EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made by and between Applied
Science Fiction, Inc. (the "Company"), and S. Xxxx Xxxxxxxx ("Executive") as of
December 10, 1999.
1. Duties and Scope of Employment.
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(a) Position, Employment Commencement Date, Duties. Executive's employment
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with the Company pursuant to this Agreement shall commence on December 10, 1999
(the "Employment Commencement Date"). As of the Employment Commencement Date,
the Company shall employ Executive as the Executive Vice President of Research
and Development of the Company. The period of Executive's employment with the
Company is referred to herein as the "Employment Term." During the Employment
Term, Executive shall manage the research and development of the Company,
including, but not limited to, the areas listed on attached Exhibit B.
(b) Employment Term. Executive and the Company understand, acknowledge and
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agree that Executive's employment with the Company constitutes "at-will"
employment. Subject to the Company's providing severance benefits as specified
herein, Executive and the Company understand, acknowledge and agree that the
employment relationship between Executive and the Company may be terminated at
any time, upon written notice to the other party, with or without cause, at the
option of either the Company or Executive. The at-will nature of the employment
relationship does not modify the four year vesting requirements, nor the
accelerated vesting requirements referenced in other sections of this Agreement.
(c) Obligations. During the Employment Term, Executive shall devote his
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full business efforts and time to the business of the Company. Notwithstanding
the above, Executive may serve as a director or trustee of other organizations,
or engage in charitable, civic, and/or governmental activities provided that
such service and activities do not prevent Executive from performing his duties
under this Agreement and further provided that Executive obtains written consent
for all such activities from the Company, which consent will not be unreasonably
withheld. Executive may engage in personal activities, including, without
limitation, personal investments (subject to the limitations specified elsewhere
in this Agreement), provided that such activities do not interfere with his
performance of duties hereunder. Executive may, from time to time, work at
home, so long as it does not interrupt communication or materially interfere
with the performance of his duties and job functions.
2. Employee Benefits.
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(a) During the Employment Term, Executive shall be eligible to participate
in the employee benefit plans maintained by the Company that are applicable to
other senior management to the fullest extent provided for under those plans.
The terms of the employee benefit plans may, from time to time, change without
advance notice or without cause.
(b) Executive's principal office will be in Austin, Texas. Executive shall
be provided supplemental office space near where he chooses to reside, initially
in California, but Executive shall be expected to work in Austin, Texas, to the
extent necessary to perform his duties.
Executive shall not be required to relocate his residence. The company will pay
the following expenses in connection with Executive's work in the principal
office:
(i) Executive's reasonable living expenses in Austin, Texas
(including without limitation, rent for an apartment or house),
not to exceed $2,000.00 per month;
(ii) Executive's reasonable travel expenses for business purposes
only; and
(iii) Executive's reasonable automobile expenses in Austin, Texas not
to exceed $400.00 per month.
Executive will be fully grossed-up by the Company for any
imputed income required to be recognized with respect to reimbursement for
expenses so that the economic effect to Executive, after taking into account any
tax deductions available to Executive, is the same as if this reimbursement was
provided to Executive on a non-taxable basis.
(c) Executive will accrue four (4) weeks of vacation per annum, provided,
however, that Executive may not accumulate any more than five (5) weeks of
vacation at any time. Vacation will accrue on a pro rata basis, at the rate of
one and two-thirds (1 2/3) days per month. Vacation will not accrue after the 5
week vacation limit has been reached. Upon termination of Executive's employment
with the Company for any reason, Executive shall be paid by the Company for all
accrued and unused vacation.
Special One-Time Vacation Grant: The Company agrees to grant Executive an
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additional one and one-half weeks of vacation in December 1999.
3. Compensation.
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(a) Base Salary. While Executive is employed by the Company, the Company
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shall pay Executive as compensation for his services a base salary at the
annualized rate of $250,000.00 (the "Base Salary"). However, the reference to an
annual salary is not intended to communicate a term of employment of one year;
rather, Executive's employment is "at-will" under this Agreement. The
Compensation Committee of the Company's Board shall review the Base Salary from
time to time, and after such review may increase, but not decrease, the Base
Salary. The Base Salary shall be paid periodically in accordance with normal
Company payroll practices and subject to the usual, applicable withholdings.
(b) Bonuses. The Company's fiscal year is identical to the calendar year.
