EXECUTIVE EMPLOYMENT AGREEMENT
Executive Employment Agreement ("Agreement") is made and effective this 15h day
of November, 1999, by and between Power Save International, Inc., a Delaware
corporation (the "Company") and Scott Balmer, ("Executive").
WHEREAS, the Company wishes to assure itself of the benefit of Executive's
services, experience and loyalty, and Executive has indicated his willingness to
provide his services, experience and loyalty on the terms and conditions set
forth herein:
NOW, THEREFORE, in consideration of the mutual covenants herein contained, and
other good and valuable consideration, the parties hereto agree as follows:
1. Employment.
Company hereby agrees to initially employ Executive as its Chief Operating
Officer and Executive hereby accepts such employment in accordance with the
terms of this Agreement and the terms of employment applicable to regular
employees of Company. In the event of any conflict or ambiguity between the
terms of this Agreement and terms of employment applicable to regular employees,
the terms of this Agreement shall control. Election or appointment of Executive
to another office or position, regardless of whether such office or position is
inferior to Executive's initial office or position, shall not be a breach of
this Agreement.
2. Duties of Executive.
The duties of Executive shall include the performance of all of the duties
typical of the office held by Executive and such other duties and
responsibilities as may be assigned by the Chairman of the Board of Directors
(the "Chairman") and/or the Directors of the Company.
3. Exclusivity.
(a) For so long as Executive is employed by Company, Executive shall, except as
may from time to time be otherwise agreed in writing by the Company, devote his
full time working hours, ability and attention to the business of the Company,
shall faithfully serve the Company, shall in all respects conform to and comply
with the lawful and reasonable directions and instructions given to him by the
Directors of the Company having authority over him and shall perform all duties
in a professional, ethical and businesslike manner and use his best efforts to
promote and serve the interests of the Company.
(b) For so long as Executive is employed by Company, Executive shall not,
directly or indirectly, render services to any other person or organization for
which he receives compensation without the prior written consent of the
Chairman, or otherwise engage in activities which would interfere significantly
with his faithful performance of his duties hereunder. Executive may perform
inconsequential services without direct compensation thereof or in connection
with the management of personal investments; provided that such activity does
not contravene the provisions of Section 7 hereof.
4. Compensation.
Executive shall be paid compensation during this Agreement as follows:
(a) An initial base salary of _________ per year, payable in equal installments
according to the Company's regular payroll schedule. The base salary shall be
adjusted at the end of each year of employment at the discretion of the Board of
Directors. Company shall be entitled to deduct or withhold all taxes and charges
that Company may be required to deduct or withhold from salary.
(b) An incentive bonus as consideration for Executive's termination of his
current employment to undertake the duties described herein and for the
covenants contained in Sections 7(b) and 7C below. This bonus will be in the
amount of _____________ payable on if Executive is still in the
employ of Company. Company shall be entitled to withhold all taxes and
charges that Company may be required to deduct or withhold from the bonus.
(c)Options pursuant to the Company's Stock Option Plan,
which plan is incorporated by reference as if set
forth herein in full, to purchase __________ shares of
Company Common Stock at an Option Price of ___ per share,
such option to be granted in the event that Executive is
employed by Company on that date.
5. Benefits.
(a) Holidays, Vacation, Sick Leave. Executive shall be entitled to such
holidays, vacation and sick leave as are afforded to senior officers of the
Company under its benefit plans, as and when such plans are adopted (and as
modified from time to time) by the Board of Directors.
(b) Medical Insurance. During this Agreement, company agrees to reimburse
Executive for the costs of continuing Executive" medical coverage with his prior
employer under applicable Federal Law (COBRA coverage). Executive shall be
responsible for payment of any federal or state income tax imposed upon these
benefits. (c) Expense Reimbursement. Executive shall be entitled to
reimbursement for all reasonable expenses, including travel and entertainment,
incurred by Executive in the performance of Executive's duties. Executive will
maintain records and written receipts as required by Company's policies and
procedures and as may be reasonable requested by the Chairman to substantiate
such expenses.
6. Rights to Work Product.
In consideration of Executive's original and continuing employment under this
Agreement, it is agreed and understood that Executive shall disclose to Company
all inventions, improvements, designs, information, reports, studies, other
tangible or intangible material of any nature whatsoever produced or as a result
of any of the services performed by Executive hereunder and all copies of any of
the foregoing. Executive hereby irrevocably grants, assigns, transfers and sets
over unto Company all right, title and interest of any kind, nature or
description in and to the above referenced work product and Executive shall not
be entitled to make use of the work product except as may be expressly permitted
in this Agreement. Executive agrees to execute: (i) any and all documents and;
(ii) provide all such assistance; as is reasonably requested by Company in
connection with the registration and protection by litigation or otherwise of
any patents, copyrights, trademarks or other proprietary rights in the work
product produced hereunder (including any reissues thereof).
