U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): Sept 15, 2000
COMMISSION FILE NUMBER: 0-21322
OUTT TAKES, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-4363944
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(State or jurisdiction of incorporation (I.R.S. Employer I.D. No.)
or organization
3811 Turtle Creek Blvd., Suite 350
Dallas, Texas75219
(Address of principal executive offices) (Zip Code)
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Registrant's telephone number: (214)528-8200
Not applicable
(Former name or former address, if changed since last report)
Item 1. Changes in Control of Registrant
On or about November 2, 2000, the registrant entered into a share exchange
agreement with Atlas Power, Inc., whereby the registrant acquired 100% of the
outstanding share capital of Atlas Power, Inc. in exchange for an amount of the
registrant's shares of common stock which is the equivalent of $915,000. The
exact number of shares is to be determined, after the registrant has effected
an intended 1-100 reverse split of its share capital. Assuming the current
outstanding shares of 20,788,122, and the current market bid price of
approximately one cent per share, this share exchange would result in a change
of control of the registrant, in favor of Kenneth L. Kinlaw and Jody P.
Lenihan, the shareholders of Atlas Power, Inc.
Item 2. Acquisition or Disposition of Assets
The acquisition agreement resulted in the acquisition by the registrant of
the business of Atlas Power, which complements and extends the existing
business of the registrant.
Business-In General
Atlas Power is engaged in the business of power system and control system
engineering for owners, engineers, manufacturers and construction companies
serving the power industry.
Atlas provides electrical design, project management, acceptance testing,
startup and system studies for power plants and industrial facilities both
domestically and internationally. Atlas offers in house electrical engineering
and on-site development.
Services
Atlas provides comprehensive power system design, system studies, and battery
energy storage system design, including, but not limited to:
Susbtation design
Power transmission and design
Generation/co-generation
Power quality management
Energy storage systems
Protective device coordination
Short circuit analysis
Harmonic analysis
Motor starting studies
Power factor correction
Demand control/peak loading shedding
Feasibility studies
Project management
Emergency and UPS systems
Variable speed drives
Motor control
Grounding systems
SCADA
Control systems analysis, configurations and upgrades
CAD construction drawings
Property
Atlas maintains approximately 400 square feet of offices at 24782 Lagrima,
Mission Viejo, California 92692; Telephone (949) 707-5699. Atlas considers the
office space adequate for its use. It rents its office space from officer and
director, Jody Lenihan, at no cost to Atlas.
Atlas owns the domain name and web site, www.atlaspower.com, and the
following intellectual property:
Test Form Design Format and layout of the following power systems test forms:
Cable Hi-Pot, Battery, Bus Duct, Ground Resistance, Instrument Transformer,
Insulation Resistance, Low Voltage Circuit Breaker, Medium Voltage Circuit
Breaker, Metering, Relay, Transformer Turns Ratio, and Vector Diagram.
MP&L Hydro turbine Retrofit Design Atlas Hydro turbine control systems
retrofit record CAD drawings for Chester and Purple Lake facilities.
Multi-Use Test Box/Hi-current Design Capable of 240 amps AC or DC at 5 volts,
1.2 amps at 1000 volts AC, or 10 amps at 120 volts AC. Integral timer and
current metering. Unit is designed for low resistance ohm tests at 100 amps,
circuit breaker primary injection tests, motor overload injection and timing
tests, and universal heavy duty power supply (charging circuit breakers,
excitation tests).
Multi-Use Test Box/CT-PT Design Capable of 1.2 amps at 1000 volts AC, 10 amps
at 120 volts AC, 10 amps at 125 volts DC or regulated 10 amps at 5 volts DC.
Integral current metering. Unit is designed for current and potential
transformer tests (ratio, polarity, excitation), low resistance ohm tests at 10
amps, and universal power supply.
Portable Circuit Tester Design Capable of 20 amps at 2.5 volts AC, and 120-
80-40 volts AC. Integral battery power supply, and voltage and current
metering. Unit is designed for current and potential transformer circuit
checks.
Competition
There are many companies engaged in power systems engineering and testing with
greater financial resources than Atlas. Many large power companies, such as
General Electric and Bechtel have their own testing and engineering
departments.
Government Regulation
Atlas conducts its engineering business through engineers licensed in the state
of California. There are no other governmental regulations other than
professional licensing which have an effect on its business.
Employees
Atlas employs four full time employees and two part time employees, including
consultants. Two of the employees, Kenneth Kinlaw and Jody Lenihan, are
management. Atlas is not subject to any collective bargaining agreements and
management believes that employee relations are excellent.
Item 3. Bankruptcy or Receivership
Not Applicable
Item 4. Changes in Registrant's Certifying Accountant
Not Applicable
Item 5. Other Events
As a result of the share exchange agreement, the company added a director
to its board of directors and effected a change in management, as follows:
DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS; COMPLIANCE WITH
SECTION 16(a) OF THE EXCHANGE ACT
Name Age Position
---------------- --- ----------------------
James. C. Harvey 51 Chairman, Director
Kenneth L. Kinlaw 36 CEO, Secretary,
President, Atlas Power
Jody P. Lenihan 34 Vice President, Chief Executive
Officer, Director,
CFO Atlas Power
James C. Harvey. Mr. Harvey is the current Chairman and director of the
company. He served as President, Chief Executive Officer, Secretary and sole
Director of the Company, from 1998 through November 2, 2000. He is a practicing
attorney at law with emphasis on business, real estate, banking and finance.
Mr. Harvey previously was of Counsel to Ludwick & Anderson providing legal
services for the Resolution Trust Corporation in connection with the
receivership of seven thrifts, and prior thereto was the Managing Partner of
Simpson, Dowd, Kaplan & Moon, where he managed all business affairs for the
firm. He received his B.B.A., Accounting Banking & Finance in 1963, and J. D.
in 1966, both from Southern Methodist University.
Kenneth L. Kinlaw. Mr. Kinlaw is the current Chief Executive Officer and
Secretary of the Company, and has served in that capacity since November 2,
2000. He is also the president of Atlas Power, and has served in that capacity
since January, 1998. From March, 1996 through January, 1998, he was employed as
the principal engineer of Atlas Engineering. From Janaury, 1995 through March,
1996, he served as a contract field engineer in Tijeras, New Mexico. From June,
1990 through February, 1995 he was employed by Electro-Test, Inc. as a field
engineer. From May, 1989 through May, 1990, he acted as a project engineer for
MMR Constructors, Inc., and from June, 1985 through April, 1989, he served as
field engineer for Southwest Engineers of Louisiana, Inc. He holds a B.S. in
Electrical Engineering from Louisiana State University, and is a registered
professional engineer in the states of Louisiana and California.
Jody P. Lenihan. Mr. Lenihan is the current Vice President, Chief Financial
Officer and Director of the company since November 2, 2000. He has also served
as the Chief Financial Officer of Atlas Power since January, 1998. From
December, 1996 through January, 1998, he was employed as the principal engineer
of Atlas Engineering. From August, 1995 through November, 1996, he served as
Design/Field Engineer for Electro-Test, Inc. From June, 1990 through July,
1992, he was employed as a design/project engineer for Magna IV Engineering,
Ltd., in Edmonton, Alberta, Canada. He holds a B.S. in Engineering from the
University of Alberta, and is a registered engineer in the states of
California, Florida and Alberta, Canada.
EXECUTIVE COMPENSATION
No executive salaries were paid to officers or directors in the last
fiscal year, and to date in the present fiscal year. There were no grants of
options or SAR grants given to any executive officers during the last fiscal
year. The Chairman and director of the Company, James Harvey, is paid $850 per
month for rent of the Company's offices, and is reimbursed monthly for company
telephone expenses.
The Company has entered into employment agreements with Kenneth L. Kinlaw
and Jody P. Lenihan, which each provide for a base salary of $96,000 per year,
plus a bonus of not less than 10% of the net annual profits of the company. The
initial term of the employment agreement is up to September 30, 2003.
Item 6. Resignations of Registrant's Directors
Not Applicable
Item 7. Financial Statements and Exhibits
(a) Financial Statements of Business Acquired.
It is impracticable to provide the required financial statements for the
acquired business referred to in Item 2 above. The registrant intends to file
such financial statements as soon as practicable, but not later than 60 days
after the report on Form 8-K must be filed with respect to such acquisition.
(b) Pro forma Financial Information.
Not applicable.
(c) Exhibits.
There is attached hereto the following exhibits:
Exhibit 1. Share Exchange Agreement dated November 2, 2000
Exhibit 2. Employment Agreement for Kenneth L. Kinlaw dated November 2, 2000
Exhibit 3. Employment Agreement for Jody P. Lenihan, dated November 2, 2000
SIGNATURES
Pursuant to the requirements of the Securities Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Dated: December 13, 2000
Out Takes, Inc.
/s/ Jody P. Lenihan
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By: Jody P. Lenihan
Vice President, C.F.O., Director
[CAPTION]
EXHIBIT 1
SHARE EXCHANGE AGREEMENT
THIS AGREEMENT (hereinafter "the agreement"), is made and entered into as of
the 2nd day of November, 2000, by and between OUT-TAKES, INC. (hereinafter
"OUTT"), a publicly held Delaware corporation, and ATLASPOWER, INC., a
California corporation (hereinafter "Atlas"), and the several shareholders of
Atlas (hereinafter "Atlas shareholders"), who agree as follows:
1. RECITALS:
This agreement is made and entered into with reference to the following facts
and circumstances:
A. OUTT wishes to acquire 100% of the outstanding share capital of Atlas, to
be exchanged for shares of OUTT, pursuant to the terms and conditions set forth
in this agreement;
B. There are currently outstanding 20,788,122 (20,788,122) shares of common
stock of OUTT and 20,000 shares of common stock of Atlas. All of the issued
and outstanding shares of Atlas and OUTT common stock are duly authorized,
validly issued, fully paid and nonassessable.
2. VALUATION:
The number of OUTT shares to be exchanged for the outstanding shares of Atlas
(the "exchange formula") shall be determined by applying a net asset value of
Nine Hundred Fifteen Thousand Dollars ($915,000). For purposes of determining
the ratio of share exchange, the net asset value shall be divided by the number
of Atlas shares then outstanding. The exchange of shares shall be effected
through an escrow, in the manner specified below in the paragraphs entitled
"Escrow provisions" and "Closing."
The exchange formula shall be calculated, and the ratio of share exchange
determined, based upon one-half of the bid price of OUTT stock as of the close
of trading on the day of the second closing, or $2.00, whichever is higher.
Based upon this ratio of share exchange, sufficient shares to represent the
value of 100% of Atlas common stock shall be delivered to the Atlas
Shareholders by the Exchange Agent and the remaining balance of OUTT shares, if
any, held by the Exchange Agent shall be returned to OUTT.
3. EXCHANGE OF STOCK.
The exchange of stock pursuant to subparagraph 2A, is intended to be treated as
a transfer with respect to which no gain or loss is recognized pursuant to
Section 351 of the Internal Revenue Code of 1986, as amended (the "Code") and
the parties hereto agree to take any steps necessary in order to effect the
contribution in such a manner as to comply with the requirements of Code
Section 351. It is intended that the acquisition of Atlas shall constitute a
reorganization within the meaning of Section 368(a) of the Internal Revenue
Code and the parties hereto agree to take the necessary actions to structure
the acquisition in a manner which will not result in the recognition of any
gain by the shareholders of either OUTT or Atlas.
4. CLOSING
A. There shall be a two-part closing of this exchange. The first closing
shall take place at the time of the parties' execution hereof, effective as of
the date first written above, at a mutually agreed upon location, or through
exchange by facsimile or mail, and at the first closing, or as soon as
practicable thereafter, but no later than ten days thereafter, Atlas shall
deliver to the Exchange Agent certificates representing 100% of the common
share capital of Atlas, and OUTT shall deliver to the Exchange Agent such
number of shares of its common stock which will be sufficient to exchange for
the shares of Atlas common stock, as contemplated by this agreement, based on a
value of $4.00 per share.
B. The second closing shall take place on a date when the OUTT shares have
been traded for a 60 consecutive day period at a bid price of $3.00 per share
or more, or such other date as the parties mutually agree, not to exceed one
hundred and eighty days (180) from the first Closing Date.
5. ESCROW PROVISIONS
A. David Lefkowitz, Attorney at Law will serve as the Exchange Agent for
purposes of the transactions contemplated in this Agreement. By signing this
agreement, each party acknowledges and agrees that the Exchange Agent is
designated, appointed, and authorized to serve in such capacity by such party,
and each such party hereby waives any claim, including without limitation, any
claim of conflict of interest, arising out of or related to the performance of
such services on behalf of the parties hereto.