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Beginning for the year ended December 31, 2000, and for all subsequent fiscal
years, Executive shall be eligible for a target bonus equal to 40% of Base
Salary for the fiscal year (the "Target Bonus") (with a greater payment based on
achievement in excess of the target milestones) based upon performance criteria
established at the discretion of and approved by the Compensation Committee of
the Board of Directors or the Chief Executive Officer to be established after
negotiation with Executive and provided to Executive in writing by the end of
April 2000 and the end of the first quarter of each year thereafter; provided,
however, that the payment of any such
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ASF-Xxxxxxxx Employment Agreement
annual bonus shall be subject to Executive's employment with the Company on May
31 of the fiscal year to which that bonus relates, and such payment will be pro-
rated based on the number of days of such fiscal year the Executive was employed
with the Company at the date Executive's employment with the Company is
terminated. If Executive's employment with the Company is terminated with
"Cause" (as defined in Paragraph 3(f) below), then Executive is not eligible for
payment of any bonuses and/or Target Bonuses.
Transition Allowance: The Company also agrees to provide Executive
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with a transition allowance in the amount of Ten Thousand dollars ($10,000),
less statutory deductions and withholdings, upon Executive's execution of this
Agreement.
(c) Equity Compensation.
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(i) Employment-Based Vesting Stock Option. Executive shall receive
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a stock option under the Company's Stock Option/Stock Issuance Plan to
purchase a total of 234,000 shares of the Company's common stock which, as
of December 9, 1999, represents 1% of the fully diluted capital stock of
the Company (fully diluted capital stock includes, without limitation, all
of the Company's outstanding equity securities, including, without
limitation, all of the Company's common stock, preferred stock, warrants,
options to purchase capital stock, and convertible debt instruments, all on
an as-if-converted basis, plus shares reserved for issuance under stock
grants or direct stock issuance in the future under the Company's Stock
Option/Stock Issuance Plan) with a per share exercise price equal to the
fair market value per common share as determined by the Company's Board of
Directors on the date of grant (the "Employment-Based Stock Option"). For
each dollar the fair market value per common share is greater than $1.55 on
the date of grant the Company will grant an option under the Company's
Stock Option/Stock Issuance Plan to purchase an additional 13,172 shares
(the "Additional Employment-Based Stock Option"). The Employment-Based
Stock Option and the Additional Employment-Based Stock Option shall be for
a term of ten years (or shorter upon termination of employment with the
Company) and, subject to accelerated vesting as set forth elsewhere this
Agreement, shall be vested with respect to 25% of the total grant as of the
first anniversary of the Employment Commencement Date and shall thereafter
vest at the rate of 1/48th of the total grant per month at each of the
following 36 monthly anniversary dates so as to be 100% vested on the
fourth year anniversary thereof, conditioned upon Executive's continued
employment with the Company as of each vesting date (unless otherwise
provided in this Agreement). Except as specified otherwise herein, this
option grant is in all respects subject to the terms, definitions and
provisions of the Company's 1995 Stock Option/Stock Issuance Plan (the
"Stock Plan") and the standard form of stock option agreement thereunder to
be entered into by and between Executive and the Company (the "Employment-
Based Option Agreement"). The Stock Plan and Employment-Based Option
Agreement are incorporated by reference for all purposes as if fully set
forth at length herein including the right to exercise the option for
unvested shares within thirty days of the Date of Grant.
The foregoing stock option grant does not preclude any future stock
option grants by the Company to Executive.
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All stock options granted Executive may be exercised in whole or in
part within 30 days of the Grant Date, subject to the Company's right to
repurchase unvested exercised shares. The Company will accept a full-
recourse promissory note (the "Promissory Note") to finance the exercise of
all stock options granted Executive, and the purchased option shares shall
be pledged with the Company as additional collateral of the Promissory
Note. The Promissory Note shall have a maximum term of five years, subject
to acceleration as indicated below upon Executive's termination of
employment, shall bear interest at the minimum rate required under the
Internal Revenue Code to avoid the imputation of compensation income to the
Executive, and shall be subject to the Company's other standard terms and
conditions unless otherwise specifically noted herein.
Interest on any Promissory Note executed by Executive to the Company
as payment for shares exercised under the Employment-Based Stock Option and
the Additional Employment-Based Stock Option will be 50% forgiven by the
Company at Executive's three year employment anniversary date and 100%
forgiven by the Company at Executive's four year anniversary date.
