Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT , made as of October 31, 2006, by
and between LE@P TECHNOLOGY, INC. , a Delaware corporation
located at 5601 N. Dixie Highway, Suite 411, Fort Lauderdale, Fl
33334 (the “ Corporation ”), and DONALD J.
CIAPPENELLI (“ Employee ”), an individual
residing at 53 Beaver Road, Weston, Massachusetts 02943.
W I T N E S S
E T H :
WHEREAS , the Corporation and Employee desire to enter into
this Agreement pursuant to which the Corporation agrees to employ
Employee and Employee agrees to accept such employment by the
Corporation, in each case on the terms and subject to the
conditions hereinafter set forth;
NOW, THEREFORE , in consideration of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1.
Employment . Subject to the terms, conditions and provisions
of this Agreement, the Corporation hereby agrees to employ Employee
and Employee hereby agrees to be employed by the Corporation, in
each case effective on November 1, 2006 (the “ Effective
Date ”) and continuing thereafter until the earlier to
occur of (i) the expiration of the Term (as defined below) and (ii)
the termination of the employment of Employee hereunder pursuant to
the provisions of Section 8 of this Agreement (such period
is referred to as the “ Employment Period ”) as
its Chief Executive Officer. During the Employment Period, Employee
shall have responsibility for and the authority to carry out such
job-related duties as are assigned to Employee from time to time by
the Board of Directors of the Corporation (the “ Board of
Directors ”).
2.
Performance of Services . Employee hereby accepts such
employment and agrees that during the Employment Period he will
devote his full business time, attention, knowledge and skills,
faithfully, diligently and to the best of his ability, in
furtherance of the business of the Corporation (the “
Business ”) and will perform the duties assigned to
him from time to time pursuant to Section 1 hereof, subject,
at all times, to the direction and control of the Board of
Directors, and to the policies of the Corporation generally
applicable to its executive employees. Notwithstanding the
foregoing provisions of this Section 2 , Employee shall be
entitled to continue serving as a director of Board of Cambridge
Science Equities, LLC and NewCyte, Inc. Employee acknowledges and
agrees (i) that all computers and internet access furnished by the
Corporation to Employee are provided to Employee exclusively for
use in performing his job-related duties and are not for personal
use and (ii) that Employee has no expectation of privacy for any
content sent, received or stored on the Corporation’s
computer systems, including material that Employee has deleted.
3.
Term . The term of Employee’s employment under this
Agreement shall commence on the Effective Date and ending on
October 31, 2009, unless his employment hereunder is terminated
prior to the expiration of the term pursuant to the provisions of
Section 8 hereof or such term is extended in accordance with
the provisions set forth below in this Section 3 . The term
of Employee’s employment under this Agreement shall
automatically be extended for an additional one-year period each
November 1, beginning November 1, 2009, unless either Employee or
the Corporation delivers written notice to the other party, not
later than ninety (90) days before such November 1 of their
election that the term of Employee’s employment under this
Agreement not be extended. For purposes of this Agreement, the term
of Employee’s employment under this Agreement shall be
referred to as the “ Term ”. It is understood
and agreed that if Employee continues to be employed by the
Corporation subsequent to the expiration of the Term such
employment will be on an “at will” basis and will not
be subject to any of the terms and provisions of this
Agreement.
4.
Election as a Director; Appointment as Chairman of the Board
. As soon as practicable after the Effective Date, the Board of
Directors shall increase the total number of Directors of the
Corporation from four (4) to five (5) and Employee shall be
appointed as a Director to fill the vacancy created by such
increase. The Corporation shall cause Employee to be nominated for
election as a member of the Board of Directors, as necessary, at
each election of Directors held during the Term. In addition, at
the time of Employee’s initial appointment as a member of the
Board of Directors, the Corporation shall cause Employee to be
appointed as Chairman of the Board of Directors.
5.
Compensation . As compensation for Employee’s services
hereunder, the Corporation agrees to the following:
(a)
Salary . Employee shall receive a salary during the
Employment Period (the “ Base Salary ”) at the
rate of Two Hundred Eighty Thousand Dollars ($280,000) per annum,
payable in accordance with the Corporation’s standard payroll
practices. The amount of the Base Salary may be increased (but not
decreased) by the Board of Directors at any time and from time to
time at the Board of Directors’ discretion. The Board of
Directors agrees to review the Base Salary annually, commencing in
2007, for purposes of considering an increase in the Base Salary at
the Board of Directors’ discretion.
(b)
Discretionary Bonus . During the Employment Period, Employee
shall be eligible to receive a discretionary bonus on an annual
basis as determined by the Board of Directors in its sole
discretion; provided , however , that (x) the amount
of Employee’s minimum bonus opportunity with respect to each
fiscal year during the Term, commencing with the 2008 fiscal year,
shall be no less than one-third (1/3) of the Base Salary in effect
for such fiscal year, and (y) Employee shall receive a One Hundred
Twenty Thousand Dollar ($120,000) bonus within ninety (90) days
after the end of the 2007 fiscal year if Employee performs and
completes the following objectives:
(i) draft and submit (x) a memorandum business plan approved by the
Board of Directors (the “ Business Plan ”) and
(y) a Chief Executive Officer job description on or prior to
January 1, 2007;
(ii) provide evidence of at least five (5) available technologies
meeting the Business Plan on or prior to May 1, 2007;
(iii) assist in the formation of a SAB and a newly constituted
Board of Directors on or prior to July 1, 2007;
(iv) provide evidence of at least five (5) unsolicited available
technologies meeting the Business Plan on or prior to September 9,
2007; and
(v) consummate a revenue producing deal (with revenue to be
received by the Corporation commencing no later than May 1, 2008)
on or prior to November 1, 2007.
