AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENTEmployment Agreement |
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AMENDED
AND RESTATED
EXECUTIVE
EMPLOYMENT AGREEMENT
This
AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”) is made and
entered into as of this 28th day of September 2007, by and between Skins Inc.,
a
Nevada corporation (the “Company”), and Mark Klein, an individual (the
“Executive”). Company or Executive are sometimes referred to herein as a
“party,” or collectively, as the “parties”.
WHEREAS,
the Company and Executive entered into that certain Executive Employment
Agreement dated March 20, 2006 (the “Prior Agreement”);
WHEREAS,
the Company has experienced growth due to, in large part, to the contributions
of Executive under the Prior Agreement;
WHEREAS,
the Company desires to enter into this Agreement to amend, restate, and
supercede the Prior Agreement to continue the employment of the Executive in
the
position of Chief Executive Officer and President and to continue to have the
benefits of his expertise and knowledge;
WHEREAS,
the Executive desires to continue employment with the Company under the terms
of
this Agreement as its Chief Executive Officer and President; and
WHEREAS,
the parties desire to enter into this Agreement to establish the terms and
conditions of the Executive’s continued employment as Chief Executive Officer
and President.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements hereinafter
contained, and for other good and valuable consideration, it is hereby agreed
by
and between the parties hereto as follows:
1. Employment,
Duties, and Authority.
1.1 Employment.
The
Company hereby agrees to continue the employment of Executive as the Chief
Executive Officer and President of the Company and Executive hereby accepts
such
employment as of the date hereof pursuant to the terms, covenants and conditions
set forth herein. Executive shall report directly to the Board of Directors
of
the Company.
1.2 Duties
and Authority.
During
the Term of this Agreement, Executive shall serve as the Company’s Chief
Executive Officer and President, and, in such capacities, shall perform the
duties and functions and have the authority that is commensurate with such
positions and such other duties, functions, and authority consistent with his
status as a senior executive officer of the Company as may be assigned by the
Company’s Board of Directors. Executive’s level of authority shall at all times
be subject to the policies and directives of the Board of Directors as they
may
from time to time deem in the best interests of the Company.
1.3 Time
and Efforts.
Executive shall devote his best efforts, energies, skills and attention to
the
business and affairs of the Company. Executive shall also devote substantially
all of his business time to his duties hereunder and shall, to the best of
his
ability, perform such duties in a manner that will faithfully and diligently
further the business interests of the Company. Executive’s services shall be
exclusive to the Company, but does not limit Executive’s right to be involved in
other not-for-profit, civic or charitable activities, provided that such
activities do not materially interfere with the providing of his services
hereunder. Executive may also serve as a non-employee member on the board of
directors of other for-profit companies if such service does not interfere
with
the providing of his services hereunder as reasonably determined by the Board
of
Directors of the Company.
2. Term.
The
term
of employment under this Agreement shall be for a period of three (3) years
commencing on the date hereof (the “Term”), unless terminated earlier pursuant
to the provisions of Section 5 below. Thereafter, this Agreement shall
automatically be renewed for successive one-year terms unless either party
shall
give the other no less than One Hundred Eighty (180) days prior written notice
of intent not to renew this Agreement.
3. Compensation
and Benefits.
As
the
total consideration for Executive’s services rendered hereunder, Executive shall
be entitled to the following:
3.1 Base
Salary.
Executive shall be paid an annual base salary of Two Hundred Fifty Thousand
Dollars ($250,000.00) per year (“Base Salary”) beginning on the date hereof and
payable in regular installments in accordance with the customary payroll
practices of the Company. The Base Salary shall be subject to all legally
required deductions and withholdings. The Base Salary will be reviewed by the
Board of the Directors of the Company annually in a manner that is consistent
with Company’s compensation policy. The Base Salary may be increased (but not
decreased without Executive’s written consent) from time to time by the Board of
Directors in its absolute discretion, the determination of which shall be based
upon such standards, guidelines and factual circumstances as the Board of
Directors or its Compensation Committee deems relevant, including, without
limitation, the operating results for the Company during such calendar year,
the
importance of the efforts of Executive in achieving such operating results
and
the achievement by the Company and/or Executive of performance goals previously
established by the Board of Directors for such year.
3.2 Annual
Incentive Bonus.
During
each calendar year, or part thereof, the Company may pay Executive an annual
performance bonus as determined by the Board or Directors or the Compensation
Committee of the Company, in their sole discretion, the determination of which
shall be based upon such standards, guidelines and factual circumstances as
the
Board of Directors or its Compensation Committee deems relevant, including,
without limitation, the operating results for the Company during such calendar
year, the importance of the efforts of Executive in achieving such operating
results and the achievement by the Company and/or Executive of performance
goals
previously established by the Board of Directors for such contract year. The
performance reviews shall occur annually in accordance with the Company’s
compensation policy and procedures for executive officers. The annual
performance bonus shall be up to fifty percent (50%) of the Base Salary and
may
be paid in cash and/or stock options, at the discretion of the Board of
Directors; provided that, however, the value of any stock option granted shall
not be counted against the fifty percent maximum limit. Bonuses granted to
Executive under this Section 3.2, if any, shall be paid no later than as is
consistent with the Company’s policies for payment of annual incentive bonuses
to its executive officers.
