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EXHIBIT 10.2
HOWARD KEEP EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the 14th day of April, 2000,
between Eco-form International, Inc. (the "Company"), and Howard Keep (the
"Executive") (hereinafter referred to collectively as the "Parties").
WITNESSETH:
WHEREAS, the Executive is employed by the Company and the services of
the Executive, his managerial and financial experience, and his knowledge of the
affairs of the Company are of great value to the Company; and
WHEREAS, the Company deems it essential that it have the advantage of
the services of the Executive for a given period;
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties agree as follows:
1. The Company hereby employs the Executive as the President and
Chief Executive Officer of the Company, with the powers and
duties in that capacity to be those powers and duties
customary to such positions in similar publicly held companies
or as defined by the Board of Directors of the Company, and
the Executive hereby accepts such employment.
2. The term of initial employment pursuant to this Agreement
shall be five (5) years commencing on the closing of the
merger between Eco-form International, Inc. and Eco-form,
Inc., April 14, 2000, and ending on April 14, 2005 ("Term"),
or until such earlier date as may be specified in a written
notice delivered by either the Company or the Executive to the
other party, in accordance with Section 6 hereof, or unless
the Term is extended by mutual written agreement. Executive
shall commit to and perform services for the Company a minimum
of forty (40) hours per work week and Executive's employment
with the Company shall be his primary and principal
occupation.
3. Executive shall receive the following compensation for his
services during the term of initial employment hereunder:
(a) The Executive's base salary shall be Seventy-Two
Thousand Dollars and No Cents ($72,000.00 U.S.D.)
("Base Salary"), or as increased by mutual written
agreement. Said Base Salary shall be accrued from the
closing of the merger between Eco-form International,
Inc. and Eco-form, Inc., April 14, 2000 until the
Company receives One Million Dollars ($1,000,000
U.S.D.) in mezzanine financing, upon which time
Executive will be paid the accrued Base Salary and
thereafter Executive's Base Salary will be paid in
regular semi-monthly installments in accordance with
the employee payment practices of the Company. The
Executive shall also receive an annual performance
bonus ("Performance Bonus") of Thirty One Thousand
Five Hundred Dollars and No Cents ($31,500.00 U.S.D.)
("Full Performance Bonus"). The Executive may also
receive an annual performance bonus ("Performance
Bonus"), not to exceed Thirty One Thousand Five
Hundred Dollars and No Cents ($31,500.00 U.S.D.).
Said Performance Bonus will be based upon the
Company's written performance objectives
("Performance Objectives"). In addition,
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Executive shall receive an additional Twenty Thousand
Dollars and No Cents ($20,000.00 U.S.D.) ("Nominal
Performance Bonus") if all of the Company's annual
written performance objectives ("Performance
Objectives") are met. Said written Performance
Objectives will be issued to all employees on or
before April 30 of each year and will provide a
description of the Company's Performance Objectives.
Said determination of the Performance Bonus shall
occur annually on or before April 30th. Executive
shall also receive a signing bonus ("Signing Bonus"),
which shall be Twenty Thousand Dollars and No Cents
($20,000.00 U.S.D.) and shall be payable upon the
Company's completion of its initial public offering
and a minimum of Five Million Dollars and No Cents
($5,000,000.00 U.S.D.) of equity has been raised and
received by the Company.
(b) The Executive shall participate in any incentive
compensation plan, pension or profit-sharing plan,
stock purchase or stock option plan, annuity or group
insurance plan, medical plan, and other benefits
maintained by the Company for its employees or
Company's subsidiary employees ("Benefits"). If the
term of initial employment hereunder terminates on a
date other than the end of the Company's fiscal year,
the payment which the Executive receives under the
applicable incentive compensation plan will be
prorated accordingly.
(c) Without limitation to participation in the Benefits
provided for in Section 3(b), Executive shall, at a
minimum, receive the following:
(i) health care coverage with the option of
a PPO or HMO;
(ii) life insurance coverage of three (3)
times Executive's annual salary with
Executive's wife and children as
beneficiaries of said coverage; and
(iii) executed stock option agreement, subject
to mutually agreed upon terms.
4. The Company shall reimburse the Executive for all reasonable
expenses incurred by him in the performance of such duties
hereunder as may be required by the Chairman, including, but
not limited to, transportation expense, accommodation,
entertainment, and other expenses incurred in connection with
the business of the Company, on the same basis as such
expenses have been paid in the past by the Company.
