EMPLOYMENT AGREEMENT BETWEEN DYNAMIC APPLICATIONS CORPORATION AND AMIR ELBAZ
Exhibit
10.2
BETWEEN
DYNAMIC APPLICATIONS CORPORATION
AND
XXXX
XXXXX
THIS
AGREEMENT
made effective as of the 1st
day of
November, 2008, (“Effective Date”) by and between Dynamic Applications
Corporation, a Delaware corporation with a principal place of business at46
Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxx 00000 (hereafter the "Company"),
and
Xxxx Xxxxx, with a principal place of business at 000 Xxxx 00xx
Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (hereafter the "Employee").
RECITALS:
WHEREAS,
the
Company is engaged in the business of developing, marketing, managing and
operating proprietary technologies and intends to enter into new areas in the
field of renewable power generation around the world (the
"Business");
WHEREAS,
the
Company desires to engage Employee to provide certain services related to the
development and operation of the Business; and
WHEREAS,
Employee desires to render such services.
NOW
THEREFORE,
in
consideration of the mutual promises and covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Employment.
(a) The
Company hereby engages Employee as its President and Chief Executive Office
who
shall supervise and manage all aspects of the Company, and Employee hereby
accepts the appointment to serve in each capacity at the Company. During the
term of this Agreement, Employee will be responsible to report to the Board
of
Directors.
(b) Employee
hereby accepts such appointment subject to the provisions and conditions of
this
Agreement.
2.
Term
of Agreement.
The
employment period shall begin upon the Effective Date and shall continue
thereafter until the third (3rd) anniversary of the Effective Date (the
“Term”),
unless
sooner terminated pursuant to section 6 of this Agreement.
The
parties may agree by written amendment to continue this Agreement after that
date on a year to year basis.
1
3.
Employee's
Duties.
Employee shall devote so much of his time and attention to the affairs of the
Company. Employee shall perform the duties of President and Chief Executive
Officer (the “Duties”).
Nothing in this Agreement shall restrict Employee, however from expending his
personal time on his own ventures or investments so long as: (i) such activities
are consistent with Employee's Duties with the Company; (ii) such activities
and
time commitments do not impair the effective performance of his Duties for
the
Company; (iii) such activities do not, directly or indirectly, compete with
the
Business of the Company or violate his confidentially and intellectual property
obligations; and (iv) Employee discloses to the Board of Directors any activity
that may result conflict of interest with his duties.
(a)
Employee will cooperate with the Company in any
efforts by the Company to obtain a life insurance policy on the life of Employee
for the benefit of the Company.
4.
Company's
Duties.
(a)
The Company shall:
(i)
Compensate Employee as set forth in Section 5
below.
(ii)
Furnish the Employee with a suitable private
office, and such equipment, supplies, instruments, and clerical and staff
support as are reasonable and necessary to fulfil his Duties as set forth in
this Agreement.
(iii)
Furnish Employee with such data, materials,
documents and other information as are reasonable and necessary to fulfil his
responsibilities and Duties as set forth in this Agreement.
(iv)
Reimburse Employee for all reasonable out of
pocket business expenses he incurs to fulfil the terms of this Agreement,
approved by the Company in accordance with its policies, rules, standards,
and/or procedures governing such expenses, including without limitation, those
for travel, lodging, food, telephone, facsimile and other electronic voice
or
data transmissions. Employee shall submit periodic reports of such expenses
on
forms with supporting documentation as the Company shall prescribe for its
executive employees and the Company shall pay such reimbursement within
forty-five (45) days of such submissions.
(b)
The Company, upon approval of the Board of
Directors, may pay additional compensation to Employee as a member of management
and/or for serving on the Board of Directors beyond that amount set forth in
Section 5 below. The Board may approve such additional compensation if it views
such additional compensation to be in the best interest of, and fair to the
Company. Such additional compensation may be in the form of, without limitation,
stock options, warrants, or performance bonuses.
5.
Compensation.
