Employment Agreement - Digital Angel Corp. and James P. Santelli
THIS AGREEMENT (Agreement) made and entered into as of this 1st day of April, 2002, by and between DIGITAL ANGEL CORPORATION, a Delaware corporation (Company) and JAMES P. SANTELLI (Executive).
Executive has been and presently is employed by Company as its Vice President, Finance and Chief Financial Officer. The parties have previously entered into a formal employment agreement dated September 8, 2000 covering the terms and conditions of such employment. The parties desire to amend such agreement and to set forth in this document such agreement, as hereby amended, in its entirety.
A. The Executive has accepted the Board of Directors appointment as the Companys Chief Financial Officer.
B. The Company desires to assure that Executive provides services to the Company as its employee and that such employment arrangement have an initial term through March 31, 2005, and Executive desires to be employed by the Company, subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the respective agreements of the Company and Executive set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and Executive, intending to be legally bound, agree as follows:
1. Employment. The company hereby employs Executive, and Executive accepts such employment and agrees to perform services for the Company, for the period and upon the other terms and conditions set forth in this Agreement. The Executive shall serve in the employ of the Company as Chief Financial Officer and shall serve in any other capacity in the employ of the Company and its subsidiaries to which the Executive may from time to time be elected or appointed.
2. Term of Employment. Unless terminated at an earlier date in accordance with Section 9 of this Agreement, the term of Executives employment hereunder shall be for a period of three years, commencing upon the date hereof. The term of Executives employment under this Agreement shall automatically be renewed for successive additional one year terms on each anniversary of the commencement of Executives employment under this Agreement, beginning with the April 1, 2003 anniversary date, each of which terms shall be added at the end of the then existing term (taking into account any prior extensions or failures to extend), unless either party notifies the other at least 60 days prior to an anniversary date of this Agreement. Such notice, if given by either party and not withdrawn prior to the end of the applicable year, shall be deemed a termination of Executives employment under this Agreement.
3. Position and Duties.
(a) Service with Company. During the term of Executives employment with the Company, Executive agrees to perform such reasonable employment duties as the Board of Directors of the Company shall assign to him from time to time. Executive shall be an executive officer of the Company, Executives title shall be Chief Financial Officer, and he shall assume and discharge the responsibilities of such offices as set forth in the Companys Bylaws or as otherwise determined by the Companys Chief Executive Officer and/or Board of Directors.
(b) Performance of Duties; Performance Review. Executive agrees to serve the Company faithfully and to the best of his ability and to devote his full time, attention and efforts to the business and affairs of the Company during his employment by the Company. Executive hereby confirms that he is under no contractual commitments inconsistent with his obligations set forth in this Agreement. While he remains employed by the Company, Executive may participate in other business activities, including, without limitation, reasonable charitable activities and personal investment activities, so long as such activities do not interfere with the performance of his obligations under this Agreement.
(a) Base Salary. The Company agrees to pay the Executive for his services hereunder a base salary (the Base Salary), which Base Salary shall be paid in accordance with the Companys normal payroll procedures and policies. Effective on the date of this Agreement, the Company shall pay to the Executive a Base Salary at the rate of $175,000 per annum, subject to any required deductions and withholdings.
(b) Benefits. During the term of Executives employment with the Company, Executive shall be entitled to participate in any of the Companys benefit and deferred compensation plans or programs as are from time to time available to officers of the Company, including profitsharing, medical, dental, and health plans, life and disability insurance plans and supplemental retirement programs (provided, however, that the Executives benefits may be modified or the Executive may be denied participation in any such plan or program because of a condition or restriction imposed by law or regulation or thirdparty insurer or other provider relating to participation of officers). The Company provides no assurance as to the adoption or continuance of any particular employee benefit plan or program, and, except as set forth below, Executives participation in any such plan or program shall be subject to the provisions, rules and regulations applicable thereto.