Provided, however, that if, and only if, Executive's employment with the
Company is terminated for Cause or if Executive voluntary terminates his
employment other than for "Good Reason" prior to Executive's three year or
four year anniversary dates, then Executive must pay the full amount of
accrued and unforgiven interest on the Promissory Note. Such payment must
be made within 180 days after such termination, if such termination occurs
after the Company's initial public offering ("IPO"); or within 2 years if
such termination occurs before an IPO. The outstanding principal balance of
the Promissory Note shall become due and payable in one lump sum 180 days
after the termination of Executive's employment for any reason if such
termination occurs after an IPO, or within 2 years if such termination
occurs before an IPO. In the event severance payments are owed by the
Company to the Executive as provided herein, such payments, net of
applicable withholding taxes, will be first offset against any Promissory
Note amount then owed by the Executive to the Company, and the balance of
such Promissory Note (if any) shall be paid within 180 days after
Executive's termination of employment if such termination occurs after an
IPO, or within 2 years if such termination occurs before an IPO. Should
Executive not have to pay interest on any Promissory Note as provided
herein, Executive shall remain obligated to make other payments pursuant to
the terms of the Promissory Note executed by Executive to the Company.
(ii) Subsequent Awards. During the Employment Term, Executive shall
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be eligible to receive additional stock and stock option grants, as
determined by and at the sole discretion of the Board's Compensation
Committee.
(d) Severance.
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(i) Prior to the Company entering into a Written Agreement resulting
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in a Change of Control. If, in any period prior to the Company entering
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into a written agreement resulting in a "Change of Control" (as defined in
Paragraph 3(f) below),
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Executive's employment with the Company is terminated by the Company
without "Cause" (as defined in Paragraph 3(f) below), then the Company
shall pay or provide to Executive the following severance: (1) Executive's
then unvested option shares shall continue to vest in installments as if
Executive continued in the Company's employ until all those option shares
are fully vested; (2) Executive's stock options shall have their post-
termination exercisability provisions automatically extended by forty-eight
months but not beyond the expiration date of the ten-year term; (3)
Executive shall receive a lump-sum payment equal to 50% of his annual Base
Salary, plus 50% of his annual Target Bonus, less applicable withholdings,
promptly following such termination of Executive's employment, and shall
receive a monthly amount equal to (i) 100% of his monthly rate of Base
Salary plus (ii) a dollar amount equal to one-twelfth of his annual Target
Bonus, less applicable withholdings, for eighteen months following such
termination of Executive's employment as if Executive had remained employed
by the Company for those eighteen months; and (4) Executive and his covered
dependents shall receive paid coverage under the Company's health insurance
benefit plans for a period of six months, with such health insurance
coverage to constitute the first six months of COBRA coverage, or, if and
to the extent ineligible under the terms of such plans, Executive shall
receive an amount equal to the Company's costs of providing such benefits;
provided, however, that Executive will be fully grossed-up by the Company
for any imputed income required to be recognized with respect to the
payments made in lieu of insurance benefit plan coverage so that the
economic effect to Executive is the same as if these payments were provided
to Executive on a non-taxable basis.
(ii) Following a Written Agreement Resulting in a Change of Control.
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If, after the execution of any written agreement resulting in a "Change of
Control" (as defined in Paragraph 3(f) below), Executive's employment with
the Company is terminated by the Company without "Cause" (as defined in
Paragraph 3(f) below) or is terminated by Executive for "Good Reason" (as
defined in Paragraph 3(f) below), then the Company shall pay or provide to
Executive the following severance: (1) Executive's then unvested option
shares shall continue to vest in installments as if Executive continued in
the Company's employ until all those option shares shall have fully vested;
(2) Executive's stock options shall have their post-termination
exercisability provisions automatically extended by forty-eight months, but
not beyond the expiration date of the ten-year term; (3) Executive shall
receive, promptly following such termination of employment, a lump-sum
payment equal to 200% of his Base Salary plus Target Bonus less applicable
withholdings; and (4) Executive and his covered dependents shall receive
coverage under the Company's health insurance benefits plans for a period
of six months, with such health insurance coverage to constitute the first
six months of COBRA coverage, or, if and to the extent ineligible under the
terms of such plans, Executive shall receive an amount equal to the
Company's costs of providing such benefits; provided however, that
Executive will be fully grossed-up by the Company for any imputed income
required to be recognized with respect to the payments made in lieu of
insurance benefit plan coverage so that the economic effect to Executive is
the same as if these payments were provided to Executive on a non-taxable
basis. Upon expiration of the 18 month period, Executive's rights upon
termination shall be governed by
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ASF-Xxxxxxxx Employment Agreement
the same provisions that apply to terminations "Prior to the Company
entering into a Written Agreement resulting in a Change of Control" set
forth above.
