Exhibit 10(f)
EMPLOYMENT AGREEMENT
Agreement, dated as of July 1, 1999, between Boundless Manufacturing
Services, Inc., a Delaware corporation, having offices at 000 Xxxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000 (the "Company"), Boundless Corporation, a Delaware
corporation, having offices at 000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000
("Boundless") and Xxxxxx Xxx, an individual residing at 000 Xxxxxxxxx Xxxxx,
Xxxxxx, XX 00000 ("Executive").
WITNESSETH:
WHEREAS, the Company has been recently organized by Boundless
Corporation, an affiliated company which owns 75% of the Company's capital
stock, to provide manufacturing services initially in the electronic
manufacturing services market and subsequently in other markets.
WHEREAS, the Company desires to employ Executive as its Chief Operating
Officer, all pursuant to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, it is agreed as follows:
1. Scope of Employment
1.1 Engagement, Authority and Duties. The Company hereby employs
Executive, and Executive hereby accepts employment, as Chief Operating Officer
of the Company. In such capacity, and subject to the current operating
guidelines and procedures which apply to the
Company's affiliate, Boundless Technologies, Inc., Executive shall have the
power, authority and responsibility to direct and supervise the daily operations
of the Company pursuant to the Company's business plan (subject to the direction
of the Board of Directors of the Company (the "Board"), including, but not
limited to: (i) preparing a proposed business plan for each year setting forth
the strategic objectives for the Company, the means proposed to accomplish such
objectives and financial projections and assumptions for the Company, for review
and approval by the Company's Board, and proposing revisions thereto at least
annually for review and approval by the Board (as so approved and revised (the
"Business Plan")); (ii) managing the other executives and personnel of the
Company; (iii) evaluating, negotiating, structuring and implementing business
transactions with vendors and others doing business with the Company; and (iv)
performing such other customary duties as are appropriate for a Chief Operating
Officer of a business at the Company's stage of development and growth.
Executive has prepared and submitted to the Board, and the Board has approved, a
Business Plan covering the period beginning on the date hereof and ending 365
days hereafter. Executive and the Board will cooperate in attempting to achieve
the goals established in the Business Plan.
1.2 Location. Executive shall perform his duties from offices at
Chapin, South Carolina, or from such other temporary office(s) as the Company
and Executive, after good faith discussions, may agree is required for Executive
to effectively perform his duties. Executive agrees that the performance of his
duties may require travel by him.
1.3 Full Time. Executive shall devote his full business time, efforts
and energies to the proper discharge of his duties and responsibilities under
this Agreement and shall serve the Company faithfully, diligently and to the
best of his abilities.
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1.4 Term. Executive's employment hereunder shall be for a term of four
years commencing the date of this Agreement and expiring the fourth anniversary
of such date, unless sooner terminated or extended as provided below. The term
of Employment shall be extended automatically for successive one year terms,
unless three months prior to the last day of the current term either party
hereto shall have notified the other that such extension shall not occur. The
term of Executive's employment is the Employment Term.
1.5 The Executive Shares. Executive shall purchase, on the date hereof,
400 shares of the Company's common stock, no par value, for an aggregate of
$2,000, which the Company hereby represents constitutes 12.5% of the Company's
issued and outstanding common stock on the date hereof (the "Executive Shares").
The Company hereby represents that it has no other class of capital stock
outstanding. Except as set forth in the immediately succeeding sentence, if the
Company terminates Executive's employment under Section 4.4 of this Agreement
due to the Company's failure to attain the Minimum Performance Standard for any
year, Executive shall sell to the Company and the Company shall purchase from
Executive, not later than 90 days after the last day of any year of the
Employment Term, for $5.00 per share, one hundred (100) of the Executive Shares,
plus an amount of Shares equal to 100 times the number of full and partial years
remaining under the initial four year term of this Agreement. In the event the
immediately preceding sentence applies and the failure to attain Minimum
Performance Standards involves the third or fourth years of the Employment Term
and, provided further, that the Company has attained not less than eighty
percent (80%) of the Minimum Performance Standard for the third or fourth year
of the Employment Term, as the case may be, the number of shares repurchaseable
by the Company shall (a) equal one hundred (100) of the Executive Shares minus
an amount of shares equal to one hundred (100) times the percent of the Minimum
Performance Standard
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attained by the Company, plus (b) if the failure to attain the Minimum
Performance Standard involves the third year of the Employment Term, fifty (50)
of the Executive Shares. The Company's obligations described in the two
preceding sentences are hereinafter referred to as the "Repurchase
Requirement(s)." On the 91st day after the close of each year of the Employment
Term, one hundred (100) of the Executive Shares minus that number of shares
subject to the Repurchase Requirement for that year (but not less than zero),
will no longer be subject to the Repurchase Requirement (the "Released Shares").