B. The Second Closing shall occur on such a date as the parties hereto have
jointly instructed the Exchange Agent, in a manner acceptable to the Exchange
Agent in its sole discretion, to effect an exchange of each parties' shares as
contemplated herein, by sending such joint instructions to:
Mr. David Lefkowitz, Esq.
1299 Ocean Avenue, Suite 900
Santa Monica, California 90401
C. In the event the second closing does not take place as contemplated herein
or otherwise terminated, the Exchange Agent shall be notified of such
termination, whereupon the Exchange Agent shall promptly return to each
respective party such shares as may have been delivered to the Exchange Agent
at such address as may be furnished to the Exchange Agent, by each respective
party.
D. The second closing of the exchange and other transactions contemplated by
this Agreement shall take place at the offices of Los Alamos Energy, at 466
Bell Street, Los Alamos, CA 93440, at such time and place as the parties may
mutually agree, which date shall be within thirty (30) days after the date on
which the latest to occur of the conditions precedent to second closing set
forth herein.
E. The Exchange Agent shall not incur any liability for the holding of the
certificates or the delivery, release or cancellation of the shares in
accordance with this agreement. In the event of a dispute between the parties,
the Exchange Agent shall be entitled to deliver the shares to a court of
competent jurisdiction and interplead. The parties shall indemnify and hold
harmless the exchange Agent from any and all liability, costs, fees, awards, or
judgments which they may incur as a result of the holding, distribution and/or
cancellation of the shares.
6. CONDITIONS PRECEDENT TO SECOND CLOSING DATE
A. The exchange of Atlas stock for OUTT stock is conditioned upon the
following:
(I). The parties shall have agreed upon the implementation and funding of a
three year business plan and budget for Atlas' operations.
(ii). Employment agreements, detailing duties and responsibilities, and
approved by OUTT, shall have been entered into between Atlas and Jody Lenihan
and Kenneth Kinlaw.
(iii). The nomination by the Chairman of the Board of Directors of OUTT for the
election of one Atlas Shareholder to the Board of Directors of OUTT.
(iv). OUTT shares shall be publicly traded and their value reported daily on a
national stock exchange.
(v). The effectuation of a 1-100 reverse split of the common share capital of
OUTT.
(vi). Except for the reverse split, there shall be no material adverse change
in the business or condition (financial or otherwise) of OUTT, since the
execution of the letter of intent by the parties.
(vii). There shall not have been instituted or threatened any legal proceeding
(a) relating to, or seeking to prohibit or otherwise challenge this Agreement
or the consummation of the transactions contemplated by this Agreement, or
seeking to obtain substantial damages with respect thereto, or (b) that OUTT
shall reasonably determine may have a material adverse effect or have a
material adverse effect on the ownership or operation of Atlas by OUTT after
the second closing date.
(viii). The satisfactory completion of its due diligence investigation of OUTT
and its business, operations and officers and directors by Atlas.
B. The exchange of OUTT stock for Atlas stock is conditioned on the following:
(I). There shall have been no material adverse change in the business or
conditions (financial or otherwise) of Atlas since the execution of the letter
of intent by the parties.
(ii) There shall not have been instituted or threatened any legal proceeding
(a) relating to, or seeking to prohibit or otherwise challenge this Agreement
or the consummation of the transactions contemplated by this Agreement, or
seeking to obtain substantial damages with respect thereto, or (b) that Atlas
shall reasonably determine may have a material adverse effect or have a
material adverse effect on the ownership or operation of Atlas by OUTT after
the second closing date.
(iii). The satisfactory completion of its due diligence investigation of Atlas
and its business, operations and officers and directors by OUTT.
7. REPRESENTATIONS AND WARRANTIES OF OUTT
OUTT represents and warrants the following:
A. That OUTT is a corporation duly formed and validly existing and in good
standing under the laws of the state of Delaware, and that it has all necessary
corporate powers to own its properties and carry on its business as now owed
and operated by it.
B. OUTT has the full corporate power, right and authority to make, execute,
deliver and perform this Agreement and all other instruments and documents
required or contemplated hereunder, and to take all steps and to do all things
necessary and appropriate to consummate the transactions contemplated herein.
Such execution, delivery and performance of this Agreement and all other
instruments and documents to be delivered hereunder have been duly authorized
by all necessary corporate action on the part of OUTT, and will not contravene
or violate or constitute a breach of the terms of either of their Articles of
Incorporation or By-Laws or conflict with, result in a breach of, or entitle
any party to terminate or call a default with respect to any instrument or
decree to which either is bound or any contract or any instrument, judgment,
order, decree, law, rule or regulation applicable to either of them. OUTT is
not a party to, or subject to, or bound by any judgment, injunction, or decree
of any court or governmental authority or agreement which may restrict or
interfere with its performance of this Agreement. This Agreement has been duly
executed and delivered and constitutes, and the other instruments and documents
to be delivered by OUTT hereunder will constitute, the valid and binding
obligations of both of them, enforceable against each of them in accordance
with their respective terms.
C. Except as otherwise set forth herein, no consent of any party to any
contract or arrangement to which OUTT is a party or by which either is bound is
required for the execution, performance, or consummation of this Agreement and
such other documents and instruments by OUTT.
D. There are no actions, suits, proceedings, orders, investigations or claims
pending or, to OUTT's knowledge, threatened against OUTT, at law or in equity,
which may restrict or interfere with the ability of OUTT to perform this
Agreement.
E. OUTT's representations and warranties contained in this Section 7 will be
accurate, true and correct, in all respects, on and as of the date of the
second closing as though made at such date in identical language.
F. All of OUTT's assets are free and clear of security interests, liens,
pledges, charge and encumbrances, equities or claims, except those obligations
to shareholders and others as reported on its financial statements.
G. The shares of OUTT being transferred pursuant to this agreement will be
validly and legally issued and not subject to any security interests, liens,
pledges, charges, encumbrances or proxies of any kind, with the exception that
they will bear a legend as follows: "THE SHARES REPRESENTED BY THIS CERTIFICATE
HAVE BEEN ACQUIRED FOR INVESTMENT, AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). WITHOUT SUCH REGISTRATION, THE
SHARES MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF, EXCEPT UPON DELIVERY TO THE COMPANY AN OPINION
ACCEPTABLE TO COUNSEL OF THE COMPANY, THAT REGISTRATION IS NOT REQUIRED FOR
SUCH TRANSFER OR OTHER DISPOSITION."
H. Neither OUTT, nor any of its officers and directors has ever been convicted
of any felony; nor have they been the subject of any temporary or permanent
restraining order resulting from unlawful transactions in securities; nor are
they now, or have they ever been, a defendant in any lawsuit alleging unlawful
business practices or the unlawful sale of securities; nor have they been the
debtor in any proceedings, whether voluntary or involuntary, filed in the U.S.
Bankruptcy Court.
I. Neither OUTT nor any of its directors or officers have taken any action
that would prevent the accounting for the Share Exchange as a pooling of
interests in accordance with Accounting Principles Board Opinion No. 16, the
interpretative releases pursuant thereto and the relevant pronouncements of the
Securities and Exchange Commission (the "SEC").
J. OUTT confirms that Atlas and the Atlas Shareholders, and each of them, have
made available to OUTT and its representatives and agents the opportunity to
ask questions of the officers and management employees of Atlas and to acquire
such additional information about the business and financial condition of Atlas
as OUTT has requested, and all such information has been received by OUTT.
8. REPRESENTATIONS AND WARRANTIES OF ATLAS
Atlas hereby represents and warrants as follows:
A. That Atlas is a corporation duly formed and validly existing and in good
standing under the laws of the state of California, and has all necessary
corporate powers to own its properties and carry on its business as now owed
and operated by it.
B. Atlas has the full power, right and authority to make, execute, deliver and
perform this Agreement and all other instruments and documents required or
contemplated hereunder, and to take all steps and to do all things necessary
and appropriate to consummate the transactions contemplated herein. Such
execution, delivery and performance of this Agreement and all other instruments
and documents to be delivered hereunder, and will not contravene or violate or
constitute a breach of the terms of Atlas's Articles of Incorporation or By-
Laws or conflict with, result in a breach of, or entitle any party to terminate
or call a default with respect to any instrument or decree to which Atlas is
bound or any contract or any instrument, judgment, order, decree, law, rule or
regulation applicable to it. Atlas is not a party to, or subject to, or bound
by any judgment, injunction, or decree of any court or governmental authority
or agreement which may restrict or interfere with Atlas's performance of this
Agreement. This Agreement has been duly executed and delivered and constitutes,
and the other instruments and documents to be delivered by Atlas hereunder will
constitute, the valid and binding obligations of Atlas, enforceable against
Atlas in accordance with their respective terms.
C. Except as otherwise set forth herein, no consent of any party to any
contract or arrangement to which Atlas is a party or by which either is bound
is required for the execution, performance, or consummation of this Agreement.
D. There are no actions, suits, proceedings, orders, investigations or claims
pending or, to Atlas's knowledge, threatened against Atlas, at law or in
equity, which may restrict or interfere with the ability of Atlas to perform
this Agreement.
E. Atlas's representations and warranties contained in this Section 8 will be
accurate, true and correct, in all respects, on and as of the date of the
second closing as though made at such date in identical language.
F. To the best of Atlas's knowledge, Atlas has not infringed and is not now
infringing, on any trade name, trademark, servicemark or copyright belonging to
any other person, firm or corporation. Atlas is not a party to any license,
agreement, or arrangement, whether as licensor, licensee, or otherwise, with
respect to any trademarks, servicemarks, trade names, copyrights of Atlas, or
applications for them.
G. The shares of Atlas being transferred pursuant to this agreement will be
validly and legally issued and not subject to any security interests, liens,
pledges, charges, encumbrances or proxies of any kind.
H. Neither Atlas, nor any of its officers and directors, has never ever been
convicted of any felony; nor have they been the subject of any temporary or
permanent restraining order resulting from unlawful transactions in securities;
nor are they now, or have they ever been, a defendant in any lawsuit alleging
unlawful business practices or the unlawful sale of securities; nor have they
been the debtor in any proceedings, whether voluntary or involuntary, filed in
the U.S. Bankruptcy Court.
I. Neither Atlas nor any of its directors or officers or any of the Atlas
Shareholders have taken any action taken that would prevent the accounting for
the Share Exchange as a pooling of interests in accordance with Accounting
Principles Board Opinion No. 16, the interpretative releases pursuant thereto
and the relevant pronouncements of the Securities and Exchange Commission.
J. Atlas has no Subsidiaries. Atlas has one Affiliate, Atlas Engineering, LLC,
a Delaware limited liability company ("Atlas LLC"); Atlas LLC will be merged
with Atlas and will no longer exist prior to the second closing date. All of
the assets, properties, rights and interests of Atlas LLC will be owned by
Atlas prior to the second closing date. The Business has been conducted solely
through Atlas and Atlas LLC at all times since each entity's formation. Atlas
LLC owned all of the assets and interests of Atlas LLC free and clear of any
and all liens, and there was and is no outstanding right to purchase or
otherwise receive any interests in the membership interests or other rights of
Atlas LLC.
K. Atlas confirms that OUTT has made available to it and its representatives
and agents the opportunity to ask questions of the officers and management
employees of OUTT and to acquire such additional information about the business
and financial condition of OUTT as Atlas has requested, and all such
information has been received by Atlas.
9. REPRESENTATIONS AND WARRANTIES OF ATLAS SHAREHOLDERS
Each Atlas shareholder represents and warrants, as follows:
A. Each Atlas shareholder is an individual, residing in the state of California
or New Mexico, and has full power and capacity to enter into, execute and
perform this Agreement, which Agreement, once executed by such Atlas
Shareholder, shall be the valid and binding obligation of such party.
B. Atlas shareholder is not bound by or subject to any contract, agreement,
law, court order or judgment, administrative ruling, regulation or any other
item which prohibits or restricts such party from entering into and performing
this Agreement in accordance with its terms, or requiring the consent of any
third party prior to the entry into or performance of this Agreement in
accordance with its terms by such party.
C. With respect to the common shares being exchanged by such Atlas shareholder,
Atlas shareholder is acquiring the shares for own account, and not with a view
toward the subdivision, resale, distribution or fractionalization thereof;
Atlas shareholder has no contract, undertaking or arrangement with any person
to sell, transfer, or otherwise dispose of the shares or any portion thereof
and has not present intention to enter into any such contract; the entry into
this exchange is not as the result of any form of general solicitation or
advertising.
