EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.2
This Executive Employment Agreement (“Agreement”) is made effective as of
April 4, 2006 (“Effective Date”), by and between OCZ Technology Group, Inc.
(“Company”) and Xxxx Xxxxxxxx (“Executive”).
The parties agree as follows:
1. Employment. Company hereby employs Executive, and
Executive hereby accepts such employment, upon the terms and conditions set
forth herein.
2. Duties.
2.1 Position. Executive is employed as CEO and shall have the
duties and responsibilities assigned by Company’s Board of Directors (“Board of
Directors”) both upon initial hire
and as may be reasonably assigned from time to time. Executive shall perform
faithfully and diligently
all duties assigned to Executive. Company reserves the right to modify
Executive’s position and duties at any time in its sole and absolute
discretion.
2.2 Best Efforts/Full-time. Executive will expend Executive’s best
efforts on behalf
of Company, and will abide by all policies and decisions made by Company,
as well as all applicable
federal, state and local laws, regulations or ordinances. Executive will
act in the best interest of Company
at all times. Executive shall devote Executive’s full business time and
efforts to the performance of
Executive’s assigned duties for Company, unless Executive notifies the
Board of Directors in advance of
Executive’s intent to engage in other paid work and receives the Board of
Directors’ express written
consent to do so.
3. Nature of Employment. Executive’s employment with the Company
is “at will.” This
means it is for no specified term and may be terminated by the Executive
or the Company at any time,
with or without cause or advance notice. In addition, the Company reserves
the right to modify
Executive’s compensation, position, duties or reporting relationship to
meet business needs and to decide
on appropriate discipline.
4. Compensation.
4.1 Base Salary. As compensation for Executive’s performance of
Executive’s
duties hereunder, Company shall pay to Executive an initial Base Salary of
$192,620.00 per year, payable in accordance with the normal payroll practices
of Company, less required deductions for state and federal withholding tax,
social security and all other employment taxes and payroll deductions. In the
event Executive’s employment under this Agreement is terminated by either
party, for any reason, Executive will earn the Base Salary prorated to the date
of termination.
4.2 Incentive Compensation. Executive will be eligible to
earn incentive
compensation in accordance with the Company’s Executive Bonus Plan, the terms,
amount and payment of which shall be determined by Company in its sole and
absolute discretion.
4.3 Stock Options. Subject to the Board of Directors’ approval,
Executive will be
granted an incentive stock option to purchase shares of Company’s Common
Stock under Company’s
2004 Stock Incentive Plan (the “Plan”) at an exercise price equal to the
fair market value of that stock on
the date of the grant (the “Option”). The Option will be subject to the
terms and conditions of the Plan
and the standard stock option agreement provided pursuant to the Plan, which
Executive will be required to sign as a condition of receiving the Option.
4.4 Performance and Salary Review. The Board of
Directors will periodically review Executive’s performance on no less than
an annual basis. Adjustments to salary or other compensation, if any, will
be made by the Board of Directors in its sole and absolute discretion.
5. Customary Fringe Benefits. Executive will be eligible for all
customary and usual fringe
benefits generally available to executives of Company subject to the terms
and conditions of Company’s
benefit plan documents. Company reserves the right to change or eliminate
the fringe benefits on a
prospective basis, at any time, effective upon notice to Executive.
6. Business Expenses. Executive will be reimbursed for all
reasonable, out-of-pocket
business expenses incurred in the performance of Executive’s duties on
behalf of Company. To obtain
reimbursement, expenses must be submitted promptly with appropriate
supporting documentation in
accordance with Company’s policies.
7. Termination of Executive’s Employment. In the event Executive’s
employment is
terminated, Executive shall be entitled to receive only the Base Salary
then in effect, prorated to the date
of termination, as well as any accrued but unearned vacation or PTO. All
other Company obligations to
Executive pursuant to this Agreement will become automatically terminated
and completely extinguished.
8. No Conflict of Interest. During the term of Executive’s
employment with Company and
during any period Executive is receiving payments from Company pursuant to
this Agreement, Executive
must not engage in any work, paid or unpaid, that creates an actual
conflict of interest with Company.