Consistent therewith, provided (i) the Company attains the Minimum Performance
Standard for such year, or (ii) the Company does not attain the Minimum
Performance Standard for such year and the Company does not elect to terminate
Executive's employment under Section 4.4 within ninety one days after the close
of such year, one hundred (100) of Executive Shares will constitute the Released
Shares. In the event the Executive's employment is terminated as a result of his
Death or Disability under either Sections 4.2 or 4.3 hereof, and provided the
Company attains the Minimum Performance Standard for the year in which such
termination occurs, the number of Shares that will constitute Released Shares
will be determined by multiplying the number of Shares that would otherwise have
constituted Released Shares by a fraction, the numerator of which is the number
of days in the year that have elapsed prior to termination of Executive's
employment and the denominator of which is 365. Except by operation of law,
Executive Shares will not be transferable by Executive prior to becoming
Released Shares and, if transferred, will remain subject to the restrictions
provided for this Agreement, including those contained in this Section with
respect to the Repurchase Requirement.
1.6 Investment Intent. Executive is acquiring the Executive Shares for
his own account for investment and has no present arrangement (whether or not
legally binding) to sell, at
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any time, any of the Executive Shares to or through any Person. Executive
understands that the Executive Shares must be held until registered under the
Securities and Exchange Act of 1933 (the "Securities Act") or an exemption from
registration is available.
1.7 Legend. Executive understands that the stock certificates
representing the Executive Shares shall bear legends substantially to the
following effect:
"The Shares represented by the certificates have not been
registered under the Securities Act of 1933. Such Shares have
been acquired for investment and may not be sold, transferred
or assigned in the absence of an effective registration
statement covering such Shares or an opinion of the Company's
counsel that registration is not required under such Act."
"The Shares represented by the certificates are subject to
restrictions on transfer and other restrictions that are
contained in an agreement between Xxxxxx Xxx and Boundless
Manufacturing Services, Inc., dated July 1, 1999."
2. Compensation
2.1 Base Salary. Executive shall be paid a base salary at the rate of
$158,700 per annum (the "Base Salary", subject to increase (but not reduction),
at the Board's discretion, for example in recognition of superior performance or
competitive compensation practices). Such salary shall be payable in appropriate
installments to conform with the regular payroll dates for salaried personnel of
Boundless Technologies, Inc.
2.2 Cash Bonus. Within 90 days after the last day of each year of the
Employment Term, Executive shall be paid a cash bonus (the "Cash Bonus") based
on satisfaction of the
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EBITDA objectives described in Schedule 1 attached hereto (the "Objective") as
follows: Cash Bonus = Yearly Bonus Target x Bonus Payment Multiplier. For this
purpose, (i) the Yearly Bonus Target for the first year of the Employment Term
shall be $50,000 and the Yearly Bonus Targets for subsequent years shall be
determined by the Board but shall not be less than $50,000, and (ii) for each
year of the Employment Term, the Bonus Payment Multiplier shall be determined
based on the percentage of the Company's Objective that is realized for the
Employment Term year as set forth below:
Percent Objective Realized Bonus Payment Multiplier
-------------------------- ------------------------
0-49% 0.00
50-79% 0.75
80-95% 0.85
95-100% 1.00
101-110% 1.15
111-125% 1.35
126-149% 1.70
150-up% 2.00
2.3 Withholding. The Company shall withhold all applicable federal,
state and local taxes, social security and workers' compensation contributions,
and such other amounts as may be required by law or agreed upon by the parties,
with respect to the compensation payable to Executive pursuant to this Section
2.
