Exhibit 10.13
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT
AGREEMENT , dated as of
April 15, 2005, is by and between DAYSTAR TECHNOLOGIES,
INC. , a Delaware corporation, 13 Corporate Drive, HalfMoon, NY
12065 (“Employer”), and Thomas A. Polich, Esq., an
individual, 27 Parker Road, Osterville, MA 02655
(“Executive”).
IN CONSIDERATION OF the mutual
covenants herein contained, and other good and valuable
consideration, the parties agree as follows:
ARTICLE 1. EMPLOYMENT AND
DUTIES
1.1 Employment.
Employer employs Executive, and
Executive agrees to serve, as its General Counsel, reporting to the
President of Employer (the “President”), during the
Period of Employment (as defined in ARTICLE 2).
1.2 Duties.
Executive shall be a part-time
employee for Employer. Subject to the foregoing, Executive shall
devote Executive’s business time, attention and best efforts
to the affairs of Employer during the Period of Employment and
shall have the duties, responsibilities, authority as shall be
assigned to Executive from time to time by the President. Executive
agrees to abide by all by-laws, policies, practices, procedures or
rules of Employer to the extent they are not inconsistent with this
Agreement, in which case the provisions of this Agreement
prevail.
1.3 Other
Activities.
Executive may engage in other
activities, such as activities involving charitable, educational,
religious and similar types of organizations, speaking engagements
and similar activities, and service on the board of directors of
other corporations. However, in each case such activities may be
engaged in only to the extent that they do not materially detract
from or limit the performance of Executive’s duties under
this Agreement or inhibit or conflict in any material way with the
business of Employer, as determined by the President in his sole
discretion.
ARTICLE 2. TERM
2.1 Duration Under Normal
Circumstances.
Subject to the terms of this
Agreement, which provide for renewal or earlier termination, the
“Period of Employment” shall commence on the date of
this Agreement and shall extend for a period of one year from that
date.
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2.2 Renewal of Term.
On the date that Executive completes
six months of employment and on each successive six month period
thereafter (the “Renewal Date”), the Period of
Employment shall be automatically extended and renewed for an
additional six months unless, not less than 30 days prior to such
Renewal Date, Employer or Executive shall give written notice to
the other that the Period of Employment shall not be so extended
and renewed.
2.3 Termination
Events.
Notwithstanding anything in this
ARTICLE 2 to the contrary, the Period of Employment shall terminate
upon the earliest to occur of the following:
(a) upon delivery of notice by
either party to the other, in accordance with the provisions of
Section 7.2, that the Period of Employment is terminated due
to the Disability of Executive. “Disability” means
Executive’s inability to perform the essential functions of
Executive’s position under this Agreement with or without
reasonable accommodation due to physical or mental incapacity for a
period of 90 consecutive days, as reasonably determined by Employer
after consultation with a qualified physician selected by
Employer.
(b) the death of
Executive.
(c) as of delivery of notice by
Employer to Executive, in accordance with the provisions of
Section 7.2, that Employer elects to terminate the Period of
Employment for Cause. “Cause” means any one of the
following: (a) fraud, (b) material misrepresentation in
connection with performance of Executive’s job duties,
(c) material theft or embezzlement, (d) conviction of, or
a plea of guilty or no contest to, a felony under the laws of the
United States or any state thereof, (e) material violation of
the terms of the Employee Nondisclosure, Developments and
Non-solicitation Agreement described in Section 5.1, or
(f) the continued failure by the individual to satisfactorily
perform any of his/her material employment duties or duties
inherent in Executive’s position or title with Employer,
which failure continues, in the reasonable judgment of the
President, after written notice given to the Executive by the
President with the opportunity to cure such failure within10
business days.
(d) the 30th day after delivery of
notice by Employer to Executive, in accordance with the provisions
of Section 7.2, that Employer elects to terminate the Period
of Employment (an “involuntary termination by
Employer”), other than a termination by Employer for
Cause.
(e) the 30 th day after notification by Executive
to Employer, whether in accordance with the provisions of
Section 7.2 or otherwise, that Executive elects to terminate
the Period of Employment for any reason (a “voluntary
termination by Executive”).
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ARTICLE 3. COMPENSATION
3.1 Base Salary.
Employer will pay to Executive
during the Period of Employment an annualized base salary of
$135,000, paid in accordance with the regular payroll practices of
Employer, but no less frequently than monthly. The base salary
shall not be decreased below an annualized amount of $75,000 at any
time during the Period of Employment without the prior written
consent of Executive, and may be so reduced only in conjunction
with a commensurate reduction in hours worked (no more than 70
hours per calendar month) status, which reduction in salary and
ours may be required by the President in his sole discretion due to
business needs.
