EXHIBIT
10.5
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “
Agreement ”) is made, entered into and effective as of
November 1, 2006 (the “ Effective Date ”),
between KREIDO LABORATORIES (the “
Company ”), and JOEL BALBIEN, Ph.D. ,
an individual (the “ Executive ”).
WHEREAS, the Company and the Executive wish to
memorialize the terms and conditions of the Executive’s
employment by the Company in the positions of President and Chief
Executive Officer;
NOW, THEREFORE, in consideration of the
covenants and promises contained herein, the Company and the
Executive agree as follows:
1.
Employment
Period . The Company offers to employ the Executive, and
the Executive agrees to be employed by Company, on an "at will"
basis, in accordance with the terms and subject to the conditions
of this Agreement, commencing on the Effective Date and terminating
on the first (1 st ) anniversary of the Effective Date
(the “ Scheduled Termination Date ”), unless
terminated in accordance with the provisions of Section 12
below, in which case the provisions of Section 12 shall
control; provided , however , that unless either
party provides the other party with written notice of his or its
intention not to renew this Agreement at least 90 days prior to the
expiration of the initial term or any renewal term of this
Agreement (as the case may be), this Agreement shall automatically
renew for additional one-year periods commencing on the day after
such expiration date. The Executive affirms that no obligation
exists between the Executive and any other entity which would
prevent or impede the Executive’s immediate and full
performance of every obligation of this Agreement. The Company may
terminate this Agreement, anything to the contrary notwithstanding,
without any further compensation due to the Executive in the event
that the Company does not close a financing of at least
TWENTY-FIVE MILLION DOLLARS ($25,000,000) prior to
January 15, 2007.
2.
Position and
Duties . During the term of the Executive’s
employment hereunder, the Executive shall continue to serve in, and
assume duties and responsibilities consistent with, the positions
of President and Chief Executive Officer, unless and until
otherwise instructed by the Company. The Executive agrees to devote
to the Company substantially all of his working time, skill, energy
and best business efforts during the term of his employment with
the Company, and the Executive shall not engage in business
activities outside the scope of his employment with the Company if
such activities would detract from or interfere with his ability to
fulfill his responsibilities and duties under this Agreement or
require substantial amounts of his time or of his services, or
which would constitute a conflict of interest by the
Executive.
3.
No
Conflicts . The Executive covenants and agrees that for so
long as he is employed by the Company, he shall inform the Company
of each and every future business opportunity presented to the
Executive that arises within the scope of the Business of the
Company (as defined below) and would be feasible for the Company,
and that he will not, directly or indirectly, exploit any such
opportunity for his own account.
4.
Hours of
Work . The Executive’s normal days and hours of
work shall coincide with the Company’s regular business
hours. The nature of the Executive’s employment with the
Company requires flexibility in the days and hours that the
Executive must work, and may necessitate that the Executive work on
other or additional days and hours.
5.
Location
.
The locus of the Executive’s
employment with the Company shall be primarily at the
Company’s office located in Camarillo, California.
(a)
Base
Salary . During the term of this Agreement, the Company
shall pay, and the Executive agrees to accept, in consideration for
the Executive’s services hereunder, an annual salary of
TWO HUNDRED THOUSAND DOLLARS ($200,000) , less all
applicable taxes and other appropriate deductions, payable in
accordance with the Company's policy for salaried
employees.
The Compensation Committee (as defined below) of
the Board shall also review the Executive’s base salary
annually and shall make a recommendation to the Board as to whether
such base salary should be adjusted upward, which decision shall be
within the Board’s sole discretion.
(b)
Annual
Bonus . The Executive shall be entitled to an initial
bonus of up to ONE HUNDRED AND FIFTY THOUSAND DOLLARS
($150,000) for the period from the Effective Date through
December 31, 2007, the actual amount of the bonus shall be
determined according to achievement of performance-related
financial and operating targets established quarterly for the
Company and the Executive by the Compensation Committee. The
Compensation Committee will establish four (4) quarterly
performance plans for the Employee. Each plan will contain
financial and operating objectives (the " Quarterly Performance
Targets "), the achievement of which will determine the amount
of bonus paid during that quarter. The initial performance
objective shall be the completion of an equity financing of the
Company or its parent Company, which is expected to close
concurrently with the proposed merger transaction (the “
Merger ”) referred to in Section 17 , for which
a bonus of THIRTY SEVEN THOUSAND FIVE HUNDRED DOLLARS ($37,500)
will be paid upon the closing date of the equity financing and the
Merger. The remaining three (3) Quarterly Performance Targets will
be set by the Compensation Committee of the board of directors of
the Company or its parent Company (the “Compensation
Committee”) not later than January 12, 2007. The remaining
payments, if the Executive meets Quarterly Performance Targets, are
scheduled for April 1, 2007, July 1, 2007 and November 1, 2007.