2.4 Provided the Objective has been attained by the Company, not later
than 90 days after the last day of each year of the Employment Term, Boundless
Corporation will issue to Executive a stock option agreement (the "Stock
Option"), pursuant to which Executive may
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purchase from Boundless shares of Boundless common stock, $.01 par value, in
exchange for shares of common stock of the Company. The number of shares of
Boundless common stock purchasable under each Stock Option shall be determined
by the following formula:
x = (b times .25) times d
-
c
For purposes of this formula: (i) x = the number of shares of Boundless common
stock purchasable under the Stock Option, which shall not exceed 75,000 Shares
(the "Option Limit"), (ii) b = Executive's percentage ownership of the capital
stock of the Company on the test date times the earnings available to the
Company's shareholders for the year, (iii) c = the earnings available to
Boundless' shareholders for the year, and (iv) d = the number of shares of
common stock of Boundless Corporation which is outstanding on the test date. The
test date shall mean the last day of the relevant year of the Employment Term.
In the event (b) is greater than (c), (b) over (c) in the formula will equal one
(1).
The exchange ratio between the Company's common stock and the Boundless
common stock covered by the Stock Option shall be 100 Shares of the Company's
common stock for the number of Shares of Boundless common stock equal to "x" in
the above formula, except for this purpose, "x" is computed without reference to
the Option Limit. The Stock Option shall provide that only Released Shares can
be transferred to Boundless in exchange for Boundless common stock. The Stock
Option will be exercisable during the period commencing 12 months after it is
issued by Boundless and ending the earlier of (i) sixty months after its
issuance, or (ii) on the date that the Securities and Exchange Commission (the
"SEC") declares a registration statement or Form 10 filed by the Company
effective under either the Securities and Exchange Acts of 1933 or 1934 (a
"Registration Statement" and "Form 10," respectively). Boundless will have the
option to redeem the common stock purchased on exercise of the Stock Option for
a period of
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four (4) months after its exercise for an amount equal to the common stock's
average closing prices for a five day period on the American Stock Exchange or
other market on which the Common Stock is then trading. No Stock Options will be
issued with respect to any year, if the event described in (ii) in the preceding
sentence has occurred.
2.5 Signing Bonus. Executive shall be paid a one time signing
bonus of $10,000 within 30 days of execution of this agreement.
3. Expenses and Additional Benefits
3.1 Expenses. The Company shall reimburse Executive for all ordinary
and necessary expenses incurred by Executive in furtherance of the business and
affairs of the Company, including reasonable travel and entertainment, against
receipt by the Company of appropriate vouchers or other proof of Executive's
expenditures and otherwise in accordance with the Company's expense
reimbursement policy that has been approved by the Board of the Company.
3.2 Vacation. Executive shall be entitled to four weeks of paid
vacation during each year of the Employment Term, or such greater number of days
as the Company makes available to its senior executive officers, as well as such
paid holiday and leave time and sick leave benefits as is provided generally to
the senior executive officers of Boundless Technologies, Inc.
3.3 Fringe Benefits. Executive shall be entitled to participate,
commencing as of the date hereof, in all employee pension, retirement, savings,
deferred compensation, welfare, insurance and other benefit and fringe benefit
plans, programs and arrangements provided to the employees and senior executive
officers of Boundless Technologies, Inc., generally, from time to time,
according to the terms of such plans, programs and arrangements but, except for
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discretionary bonuses or awards, in no event on terms and conditions less
favorable than those applicable to the senior executive officers of Boundless
Technologies, Inc. (herein, the "Employee Plans"). Executive shall receive those
perquisites and other personal benefits made available to the other senior
executive officers of Boundless Technologies, Inc., generally, from time to
time.
3.4 Indemnification. The Company shall indemnify Executive to the
fullest extent permitted under the laws of the State of Delaware, and not
inconsistent with the Company's Certificate of Incorporation and By-Laws, as in
effect from time to time. During the term of this Agreement, the Company will
use its best efforts to cause Boundless Corporation to include Executive in its
officers and directors insurance policy, as may exist from time to time.