(iii) Executive shall have a thirty-day period commencing twelve
months after the execution of a written agreement resulting in a "Change of
Control" (as defined in Paragraph 3(f) below) whereby Executive may
terminate Executive's employment with the Company for any reason. If
Executive's employment with the Company is terminated by Executive during
this thirty day period, then for purposes of vesting in the Executive's
then unvested option shares, Executive shall be immediately credited with
an additional twenty-four (24) months of service (and the shares reflecting
the additional twenty-four months of service shall immediately vest), and
no other severance benefits shall be payable to Executive under this
Agreement.
(iv) Except as otherwise provided herein, should Executive
voluntarily terminate his employment with the Company other than for Good
Reason or should the Company terminate Executive's employment for Cause,
whether any such termination by the Executive or the Company occurs before
or after a Change in Control, no severance benefits shall be payable to
Executive under this Agreement. Executive shall be entitled to exercise his
stock options only to the extent those options are, in accordance with the
normal installment vesting schedule, vested at time of such termination of
employment.
(v) Executive and Company acknowledge and agree that the payments
set forth herein this Paragraph are a reasonable estimate of damages to
Executive and that this amount is not a penalty.
(e) Release. Executive acknowledges that the payments and/or benefits
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under Paragraph 3(d) are subject to the execution of a mutually agreeable
release agreement entered into between the Parties in the form attached hereto
as Exhibit C.
(f) Definitions. As used in this Agreement, "Cause" means (i) the
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Executive's material breach of this Agreement after receiving written
notification from the Company and following a reasonable cure period of not less
than 15 days, (ii) the Executive's conviction or plea of "guilty" or "no
contest" to (x) any crime constituting a felony in the jurisdiction in which
committed, (y) any crime involving moral turpitude (whether or not a felony), or
(z) any other violation of criminal law involving dishonesty or willful
misconduct that materially injures the Company (whether or not a felony), (iii)
substance abuse by the Executive that in any manner materially interferes with
the performance of his duties under this Agreement, (iv) the failure or refusal
of the Executive to follow the lawful and proper directives of the Company that
are within the scope of the Executive's duties set forth in Section 1(a) above
and that is not corrected within 15 days after written notice from the Board to
the Executive identifying such failure or refusal, (v) willful malfeasance or
gross misconduct by the Executive that discredits or damages the Company which
is not corrected within 15 days after written notice from the Board to the
Executive identifying such failure or refusal, (vi) indictment of the Executive
for a felony violation of the federal securities laws (except that in the event
such an indictment is resolved by means that would not constitute Cause for
termination under Section (f)(ii) above, Executive shall be entitled to
severance and the other benefits described in Section 3(d), as if he were
terminated without Cause, (vii) the Executive's chronic absence from work for
reasons other
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ASF-Xxxxxxxx Employment Agreement
than illness, and that is not corrected within 15 days after written notice from
the CEO. Any dispute by the Executive as to whether his termination was for
Cause will be resolved by arbitration.
For the purposes of this Agreement, a termination of employment by
Executive for "Good Reason" means the termination is based upon: (i) a reduction
in Executive's Base Salary, Target Bonus or benefits; (ii) a material reduction
in Executive's title, authority, or a material change in Executive's duties or
responsibilities; (iii) the failure of the Company to provide Executive with
office accommodations comparable to those provided at the time to the Company's
other executive officers (full service office space of Class A designation or
Class B+ designation in a Class A location with traditional high-wall office
environment, 1500 square feet or greater including conference/demo center and
administrative support, maintained by Company or services provider), initially
near Foster City, CA, but subject to change upon the mutual agreement of
Executive and the Company or (iv) any requirement that Executive permanently
relocate his employment and/or residence more than thirty (30) miles from his
place of residence at the time of the Effective Date of this Agreement or
anytime thereafter if Executive chooses to relocate. In no event, however,
shall any reduction up to 20% in salary or bonus levels applied by the Company
to officers across the board as part of a cost/expense reduction program
constitute grounds for a "Good Reason" termination by Executive under clause (i)
above. Any dispute between Executive and the Company regarding whether
Executive has "Good Reason" to terminate his employment with the Company will be
resolved by binding arbitration, and Executive is not required to resign his
employment with the Company prior to initiating arbitration to determine whether
"Good Reason" to resign exists.
For the purposes of this Agreement, "Change of Control" is defined as:
(1) When any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) becomes
the "beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing
fifty percent (50%) or more of the total voting power represented
by the Company's then outstanding voting securities; or
(2) Any merger, consolidation or transfer of securities of the
Company with or into another corporation, other than a merger,
consolidation or transfer of securities in which the holders of
more than 50% of the shares of capital stock of the Company
outstanding immediately prior to such transaction continue to
hold (either by the voting securities remaining outstanding or by
their being converted into voting securities of the surviving
entity) more than 50% of the total voting power represented by
the voting securities of the Company, or such surviving entity,
outstanding immediately after such transaction; or
(3) The sale, transfer, or disposal by other means of all or
substantially all of the Company's assets (or consummation of any
transaction having similar effect); or
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(4) The dissolution or liquidation of the Company.
