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Exhibit 10.15
EMPLOYMENT AGREEMENT
THIS AGREEMENT, entered into as of the 18th day of March, 1997, by and between
▇▇▇▇/Biophile International Corporation, a Delaware corporation (the "Company"),
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ( the "Executive" ).
W I T N E S S E T H :
WHEREAS, the Company and the Executive desire to establish an
employment relationship on the terms set forth herein;
NOW,THEREFORE, in consideration of the mutual covenants and conditions
set forth herein and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the Company and the Executive
hereby agree as follows:
1. Offer and Acceptance of Employment. Subject to the terms and
provisions of the Agreement, the Company agrees to and hereby does, employ the
Executive as its Executive Vice President ("EVP"), commencing,at the discretion
of the Executive, on or before May 30, 1997 (the "Effective Date"). The
Executive hereby accepts such employment in such capacity and agrees to
discharge faithfully, diligently, and to the best of his ability the
responsibilities of such position commencing on the Effective Date for an
initial period of three years (the "Employment Term") and continuing thereafter
from year to year (a "Renewal Term"); provided that, subject to Section 6(c)
hereof, either the Company or Executive may terminate such employment at anytime
during the Employment Term or any Renewal Term by giving the other not less than
one month's prior written notice of such termination.
2. Duties and Responsibilities.
(a) During the Employment Term, the Executive (i) shall be in
charge of the Company's investor relations program and, report to the Company's
Chairman, and (ii) assist in the strategic planning of the Company, and in the
overall execution of the Company's business plan, as
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directed by the Chairman,and (iii) shall assume and perform such further
reasonable responsibilities and duties as may be requested of him by the
Chairman or the Board of Directors.
If elected or appointed, the Executive shall serve as a
director of the Company without additional compensation.
(B) Excluding periods of vacation and sick leave to which the
Executive will be entitled, the Executive agrees to devote the whole of his
intention, working time and energy to the business and affairs of the Company,
and to use his best efforts to perform the responsibilities assigned to him
hereunder faithfully and efficiently. However, the Executive hereby states and
the Company hereby acknowledges that the Executive is a registered person with
the New York Stock Exchange firm of Stuart, Coleman and Company ("Stuart") as a
supervisory analyst. The Executive hereby states that such registration is
solely to keep active the Executive's registration, and that the affiliation of
the Executive with Stuart don't not entail or require any of the Executive's
time, nor does such affiliation conflict in any way with the required functions
and/or responsibilities of the Executive with the Company. The Company hereby
consents to the Executive's continuance as a registered person with Stuart but
reserves the right, during the Employment Term, to request that the Executive
terminate such affiliation.
3. Compensation. The following provisions apply during such time as the
Executive is employed by the Company, subject to annual review and adjustment
by the Board of Directors;
(a) Signing Bonus. The Company shall pay the Executive a
signing bonus ("Signing Bonus") equal to the sum of (I) $182,000 payable as
follows: $91,000 on the Effective Date, and $45,500 on the ninetieth day after
the Effective Date and $45,500 on the one hundredth and eightieth day after the
Effective Date.
(b) Base Salary. During the Employment Term, the Executive
shall receive a base salary of not less than One Hundred Eighty Five Thousand
($185,000) as increased hereunder from time to time (the
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"Base Salary") payable in accordance with the Company's normal payroll practices
for salaried employees from time to time adopted by the Company. The Base Salary
shall be reviewed annually and may be increased (but not decreased) in the
course of each such review. Under no circumstances shall any increase in the
Base Salary (i) limit or reduce any other obligation to the Executive under this
Agreement, or (ii) once effective, be later reduced or eliminated.
(C) Annual Bonus. In addition to the Base Salary, the
Executive shall be eligible, for each year of the Employment Term and Renewal
Term, for an annual bonus ("Annual Bonus") to be approved in good faith by the
Compensation Committee, which Annual Bonus shall be consistent with the amount
of the bonuses awarded to top executives of companies engaged in the Business
(as herein defined), and shall take into account such factors as approved by the
Compensation Committee.
Each Annual Bonus calculated in accordance with the foregoing
shall be earned ratably throughout the year and shall be payable within three
months after the end of the fiscal year for which the Annual Bonus is awarded,
unless the Executive shall otherwise timely elect to defer the receipt of such
Annual Bonus under any deferred compensation plan of the Company then in effect.
