Ex-10.46
Employment Agreement with Xxxx Xxxx
EXHIBIT 10.46
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is effective as of July 1, 2000, by
and between Telegen Corporation, a California corporation, ("Employer") and Xxxx
Xxxx, an individual, ("King").
A. Employer desires the services of King in order to retain his
experience, abilities, and knowledge, and is therefore willing to engage his
services on the terms and conditions set forth below.
X. Xxxx desires to be in the employ of Employer and is willing to do so
on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the above recitals, the mutual
promises and conditions set forth in this Agreement, and other valuable
consideration, the receipt of which is hereby acknowledged, the parties agree
as follows:
1. Term. Subject to the termination provisions provided in this
Agreement, King shall be employed for a term commencing July 1, 2000 and ending
July 1, 2002. Thereafter, unless otherwise agreed to in writing, King's
employment with Employer will be at will.
2. Place of Employment. Unless the parties agree otherwise in writing,
King shall perform the services he is required to perform under this Agreement
at Employer's main offices; however, Employer may from time to time require King
to travel temporarily to other locations on Employer's business, so long as such
travel does not exceed 5 continuous days. For purposes of this paragraph 2, main
offices shall include Employer's corporate office in Northern California and
Employee's offices in Southern California.
3. Position and Responsibilities. Employer shall employ King as its
"Senior Vice President/Public and Investor Relations". As a Senior Vice
President, King shall, in cooperation with and at the direction of the Chief
Operating Officer, be responsible for overseeing and supervising all Public
and Investor Relation functions of Employer's business.
4. Exclusive Employment. Except as specifically provided for in this
paragraph 4, during his employment, King shall devote a minimum of 20 hours per
week of business time, energy, and ability exclusively to the business and
interests of Employer, and shall not, without Employer's prior written consent,
render to others services of any kind for compensation, or engage in any other
business activity. King shall, however, be permitted to conduct the business of
his position as Vice President - Marketing & Sales of Xxxxxx Resources, so long
as such conduct does not unreasonably interfere with King's responsibilities to
Employer under this Agreement.
5. Work Schedule. Generally, King will put in the time necessary, Monday
through Friday of each week, to carry out the responsibilities and duties of his
position with Employer.
6. Non-Competition. During his employment with Employer, King shall not,
directly or indirectly, whether as partner, employee, creditor, shareholder, or
otherwise, promote, participate, or engage in any activity or other business
competitive with Employer.
7. Nonsolicitation of Employees. During the period of Employment and for
a period of two (2) years after the cessation of employment for any reason,
whether with or without cause, King shall not directly or indirectly, either
alone or in concert with others, solicit or entice any employee of or consultant
to Employer to leave Employer or work for anyone in competition with Employer.
8. Nonsolicitation of Customers. During the period of employment and for
a period of two (2) years after the cessation of employment for any reason,
whether with or without cause, King shall not directly or indirectly,
either alone or in concert with others, solicit, entice, or in any way divert
any prospective customers, customers or suppliers of Employer to do business
with any business entity in competition with Employer.
9. Compensation.
a. During the term of this Agreement, Employer agrees to pay King a
Base Salary of One Hundred and Fifty Thousand dollars ($150,000) per year. The
Base Salary shall be payable as current salary, in installments twice each month
subject to all applicable withholdings and deductions.
b. As an inducement to King to accept employment, Employer hereby
provides King a signing bonus consisting of 25,000 shares of non-assessable,
fully diluted (post split) stock and incentive stock options for 50,000
additional shares at a strike price of $1.75 per share and vesting at the rate
of 2,083 options per month.
10. Benefits.
a. Employer will provide King with participation in the 2000
Employee Stock Option Plan as approved by the Board of Directors.
b. Employer will provide King with participation in the 2000
Employee Stock Purchase Plan as approved by the Board of Directors
c. Employer will provide King an automobile allowance of $350 per
month as approved by the Board of Directors for executives.
11. Vacation; Sick Leave; Retreats. King shall be entitled to four (4)
weeks of paid vacation for each twelve (12) month period, which vacation shall
accrue pro-rata from the date employment commencing under this Agreement.
