Employment Agreement
Twincraft, Inc., with Peter Asch
Employment Agreement (the
"Agreement"), dated as of January 23, 2007 (the “Commencement
Date”), between Twincraft, Inc., a Vermont corporation (the
“Company," which term includes all subsidiaries of the
Company, whether now in existence or hereafter created, established
or acquired), and Peter Asch (the "Employee").
W I T N E S S E T H
:
Whereas, the
parties are entering into this Agreement pursuant to the terms of
that certain stock purchase agreement (the "Purchase Agreement")
dated as of November 14, 2006, among Langer, Inc., a Delaware
corporation (the "Purchaser" or the "Parent"), and the persons,
including the Employee, who, immediately prior to the closing of
the Purchase Agreement, are or were the stockholders of the Company
(such persons, including the Employee, the "Sellers"), pursuant to
which Purchase Agreement the Purchaser will acquire from the
Sellers (including the Employee) all the outstanding capital stock
of the Company;
Whereas ,
the Company desires to employ the Employee and to be assured of the
Employee's services on the terms and conditions hereinafter set
forth; and
Whereas ,
the Employee is willing to accept such employment on such terms and
conditions.
Now Therefore ,
in consideration of the mutual covenants and agreements set forth
in this Agreement, the Company and the Employee hereby agree as
follows:
1.
Term
. The
term of this Agreement shall commence on the Commencement Date and
shall expire on the third anniversary of Commencement Date (the
“Term”), subject to earlier termination as provided
herein.
2.
Duties
. (a)
During the Term of this Agreement, the Employee shall serve as the
President of the Company, or in such other executive capacity as
may be assigned to the Employee, and shall perform all duties as
may be assigned to the Employee by the Chairman of the Board of
Directors or the Chief Executive Officer of the Company or such
other person(s) as may be designated by the Board of Directors of
the Company (the “Company Board”) or the Board of
Directors of the Parent (the "Parent Board"). The Employee shall
devote the Employee's full business time and energies to the
business and affairs of the Company and the Parent and shall use
the Employee's best efforts, skills and abilities to promote the
interests of the Com pany
and the Parent, and shall diligently and competently perform the
duties of the Employee's position.
(b)
The
Employee shall report to the Chief Executive Officer of the
Company or the Parent, or such other person(s) as may be
designated by the Company Board or Parent Board and shall at
all times keep the Parent's Chief Executive Officer (or such
other officer as the Company Chief Executive Officer or the
Company Board or Parent Board may designate from time to time)
promptly and fully informed (in writing if so requested) of
the Employee's conduct and of the business or affairs of the
Company and the Parent for which the Employee is responsible,
and provide such explanations of the Employee's conduct as may
be required.
3.
Compensation, Bonus, Stock Options, Benefits,
etc.
(a)
Salary .
During the Term of this Agreement, the Company shall pay to the
Employee, and the Employee shall accept from the Company, as
compensation for the performance of services under this Agreement
and the Employee's observance and performance of all of the
provisions hereof, an annual salary at the rate of $294,000 (the
"Base Compensation"). The Base Compensation shall be payable in
accordance with the normal payroll practices of the Company and
shall be subject to withholding for applicable taxes and other
amounts. The Employee’s performance and the Base Compensation
shall be subject to annual review by the Company, provided that the
Base Compensation shall not be decreased.
(b)
Bonus .
In addition to the Base Compensation described above, the Employee
shall, in the sole and absolute discretion of the Compensation
Committee of the Parent Board, be entitled to performance bonuses
which may be based upon a variety of factors, including the
Employee’s performance and the achievement of goals, all as
determined in the sole and absolute discretion of the Parent Board
or Compensation Committee of the Parent Board. Any bonus paid to
the Employee shall be subject to withholding for applicable taxes
and other amounts. In addition, the Employee may be entitled to
participate in such other bonus plans as the Compensation Committee
of the Parent Board may, in its sole and absolute discretion,
determine. To the extent not inconsistent with the foregoing
provisions, the bonuses payable hereunder shall be determined on a
basis consistent with the past practice of the
Company.
(c)
Stock Options
. The
Company shall issue and grant to Employee options to purchase
200,000 shares of the Company’s common stock (“Common
Stock”) having an exercise price equal to the closing price
of the Common Stock on the date of grant, of which (i) 66,666
shall vest on the second anniversary of the Commencement Date;
(ii) 66,666 shall vest on the third anniversary of the
Commencement Date; and (iii) 66,667 shall vest on the fourth
anniversary of the Commencement Date. During the Term of this
Agreement the Employee will not offer for sale, sell, pledge,
assign, hypothecate or otherwise create any interest in or dispose
of (or enter into any transaction or device that is designed to, or
could reasonably be expected to, result in any of the foregoing)
any shares of Common Stock owned by the Employee on the
Commencement Date or any shares of Common Stock owned or acquired
by him after the Commencement Date upon the conversion or exercise
of options or any securities convertible into or exercisable or
exchangeable for Common Stock, without first notifying the Parent
Board in writing to inquire as to whether there exist any facts or
circumstances that would make it inadvisable for the Company or the
Parent if the Employee engaged in such transaction. The terms and
provisions of such options shall be set forth in a stock option
agreement in a form satisfactory to the Company. In addition, the
Employee may be entitled, during the term of this Agreement, to
receive such additional options, at such exercise prices and other
terms as the Compensation Committee of the Parent Board may, in its
sole and absolute discretion, determine.]
(d)
Benefits .