4. Termination
4.1 By the Company for Cause. The Company may terminate the Employment
Term "for Cause," which shall mean and be limited to the following events: (a)
Executive's conviction in a court of law of a felony or a crime under United
States law punishable by confinement for a period in excess of three months; (b)
Executive's commission of an act of fraud in the performance of his duties
hereunder; or (c) Executive's material breach of his duty of loyalty to the
Company or any of the covenants set forth in Sections 5.2, and 7.
Upon termination pursuant to this Section 4.1 or Executive's
termination of this Agreement other than for Good Reason (as defined below), the
Company shall have no further obligation to Executive under this Agreement
except to pay Executive within 30 days, in lieu of amounts otherwise payable
hereunder, the Base Salary payable to the date of termination and amounts due as
reimbursement of expenses pursuant to Section 3.1. In such case, in addition to
any other remedies the Company may have, the Company shall have no further
obligation to
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make any Cash Bonus payments to Executive (as set forth in Section 2.2 hereof),
or any other payments contemplated under this Agreement, to Executive with
respect to the year in which the Executives employment is terminated and for
each succeeding year (but not any prior year), the Stock Options previously
granted to Executive shall be cancelled and the Company shall have the right to
purchase all, or a part of, the Executive Shares for $5.00 per share
(Executive's original out-of-pocket cost per share) not later than one year
after termination.
4.2 Death. If Executive dies during the Employment Term, the Company
shall, within 30 days, pay Executive's estate, in lieu of amounts otherwise
payable hereunder (a) the Base Salary payable to the date of his death, (b) any
Cash Bonus to which Executive is entitled pursuant to Section 2.2 in respect of
the Employment Term year immediately preceding the year of the date of
Executive's death and (c) amounts due as reimbursement of expenses pursuant to
Section 3.1. Furthermore, Executive's rights with respect to the Stock Options
previously granted to Executive shall remain in place and be governed by the
terms of the relevant Stock Option Agreements and the Company shall have the
right to purchase all, or a part of, the Executive Shares which are not Released
Shares for $5.00 per share (Executive's original out-of-pocket cost per share),
by giving written notice to Executive's Estate, Executor, or personal
representative, not later than 60 days after Death; such purchase to take place
as soon as possible thereafter.
4.3 Disability. In the event that (i) Executive is unable substantially
to perform his duties hereunder because he is Disabled (as defined below) for a
period of 45 consecutive days or 60 days within any period of 12 consecutive
months and (ii) the Company shall have given to Executive 10 days notice of its
intention to terminate the Employment Term pursuant to this Section 4.3 and
Executive does not resume substantially all of his duties under this Agreement
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before the expiration of 10 days following the date Executive receives such
notice, then the Company may, at any time during the continuance of such
disability, terminate the Employment Term on written notice to Executive. For
purposes of this Agreement, the term "Disabled" shall mean the inability of
Executive for medical reasons certified by a physician selected by the Board and
reasonably satisfactory to Executive or his personal representative(s) to
substantially perform his duties hereunder. Upon such termination, Executive
shall have no further obligation to perform services for the Company under this
Agreement and the Company shall pay Executive promptly (but in no event later
than 20 days), in lieu of the amounts that would otherwise be payable hereunder,
(x) consistent with the policy in effect at Boundless Technologies, Inc. with
respect to employee sick leave, the Base Salary payable for the period ending 5
days after Executive's absence from work first commenced, (y) any Cash Bonus, in
respect of the Employment Term year immediately preceding the year of the date
of such termination, and (z) amounts due as reimbursement of expenses pursuant
to Section 3.1. Furthermore, Executive's rights with respect to the Stock
Options previously granted to Executive shall remain in place and be governed by
the terms of the relevant Stock Option Agreements and the Company shall have the
right to purchase all, or a part of, the Executive Shares which are not Released
Shares for $5.00 per share (Executive's original out-of-pocket cost per share),
by giving written notice to Executive or to his personal representative, as the
case may be, not later than 60 days after Disability; such purchase to take
place as soon as possible thereafter. The Company shall also continue
Executive's health insurance then provided by the Company, at the Company's
expense, for four months following termination of the Employment Term pursuant
to this Section 4.3.
