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Positiveid Corporation Employment And Non-compete Agreement

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POSITIVEID CORP | POSITIVEID CORPORATION

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Title: POSITIVEID CORPORATION EMPLOYMENT AND NON-COMPETE AGREEMENT
Governing Law: Florida     Date: 4/12/2016
Industry: Scientific and Technical Instr.     Sector: Technology

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Exhibit 10.81

 

POSITIVEID CORPORATION

EMPLOYMENT AND NON-COMPETE AGREEMENT

 

THIS AGREEMENT (“ Agreement ”), made this 8 th day of April, 2016 and effective as of January 1, 2016 (the “Effective Date”), is made by and between PositiveID Corporation , a Delaware corporation, having an address at 1690 S. Congress Ave., Suite 201, Delray Beach, FL 33445 (“ PSID ” or the “ Company ”), and Lyle L. Probst , having an address as specified in Section 14 (“ Executive ”). Hereinafter PSID and Executive may be individually referred to as “Party” and collectively referred to as “Parties”.

 

WHEREAS , PSID is a life sciences tools and diagnostics company with an extensive patent portfolio (the “Business”); and

 

WHEREAS , Executive has contributed meaningfully in his capacity as President; and

 

WHEREAS , PSID finds it is in its best interest to enhance Executive’s contribution to the Business, to protect its technologies and business relationships, and to continue engage Executive’s services as President of PSID; and

 

WHEREAS , Executive is willing to continue the fulltime role as PSID’s President.

 

NOW THEREFORE , in consideration of the promises and the mutual obligations set forth in this Agreement, the Parties agree as follows:

 

1. Employment . PSID agrees to continue to employ Executive, and Executive agrees to continue such employment by PSID, pursuant to the terms and conditions set forth in this Agreement.

 

2. Position and Responsibilities . During the term of this Agreement, as defined below, Executive shall serve as President of PSID and will perform such duties and exercise such supervision with regard to the business of PSID as are associated with such position, as well as such additional duties as may be reasonably prescribed from time to time by PSID’s Board of Directors (the “Board”). Executive agrees to render services to the best of Executive’s ability for and on behalf of PSID. Executive agrees to devote his full business time to rendering such services on behalf of PSID.

 

3. Term . Except as otherwise provided in this Section 3 of this Agreement, the term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue in force thereafter for a period of three (3) years from the Effective Date. Notwithstanding the foregoing, upon the happening of any of the following events, this Agreement shall terminate (unless otherwise provided herein for a termination after a period of time) and Executive shall cease to be an employee of PSID:

 

 

(a)

Executive’s resignation upon sixty (60) days advance written notice;

 

 

 

 

 

(b)

Executive’s Total Disability upon PSID’s election. For purposes of this Agreement, “Total Disability” shall be defined as Executive’s inability, due to illness, accident or any other physical or mental incapacity, to perform Executive’s usual responsibilities performed by Executive for PSID prior to the onset of such disability, for one hundred eighty (180) consecutive days during the Term. PSID may elect, by written notice to Executive, within thirty (30) days of the end of such period of Total Disability defined above, to terminate Executive’s employment herein;

 

 

 

 

(c)

The death of Executive;

 

 

 

 

(d)

PSID terminates this Agreement for cause, with said cause being defined as a conviction of a felony or Executive being prevented from providing services hereunder as a result of Executive’s violation of any law, regulation and/or rule.

 

 

 

 

(e)

Nothing in this Agreement is intended to limit the rights of PSID to terminate this Agreement under applicable bankruptcy laws in the event that PSID files for protection under the United States Bankruptcy Code.

 

4. Annual Compensation . (a) During the Term, Executive shall be entitled to compensation for all services performed by Executive pursuant to this Agreement (“Compensation”) as follows:

 

 

(1)

Executive shall be entitled to an initial base salary (the “Base Salary”) for the 2016 calendar year of $200,000 (two hundred thousand dollars), payable according to the customary payroll practices of PSID for the then current period. The Base Salary shall increase annually at the discretion of the Compensation Committee of the Board of Directors. The “Base Salary” shall, for all purposes of this Agreement, mean the Base Salary then being paid by PSID to Executive.

 

 

 

 

(2)

The Executive’s Base Salary shall increase to $250,000 (two hundred fifty thousand dollars) at such time as the Company’s common stock is traded on a national exchange.