(a)
The Company shall pay Employee, at a minimum, a
base annual salary of $180,000 ("Base
Compensation")
for
each of the three (3) years during the Term of this Agreement. Compensation
shall be in monthly instalment payable on the last day of each month, except
as
the parties may agree to another installment practice with the consent of the
Board of Directors from time to time. There shall be no adjustment for cost
of
living increases or Consumer Price Index increases. This compensation is subject
to Section 5(d) below. Notwithstanding the above, the Compensation for the
initial two months of the Term shall be deferred and be paid on or before
January 30th,
2009.
2
(b)
On or before January 7th,
2009
the Company shall issue Employee with two million two hundred thousand
(2,200,000) shares of common stock of the Company (“Employee’s
Shares”).
The
purchase price of the Employee’s Shares shall be $0.01 per share of common
stock.
(c)
On or before January 7th,
2009
the Company shall issue Employee with one million one hundred (1,100,000)
thousand options to purchase shares of common stock of the Company
(“Employee’s
Options”).
Two
hundred seventy five thousand (275,000) of Employee’s Option shall be vested
starting the first anniversary of this Agreement and continue for three
subsequent anniversaries thereafter, subject to the Employee's continued
employment on the end of each anniversary. The exercise price of the Employee’s
Options shall be $0.01 per share of common stock. In the event of termination
of
Employee’s employment with the Company for any reason, excluding termination for
Cause; all Employee’s Options shall be immediately vested in full and
exercisable as of the date of termination of the employment. A notice of
termination of employment shall be deemed to constitute termination of
employment.
The
Employee’s Options may be exercised within a period of ninety (90) days after
the date of such termination.
(d)
On or before February 1st,
2009
the Company shall issue Employee with one million one hundred (1,100,000)
thousand options to purchase shares of common stock of the Company
(“Employee’s
Performance Options”).
Two
hundred seventy five thousand (275,000) of Employee’s Option shall be vested
starting the first anniversary of this Agreement and continue for three
subsequent anniversaries thereafter, subject to the Employee's continued
employment on the end of each anniversary. The exercise price of the Employee’s
Options shall be $1.00 per share of common stock. In the event of termination
of
Employee’s employment with the Company for any reason, excluding termination for
Cause; all Employee’s Performance Options shall be immediately vested in full
and exercisable as of the date of termination of the employment. A notice of
termination of employment shall be deemed to constitute termination of
employment. The Employee’s Performance Options may be exercised within a period
of ninety (90) days after the date of such termination.
In
the
event of change of control of the Company during the Employee’s employment with
the Company, all Employee’s Options and Employee’s Performance Options shall
accelerate and become vested in full and exercisable as of the date of singing
a
Definitive Agreement for the acquisition of the Company by a third party (i.e.,
sale of more than 51% of shares of Company to a third party who is not a
Company’s stockholder of record as constituted immediately prior to such
acquisition).
3
(e)
Employee shall be eligible to participate in
coverage under the Company's employee and insurance plans or programs and other
employee benefit plan or programs, if any, at least equal to the coverage
provided to other full-time executives of the Company. In the event such
coverage is not available, the Company shall compensate employee for COBRA
payment made by employee for him and his immediate family.
(f)
Employee may be paid additional compensation (as a
member of management and/or the Board of Directors) as the Board may approve
from time to time pursuant to Section 4(b) above.
(g)
If requested by Employee, Employee shall be
provided with a Company car on a full time basis to meet his commuting needs.
All associated costs including but not limited to parking, gas, tolls and
insurance shall be covered by the Company.
