in professional organizations, so
long as such activities do not interfere in any material respect with the
performance of Executive’s duties and responsibilities
hereunder. Executive represents that he is not a party to any
agreement that restricts his right or ability to freely carry out his duties
hereunder.
3. Employment Term. Executive’s
employment hereunder shall be for a term of three years commencing on the
Effective Date (the “Term”), unless sooner terminated as hereinafter provided.
This Agreement shall renew for successive one-year periods upon the mutual consent
of the Executive and the Corporation (the Term and any and all renewals for a
one-year period shall collectively be referred to herein as the “Employment
Term”).
4. Compensation.
(a) As
compensation for his services hereunder, the Corporation shall pay to Executive
a base salary of One Hundred Twenty Thousand Dollars ($120,000) per annum (the
“Base Salary”), payable in accordance with the Corporation’s customary payroll
practices but in no event less frequently than semi-monthly, subject to Section
4(d) hereof. The Base Salary shall be reviewed no less frequently
than annually during the Employment Term for increase in the sole discretion of
the Board.
(b) In
addition to the Base Salary, Executive shall be entitled to receive such bonus
as the Board may in its sole discretion determine, subject to Section 4(d)
hereof.
(c) All
payments to Executive pursuant to this Agreement shall be subject to applicable
withholding and other employment taxes imposed by law.
5. Additional
Benefits. In addition to the compensation payable to Executive
under Section 4 hereof, during the Employment Term, he shall be entitled to
participate, to the extent he is eligible under the terms and conditions thereof
(such terms and conditions to be generally applicable to all employees or senior
executives of the Corporation), in any profit sharing, stock option, pension,
retirement, hospitalization, insurance, disability, medical service, bonus or
other employee benefit plan, program, policy or arrangement generally available
to the employees, or provided to other senior executives, of the Corporation
from time to time. Executive’s participation in the benefits pursuant to this
Section 5 shall be at a level, and upon terms and conditions, provided to the
Corporation’s senior executives from time to time.
6. Reimbursement of
Expenses. Upon Executive’s submission to the Board of
appropriate receipts or vouchers, the Board shall reimburse Executive in
accordance with applicable policies of the Corporation for business expenses
determined by the Board to be reasonable and necessary and incurred by Executive
in connection with Executive’s employment on behalf of the
Corporation.
7. Vacation. Executive
shall be entitled to annual paid vacation of twenty (20) days in each calendar
year in accordance with the Corporation’s policies in effect from time to
time.
8. Restrictive
Covenants. In consideration of the Corporation’s entering into
this Agreement and Executive’s exposure to Confidential Information (as
hereinafter defined), Executive and the Corporation agree that
(a) during
the Employment Term and until the one-year anniversary of the end
of the Employment Term, Executive will not directly or indirectly own, manage,
operate, join, control, participate in, invest in or otherwise be connected
with, in any manner, whether as an officer, director, shareholder, employee,
partner, venturer, investor or otherwise, any entity that competes directly with
the Corporation; and
(b) during
the Employment Term and until the one-year anniversary
of either the end of the Employment Term or the termination of
Executive, Executive will not for Executive or on behalf of any other person,
partnership, corporation or other entity, directly or indirectly or by action
together with others, (i) call on any customer of the Corporation or licensee of
the Corporation’s products for the purpose of diverting or taking away any of
such individuals or any of the Corporation’s business and/or revenues directly
related to such individuals or (ii) solicit or induce any person who is or was
an employee of the Corporation during the one-year period prior to the
Executive’s termination or the end of the Employment Term, to terminate or
reduce the nature or scope of such employee’s relationship with the Corporation,
other than in the ordinary course of Executive’s performance of his duties
hereunder; and
(c) Executive
will not make any materially disparaging statements, orally or in
writing, to any third party about the Corporation, ,including, but
not limited to, the Corporation’s customers, licensees, shareholders, investors,
employees, Board members, products or operations. This Section 8(c)
shall survive the termination of Executive’s employment by the Corporation or
the expiration of the Employment Term, but shall not apply to
communications between Executive and Executive’s family, accountants, advisors,
agents, representatives and attorneys, or as expressly authorized by law or
lawful process.