5. Except as otherwise provided herein, the Executive agrees to
devote in good faith his full time and efforts to the services
which he is required to render to the Company hereunder, and
agrees to travel to the extent he or the Chairman deems
necessary to perform such duties. To the extent that the
Company requires a permanent relocation, the Company shall, on
behalf of the Executive, provide for the following:
(a) hiring of a relocation company which shall sell
Executive's current residence and assist Executive
with locating a new residence;
(b) hiring of a moving company to transport Executive's
and family's possessions to the new residence;
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(c) payment of the closing costs of the new residence and
up to one (1) point for loan fees; and
(d) payment for up to one hundred twenty (120) days of
temporary housing for Executive and family.
6. This Agreement may be terminated as follows:
(a) by the Company immediately for "cause" in which case
Executive shall receive no Severance Payments (as
defined below);
(b) by the Company immediately "without cause" with the
Executive to receive the Severance Payments (as
defined below);
(c) by mutual written consent on the terms stated within
the mutual written consent;
(d) by Executive providing ninety (90) days' written
notice to Company in which case the Executive shall
receive no Severance Payments (as defined below); or
(e) In the event that the Executive shall be unable to
perform services pursuant to this Agreement solely as
a result of illness or mental or physical disability,
and such failure or disability shall exist for any
consecutive six (6) month period, the Company shall
have the option to terminate this Agreement at any
time that such disability or failure continues to
exist by giving thirty (30) days' written notice to
the Executive; provided, however, that in the event
the Company shall terminate this Agreement pursuant
to this Paragraph, and in consideration of services
to be rendered hereunder by the Executive, the
Company agrees to pay to the Executive the Severance
Payments (as defined below);
(f) Severance Payments shall be defined as follows:
(i) if termination is "without cause," Executive
shall receive one (1) year of annual salary
plus fifty percent (50%) of Executive's Nominal
Performance Bonus (or Twelve Thousand Six
Hundred Dollars and No Cents ($12,600.00
U.S.D.)).
(ii) if termination results within one (1) year from
a change in control of the Company and is
"without cause," Executive shall receive two
(2) years of annual salary plus one (1) year of
Executive's Nominal Performance Bonus (or
Twenty Five Thousand Two Hundred Dollars and No
Cents ($25,200.00 U.S.D.)).
7. Notwithstanding the above, the Executive shall be entitled to
receive as paid time each of the following holidays:
Thanksgiving (2 days), Christmas (2 days), New Year's Day,
Memorial Day, Independence Day, Labor Day, five (5) "floating"
personal days, and any other benefits maintained by the Company
for its employees, provided that the taking of said holidays
does not adversely affect the Company. In addition, the
Executive shall be entitled to take a total of twenty (20) days
of paid vacation, provided that the taking of said vacation
does not adversely affect the Company, and provided that the
Executive has obtained the approval of the Chief Executive
Officer as to the timing and length of absence
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from the Company's office. If Executive does not take the
aforementioned holidays, vacation and/or personal days during
the fiscal year, then Executive shall be paid, at the end of
each fiscal year, a pro-rated amount of his Base Salary for
unused holiday, vacation and/or personal days.
8. By reason of the special and unique nature of the services
hereunder, it is agreed that neither party hereto may assign
any interest, rights or duties which it or he may have in this
Agreement without the prior written consent of the other party,
except that upon any merger, liquidation, or sale of all or
substantially all of the assets of the Company to another
Company, this Agreement shall inure to the benefit of and be
binding upon the Executive and the purchasing, surviving or
resulting company or companies in the same manner and to the
same extent as though such company or companies were the
Company.
