EX-10.1






Exhibit 10.1




EXECUTIVE EMPLOYMENT AGREEMENT




     THIS
EXECUTIVE EMPLOYMENT AGREEMENT (the “Agreement”) is made as of the 1st day of July, 2007
(the “Effective Date”), between SearchPath International, Inc. (the “Company”) and the undersigned,
Thomas K. Johnston (the “Executive”).



     WHEREAS, the Executive is employed as President and Chief Executive Officer of the Company;



     WHEREAS, the parties wish to establish the terms of and document the Executive’s employment
relationship with the Company.



     NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
acknowledged by the parties, and intending to be legally bound hereby, the Company and Executive
agree as follows:



ARTICLE 1 — DEFINITIONS




          For the purposes of this Agreement, the following terms have the meanings specified or
referred to in this Article 1.




          “Benefits” has the meaning set forth in Section 3.2.




          “Board” means the Board of Directors of the Company.




          “Business of the Company” means those products and/or services now or hereafter during the
Term (as defined below) made, rendered, offered or under development by the Company




          “Confidential Information” means all confidential or other nonpublic information that belongs
to the Company (or third parties to whom the Company owes an obligation of confidentiality),
including without limitation, Company proprietary information, data, trade secrets, know-how and
information constituting or relating to the Company’s research and development, product plans,
specifications, products, services, investors, partners, distributors, customer lists and
customers, markets, market studies, technical data, regulatory submissions and documentation,
computer software and programs (including object code and source code), algorithms, science,
developments, inventions, processes, compilations, databases, formulas, technology, sketches,
designs, drawings, samples, engineering, hardware configuration information, marketing, finances or
other Company information; provided, however, that Confidential Information will
not include information which: (i) is or becomes public knowledge without any action by, or
involvement of, Executive; (ii) is disclosed by Executive in carrying out Executive’s duties for
the Company and consistent with his duty of loyalty to the Company; or (iii) is disclosed pursuant
to any judicial or governmental order, provided that Executive gives the Company sufficient prior
notice to contest such order.




 









 








          “Developments” means all discoveries, inventions, designs, improvements, enhancements, ideas,
concepts, techniques, know-how, software, documentation or other works of authorship, whether or
not copyrightable or patentable, and all Intellectual Property Rights therein.




          “Disability” has the meaning set forth in Section 4.2.




          “For Cause” has the meaning set forth in Section 4.3.




          “For Good Reason” has the meaning set forth in Section 4.4.




          “Intellectual Property Rights” means all intellectual property rights, including but not
limited to patents, copyrights, trademarks, applications, service marks, trade names, applications
for any of the foregoing, firmware, trade secrets, mask works, industrial design rights, rights of
priority, know how, concepts, processes, design flows, data rights, methodologies, and any and all
other legal rights protecting proprietary intangible property.




          “Person” means any individual, partnership, corporation, trust, joint venture, limited
liability company, unincorporated organization, association, or other entity.




          “Prior Developments” means Developments that were made by Executive prior to Executive’s
employment with the Company that are not assigned to the Company.




          “Salary” has the meaning set forth in Section 3.1.




          “Salary Continuation” has the meaning set forth in Section 4.5(a).




          “Severance Period” has the meaning set forth in Section 4.5(a).




          “Term” has the meaning set forth in Section 2.2




ARTICLE 2 — EMPLOYMENT TERMS AND DUTIES




     2.1 Employment. The Company hereby employs the Executive, and the Executive hereby
accepts employment by the Company, during the Term, upon the terms and conditions set forth in this
Agreement.



     2.2 Term and Termination. The term of this Agreement shall commence on the Effective
Date and shall end on the fifth anniversary of the Effective Date, unless earlier terminated by the
Executive or the Company, for any reason or no reason (the “Term”), subject to the provisions of
Article 4 (Termination). The Term may be extended or renewed on the mutual written agreement of
the parties.



