Employment Agreement
Twincraft, Inc., with Richard 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 Richard 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 second anniversary of the Commencement Date
(the “Term”), subject to earlier termination as
provided herein.
2.
Duties
. (a)
During the Term of this Agreement, the Employee shall serve in such
managerial capacity as may be assigned to the Employee, and shall
perform all duties as may be assigned to the Employee by the Chief
Executive Officer of the Company or the Chairman of the Board of
Directors 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"). From the
Commencement Date until July 1, 2007 (the “Initial
Period”) the Employee will be a full-time employee of the
Company and shall devote the Employee's full business time and
energies to the business and affairs of the Company and the Parent.
From July 1, 2007 until the second anniversary of the Commencement
Date (the “Remaining Period”), the Employee will be a
part-time employee of the Company and shall use the Employee's best
efforts, skills and abilities to promote the interests of the
Company and the Parent, and to 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 Company'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 .
For the period from the date hereof through December 31, 2007, 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
$149,000 (the "First Year Compensation"). Thereafter and to the end
of the Term, 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 $30,000 (the "Second Year
Compensation" and, collectively with the First Year Compensation,
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.
(b)
Benefits .
During the Term, 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 three 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.
(c)
Reimbursement of Auto Expense
. During
the Term of this Agreement, the Company shall make payments for the
Employee’s car lease (but not in excess of $800 per month)
which will continue until the earlier of (i) April 2008 or (ii) the
termination of the Employee under any of the provisions as stated
in Section 7 of this Agreement.
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, 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
Chief Executive Officer of the Parent 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
right
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