Nothing herein contained shall be
deemed to prohibit Executive from investing his funds in securities of an issuer
if the securities of such issuer are listed for trading on a national securities
exchange or are traded in the over-the-counter market and Executive’s holdings
therein represent less than five percent (5%) of the total number of shares or
principal amount of the securities of such issuer outstanding.
Executive acknowledges that the
provisions of this Section 8 are reasonable and necessary for the protection of
the Corporation and its intellectual property and that each provision, and the
period of time, geographic areas and types and scope of restrictions on the
activities specified herein are, and are intended to be,
divisible. In the event that any provision of this Section 8,
including any sentence, clause or part hereof, shall be deemed contrary to law
or invalid or unenforceable in any respect by a court of competent jurisdiction,
the remaining provisions shall not be affected, but shall, subject to the
discretion of such court, remain in full force and effect and any invalid and
unenforceable provisions shall be deemed, without further action on the part of
the parties hereto, modified, amended and limited to the extent necessary to
render the same valid and enforceable.
9. Confidential Information;
Assignment of Inventions; Notifications.
(a) Definition of Confidential
Information. For purposes of this Agreement, “Confidential
Information” shall mean all trade secrets, copyrights, patents, technical data,
know-how or any other proprietary information pertaining to the Corporation’s
business, customers or suppliers or information pertaining to any aspect of the
Corporation’s business which is information not known by actual or potential
competitors of the Corporation, in whatever form, whether or not marked as
“confidential,” including without limitation all inventions, reports,
investigations, research and development, drawings, designs, plans, proposals,
codes, marketing and sales information, financial projections, cost summaries,
pricing formulae, product development and design information, information
concerning business or product acquisitions, strategic plans, customer lists,
pricing data, databases, programs, algorithms, software (including without
limitation source and object code and design and user documentation), systems,
programs, procedures, techniques, manuals, customer information, specifications,
test results and lists disclosed to, created or otherwise known by,
or in the possession of Executive.
(b) Confidentiality
Obligation. Executive acknowledges and agrees that as between
the Corporation and Executive, the Corporation owns all right, title and
interest in and to the Confidential Information. As a portion of the
consideration for the employment of Executive by the Corporation, Executive
agrees at all times during the Employment Term and thereafter to hold in
strictest confidence, and not to disclose or knowingly allow to be disclosed to
any third party, or to use or knowingly allow to be used, any Confidential
Information, except as necessary to perform Executive’s duties hereunder, and
then only according to the Corporation’s policies and procedures relating to
disclosure of Confidential Information, or as otherwise required by
law. Executive will immediately notify the Board upon discovery or
knowledge of any actual or potential unauthorized use or disclosure of
Confidential Information.
(c) Third Party
Information. Executive acknowledges that the Corporation has
received and in the future will receive confidential or proprietary information
from third parties subject to a duty on the Corporation’s part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. Executive agrees to hold all such confidential and
proprietary information in the strictest confidence and not to disclose it to
any person, firm or corporation or not to use it except as necessary in carrying
out Executive’s duties and responsibilities hereunder consistent with the
Corporation’s agreement with such third party.
(d) Exceptions. The
provisions of this Section 9 shall not apply to any Confidential Information
which shall (i) have become public knowledge other than by breach of this
Agreement or any other agreement between the Corporation and Executive, (ii)
have been known to or in the possession of Executive with the full right to
disclose prior to his receipt from the Corporation, or (iii) have been disclosed
to Executive, other than under an obligation of confidentiality, by a third
party which to the best of Executive’s knowledge had no obligation to the
Corporation not to disclose such information to others.