4. Confidential and/or Proprietary Information.
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(a) At the beginning and throughout Executive's employment with the
Company, he will receive certain sensitive, proprietary, trade secret and/or
confidential information about the Company. Executive agrees that his employment
creates a relationship of confidence and trust with the Company with respect to
such proprietary, trade secret and/or confidential information of the Company.
Executive further agrees to enter into the Company's Proprietary Information
Agreement ("Proprietary Information Agreement") attached as Exhibit A to this
Agreement. Executive further agrees that during his employment and at all times
after termination of his employment, Executive will keep in confidence and trust
all proprietary, trade secret and/or confidential information of the Company and
will not disclose such information without the written consent of the Company,
except as may be necessary in the ordinary course of performing Executive's
duties to the Company. Confidential information that later becomes available in
the public domain would be excluded from this provision. Executive further
agrees that, upon the termination of his employment with the Company, for any
reason, Executive will return to the Company all of the Company's property,
confidential information, and proprietary information provided to him during his
employment.
(b) In consideration of the covenants of the Company in this Agreement,
the receipt by Executive of proprietary, trade secret and/or confidential
information of the Company, and other good and valuable consideration, Executive
acknowledges and agrees as follows: At any time within one year after separation
of Executive's employment with the Company for any reason, Executive, without
the Company's written consent, will not himself personally, directly or
indirectly, alone or in the role of a partner, joint venturer, officer,
director, employee, consultant, agent or stockholder (other than a less than 5%
stockholder of a publicly traded Company) (i) knowingly engage in activity which
is in material, direct competition with the Company's business with the use of
the specific products, trade secrets, proprietary information, and/or services
of the Company, as existed at the Company at the date of termination; (ii)
knowingly solicit any of the Company's employees or customers (unless the
customers are generally known as customers in the market/business at issue),
(iii) solicit for hire or actively encourage employees or consultants to leave
the Company; and/or (iv) otherwise knowingly breach Executive's confidential
information obligations as set forth in his Proprietary Information Agreement
with the Company, which is attached as Exhibit A. Should Executive personally
engage in any conduct listed above, then: (1) Executive's stock options, to the
extent unexercised at that time, and notwithstanding any provision in this
Employment Agreement to the contrary, shall immediately terminate, cease to be
exercisable and expire effective with the date on which the Executive enters
into such activity, unless this stock option is terminated sooner for any other
reason, and all unvested shares held by Executive at that time by reason of
prior exercise of his stock options shall be subject to repurchase by the
Company at the option exercise price paid for those shares; (2) with respect to
any portion of Executive's stock options or related shares exercised or sold
during the period beginning one year prior to Executive's termination and ending
two years after Executive's termination, any gain represented by the Fair Market
Value on the date of exercise if the shares are still held, or on the date of
sale, over the exercise price multiplied by the number of shares Executive sold
or exercised, without regard to any subsequent market price increase or
decrease, shall be paid by Executive to the Company;
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(3) the Company will be relieved of any obligations to pay Executive his Base
Salary or Target Bonus or provide Executive and his covered dependents coverage
under the Company's insurance benefits plans effective the date Executive enters
into such activity. In the event that the Company believes that Executive is
engaged in conduct prohibited by this Paragraph 4(b), the Company agrees to
provide Executive notice of such belief, in writing, and provide Executive
thirty (30) days to respond. If Executive responds in writing within that thirty
(30) day period, the Company agrees to provide a written reply indicating the
course of action the Company intends to take in regard to Executive's alleged
conduct. The written reply by the Company shall be provided within thirty (30)
days from the date the Company receives Executive's written response. In the
event the Company and Executive are unable to reach an agreement on the course
of conduct between them, then such dispute shall be submitted to arbitration as
provided herein.
By accepting and executing this Agreement, Executive agrees and
acknowledges that the provisions of this section are reasonably necessary to
protect the Company's proprietary, trade secret and/or confidential information,
legitimate business interests and goodwill. Executive further agrees that the
restrictions as to duration, geographic area, and scope of activity in this
section are reasonably necessary for the protection of the Company's
proprietary, trade secret and/or confidential information, legitimate business
interests and goodwill and are not oppressive or injurious to the public
interest. Executive further agrees that if the scope of any of the restrictions
is too broad to permit enforcement to its full extent, then such restriction
shall be enforced to the maximum extent permitted by law, and the Executive
hereby agrees that such scope may be judicially modified accordingly in any
proceeding to enforce such restriction. The Company shall be entitled to
injunctive relief against Executive's activities in the event of a breach or
threatened breach of any of the provisions in this section to the extent allowed
by law.