Vacation time will continue to accrue so long as King's total accrued vacation
does not exceed six (6) weeks. Should King's accrued vacation time reach six (6)
weeks, King will have the option of taking his vacation time in cash up, to a
maximum of four (4) weeks.
12. Reimbursement of Expenses. During the employment term, to the extent
that such expenditures satisfy the criteria under the Internal Revenue Code for
deductibility by Employer (whether or not fully deductible) for federal income
tax purposes as ordinary and necessary business expenses, Employer shall
reimburse King promptly for reasonable business expenses, including travel,
parking, business meetings, meals and lodging away from home, and professional
dues. If any part of any expense reimbursement paid by Employer to King is
finally determined not to be allowable as a federal or state income tax
deduction to Employer, the part disallowed shall be deemed compensation paid to
King by Employer in addition to the compensation paid under paragraph 9 of this
Agreement.
13. Termination by Employer.
a. Employer may terminate this Agreement at any time without notice
for cause, which includes but is not limited to, the commission by King of any
material act of dishonesty, improperly discloses Proprietary Information,
engages in gross carelessness or misconduct, unjustifiably neglects his duties
under this Agreement, committing any material violation of Employer's policies
and procedures, or acting in any way that has a direct, substantial, and adverse
effect on Employer's reputation.
b. In the event Employer terminates this Agreement without cause,
Employer shall be obligated to pay and provide to King all compensation and
benefits (or equivalent value) for a period of one (1) year following the date
of termination but not after June 30, 2002.
c. In the event that the ownership control of Employer shall
materially change during the term of this Agreement, King, at his sole election
and determination may deem this event a termination of this Agreement by
Employer without cause thereby entitling King to all compensation and benefits
(or equivalent value) to which Employer is obligated under paragraph 13 (b),
above.
d. If this Agreement is terminated by Employer, with or without
cause, all unvested options to which King is entitled under paragraph 9 (c)
shall be deemed immediately vested and exercisable by King.
14. Notification to New Employer. If King leaves the employ of Employer,
King consents to Employer's notification to any new employer of King's
obligations under this Agreement.
15. Proprietary Information. Through his employment with Employer, King
will have access to Proprietary Information of Employer. "Proprietary
Information" means information (a) that is not known by actual or potential
competitors of Employer or is generally unavailable to the public, (b) that has
been created, discovered, developed, or otherwise become known to Employer or in
which property rights have been assigned or otherwise conveyed to Employer
(whether by virtue of King's employment or otherwise), and (c) that has material
economic value or potential material economic value to Employer's present or
future business. "Proprietary Information" shall include trade secrets (as
defined under California Civil Code section 3426.1) and all other discoveries,
developments, designs, improvements, inventions, formulas, software programs,
processes, techniques, know-how, negative know-how, data, research, techniques,
technical data, prospective customer lists, customer and supplier lists, and any
modifications or enhancements of any of the foregoing, and all program,
marketing, sales, or other financial or business information disclosed to King
by Employer, either directly or indirectly, in writing or orally or by drawings
or observation, which has actual or potential economic value to Employer. Such
Proprietary Information is considered secret and is disclosed to King in
confidence.
16. Nondisclosure of Proprietary Information. At all times, both during
King's employment and for a period of two (2) years after the cessation of
King's employment, whether the cessation is voluntary or involuntary:
x. Xxxx shall keep in strictest confidence and trust all Proprietary
Information.
x. Xxxx shall not disclose, use, induce or assist in the use or
disclosure of any Proprietary Information or anything related to Proprietary
Information without the express written consent of Employer's Chief Executive
Officer, except as may be necessary in the ordinary course of performing his
duties for Employer; and
x. Xxxx shall promptly advise Employer of any knowledge that he may
have of any unauthorized release or use of Employer's Proprietary Information,
and shall take reasonable measures to prevent unauthorized persons or entities
from having access to, obtaining, or being furnished with any Proprietary
Information.