D. Atlas shareholder acknowledges the following:
(I) That Atlas shareholder is an "accredited investor" within the meaning of
Rule 501 of Regulation D promulgated by the Securities and Exchange Commission;
(ii) That Atlas shareholder has been advised to consult with an attorney and
tax consultant regarding this transaction and has done so or has elected not to
do so;
(iii) That the shares of OUTT exchanged for the shares of Atlas shareholder
shall be legended as restricted shares, and shall be transferable only in the
event of registration of the shares with the SEC or appropriate exemption
therefrom, or pursuant to Rule 144 promulgated by the SEC.
(iv) That the offer of this exchange was made through direct personal
communication between the parties; that Atlas shareholder has had full access
to all corporate records and financial statements of OUTT; and that Atlas
shareholder understands and acknowledges that he or she must be prepared to
bear the economic risk of such investment for an indefinite period.
(v) That Atlas Shareholder confirms that OUTT has made available to it and its
representatives and agents the opportunity to ask questions of the officers and
management employees of OUTT and to acquire such additional information about
the business and financial condition of OUTT as such Atlas Shareholder has
requested, and all such information has been received by such Atlas
Shareholder.
10. BOTH PARTIES' OBLIGATIONS BEFORE SECOND CLOSING DATE
A. Access to Information: OUTT, Atlas, and their authorized representatives
shall have full access to all books, accounts, records, contract, tax returns
and other documents as may be reasonably requested by the parties to conduct a
thorough due diligence review necessary for each party to determine if all
conditions and warranties contained in this agreement have been complied with.
B. Confidential Information: All parties hereto mutually agree that, during
the course of negotiations, the parties have exchanged certain confidential
information, including, without limitation, financial records, names of
customers and employees, pricing information, employee compensation,
merchandising or sales techniques, computer programs, and other confidential
information (collectively "confidential information"). As to any such
confidential information, each of the parties agrees that it, its officers,
directors and employees, agents and representatives will:
(I) Make no use whatsoever of such confidential information except for the
purpose of negotiating for and carrying out the transactions set forth in this
agreement;
(ii) Accept and hold such confidential information as secret and confidential
and not disclose, divulge or communicate such confidential information, the
fact that it has been disclosed to them, or the circumstances under which it
has been disclosed to them, to any third person or entity; and
(iii) Take all necessary and appropriate steps to insure the secrecy of such
confidential information in possession of each of them, including, but not
limited to, revealing the confidential information only to such of its
officers, directors, employees, agents, and representatives who need to know
the confidential information for the purposes of investigating, negotiating,
and effecting the transactions described above, and who are informed by it of
the confidential nature of the confidential information.
11. TERMINATION
A. This Agreement and the transactions contemplated hereby may be terminated
at any time on or prior to the second closing date:
(I) by the mutual written consent of the parties hereto;
(ii) by OUTT:
a) if any representation or warranty of Atlas or any Atlas Shareholder made
in this Agreement was untrue in any material respect when made or is untrue in
any material respect on the second closing date;
b) if Atlas or any of the Atlas Shareholders shall have breached or defaulted
in any material respect in the performance of any covenant, agreement or
obligation under the Agreement, and such default is not curable or is not cured
within thirty (30) days after Atlas's receipt of written notice from OUTT that
such default exists or has occurred; provided, however, that if the breach is
curable but is not curable within thirty (30) days, such thirty (30) day period
shall be extended, but in no event past January 1, 2001, as long as Atlas
and/or the Atlas Shareholders promptly commence and diligently pursue such
cure; or
c) if the conditions to OUTT's obligations to consummate the transaction
contemplated hereby are not or cannot be satisfied on or before thirty (30)
days subsequent to the execution of this Agreement for any reason other than a
breach by OUTT.
(iii) by Atlas:
a) if any representation or warranty of OUTT made in the Agreement was untrue
in any material respect when made or is untrue in any material respect on the
second closing date;
b) if OUTT shall have breached or defaulted in any material respect in the
performance of any covenant, agreement or obligation under this Agreement, and
such default is not curable or not cured within thirty (30) days after OUTT's
receipt of written notice from Atlas that such default exists or has occurred;
provided, however, that if the breach is curable but is not curable within
thirty (30), such thirty (30) day period shall be extended, but in no event
past January 1, 2001, as long as OUTT promptly commences and diligently pursues
such cure; or
c) if the conditions to Atlas's and the Atlas Shareholder' obligations to
consummate the transactions contemplated hereby are not or cannot be satisfied
on or before thirty (30) days subsequent to the execution of this Agreement for
any reason other than a breach by Atlas or any Atlas Shareholder.
B. In the event of the termination of the Agreement prior to the second
closing date, written notice thereof shall forthwith be given to the non-
terminating parties, and the Agreement shall terminate and the transactions
contemplated hereunder shall be abandoned without further action by any party
hereto.
C. In the event of the termination of the Agreement prior to the second
closing date, all rights and obligations of the parties hereunder shall
terminate without liability on the part of any party hereto, except that this
subparagraph 11C shall not relieve any party from any liability that such party
would otherwise have under applicable law for any misrepresentation or breach
of this Agreement.
D. Provisions in the Agreement for confidential information, as set forth in
subparagraph 10B, shall survive the termination of this agreement.
12. INDEMNIFICATION
A. All representations and warranties contained in sections 7 and 8 of this
Agreement shall survive the second closing and continue in full force and
effect through and until the first anniversary of the second closing date,
notwithstanding any investigation made by or on behalf of any party hereto, and
shall not be considered waived by the consummation of the transactions
contemplated by this Agreement.
B. Atlas and the Atlas Shareholders, severally, shall indemnify, protect,
defend and hold harmless OUTT, its affiliates and the successors, assigns,
officers, directors, employees, partners and agents of any of them (the "OUTT
Indemnified Parties"), promptly upon demand at any time and from time to time,
from and against, and shall reimburse the OUTT Indemnified Parties for (I) any
and all actions, proceedings, demands and claims asserted against any OUTT
Indemnified Party by any person that is not a party to this Agreement,
including, without limitation, a Governmental Entity (a "Third Party Claim"),
and (ii) any and all losses, liabilities (of every kind or nature, whether
accrued, absolute, contingent or otherwise, whether asserted or unasserted, and
whether due or to become due), damages, charges, liens, deficiencies
(including, without limitation, any deficiency between the represented or
warranted value of any asset and its actual value) or expenses of any nature,
including, without limitation, reasonable attorneys' fees and expenses
(collectively, "Damages") suffered or incurred by, or assessed against, any
OUTT Indemnified Party, as a result of a Third Party Claim, or as a result of a
breach by the indemnifying party of a representation or warranty made to OUTT,
in each case to the extent arising out of or resulting from (a) the inaccuracy
of any representation or warranty made by the indemnifying party in this
Agreement or in any other document, schedule or instrument delivered in
connection herewith; or (b) the failure by the indemnifying party to perform or
observe any term or provision of this Agreement or of any other document,
schedule or instrument delivered in connection herewith to be performed or
observed by the indemnifying party. Without limiting the generality of the
foregoing, the indemnifying party shall pay any OUTT Indemnified Party
asserting any claim for indemnification based upon a misrepresentation or
breach of warranty, covenant or obligation, an amount sufficient to provide
such OUTT Indemnified Party with the same value that it would have received
under this Agreement had such representation or warranty been accurate or had
such covenant or obligation not been breached, as the case may be, net of any
tax benefit received by such OUTT Indemnified Party in connection therewith
(but after taking into account any amounts to be received hereunder).
C. OUTT shall indemnify, protect, defend and hold harmless Atlas and its
successors, assigns, Atlas Shareholders, officers, directors, employees,
partners and agents (the "Atlas Indemnified Parties"), promptly upon demand at
any time and from time to time, from and against, and shall reimburse the Atlas
Indemnified Parties for (I) any and all Third Party Claims, and (ii) all
Damages suffered or incurred by or assessed against any Atlas Indemnified
Party, whether as a result of a Third Party Claim or as a result of a breach by
a party to this Agreement of a representation or warranty made to another party
to this Agreement, in each case to the extent arising out of or resulting from
(a) the inaccuracy of any representation or warranty made by OUTT in this
Agreement or in any other document, schedule or instrument delivered in
connection herewith; or (b) the failure by OUTT to perform or observe any term
or provision of this Agreement or of any other document, schedule or instrument
delivered in connection herewith to be performed or observed by OUTT. Without
limiting the generality of the foregoing, OUTT shall pay any Atlas Indemnified
Party asserting any claim for indemnification based upon a misrepresentation or
breach of warranty, covenant or obligation, an amount sufficient to provide
such Atlas Indemnified Party with the same value that it would have received
under this Agreement had such representation or warranty been accurate or had
such covenant or obligation not been breached, as the case may be, net of any
tax benefit received by such Atlas Indemnified Party in connection therewith
(but after taking into account any amounts to be received hereunder).
D. If any Third Party Claims are instituted or asserted in respect of which
any of the OUTT Indemnified Parties or the Atlas Indemnified Parties may seek
indemnification from another party hereto pursuant to the provisions of this
Article 12, the indemnified party (after receipt by it of written notice of the
commencement or assertion of such Third Party Claim) shall promptly cause a
written notice of such Third Party Claim to be made to the indemnifying party
(but the failure to give such notice shall not relieve the indemnifying party
of its indemnification obligation hereunder, except to the extent of losses
actually caused by such failure. An indemnified party shall not be entitled to
indemnification under this Article 12, whether as a result of a Third Party
Claim or otherwise, unless it shall have given written notice to the
indemnifying party, setting forth its claim for indemnification within the
earlier of (I) one year after the Second Closing Date and (ii) with respect to
those matters for which claims for indemnification must be asserted not later
than the date that the first combined annual audited financial statements of
OUTT and Atlas are issued (the "Financial Statements Date") in order to account
for the Exchange as a pooling of interest, the Financial Statements Date (the
earlier of (I) and (ii) the "Indemnification Termination Date").
E. Subject to the next sentence, the indemnifying party or parties shall have
the right, at its or their option and expense, to assume the defense,
settlement or other disposition (collectively the "Defense") of any Third Party
Claim, provided that the indemnifying party or parties, by notice delivered to
the indemnified party or parties, elects to assume such Defense and each
indemnifying party acknowledges its obligation hereunder to indemnify the
indemnified party or parties with respect to such Third Party Claim.
Notwithstanding the foregoing, an indemnifying party shall not have the right
to assume the Defense of any Third Party Claim if (I) representation of both
such indemnified party and indemnifying parties by the same counsel would be
inappropriate due to actual or potential differing interests between them or
(ii) such indemnified party determines in good faith that there is a
significant possibility that such Third Party Claim may materially and
adversely affect it or its affiliates other than as a result of monetary
damages; provided, however, that if an indemnifying party or parties are not
entitled to assume the Defense of any Third Party Claim, the indemnifying party
or parties shall in no event be responsible under this Article 12 for the fees
and expenses of more than one counsel for all of the indemnified parties in the
aggregate in connection with such Third Party Claim.
F. If the indemnifying party has assumed the Defense of a Third Party Claim,
then the following shall apply:
(I) the indemnified party or parties shall have the right to participate and
assist in the Defense of such Third Party Claim and to employ its own counsel
in connection therewith;
(ii) the indemnifying party or parties shall not be liable to the indemnified
party or parties for the fees or expenses of any indemnified party's counsel or
other expenses incurred by any indemnified party in connection with
participating in the Defense of such Third Party Claim, except that the
indemnifying party or parties shall be liable for (a) any such fees and
expenses incurred prior to the time the indemnifying party or parties assumed
such Defense and (b) the reasonable costs of investigation and preparation
incurred by the indemnified party or parties;
(iii) counsel used by the indemnifying party or parties in connection with
the Defense of such Third Party Claim shall be reasonably satisfactory to the
indemnified party or parties;
(iv) the indemnifying party or parties shall not effect any compromise or
settlement of such Third Party Claim without the consent of the indemnified
party or parties, which consent shall not be unreasonably withheld, unless the
indemnifying party or parties fully indemnifies the indemnified party or
parties for all Damages, there is no finding or admission of violation of law
by, or effect on any other Third Party Claims that may be made against, the
indemnified party or parties, and the relief granted in connection therewith
requires no action on the part of and has no effect on the indemnified party or
parties or the operation of the Business or any other business of OUTT or any
of its subsidiaries; and
(v) the indemnified party or parties shall not effect any compromise or
settlement of such Third Party Claim without the consent of the indemnifying
party or parties, which consent shall not be unreasonably withheld.