(c) Other Perquisites. The Executive shall be entitled to vacation, office, furniture, and an executive assistant in accordance with the past practices of the Company. In addition, the Company will pay or reimburse Executive for all reasonable and necessary
outofpocket expenses incurred by him in the performance of his duties under this Agreement, subject to the Companys normal policies for expense verification.
5. Confidential Information. Except as permitted by the Companys Board of Directors, Executive shall not divulge, furnish or make accessible to anyone or use in any way (other than in the ordinary course of the business of the Company) any confidential or secret knowledge or information of the Company that Executive will acquire during the period of his employment by the Company, whether developed by himself or by others, concerning any (i) trade secrets, (ii) confidential or secret designs, processes, formulae, plans, devices or material (whether or not patented or patentable) directly or indirectly useful in any aspect of the business of the Company, (iii) customer or supplier lists of the Company, (iv) confidential or secret development or research work of the Company, or (v) other confidential information or secret aspects of the business of the Company. Executive acknowledges that the abovedescribed knowledge or information constitutes a unique and valuable asset of the Company and represents a substantial investment of time and expense by the Company, and that any disclosure or other use of such knowledge or information other than for the sole benefit of the Company would be wrongful and would cause irreparable harm to the Company. During the term of this Agreement, Executive will refrain from any acts or omissions that would reduce the value of such knowledge or information to the Company. The foregoing obligations of confidentiality shall not apply to any knowledge or information that (x) is now or subsequently becomes generally publicly known in the form in which it was obtained from the Company, (y) is independently made available to Executive in good faith by a third party who has not violated a confidential relationship with the Company, or (z) is required to be disclosed by legal process, other than as a direct or indirect result of the breach of this Agreement by Executive.
6. Ventures. If, during Executives employment, Executive is engaged in or associated with the planning or implementing of any project, program or venture involving the Company and a third party or parties, all rights in such project, program or venture shall belong to the Company. Except as approved by the Companys Board of Directors, Executive shall not be entitled to any interest in such project, program or venture or to any commission, finders fee or other compensation in connection therewith other than the compensation to be paid to Executive as provided in this Agreement. Executive shall have no interest, direct or indirect, in any vendor or customer of the Company, unless such interest has been disclosed to and approved by the Companys Board of Directors. Notwithstanding the foregoing, however, ownership by Executive, as a passive investment, of less than 3% of the outstanding shares of capital stock of any corporation listed on a national securities exchange or publicly traded in the overthe counter market shall not constitute a breach of this Section 6.
7. Noncompetition Covenant.
(a) Agreement Not to Compete. During the term of Executives employment by the Company and for a period of 12 consecutive months from the date of termination of such employment (whether such termination is with or without cause, or whether such termination is occasioned by Executive or the Company), Executive shall not, directly or indirectly, in any place in North America, engage in the business that the Company has engaged in at the time of the termination of Executives employment or any part of such business, including the design,
development, manufacture, distribution, marketing, leasing or selling of animal identification systems, in any manner or capacity, including, but not limited to, as a proprietor, principal, agent, partner, officer, director, stockholder, employee, member of any association, consultant or otherwise.
(b) Agreement Not to Hire. During the term of Executives employment by the Company and for a period of 12 consecutive months from the date of termination of such employment, Executive shall not, directly or indirectly, hire, engage or solicit any person who is an employee of the Company.
(c) Limitation on Covenant. The ownership by Executive, as a passive investment, of less than 3% of the outstanding shares of capital stock of any corporation listed on a national securities exchange or publicly traded in the overthecounter market shall not constitute a breach of this Section 7.
(d) Acknowledgment. Executive agrees that the restrictions and agreements contained in this Section 7 are reasonable and necessary to protect the legitimate interests of the Company and that any violation of this Section 7 will cause substantial and irreparable harm to the Company that would not be quantifiable and for which no adequate remedy would exist at law and accordingly injunctive relief shall be available for any violation of this Section 7.