3.2 Incentive
Compensation.
Executive shall be eligible to
participate in such bonus or incentive compensation plans or
programs as may be adopted by Employer from time to time.
Executive’s entitlement to any specific bonuses or long-term
incentive awards shall be in the sole discretion of the Board of
Directors of Employer. Employer shall have the right to alter,
amend or eliminate all or any part of any such plan or program at
any time.
ARTICLE 4.
BENEFITS
4.1 Executive
Benefits.
In addition to the cash compensation
provided for in ARTICLE 3, Executive, subject to meeting
eligibility requirements and subject to the provisions of this
Agreement, shall be entitled to participate without discrimination
or duplication in all employee benefit plans of Employer, as
presently in effect or as they may be modified or added to by
Employer from time to time, to the extent such plans are available
to other similarly situated employees of Employer, including,
without limitation, plans providing retirement benefits, medical
and other health insurance, life insurance, disability insurance,
and accidental death or dismemberment insurance plans. Nothing
herein contained shall be construed as requiring Employer to
establish or continue any particular benefit plan.
Vacation. Employee shall be entitled
to three (3) weeks of paid vacation during each year of
employment. Vacation shall accrue and vest as of October 3,
2004. Employee and Employer shall mutually agree upon the time for
the vacation. If vacation is not taken, for the benefit of the
Employer, Employee shall be reimbursed at his/her base salary rate
for time not taken.
Automobile. Employer will reimburse
Employee, during the term of this agreement, for the use of
Employee’s automobile for the purposes of commuting at a
monthly rate not to exceed $0.33/mile. Employee will pay all
automobile operating expenses incurred by Employee, including
insurance.
Other Employee Matters. Employee
shall other wise be governed by, and comply with the terms and
conditions of the Employer’s Employee Handbook and
Policies.
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4.2 Business Expenses.
Employer shall in accordance with
and to the extent of, its policies in effect from time to time,
including state bar licensing application and annual fees,
membership in appropriate bar and trade associations and continuing
legal education expenses, including travel reimburse and all
ordinary and necessary business expenses reasonably incurred by
Executive in performing his duties as an employee of Employer,
provided that Executive accounts promptly for such expenses to
Employer in the manner prescribed from time to time by Employer.
Employer shall also provide Employee with a laptop computer,
wireless Internet capable and personal communications equipment or
reimbursement for such equipment.
ARTICLE 5. EMPLOYEE
COVENANTS
5.1 Agreement to Avoid Conflicts
of Interest.
During the Period of Employment,
neither Executive, Executive’s spouse, or any member of
Executive’s immediate family may directly or indirectly,
receive any gift or remuneration from, or borrow from, lend to,
invest in or engage in any substantial financial transaction with
(i) a business which competes with any business in which
Employer is engaged or proposes to become engaged; or (ii) a
customer or supplier of Employer, without first having provided
full disclosure to and receiving written approval from the
President. The foregoing prohibition on loans and financial
transactions shall not apply to loans obtained from a bank, savings
and loan or other financial institution through the normal
application and approval process. The foregoing prohibition on
investments shall not apply to any purchase of stock in the open
market of a company that is traded on a national stock
exchange.
5.2 Equitable Remedies and
Severability.
Executive agrees that in the event
of a breach or threatened breach his covenants in this ARTICLE 5,
money damages would be an inadequate remedy and extremely difficult
to measure. Executive agrees, therefore, that Employer shall be
entitled to an injunction to restrain Executive from such breach or
threatened breach. Nothing in this Agreement shall be construed as
preventing Employer from pursuing any remedy at law or in equity
for any breach or threatened breach. Executive agrees that each
provision in this Agreement will be treated as a separate and
independent clause, and the enforceability of any one clause will
in no way impair the enforceability of any of the other clauses in
this Agreement.
5.3 Survival of
Obligations.
The provisions of this ARTICLE 5
shall survive termination of this Agreement.
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ARTICLE 6. TERMINATION
6.1 Termination by Employer for
Cause or Voluntary Termination by Executive.
If the Period of Employment
terminates as a result of a termination by Employer for Cause or a
voluntary termination by Executive, Employer will pay Executive the
base salary and accrued benefits otherwise payable through the day
on which Employer delivers notice of such termination. Executive
shall have no right to any other payments or benefits after the
date of termination, other than as required by law.
6.2 Termination by Employer
Without Cause.