G. If the indemnifying party or parties does not assume the Defense of a Third
Party Claim (whether because it elects not to or has no right to), the
indemnifying party or parties shall have the right, at its sole cost and
expense, to participate in the Defense of such Third Party Claim and to employ
its own counsel in connection therewith; provided, however, the indemnified
party or parties may not effect any compromise or settlement of such Third
Party Claim without the consent of the indemnifying party or parties, which
consent shall not be unreasonably withheld.
H. In order to insure that the Exchange qualifies for treatment as a pooling-
of-interest for financial reporting purposes, the parties agree that any
dispute, disagreement or controversy between any indemnified party and any
indemnifying party with respect to any claim for indemnification pursuant to
this Agreement, including, without limitation, any dispute with respect to such
indemnifying party's obligation to assume the defense and indemnify such
indemnified party in connection with a Third Party Claim that is not resolved
by the Indemnification Termination Date shall promptly be submitted to the
American Arbitration Association (the "AAA") to be resolved by non-binding
arbitration in accordance with the arbitration rules of the AAA then in effect.
The place of arbitration shall be the City of Los Angeles. The arbitration
tribunal shall be composed of three arbitrators, one of which shall be
appointed by OUTT, one of which shall be appointed by the Atlas Shareholders
and one of which shall be appointed by the arbitrators appointed by OUTT and
the Atlas Shareholders. The arbitrators will be directed to resolve such
dispute, disagreement or controversy as soon as practicable and, in any event,
within two months of the Indemnification Termination Date. If any person
seeking indemnification is awarded indemnification by the arbitrators, the
arbitrators shall also award such person an amount equal to the reasonable
attorneys' fees incurred by such person in connection with the commencement and
prosecution of the arbitration.
I. The parties hereto shall cooperate to the fullest extent possible in
connection with any Third Party Claim in respect of which indemnification is
sought under this Agreement.
13. ADDITIONAL AGREEMENTS
A. In the event of an occurrence of either of the circumstances set forth in
this section 13, then Atlas Shareholders, at Atlas Shareholders' sole option,
shall have the right, but not the obligation, to reacquire the Shares (the
"Rescission Option") from OUTT or OUTT's successors or assigns, the purchase
price for which shall be I) the OUTT Common Stock which was transferred to the
Atlas Shareholders pursuant to the Agreement, and ii) any funds or other assets
transferred from OUTT to Atlas subsequent to the second close.
1. OUTT Shares, or the shares of any successor in interest owning fifty
percent (50%) or more of all outstanding OUTT Shares, trades at or below a
price per share of One Dollar and Fifty Cents ($1.50) for an aggregate of
thirty (30) days out of any sixty (60) day period during the one year period
subsequent to the second closing; or
2. OUTT Shares are no longer listed on a national stock exchange at any time
during the one year period subsequent to the second closing.
Atlas Shareholders may exercise the Rescission Option by delivering written
notice thereof to OUTT, or OUTT's successors or assigns, within sixty (60) days
after either of the occurrences set forth above. If Atlas Shareholders
exercise the Rescission Option, the closing of such rescission shall occur no
later than thirty (30) days after OUTT's receipt of said written notice.
B. Atlas assets shall include all intellectual property rights, including
that listed in Schedule A.
14. NOTICES
Any notices called for in this agreement shall be effective upon personal
service or upon service by first class mail, postage prepaid, to the parties at
such addresses to be designated by the parties in writing.
15. MISCELLANEOUS PROVISIONS:
A. This agreement shall be construed in accordance with the laws of the State
of California.
B. This agreement shall be binding upon and shall inure to the benefit of the
parties hereto, their beneficiaries, heirs, representatives, assigns, and all
other successors in interest.
C. Each of the parties shall execute any and all documents required to be
executed and perform all acts required to be performed in order to effectuate
the terms of this agreement.
D. This agreement contains all of the agreements and understandings of the
parties hereto with respect to the matters referred to herein, and no prior
agreement or understanding pertaining to any such matters shall be effective
for any purpose.
E. Each of the parties hereto has agreed to the use of the particular language
of the provisions of this Agreement, and any question of doubtful
interpretation shall not be resolved by any rule of interpretation against the
party who causes the uncertainty to exist or against the draftsman.
F. This agreement may not be superseded, amended or added to except by an
agreement in writing, signed by the parties hereto, or their respective
successors-in-interest.
G. Any waiver of any provision of this agreement shall not be deemed a waiver
of such provision as to any prior or subsequent breach of the same provision or
any other breach of any other provision of this agreement.
H. If any provision of this agreement is held, by a court of competent
jurisdiction, to be invalid, or unenforceable, said provisions shall be deemed
deleted, and neither such provision, its severance or deletion shall affect the
validity of the remaining provisions of this agreement, which shall,
nevertheless, continue in full force and effect.
I. The parties may execute this agreement in two or more counterparts, each of
which shall, in the aggregate, be signed by all of the parties; and each such
counterpart shall be deemed an original instrument as against any party who has
signed it.
J. The parties shall use their reasonable best efforts to obtain the consent
of all necessary persons and agencies to the transfer of shares provided for in
this agreement.
K. This Agreement may be amended, modified or supplemented only by written
agreement (referring specifically to this Agreement) of the parties hereto.
L. The obligations of the Atlas Shareholders pursuant to this Agreement are to
be several, and, except as expressly provided in this Agreement or to the
contrary, one Atlas Shareholder shall have no liability for the failure of
Atlas or the other Atlas Shareholder to fulfill his or her obligations set
forth in this Agreement, or for the representations made by Atlas or the other
Atlas Shareholder.
IN WITNESS WHEREOF, the parties have executed this agreement as of the day and
year first above written.
ATLASPOWER, INC.
/s/ Jody Lenihan
By__________________________________
Chief Financial Officer
OUT TAKES, INC.
/s/ James C. Harvey
By_________________________________
JAMES C. HARVEY, President
ATLAS SHAREHOLDERS
/s/ Kenneth Kinlaw
By__________________________
KENNETH KINLAW
/s/ Jody Lenihan
By_______________________________
JODY LENIHAN
SCHEDULE A
Intellectual Property Transferred With Stock Exchange Agreement:
Intellectual Property - Description
Atlas Web Site Design - www.AtlasPower.com site with supporting scripts.
Test Form Design Format and layout of the following power systems test forms:
Cable Hi-Pot, Battery, Bus Duct, Ground Resistance, Instrument Transformer,
Insulation Resistance, Low Voltage Circuit Breaker, Medium Voltage Circuit
Breaker, Metering, Relay, Transformer Turns Ratio, and Vector Diagram.
MP&L Hydroturbine Retrofit Design Atlas hydroturbine control systems retrofit
record CAD drawings for Chester and Purple Lake facilities.
Multi-Use Test Box/Hi-current Design Capable of 240 amps AC or DC at 5 volts,
1.2 amps at 1000 volts AC, or 10 amps at 120 volts AC. Integral timer and
current metering. Unit is designed for low resistance ohm tests at 100 amps,
circuit breaker primary injection tests, motor overload injection and timing
tests, and universal heavy duty power supply (charging circuit breakers,
excitation tests).
Multi-Use Test Box/CT-PT Design Capable of 1.2 amps at 1000 volts AC, 10 amps
at 120 volts AC, 10 amps at 125 volts DC or regulated 10 amps at 5 volts DC.
Integral current metering. Unit is designed for current and potential
transformer tests (ratio, polarity, excitation), low resistance ohm tests at 10
amps, and universal power supply.
Portable Circuit Tester Design Capable of 20 amps at 2.5 volts AC, and 120-
80-40 volts AC. Integral battery power supply, and voltage and current
metering. Unit is designed for current and potential transformer circuit
checks.
[CAPTION]
Exhibit 2.
EMPLOYMENT AGREEMENT FOR KENNETH L. KINLAW
This Employment Agreement (Agreement) is effective as of November __, 2000, and
is entered into between Kenneth L. Kinlaw ("Employee") and AtlasPower, Inc., a
California corporation ("Company"). Out-Takes, Inc., a Delaware corporation
("OUTT") proposes to acquire all the issued and outstanding shares of common
stock of Company pursuant to the terms of that certain Share Exchange Agreement
dated as of November __, 2000, a copy of which is attached hereto (the "Share
Exchange Agreement"). Company and OUTT and their respective subsidiaries and
affiliates are hereinafter collectively referred to as the "Group."
Company desires to employ Employee as a principal engineer and as Secretary and
Chief Executive Officer of Company, and Employee desires to accept such
employment by Company on the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual covenants and obligations set
forth herein, the parties agree as follows:
1. Employment. Company hereby employs Employee, and Employee hereby accepts
such employment by Company, upon the terms and conditions set forth below.
Employee's primary place of employment shall be Albuquerque, New Mexico.
Employee acknowledges and accepts that the duties of the position may require
travel within the United States and occasional travel to destinations
worldwide.
2. Term. The term of Employee's employment shall be for an approximate three-
year (3-year) period commencing on November __, 2000 (the "Commencement Date"),
and ending on September 30, 2003 (the "Initial Term"). After the expiration of
the Initial Term, Employee's employment under this Agreement shall continue on
the same terms and conditions as set forth herein or under such other terms and
conditions as the parties may otherwise agree in writing (such additional
period of employment is referred to as the "Additional Term"). The Initial Term
together with any Additional Term (until such Additional Term is terminated as
provided in this Agreement) are referred to herein as the "Employment Period".
3. Duties.
3.1 Position. Employee shall serve as a principal engineer of the Company and
hold the offices of Secretary and Chief Executive Officer and shall perform the
services normally rendered by a similarly-situated executive within the Company
as well as such services and duties as may be directed by Company. Employee
shall serve under and report to Chief Executive Officer of OUTT. A more
detailed job description outlining Employee's job responsibilities is attached
hereto and hereby incorporated herein as Exhibit "A".
3.2 Productive Time. During the Employment Period, Employee shall during
normal business hours devote his productive time, attention and energies to the
business of Company. Employee shall perform the duties and responsibilities of
the position to the best of his ability, and shall act consistently with his
duties to Company.
3.3 Sole Occupation. During the Employment Period, Employee shall not be
engaged in any other business, which is competitive with the business of the
Company, whether or not such activity is pursued for gain, profit or other
pecuniary advantage. Notwithstanding anything to the contrary contained herein,
Employee shall not be prohibited from investing or participating in personal
business activities so long as such investments and activities do not interfere
with Employee's duties and obligations hereunder. Employee shall not engage in
any activities that conflict with, or create an appearance of conflict with
respect to, the interests of Company and the Group.
4. Compensation.
4.1 Base Salary. Company (or at Company's option, any subsidiary or
affiliate of the Group) shall pay to Employee an annual base salary of Ninety-
Six Thousand Dollars ($96,000) (exclusive of any fees receivable by Employee as
a member of the Board of Directors of any company in the Group), less
applicable withholdings, which shall accrue on a daily basis and be payable
semimonthly. Company shall provide to Employee salary reviews on an annual
basis during the Employment Period.
4.2 Bonus. On an annual basis Employee shall, prior to the end of the then
current fiscal year, receive a bonus in an amount not less than ten percent
(10%) of the net profits of the Company for the applicable fiscal year.
4.3 Cellular Telephone. Employee, at Company expense, will be provided with a
cellular phone for business purposes. Company shall directly pay to the service
provider all expenses for such instrument.
4.4 Travel Clubs. Employee will be reimbursed for any travel club memberships,
including but not limited to hotels, airlines and rental cars, and reimbursed
for airline upgrade stickers to be used according to the terms and conditions
of each airline.
4.5 Laptop Computer. Company, at Company's expense, shall provide Employee
with a laptop computer and a high capacity access line from Employee's home.
Upgrades for the laptop, software and access line shall be provided at
Company's expense as Employee, in Employee's sole discretion, deems necessary,
however such upgrades shall occur no more frequently than biannually unless
otherwise approved in writing by Company, which approval shall not be
unreasonably withheld.
4.6 Dues and Fees. Company shall pay reasonable dues and fees for Employee's
membership in professional associations relevant to the conduct of Employee's
duties to Company or the Group, and to attend seminars as a speaker or as an
audience member. It is estimated that these costs will not exceed five thousand
dollars ($5,000) per calendar year, however additional sums may be available
upon prior written authorization of Company, which authorization shall not be
unreasonably withheld.