5. Director and Officer Insurance.
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Executive shall be entitled to the same rights of indemnification as
provided to all other executives, officers, and directors of the Company. To
that extent, the Company and Executive agree to enter into a written
indemnification agreement in the same form as all other senior executives of the
Company. If the Company files an initial public offering at any time during
Executive's employment with the Company, Director and Officer insurance will be
provided to Executive at that time.
6. Total Disability of Executive.
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Should Executive become permanently and totally disabled (as defined
in accordance with Internal Revenue Code Section 22(d)(3) or its successor
provision), then (i) Executive's stock options shall have their vesting
accelerated to the same extent as such options would have vested (based on
service-based vesting provisions solely and not on change of control vesting)
had Executive remained employed by the Company for an additional twenty-four
months, (ii) Executive shall receive a lump-sum payment equal to 100% of the sum
of his Base Salary plus Target Bonus, less applicable withholding, and (iii)
Executive and his covered dependents shall receive coverage under the Company's
health insurance benefit plans for a period of twenty-four months, with such
coverage to constitute the first twelve months of COBRA coverage, or, if and to
the extent ineligible under the terms of such plans, Executive
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shall receive an amount equal to the Company's costs of providing such benefits;
provided, however, Executive will be fully grossed-up by the Company for any
imputed income required to be recognized with respect to the payments made in
lieu of health insurance benefit plan coverage so that the economic effect to
Executive is the same as if these payments were provided to Executive on a non-
taxable basis.
7. Death of Executive.
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If Executive dies while employed by the Company, then (i) Executive's
stock options shall have their vesting accelerated to the same extent as such
options would have vested (based on service-based vesting provisions solely and
not on change of control vesting) had Executive remained employed by the Company
for an additional twenty-four months, (ii) Executive's estate or designated
beneficiary shall receive a lump-sum payment equal to 100% of the sum of
Executive's Base Salary plus Target Bonus, less applicable withholding, and
(iii) Executive's covered dependents shall receive coverage under the Company's
health insurance benefit plans for a period of twelve months, with such coverage
to constitute the first twelve months of COBRA coverage, or, if and to the
extent ineligible under the terms of such plans, Executive's covered dependents
shall receive an amount equal to the Company's costs of providing such benefits;
provided, however, that Executive's covered dependents will be fully grossed-up
by the Company for any imputed income required to be recognized with respect to
the payments made in lieu of health insurance benefit plan coverage so that the
economic effect to them is the same as if these payments were provided to them
on a non-taxable basis.
8. Assignment.
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This Agreement shall be binding upon and inure to the benefit of (a)
the heirs, executors and legal representatives of Executive upon Executive's
death, and (b) any successor of the Company. Any such successor of the Company
shall be deemed substituted for the Company under the terms of this Agreement
for all purposes. As used herein, "successor" shall include any person, firm,
corporation or other business entity which at any time, whether by purchase,
merger or otherwise, directly or indirectly acquires all or substantially all of
the assets or business of the Company. None of the rights of Executive to
receive any form of compensation payable pursuant to this Agreement shall be
assignable or transferable except through a testamentary disposition or by the
laws of descent and distribution following termination without "Cause" or for
"Good Reason" (as defined in Paragraph 3(f) herein). Any attempted assignment,
transfer, conveyance or other disposition other than as aforesaid of any
interest in the rights of Executive to receive any form of compensation
hereunder shall be null and void.
9. Notices.
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All notices, requests, demands and other communications provided for
and/or required under this Agreement shall be in writing and shall be deemed
received (i) on the day of delivery if delivered personally, (ii) one day after
being sent by Federal Express or a similar commercial overnight service, or
(iii) three days after being mailed by registered or certified mail, return
receipt requested, prepaid and addressed to the Parties or their successors in
interest
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at the following addresses, or at such other addresses as the parties may
designate by written notice in the manner aforesaid:
If to the Company: Applied Science Fiction, Inc.
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxx, Xxxxx 00000
Austin, Texas
Attention: VP Finance
If to Executive: To the address where the Company's central
records are maintained, as such address may
change from time to time, unless Executive
notifies the Company, in writing, of a different
address.