6. Termination.
(
6.1
Early Termination.
| (a) |
During
the Term of this Agreement, the Company may terminate the Employ’s
employment without Cause as defined below for any reason with the consent
of the majority of the Company's Board of Directors by giving him thirty
(30) day advance written notice (“Company Notice Period”). If the Company
terminates the Employee during the Term without Cause he will be provided
with special one lump severance payment equal to 6 month salary
installments in addition to what he is entitled under section 5 hereof.
|
| 6.2 |
Termination
by the Company for “Cause.”
|
| (b) |
The
Company may terminate the Employee employment for Cause thirty (30)
days
after the date on which the Employee shall have received written notice
from the Board of Directors of the Company that it has decided to
terminate his employment for Cause, which notice shall specify the
nature
of such Cause.
|
| (c) |
For
all purposes under this Agreement “Cause”
shall mean: (i) the failure of the Employee to diligently perform his
duties to the Company, after having been provided written notice and
30
days to cure such failure; (ii) the engaging by the Employee in willful,
reckless or negligent misconduct which is determined by the Board of
Directors to be materially injurious to the Company or any of its
affiliates (monetarily or otherwise); (iii) the Employee pleading guilty
or no contest to, or conviction of, any felonious crime; (iv) the
Employee’s fraudulent misappropriation, embezzlement or willful and
material damage of or to any property of the Company; or (v) conduct
by
Employee constituting a breach of any statutory or judicially imposed
fiduciary duty of care or loyalty to the Company
.
|
| (d) |
No
severance payments will be paid to the Employee under this Agreement
on
account of a termination for Cause.
|
4
| (e) |
6.3Resignation
|
| (f) |
The
Employee may terminate his employment by giving the Company ninety
(90)
day advance written notice.
|
Disability
or Death
| (g) |
In
the event that Employee is unable for a period of one hundred eighty
(180)
consecutive days to substantially perform his Duties under this Agreement
by reason of illness or incapacity during the Term of this Agreement.
The
Company may terminate his employment because of such disability with
30
days notice. In such termination the Employee will be provided with
a
special one lump severance payment equal to 6 month salary installments.
|
| (h) |
In
the event of the death of the Employee during the Term, the Employment
shall terminate on the date of death and the Employee's designated
beneficiary or, if none, his estate shall be entitled to receive (i)
any
accrued and unpaid Base Compensation, and Benefits through such date
of
death and (ii) continued monthly installments for six months following
the
date of death
|
7.
Confidentiality
and Intellectual Property Agreement.
(a)
As a
condition precedent to the entering into effect of this Agreement, the Employee
shall execute the Confidentiality, and Intellectual Property Assignment
Agreement attached hereto as Exhibit
A,
and any
replacement assignment agreement as may be proposed by the Company from time
to
time.
| (b) |
The
confidentiality provisions of Exhibit A are intended to supplement
and not
supersede the applicable provisions of the Uniform Trade Secrets Act,
to
the fullest extent applicable.
|
8.
Restrictive
Covenants.
(a)
For a period of one (1) year after the expiration
or termination of this Agreement for any reason whatsoever, Employee shall
not,
directly or indirectly, engage in activities for, nor render services (similar
or reasonably related to those in which Employee shall have rendered to the
Company) to, any person, entity, firm, business organization which directly
or
indirectly competes with the Business of the Company to the extent and insofar
as such competition is based on or exploits the Confidential Information or
Inventions (defined below) of the Company, whether now existing or hereafter
established, nor shall Employee entice, induce or encourage any of the Company's
employees to engage in any activity which, were it done by Employee, would
violate any provision of this section.
5
(b)
For a period of one (1) year after the expiration
or termination of this Agreement for any reason whatsoever, Employee shall
not,
directly or indirectly, solicit the Company's employees or independent
contractors to leave their employ or terminate their contracts with the Company.
Upon
Employee's written request to the Company specifying the activities proposed
to
be conducted by Employee, the Company may in its discretion give Employee
written approval(s) to personally engage in any activity or render services
referred to in Subsection (a) upon receipt of written assurances (satisfactory
to the Company and its counsel) from Employee and from Employee's prospective
employer(s), partner(s) or company that the integrity and provisions of this
Section will not in any way be jeopardized or violated by such activities,
provided the burden of so establishing the foregoing to the satisfaction of
the
Company and its counsel shall be upon Employee and his prospective employer(s),
partner(s) or company
(c)
The parties acknowledge that they have attempted
to limit Employee's right to compete only to the extent necessary to protect
the
Company from unfair competition. However, the parties hereby agree that, if
the
scope or enforceability of the restrictive covenant is in any way disputed
at
any time, a court or other competent trier of fact may modify and enforce the
covenant to the extent that it finds the covenant to be reasonable under the
circumstances existing at the time.