7. Confidential Information and Noncompetition.
(a) Confidential Information. Executive recognizes that the services to be
performed by him/her hereunder are special, unique and extraordinary in that, by
reason of his employment hereunder, he may acquire or has acquired confidential
information and trade secrets concerning the operation of the Company, the use
or disclosure of which could cause Company substantial loss and damages that
could not be readily calculated and for which no remedy at law would be
adequate. Accordingly, in consideration of Executive's original and continued
employment by Company in a capacity in which he may receive or contribute to the
production of confidential information, Executive agrees and acknowledges that
all tangible and intangible information obtained or developed, and in connection
with the performance of this Agreement (including information developed by
Executive as part of his/her performance of services) which is so designated by
Company, shall be considered to be confidential and proprietary information
which contains valuable business information and trade secrets of company
relating to its business practices and critical to its competitive position in
the marketplace.
(i) Information publicly known that is generally employed by the trade at or
after the time Executive first learns of such information, or generic
information or knowledge which Executive would have learned in the course of
similar employment or work elsewhere in the trade, shall not be deemed part of
the company confidential information. (ii) All notes, materials or records, of
any kind, in any way incorporating or reflecting any of the Company confidential
information shall belong exclusively to company and Executive agrees to turn
over all copies of such materials in his control to Company upon termination of
this Agreement.
(iii) Executive agrees during the term of this Agreement and thereafter to
hold in confidence and not to directly or indirectly reveal, report,
publish, disclose or transfer any of the Company confidential
information to any person or utilize any of the Company confidential
information for any purpose, except in the course of his/her work for
the Company.
(iv) Executive agrees to notify Company promptly and in writing of any
circumstances of which Executive has knowledge relating to any possession, use
or knowledge of any portion of the Company confidential information by any
unauthorized person.
(b) No Competing Employment. For so long as Executive is employed by Company,
Executive shall not, unless he receives prior written consent from the Board of
Directors, directly or indirectly, own an interest in, manage, operate, join,
control, lend money or render financial or other assistance to or participate in
or be connected with, as an officer, employee, partner, stockholder, consultant
or otherwise, any individual, partnership, firm, corporation or other business
entity that materially competes with the Company.
(c) No Interference. During the term of this Agreement, Executive shall not,
whether for his own account or for the account of any other individual,
partnership, firm, corporation, or other business organization (other than the
Company), intentionally solicit, endeavor to entice away from Company or
otherwise interfere with the relationship of Company with, any person who is
employed by or otherwise engaged to perform services for Company (including, but
not limited to, any employees of Company's venture partners and independent
sales representatives or organizations) or any person or entity who is, or was
within the then most recent twelve (12) month period, a customer or client of
the Company.
8. Term and Termination
(a) The Initial Term of this Agreement shall commence on the effective date
noted above and it shall continue in effect for a period of __ year(s).
Thereafter, the Agreement shall be renewed upon the mutual written agreement of
Executive and Company. In the event that Company shall terminate this Agreement
without cause during the Initial Term, Executive shall, as severance pay and in
lieu of damages, be entitled to be paid an amount equal to the unpaid portion of
Executive's base annual salary and incentive bonus payment as well as
continuation of his/her medical benefits payments. In the event of such
termination, Executive shall not be entitled to any other compensation then if
effect, prorated or otherwise.
(b) This Agreement and Executive's employment may be terminated by Company at
its discretion effective an any time after the Initial Term, provided that in
such case, Executive shall be paid fifty percent (50%) of Executive's then
applicable base annual salary during this Agreement as well as continuation of
his medical benefits payments for a period of six (6) months. In the event of
such a discretionary termination, Executive shall not be entitled to receive any
incentive salary payment or any other compensation then in effect, prorated or
otherwise.
(c) This Agreement may be terminated by Executive at Executive's
discretion by providing at least ninety (90) days prior written notice to the
Company. In the even of termination by Executive pursuant to this subsection,
Company may immediately relieve Executive of all duties and immediately
terminate this Agreement, provided that Company shall pay Executive
at the then applicable base salary rate to the termination date
included in Executive's original termination notice.