(D) Stock Option Agreement
(i) Prior to or contemporaneously with the signing of
this Agreement, the Company and the Executive shall enter into a stock option
agreement ("Stock Option Agreement") dated as of the date hereof pursuant to
which the Executive shall be entitled to acquire up to 500,000 shares ("Option
Shares") of the Company's $.01 par value common stock at an exercise price of
$2.875. The Stock Option Agreement shall be in customary form substantially as
set forth on Exhibit A attached hereto. The Option Shares shall vest in
accordance with the following schedule: June 4th, 1997- 200,000 shares ; June
4th, 1998- 150,000 shares ; June 4th, 1999- 150,000 shares.
(ii) The Option Shares granted hereunder shall retain
the same equity position as a percent of the outstanding Common Stock of the
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Company as of the date of this Agreement, and shall not be diluted in any manner
due to any circumstance. The Stock Option Agreement shall include provisions
that in the event the outstanding Common Stock is changed into or exchanged for
a different number or kind of shares or other securities of the Company or of
another corporation by reason of merger, consolidation, other reorganization,
recapitalization, reclassification, combination of shares,stock split, stock
dividend or another event which increases or decreases the outstanding common
stock, (a) the aggregate number and kind of Common Stock subject to the option
granted hereunder and pursuant to the Stock Option Agreement shall be adjusted
appropriately, and (b) the rights to purchase Option Shares granted hereunder
and pursuant to the Stock Option Agreement, both as to number of Option Shares
and the option price shall be adjusted appropriately.
(e) On or before August 1, 1997, the Company shall either implement a
stock option plan in which the Executive is a participant or enter into an
additional stock option agreement with the Executive, on mutually acceptable
terms, pursuant to which the Executive shall have the right to acquire
additional shares of Common Stock on terms no less favorable than those enjoyed
by the other executive officers of the Company.
(f) Employee Benefit Plans. During the Employment Term and any Renewal
Term, the Executive and/or the Executive's dependents, as the case may be, shall
be eligible to participate in and shall receive all benefits under each employee
benefit plan of the Company, including, without limitation, all savings and
retirement plans, medical, dental,disability, group life, accidental death and
travel accident insurance plans and programs of the Company.
The Company and the Executive shall, within ninety days hereof,
establish a life insurance plan which shall provide, at the Company's expense,
minimum coverage of $500,000 to the Executive.
The Company shall reimburse the Executive (within ten days of
submission of an invoice therefor) for any COBRA payments which Executive makes
as a result of leaving his previous employer to accept employment hereunder.
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(g) Expenses. During the Employment Term and any Renewal Term,
the Executive shall be entitled, upon submission of proper substantiation, to
receive reimbursement for all reasonable business-related expenses actually and
necessarily paid or incurred by the Executive in connection with the discharge
of his duties hereunder and in promotion of the business of the Company.
(h) Fringe Benefits. During the Employment Term and any
Renewal Term, the Executive shall be entitled to fringe benefits in accordance
with the policies of the Company. Such benefits shall include, but shall not be
limited to, the following:
(i) The Executive shall be entitled to a car allowance
equal to $800 per month, plus documented operating and maintenance expenses, for
use in carrying out his duties as Executive Vice-President.
(ii) The Executive shall be provided appropriate office
space, equipment and personnel in, or in the general area of Teaneck, New
Jersey, in order to adequately perform his duties hereunder.
(i) Vacation. During the Employment Term and any Renewal Term,
the Executive shall be entitled to paid vacation in accordance with the policies
of the Company with respect to other key executives of the Company in comparable
positions.
4. Termination. The following provisions relate solely to termination
of the Executive's employment during the Employment Term or any Renewal Term:
(a) Termination Upon Death. In the event the Executive dies
during the term of this Agreement, this Agreement shall terminate except to the
extent described in Section 6(a).
(b) Termination Upon Disability. For purposes of this
Agreement, "Disability" for the specific position of Executive Vice-President
means that: (i) the Executive is declared legally incompetent under the laws of
the State of New Jersey; or (ii) the Executive's physical or mental condition
meets the definition of "permanent disability" as defined under standard
disability
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insurance policies intended for use within the State of New Jersey for a period
of six consecutive months.
In the event the Executive becomes incapable of performing
substantially all of the normal duties required by this Agreement and performed
by him before such Disability, the Executive shall receive his full Base Salary
during the first six (6) months of such Disability and no salary thereafter and
Executive's employment hereunder may, at the option of the Company, be
terminated at any time thereafter; provided, however, in no event shall any such
termination cause the termination of the Executive's disability and medical
insurance coverage.
(c) The Executive's right to terminate his employment
hereunder shall not be affected by his incapacity due to Disability or other
physical or mental illness.
(d) The date on which Executive's employment hereunder
terminates for any reason shall be referred to as the "Termination Date".