(d)
Employee further acknowledges that: (1) in the
event this Agreement with the Company terminates for any reason, he will be
able
to earn a livelihood without violating the foregoing restrictions; and (2)
that
his ability to earn a livelihood without violating such restrictions is a
material condition to his retention by the Company.
(e)
Employee's duties under this Section 8 shall
survive termination of this Agreement, however, Employee's duties under this
Section 8 shall not survive termination of this Agreement without Cause as
defined herein in section 6 (iii) (F). recommended to delete Employee
acknowledges that a remedy at law for any breach or threatened breach by
Employee of this Section 8 may be inadequate, and Employee therefore agrees
that
the Company shall be entitled to all available remedies in law including
injunctive relief in case of any such breach or threatened breach.
9.
Warranty
Against Prior Existing Restriction.
Employee represents and warrants to the Company that he is not a party to any
agreement containing a non-competition clause or other restriction with respect
to: (a) the services which he is required to perform hereunder; or (b) the
use
or disclosure of any information directly or indirectly related to the Company's
business, or to the services he is required to render pursuant
hereto.
10. Severability.
It is
the desire and intent of the parties hereto that the provisions of this
Agreement and its exhibit shall be enforced to the fullest extent permissible
under the laws and public policy of each jurisdiction in which enforcement
is
sought. Accordingly, if any particular provision, section, or subsection of
this
Agreement or its exhibit is adjudged by any court of law to be void or
unenforceable, in whole or in part, such adjudication shall not be deemed to
affect the validity of the remainder of the Agreement, including any other
provision, section, or subsection. In addition, if any one or more of the
provisions contained in this Agreement or its exhibit shall for any reason
be
held to be excessively broad as to duration, geographical scope, activity or
subject, it shall be construed by limiting and reducing it, so as to be
enforceable to the extent compatible with the applicable law as it shall then
appear. Each provision, section, and subsection of this Agreement and its
exhibit is declared to be separable from every other provision, section, and
subsection and constitutes a separate and distinct covenant.
6
12. Entire
Agreement.
This
Agreement and its exhibit contain the entire understanding of the parties and
supersede all previous verbal and written agreements. There are no other
agreements, representations, or warranties not set forth herein.
13. Notices.
All
notices or other documents under this Agreement shall be in writing and
delivered personally or mailed by certified mail, return receipt requested
postage prepaid, addressed to the Company or Employee at their last known
addresses. Addresses are as follows:
If
to the
Company: 00
Xxxxxxxx Xxxxxx
Xxxxxx,
Xxxxxx 00000
Attention:
Chairman of the Board of Directors
With
Copy
to: XXXXX
XXXXX ZEDEK XXXXXX LLP
0000
Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx,
XX00000
Attention:
Xxxxx Xxxxxx, Esq.
If
to
Employee: Xxxx
Xxxxx
000
Xxxx
00xx
Xxxxxx
Xxx
Xxxx,
XX 00000
14. Non-waiver.
No
delay or failure by either party to exercise any right under this Agreement,
and
no partial or single exercise of that right, shall constitute a waiver of that
or any other right, unless otherwise expressly provided herein.
15. Headings.
Headings in this Agreement are for convenience only and shall not be used to
interpret or construe its provisions.
16. Governing
Law.
This
Agreement and its exhibit shall be construed in accordance with and governed
by
the laws of the State of New York.
17. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the same
instrument.
18. Binding
Effect.
The
provisions of this Agreement and its exhibit shall be binding upon and inure
to
the benefit of each of the parties and their respective successors and
assigns.
19. Remedies.
The
parties agree that in addition to any other rights and remedies available to
the
Company for any breach by Employee of his obligations hereunder, the Company
shall be entitled to enforce Employee's obligations hereunder by court
injunction, or court ordered affirmative action, which injunction or ordered
action may restrain a future breaking of this Agreement if there is reasonable
ground to believe that such a breach is threatened. Employee further agrees
to
allow the Company to enjoin future use or disclosure of its Confidential
Information if it has reasonable grounds to believe such action is necessary
to
protect such Confidential Information.