(e) Assignment of Inventions;
Sale of Inventions. Executive agrees that he will promptly
make full written disclosure to the Board regarding, will hold in trust for the
sole right and benefit of the Corporation, and hereby assigns to the
Corporation, or its designee, all his right, title and interest throughout the
world in and to, any and all inventions, original works of authorship,
developments, concepts, ideas, know-how, improvements or trade secrets, whether
or not patentable or registrable under copyright or similar laws (“Inventions”),
which Executive solely or jointly conceives or develops or reduces to practice,
or causes to be conceived or developed or reduced to practice, during
the Employment Term, or with the use or assistance of the
Corporation’s facilities, materials or personnel, except as provided in Section
9(d) above. Executive further acknowledges that all Inventions which
are made by Executive (solely or jointly with others) during the Employment Term
are “works made for hire” (to the greatest extent permitted by applicable law)
and are compensated by Executive’s salary.
(f) Maintenance of
Records. Executive agrees to keep and maintain adequate and
current written records of the business operations of the Corporation,
including, but not limited to, records of all financial matters, customers and
Inventions.. Such records, as well as all other memoranda, notes,
records, data and other documents composed by or made available to the Executive
during the Employment Term (collectively, the “Records”) will be available to
all members of the Board and remain the sole property of the Corporation at all
times. Executive agrees not to remove the Records from the
Corporation’s place of business except as expressly permitted by Corporation
policy which may, from time to time, be revised at the sole election of the
Board for the purpose of furthering the Corporation’s
business.
(g) Patent and Copyright
Rights. Executive agrees to assist the Corporation, or its
designee, at the Corporation’s expense, in every necessary and proper way to
secure the Corporation’s rights in the Inventions, and any copyrights, patents,
trademarks, mask work rights, moral rights, or other intellectual property
rights relating thereto in any and all countries, including the disclosure to
the Corporation of all pertinent information and data with respect thereto, the
execution of all applications, specifications, oaths, assignments, recordations,
and all other instruments which the Corporation shall deem necessary in order to
apply for, obtain, maintain and transfer such rights and in order to assign and
convey to the Corporation, its successors, assigns and nominees the sole and
exclusive rights, title and interest in and to such Inventions and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto. Executive further agrees that Executive’s
obligation to execute or cause to be executed, when it is in Executive’s power
to do so, any such instrument or papers shall continue after the termination of
this Agreement until the expiration of the last such intellectual property right
to expire in any country of the world. Executive agrees that if the
Corporation is unable because of Executive’s mental or physical incapacity or
unavailability or for any other reason to secure Executive’s signature to apply
for or to pursue any application for any United States or foreign patents or
copyright registrations covering Inventions or original works of authorship
assigned to the Corporation as described above, Executive hereby irrevocably
designates and appoints the Corporation and its duly authorized officers and
agents as Executive’s agent and attorney in fact, to act for and in Executive’s
behalf and stead to execute and file any such applications and to do all other
lawfully permitted acts to further the application for, prosecution, issuance,
maintenance or transfer of letters patent or copyright registrations thereon
with the same legal force and effect as if originally executed by
Executive. Executive hereby waives and irrevocably quitclaims to the
Corporation any and all claims, of any nature whatsoever, which Executive now or
hereafter may have for infringement of any and all proprietary rights assigned
to the Corporation.
(h) Return of Materials Upon
Termination. Executive agrees that at the time of termination
of his employment under this Agreement, Executive will deliver to the
Corporation (and will not keep in Executive’s possession, recreate or deliver to
anyone else) any and all Confidential Information, Records, and any and all
devices, records, data, notes, reports, proposals, lists, correspondence,
specifications, drawings, blueprints, sketches, laboratory notebooks, materials,
flow charts, equipment, other documents and property, and reproductions of any
aforementioned items developed, used and/or possessed by Executive pursuant to
his employment by the Corporation or otherwise belonging to the
Corporation, its successors or assigns. Executive further agrees that
any property situated on the Corporation’s premises and owned by the
Corporation, including disks and other storage media, filing cabinets or other
work areas, is subject to inspection by members of the Board at any time with or
without notice. In the event of a termination of the employment of
Executive by the Corporation, Executive agrees to sign and deliver a Termination
Certification in the form attached hereto as Exhibit
A.