     2.3 Duties. During the Term, Executive shall render to the Company his services as
Chief Executive Officer, upon the terms and conditions of this Agreement. Executive shall have
such authority and perform, in a manner consistent with the Company’s operating policies as



 









 




adopted from time to time by the Board, such executive duties as are assigned or delegated to
the Executive by the Board and are commensurate with such position, and shall report to and take
direction from the Board of Directors of the Corporate Entity. During the Term, and excluding any
periods of vacation and leave to which the Executive is entitled, the Executive shall devote full
attention and time to the business and affairs of the Company and use the Executive’s best efforts
to perform faithfully such responsibilities; provided, however, that during the
Term, it shall not be a violation of this Agreement for the Executive to (a) serve on corporate,
civic, charitable, and professional association boards or committees; and (b) manage personal
investments, so long as the foregoing activities do not materially interfere with the performance
of the Executive’s responsibilities as an employee of the Company in accordance with this
Agreement.




ARTICLE 3 — COMPENSATION, FACILITIES AND EXPENSES




     3.1 Compensation. The Executive will be paid an annual salary of Two hundred forty
thousand dollars ($240,000.00) (the “Salary”), or such increased salary as the Board may hereafter
from time to time determine, payable in equal periodic installments according to the Company’s
customary payroll practices, but no less frequently than monthly. All compensation paid to
Executive shall be subject to all customary local, state and federal withholding taxes and other
applicable employment taxes as required with respect to compensation paid by an employer to an
employee.



     3.2 Benefits. The Executive will, during the Term, be permitted to participate in
such retirement, stock option, incentive compensation, profit sharing, bonus, life insurance,
disability insurance, hospitalization, major medical, and other employee benefit plans of the
Company that may be in effect from time to time or as established by the Board, to the extent the
Executive is eligible under the terms of those plans (collectively, the “Benefits”). The Benefits
may be scaled back or eliminated as determined by the Company in its sole discretion.



     3.3 Facilities and Expenses. The Company will furnish the Executive office space,
equipment, supplies, and such other facilities and personnel as the Board deems necessary or
appropriate for the performance of the Executive’s duties under this Agreement. The Company will
pay on behalf of the Executive (or reimburse the Executive for) reasonable expenses incurred by the
Executive at the request of, or on behalf of, the Company in the performance of the Executive’s
duties pursuant to this Agreement, in accordance with the Company’s then-current policies.



 









 





ARTICLE 4 — TERMINATION




     4.1 Events of Termination. The Term, the Executive’s compensation and any and all
other rights and privileges of the Executive under this Agreement or otherwise as an employee of
the Company, will terminate (except as otherwise provided in, or as necessary to effectuate, the
terms of this Article 4):




     (a) upon the death of the Executive;




     (b) upon the Disability of the Executive immediately upon notice from either party to
the other;




     (c) for Cause, immediately upon notice from the Company to the Executive, or at such
later time as such notice may specify; or




     (d) for Good Reason, immediately upon notice from the Executive to the Company, or at
such later time as such notice may specify.



     4.2 Definition of Disability. For purposes of this Agreement, the Executive will be
deemed to have a “Disability” if, for physical or mental reasons, the Executive is unable to
perform the Executive’s duties under this Agreement for 120 consecutive days, or 180 days during
any twelve (12) month period, as determined by a medical doctor selected by agreement of the
Company and the Executive upon the request of either party by notice to the other. If the Company
and the Executive cannot agree on the selection of a medical doctor, each of them will select a
medical doctor and the two medical doctors will select a third medical doctor who will determine
whether the Executive has a Disability. To the extent that the Executive’s health insurance does
not cover the costs of these medical evaluations, the party initiating the claim of Disability
shall pay such costs. The determination of the medical doctor selected under this Section 4.2 will
be binding on both parties.



     4.3 Definition of “for Cause.” For purposes of this Agreement, the phrase “for Cause”
means: (a) the Executive’s failure to cure within thirty (30) days following notice any material
breach by the Executive of any material term of this Agreement; (b) the Executive’s failure to
adhere to any written Company policy if the Executive has been given reasonable notice and
opportunity to comply with such policy or cure failure to comply; (c) the conviction of, or the
entering of a guilty plea or plea of no contest with respect to, a felony by the Executive; or (d)
any misappropriation of the Company’s property or unethical business conduct by the Executive.