The determination by the Board of Directors as to the amount, if
any, of discretionary bonus to award to Employee in respect of any
fiscal year, commencing with the 2008 fiscal year, shall be made
after evaluating and considering whether Employee attained the
measures of performance, if any, applicable to such fiscal year.
The nature of the measures of performance and the bonus formula or
scale used to compute the amount of discretionary bonus to which
Employee shall be eligible during any given fiscal year, commencing
with the 2008 fiscal year, upon attaining such measures of
performance shall be determined by the Board of Directors (or a
committee of the Board of Directors) within sixty (60) days after
the end of the immediately preceding fiscal year and only after
consultation and discussion with Employee concerning the
appropriateness of such measures of performance. It shall be a
condition precedent to Employee’s eligibility to earn any
discretionary bonus in respect of any fiscal year of the
Corporation that Employee remain continuously employed by the
Corporation through the ninetieth (90 th ) day after the
end of such fiscal year. Any discretionary bonus in respect of any
fiscal year of the Corporation shall be paid to Employee, to the
extent, if any, earned, within ninety (90) days after the end of
such fiscal year.
(i) Employee shall be
granted options to purchase common stock of the Corporation
(“ Common Stock ”) in an aggregate amount equal
to four percent (4%) of the fully diluted equity of the Corporation
(the “ Options ”). The Options shall vest as
follows: (x) thirty-three and one-third percent (33 1 /
3 %) shall vest on the Effective Date; (y) thirty-three
and one-third percent (33 1 / 3 %) shall vest
on the second anniversary of the Effective Date; and (z)
thirty-three and one-third percent (33 1 / 3
%) shall vest on the third anniversary of the Effective Date.
Notwithstanding the foregoing, the Board of Directors may grant
additional options and determine the vesting of such additional
options in its sole discretion.
(ii) Upon exercise of the
Options to acquire underlying shares of Common Stock of the
Corporation (the “ Underlying Shares ”),
Employee shall have the right to sell, transfer or dispose of
(“ Transfer ”) the Underlying Shares subject to
the provisions of this Section 5(c)(ii) . In the event that
Employee desires to Transfer any of the Underlying Shares pursuant
to an offer made by an unaffiliated third party (a “ Third
Party Purchaser ”), Employee shall immediately give
written notice to the Corporation indicating his desire to Transfer
such Underlying Shares and the terms of such unaffiliated third
party offer, including price and number of Underlying Shares to be
Transferred (a “ Third Party Offer Notice ”).
The Corporation,
or its assigns, shall have the right to purchase all or any portion
of such Underlying Shares to be Transferred to the Third Party
Purchaser on the same terms as set forth in the Third Party Offer
Notice by giving written notice, of its election to purchase and
consummate the purchase of such Underlying Shares within five (5)
business days of receipt of the Third Party Offer Notice. In the
event that Employee desires to Transfer any of the Underlying
Shares in the open market, Employee shall immediately give written
notice to the Corporation indicating his desire to Transfer such
Underlying Shares. The Corporation, or its assigns, shall have the
right to purchase all or any portion of such Underlying Shares to
be Transferred in the open market at the then trading price of the
Common Stock by giving written notice, of its election to purchase
and consummate the purchase of such Underlying Shares within five
(5) business days of receipt of such notice. In the event that the
Corporation does not elect to purchase any or all of such
Underlying Shares, Employee shall be free to Transfer such
Underlying Shares.
(iii) Upon a Change
of Control (as defined below), all stock options or equity
securities of the Corporation held by Employee on the date of such
Change of Control that are not then fully vested and exercisable
shall automatically accelerate in full such that all of such stock
options and/or equity securities become fully vested and
exercisable. As used herein, the term “ Change of
Control ” shall mean the consummation of any transaction
or series of related transactions which results in (x) the
Corporation being merged or consolidated or reorganized into or
with another corporation or other legal person (including, without
limitation, any reorganization, merger or consolidation, including
any merger or consolidation with any affiliate of such entity), and
as a result of such merger, consolidation or reorganization the
stockholders of the Corporation immediately prior to such a
transaction no longer have at least a majority of the combined
voting power of the then-outstanding securities of such surviving,
resulting or reorganized corporation or person immediately after
such transaction, (y) a sale of all or substantially all of
the assets of the Corporation or (z) a sale of issued and
outstanding shares of capital stock of the Corporation if, as a
result of such sale, the stockholders of the Corporation
immediately prior to such a sale no longer have at least a majority
of the combined voting power of the then-outstanding securities of
the Corporation (or the purchaser in connection with such sale)
immediately after such sale.
(d)
Vacation . During the Employment Period, Employee shall be
entitled to five (5) weeks of vacation with full pay per year;
provided, that any unused vacation shall not be carried over into
the succeeding year.
(e) Other
Benefits . Employee shall be entitled to participate, to the
extent he is eligible under the terms and conditions thereof, in
all employee benefit plans generally available to other executives
of the Corporation. The Corporation hereby covenants
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