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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.
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;
(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
applica
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