7
20. Attorney's
Fees.
If
either party hereto shall breach any of the terms hereof, such breaching party
shall pay to the non-defaulting party all of the non-defaulting party's costs
and expenses, including reasonable attorney's fees and costs, incurred by such
party in enforcing the terms of this Agreement.
21. Prohibition
Against Assignment.
Employee agrees, for himself and on behalf of his successors, heirs, executors,
administrators, and any person or persons claiming under him by virtue hereof,
that this Agreement and the rights, interests, and benefits hereunder cannot
be
assigned, transferred, pledged, or hypothecated in any way and shall not be
subject to execution, attachment, or similar process. Any such attempt to do
so,
contrary to the terms hereof, shall be null and void and shall relieve the
Company of any and all obligations or liability hereunder.
IN
WITNESS WHEREOF,
the
Parties have duly executed this Agreement as of the date first written
above.
| For Company: | |||
| /s/ Xxxx Xxxxxxxxx | |||
|
|
|||
|
By:
Xxxx Xxxxxxxxx
Its:
Chairman of the Board of
Directors
|
| For Employee: | |||
| /s/ Xxxx Xxxxx | |||
|
|
|||
|
By:
Xxxx Xxxxx
As:
Individual
|
8
Exhibit
A
Confidentiality,
and Intellectual Property Assignment
My
obligations under this Confidentiality and Intellectual Property Assignment
Agreement (hereafter “Agreement”)
are
toward (i) Dynamic Applications Corporation (the “Company”),
and
(ii) its present and future parent companies, subsidiaries, affiliates and
successors. All of the aforementioned entities shall be referred to collectively
as the “Company’s
Entities”.
| 1. |
Confidentiality
|
| 1.1. |
I
will regard and retain as confidential and will not divulge to any
third
party, or use for any unauthorized purposes either during or after
the
term of my employment with the Company, any proprietary or confidential
information or know-how, as defined below (collectively “Confidential
Information”),
that I may have acquired during my service or in connection with my
employment or contacts with the Company’s Entities, without the written
consent of an authorized representative of the
Company.
|
| 1.2. |
Confidential
Information
shall include, but will not be limited to, information regarding research
and development related to actual or anticipated products, inventions,
whether patentable or non-patentable, hardware, software or other
products, methods of manufacture, trade secrets, test results, processes
data, know-how, improvements, intension, ideas, techniques, business
plans, business and financial activities, customer lists, finances,
banking, investments, investors, properties, employees, marketing plans
and any other data related to the business or affairs of the Company's
Entities. Confidential Information will include information in written,
oral or any other form of communication. Confidential information shall
not include, however, any information that is: (i) known to me at the
time
I commenced employment with the Company as shown by evidence, (ii)
publicly known or becomes publicly known through no act or fault on
my
part, (iii) disclosed to me by third parties who are not subject to
confidentiality undertakings toward the Company’s Entities through no act
or fault on my part; or (iv) required to be disclosed by law or pursuant
to a judicial order or similar decree.
|
| 2. |
Return
of Confidential Information
|
All
materials including, but not limited to, documents, notes, memoranda, records,
diagrams, blueprints, bulletins, formulas, reports, computer programs, and
any
other material of any kind and in any form, coming into my possession or
prepared by me in connection with my service, are the exclusive property of
the
Company (hereinafter the "Documents").
I
agree to return to the Company all such Documents upon termination of my
employment, unless I acquire the Company’s specific written consent to release
any such Document.