10. Severability.
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In the event that any provision or covenant hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision and the existence of such unenforceable provision shall not constitute
a defense to the enforcement of the remainder of this Agreement.
11. Indemnity.
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The Company will, to the extent and on the conditions stated in this
paragraph, indemnify Executive for damages in connection with a lawsuit brought
against Executive by a party other than the Company for theft or disclosure of
trade secrets or breach of a non-compete agreement or any other related claims,
such as unfair competition, to the extent that such claims relate to Executive's
acceptance of employment with, and employment thereafter by, the Company. The
Company will, in addition to such indemnity, undertake the defense of the
Executive against all alleged claims and be responsible for the legal fees
incurred in such defense. The Parties agree that the Company has not in any way
or manner requested, encouraged or induced Executive to breach any non-compete
agreements and/or confidentiality agreements or obligations that Executive has
with any other party and/or entity, or to use or disclose any trade secret,
confidential and/or proprietary information he received from any other party
and/or entity. In the event any such lawsuit is initiated, Executive shall
cooperate fully with the Company in the defense of the alleged claims against
Executive. If Executive is as a result of such lawsuit not permitted to work
with the Company, (either because the Company was unsuccessful in its defense,
chooses not to defend because of expense or any other reason), Executive is
entitled to recover severance (including payments and stock vesting) from the
Company as though he had been terminated without Cause and shall accordingly be
entitled to the severance, benefits, and vesting provided pursuant to Paragraph
3(d)(i) of this Agreement.
12. Other Agreements.
----------------
The Parties acknowledge and agree that the Company did not tortiously
interfere with any contract to which Executive was a party and that the Company
has not induced Executive to breach any contract. The Parties further
acknowledge and agree that throughout
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ASF-Xxxxxxxx Employment Agreement
Executive's employment with the Company he will not disclose or use trade
secret, confidential and/or proprietary information acquired by Executive from
any other party and/or entity, and that the Company will not ask him or permit
him to disclose or use any trade secret, confidential and/or proprietary
information acquired by Executive from any other party and/or entity.
13. Entire Agreement.
----------------
This Agreement, the Stock Plan, the Employment-Based Stock Option
Agreements, the Promissory Note, the Pledge Agreement, the Proprietary
Information Agreement, constitute the entire agreement and understanding between
the Company and Executive concerning Executive's employment relationship with
the Company, and supersede and replace any and all prior or contemporaneous
verbal or written agreements and understandings concerning Executive's
employment relationship with the Company. This Agreement may only be modified by
a writing signed by all Parties to this Agreement.
14. Arbitration and Equitable Relief.
---------------------------------
(a) Except as provided otherwise herein, Executive agrees that any dispute
or controversy arising out of, relating to or in connection with this Agreement,
the interpretation, validity, construction, performance, breach or termination
of this Agreement, and/or the employment relationship between the Company and
Executive, shall be settled by arbitration to be held in Xxxxxx County, Texas,
pursuant to the Federal Arbitration Act and in accordance with the National
Rules for the Resolution of Employment Disputes then in effect of the American
Arbitration Association (the "Rules"). The Company agrees to reimburse the
reasonable and necessary travel and accommodation expenses incurred by Executive
in connection with any arbitration taking place under this Agreement. The
arbitrator may grant injunctions or other relief in such dispute or controversy.
The decision of the arbitrator shall be final, conclusive and binding on the
parties to the arbitration. Judgment may be entered on the arbitrator's decision
in any court having jurisdiction.
(b) The arbitrator shall apply Texas law to the merits of any dispute or
claim, without reference to rules of conflict of law. The arbitration
proceedings shall be governed by the Federal Arbitration Act, federal
arbitration law, and the Rules, without reference to state arbitration law.
Executive hereby expressly consents to the personal jurisdiction of the state
and federal courts located in Xxxxxx County, Texas for any action or proceeding
arising from or relating to this Agreement and/or relating to any arbitration in
which the parties are participants.
(c) The Company will pay the administrative costs of arbitration for both
Parties. The prevailing party in any arbitration pursuant to this agreement
shall be entitled to recover its costs and reasonable attorneys fees incurred in
the arbitration to the extent permitted by law. In the case of arbitration(s)
initiated by the Company only, the arbitrator must make an affirmative finding
that the Executive has engaged in an actual material breach of this Agreement in
order for the Company to be deemed the prevailing party for purposes of
recovering its reasonable attorneys' fees.
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ASF-Xxxxxxxx Employment Agreement
(d) In the event of any breach by the Company of this Agreement, Executive
shall not be required to mitigate his damages.