     4.4 Definition of “for Good Reason.” For purposes of this Agreement, the phrase “for
Good Reason” means any of the following: (a) the Company’s material breach of this Agreement which
remains uncured for a period of thirty (30) days following written notice thereof; (b) the
assignment of the Executive without Executive’s prior written consent to a position,
responsibilities or duties of a materially lesser status or degree of responsibility than
Executive’s position, responsibility or duties on the Effective Date; or (c) the requirement by the



 









 




Company, without the Executive’s written consent, that the Executive be based more than fifty
(50) miles from the Company’s principal office at the Effective Date.




     4.5 Termination Pay. Effective upon the termination of this Agreement, the Company
will be obligated to pay the Executive (or, in the event of Executive’s death, Executive’s
designated beneficiary as defined below) such compensation as is provided in this Section 4.5. For
purposes of this Section 4.5, the Executive’s designated beneficiary will be such individual
beneficiary or trust, located at such address as the Executive may designate by notice to the
Company from time to time or, if the Executive fails to give notice to the Company of such a
beneficiary, the Executive’s estate.




     (a) Termination by the Company other than for Cause. Except as set forth in
subsections (c), (d) and (e) below, if the Company terminates this Agreement for any reason
other than for Cause, the Company will to continue to pay the Executive his Salary (less
required withholding) (the “Salary Continuation”) for a period of three months from the
effective date of termination (the “Severance Period”); provided, however, that (i) it is a
condition precedent to the Executive’s entitlement to such Salary Continuation that he
cooperate in good faith to transition management of the Company to other Company personnel,
(ii) the Severance Period will not be extended by the Executive’s providing such transition
services, and (iii) the Executive’s compensation in full for such transition services shall
be the Salary Continuation paid to him during the Severance Period plus the reasonable and
necessary expenses he incurs in providing such transition services. Any Salary Continuation
owed to Executive hereunder shall be paid according to the Company’s customary payroll
practices.




     (b) Termination by the Company for Cause. If the Company terminates this
Agreement for Cause, the Executive will be entitled to receive Executive’s Salary only
through the date such termination is effective and any accrued and payable, but unpaid,
bonus or bonuses.




     (c) Termination by the Executive for Good Reason. If the Executive terminates
this Agreement for Good Reason, the Company will pay the Executive the Salary Continuation
during the Severance Period, subject to the same terms and conditions set forth in Section
4.5(a)(i)-(iii).




     (d) Termination upon Disability. If this Agreement is terminated by either
party as a result of the Executive’s Disability, as determined under Section 4.2, the
Company will pay the Executive his Salary through the remainder of the calendar month during
which such termination is effective.




     (e) Termination upon Death. If this Agreement is terminated because of the
Executive’s death, the Executive will be entitled to receive Executive’s Salary through the
end of the calendar month in which Executive’s death occurs and any accrued and payable, but
unpaid, bonus or bonuses.



 









 






     (f) Benefits. The Executive’s accrual of, or participation in plans providing
for, Benefits will cease at the effective date of the termination of this Agreement, and the
Executive will be entitled to accrued Benefits pursuant to such plans only as provided in
such plans.




     (g) Termination for Any Other Reason. If this Agreement is terminated for any
reason other than one of those enumerated Sections 4.5 (a)-(e) above, Executive’s Salary and
Benefits under this Agreement shall terminate immediately (except for accrued Benefits, if
any, as provided in any Benefits plans).