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4.3.1 The wage continuation (with respect to Base Salary), sick leave,
and other policies with respect to absences from work due to sickness, which
apply to employees of Boundless Technologies, Inc., will apply to Executive
hereunder.
4.4 By Company for Failure to Attain Minimum Performance Standings. The
Company may terminate the Employment Term due to the Company's failure to attain
Minimum Performance Standards, as set forth on Schedule 1, attached hereto. Upon
such termination, Executive shall have no further obligation to perform services
for the Company under this Agreement and, except as set forth in Section 1.5
hereof, the Company shall be released from all obligations to Executive under
this Agreement and Executive shall receive from the Company a continuation of
his Base Salary (at the rate and pursuant to the payment schedule in effect
prior to the date of termination) for a six-month period following the date of
termination, which amounts will be reduced by amounts received by Executive as a
result of substitute employment. Provided any subsequent employer does not
provide Executive with health insurance coverage, the Company shall also
continue Executive's health insurance then provided by the Company, at the
Company's expense, for six months following the termination of the Employment
Term pursuant to Section 4.4. Furthermore, Executive's rights with respect to
the Stock Options previously granted to Executive shall remain in place and be
governed by the terms of the relevant Stock Option Agreements and the Company
shall have the right to purchase all, or a part of, the Executive Shares which
are not Released Shares for $5.00 per share (Executive's original out-of-pocket
cost per share), by giving written notice to Executive, not later than 60 days
after Termination; such purchase to take place as soon as possible thereafter.
4.5 By the Executive for Good Reason. The Executive may terminate the
Employment Term for Good Reason by giving at least 60 days prior written notice
to the
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Company of such election and the facts constituting each Good Reason for
Executive's termination of the Employment Term, provided at least one such Good
Reason continues to be a Good Reason on the effective date of such termination.
4.6 Termination For Other Than: (a) Cause (b) Death,
(c) Disability, (d) Failure of Minimum Performance Standards or Termination by
Executive For Good Reason.
(a) In general. If (i) the Company terminates Executive's
employment hereunder, and such termination of employment is for other than (A)
Cause (pursuant to Section 4.1 hereof), (B) Executive's death or disability
(pursuant to Section 4.2 or 4.3 hereof), or (C) the Company's failure to obtain
the Minimum Performance Standards, (pursuant to Section 4.4 hereof); or (ii)
Executive terminates his employment for Good Reason, Executive shall receive
from the Company, as liquidated damages, the following compensation: (1) a
continuation of his Base Salary (at the rate and pursuant to the payment
schedule in effect immediately prior to the date of termination) for an 18-month
period following the date of termination, (2) on or before 45 days after the
close of the Employment Term year within which the termination occurs, Executive
shall receive from the Company the amount calculated as a pro rata portion
(determined on a pro rata daily basis), through the date of termination, of the
Cash Bonus pursuant to Section 2.2 of this Agreement to which Executive would
have been entitled had he remained continuously employed by the Company through
the end of the Employment Term year within which termination occurs, (3) all
incentive stock options issued to the Executive by the Company prior to his
termination shall become immediately vested and exercisable pursuant to the
terms of the option agreements, and (4) all Executive Shares, which are not
Released Shares, will no longer be subject to the Repurchase Requirement and
will immediately become
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Released Shares owned by Executive without any restrictions. The Company shall
also continue Executive's health insurance then provided by the Company, at the
Company's expense, for 18 months following termination of the Employment Term
pursuant to this Section 4.6.