(e) Blue Pencil Doctrine. If the duration or geographical extent of, or business activities covered by, this Section 7 are in excess of what is valid and enforceable under applicable law, then such provision shall be construed to cover only that duration, geographical extent or activities that are valid and enforceable. Executive acknowledges the uncertainty of the law in this respect and expressly stipulates that this Agreement be given the construction which renders its provisions valid and enforceable to the maximum extent (not exceeding its express terms) possible under applicable laws.
8. Work Product; Assignment of Inventions.
(a) Work Product. Executive agrees that, during the term of this employment with the Company:
(i) He will disclose promptly and fully to the Company all works of authorship, inventions, discoveries, improvements, designs, processes, software, or any improvements, enhancements, or documentation of or to the same that he makes, works on or conceives, individually or jointly with others in the course of his employment by the Company or with the use of the Companys time, materials or facilities, in any way related or pertaining to or connected with the present or anticipated business, development, work or research of the Company or which result from or are suggested by any work he may do for the Company and whether produced during normal business hours or on personal time (collectively the Work Product);
(ii) All Work Product of the Executive shall be deemed to be work made for hire within the meaning of 101 of the Copyright Act and all rights to copyright shall be
vested entirely in the Company. If for any reason the Work Product is deemed not to be work made for hire and its rights to copyright are thereby in doubt, this Agreement shall constitute an irrevocable assignment by the Executive to the Company of all right, title and interest in the copyright of all Work Product created under this Agreement. The parties intend that any and all copyright and other intellectual property rights in the Work Product, including without limitation any and all rights of whatever kind and nature now or hereafter to distribute and reproduce such Work Product in any and all media throughout the world, are the sole property of the Company. The Executive hereby agrees to assist the Company in any manner as shall be reasonably requested by the Company to protect the Companys interest in such legal instruments or documents as the Company shall request in order for the Company to register the Companys worldwide copyright and/or the Work Product with the U.S. Copyright Office and to register and protect the Companys copyright or other intellectual property rights in the Work Product throughout the world. Likewise, the Executive hereby agrees to assist the Company by executing such other documents and instruments which the Company deems necessary to enable it to evidence, perfect and protect its rights, title and interest in and to the Work Product.
(iii) Executive shall make and maintain adequate and current written records and evidence of all Work Product, including drawings, work papers, graphs, computer records and any other document which shall be and remain the property of the Company, and which shall be surrendered to the Company upon request and upon the termination of the Executives employment with the Company, regardless of cause.
(b) Assignment of Inventions. Executive agrees that, during the term of this engagement with Company, Executive may make, develop or conceive of inventions, original works of authorship, developments, concepts, improvements or trade secrets, whether or not patentable or registrable under copyright or similar laws, which Executive may solely or jointly conceive or develop to reduce to practice, or cause to be conceived of developed or reduced to practice in connection with the Companys business, products, or research and development or the services provided by the Executive hereunder (collectively referred to as Inventions). The term Inventions further includes any useful process, composition of matter, software, machine, process, discovery, document or improvement which relates to the business activities which Company is or may become engaged. Executive agrees that it will promptly make full written disclosure to the Company, will hold in trust for the sole and exclusive right and benefit of the Company and its nominees, and hereby assigns to the Company, or its designee, in perpetuity, all of Executives right, title, and interest in and to any and all Inventions, including background information necessary to practice such Inventions.