ARTICLE 5 — INTELLECTUAL PROPERTY AND

CONFIDENTIAL INFORMATION




     5.1 Intellectual Property. Executive shall disclose promptly to the Company or its
nominee any and all Developments made, conceived or developed by Executive, in whole or in part,
alone or jointly with others, that arise out of or relate to Executive’s affiliation with the
Company (whether as an employee or otherwise), whether such Developments occurred before, on or
after the date hereof. Executive hereby irrevocably assigns to the Company, or to any party
designated by the Company, Executive’s entire right, title and interest in all Developments that
are made, conceived, or developed by Executive, in whole or in part, alone or jointly with others,
that arise out of or relate to Executive’s affiliation with the Company (whether as an employee or
otherwise), whether before, on or after the date hereof. The Developments shall be the sole and
exclusive property of the Company, its successors and assigns. Executive agrees and acknowledges
that Executive has no proprietary interest in the Developments, which may not be used by Executive,
directly or indirectly, for any purpose except for the benefit of the Company. Executive further
agrees, without expense to Executive, to take such acts, and execute and acknowledge all such
documents, including without limitation patent and copyright applications, as may be necessary and
desirable in the sole discretion of the Company, to maintain, protect or vest in the Company the
entire right, title and interest in and to the Developments, and any Intellectual Property Rights
relating thereto, in any and all countries and jurisdictions, including assisting in any proceeding
related thereto, whether it be before a judicial tribunal, a government agency relating to
inventions, patents and/or copyrights, and/or any other administrative body. The obligations of
this Section 5.1 shall continue beyond the Term with respect to any Developments made, conceived or
developed by Executive before or during the Term, and shall be binding upon Executive’s assigns,
executors, administrators and other legal representatives.



     5.2 Prior Developments. If in the course of Executive’s employment with the Company,
Executive incorporates into a Company product, process or machine a Prior Development owned by
Executive or in which Executive has an interest, the Company is hereby granted and shall have a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify,
use and sell such Prior Development as part of or in connection with such product, process or
machine.



     5.3 Maintenance of Records. Executive agrees to keep and maintain adequate and
current written records of all Developments made by Executive (solely or jointly with others)



 









 




during the term of Executive’s employment with the Company. The records will be in the form
of notes, sketches, drawings, and any other format that may be specified by the Company. The
records will be available to and remain the sole property of the Company at all times.




     5.4 Confidential Information. Executive shall treat as confidential all Confidential
Information that prior to or during the Term was or is disclosed to Executive, which Executive
acquired or developed or may acquire or develop, or which Executive observed or may observe.
Executive shall not disclose, distribute, reproduce, publish or otherwise use, either during the
Term or thereafter, any Confidential Information without the prior written consent of the Company
or except as necessary in carrying out Executive’s duties for the Company.



     5.5 Former Employer Information. Executive agrees that Executive will not, during
Executive’s employment with the Company, improperly use or disclose any proprietary information or
trade secrets of any former or concurrent employer or other Person.



     5.6 Third-Party Information. Executive recognizes that the Company has received and
in the future will receive from third parties their confidential or proprietary information subject
to a duty on the Company’s part to maintain the confidentiality of such information and to use it
only for certain limited purposes. Executive agrees to hold all such confidential or proprietary
information in the strictest confidence and not to disclose it to any Person or to use it except as
necessary in carrying out Executive’s work for the Company consistent with the Company’s agreement
with such third party.



     5.7 Return of Property and Materials. Upon termination of this Agreement for any
reason, Executive shall promptly deliver to the Company all Company property and the originals and
copies of all correspondence, drawings, manuals, computer related or generated information,
letters, notes, notebooks, reports, prospect lists, customer lists, flow charts, programs,
proposals, and any documents concerning the Company’s research and development activity, business,
finances, investors, customers or suppliers and, without limiting the foregoing, will promptly
deliver to the Company any and all other documents or materials containing or constituting
Confidential Information or customer-related information or works. Executive agrees to maintain
the integrity of all stored computer information and agrees not to alter, damage or destroy said
computer information before returning it to the Company.



 









 





ARTICLE 6 — NON-COMPETITION AND NON-INTERFERENCE




     6.1 Noncompetition. In consideration of the promises and covenants in this Agreement
(which the parties agree are sufficient consideration to support the covenants set forth in this
Article 6), Executive agrees that during the Term, and for a period of three (3) year after the
termination of this Agreement, for any reason, Executive will not (except with the prior written
consent of the Company) directly or indirectly engage in any activity or business as an executive,
independent contractor, agent, employee, officer, partner, director or otherwise, alone or in
association with any other person, corporation or other entity for, or directly or indirectly own
five percent (5%) or more of the securities of, any individual or entity engaging, in whole or in
part, in the same or a competing business as the Business of the Company within the United States
or Canada or any other country where Executive has worked for the Company during the Term.