4.7 Additional Staff. Employee shall be entitled to hire contract or permanent
staff as required to conduct the business of the Company in accordance with
Employee's duties as set forth in Exhibit "A".
4.8 Reimbursement. Employee's business travel expenses, including by way of
example but not limited to, airfare, taxicabs, lodging, meals, third party
disbursements, and long distance telephone charges not incurred on the business
cellular phone provided by Company shall be reimbursed to Employee by Company
on a monthly basis. Employee shall submit to Company appropriate documentation
of such expenses within ninety (90) days of incurring such expenses.
4.9 Benefits. During the Employment Period, Employee also shall be entitled to
the following:
(a) Employee Benefit Plan. Participation in an employee pension or benefit
plan, with benefits no less than those available to any similar situated
employee of the Group. In the event that Company does not currently sponsor
such a plan, one shall be instituted within one hundred eighty (180) days of
the Commencement Date with benefits no less favorable than those available to
other employees of the Group;
(b) Medical Insurance. Participation by Employee and Employee's spouse, child
or domestic partner in medical insurance plans offered to similarly-situated
employees within the Group, provided that Company reserves the right to change
insurers at any time;
(c) Vacation. Twenty (20) days of paid vacation during a calendar year,
accruing at the rate of 1.67 days per month to be utilized pursuant to Company
policy, as well as paid holidays and personal days according to Company policy
as set forth in the Employee Handbook;
(d) Deductible Reimbursement. Reimbursement for all reasonable and necessary
expenses incurred in promoting the business of Company, including travel and
entertainment expenses plus tools and equipment which Employee reasonably deems
necessary for the performance of his duties and responsibilities pursuant to
this Agreement, except that each such expenditure shall be reimbursable only if
it is of a nature qualifying it as a proper deduction on the federal and state
income tax returns of Company, upon presentation by Employee of appropriate
documentation, sufficient for tax purposes to substantiate the expenditure as
an income tax deduction. In the event any taxing authority disallows Company a
deduction for all or any part of an expense charged by Employee (with the
exception of Employee's meals, the cost for which Company shall fully reimburse
to Employee notwithstanding that Company is entitled to deduct only a portion
of such expense), the part disallowed shall be charged to Employee as
additional compensation; and
(e) Life Insurance. The Company shall provide, at Company's expense as the
owner, a policy (or policies) of life insurance on Employee's life in an amount
not less than One Million Dollars ($1,000,000) naming the beneficiary
designated in writing by Employee. In the event that Employee's services to the
Company are terminated for any reason, Employee shall have the right to convert
ownership of the then existing policy of life insurance to the owner of
Employee's choice.
(f) Disability Insurance. A policy of disability insurance shall be
maintained, so that in the event that Employee cannot perform the duties and
responsibilities of an electrical engineer, disability benefits shall be
available and paid to Employee such that Employee shall receive eighty percent
(80%) of his then current Base Salary, which disability benefits shall continue
without interruption until such time as Employee achieves the age of sixty-five
(65) years.
5. Voluntary Termination.
5.1 Exercise of Rescission Option. This Agreement may be terminated by
Employee in the event Employee exercises the provisions of Section 13, the
Rescission Option, pursuant to the Share Exchange Agreement. Such termination
shall be effective concurrently with the consummation of the Rescission Option.
5.2 Termination During Any Additional Term. This Agreement may be terminated
by either Employee or Company at any time during an Additional Term by
providing written notice thereof to the other party. Such termination shall be
effective ninety (90) days after such other party receives the notice of the
election to terminate this Agreement.
5.3 Change of Control. This Agreement may be terminated by Employee in the
event of a change in control of the Company's management or ownership (other
than the proposed acquisition by OUTT) or if Company assigns its rights under
this Agreement.
6. Involuntary Termination.
6.1 Disability. If Employee becomes incapacitated or disabled at any time
during the Employment Period so as to be unable (either mentally or physically)
to perform the services required pursuant to this Agreement for a period of
ninety (90) or more consecutive days, or one hundred and twenty (120) non-
consecutive days, in any twelve (12) month period (such condition being
referred to as a "Disability"), Company may, at its option, terminate this
Agreement effective immediately upon giving Employee notice of such
termination. Notwithstanding the foregoing, Employee will be granted a leave or
other suspension of Employee's duties pursuant to the provisions of the Family
Medical Leave Act (the "FMLA") for such period of time that Employee or related
person, pursuant to the FMLA, is incapacitated.
6.2 Death. If Employee dies during the Employment Period, this Agreement shall
be deemed to be terminated as of the date of Employee's death.
6.3 Termination For Cause. Company may terminate this Agreement for cause at
any time during the Employment Period, effective immediately upon providing
notice to Employee of such termination for cause. Any such notice of
termination shall specify the acts or omissions of Employee in sufficient
detail so as to enable Employee to determine the subsection of this provision
relied upon by Company in terminating this Agreement. For purposes of this
Section 6.3, "cause" shall mean:
(a) Misconduct. Willful and serious misconduct by Employee, which is
materially injurious to the business of Company or OUTT;
(b) Breach. Employee's material breach of or failure to substantially perform
the duties and obligations set forth in this Agreement (other than as the
result of a Disability), which failure continues for a period of ten (10) days
following Employees receipt of written notice of such breach;
(c) Felony Conviction. Employee's conviction of any felony as evidenced by a
final judgment entered by a court of competent jurisdiction; or
(d) Dishonesty. Employee engaging in or having engaged in fraud,
misappropriation, dishonesty in financial dealings or embezzlement in
connection with the business of Company, or OUTT, as evidenced by a final
judgment entered by a court of competent jurisdiction.
7. Effect of Termination of Agreement.
7.1 Termination Voluntarily or By Reason of Death or Disability Claims. Upon
termination of this Agreement pursuant to Sections 5.1, 5.2, 5.3, 6.1 or 6.2
above, Employee, or the Employee's estate shall have no further rights or
claims against Company under this Agreement except to receive:
(a) Unpaid Salary. The unpaid portion of the Base Salary provided for in
Section 4.1, computed on a pro rata basis to the date of termination plus three
months severance, less applicable withholdings;
(b) Bonus. An amount equal to the Bonus described in Section 4.2 for the
entire fiscal year in which this Agreement is terminated multiplied by a
fraction with the number of days in the fiscal year prior to the date of
termination as the numerator and 365 days as the denominator, less applicable
withholdings.
(c) Unused Vacation. Payment of all accrued, unused vacation and other
personal holidays as described in Section 4.9(c), less applicable withholdings;
(d) Unreimbursed Expenses. Reimbursement for expenses incurred prior to the
termination for which Employee has not yet been reimbursed, as provided in
Sections 4.3, 4.4, 4.6, 4.8 and 4.9(d);
(e) Insurance Proceeds. The proceeds of the policy of life insurance as
provided in Section 4.9(e) or the disability benefits provided in Section
4.9(f). The Company shall promptly submit the appropriate documentation to
claim the benefits of the policy or policies of Life Insurance maintained upon
the Employee's life, or the disability benefits as set forth in Section 4.9(e)
or (f) as applicable.
Amounts due pursuant to this Section 7.1 shall be made in accordance with the
law, and the balance of the payments shall be paid on a timetable and schedule
for such payments as if such termination did not occur, i.e. continuing during
the Employment Period on the same schedule as payments of Base Salary.
7.2 Termination for Cause. Upon termination of this Agreement pursuant to
Section 6.3, above, Employee shall not have any further rights or claims
against Company under this Agreement except to receive:
(a) The unpaid portion of the Base Salary provided for in Section 4.1,
computed on a pro rata basis to the date of termination, less applicable
withholdings;
(b) Payment of all accrued, unused vacation and other personal holidays as
described in Section 4.9(c), less applicable withholdings;
(c) Reimbursement for any expenses for which Employee has not yet been
reimbursed, as provided in Section 4.9(d); and
(d) The right to convert the ownership of the policy of insurance as provided
in Section 4.9(e).
Amounts due pursuant to this Section 7.2 shall be made in accordance with the
law.
7.3 Termination for Other Reasons. In the event Employee's employment is
terminated for any reason other than a provided in Sections 5 or 6, Employee
shall be entitled to receive the amounts described in Sections 7.1 and 8.
7.4 Company Property. Upon termination of this Agreement for any reason,
Employee shall promptly return all property of Company that is or has been in
Employee's possession, custody or control.
8. Professional Enhancement Matters. Employee currently enjoys a high level
of respect and recognition in his field. As a result of entering into and
performing the duties set forth in this Agreement Employee will experience an
enhanced reputation in Employee's profession as an electrical engineer and as a
businessperson in the business community. In addition, Employee, the Company
and the Group expect that as a result of Employee's efforts, the value of the
Company and the Group will greatly increase, thereby increasing the value of
the shares of OUTT common stock or the stock of other companies in the Group
received by Employee pursuant to the Share Exchange Agreement. Employee, the
Company and OUTT agree that a termination of this Agreement for any reason
other than as provided in Sections 5 or 6 shall inevitably injure Employee's
reputation and reduce the value of OUTT shares to be received by Employee
pursuant to the Share Exchange Agreement, and that calculating the damage to
Employee's reputation and financial position would be impractical and extremely
difficult. Under the circumstances existing at the date of this Agreement, the
liquidated damages provided for in this Article 8 represent a reasonable
estimate of the damages which Employee will incur as a result of a termination
of this Agreement by Company. Therefore, in the event that the Company
terminates this Agreement during the Employment Period for any reason other
than as permitted pursuant to Sections 5 and 6, Company, OUTT and Employee
hereby agree that a reasonable estimate of the total damages suffered by
Employee is the sum of Three Hundred Thousand Dollars ($300,000) which sum
shall reflect the diminution (i) in the value of Employee's shares in OUTT or
other Group company, (ii) of Employee's reputation in the engineering
community. Said amount, plus amounts due Employee as provided in Section 7.1 as
computed over the entire Employment Period, shall be the full, agreed and
liquidated damages for the Company to pay to Employee in the event Company
terminates this Agreement other than as permitted pursuant to Sections 5 and 6.
The payment of such amount as liquidated damages is not intended as a
forfeiture or penalty within the meaning of California Civil Code Sections 3275
or 3369, but is intended to constitute liquidated damages to Employee pursuant
to California Civil Code Section 1671. This provision is not intended to, and
does not, limit Employee's right to receive reimbursement for attorneys' fees
in the event Employee prevails in an action brought against Company to enforce
this Agreement or any of its terms. The liquidated damages set forth pursuant
to this Article 8 are in addition to the provisions for the payment of amounts
set forth in Section 7.1.
9. Trade Secrets.
9.1 Confidential Information. Confidential Information means and includes
proprietary software and programs; financial or research models or processes
and related data; financial condition and information. The following is NOT
deemed to be Confidential Information: (i) information that is in the public
domain through no fault of Employee; (ii) information published or disseminated
by Company or the Group, in the ordinary course of business without
restriction; and (iii) information received from third parties not under an
obligation to keep such information confidential and without breach of this
Agreement by Employee, and (iv) business methods, knowledge of and contacts
within the industry and expertise brought to the position by Employee based on
his experience prior to employment with the Company.
9.2 No Disclosure. Employee specifically agrees that he will not at any time,
during the Employment Period, in any fashion, form, or manner, unless
specifically consented to in writing by Company, either directly or indirectly,
use or disclose to any person or entity, in any manner whatsoever other than in
the course of conducting Company's business, any Confidential Information of
any kind, nature or description concerning any matter affecting or relating to
the business of Company.
9.3 Protected Materials. All equipment, notebooks, documents, memoranda,
reports, written and computer files and data, samples, books, correspondence,
lists, other written and graphic records, records, tapes, discs, CD ROMS or
other storage mechanisms of documents or information and the like affecting or
relating to the business of Company that Employee prepares, uses, constructs,
observes, possesses or controls, and all copies thereof, shall be and remain
the sole property of Company.
10. Confidentiality and Nonsolicitation.
10.1 Confidentiality. During the Employment Period Employee agrees that he will
not, directly or indirectly, undertake planning for or organization of any
business activity competitive with Company's business or combine or conspire
with other employees or representatives of Company's business for the purposes
of organizing any such competitive business activity.