Such work shall include, but is not limited to, directly or indirectly
competing with Company in any way,
or acting as an officer, director, employee, consultant, stockholder,
volunteer, lender, or agent of any
business enterprise of the same nature as, or which is in direct
competition with, the business in which
Company is now engaged or in which Company becomes engaged during the term
of Executive’s
employment with Company, as may be determined by the Board of Directors in
its sole discretion. If the
Board of Directors believes such a conflict exists during the term of this
Agreement, the Board of
Directors may ask Executive to choose to discontinue the other work or
resign employment with
Company. If the Board of Directors believes such a conflict exists during
any period in which Executive
is receiving payments pursuant to this Agreement, the Board of Directors
may ask Executive to choose to
discontinue the other work. In addition, Executive agrees not to refer any
client or potential client of
Company to competitors of Company, without obtaining Company’s prior written
consent, during the
term of Executive’s employment and during any period in which Executive is receiving
payments from
Company pursuant to this Agreement.
9. Confidentiality and Proprietary Rights. Executive agrees to
read, sign and abide by
Company’s Employee Nondisclosure and Assignment Agreement, which is
provided with this Agreement
and incorporated herein by reference.
10. Nonsolicitation. Executive understands and agrees that
Company’s employees and
customers and any information regarding Company employees and/or
customers is confidential and
constitutes trade secrets.
10.1 Nonsolicitation of Customers or Prospects. Executive
agrees that during the term of this Agreement and for a period of one (1) year
after the termination of this Agreement, Executive will not, either directly or
indirectly, separately or in association with others, interfere with, impair,
disrupt or damage Company’s relationship with any of its customers or customer
prospects by soliciting or
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encouraging others to solicit any of them for the purpose of diverting or
taking away business from Company.
10.2 Nonsolicitation of Company’s Employees. Executive agrees that
during the term
of this Agreement and for a period of one (1) year after the termination
of this Agreement, Executive will
not, either directly or indirectly, separately or in association with
others, interfere with, impair, disrupt or
damage Company’s business by soliciting, encouraging or recruiting any of
Company’s employees or
causing others to solicit or encourage any of Company’s employees to
discontinue their employment with
Company.
11. Injunctive Relief. Executive acknowledges that
Executive’s breach of the covenants contained in sections 8-10 (collectively
“Covenants”) would cause irreparable injury to Company and agrees that in the
event of any such breach, Company shall be entitled to seek temporary,
preliminary and permanent injunctive relief without the necessity of proving
actual damages or posting any bond or other security.
12. Agreement to Arbitrate. To the fullest extent permitted by law,
Executive and Company agree to arbitrate any controversy, claim or dispute between them arising out of or in
any way related to
this Agreement, the employment relationship between Company and Executive and
any disputes upon termination of employment, including but not limited to
breach of contract, tort, discrimination, harassment, wrongful termination,
demotion, discipline, failure to accommodate, family and medical leave,
compensation or benefits claims, constitutional claims; and any claims for
violation of any local, state or federal law, statute, regulation or ordinance
or common law. Claims for workers’ compensation, unemployment insurance
benefits, breach of Company’s Employee Innovations and Proprietary Rights
Agreement and Company’s right to obtain injunctive relief pursuant to section
11 above are excluded. For the purpose of this agreement to arbitrate,
references to “Company” include all parent, subsidiary or related entities and
their employees, supervisors, officers, directors, agents, pension or benefit
plans, pension or benefit plan sponsors, fiduciaries, administrators,
affiliates and all successors and assigns of any of them, and this agreement
shall apply to them to the extent Executive’s claims arise out of or relate to
their actions on behalf of Company.
12.1 Consideration. The mutual promise by Company and
Executive to arbitrate any and all disputes between them (except for those
referenced above) rather than litigate them before the courts or other bodies,
provides the consideration for this agreement to arbitrate.
12.2 Initiation of Arbitration. Either party may exercise the right to
arbitrate by providing the other party with written notice of any and all claims forming the basis
of such right in sufficient detail to inform the other party of the substance of such claims. In
no event shall the request for arbitration be made after the date when
institution of legal or equitable proceedings based on such claims would be
barred by the applicable statute of limitations.
12.3 Arbitration Procedure. The arbitration will be conducted in
Sunnyvale,
California by a single neutral arbitrator and in accordance with the then
current rules for resolution of
employment disputes of the American Arbitration Association (AAA)
(available on-line at xxx.xxx.xxx).