If the Period of Employment
terminates as a result of an involuntary termination by Employer
without Cause, then Employer will pay Executive three months of
base salary in installments as payable under Section 3.1, in
addition to any base salary and/or benefits which have been earned
or become payable pursuant to this Agreement as of the date of
termination but which have not yet been paid to Executive.
Executive shall be entitled to any bonus or other benefit payable
prior to termination, but shall not be entitled to any bonus or
other benefits during the three month period of salary continuation
payments, other than as required by law.
6.3 Termination in the Event of
Death or Disability.
If the Period of Employment
terminates as a result of (i) the death of Executive or (ii)
Executive’s Disability, Executive (or Executive’s
estate) will be entitled to receive only the base salary otherwise
payable under Section 3.1 through the end of the month in
which Executive’s Period of Employment terminates, together
with other benefits which have been earned or become payable as of
the date of termination but which have not yet been paid to
Executive. Executive (or Executive’s estate) shall receive
any bonus or other benefit payable prior to the date of
termination, but Executive shall have no right to any bonus or
other benefits after the date of termination, other than as
required by law.
6.4 Exclusive
Remedy.
Executive shall have no claim for
damages or other remedies, at law, in equity or otherwise, by
reason of any breach of this Agreement by Employer, or of
termination of this Agreement by reason thereof other than as set
forth in this ARTICLE 6.
ARTICLE 7. GENERAL
PROVISIONS
7.1 Successors and
Assigns.
For purposes of this Agreement,
“Employer” shall include any corporation or other
entity, which is the surviving, or continuing entity in respect of
any, merger, consolidation, asset acquisition or other form of
business combination. This Agreement shall be binding upon and
shall inure to the benefit of Executive, Executive’s heirs,
executors, administrators and beneficiaries, and shall be binding
upon and inure to the benefit of Employer and its successors and
assigns. In that this Agreement is a personal services contract, it
shall not be assigned by Executive.
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7.2 Notices.
All notices or other communications
hereunder shall be deemed to have been duly given and made if in
writing and if served by personal delivery upon the party for whom
it is intended, if delivered by registered or certified mail,
return receipt requested, or by a national courier service, or if
sent by facsimile, provided that the facsimile is promptly
confirmed by telephone confirmation or other confirmation of
receipt thereof, to the person at the address set forth below, or
such other address as may be designated in writing hereafter, in
the same manner, by such person:
To Executive:
The address of Executive’s
principal residence as it appears in the Company’s
records.
To Employer:
DayStar Technologies,
Inc.
13 Corporate Drive
Halfmoon, New York 12065
Facsimile: 518 381-4900
Attention: Dr. John R.
Tuttle
7.3 Choice of Law;
Venue.
This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of
New York, without regard to the conflicts of law rules of New
York.
7.4 Entire
Agreement.
This Agreement constitutes the
entire understanding between Employer and Executive relating to the
employment of Executive by Employer and its subsidiaries and
supersedes and cancels all prior agreements and understandings with
respect to the subject matter of this Agreement.
7.5 Amendment.
This Agreement may be amended but
only by a subsequent written agreement of the parties.
7.6 Waiver.
No failure on the part of either
party to exercise, and no delay in exercising, any right or remedy
hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other
right or remedy granted hereby or by any related document or by
law.
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7.7 Severability.
If any portion of this Agreement is
at any time deemed to be in conflict with any applicable statute,
rule, regulation, ordinance or principle of law, such portion shall
be deemed to be modified or altered to the extent necessary to
conform thereto or, if that is not possible, to be omitted from
this Agreement; and the invalidity of any such portion shall not
affect the force, effect and validity of the remaining portion
hereof.
7.8 Interpretation;
Construction.
The various headings or captions in
this Agreement are for convenience only and shall not affect the
meaning or interpretation of this Agreement. Wherever possible,
each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if
any provision of this Agreement shall be prohibited by or invalid
under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity without invalidating
the remainder of such provision or the remaining provisions of this
Agreement.
7.9 Counterparts;
Facsimile.
This Agreement may be signed in
multiple counterparts and when so signed will be considered to have
the force and effect of an original. This Agreement may be
delivered by facsimile, and when so delivered will have the same
force and effect as delivery of an original signature.
7.10 Attorney
Fees.
If any action at law, in equity or
by arbitration is taken to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable
attorneys’ fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled,
including fees and expenses on appeal.
7.11 Arbitration. Any controversy or claim
arising out of or relating to this Agreement, or the breach
thereof, shall be settled by a single arbitrator in arbitration
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