5. Notice of Termination. Any termination of Executive's employment by
the Company or the Executive shall be communicated in writing to the other party
in accordance with Section 12(b) of this Agreement. If the Termination Date is
other than the date of receipt, the notice shall specify the Termination Date.
6. Obligations of the Company Upon Termination. The following
provisions apply if the Executive is terminated during the Employment Term or
any Renewal Term:
(a) Termination Upon Death. If the Executive's employment is
terminated by reason of the Executive's death, this Agreement shall terminate
without further obligation to the Executive's legal representatives under this
Agreement other than those payment amounts accrued and payable hereunder,
including all amounts earned or accrued pursuant to Section 3 hereof, at the
date of the Executives death.
Upon Executive's death, all Option Shares become vested and
become immediately exerciseable by Executive's legal representative as
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provided in the Stock Option Agreement.
Anything in this Agreement to the contrary notwithstanding,
the Executive's family shall be entitled to receive additional benefits at least
equal to those provided by the Company to surviving families of executives of
the Company in comparable positions under such plans, programs and policies
relating to family death benefits, if any.
(b) Termination Upon Disability. If the Executive's employment
is terminated by reason of the Executive's Disability, the Executive shall be
entitled to receive additional disability and other benefits at least equal to
those provided by the Company to disabled employees and/or their families in
accordance with such plans, programs and policies relating to disability, if
any. In the event of the Executive's disability, the Executive will no longer be
required to perform his duties hereunder and will relinquish such duties to a
successor selected by the Board of Directors.
(c) Termination Other than by Death or Disability. If the
Executive's employment with the Company terminates for any reason other than as
a result of the Executive's resignation, or as a result of termination by the
Company upon Executive's conviction of a felony, the following shall become
effective on the Termination Date:
(i) the Company shall pay to the Executive an amount
equal to two years of his Base Salary on the Termination Date plus any unpaid
Signing Bonus; less usual payroll taxes and other deductions, such amounts being
payable in a lump sum within ten days following the Termination Date.
(ii) the Company shall promptly (within ten days of
submission of an invoice therefor) reimburse Executive for COBRA payments made
by Executive after the Termination Date;
(iii) the Option Shares shall immediately vest and
Executive shall be entitled to purchase one hundred percent (100%) of the Option
Shares at any time as provided in the Stock Option Agreement.
7. Non-Competition. The term "Executive Capacity" means the Executive
serving, directly or indirectly, as a key executive with substantially
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the same duties as described herein to any company involved in hair removal
products, services or systems. (the "Competitors").
At all times during the Executive's employment with the Company and for
the period of two years after the Executive's employment is terminated with the
Company, the Executive shall not serve in an Executive Capacity to any
Competitor.
The Company and the Executive agree that none of the forgoing shall be
deemed to prohibit the Executive from acquiring, solely as an investment and
through open market purchases, securities of a Competitor that are registered
under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended,
and that are listed or admitted for trading on any United States national
securities exchange or that are quoted on the National Association of Securities
Dealers Automated Quotations System or any similar system of automated
dissemination of quotations of securities prices in common use, so long as the
Executive is not a member of any "control group" (within the meaning of the
rules and regulations of the Securities and Exchange Commission) of any such
Competitor.
8. Non-Solicitation of Executives and Customers. The Executive shall
not at any time during his employment hereunder and for the applicable period
following termination of employment set forth in Section 7, directly or
indirectly, for himself or for any other person, firm, corporation, partnership,
association or other entity, recruit, solicit or induce, or attempt to recruit,
solicit or induce any employee or former employee of the Company, its
affiliates, or predecessors-in-interest to become employed by a Competitor,
unless such employee or former employee has not been employed by the Company,
its affiliates, or predecessors-in-interest for a period of not less that six
months.
9. Non-Disclosure. Except as expressly permitted by the Company, or in
connection with the performance of his duties hereunder, the Executive shall not
at any time during his employment by the Company or for two years after the
termination of such employment for any reason,disclose,directly or indirectly,
to any person, firm, corporation, partnership, association or other entity any
Confidential Information.