(d) Company shall have the right to terminate Executive's employment immediately
for Cause. "Cause" shall mean: (1) conviction of a felony involving moral
turpitude, if the Board, in its sole discretion (reasonably applied) believes
that such conviction will have a significant adverse effect upon Executive's
ability to perform under this Agreement or a significant adverse effect upon the
Company; (11) commission of a material dishonest act or common law fraud against
Company or either of its venture partners or any parent, subsidiary or affiliate
of a venture partner; (III) habitual drunkenness or narcotic dependence during
working hours or otherwise materially interfering with Executive's duties
hereunder; (IV) excessive absenteeism not related to illness, sick leave or
vacations, but only after notice from Company followed by a repetition of such
excessive absenteeism; (V) any act or omission that constitutes a material
breach by Executive of his obligations or agreements under this Agreement or any
other written agreement between Executive and Company, or by the failure or
refusal of Executive to satisfactorily perform any duties reasonable required
hereunder, but only after notification by Company of such breach and a failure
or refusal of Executive to correct such breach within thirty (30) days of such
notification (other than by reason of the incapacity of Executive due to
physical or mental illness). In event of termination of the Agreement pursuant
to this Subsection 8(d), Executive shall be paid only at the then applicable
base salary rate up to and including the date of termination. Executive shall
not be paid any incentive salary payments or other compensation, prorated or
otherwise.
(e) In the event Company is acquired, or is the non-surviving party in a merger,
or sells all or substantially all of its assets, this Agreement shall not be
deemed terminated as a result thereof.
9. Notices.
Any notice required by this Agreement or given in connection with it, shall be
in writing and shall be given to the appropriate party by personal delivery or
by certified mail, postage prepaid, or recognized overnight delivery services:
If to Company:
Power Save International, Inc.
5800 NW 64 Ave., Bldg. 26 #109,
Tamarac, FL 33319
Attn: Chairman and Treasurer
If to Executive:
Scott Balmer
5800 NW 64 Ave., Bldg. 26 #109,
Tamarac, FL 33319
10. Entire Agreement.
This Agreement constitutes the entire Agreement between the parties with respect
to the subject matter hereof and supersedes and merges all prior proposals,
understandings and all other agreements, oral or written between the parties
relating to such subject matter. Each party hereby acknowledges that it has not
entered into this Agreement in reliance upon any representation made by the
other party and not embodied herein.
11. Governing Law.
This Agreement shall be construed and enforced in accordance with the laws of
the State of Florida as if made in Florida for performance entirely
within the State of Florida.
12. Headings.
Headings used in this Agreement are provided for convenience only and shall not
be used to construe meaning or intent.
13. Assignment.
(a) By Executive. Neither this Agreement nor any right, duty, obligation or
interest hereunder may be assigned or delegated by Executive without the prior
express written approval of Company, which may be withheld by Company at
Company's absolute discretion.
(b) By Company. This Agreement and all of Company's rights and obligations
hereunder may be assigned, delegated or transferred by it to (I) any venture
partner of Company or to any parent, subsidiary or affiliate of any venture
partner; or (II) any business entity which at any time by merger, consolidation
or otherwise acquires all or substantially all of the assets of the Company or
to which Company transfers all or substantially all of its assets. Upon such
assignment, delegation or transfer, any such partner, parent, subsidiary,
affiliate or other business entity shall be deemed to be substituted for all
purposes as the Company hereunder. (c) Binding Effect. This Agreement shall be
binding upon, and inure to the benefit of, the parties hereto, any successors to
or assigns of Company and Executive's heirs and the personal representatives of
Executive's estate.
14. Severability.
If any term of this Agreement is held by a court of competent jurisdiction to be
invalid or unenforceable, then this Agreement, including all of the remaining
terms, will remain in full force and effect as if such invalid or unenforceable
term had never been included.
15. Arbitration.
(a) In the event that a dispute arises concerning the terms of this Agreement
the aggrieved party shall refer such dispute to arbitration as specified herein.
Such arbitration shall be held in the County of Baltimore, Virginia, in
accordance with the rules of the American Arbitration Association ("AAA Rules")
then in effect. Judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction over the parties. The arbitrators shall
have the authority to grant any legal remedies that would be available in any
judicial proceeding instituted to resolve a disputed matter.
(b) The prevailing party in an action brought against the other to enforce the
terms of this Agreement or any rights or obligations hereunder, shall be
entitled to receive its reasonable costs and expenses of bringing such action
including its reasonable attorneys fees.
(c) No action, regardless of form, arising out of this Agreement, shall be
brought by Executive more than two (2) years after such cause of action shall
have accrued.
16. Miscellaneous.
(a) This Agreement may not be modified or altered except by a written instrument
executed by both parties. (b) The parties agree that each provision in this
Agreement is deemed equally essential to each party. (c) The failure of either
of the parties to insist upon strict performance of any of the provisions of
this Agreement shall not be construed as the waiver of any subsequent default of
a similar nature. (d) Either party shall be excused from performance and shall
not be liable for any delay in delivery or for non-delivery, in whole or in
part, caused by the occurrence of any contingency beyond the control of the
parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
Power Save International, Inc. Executive
By: ________________________ By: __________________________
Name: ______________________ Name: ________________________
Title: _______________________
Address:
5800 NW 64 Ave., Bldg 26 #109
Tamarac, FL 33319