     6.2 Nonsolicitation of Employees. Executive agrees that during the Term, and for a
period of three (3) year after the termination of this Agreement for any reason, Executive will not
(except with the prior written consent of the Company) directly or indirectly employ, or knowingly
permit any company or business directly or indirectly controlled by Executive to employ any Person
who is employed by the Company at any time during the Term, or directly or indirectly interfere
with or attempt to disrupt the relationship, contractual or otherwise, between the Company and any
of its employees or solicit, induce, or attempt to induce employees of the Company to terminate
employment with the Company and become self-employed or employed with others in the same or a
competing business as the Business of the Company.



     6.3 Nonsolicitation of Customers. Executive agrees that during the Term, and for a
period of three (3) years after the termination of this Agreement for any reason, Executive will
not (except with the prior written consent of the Company) directly or indirectly, on his own
behalf or on behalf of anyone else, solicit or conduct business, or cause or permit the same to
occur, with any Person that is or was a customer of the Company during the Term if such
solicitation or conduct of business is or relates to the purchase, lease, license or other
provision of a product or service that is the same as, similar to, or in competition with those
products and/or services made, rendered, offered or under development by the Company during the
Term.



     6.4 Enforceability. In the event that a court of competent jurisdiction shall
determine that one or more of the provisions of this Article 6 is so broad as to be unenforceable,
then such provision shall be deemed to be reduced in scope or length, as the case may be, to the
extent required to make this section enforceable. If the Executive violates the provisions of this
Article 6, the periods described therein shall be extended by that number of days which equals the
aggregate of all days during which at any time any such violations occurred.



 









 





ARTICLE 7 — GENERAL PROVISIONS




     7.1 Injunctive Relief and Additional Remedy. The Executive acknowledges that the
injury that would be suffered by the Company as a result of a breach of the provisions of this
Agreement (including any provision of Articles 5 and 6) would be irreparable and that an award of
monetary damages to the Company for such a breach would be an inadequate remedy. Consequently, the
Company will have the right, in addition to any other rights it may have, to obtain injunctive
relief to restrain any breach or threatened breach or otherwise to specifically enforce any
provisions of this Agreement, and the Company will not be obligated to post bond or other security
in seeking such relief. Without limiting the Company’s rights under this Article 7 or any other
remedies of the Company and notwithstanding anything in this Agreement to the contrary, if the
Executive breaches any of the provisions of Articles 5 or 6, the Company shall have the right to
cease making any and all payments otherwise due to the Executive under this Agreement.



     7.2 Covenants of Articles 5 and 6. The Executive’s covenants of Articles 5 and 6 are
independent covenants and the existence of any claim by the Executive against the Company under
this Agreement or otherwise will not excuse the Executive’s breach of any covenant in Articles 5 or
6. If the Executive’s employment hereunder expires or is terminated, this Agreement will continue
in full force and effect as is necessary or appropriate to enforce the covenants and agreements of
the Executive in Articles 5 and 6.



     7.3 Representations and Warranties by the Executive. The Executive represents and
warrants to the Company that: (a) the execution and delivery by the Executive of this Agreement do
not, and the performance by the Executive of the Executive’s obligations hereunder will not, with
or without the giving of notice or the passage of time, or both (i) violate any judgment, writ,
injunction, or order of any court, arbitrator, or governmental agency applicable to the Executive,
or (ii) conflict with, result in the breach of any provisions of or the termination of, or
constitute a default under, any agreement to which the Executive is a party or by which the
Executive is or may be bound; (b) the Executive is not a party to or otherwise bound by any
agreement, understanding, condition of employment or policy which would in any manner limit or
otherwise affect Executive’s ability to perform Executive’s duties hereunder; (c) the performance
of Executive’s duties hereunder will not require Executive to disclose or use any confidential or
proprietary information or trade secrets belonging to any prior employer or other person or entity;
and (d) neither the Executive nor the Company has been threatened with any claim or suit relating
to the foregoing, and Executive knows of no basis on which any such claim or suit could be
asserted.