(b) Good Reason. For purposes of this Agreement, "Good
Reason" shall mean any of the following:
(i) the assignment to Executive of any duties inconsistent
substantially with Executive's position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities under this
Agreement (other than in the nature of a promotion);
(ii) any reduction by the Company of Executive's Base Salary
or reduction of the Yearly Bonus Target below $50,000 for any year;
(iii)any material breach by either the Company or Boundless
Corporation of any provision of this Agreement not cured within any cure period
provided in this Agreement, or in the absence thereof, not cured within 45 days
after written notice by Executive to the Company;
(iv) abandonment by the Company of its contract
manufacturing business;
(v) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than Boundless Corporation, becomes the
"beneficial owner" (as such term is defined in Rule 13d-3 under the Act),
directly or indirectly, of securities of the Company representing 40% or more of
the combined voting power of the outstanding securities of the Company except
where the events described in this paragraph result in the incumbent directors
of the Company prior to such events continuing to constitute more than 50% of
the Board of Directors;
(vi) the shareholders of the Company approve (A) a merger or
consolidation of the Company with any other entity (other than a merger or
consolidation which would result in
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the voting securities of the Company outstanding immediately prior thereto
continuing to represent, either by remaining outstanding or by being converted
into voting securities of the surviving entity, at least 50% of the combined
voting power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation), (B) a plan of
complete liquidation or dissolution of the Company or (C) the sale or
disposition, in a single transaction or series of related transactions, by the
Company of all or substantially all of the property and assets of the Company,
except where the events described in the foregoing (A) or (C) result in the
incumbent directors of the Company prior to such events constituting at least a
majority of the board of the surviving corporation or its parent (as such term
is defined in Rule 12b-2 under the Exchange Act); or
(vii)removal of the Executive from the Board.
5. Protection of Confidential Information
5.1 Confidential Information. As used in this Section 5, the term
"Confidential Information" shall mean information relating to the Company or any
of its affiliates including, but not limited to, information relating to the
Business Plan and the Company's strategies, intellectual property, products and
products being developed, customer lists and potential customer lists, strategic
partners or participants and marketing and sales methods unique to the Company.
Confidential Information excludes information which is independently developed
by a recipient of the information, or which is in the public domain, or which
becomes available to a recipient on a non-confidential basis without violating
Section 5 of this Agreement, or which is required to be disclosed by law.
5.2 Nondisclosure of Confidential Information. Executive shall not, at
any time during the Employment Term (other than as may be required in connection
with the performance
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by his of her duties hereunder) and for two years or
thereafter, directly or indirectly, use, communicate, disclose or disseminate
any Confidential Information in any manner whatsoever.
In the event Executive is requested or required (by oral questions,
interrogatories, requests for information or similar legal process) to disclose
any Confidential Information, Executive will provide the Company with prompt
notice thereof so that the Company may seek an appropriate protective order
and/or waive Executive's compliance with the provisions of this Section 5.2.
6. Non-Competition
6.1 Material Inducement. Executive acknowledges that his
agreements contained in Section 6.2 are an important inducement to the Company's
executing this Agreement.
6.2 Covenants.
(a) If (i) the Company terminates Executive's employment
hereunder, and such termination of employment is for Cause (pursuant to Section
4.1 hereof), or (ii) Executive terminates his employment for other than Good
Reason, then during the period commencing on the date of termination of
Executive's Employment and ending 12 months following the termination of the
Executive's employment with the Company, Executive shall not, except on behalf
of the Company, directly or indirectly, whether as an officer, director,
shareholder, partner, member, associate, employee, consultant, agent or
representative, become or be interested in, or associated with, any other
person, firm, company, partnership or other entity whatsoever, engaged in a
business that is similar or comparable and competitive with the business
conducted by the Company during the Employment Term in any of the markets where
the Company is carrying on such business or has targeted for business
development; provided, however, that Executive may own as an investor securities
of any Company whose securities are
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registered under the Securities Act, so long as she is not an affiliate (as
defined in Rule 405 under such Act) of such Company.
(b) In all events, Executive shall not, directly or
indirectly, during the period commencing on termination of Executive's
Employment, and ending 12 months after Executive's employment with the Company
expires or terminates for any reason, induce or attempt to induce any employee
or agent of, or consultant to, the Company or any of the Company's affiliates to
terminate his or her employment or consultancy with the Company.
(c) Except for those persons described in Section 6.2(c)
above, in no event, at any time, shall Executive request any person or entity
to curtail or cancel its business relationship with the Company.
7. Inventions
(a) Executive agrees to disclose to the Company all
inventions, designs, product developments, technological innovations, know-how,
tests, performance data and processes ("Inventions"), whether or not patentable,
copyrightable or subject to trademark or service xxxx, made or conceived by
Executive, directly or indirectly, during the term of this Agreement and that
relate in any way to the business of the Company, whether or not made or
conceived by Executive during working hours. Executive agrees that all such
Inventions shall inure to, and be the property of, the Company.