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"Confidential Information" means all information of a proprietary
nature relating to (i) the Company's Business, and (ii) the business of the
clients of the Company ("Company Clients") known or made available to the
Company and such of its authorized agents, employees, and other contacts as may
be necessary for the same to be utilized, including, but not by way of
limitation: names, addresses, telephone numbers, contact persons and other
identifying information relating to Company Clients and the customers of Company
Clients; compilations and lists of Company Clients and the customers of Company
Clients; information with respect to the needs and requirements of various
Company Clients and the customers of Company Clients including the dates on
which any contracts between such parties will terminate and be subject to
renewal or on which renewal orders will be placed; rate and price information on
products and services provided by the Company or by Company Clients;
compilations and lists of suppliers, contractors or vendors of the Company or of
Company Clients; information with respect to the Company's relationship with its
suppliers, contracts or vendors, including the dates on which and contracts held
by the Company with its suppliers will terminate or be subject to renewal; all
business records and personal data relating to the employees of the Company or
of the Company's Clients, including compensation arrangements of such employees;
information contained in any confidential documents prepared by or for the
Company and its employees or agents at the Company's expense, on Company time or
otherwise in furtherance of the Company's Business, including but not limited to
any such documents prepared for or on behalf of Company Clients; financial
information with respect to the Company Business or the business of the Company
Clients; any trade secrets, know-how or confidential information used or
obtained by the Executive in the course of his employment hereunder from any
officer, employee, agent or representative of the Company or of the Company
Clients, including, without limitation, technical information,data or know-how
respecting the design, cost, manufacture, processing, marketing or sale of
products; and information with respect to any business system, program or report
(whether or not computerized) used or developed by the Company or Company
Clients.
Such information and compilations of information shall be contractually
subject to protection under this Agreement whether or not such information
constitutes a trade secret and is separately protectable at law or in equity as
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a trade secret; provided, however, that "Confidential Information" does not
include: (i) any information that is, nor shall become generally known to the
industry or the public through no fault of the Executive,(ii) any information
received in good faith from any other person who has the right to disclose such
information,(iii) any information that the Executive can demonstrate was within
his legitimate possession prior to the time if his employment by the Company, or
(iv) any confidential information which does not constitute a trade secret after
two (2) years from termination or expiration of the Executive's employment with
the Company.
The Executive acknowledges and agrees that the Confidential Information
is a valuable, special and unique asset of the Company's business.
10. Books and Records. All books, records and accounts relating in any
manner to the Company's customers or suppliers, whether prepared by the
Executive or otherwise coming into the Executive's possession, and all copies
thereof in the Executive's possession, shall be the exclusive property of the
Company and shall be returned immediately to the Company upon termination of the
Executive's employment hereunder or upon the Company's request at any time.
11. Successors.
(a) This Agreement is personal to the Executive and, without
the prior written consent of the Company, the benefits accrued and payable
hereunder shall not be assignable by the Executive otherwise than by will or the
laws of descent and distribution. This Agreement shall inure to the benefit of
and be enforceable by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors.
(c) In the event that another corporation or unincorporated
entity becomes a Successor (as such term is defined below) of the Company, then
the Successor shall, by an agreement in form and substance reasonably
satisfactory to the Executive, expressly assume and agree to perform this
Agreement in the same manner and to the same extent as the
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Company be required to perform if there had been no Successor. As used herein,
the term "Successor" means another corporation or unincorporated entity or group
of corporations or unincorporated entities which (i) acquires all or
substantially all of the assets of the Company, or (ii) is the surviving entity
as a result of the merger of the Company into such entity.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey, without reference to
principles of conflict of laws.
The captions of these Agreement are not part of the provisions
hereof and shall have no force or effect.
This Agreement may not be amended or modified otherwise than
by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
If to the Company:
▇▇▇▇/Biophile International Corporation
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
or to such other address as either party shall have furnished to the other in
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writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) If any term or provision of the Agreement or the
application hereof any person or circumstances shall, to any extent, be invalid
or unenforceable, the remainder of this Agreement, or the application of such
term or provision to persons or circumstances other than those to which it is
held invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by law. Moreover, if a court or competent jurisdiction deems any
provision hereof to be too broad in time, scope or area, it is expressly agreed
that such provision shall be enforced to a less degree which the court or
competent jurisdiction would find enforceable.
(d) The Company may withhold from any amounts payable under
this Agreement such federal, state and local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) This Agreement contains the entire understanding of the
Company and the Executive with respect to the subject matter hereof.
(f) Any waiver of any breach of this Agreement shall not be
construed to be a continuing waiver of consent to any subsequent breach by
either party hereto.
(g) In the event that either party hereto brings suit for the
collection of any damages resulting from, or the injunction of any action
constituting, a breach of any of the terms or provisions of this Agreement, then
the party found to be at fault shall pay all reasonable court costs and
attorney's fees of the other.
(h) The Executive shall not delegate the employment
obligations pursuant to this Agreement to any other person.
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IN WITNESS WHEREOF, the Executive has hereunto set his hand, and the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first written above.
COMPANY:
▇▇▇▇/Biophile International Corporation
By:_____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇,▇▇
Title: CEO and Chairman of the Board
EXECUTIVE:
______________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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