(i) Former Employer
Information. Executive represents that Executive’s performance
of all of the terms of this Agreement will not breach any agreement to keep in
confidence proprietary information, knowledge or data acquired by Executive in
confidence or trust prior or subsequent to the Employment Term, and
Executive will not disclose to the Corporation, or induce the Corporation to
use, any inventions, confidential or proprietary information or material
belonging to any previous employer or any other party.
(j) Notification to Other
Parties. In the event that Executive leaves the employ of the
Corporation, Executive hereby consents to notification by the Corporation to
Executive’s new employer of Executive’s covenants under Sections 8 and 9 of this
Agreement.
(k) Facilitation of
Agreement. Executive agrees to
execute promptly any proper oath or verify any proper document required to carry
out the terms of this Section 9 upon the Corporation’s written request to do
so.
(l) Conflicts. Executive acknowledges
that he has not entered into, and will not enter into, any oral or written
agreement in conflict with any of the provisions of this Section 9.
10. Equitable
Relief. The parties hereto acknowledge that Executive’s
services are unique and that, in the event of a breach or a threatened breach by
Executive of any of his obligations under this Agreement, the Corporation will
not have an adequate remedy at law. Accordingly, in the event of any
such breach or threatened breach by Executive, the Corporation shall be entitled
to such equitable and injunctive relief as may be available to restrain
Executive and any business, firm, partnership, individual, corporation or entity
participating in such breach or threatened breach from the violation of the
provisions hereof. Nothing herein shall be construed as prohibiting
the Corporation from pursuing any other remedies available at law or in equity
for such breach or threatened breach, including the recovery of damages and the
immediate termination of the employment of Executive hereunder.
11. Termination. Executive’s
employment with the Corporation and the Employment Term shall terminate upon the
expiration of the Employment Term or upon the earlier occurrence of any of the
following events (the date of termination, the “Termination Date”):
(a) The
death of Executive (“Death”).
(b) The
termination of Executive’s employment by the Corporation for Cause upon written
notice (the “Cause Notice”) to Executive specifying the conduct constituting
Cause. As used herein, “Cause” shall mean: (i) any breach
of Executive’s obligations under this Agreement; (ii) fraud, theft, or gross
malfeasance on the part of the Executive, including without limitation, conduct
of a felonious or criminal nature, conduct involving moral turpitude,
embezzlement, or misappropriation of assets; (iii) an act, omission or other
conduct by the Executive which is inconsistent with the Executive’s position
and/or which results or is reasonably likely to result, in
the opinion of the Board, in an adverse effect (financial or
otherwise) on the business or reputation of the Corporation or any of its
subsidiaries, divisions, or affiliates; and (iv) the Executive’s failure or
refusal to perform, or the negligent performance of, his duties.
(c) The
termination of Executive’s employment by the Corporation for
Disability. As used herein, “Disability” shall mean Executive’s
inability, as reasonably determined by the Board, to perform his duties,
services and responsibilities hereunder by reason of a physical or mental
infirmity for a total of one hundred eighty (180) calendar days in any
twelve (12) month period.
(d) The
termination of Executive’s employment by the Corporation Without
Cause. As used herein, “Without Cause” shall mean termination of
Executive’s employment by the Corporation other than for (i) Cause, (ii) Death,
or (iii) Disability.
12. Termination
Payments. If Executive’s employment with the Corporation
terminates, the Corporation’s, its subsidiaries’ and its affiliates’ sole
obligation hereunder shall be to pay Executive (i) any accrued and unpaid Base
Salary as of the Termination Date and (ii) an amount equal to such reasonable
and necessary business expenses incurred by Executive pursuant to Section 6 of
this Agreement in connection with Executive’s employment on behalf of the
Corporation on or prior to the Termination Date but not previously paid to
Executive.
13. Executive
Covenants. The Executive agrees to keep the terms of this
Agreement confidential and not to provide copies of this Agreement to, or to
disclose any of the terms and conditions of this Agreement to, anyone not a
party to this Agreement except as may be required by law, in connection with a
legal action involving this Agreement or to Executive’s immediate family
members, bankers, accountants, advisors, representatives or attorneys who agree
to be bound by this confidentiality provision.