(b) Executive agrees (i) to assign to the Company, its
successors and assigns, all of Executive's right, title and interest in and to
any such Inventions, (ii) during and after the term of this Agreement, at the
Company's expense, cooperate with the Company in the preparation and filing of
such patent applications and other documents and instruments as the Company
shall deem appropriate to perfect and protect its rights in and to such
Inventions, and
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(iii) to protect and defend the Company's right, title and interest in and to
any such Inventions, at the Company's expense.
(c) Except as required in the conduct of the Company's
business or in the discharge of his duties and responsibilities hereunder,
Executive will not publish or disclose, or authorize or permit anyone to publish
or disclose, during or after the term of this Agreement, any proprietary
knowledge or information concerning any Invention.
8. Injunctive Relief
(a) Executive agrees that a violation of the covenants set
forth in Sections 5.2, 6 and 7, or any provision thereof, will cause irreparable
injury to the Company and that the Company shall be entitled, in addition to any
other rights and remedies it may have, at law or in equity, to an injunction
enjoining and restraining Executive from doing or continuing to do any such act
or other violations or threatened violations of Sections 5.2, 6 and 7.
9. Dispute Resolution
(a) Any and all disputes, claims or controversies arising out
of or relating to this Agreement that are not resolved within 10 business days
shall be submitted to final and binding arbitration in New York City before
J-A-M-S/ENDISPUTE, or its successor, pursuant to the United States Arbitration
Act, 9 U.S.C. Sec. 1 et seq. Either party may commence the arbitration process
called for in this Agreement by filing a written demand for arbitration with
J-A-M-S/ENDISPUTE, with a copy to the other party. The arbitration will be
conducted in accordance with the provisions of J-A-M-S/ENDISPUTE's Streamlined
Arbitration Rules and Procedures in effect at the time of filing of the demand
for arbitration. The parties will cooperate with J-A-M-S/ENDISPUTE and with one
another in selecting an arbitrator from J-A-M-S/ ENDISPUTE's panel of neutrals,
and in scheduling the arbitration proceedings so that a final
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determination can be made within 30 days after submission to arbitration. The
parties covenant that they will participate in the arbitration in good faith,
and that they will share equally in its costs. However, once an award is
rendered, the losing party shall be responsible for paying all of the winner's
reasonable costs and expenses of the arbitration, including reasonable
attorney's fees. The provisions of this Section 9 may be enforced by any Court
of competent jurisdiction, and the party seeking enforcement shall be entitled
to an award of all reasonable costs, fees and expenses, including attorneys'
fees, to be paid by the party against whom enforcement is ordered.
10. Company Operational Issues
10.1 Plant Capacity. Boundless Corporation will use its reasonable
efforts to make available to the Company the underutilized manufacturing
capacity, as it may exist from time to time, at its manufacturing facility,
located at 000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, for which the
Company will be charged based on costs competitive with that prevailing in the
EMS Industry. Boundless Corporation will use best efforts to advance to the
Company the working capital required under the Company's Business Plan,
consistent with Boundless Corporation's and its affiliates' working capital
requirements and with the consent of Boundless Corporation's lenders, as may be
required under its loan agreements. Boundless Corporation understands that the
provision of the capital required for the operation of the Company's business is
a material inducement for the Executive to enter into this Agreement.
10.2 Board of Directors. The Company's Board of Directors will consist
of Xxxxxx Xxx, Xxxxxxx Xxxxxxxxxxx and three individuals nominated by Boundless
Corporation. Boundless Corporation will select the Chairman of the Board and
until the SEC declares a Registration Statement or a Form 10 filed by the
Company effective and provided Executive
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remains employed by the Company, the Company will vote its shares to Elect
Executive to the Board. Subject to the Company's By-Laws, each director shall
serve until his successor is elected, or appointed or qualified, or until his
earlier death, resignation or removal.
10.3 Officers. The initial officers of the Company shall consist of J.
Xxxxxx Xxxxx, who shall serve as the Company's Chief Executive Officer, Xxxxxx
Xxx, as the Chief Operating Officer, Xxxxxxx Xxxxxxxxxxx, as Executive
Vice-President, and Xxxxxx Xxxxxxx, as Chief Financial Officer.