9. In consideration of the Company's employment of Executive,
Executive agrees as follows:
(a) To communicate to Company promptly and fully all
inventions, discoveries, concepts and ideas, whether
patentable or not, including but not limited to
hardware and apparatus, processes and methods,
formulas, computer programs and techniques, as well
as improvements thereof and knowledge related thereto
(hereinafter collectively referred to as
"DEVELOPMENTS"), conceived, completed, or reduced to
practice (whether solely by Executive or jointly with
others) during the period of Executive's employment
by Company,
(i) which are related to the present or prospective
business, work or investigations of Company, or
(ii) which result from any work Executive performs
with the use of any equipment, facilities,
materials or personnel of Company, or
(iii) which result from or are suggested by any work
which Executive may do for or on behalf of
Company;
(b) To assign, and does hereby assign, to Company or
Company's designee, Executive's entire right, title and
interest in and to all such DEVELOPMENTS and all
copyrights and mask work rights in such DEVELOPMENTS
and any patent applications filed and patents granted
thereon, including those in foreign countries, both
during Executive's employment by Company and for one
(1) year after termination of Executive's employment if
conceived as a result of and if attributed to the work
done during such employment and relates to a method,
substance, machine, article or manufacture or
improvement therein within the scope of the business of
Company; and to execute any patent papers covering such
DEVELOPMENTS as well as any papers that Company may
consider necessary or helpful in obtaining or
maintaining said patents during the prosecution of
patent applications thereon or during the conduct of
any interference, litigation or any other matter in
connection therewith; all expenses incident to the
filing of any such interference, litigation or other
controversy shall be borne by Company;
(c) Except as Company otherwise consents in writing, not to
use (other than for Company) and not to directly or
indirectly publish or otherwise disclose at any time
(except as Executive's duties to Company may require)
either during or subsequent
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to Executive's employment, any of Company's information
or material which is not generally available to or used
by others or the utility or value of which is not
generally known or recognized as standard practice,
whether or not the underlying detains are in the public
domain, including but not limited to the Company's
inventions, technological developments, "knowhow,"
purchasing, accounting, merchandising, licensing, client
lists and customer information (active, inactive or
prospective), trade secrets, or any information of the
type described herein which Company obtained from
another party and which Company treats as proprietary or
designates as confidential, whether or not owned or
developed by Company ("CONFIDENTIAL INFORMATION"),
whether or not the same was conceived, originated,
discovered or developed, in whole or in part, by
Executive; and
(d) To deliver to Company promptly upon request or on the
date of termination of Executive's employment all
documents, copies thereof and other materials in
Executive's possession pertaining to the business of
Company, including, but not limited to, CONFIDENTIAL
INFORMATION, and thereafter to promptly return documents
and copies thereof and other materials in Executive's
possession pertaining to the business of Company and
originating with Company that come into Executive's
possession;
10. Both Parties hereby agree that they both wish to resolve
promptly and privately of any differences that may arise
without resorting to the high cost and long delays of extensive
court litigation. As such, they agree to resolve their
differences through arbitration pursuant to the Rules of the
American Arbitration Association. Venue and jurisdiction for
said arbitration shall be the County of Detroit, State of
Michigan.
11. This Agreement may be executed in more than one counterpart,
each of which shall constitute one and the same agreement. As
used herein and as required by the context, the singular and
plural shall be deemed to include each other, and each gender
to include all genders.
12. This Agreement constitutes the entire agreement between the
Parties and supersedes all prior negotiations, representations,
understandings, and agreements (oral or written) related to or
concerning the subject matter hereof. No amendment to, consent
provided for, or waiver of any provision of this Agreement
shall be effective unless in writing and signed by the Parties.
This Agreement represents the full and complete understanding
between the Parties with respect to the subject matter hereof
and supersedes all prior representations and understandings,
whether oral or written.
13. Except as stated in Section 6, this Agreement cannot be
changed, modified, released, discharged, abandoned or otherwise
terminated, in whole or in part, except by an instrument in
writing signed by both Parties.
14. Except to the extent that they call for the personal service of
the Executive, the obligations under this Agreement shall be
binding upon the Parties' heirs, executors, administrators, or
other legal representatives or assigns.
15. Notwithstanding the termination of this Agreement, Sections 9,
10 and 18 shall survive such termination.
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16. The waiver by either Party of a breach of any provision of this
Agreement will not operate or be construed as a waiver of any
other or subsequent breach by the other Party.
17. If any part of this Agreement is found invalid or
unenforceable, that part will be amended to achieve as nearly
as possible the same economic effect as the original provision
and the remainder of this Agreement will remain in full force.
18. This Agreement will be governed by and construed in accordance
with the laws of the United States and the State of Michigan.
Venue and jurisdiction shall, at all times, be the County of
Detroit, State of Michigan.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and the Executive has hereunto set his
signature as of the day and year first above written.
Eco-form International, Inc. ("Company") Howard Keep ("Executive")
By: ________________________________ By: _____________________
________________, Chairman Howard Keep
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