10.2 Client Nonsolicitation. Employee hereby acknowledges and recognizes that
he will be privy to Confidential Information constituting trade secrets of
Company. Employee agrees that, in consideration of the promises contained
herein and the consideration to be received by Employee pursuant to this
Agreement, during the Employment Period he will not, directly or indirectly,
either for Employee or for any other person, firm, or corporation, divert or
take away or attempt to divert or take away any of Company's customers or
clients, upon whom Employee called or whom Employee solicited during the
Employment Period. Notwithstanding the foregoing Employee may notify Company's
customers, clients or Employees of Employee's new address and telephone number
in the event Employee is no longer an Employee of the Company. It is, however,
not a breach of this Agreement if, in the event that any client affirmatively
desires Employee to continue to or to begin to perform services after Employee
is no longer employed with Company.
10.3 Employee Nonsolicitation. During the Employment Period Employee will not,
directly or indirectly or by action in concert with others, induce or influence
(or seek to induce or influence) any person who is or will be hereafter engaged
(as an employee, agent, independent contractor or otherwise) by Company to
terminate his or her employment or engagement.
11. Severability and Extraordinary Relief.
11.1 Severability. It is the desire and intent of the parties that the
provisions of this Agreement shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated to be invalid or unenforceable, such reduction
or dilution to apply only with respect to the operation of that particular
provision of this Agreement in the particular jurisdiction in which such
adjudication is made and enforced thereafter.
11.2 Injunctive Relief. Employee acknowledges and understands that the
provisions of Sections 9 and 10 of this Agreement are of a special and unique
nature, the breach of which cannot adequately be compensated for in damages by
an action at law. Nothing contained herein shall be construed as prohibiting
Company and its Affiliates or Employee from pursuing any other remedies
(including, without limitation, an action for damages) available for any actual
or threatened breach of this Agreement, and the pursuit of any injunction or
any other remedy shall not be deemed an exclusive election of such remedy.
11.3 Attorney's Fees. In the event suit is brought to enforce or interpret this
Agreement, the prevailing party shall be entitled to recover its costs incurred
and reasonable attorneys' fees.
12. Inventions and Copyright.
12.1 Inventions. Employee understands that during the Employment Period any and
all Inventions that Employee has made, conceived or developed or shall make,
conceive or develop, shall be the exclusive property of Company as provided for
pursuant to Labor Code Section 2871, and are hereby assigned by Employee to
Company, except as otherwise specifically agreed by Company in writing.
12.2 No Assignment. Employee understands that he need not assign to Company any
rights to improvements, processes, discoveries, or inventions that qualify
fully under the provisions of Section 2870(a) of the California Labor Code,
which provides as follows:
"Section 2870. Inventions On Own Time - Exemption From Agreement.
"(a) Any provision in an employment agreement which provides that an employee
shall assign, or offer to assign, any of his or her rights in an invention to
his/her employer shall not apply to an invention that the employee developed
entirely on his/her own time without using the employer's equipment, supplies,
facilities, or Trade Secret information except for those inventions that
either:
"(1) Relate at the time of conception or reduction to practice of the invention
to the employer's business, or actual or demonstrably anticipated research or
development of the employer; or
"(2) Result from any work performed by the employee for the employer."
12.3 Claimed Inventions. Employee has listed on Addendum A to this Agreement
all inventions and copyrights he is claiming to have as of the date of this
Agreement.
13. Additional Provisions.
13.1 Notices. All notices, claims, certificates, demands and other
communications hereunder shall be deemed to have been duly given if personally
delivered or sent by nationally-recognized overnight courier, by telecopy, or
certified mail, return receipt requested and postage prepaid, addressed as
follows:
If to Employee, to:
Kenneth L. Kinlaw
AtlasPower, Inc.
79 Young Road
Tijeras, NM 87059
Telephone: (505) 286-9625
Facsimile: (888) 781-5596
E-mail: [email protected]
With a copy to:
Cynthia L. Masters, Esq.
Gilchrist & Rutter
1299 Ocean Avenue, Suite 900
Santa Monica, California 90401-1000
Telephone: (310) 393-4000
Facsimile: (310) 394-4700
E-mail: [email protected]
If to Company, to:
AtlasPower, Inc.
24782 Lagrima
Mission Viejo, California 92692
Telephone: (949) 707-5699
Facsimile: (949) 830-8611
With a copy to:
Kenneth Eade, Esq.
827 State Street, Suite 12
Santa Barbara, California 93101
Telephone: (805) 560-9828
Facsimile: (805) 560-3608
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. Any such notice
or communication shall be deemed to have been delivered (a) in the case of
personal delivery, on the date of such delivery; (b) in the case of a
nationally-recognized overnight courier, on the next business day after the
notice was sent; (c) in the case of telecopy transmission, when received; and
(d) in the case of mailing, on the third business day following posting.
13.2 Entire Agreement. This Agreement and the other writings referred to herein
or delivered pursuant hereto contain the entire agreement among the parties
with respect to the subject manner hereof, and supersede all prior and
contemporaneous arrangements or understandings with respect thereto.
13.3 Successors and Assigns: Assignments. This Agreement shall bind and inure
to the benefit of Company and Employee and the respective successors, assigns,
heirs and personal representatives of Company and Employee. This Agreement is
personal in its nature, and Employee shall not, without the written consent of
Company, assign or transfer this Agreement or any rights or obligations
hereunder. Company may assign this Agreement and all rights and duties
hereunder, but any such assignment shall not relieve Company of its obligations
hereunder.
13.4 Governing Law. The parties hereto agree that it is their intention and
covenant that this Agreement and performance hereunder, and all suits and
special proceedings that may ensue from its breach, be construed in accordance
with and under the laws of the State of California, and that in any action,
special proceeding or other proceeding that may be brought arising out of, or
in connection with, or by reason of this Agreement, the laws of the State of
California shall be applicable and shall govern to the exclusion of the law or
any other form, without regard to the jurisdiction in which any action or
special proceeding may be instituted. The parties agree that any arbitration,
special proceeding or other proceeding with respect to or arising out of this
Agreement shall be brought and maintained in the County of Los Angeles,
California. The parties irrevocably consent to jurisdiction and venue in the
courts of said County.
13.5 Waivers. The provisions of this Agreement may not be waived, temporarily
or permanently, except pursuant to a writing executed by the person against
whom enforcement of such waiver would be sought. Either party's failure to
enforce any provision or provisions of this Agreement shall not in any way be
construed as a waiver of any such provision or provisions, or prevent that
party thereafter from enforcing each and every other provision of this
Agreement, provided, however, that exempted from this provision is any
complaint related to Employee's performance of his duties or services pursuant
to this Agreement, by which waiver of such complaint by Employer shall be
considered dispositive.
13.6 Amendments/Modifications. The terms and provisions of this Agreement
may not be modified or amended without the written consent of each of the
parties.
13.7 Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute but
one agreement.
13.8 Headings. Titles and headings to paragraphs in this Agreement are for
the purpose of reference only and shall in no way limit, define or otherwise
affect the provisions of it. The provisions of this Agreement shall be
interpreted in accordance with their plain meaning. No provision of this
Agreement shall be interpreted against a party by reason of that party having
been responsible for the drafting of the provision.
13.9 Severable Provisions. The provisions of this Agreement are severable,
and if any one or more provisions is determined to be judicially unenforceable,
in whole or in part, the remaining provisions shall nevertheless be binding and
enforceable.
13.10 Employee's Representations. Employee represents and warrants that he
is free to enter into this Agreement and to perform each of the terms and
covenants of it. Employee represents and warrants that he is not restricted or
prohibited, contractually or otherwise, from entering into and performing this
Agreement, and that his execution and performance of this Agreement is not a
violation or a breach of any other Agreement between Employee and any other
person or entity.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the date
first above written.
"Company"
AtlasPower, Inc.
a California corporation
/s/ Jody P. Lenihan
By: _______________________________
Its Chief Financial Officer
/s/ Kenneth Kinlaw
By: _______________________________
Its CEO
"Employee"
/s/ Kenneth Kinlaw/
__________________________________
Kenneth L. Kinlaw , an Individual
"OUTT"
Out-Takes, Inc.
a Delaware corporation
/s/ James C. Harvey
By: ______________________________
Its President
Exhibit A
Employee Job Responsibilities:
Field duties: acceptance/maintenance/startup of all electrical components,
functional checks, on-line measurements at electrical transmission/distribution
substations, generation facilities as required. Lead role as required,
including subcontractor/employee time & expense documentation, project
tracking, project planning (including test equipment rental), client
communication.
Studies: short-circuit, coordination, load flow, motor starting,
engineering/economic feasibility as required.
Design work: CAD, 1-lines, 3-lines, elementaries, cable/panel/termination
schedules, AC/DC auxiliary systems, specification writing, preparation of
Requests for Proposals, scheduling, estimating and purchasing as required.
Interfacing with multi-disciplines & construction, project management, and
contract administration with subcontractors as required.
Marketing/proposals: contacting and communicating with prospective and existing
clients, research of existing and upcoming projects, preparation of formal
proposals, advertising, web site maintenance, maintenance of marketing
materials (hats, brochures, cards, stationery).
Employee/Subcontractor Relations: hiring and terminating, scheduling, contract
negotiations, training & technical support, and performance reviews as
required. Development and maintenance of employee benefits standards.
Training: preparation of training manuals/courses and on-site training for
clients, employees and subcontract personnel as required. Research of
applicable standards, procedures and common practices as required.
Purchasing/administration: purchase and lease of property, equipment and
supplies as required for efficient & effective company operations.
Communication with potential and existing vendors & suppliers. Administration
of professional matters with legal and financial representatives as required.
Interface with Parent company: development and implementation of yearly
budgets/business plans, communications regarding employee hiring, equipment
purchases, and company administration.
Addendum A:
Claimed Inventions
None.
[CAPTION]
Exhibit 3.
EMPLOYMENT AGREEMENT
for
JODY P. LENIHAN
This Employment Agreement (Agreement) is effective as of November __, 2000, and
is entered into between Jody P. Lenihan ("Employee") and AtlasPower, Inc., a
California corporation ("Company"). Out-Takes, Inc., a Delaware corporation
("OUTT") proposes to acquire all the issued and outstanding shares of common
stock of Company pursuant to the terms of that certain Share Exchange Agreement
dated as of November __, 2000, a copy of which is attached hereto (the "Share
Exchange Agreement"). Company and OUTT and their respective subsidiaries and
affiliates are hereinafter collectively referred to as the "Group."
Company desires to employ Employee as a principal engineer and as Vice
President and Chief Financial Officer of Company, and Employee desires to
accept such employment by Company on the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and obligations set
forth herein, the parties agree as follows:
1. Employment. Company hereby employs Employee, and Employee hereby accepts
such employment by Company, upon the terms and conditions set forth below.
Employee's primary place of employment shall be Mission Viejo, California.
Employee acknowledges and accepts that the duties of the position may require
travel within the United States and occasional travel to destinations
worldwide.
2. Term. The term of Employee's employment shall be for an approximate
three-year (3-year) period commencing on November __, 2000 (the "Commencement
Date"), and ending on September 30, 2003 (the "Initial Term"). After the
expiration of the Initial Term, Employee's employment under this Agreement
shall continue on the same terms and conditions as set forth herein or under
such other terms and conditions as the parties may otherwise agree in writing
(such additional period of employment is referred to as the "Additional Term").
The Initial Term together with any Additional Term (until such Additional Term
is terminated as provided in this Agreement) are referred to herein as the
"Employment Period".
3. Duties.
3.1 Position. Employee shall serve as a principal engineer of the Company and
hold the offices of Vice President and Chief Financial Officer and shall
perform the services normally rendered by a similarly-situated executive within
the Company as well as such services and duties as may be directed by Company.
Employee shall serve under and report to the Chief Executive Officer of OUTT.
A more detailed job description outlining Employee's job responsibilities is
attached hereto and hereby incorporated herein as Exhibit "A".
3.2 Productive Time. During the Employment Period, Employee shall during
normal business hours devote his productive time, attention and energies to the
business of Company. Employee shall perform the duties and responsibilities of
the position to the best of his ability, and shall act consistently with his
duties to Company.
3.3 Sole Occupation. During the Employment Period, Employee shall not be
engaged in any other business, which is competitive with the business of the
Company, whether or not such activity is pursued for gain, profit or other
pecuniary advantage. Notwithstanding anything to the contrary contained
herein, Employee shall not be prohibited from investing or participating in
personal business activities so long as such investments and activities do not
interfere with Employee's duties and obligations hereunder. Employee shall not
engage in any activities that conflict with, or create an appearance of
conflict with respect to, the interests of Company and the Group.