The parties are entitled to representation by an attorney or other
representative of their choosing. The
arbitrator shall have the power to enter any award that could be entered
by a judge of the trial court of the
State of California, and only such power, and shall follow the law. The
parties agree to abide by and
perform any award rendered by the arbitrator. The arbitrator shall issue
the award in writing and therein
state the essential findings and conclusions on which the award is based.
Judgment on the award may be
entered in any court having jurisdiction thereof.
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13. General Provisions.
13.1 Successors and Assigns. The rights and obligations of Company under this
Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of
Company. Executive shall not be entitled to assign any of Executive’s rights or obligations under
this Agreement.
13.2 Waiver. Either party’s failure to enforce any provision of this Agreement
shall not in any way be construed as a waiver of any such provision, or prevent that party
thereafter from enforcing each and every other provision of this Agreement.
13.3 Attorneys’ Fees. Each side will bear its own attorneys’ fees in any dispute
unless a statutory section at issue, if any, authorizes the award of attorneys’ fees to the
prevailing party.
13.4 Severability. In the event any provision of this Agreement is found to be
unenforceable by an arbitrator or court of competent jurisdiction, such provision shall be
deemed
modified to the extent necessary to allow enforceability of the provision as so limited, it
being intended
that the parties shall receive the benefit contemplated herein to the fullest extent permitted
by law. If a
deemed modification is not satisfactory in the judgment of such arbitrator or court, the
unenforceable
provision shall be deemed deleted, and the validity and enforceability of the remaining
provisions shall
not be affected thereby.
13.5 Interpretation; Construction. The headings set forth in this Agreement are for
convenience only and shall not be used in interpreting this Agreement. This Agreement has been
drafted
by legal counsel representing Company, but Executive has participated in the negotiation of
its terms.
Furthermore, Executive acknowledges that Executive has had an opportunity to review and revise
the
Agreement and have it reviewed by legal counsel, if desired, and, therefore, the normal rule
of
construction to the effect that any ambiguities are to be resolved against the drafting party
shall not be
employed in the interpretation of this Agreement.
13.6 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the United States and the State of California. Each party consents
to the
jurisdiction and venue of the state or federal courts in Sunnyvale, California, if applicable,
in any action,
suit, or proceeding arising out of or relating to this Agreement.
13.7 Notices. Any notice required or permitted by this Agreement shall be in writing
and shall be delivered as follows with notice deemed given as indicated: (a) by personal
delivery when
delivered personally; (b) by overnight courier upon written verification of receipt; (c) by
telecopy or
facsimile transmission upon acknowledgment of receipt of electronic transmission; or (d) by
certified or
registered mail, return receipt requested, upon verification of receipt. Notice shall be sent
to the addresses
set forth below, or such other address as either party may specify in writing.
13.8 Survival. Sections 8 (“No Conflict of Interest”), 9 (“Confidentiality and
Proprietary Rights”), 10 (“Nonsolicitation”), 11 (“Injunctive Relief”), 12 (“Arbitration”), 13
(“General
Provisions”) and 14 (“Entire Agreement”) of this Agreement shall survive Executive’s
employment by
Company.
14. Entire Agreement. This Agreement, including the Company Employee Nondisclosure
and Assignment Agreement incorporated herein by reference and Company’s 2004 Stock Incentive
Plan
and related option documents described in subsection 4.3 of this Agreement, constitutes the
entire
agreement between the parties relating to this subject matter and supersedes all prior or
simultaneous
representations, discussions, negotiations, and agreements, whether written or oral. This
Agreement may
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be amended or modified only with the written consent of Executive and the
Board of Directors of Company. No oral waiver, amendment or modification will
be effective under any circumstances whatsoever.
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THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY
UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES
HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
| XXXX XXXXXXXX |
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| Dated: | ||||
| OCZ TECHNOLOGY GROUP, INC. |
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| Dated: | By: | /s/ Xxxxxx Xxxxx | ||
| Its: CFO | ||||
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THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY
UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES
HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
| XXXX XXXXXXXX |
||||
| Dated: | /s/ Xxxx Xxxxxxxx | |||
| OCZ TECHNOLOGY GROUP, INC. |
||||
| Dated: | By: | |||
| Its: |
||||
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