Quarterly Performance related financial and
operational targets for Q4:2007 - Q3:2008 shall be adopted by the
Compensation Committee promptly after the end of Q3:2007, but in no
event later than October 12, 2007).
7.
Expenses
.
During the term of this Agreement,
the Executive shall be entitled to payment or reimbursement of any
reasonable expenses paid or incurred by him in connection with and
related to the performance of his duties and responsibilities
hereunder for the Company. All requests by the Executive for
payment or reimbursement of such expenses shall be supported by
appropriate invoices, vouchers, receipts or such other supporting
documentation in such form and containing such information as the
Company may from time to time require, evidencing that the
Executive, in fact, incurred or paid said expenses.
8.
Vacation
.
During the term of this Agreement,
the Executive shall be entitled to accrue, on a pro rata
basis, twenty (20) vacation days, per year. The Executive shall be
entitled to carry over any accrued, unused vacation days from year
to year as provided by current Company policy.
9.
Lock-Up
Agreement . The Executive shall enter into a Lock-Up
Agreement with the Company in the form attached hereto as
Exhibit B . During any period that the
Executive is precluded by the Lock-Up Agreement from exercising the
Option granted to the Executive under Section 10 , then the
exercise period in Section 10(d) will be extended by the
amount of time during which the Executive could not exercise the
Option.
10.
Stock
Options . The Company hereby agrees to use commercially
reasonable efforts to cause Kreido Biofuels, Inc., a Nevada
corporation (the “ PubCo ”) to grant the
Executive a non-qualified stock option under the PubCo's equity
incentive plan on the terms and conditions hereinafter stated. When
so granted, the following terms and conditions will be incorporated
into a separate stock option agreement (the “ PubCo Stock
Option Agreement ”), dated the date of the grant, between
the Executive and the PubCo. In the event of any inconsistency
between the PubCo Stock Option Agreement and this Agreement, the
terms of the PubCo Stock Option Agreement shall prevail.
(a)
Grant of
Option . On the effective date of the Merger, the Company
will grant the Executive an option to purchase an aggregate of
ONE MILLION TWO HUNDRED AND FIVE THOUSAND THREE HUNDRED AND
EIGHTY FOUR (1,205,384) shares of the Company’s
common voting stock (the “ Option ”) under the
PubCo’s 2006 Stock Option Plan (the “ Stock Option
Plan ”). In subsequent years the Executive shall be
eligible for such grants of options and other permissible awards
(collectively with such options, the “ Awards ”)
under the Stock Option Plan as the Compensation Committee of the
board of directors of PubCo shall determine.
(b)
Option Price;
Term . The per share exercise price of the Option shall
be ONE AND 35/100THS DOLLARS ($1.35) , which
represents the anticipated fair market value per share of Company
common voting stock on the closing date of the Merger. The term of
the Option shall be ten (10) years from the date of
grant.
(c)
Vesting and
Exercise . The Option shall be vested and exercisable in
eight (8) quarterly installments of ONE HUNDRED FIFTY
THOUSAND SIX HUNDRED AND SEVENTY THREE (150,673) shares
each.
(d)
Termination of Service;
Accelerated Vesting .
(i) If the Executive’s employment is
terminated for Cause, as such term is defined below, all Awards,
whether or not vested, shall immediately expire effective the date
of termination of employment.
(ii) If the Executive’s employment is
terminated voluntarily by the Executive without Good Reason, as
such term is defined below, all unvested Awards shall immediately
expire effective the date of termination of employment. Vested
Awards, to the extent unexercised, shall expire on the later of
ninety (90) days after the termination of employment and the
expiration of the contractual lock-up agreement.
(iii) If the Executive’s employment terminates
on account of death or Disability, as defined below, all unvested
Awards shall immediately expire effective the date of termination
of employment. Vested Awards, to the extent unexercised, shall
expire one (1) year after the termination of employment.
(iv) If the Executive’s employment is
terminated (A) in connection with a Change of Control, as defined
below, (B) by the Company without Cause or (C) by the Executive for
Good Reason, one-half (1/2) of all unvested Awards shall
immediately vest up to a maximum of six (6) months, and become
exercisable effective the date of termination of employment, and,
to the extent unexercised, shall expire one (1) year from the date
of termination of employment.