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3.3 Expenses.
During
employment, Executive is entitled to reimbursement for reasonable and necessary
business expenses incurred by Executive in connection with the performance
of
Executive’s duties. Payments to Executive will be made upon presentation of
itemized statements of such business expenses in such detail as the Company
may
reasonably require and pursuant to applicable Company policy.
3.4 Vacation.
Executive shall be entitled to receive four (4) weeks of paid vacation each
year. Any accrued but unused vacation days may be rolled over to the next
12-month period, provided that the number of unused vacation days for any period
shall not exceed six (6) vacation weeks. All vacation leave is subject to and
in
accordance with the vacation policies of the Company with respect to senior
executives as are in effect from time to time.
3.5 Benefits.
Executive shall be entitled to participate in and receive all benefits made
available by the Company to its Executives, subject to and on a basis consistent
with the terms, conditions, co-payments and overall administration of such
plans
and arrangements, including without limitation, medical, dental, vision, life
and disability insurance plans and coverage, and any applicable 401k or other
pension plans, to the extent they are provided. In addition, the Company shall
furnish the Executive, without cost to him, with a Company-owned or leased
automobile of the make and model authorized by the Company's
policy.
3.6 Insurance
and Indemnification.
Executive shall receive coverage under the Company’s director’s and officer’s
liability insurance policy and indemnification in accordance with the Company’s
Certificate of Incorporation.
4. RESERVED
5. Termination.
5.1 Termination
For Cause.
The
Company may terminate Executive’s employment for Cause if the Company determines
that Cause exists.
(a) For
purposes of this Agreement, “Cause” shall mean
(i) A
material act of dishonesty, fraud, embezzlement, or misappropriation of funds
or
proprietary information in connection with the Executive’s responsibilities as
an Executive;
(ii) Executive’s
conviction of, or plea of nolo contendere to, a felony or a crime involving
moral turpitude;
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(iii) Executive’s
willful or gross misconduct in connection with his employment duties which,
directly or indirectly, has a material adverse effect on the Company;
or
(iv) Executive’s
habitual failure or refusal to perform his employment duties under this
Agreement, if such failure or refusal is not cured by Executive within ten
(10)
days after receiving written notice thereof from the Company.
(b)
In
the
event that Executive’s employment is terminated pursuant to this Section
5.1:
(i) The
Company shall pay to Executive, or his representatives, on the date of
termination of employment (the “Termination Date”) only that portion of the Base
Salary provided in Section 3.1 that has been earned to the Termination Date,
and
any accrued but unpaid Vacation pay provided in Section 3.4, and any expense
reimbursements due and owing to Executive as of the Termination Date;
and
(ii) Executive
shall not be entitled to (i) any other salary, compensation, or severance,
(ii)
any Bonus pursuant to Section 3.2, (iii) any further vesting of any stock
options held, nor (iv) any Benefits pursuant to Section 3.5, except for benefit
continuation under COBRA or similar state or federal legislation, as permissible
by law.
5.2 Termination
Due to Disability.
Executive’s employment hereunder may be terminated by the Company, to the extent
permitted by law, in the event that Executive has been unable to perform his
duties under this Agreement due to injury or illness for an aggregate of 180
days (inclusive of weekends and holidays) within any 12-month period, or in
the
event Executive is unable to perform the essential functions of his job due
to a
physical or mental disability and after reasonable accommodation made by the
Company, by providing Executive with written notice of termination. In such
event, the Company shall provide notice to Executive and make payment to the
Executive of all accrued salary, bonus compensation to the extent fully earned
and vested, vested deferred compensation (other than pension plan or profit
sharing plan benefits which will be paid in accordance with the applicable
plan), any benefits under any plans of the Company in which Executive is a
participant to the full extent of the Executive's rights under such plans,
accrued vacation pay and any appropriate business expenses incurred by the
Executive in connection with his duties hereunder, all to the date of
termination, with the exception of any medical and dental benefits which, if
applicable, shall continue through the expiration of this Agreement, but the
Executive shall not be paid any other compensation or reimbursement of any
kind,
including without limitation, Severance Pay or Continued Benefits as defined
in
Section 5.4(a).
5.3 Termination
Due to Death.
In the
event of the Executive’s death during the term of this Agreement, the
Executive's employment shall be deemed to have terminated as of the last day
of
the month during which his death occurs and the Company shall promptly pay
to
his estate or such beneficiaries as the Executive may from time to time
designate all accrued salary, bonus compensation to the extent earned, vested
deferred compensation (other than pension plan or profit sharing plan benefits
which will be paid in accordance with the applicable plan), any benefits under
any plans of the Corporation in which the Executive is a participant to the
full
extent of the Executive’s rights under such plans, accrued vacation pay and any
appropriate business expenses incurred by the Executive in connection with
his
duties hereunder, all to the date of termination, but the Executive's estate
shall not be paid any other compensation or reimbursement of any kind, including
without limitation, Severance Pay or Continued Benefits as defined in Section
5.4(a).