(i) Patent and Copyright Registrations. Company and its nominees shall have the right to use and apply for common law and statutory protections of such Inventions in any and all countries and jurisdictions. Furthermore, Executive agrees to assist the Company, or its designee, any copyrights, patents, mask work rights or other intellectual property rights relating thereto in any and all countries and jurisdictions, including the disclosure to the Company of all pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments
which the Company shall deem necessary in order to apply for and obtain such rights and in order to assign and convey to the Company, its successors, assigns and nominees the sole and exclusive right, title and interest in and to such Inventions, including all rights associated with works of authorship throughout the world, any copyrights, patents, mask work rights, trade secrets, or other intellectual property rights relating thereto or analogous to those set forth herein. Executive further agrees that its obligation to execute or cause to be executed, when it is in its power to do so, any such instrument or papers shall continue after the termination of this Agreement. If the Company is unable, for any reason, to secure Executives 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 Company as above, then Executive hereby irrevocably designate and appoint the Company and its duly authorized officers and agents as Executives agent and attorney in fact, to act for and in Executives behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if executed by Executive. The foregoing rights shall also apply to any divisions, continuations, renewals, reissues and extensions of the foregoing, as applicable, now existing or hereafter filed, issued or acquired.
(ii) Inventions Retained and Licensed. Executive has attached hereto, as Exhibit A, a list describing al inventions, original works of authorship, developments, improvements, and trade secrets which were made by Executive prior to its engagement with the Company, which belong to Executive, which relate to the Companys business, products or research and development, and which are not assigned to the Company hereunder (collectively referred to as Prior Inventions); or, if no such list is attached, Executive represents that there are no such Prior Inventions. If in the course of Executives engagement with the Company, Executive incorporates into any inventions, improvement, development, product, copyrightable material or trade secret any invention, improvement, development, concept, discovery or other proprietary information owned by Executive or in which Executive has an interest, the Company is hereby granted and shall have a nonexclusive, royaltyfree, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such item as part of or in connection with such product, process or machine.
(iii) Inventions Assigned to the United States. Executive agrees to assign to the United States government all of Executives right, title, and interest in and to any and all Inventions whenever such full title is required to be in the United States by a contract between the Company and the United States or any of its agencies.
(iv) Maintenance of Records. Executive agrees to keep and maintain adequate and current written records of all Inventions made by it (solely or jointly with others) during the term of its engagement with the Company. The records will be in the form of notes, sketches, drawings, and any other format that may be specified by the Company. The records will be available to and remain the sole property of the Company at all times.
9. Termination of Employment.
(a) Grounds for Termination. Executives employment shall terminate prior to the expiration of the initial term set forth in Section 2 or any extension thereof in the event that at any time:
(i) Executive shall die;
(ii) The Board of Directors of the Company shall determine that:
(x) Executive has engaged in willful and material misconduct, including fraud or embezzlement, or conviction of a felony or a gross misdemeanor, or has engaged in gross neglect of his duties as an officer or employee of the Company; or
(y) Executive has breached this Agreement in any material respect, which breach is not cured by Executive or is not capable of being cured by Executive within 30 days after written notice of such breach is delivered to Executive.
(iii) The Board of Directors shall determine that Executive has failed, by reason of illness, incapacity or disability, to render services of the character contemplated by this Agreement for at least 180 days during any 360day period;
(iv) The Board of Directors shall terminate Executives employment other than pursuant to clause (ii) above, including delivery of a notice of nonrenewal given by the Company pursuant to Section 2 of this Agreement; or Executive terminates his employment for Good Reason. For purposes of this Agreement, Good Reason means a material breach of this Agreement by the Company not caused by Executive (including, without limitation, a material reduction in Executives duties or responsibilities without Executives consent, or a material diminution in the compensation or benefits payable to Executive) which breach has not been cured within 15 days after written notice thereof by the Executive to the Company; or
(v) The Executive shall terminate his employment other than for Good Reason.
(b) Entitlement to Accrued Compensation. If Executives employment by the Company is terminated by the Company pursuant to Section 9(a)(ii) or by the Executive pursuant to Section 9(a)(v), Executives rights to pay and benefits shall cease on the date his employment under this Agreement terminates, and he shall be paid all accrued Base Salary, any vested deferred compensation (other than pension plan or profitsharing plan benefits, which will be paid in accordance with the applicable plan), any benefits then due under Section 4(b) of this Agreement, accrued vacation pay, and any appropriate business expenses incurred by the Executive in connection with his duties hereunder, all to the effective date of termination (collectively, the Accrued Compensation), but no other compensation or reimbursement of any kind.