4. Compensation.
4.1 Base Salary. Company (or at Company's option, any subsidiary or
affiliate of the Group) shall pay to Employee an annual base salary of Ninety-
Six Thousand Dollars ($96,000) (exclusive of any fees receivable by Employee as
a member of the Board of Directors of any company in the Group), less
applicable withholdings, which shall accrue on a daily basis and be payable
semimonthly. Company shall provide to Employee salary reviews on an annual
basis during the Employment Period.
(a) In addition to the Duties set forth in Section 3.1, Employee shall
perform the duties and obligations (the "Management Duties") set forth in
Exhibit "B" which is attached hereto and hereby incorporated herein. Employee
shall receive compensation for performance of the Management Duties at the rate
of Fifteen Dollars ($15.00) per hour. Employee shall, on a semi-monthly basis,
submit to Company a written report. setting forth the number of hours Employee
performed the Management Duties, for which Company shall pay Employee on a
semi-monthly basis less applicable withholdings.
4.2 Bonus. On an annual basis Employee shall, prior to the end of the then
current fiscal year, receive a bonus in an amount not less than ten percent
(10%) of the net profits of the Company for the applicable fiscal year.
4.3 Cellular Telephone. Employee, at Company expense, will be provided with a
cellular phone for business purposes. Company shall directly pay to the
service provider all expenses for such instrument.
4.4 Travel Clubs. Employee will be reimbursed for any travel club
memberships, including but not limited to hotels, airlines and rental cars, and
reimbursed for airline upgrade stickers to be used according to the terms and
conditions of each airline.
4.5 Laptop Computer. Company, at Company's expense, shall provide Employee
with a laptop computer and a high capacity access line from Employee's home.
Upgrades for the laptop, software and access line shall be provided at
Company's expense as Employee, in Employee's sole discretion, deems necessary,
however such upgrades shall occur no more frequently than biannually unless
otherwise approved in writing by Company, which approval shall not be
unreasonably withheld.
4.6 Dues and Fees. Company shall pay reasonable dues and fees for Employee's
membership in professional associations relevant to the conduct of Employee's
duties to Company or the Group, and to attend seminars as a speaker or as an
audience member. It is estimated that these costs will not exceed five
thousand dollars ($5,000) per calendar year, however additional sums may be
available upon prior written authorization of Company, which authorization
shall not be unreasonably withheld.
4.7 Additional Staff. Employee shall be entitled to hire contract or
permanent staff as required to conduct the business of the Company in
accordance with Employee's duties as set forth in Exhibit "A".
4.8 Reimbursement. Employee's business travel expenses, including by way of
example but not limited to, airfare, taxicabs, lodging, meals, third party
disbursements, and long distance telephone charges not incurred on the business
cellular phone provided by Company shall be reimbursed to Employee by Company
on a monthly basis. Employee shall submit to Company appropriate documentation
of such expenses within ninety (90) days of incurring such expenses.
4.9 Sponsorship. Company shall, upon written notification of Employee that
such action is desired, provide sponsorship on behalf of Employee for United
States citizenship or residency, such election to be made in Employee's sole
discretion. Such sponsorship shall continue without interruption until
Employee is granted citizenship or permanent resident status or until such time
as Employee is no longer employed by Company.
4.10 Benefits. During the Employment Period, Employee also shall be entitled
to the following:
(a) Employee Benefit Plan. Participation in an employee pension or benefit
plan, with benefits no less than those available to any similar situated
employee of the Group. In the event that Company does not currently sponsor
such a plan, one shall be instituted within one hundred eighty (180) days of
the Commencement Date with benefits no less favorable than those available to
other employees of the Group;
(b) Medical Insurance. Participation by Employee and Employee's spouse, child
or domestic partner in medical insurance plans offered to similarly-situated
employees within the Group, provided that Company reserves the right to change
insurers at any time;
(c) Vacation. Twenty (20) days of paid vacation during a calendar year,
accruing at the rate of 1.67 days per month to be utilized pursuant to Company
policy, as well as paid holidays and personal days according to Company policy
as set forth in the Employee Handbook;
(d) Deductible Reimbursement. Reimbursement for all reasonable and necessary
expenses incurred in promoting the business of Company, including travel and
entertainment expenses plus tools and equipment which Employee reasonably deems
necessary for the performance of his duties and responsibilities pursuant to
this Agreement, except that each such expenditure shall be reimbursable only if
it is of a nature qualifying it as a proper deduction on the federal and state
income tax returns of Company, upon presentation by Employee of appropriate
documentation, sufficient for tax purposes to substantiate the expenditure as
an income tax deduction. In the event any taxing authority disallows Company a
deduction for all or any part of an expense charged by Employee (with the
exception of Employee's meals, the cost for which Company shall fully reimburse
to Employee notwithstanding that Company is entitled to deduct only a portion
of such expense), the part disallowed shall be charged to Employee as
additional compensation; and
(e) Life Insurance. The Company shall provide, at Company's expense as the
owner, a policy (or policies) of life insurance on Employee's life in an amount
not less than One Million Dollars ($1,000,000) naming the beneficiary
designated in writing by Employee. In the event that Employee's services to
the Company are terminated for any reason, Employee shall have the right to
convert ownership of the then existing policy of life insurance to the owner of
Employee's choice.
(f) Disability Insurance. A policy of disability insurance shall be
maintained, so that in the event that Employee cannot perform the duties and
responsibilities of an electrical engineer, disability benefits shall be
available and paid to Employee such that Employee shall receive eighty percent
(80%) of his then current Base Salary, which disability benefits shall continue
without interruption until such time as Employee achieves the age of sixty-five
(65) years.
5. Voluntary Termination.
5.1 Exercise of Rescission Option. This Agreement may be terminated by
Employee in the event Employee exercises the provisions of Section 13, the
Rescission Option, pursuant to the Share Exchange Agreement. Such termination
shall be effective concurrently with the consummation of the Rescission Option.
5.2 Termination During Any Additional Term. This Agreement may be terminated
by either Employee or Company at any time during an Additional Term by
providing written notice thereof to the other party. Such termination shall be
effective ninety (90) days after such other party receives the notice of the
election to terminate this Agreement.
5.3 Change of Control. This Agreement may be terminated by Employee in the
event of a change in control of the Company's management or ownership (other
than the proposed acquisition by OUTT) or if Company assigns its rights under
this Agreement.
6. Involuntary Termination.
6.1 Disability. If Employee becomes incapacitated or disabled at any time
during the Employment Period so as to be unable (either mentally or physically)
to perform the services required pursuant to this Agreement for a period of
ninety (90) or more consecutive days, or one hundred and twenty (120) non-
consecutive days, in any twelve (12) month period (such condition being
referred to as a "Disability"), Company may, at its option, terminate this
Agreement effective immediately upon giving Employee notice of such
termination. Notwithstanding the foregoing, Employee will be granted a leave
or other suspension of Employee's duties pursuant to the provisions of the
Family Medical Leave Act (the "FMLA") for such period of time that Employee or
related person, pursuant to the FMLA, is incapacitated.
6.2 Death. If Employee dies during the Employment Period, this Agreement
shall be deemed to be terminated as of the date of Employee's death.
6.3 Termination For Cause. Company may terminate this Agreement for cause at
any time during the Employment Period, effective immediately upon providing
notice to Employee of such termination for cause. Any such notice of
termination shall specify the acts or omissions of Employee in sufficient
detail so as to enable Employee to determine the subsection of this provision
relied upon by Company in terminating this Agreement. For purposes of this
Section 6.3, "cause" shall mean:
(a) Misconduct. Willful and serious misconduct by Employee which is
materially injurious to the business of Company or OUTT;
(b) Breach. Employee's material breach of or failure to substantially perform
the duties and obligations set forth in this Agreement (other than as the
result of a Disability), which failure continues for a period of ten (10) days
following Employees receipt of written notice of such breach;
(c) Felony Conviction. Employee's conviction of any felony as evidenced by a
final judgment entered by a court of competent jurisdiction; or
(d) Dishonesty. Employee engaging in or having engaged in fraud,
misappropriation, dishonesty in financial dealings or embezzlement in
connection with the business of Company, or OUTT, as evidenced by a final
judgment entered by a court of competent jurisdiction.
7. Effect of Termination of Agreement.
7.1 Termination Voluntarily or By Reason of Death or Disability Claims. Upon
termination of this Agreement pursuant to Sections 5.1, 5.2, 5.3, 6.1 or 6.2
above, Employee, or the Employee's estate shall have no further rights or
claims against Company under this Agreement except to receive:
(a) Unpaid Salary. The unpaid portion of the Base Salary provided for in
Section 4.1, computed on a pro rata basis to the date of termination plus three
months severance, less applicable withholdings;
(b) Bonus. An amount equal to the Bonus described in Section 4.2 for the
entire fiscal year in which this Agreement is terminated multiplied by a
fraction with the number of days in the fiscal year prior to the date of
termination as the numerator and 365 days as the denominator, less applicable
withholdings.
(c) Unused Vacation. Payment of all accrued, unused vacation and other
personal holidays as described in Section 4.10(c), less applicable
withholdings;
(d) Unreimbursed Expenses. Reimbursement for expenses incurred prior to the
termination for which Employee has not yet been reimbursed, as provided in
Sections 4.3, 4.4, 4.6, 4.8 and 4.10(d);
(e) Insurance Proceeds. The proceeds of the policy of life insurance as
provided in Section 4.10(e) or the disability benefits provided in Section
4.10(f). The Company shall promptly submit the appropriate documentation to
claim the benefits of the policy or policies of Life Insurance maintained upon
the Employee's life, or the disability benefits as set forth in Section 4.10(e)
or (f) as applicable.
Amounts due pursuant to this Section 7.1 shall be made in accordance with the
law, and the balance of the payments shall be paid on a timetable and schedule
for such payments as if such termination did not occur, i.e. continuing during
the Employment Period on the same schedule as payments of Base Salary.
7.2 Termination for Cause. Upon termination of this Agreement pursuant to
Section 6.3, above, Employee shall not have any further rights or claims
against Company under this Agreement except to receive:
(a) The unpaid portion of the Base Salary provided for in Section 4.1,
computed on a pro rata basis to the date of termination, less applicable
withholdings;
(b) Payment of all accrued, unused vacation and other personal holidays as
described in Section 4.10(c), less applicable withholdings;
(c) Reimbursement for any expenses for which Employee has not yet been
reimbursed, as provided in Section 4.10(d); and
(d) The right to convert the ownership of the policy of insurance as provided
in Section 4.10(e).
Amounts due pursuant to this Section 7.2 shall be made in accordance with the
law.
7.3 Termination for Other Reasons. In the event Employee's employment is
terminated for any reason other than a provided in Sections 5 or 6, Employee
shall be entitled to receive the amounts described in Sections 7.1 and 8.
7.4 Company Property. Upon termination of this Agreement for any reason,
Employee shall promptly return all property of Company that is or has been in
Employee's possession, custody or control.
8. Professional Enhancement Matters. Employee currently enjoys a high level
of respect and recognition in his field. As a result of entering into and
performing the duties set forth in this Agreement Employee will experience an
enhanced reputation in Employee's profession as an electrical engineer and as a
businessperson in the business community. In addition, Employee, the Company
and the Group expect that as a result of Employee's efforts, the value of the
Company and the Group will greatly increase, thereby increasing the value of
the shares of OUTT common stock or the stock of other companies in the Group
received by Employee pursuant to the Share Exchange Agreement. Employee, the
Company and OUTT agree that a termination of this Agreement for any reason
other than as provided in Sections 5 or 6 shall inevitably injure Employee's
reputation and reduce the value of OUTT shares to be received by Employee
pursuant to the Share Exchange Agreement, and that calculating the damage to
Employee's reputation and financial position would be impractical and extremely
difficult. Under the circumstances existing at the date of this Agreement, the
liquidated damages provided for in this Article 8 represent a reasonable
estimate of the damages which Employee will incur as a result of a termination
of this Agreement by Company. Therefore, in the event that the Company
terminates this Agreement during the Employment Period for any reason other
than as permitted pursuant to Sections 5 and 6, Company, OUTT and Employee
hereby agree that a reasonable estimate of the total damages suffered by
Employee is the sum of Three Hundred Thousand Dollars ($300,000) which sum
shall reflect the diminution (i) in the value of Employee's shares in OUTT or
other Group company, (ii) of Employee's reputation in the engineering
community. Said amount, plus amounts due Employee as provided in Section 7.1
as computed over the entire Employment Period, shall be the full, agreed and
liquidated damages for the Company to pay to Employee in the event Company
terminates this Agreement other than as permitted pursuant to Sections 5 and 6.