(e) Executive understands that nothing in this Agreement modifies
Executive's "at will" employment status. The employment relationship between
Executive and the Company may be terminated at any time, with or without cause,
at the option of either the Company or Executive pursuant to the terms of this
Agreement.
(f) The Parties agree neither party will intentionally delay the
arbitration procedures. Both parties will be ready to present their case to the
arbitrator within 6 months of the receipt of a written demand for arbitration.
The arbitrator shall schedule an arbitration hearing within 6 months of receipt
of the demand for arbitration and submit a written decision and award within 1
month of the completion of the arbitration hearing, and will determine whether
either party has unnecessarily delayed the procedure. If a party unnecessarily
delays the procedure, that party will accept the claims and or positions of the
other party.
(g) EXECUTIVE HAS READ AND UNDERSTANDS SECTION 15, WHICH DISCUSSES
ARBITRATION, EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EXECUTIVE
AGREES TO SUBMIT ANY FUTURE CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION
WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE,
BREACH, OR TERMINATION THEREOF TO BINDING ARBITRATION, AND THAT THIS ARBITRATION
CLAUSE CONSTITUTES AN EXPRESS WAIVER OF EXECUTIVE'S RIGHT TO A JURY TRIAL AND
RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE
EMPLOYMENT RELATIONSHIP BETWEEN THE COMPANY AND EXECUTIVE, INCLUDING BUT NOT
LIMITED TO, THE FOLLOWING CLAIMS:
(i) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT; BREACH
OF CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH OF THE COVENANT OF GOOD FAITH
AND FAIR DEALING, BOTH EXPRESS AND IMPLIED, NEGLIGENT OR INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT OR INTENTIONAL
MISREPRESENTATION; NEGLIGENT OR INTENTIONAL INTERFERENCE WITH CONTRACT OR
PROSPECTIVE ECONOMIC ADVANTAGE; AND DEFAMATION.
(ii) ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL, STATE OR
MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE CIVIL
RIGHTS ACT OF 1964, THE CIVIL RIGHTS ACT OF 1991, THE AGE DISCRIMINATION IN
EMPLOYMENT ACT OF 1967, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE
FAMILY AND MEDICAL LEAVE ACT, THE FAIR LABOR STANDARDS ACT, THE TEXAS
COMMISSION ON HUMAN RIGHTS ACT, AND THE TEXAS LABOR CODE SECTION 21.001, ET
SEQ.)
(iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND REGULATIONS
RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.
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ASF-Xxxxxxxx Employment Agreement
15. Legal Fee Reimbursement.
-----------------------
The Company agrees to pay Executive's reasonable legal fees associated
with entering into this Agreement upon receiving invoices for such services
within fourteen days of the Employment Commencement Date.
16. Titles Not Controlling.
----------------------
Paragraphs, titles or captions in this Agreement are used for
convenience or reference only and are not intended to and shall not in any way
enlarge, define, limit, extend or describe the rights or obligations of the
Parties or affect the meaning or construction of this Agreement or any provision
hereof.
17. No Oral Modification, Cancellation or Discharge.
-----------------------------------------------
This Agreement may only be modified, amended, canceled or discharged
in writing signed by Executive and the Company.
18. Withholding.
-----------
The Company shall be entitled to withhold, or cause to be withheld any
amount of applicable withholdings with respect to payments and/or compensation
to Executive in connection with this Agreement and Executive's employment with
the Company.
19. GOVERNING LAW.
-------------
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS.
20. Fax Signatures and Counterparts.
--------------------------------
This Agreement may be executed by facsimile signature and may be executed
in counterparts with each counterpart considered an original and all
counterparts taken together considered one complete and enforceable contract.
21. Effective Date.
----------------
This Agreement is effective as of the date set forth above.
22. Acknowledgment.
---------------
Executive agrees that he is not presently affected by a disability
which would prevent Executive from freely, knowingly and voluntarily
executing this Agreement. Executive acknowledges that he has had the
opportunity to review and revise this Agreement, has had sufficient time
to, and has carefully read and fully understands all the provisions of this
Agreement, and is knowingly and voluntarily entering into this Agreement.
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ASF-Xxxxxxxx Employment Agreement
IN WITNESS WHEREOF, the undersigned have executed this Agreement on
the respective dates set forth below:
APPLIED SCIENCE FICTION, INC.
By: Xxxx Xxxxxx /s/ Xxxx Xxxxxx
-----------------------
Its: President & CEO____________________
/s/ Xxxx Xxxxxxxx
----------------------------------------
S. Xxxx Xxxxxxxx
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ASF-Xxxxxxxx Employment Agreement