     7.4 Waiver. The rights and remedies of the parties to this Agreement are cumulative
and not alternative. Neither the failure nor any delay by either party in exercising any right,
power, or privilege under this Agreement will operate as a waiver of such right, power, or
privilege, and no single or partial exercise of any such right, power, or privilege will preclude
any other or further exercise of such right, power, or privilege or the exercise of any other
right, power, or privilege. To the maximum extent permitted by applicable law, (a) no claim or
right arising out of this Agreement can be discharged by one party, in whole or in part, by a
waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no
waiver that



 









 




may be given by a party will be applicable except in the specific instance for which it is
given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation
of such party or of the right of the party giving such notice or demand to take further action
without notice or demand as provided in this Agreement.




     7.5 Binding Effect; Assignability; Delegation of Duties. This Agreement, including
without limitation Executive’s covenants of Articles 5 and 6 (which are assignable by the Company),
shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective
successors, assigns, heirs, and legal representatives, including without limitation any entity with
which the Company may merge or consolidate or to which all or substantially all of its assets may
be transferred. The duties and covenants of the Executive under this Agreement may not be
delegated.



     7.6 Notices. All notices, requests, consents and other communications hereunder shall
be in writing and shall be deemed to have been duly given (a) at the time of receipt delivered in
person or by facsimile transmission (with transmission acknowledgement received), (b) one (1) day
after deposit with a nationally recognized overnight courier, specifying next day delivery, or (c)
three (3) days after being sent certified or registered mail, return receipt requested, in each
case to the address or facsimile number (as the case may be) listed for the applicable party below,
or, if any party shall have designated a different address or facsimile number by notice to the
other parties in the manner provided in this Section (provided that notice of change in address
and/or facsimile number shall be deemed given only when received), then to the last address or
facsimile number so designated:




			
	     If to Company:	 	SearchPath International, Inc.

Thomas K. Johnston, CEO

1350 Euclid Ave, Suite 325

Cleveland, Ohio 44115

Fax: 216.658.9711





     If to the Executive: Thomas K. Johnston to the address and fax number set forth on the
signature page hereafter.



     7.7 Entire Agreement; Amendments. Executive acknowledges that Executive has carefully
read and fully understands all of the provisions of this Agreement and that Executive is
voluntarily entering into this Agreement. This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral or written, between the parties hereto with respect to the subject matter
hereof. This Agreement may only be amended by an agreement in writing signed by the parties
hereto.



     7.8 Governing Law. This Agreement will be governed by the laws of the State of Ohio
without regard to conflicts of laws principles.



 









 





     7.9 Jurisdiction. Any action or proceeding seeking to enforce any provision of, or
based on any right arising out of, this Agreement may solely be brought against either of the
parties utilizing arbitration and each of the parties consents to the exclusive jurisdiction of the
State of Ohio in any such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence may be served on either
party anywhere in the world.



     7.10 Section Headings, Construction. The headings of Sections in this Agreement are
provided for convenience only and will not affect its construction or interpretation. All words
used in this Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word “including” does not limit the preceding
words or terms.



     7.11 Severability. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or unenforceable
only in part or degree will remain in full force and effect to the extent not held invalid or
unenforceable.



     7.12 Counterparts. This Agreement may be executed in one or more counterparts, each
of which will be deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same Agreement.



     IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date
first above written.



	 	 	 	 	 	 	 	 	 	 	 
	EMPLOYER	 	 	 	EXECUTIVE	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	SearchPath International	 	 	 	Thomas K. Johnston	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Amy E. Johnston
	 	 	 	By:
	 	/s/ Thomas K. Johnston	 	 
	 

	 	 

Name: Amy E. Johnston
	 	 
	 	 	 	 

	 	 
	 	 	Title: Vice President	 	 	 	Address:	 	 
	 	 	 	 	 	 	16100 Aldersyde Dr	 	 
	 	 	 	 	 	 	Shaker Heights, Ohio 44120	 	 
	 	 	 	 	 	 	Facsimile: 216.658.9711