11. Miscellaneous
11.1 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed duly given when delivered by
hand receipt acknowledged (which shall include delivery by Federal Express or
similar service and by facsimile) or three days after mailing, if mailed
registered or certified mail, postage prepaid, return receipt requested, in each
case addressed to Executive at his address in the Company's records and or to
the Company at its address above, with copies sent in the same manner:
If sent to the Company, to:
Boundless Manufacturing Services, Inc.
c/o Boundless Technologies
000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
with a copy to:
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FischbeinoBadillooWagneroHarding
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
If sent to Executive, to:
Xxxxxx Xxx
000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
with a copy to:
Xxxx Xxxxxxxxxxx
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
or to such other address as either party hereto shall have designated by like
notice to the other party hereto.
11.2 Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and undertakings of the parties hereto, oral and
written, with respect to the subject matter hereof.
11.3 Applicable Law. This Agreement shall be governed by the laws
of the State of New York, without regard to principles of conflict of laws.
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11.4 Headings. The headings herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
11.5 Assignment. This Agreement and the benefits hereunder are personal
to the Company and Executive and are not assignable or transferable by either of
them, nor may the services to be performed hereunder be assigned by the Company
to any person, firm or company; provided, however, that this Agreement and the
benefits hereunder may be assigned by the Company to any company acquiring all
or substantially all of the assets of the Company or to any company into which
the Company may be merged or consolidated, and this Agreement and the benefits
hereunder will automatically be deemed assigned to any such company; provided
further, however, that nothing herein shall preclude Executive's beneficiary,
legatee or devisee or the legal representative of Executive or his estate from
receiving any amount or benefit that may be payable or provided to or in respect
of Executive hereunder following his death or legal incompetency.
11.6 Severability. If in any jurisdiction any term or provision hereof
is invalid or unenforceable, (a) the remaining terms and provisions thereof
shall be unimpaired, (b) any such invalidity or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction and (c) the invalid or unenforceable term or provision shall,
for purposes of such jurisdiction, be deemed replaced by a term or provision
that is valid and enforceable and that comes closest to expressing the intention
of the invalid or unenforceable term or provision (but such replacement shall
not in any case be more restrictive or burdensome on Executive or the Company).
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11.7 Amendment; Waiver. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended and the terms or covenants hereof may
be waived, only by a written instrument executed by both of the parties hereto,
or in the case of a waiver, by the party waiving compliance. The failure of
either party at any time or times to require performance of any provision hereof
shall in no manner affect the right at a later time to enforce the same. No
waiver by either party of the breach of any term or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be, or construed as, a further or continuing waiver of any such
breach, or a waiver of the breach of any other term or covenant contained in
this Agreement.
11.8 Right of First Refusal. If, at any time prior to the Company's
consummating a "public offering" of its Capital Stock, pursuant to a
registration statement declared effective by the Securities and Exchange
Commission under the Securities and Exchange Act of 1933, the Executive receives
a bona fide written offer from a third party to purchase all or a part of the
Executive Shares or any Shares Acquired by Executive by exercise of incentive
stock options ("Option Shares") (a "Purchase Offer"), then the Executive shall
immediately give notice enclosing a copy of the Purchase Offer to Boundless, and
Boundless shall have the option, exercisable within thirty (30) days after such
notice is given, to purchase the Executive Shares and/or Option Shares at the
same price and upon the same terms as those contained in the Purchase Offer. In
the absence of such purchase by Boundless Corporation, Executive may sell all or
a portion of the Executive Shares to the third party, pursuant to the terms
described in the Purchase Offer. Any modification of such bona fide written
offer by said third party shall constitute a new offer hereunder and thus must
be submitted by Executive to Boundless Corporation under this Section 11.8.
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11.9 Survival. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
11.10 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the date first above written.
BOUNDLESS MANUFACTURING SERVICES, INC.
By: /s/
---------------------------------
Authorized Signatory
/s/
---------------------------------
Xxxxxx Xxx
The undersigned hereby guarantees the performance of the
Company's obligations set forth this Agreement.
BOUNDLESS CORPORATION
By: /s/
---------------------------------
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