9
| 3. |
Ownership
Rights
|
Without
additional compensation and consideration, I hereby assign and will in the
future assign to the Company, and acknowledge and will in the future acknowledge
the Company’s exclusive right, (including any ‘moral’ right) domestic and
foreign, to any and all intellectual property, including, without limitations,
all inventions, improvements, mask works, discoveries, or works, either capable
of being patented or copyrighted or not, which I may conceive, make, develop,
author, or work on, in whole or in part, independently, or jointly with others,
during the term of my employment with the Company, which are either (i) related
to the Company’s Entities’ business or actual or demonstrably anticipated
research or development; (ii) resulting directly or indirectly from any work
I
performed for the Company; or (iii) developed in whole or in part on the
Company’s time or with the use of any Company’s equipment, supplies, facilities,
or trade secret (hereinafter the “Company’s Entities’ Intellectual
Property”).
| 4. |
Disclosure
and Assignment of Inventions
|
I
will
promptly disclose and describe to the Company all of the Inventions which I
may
conceive, make, reduce to practice, develop, author, or work on, in whole or
in
part, independently, or jointly with others, during the period of my service
with the Company, which either; (i) relate to the Company’s Entities’ business
or actual or demonstrably anticipated research or development, (ii) are
developed in whole or in part on the Company's time or with the use of any
of
the Company's equipment, supplies, facilities or trade secret information,
or
(iii) results directly or indirectly from any work I performed for the Company
(hereinafter the "Inventions").
I
agree to assign and do hereby assign to the Company any right, title and
interest I might have worldwide in such Inventions and any intellectual property
right based upon such Inventions.
| 5. |
Employee
Assistance
|
I
will,
at the Company’s expense, assist in preparation and registration of patents and
any other intellectual property right in favor of the Company, in any
jurisdiction deemed appropriate by the Company. Such assistance shall include,
without limitation, the preparation of documents, drawings and other data and
execution of assignments, applications and other forms. I agree to perform
this
obligation during and after my service with the Company. In order to give full
effect to this section I hereby irrevocably appoint the Company (and its
representatives) as my attorney in fact, authorized in my name and on my behalf
to execute all such documents.
| 6. |
No
Conflicting Obligations
|
I
will
not disclose to the Company any proprietary or confidential information
belonging to any third party, including any prior or current employer or
contractor, unless I have first received the written approval of that third
party and present it to the Company. I undertake not to perform any activity
related to my employment with the Company on the premises of any third party,
or
while using any equipment or materials that belong to any such third party,
unless instructed to do so by the Company.
| 7. |
Third
Party Information
|
I
recognize that the Company has received and will in the future receive from
third parties their confidential or proprietary information, subject to a duty
on the Company’s part to maintain the confidentiality of such information and to
use it only for certain limited purposes. I agree to hold all such confidential
or proprietary information in the strictest confidence and not to disclose
it to
any person or entity or to use it except as necessary in carrying out my
services for the Company, consistent with the Company’s agreement with such
third party.
10
| 8. |
Breach
of Obligation
|
I
agree
that, in the event of any breach of any provision hereof, the Company may or
will not have an adequate remedy in money or damages. I therefore agree that,
in
such event, the Company shall be entitled to obtain injunctive relief against
such breach in any court of competent jurisdiction, without the necessity of
posting a bond even if otherwise normally required. Such injunctive relief
will
in no way limit the Company’s right to obtain other remedies available under
applicable law. No failure or delay by a party hereto in enforcing any right,
power or privilege created hereunder shall operate as an implied waiver thereof,
nor shall any single or partial enforcement thereof preclude any other or
further enforcement thereof or the enforcement of any other right, power or
privilege. Without derogation from the above and from Company’s right to take
any legal means, I agree to indemnify and hold harmless Company against any
claim, cost and/or expense that it may endure as a result of any breach of
any
provision hereof.
| 9. |
Assignment
|
This
Agreement may be assigned by the Company. I may not assign or delegate my
obligations under this Agreement, without the Company's prior written approval.
| 10. |
Condition
to Employment
|
I
acknowledge that execution of this Agreement is a condition to the Company's
engagement with me and the disclosure of any Confidential Information.
In
witness hereof, the parties hereto have executed this Agreement the day and
year
first above written.
Dynamic
Applications Corporation Xxxx
Xxxxx
By: ____________________________ ____________________________
Title:
____________________________
Date: ____________________________ Date:________________________
11