14. Survival of
Provisions. Neither the termination of this Agreement nor of
Executive’s employment hereunder shall terminate or affect in any manner any
provision of this Agreement that is intended by its terms to survive such
termination.
15. Entire Agreement;
Amendment. This Agreement embodies the entire agreement and
understanding of the parties hereto with respect to the subject matter hereof,
and supersedes all prior and contemporaneous agreements or understandings, oral
and written, relative to said subject matter. This Agreement may not
be changed, amended, terminated, augmented, rescinded or discharged (other than
by performance), in whole or in part, except by a writing executed by each of
the parties hereto.
16. Notices. Any
notice required, permitted or desired to be given to any party hereto pursuant
to any of the provisions of this Agreement shall be deemed to have been
sufficiently given or served for all purposes if delivered in person or by
responsible overnight delivery service or sent by certified mail, return receipt
requested, postage and fees prepaid, if to the Board
at___________________________, and if to Executive at his address set forth
above. Either of the parties hereto may at any time and from time to
time change the address to which notice shall be sent hereunder by notice to the
other party given under this Section 16. The date of the giving of
any notice hand delivered or delivered by responsible overnight carrier shall be
the date of its delivery and the date of giving of any notice sent by mail shall
be the date five (5) days after the date of the posting of the
mail.
17. No Assignment; Binding
Effect. Neither this Agreement, nor any of the rights,
interests or obligations hereunder, including the right to receive any payments
hereunder, may be transferred or assigned (by operation of law or otherwise) by
Executive. This Agreement may not be assigned by the Corporation
other than to an entity which (a) directly or indirectly controls, is controlled
by or under common control with the Corporation, or which is a successor in
interest to substantially all of the business operations of the Corporation and
(b) assumes in writing, at the time of the assignment, the Corporation’s
obligation to perform this Agreement. The Corporation shall provide
Executive with written notice within ten (10) days of any such assignment. This
Agreement and the various rights and obligations arising hereunder shall inure
to the benefit of and be binding upon Executive and his heirs, executors and
administrators and upon the Corporation and its successors (including, without
limitation, by way of merger) and assigns.
18. Waivers. No
waiver of any of the provisions or conditions of this Agreement or any of the
rights of a party hereto shall be effective or binding unless such waiver shall
be in writing and signed by the party claimed to have consented
thereto. Except to the extent that a party hereto may have otherwise
agreed in writing, no waiver by that party of any condition of this Agreement or
breach by the other party of any of its obligations hereunder shall be deemed to
be a waiver of any other condition or subsequent or prior breach of the same or
any other obligation or representation or warranty by such other party, nor
shall any forbearance by the first party to seek a remedy for any noncompliance
or breach by such other party be deemed to be a waiver by the first party of its
rights and remedies with respect to such noncompliance or breach.
19. Governing
Law. This Agreement shall in all respects be construed in
accordance with and governed by the laws of the State of Ohio.
20. Invalidity. If
any clause, paragraph, section or part of this Agreement shall be held or
declared to be void, invalid or illegal, for any reason, by any court of
competent jurisdiction, such provision shall be ineffective but shall not in any
way invalidate or affect any other clause, paragraph, section or part of this
Agreement.
21. Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall
constitute an original instrument, but each of which when taken together shall
constitute one and the same instrument.
22. Voluntary Execution; Advice
of Counsel. Executive certifies and acknowledges that
Executive has carefully read all of the provisions of this Agreement and that
Executive understands and will fully and faithfully comply with such
provisions. Executive further acknowledges that, in executing this
Agreement, Executive has had the opportunity to seek the advice of independent
legal counsel and has read and understood all of the terms and provisions of
this Agreement.
{Signature
Page Follows}
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed as of this __15_ day of May,
2009.
GUARDIAN ZONE TECHNOLOGIES,
INC.
By: /s/
Xxxxx Xxxxx
Title:
Xxxxx Xxxxx
Chief
Executive Officer
/s/
Xxxxxx X. Xxxx
XXXXXX
X. XXXX