(e)
Payment . The full consideration for any shares purchased
by the Executive upon exercise of the Option shall be paid in
cash.
(a) During the term of this Agreement, the
Executive shall be eligible to participate in incentive, savings,
retirement (401(k)), and welfare benefit plans, including, without
limitation, health, medical, dental, vision, life (including
accidental death and dismemberment) and disability insurance plans
(collectively, “ Benefit Plans ”), in
substantially the same manner, including but not limited to
responsibility for the cost thereof, and at substantially the same
levels, as the Company makes such opportunities available to all of
the Company’s managerial or salaried executive
employees.
(b)
The Executive’s spouse and
dependent minor children will be covered under the Benefit Plans
providing health, medical, dental, and vision benefits, in
substantially the same manner, including but not limited to
responsibility for the cost thereof, and at substantially the same
levels, as the Company makes such opportunities available to the
spouses and dependent minor children to all of the Company’s
managerial or salaried executive employees.
(c)
The Company shall purchase and
maintain traditional directors and officers liability insurance
coverage in the amount of at least ONE MILLION DOLLARS
($1,000,000) covering the Company’s officers and
directors, including the Executive, as soon as practicable after
the Effective Date, but in no event later than 30 days following
the Effective Date, provided such coverage is available on
commercially reasonable terms.
(d)
Until such time as the Executive
becomes covered by Company medical coverage, the Company shall pay
the cost of COBRA coverage provided by the Executive’s prior
employer, to the same extent as such coverage was paid for by such
prior employer.
12.
Termination of
Employment .
(a)
Death
.
In the event that during the term of
this Agreement the Executive dies, this Agreement and the
Executive’s employment with the Company shall automatically
terminate and the Company shall have no further obligations or
liability to the Executive or his heirs, administrators or
executors with respect to compensation and benefits accruing
thereafter, except for the obligation to pay the Executor’s
heirs, administrators or executors any earned but unpaid base
salary, unpaid pro rata annual bonus and unused vacation
days accrued through the date of death; provided , that
nothing contained in this paragraph shall be deemed to excuse any
breach by the Company of any provision of this Agreement. The
Company shall deduct, from all payments made hereunder, all
applicable taxes, including income tax, FICA and FUTA, and other
appropriate deductions.
(b)
“ Disability
.” In the
event of the Executive's disability for a period of 120 consecutive
days during any 365-day period, the Company shall thereafter have
the right, upon written notice to the Executive, to terminate this
Agreement, in which case the date of termination shall be the date
of such written notice to the Executive. As used herein,
"disability" shall mean a physical and/or mental disability of the
Executive that prevents the Executive from substantially performing
the essential functions of his position even with reasonable
accommodation. In the event of termination under this Section, all
the Executive's compensation and benefits shall cease as of the
date of his termination, and the Executive will not be entitled to
receive any Severance.
(i) At any time during the term of this Agreement,
the Company may terminate this Agreement and the Executive’s
employment hereunder for “Cause.” For purposes of this
Agreement, “ Cause ” shall be defined as the
occurrence of: (A) gross neglect, malfeasance or gross
insubordination in performing the Executive’s duties under
this Agreement; (B) the Executive’s conviction for a felony,
excluding convictions associated with traffic violations; (C) an
egregious act of dishonesty (including without limitation theft or
embezzlement) or a malicious action by the Executive toward the
Company’s customers or employees; or (D) a willful and
material violation of any provision of Section 13 or
Section 14 hereof.
(ii)
Upon termination of this Agreement
for Cause, the Company shall have no further obligations or
liability to the Executive or his heirs, administrators or
executors with respect to compensation and benefits thereafter,
except for the obligation to pay the Executive any earned but
unpaid base salary, any earned but unpaid portion of Executive's
annual bonus and unused vacation days accrued through the
Executive’s last day of employment with the Company. The
Company shall deduct, from all payments made hereunder, all
applicable taxes, including income tax, FICA and FUTA, and other
appropriate deductions. However, 12 (c)(ii) not withstanding, with
respect to "Cause" as defined in 12 (c)(i)(D) of the Employment
Agreement, the Company must provide notification in writing of the
breach and the Employee shall have the right to cure the breach to
the satisfaction of the Company within 30 days of the written
notice.
(d)
Change of
Control . For pu
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