(c) Salary Continuation. If Executives employment by the Company is terminated by the Company pursuant to Section 9(a)(i), Section 9(a)(iii), or Section 9(a)(iv), or by the Executive for Good Reason pursuant to Section 9(a)(iv), the Company shall pay to the Executive all Accrued Compensation to the effective date of termination, and the Company shall continue to pay to Executive his then effective Base Salary (less any payments received by Executive from any disability income insurance policy provided to him by the Company) and shall continue to provide all benefits to Executive pursuant to Section 4(b) for the remaining term (including any extensions) of this Agreement. No deduction shall be made by the Corporation under this Section for any compensation earned by the Executive from any other employment or for any other monies otherwise received by the Executive subsequent to termination of employment hereunder
(d) Release. The payment of any amounts to Executive under Section 9(b) or Section 9(c) or otherwise after termination of Executives employment with the Company shall be conditioned upon the Company receiving a full and complete release from Executive of any current or future claims Executive may have against the Company, its officers and directors and other Company affiliates other than (i) with respect to the payment of amounts specifically provided for herein, (ii) pursuant to rights of indemnification under the Companys Certificate of Incorporation or bylaws, or (iii) pursuant to the terms of any employee benefit plan of the Company in which Executive is a participant. If the Company requires that Executive provide the release discussed in the prior sentence as a condition to making any payments hereunder, and if Executive delivers such a release, then the Company shall also be required to give to Executive a full and complete release of any current or future claims the Company may have against Executive other than under Sections 5, 6, 7, 8 and 9(e) of this Agreement.
(e) Surrender of Records and Property. Upon termination of his employment with the Company, Executive shall deliver promptly to the Company all records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks, reports, data, tables, calculations or copies thereof that relate in any way to the business, products, practices or techniques of the Company, and all other property, trade secrets and confidential information of the Company, including, but not limited to, all documents that in whole or in part contain any trade secrets or confidential information of the Company, which in any of these cases are in his possession or under his control.
10. Change of Control.
(a) Notwithstanding any other provision of this Agreement, should a Change of Control (as defined below) occur, Executive, at his sole option and discretion, may terminate his employment under this Agreement at any time within one year after such change of control upon 15 days notice. In the event of such termination, Company shall pay to Executive a severance payment equal to the amount described in section 9(c) as the base amount as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (Code) minus $1.00 which shall be payable no later than one month after the effective date of the Executives termination of employment. In addition, in the event of a Change of Control, all outstanding
stock options held by Executive shall become fully exercisable (to the extent not already exercisable). For purposes of this Agreement, a Change in Control shall be deemed to have occurred if (a) any person or group (within the meaning of Sections 13 (d) and 14(d)(2) of the Exchange Act of 1934 (the 1934 Act), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Corporation is or becomes the beneficial owner (as defined in Rule 13d3 under the 1934 Act), directly or indirectly, of more than 331/3 of the then outstanding voting stock of the Corporation; or (b) at any time during any period of three consecutive years, individuals who at the beginning of such period constituted the Board of Directors (and any new director whose election by the Board or whose nomination for election by the Corporations stockholders was approved by a vote of at least twothirds of the directors then still in office who either were directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority thereof; or (c) the stockholders of the Corporation approve a merger or consolidation of the Corporation with any other corporation, other than a merger or consolidation which would result in the voting securities of the Corporation outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least 80% of the combined voting power of the voting securities of the Corporation or such surviving entity outstanding immediately after such merger or consolidation.
(a) Remedies. Executive acknowledges that it would be difficult to fully compensate the Company for damages resulting from any breach by him of the provisions of Sections 5, 6, 7, 8 and 9(e) of this Agreement. Accordingly, in the event of any actual or threatened breach of such provisions, the Company shall (in addition to any other remedies it may have) be entitled to temporary and/or permanent injunctive and other equitable relief to enforce such provisions, and such relief may be granted without the necessity or proving actual damages.