The payment of such amount as liquidated damages is not intended as a
forfeiture or penalty within the meaning of California Civil Code Sections 3275
or 3369, but is intended to constitute liquidated damages to Employee pursuant
to California Civil Code Section 1671. This provision is not intended to, and
does not, limit Employee's right to receive reimbursement for attorneys' fees
in the event Employee prevails in an action brought against Company to enforce
this Agreement or any of its terms. The liquidated damages set forth pursuant
to this Article 8 are in addition to the provisions for the payment of amounts
set forth in Section 7.1.
9. Trade Secrets.
9.1 Confidential Information. Confidential Information means and includes
proprietary software and programs; financial or research models or processes
and related data; financial condition and information. The following is NOT
deemed to be Confidential Information: (i) information that is in the public
domain through no fault of Employee; (ii) information published or disseminated
by Company or the Group, in the ordinary course of business without
restriction; and (iii) information received from third parties not under an
obligation to keep such information confidential and without breach of this
Agreement by Employee, and (iv) business methods, knowledge of and contacts
within the industry and expertise brought to the position by Employee based on
his experience prior to employment with the Company.
9.2 No Disclosure. Employee specifically agrees that he will not at any time,
during the Employment Period, in any fashion, form, or manner, unless
specifically consented to in writing by Company, either directly or indirectly,
use or disclose to any person or entity, in any manner whatsoever other than in
the course of conducting Company's business, any Confidential Information of
any kind, nature or description concerning any matter affecting or relating to
the business of Company.
9.3 Protected Materials. All equipment, notebooks, documents, memoranda,
reports, written and computer files and data, samples, books, correspondence,
lists, other written and graphic records, records, tapes, discs, CD ROMS or
other storage mechanisms of documents or information and the like affecting or
relating to the business of Company that Employee prepares, uses, constructs,
observes, possesses or controls, and all copies thereof, shall be and remain
the sole property of Company.
10. Confidentiality and Nonsolicitation.
10.1 Confidentiality. During the Employment Period Employee agrees that he
will not, directly or indirectly, undertake planning for or organization of any
business activity competitive with Company's business or combine or conspire
with other employees or representatives of Company's business for the purposes
of organizing any such competitive business activity.
10.2 Client Nonsolicitation. Employee hereby acknowledges and recognizes that
he will be privy to Confidential Information constituting trade secrets of
Company. Employee agrees that, in consideration of the promises contained
herein and the consideration to be received by Employee pursuant to this
Agreement, during the Employment Period he will not, directly or indirectly,
either for Employee or for any other person, firm, or corporation, divert or
take away or attempt to divert or take away any of Company's customers or
clients, upon whom Employee called or whom Employee solicited during the
Employment Period. Notwithstanding the foregoing Employee may notify Company's
customers, clients or Employees of Employee's new address and telephone number
in the event Employee is no longer an Employee of the Company. It is, however,
not a breach of this Agreement if, in the event that any client affirmatively
desires Employee to continue to or to begin to perform services after Employee
is no longer employed with Company.
10.3 Employee Nonsolicitation. During the Employment Period Employee will not,
directly or indirectly or by action in concert with others, induce or influence
(or seek to induce or influence) any person who is or will be hereafter engaged
(as an employee, agent, independent contractor or otherwise) by Company to
terminate his or her employment or engagement.
11. Severability and Extraordinary Relief.
11.1 Severability. It is the desire and intent of the parties that the
provisions of this Agreement shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated to be invalid or unenforceable, such reduction
or dilution to apply only with respect to the operation of that particular
provision of this Agreement in the particular jurisdiction in which such
adjudication is made and enforced thereafter.
11.2 Injunctive Relief. Employee acknowledges and understands that the
provisions of Sections 9 and 10 of this Agreement are of a special and unique
nature, the breach of which cannot adequately be compensated for in damages by
an action at law. Nothing contained herein shall be construed as prohibiting
Company and its Affiliates or Employee from pursuing any other remedies
(including, without limitation, an action for damages) available for any actual
or threatened breach of this Agreement, and the pursuit of any injunction or
any other remedy shall not be deemed an exclusive election of such remedy.
11.3 Attorney's Fees. In the event suit is brought to enforce or interpret
this Agreement, the prevailing party shall be entitled to recover its costs
incurred and reasonable attorneys' fees.
12. Inventions and Copyright.
12.1 Inventions. Employee understands that during the Employment Period any
and all Inventions that Employee has made, conceived or developed or shall
make, conceive or develop, shall be the exclusive property of Company as
provided for pursuant to Labor Code Section 2871, and are hereby assigned by
Employee to Company, except as otherwise specifically agreed by Company in
writing.
12.2 No Assignment. Employee understands that he need not assign to Company
any rights to improvements, processes, discoveries, or inventions that qualify
fully under the provisions of Section 2870(a) of the California Labor Code,
which provides as follows:
"Section 2870. Inventions On Own Time - Exemption From Agreement.
"(a) Any provision in an employment agreement which provides that an employee
shall assign, or offer to assign, any of his or her rights in an invention to
his/her employer shall not apply to an invention that the employee developed
entirely on his/her own time without using the employer's equipment, supplies,
facilities, or Trade Secret information except for those inventions that
either:
"(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer; or
"(2) Result from any work performed by the employee for the employer."
12.3 Claimed Inventions. Employee has listed on Addendum A to this Agreement
all inventions and copyrights he is claiming to have as of the date of this
Agreement.
13. Additional Provisions.
13.1 Notices. All notices, claims, certificates, demands and other
communications hereunder shall be deemed to have been duly given if personally
delivered or sent by nationally-recognized overnight courier, by telecopy, or
certified mail, return receipt requested and postage prepaid, addressed as
follows:
If to Employee, to:
Jody P. Lenihan
AtlasPower, Inc.
24782 Lagrima
Mission Viejo, California 92692
Telephone: (949) 707-5699
Facsimile: (949) 830-8611
E-mail: [email protected]
With a copy to:
Cynthia L. Masters, Esq.
Gilchrist & Rutter
1299 Ocean Avenue, Suite 900
Santa Monica, California 90401-1000
Telephone: (310) 393-4000
Facsimile: (310) 394-4700
E-mail: [email protected]
If to Company, to:
AtlasPower, Inc.
24782 Lagrima
Mission Viejo, California 92692
Telephone: (949) 707-5699
Facsimile: (949) 830-8611
With a copy to:
Kenneth Eade, Esq.
827 State Street, Suite 12
Santa Barbara, California 93101
Telephone: (805) 560-9828
Facsimile: (805) 560-3608
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. Any such
notice or communication shall be deemed to have been delivered (a) in the case
of personal delivery, on the date of such delivery; (b) in the case of a
nationally-recognized overnight courier, on the next business day after the
notice was sent; (c) in the case of telecopy transmission, when received; and
(d) in the case of mailing, on the third business day following posting.
13.2 Entire Agreement. This Agreement and the other writings referred to
herein or delivered pursuant hereto contain the entire agreement among the
parties with respect to the subject manner hereof, and supersede all prior and
contemporaneous arrangements or understandings with respect thereto.
13.3 Successors and Assigns: Assignments. This Agreement shall bind and inure
to the benefit of Company and Employee and the respective successors, assigns,
heirs and personal representatives of Company and Employee. This Agreement is
personal in its nature, and Employee shall not, without the written consent of
Company, assign or transfer this Agreement or any rights or obligations
hereunder. Company may assign this Agreement and all rights and duties
hereunder, but any such assignment shall not relieve Company of its obligations
hereunder.
13.4 Governing Law. The parties hereto agree that it is their intention and
covenant that this Agreement and performance hereunder, and all suits and
special proceedings that may ensue from its breach, be construed in accordance
with and under the laws of the State of California, and that in any action,
special proceeding or other proceeding that may be brought arising out of, or
in connection with, or by reason of this Agreement, the laws of the State of
California shall be applicable and shall govern to the exclusion of the law or
any other form, without regard to the jurisdiction in which any action or
special proceeding may be instituted. The parties agree that any arbitration,
special proceeding or other proceeding with respect to or arising out of this
Agreement shall be brought and maintained in the County of Los Angeles,
California. The parties irrevocably consent to jurisdiction and venue in the
courts of said County.
13.5 Waivers. The provisions of this Agreement may not be waived, temporarily
or permanently, except pursuant to a writing executed by the person against
whom enforcement of such waiver would be sought. Either party's failure to
enforce any provision or provisions of this Agreement shall not in any way be
construed as a waiver of any such provision or provisions, or prevent that
party thereafter from enforcing each and every other provision of this
Agreement, provided, however, that exempted from this provision is any
complaint related to Employee's performance of his duties or services pursuant
to this Agreement, by which waiver of such complaint by Employer shall be
considered dispositive.
13.6 Amendments/Modifications. The terms and provisions of this Agreement may
not be modified or amended without the written consent of each of the parties.
13.7 Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute but
one agreement.
13.8 Headings. Titles and headings to paragraphs in this Agreement are for the
purpose of reference only and shall in no way limit, define or otherwise affect
the provisions of it. The provisions of this Agreement shall be interpreted in
accordance with their plain meaning. No provision of this Agreement shall be
interpreted against a party by reason of that party having been responsible for
the drafting of the provision.
13.9 Severable Provisions. The provisions of this Agreement are severable, and
if any one or more provisions is determined to be judicially unenforceable, in
whole or in part, the remaining provisions shall nevertheless be binding and
enforceable.
13.10 Employee's Representations. Employee represents and warrants that he
is free to enter into this Agreement and to perform each of the terms and
covenants of it. Employee represents and warrants that he is not restricted or
prohibited, contractually or otherwise, from entering into and performing this
Agreement, and that his execution and performance of this Agreement is not a
violation or a breach of any other Agreement between Employee and any other
person or entity.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the date
first above written.
"Company"
AtlasPower, Inc.
a California corporation
By: _______________________________
Its ____________________________
By: _______________________________
Its ____________________________
"Employee"
__________________________________
Jody P. Lenihan, an Individual
"OUTT"
Out-Takes, Inc.
a Delaware corporation
By: ______________________________
Its ____________________________
Exhibit A
Employee Job Responsibilities:
Field duties: acceptance/maintenance/startup of all electrical components,
functional checks, on-line measurements at electrical transmission/distribution
substations, generation facilities as required. Lead role as required,
including subcontractor/employee time & expense documentation, project
tracking, project planning (including test equipment rental), client
communication.
Studies: short-circuit, coordination, load flow, motor starting,
engineering/economic feasibility as required.
Design work: CAD, 1-lines, 3-lines, elementaries, cable/panel/termination
schedules, AC/DC auxiliary systems, specification writing, preparation of
Requests for Proposals, scheduling, estimating and purchasing as required.
Interfacing with multi-disciplines & construction, project management, and
contract administration with subcontractors as required.
Marketing/proposals: contacting and communicating with prospective and existing
clients, research of existing and upcoming projects, preparation of formal
proposals, advertising, web site maintenance, maintenance of marketing
materials (hats, brochures, cards, stationery).
Employee/Subcontractor Relations: hiring and terminating, scheduling, contract
negotiations, training & technical support, and performance reviews as
required. Development and maintenance of employee benefits standards.
Training: preparation of training manuals/courses and on-site training for
clients, employees and subcontract personnel as required. Research of
applicable standards, procedures and common practices as required.
Purchasing/administration: purchase and lease of property, equipment and
supplies as required for efficient & effective company operations.
Communication with potential and existing vendors & suppliers. Administration
of professional matters with legal and financial representatives as required.
Interface with Parent company: development and implementation of yearly
budgets/business plans, communications regarding employee hiring, equipment
purchases, and company administration.
Exhibit B
Additional Employee Administrative Responsibilities:
Employees and subcontractors: time sheet management and tracking in Quickbooks,
employee payroll and subcontractor time & expense reimbursement.
Accounts Payable: entering bills & lease payments, Quickbooks maintenance and
payment processing to vendors.
Accounts Receivable: invoicing, Quickbooks maintenance and collections from
customers.
Financial reports: report generation from Quickbooks to satisfy accountant's
review requirements.
Administration: reconciliation of bank account, line of credit and credit card
statements. Maintenance of company correspondence. Bank deposits and transfers.
Shipping of materials from office to project sites as required.
Filing: invoices, bills, time sheets & expenses, check stubs, credit card
receipts and statements, subcontractor/employee expense receipts, cleared
checks, online payments, bank statements, lease payments and shipping receipts.
Addendum A:
Claimed Inventions
None.