During the Term of this Agreement, the Employee shall be entitled
to participate in or benefit from, in accordance with the
eligibility and other provisions thereof, the Company's medical
insurance and other fringe benefit plans or policies as the Company
may make available to, or have in effect for, its senior executive
officers from time to time. The Company and its affiliates retain
the right to terminate or alter any such plans or policies from
time to time. The Employee shall also be entitled to four weeks'
paid vacation in each calendar year, sick leave and other similar
benefits in accordance with policies of the Company from time to
time in effect for its senior executive officers. Unused vacation
time and sick leave shall not be carried forward or carried back
into any subsequent or prior calendar year.
(e)
Reimbursement of Business Expenses
. During
the Term of this Agreement, upon submission of proper invoices,
receipts or other supporting documentation reasonably satisfactory
to the Company and in accordance with and subject to the
Company’s expense reimbursement policies, the Employee shall
be reimbursed by the Company for all reasonable business expenses
actually and necessarily incurred by the Employee on behalf of the
Company in connection with the performance of services under this
Agreement. In addition, the Employee shall receive a
non-accountable expense allowance at the rate of $20,000 per year,
which shall be paid monthly.
4.
Representations of Employee
.
(a)
The
Employee represents and warrants that the Employee is not
party to, or bound by, any agreement or commitment, or subject
to any restriction, including but not limited to agreements
related to previous employment containing confidentiality or
noncompetition covenants, which presently has or may in the
future have a possibility of adversely affecting the business
of the Company or the performance by the Employee of the
Employee's duties under this Agreement.
(b)
During
the Term of this Agreement and the Severance Period (as
defined in Section 7(f)), if any, the Employee agrees that the
Employee will not offer for sale, sell, pledge, assign,
hypothecate or otherwise create any interest in or dispose of
(or enter into any transaction or device that is designed to,
or could reasonably be expected to, result in any of the
foregoing) any shares of Common Stock owned by the Employee on
the Commencement Date or any shares of Common Stock owned or
acquired by him after the Commencement Date upon the
conversion or exercise of options or any securities
convertible into or exercisable or exchangeable for Common
Stock, without first notifying the Parent Board in writing to
inquire as to whether there exist any facts or circumstances
that would make it inadvisable for the Company or the Parent
if the Employee engaged in such transaction.
(c)
The
representations, warranties and covenants of this Section 4
shall survive termination of the Employee’s employment
hereunder and the expiration of the Term hereof.
5.
Confidentiality, Noncompetition, Nonsolicitation and
Non-Disparagement.
For
purposes of this Section 5, all references to the Company
shall be deemed to include the Parent and all its
subsidiaries, including the Company all its subsidiaries,
whether now existing or hereafter established or acquired. In
consideration for the compensation and benefits provided to
the Employee pursuant to this Agreement, the Employee agrees
with the provisions of this Section 5.
(a)
Confidential Information .
(i) The Employee acknowledges that as a result of the Employee's
employment, the Employee has and will continue to have knowledge
of, and access to, proprietary and confidential information of the
Company, including, without limitation, research and development
plans and results, software, databases, technology, inventions,
trade secrets, technical information, know how,
plans, specifications, methods of operations, product and service
information, product and service availability, pricing information
(including pricing strategies), financial, business and marketing
information and plans, and the identity of customers, clients and
suppliers (collectively, the “Confidential
Information”), and that the Confidential Information, even
though it may be contributed, developed or acquired by the
Employee, constitutes valuable, special and unique assets of the
Company developed at great expense which is the exclusive property
of the Company. Accordingly, the Employee shall not, at any time,
either during or subsequent to the Term of this Agreement, use,
reveal, report, publish, transfer or otherwise disclose to any
person, corporation or other entity, any of the Confidential
Information without the prior written consent of the Company,
except to responsible officers and employees of the Company and
other responsible persons who are in a contractual or fiduciary
relationship with the Company and who have a need for such
Confidential Information for purposes in the best interests of the
Company, and except for such Confidential Information which is or
becomes of general public knowledge from authorized sources other
than the Employee.
(ii)
The
Employee acknowledges that the Company would not enter into
this Agreement without the assurance that all the Confidential
Information will be used for the exclusive benefit of the
Company.
(b)
Return of Confidential Information
.
Upon the termination of this Agreement or upon the request of the
Company, the Employee shall promptly return to the Company all
Confidential Information in the Employee's possession or control,
including but not limited to all drawings, manuals, computer
printouts, computer databases, disks, data, files, lists,
memoranda, letters, notes, notebooks, reports and other writings
and copies thereof and all other materials relating to the
Company’s business, including without limitation any
materials incorporating Confidential Information.
(c)
Inventions, etc .
During the Term and for a period of one year thereafter, the
Employee will promptly disclose to the Company all designs,
processes, inventions, improvements, developments, discoveries,
processes, techniques, and other information related to the
business of the Company conceived, developed, acquired, or reduced
to practice by the Employee alone or with others during the Term of
this Agreement, whether or not conceived during regular working
hours, through the use of Company time, material or facilities or
otherwise (“Inventions”).
The
Employee agrees that all copyrights created in conjunction
with the Employee's service to the Company and other
Inventions, are “works made for hire” (as that
term is defined under the Copyright Act of 1976, as amended).
All such copyrights, trademarks, and other Inventions shall be
the sole and exclusive property of the Company, and the
Company shall be the sole owner of all patents, copyrights,
trademarks, trade secrets, and other rights and protection in
connection therewith. To the extent any such copyright and
other Inventions may not be works for hire, the Employee
hereby assigns to the Corporation any and all rights the
Employee now has or may hereafter acquire in such copyrights
and any other Inventions. Upon request the Employee shall
deliver to the Company all drawings, models and other data and
records
|