 

 

 

 

(3)

During the Term, Executive shall be eligible to receive an annual bonus for each calendar year of an amount reasonably determined in the discretion of the Compensation Committee.

 

(b) PSID shall deduct from the Compensation all taxes and other deductions which are required to be deducted or withheld under any provision of any federal, state, or local law now in effect or which may become effective at any time during the Term.

 

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5. Fringe Benefits . Du ring the Term, Executive shall be entitled to all fringe benefits (the “Fringe Benefits”) provided to senior executive employees of PSID, as reasonably determined by the Compensation Committee. The Fringe Benefits shall specifically include executive health benefits which shall entitle Executive to full reimbursement for all physical examinations and other related services.

 

6. Business and Other Expenses . PSID will reimburse Executive for all reasonable travel, entertainment and other expenses incurred by Executive in connection with the performance of his duties and obligations under this Agreement. Executive will comply with all reasonable reporting requirements with respect to business expenses as may be established by PSID from time to time.

 

7. Additional Benefits . (a) Executive will be entitled to participate in all other compensation or employee benefit plans or programs and receive all benefits for which salaried employees of PSID generally are eligible under any plan or program now or later established by PSID on the same basis as similarly situated senior executives of PSID. Executive will participate to the extent permissible under the terms and provisions of such plans or programs, in accordance with program provisions.

 

(b) PSID issued 15,000,000 (fifteen million) stock options (the “Options”) in PSID to Executive on January 7, 2016, in contemplation of this agreement. The options shall vest thirty-four percent (34%) on January 1, 2017 and thirty-three percent (33%) percent, each on January 1, 2018, and January 1, 2019.

 

8. Payment Upon Termination of Agreement . (a) In the event this Agreement is terminated by Executive’s resignation pursuant to subparagraph (a) or (d) of Section 3 of this Agreement, PSID will pay to Executive any and all earned but unpaid Base Salary and earned but unpaid incentive bonus compensation as of the date of termination. PSID shall pay such amounts due Executive within thirty (30) days of Executive’s last day of service. In addition, any outstanding stock options held by Executive on Executive’s last day of service shall remain exercisable for the life of the option.

 

(b) (i) In the event this Agreement is terminated pursuant to any of subparagraphs (b) or (c) of Section 3 of this Agreement, or if PSID terminates this Agreement without cause, PSID will, in addition to maintaining the Fringe Benefits through December 31, 2018, pay to Executive the sum of (i) any and all earned but unpaid Base Salary and earned but unpaid incentive bonus compensation as of the date of termination; (ii) the greater of (A) the Base Salary from the date of termination through December 31, 2018, or (B) one (1) times the Base Salary; and (iii) the average bonus paid by PSID to Executive for the last three (3) full calendar years (or such lesser time period if the Agreement is terminated less than three (3) years from the Effective Date) immediately prior to the date of termination (collectively, the “Termination Compensation”).

 

(ii) The Termination Compensation shall be paid within thirty (30) days of Executive’s last day of service. In addition, any outstanding stock options and unvested restricted shares held by Executive on Executive’s last day of service pursuant to such termination shall become vested and exercisable as of such date of termination, and will remain exercisable for the life of the option. In addition, PSID shall maintain Executive on its group medical plan on the same conditions as if he were to remain employed by PSID, until Executive is eligible to be covered under another comparable group medical plan.

 

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(c) (i) To the extent that during the Term there shall be Change in Control, as hereinafter defined, notwithstanding any term to the contrary in this Agreement, this Agreement shall terminate in which event, the Executive shall be entitled to receive the Change in Control Compensation, as hereafter defined.

 

(ii) For all purposes of this Agreement, the Term Change in Control Compensation shall mean the sum of (A) any and all earned but unpaid Base Salary and earned but unpaid bonus compensation as of the date of the Change in Control; (B) the Base Salary multiplied by 2.0 (two); and (C) the highest annual bonus paid by PSID to Executive for any of the three (3) full calendar years immediately prior to the Change in Control, multiplied by 2.0 (two). The Change in Control Compensation shall be paid to Executive within ten (10) days of the Change in Control. In addition, any outstanding stock options and unvested restricted stock held by Executive as of the Change in Control shall become vested and exercisable as of such date, and shall remain exercisable as of the life of the option.

 

(iii) For avoidance of confusion, in the event of a Change of Control, the Executive shall be entitled to the Change of Control Compensation and not the Termination Compensation.

 

(iv) For the purposes of this Section 8, a Change of Control means the hap


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