17. Exposure to Criminal and Civil Liability. King acknowledges that in
addition to any rights that Employer may have under this Agreement, that the
unauthorized taking of any Proprietary Information may be a crime under section
499c of the California Penal Code, and may also result in civil liability under
sections 3426.1 through 3426.11 of the California Civil Code.
18. Right to Obtain Injunctive Relief. King is obligated under this
Agreement to keep Proprietary Information confidential and to render services of
a special, unique, unusual, extraordinary, and intellectual character, which
give this Agreement peculiar value. The breach of this Agreement and the loss of
these services cannot be reasonably or adequately compensated in damages in an
action at law. Accordingly, in addition to other remedies provided by law or
this Agreement, Employer shall have the right to obtain injunctive relief
against the breach of this Agreement by King.
19. Authorization to Sign. Employer acknowledges that the Board of
Directors of Employer has authorized its Chief Executive Officer, Xxxxxxx X.
Xxxxxxx, or its President, Xxxxxxx X. Xxxxxx XX, to execute this Agreement.
20. No Assignment. Neither this Agreement, nor any duties or obligations
under this Agreement, may be assigned by Employer or King without the prior
written consent of the other.
21. Attorney's Fees. In the event any suit, action, or any other
proceeding is commenced to enforce or interpret any part of this Agreement, the
prevailing party shall be entitled to recover its costs and reasonable
attorney's fees, court costs, expenses and other costs of investigation and
preparation arising out of or incurred with such proceeding.
22. Advice of Counsel. Employer and King acknowledge to each other that
each party has been represented by independent counsel of its own choice, and
that each party has executed this Agreement with the consent and on the advice
of such independent legal counsel.
23. No Waiver. No waiver of a breach, failure of any condition, or any
right or remedy contained in or granted by the provisions of this Agreement
shall be effective unless it is in writing and signed by the party waiving the
breach, failure, right, or remedy. No waiver by Employer or King of any breach,
failure, right, or remedy shall be deemed a waiver of any other breach, failure,
right, or remedy, whether or not similar, nor shall any waiver constitute a
continuing waiver unless the writing so specifies.
24. Entire Agreement. This Agreement contains the entire Agreement between
the parties and supersedes all prior oral and written Agreements,
understandings, commitments, and practices between them, including all prior
employment Agreements, whether or not fully performed by King before the date of
this Agreement. No oral modifications, express or implied, may alter or vary the
terms of this Agreement. No amendments to this Agreement may be made except by a
writing signed by both parties. No employee or supervisor of Employer is
authorized to alter or vary the terms of this Agreement except by written
Agreement by the Chief Executive Officer of Employer. Any representations
contrary to this Agreement, express or implied, written or oral, are hereby
disclaimed.
25. Governing Law. The formation, construction, and performance of this
Agreement shall be construed in accordance with the laws of the State of
California.
26. Notice. Any notice to Employer required or permitted under this
Agreement shall be given in writing to Employer, either by personal service or
by registered or certified mail, postage prepaid, addressed to Employer,
attention Xxxxxxx X. Xxxxxxx, Chief Executive Officer, at its then principal
place of business. Any such notice to King shall be given in a like manner and,
if mailed, shall be addressed to King at his home address then shown in
Employer's files. For the purpose of determining compliance with any time limit
in this Agreement, a notice shall be deemed to have been duly given (a) on the
date of service, if served personally on the party to whom notice is to be
given, or (b) on the second business day after mailing, if mailed to the party
to whom the notice is to be given in the manner provided in this section.
27. Severability. If any provision of this Agreement is held invalid or
unenforceable, the remainder of this Agreement shall nevertheless remain in full
force and effect. If any provision is held invalid or unenforceable with respect
to particular circumstances, it shall nevertheless remain in full force and
effect in all other circumstances.
Executed by the parties as of the date set forth below.
TELEGEN CORPORATION
By /s/ XXXXXXX. M XXXXXX Date: July 1, 2000
----------------------------------- -------------------------
President
Xxxx X. Xxxx
/s/ XXXX XXXX Date: July 1, 2000
-------------------------------------- -------------------------