(b) Arbitration. Except for disputes arising under Sections 5, 6, 7, 8 or 9(e) hereof, all disputes arising under this Agreement shall be submitted to final and binding arbitration in Minneapolis, Minnesota. The arbitrator shall be selected and the arbitration shall be conducted pursuant to the then most recent Employment Dispute Resolution Rules of the American Arbitration Association. The decision of the arbitrator shall be final and binding, and any court of competent jurisdiction may enter judgment upon the award. All fees and expenses of the arbitrator shall be shared equally by Executive and the Company. The arbitrator shall have jurisdiction and authority to interpret and apply the provisions of this Agreement and relevant federal, state and local laws insofar as necessary to the determination of the dispute and to remedy any breaches of the Agreement and/or applicable laws, but shall not have jurisdiction or authority to award punitive damages or alter in any way the provisions of this Agreement. The arbitrator shall have the authority to award attorneys= fees and costs to the prevailing party. The parties agree that this arbitration provision shall be in lieu of any claims procedure which may be required under federal law.
(a) Governing Law. All matters relating to the interpretation, construction, validity and enforcement of this Agreement shall be governed by the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule (whether of the State of Minnesota or any other jurisdiction) that would cause the application of laws of any jurisdiction other than the State of Minnesota.
(b) Entire Agreement. This Agreement contains the entire agreement of the parties relating to the subject matter hereof and supersedes all prior agreements and understandings with respect to such subject matter, and the parties hereto have made no agreements, representations or warranties relating to the subject matter of this Agreement which are not set forth herein.
(c) Amendments. No amendment or modification of this Agreement shall be deemed effective unless made in writing and signed by the parties hereto.
(d) No Waiver. No term or condition of this Agreement shall be deemed to have been waived, nor shall there be any estoppel to enforce any provisions of this Agreement, except by a statement in writing signed by the party against whom enforcement of the waiver or estoppel is sought. Any written waiver shall not be deemed a continuing waiver unless specifically stated, shall operate only as to the specific term or condition waived, and shall not constitute a waiver of such term or condition for the future or as to any act other than that specifically waived.
(e) Other Employment or Consulting Agreements. Executive represents and warrants that (i) Executive has terminated all other employment or consulting agreements he has previously entered into with Destron Fearing Corporation or any other entity and (ii) neither Executive nor Destron Fearing has any obligations under such agreements following their termination.
(f) Assignment. This Agreement shall not be assignable, in whole or in part, by either party without the written consent of the other party, except that the Company may, without the consent of Executive, assign its rights and obligations under this Agreement to any corporation, firm or other business entity with or into which the Company may merge or consolidate, or to which the Company may sell or transfer all or substantially all of its assets, or of which 50% or more of the equity investment and of the voting control is owned, directly or indirectly, by, or is under common ownership with, the Company. After any such assignment by the Company, the Company shall be discharged from all further liability hereunder, and such assignee shall thereafter be deemed to be the Company for the purposes of all provisions of this Agreement, including this Section.
(g) Counterparts. This Agreement may be executed in any number of counterparts, and such counterparts executed and delivered, each as an original, shall constitute but one and the same instrument.
(h) Severability. Subject to Section 7(f), to the extent any provision of this Agreement shall be invalid or unenforceable, it shall be considered deleted herefrom and the remainder of such provision and of this Agreement shall be unaffected and shall continue in full force and effect.
(i) Captions and Headings. The captions and paragraph headings used in this Agreement are for convenience of reference only and shall not affect the construction or interpretation of this Agreement or any of the provisions hereof.
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IN WITNESS WHEREOF, Executive and the Company have executed this Agreement as of the date set forth in the first paragraph.
DIGITAL ANGEL CORPORATION
Randolph K. Geissler, CEO & President
James P. Santelli