PERCON
INCORPORATED
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is made this 1st day of April, 1996 by and
between PERCON INCORPORATED, a Washington corporation ("Employer") and Xxxx Xxxx
("Employee").
1. Employment
Employer hereby agrees to employ Employee, and Employee hereby accepts
employment, subject to the terms and conditions set forth herein, in the
capacity of Vice President of Operations and Quality Programs. Employee shall
perform such duties in such capacity as are assigned to him or her by the
President of Employer. Employee agrees that any and all creative or intellectual
work, inventions, know how, etc., including, without limitation, computer
programs or models, prepared or originated by Employee during or within the
scope of his or her employment by Employer, whether or not such work, etc. is
subject to protection under federal or state copyright, patent or similar laws,
shall constitute work for hire, all rights to which shall be owned exclusively
by Employer; and, in any event, Employee hereby assigns, or agrees to assign, to
Employer all rights, title and interest in all such work, etc., except to the
extent Employer, by written consent, permits Employee to retain such work, etc.
2. Compensation
2.1 As compensation for all services rendered by Employee to Employer,
Employer shall pay Employee $90,000 per Year. In addition, Employee shall be
entitled to participate in any health, welfare or other benefit plans adopted by
Employer for the benefit of its employees generally. All other benefits and
terms of employment, except as herein provided, shall be governed by and subject
to the policies and procedures set forth in Employer's Personnel Manual.
Employee acknowledges that Employer may change such policies and procedures from
time to time as and when Employer determines such changes are necessary or
appropriate.
2.2 Employee shall be entitled to receive, in addition to the annual
salary, an annual bonus calculated in accordance with the Executive Bonus Plan.
The Executive Bonus Plan is determined by Employer's Compensation Committee of
the Board of Directors and is updated annually. The Executive Bonus Plan is at
the sole discretion of Employer's Compensation Committee of the Board of
Directors and future awards under the plan are not guaranteed. Employee will not
participate in Employer's regular Employee Profit Sharing Plan.
3. Term and Termination
Employee's duties and obligations hereunder shall commence as of the date
hereof, and shall continue until terminated as provided herein. Employee's
employment hereunder (but not his or her other obligations hereunder) may be
terminated as follows:
(a) By Employee or Employer at any time and for any reason upon six (6)
months written notice, provided, however, that upon such notice, whether given
by Employer or Employee, Employer may, at its sole option, pay Employee all
amounts owing through the end of such notice period, and Employee shall not
return to work thereafter. If Employee provides notice to Employee, Employer
shall provide Employee outplacement services reasonable for the Employee to
retain a comparable position with another company. Fees for outplacement
services for Employee shall not exceed $10,000.
(b) By Employer immediately if Employee shall commit a criminal act or
otherwise engage in conduct which a reasonable person would consider materially
damaging to the reputation or business of Employer or to the trust necessary in
an employment relationship.
(c) By Employer immediately upon a material breach of this Agreement.
(d) Immediately by Employee upon the dissolution or liquidation of
Employer, whether voluntarily, through a bankruptcy proceeding or otherwise,
provided, however, that if there is a successor-in-interest of Employer to whom
this Agreement has been assigned, the dissolution or liquidation of Employer
shall not terminate any of Employee's obligations hereunder. Any termination by
Employee pursuant to this Section 3(d) shall extinguish all of Employee's
obligations hereunder, including the obligations set forth in Section 4 and 5.
(e) In the event of a merger, consolidation, plan of exchange, acquisition
of property or stock or other "change in control" of Employer, Employee shall be
entitled to a minimum of six (6) months salary as severance payment and shall be
entitled to 100% vesting in all stock options granted to Employee by Employer if
the Employee is terminated or there is a material change in the Employee's pay,
benefits, duties, responsibilities or Employee is required to relocate within
two (2) years of the change in control. Employee shall not be entitled to
severance payments or 100% vesting in stock options granted for termination as
noted in sections 3.(b) and 3.(c).
4. Non Competition
In consideration of the execution of this Agreement and Employee's
employment hereunder, Employee agrees that during the course of Employee's
employment with Employer, and for a period of two (2) years following the
termination of such employment for any reason whatsoever (except as set forth in
section 3(d) above), Employee shall not,
directly or indirectly (whether as a partner, shareholder, sole proprietor,
employee, independent contractor, consultant, agent, officer, director, creditor
(other than as a supplier of permitted goods or series to such businesses
generally), investor, or in any other capacity, engage in any business activity
or operations in competition with or which would otherwise detract from the then
current or planed business activities and operations of Employer, any place in
the United States. Notwithstanding the foregoing nothing herein shall prohibit
Employee from investing in any publicly traded securities. Employee acknowledges
that the foregoing covenant is reasonable and that Employee is capable of
gainful employment without breaching the provisions thereof.
5. Confidentiality
5.1 As used in this Agreement, "Confidential Information" includes (a)
proprietary and/or confidential information of Employer; (b) any information or
material marked, designated or treated by Employer as confidential or propriety;
(c) information, whether or not in tangible form and whether or not designated
as confidential or proprietary, which is known to Employee as being treated by
Employer as confidential or proprietary or which might reasonably be treated as
confidential or proprietary; and (d) information provided to Employer by third
parties which Employer is obligated to keep confidential. Confidential
Information includes, but is not limited to, discoveries, ideas, concepts,
product source codes, designs, drawings, trade secrets, know how,
specifications, techniques, models, data, programs, documentation, processes,
customer information, marketing information, financial information, technical
information and business plans and planning.
5.2 Employee acknowledges and agrees that the Confidential Information is a
valuable asset of Employer, and its protection as confidential is vital to the
success of Employer's business. Employee acknowledges and agrees that all
Confidential Information is and shall at all times remain the sole and exclusive
property of Employer, even if prepared or created, in whole or in part, by
Employee, and whether or not directly disclosed or entrusted to Employee by
Employer or any other person. In addition, Employee agrees to comply with all
policies and procedures as Employer may from time to time establish to protect
and preserve the Confidential Information. Employee agrees to exercise the
highest degree of care in safeguarding the Confidential Information against
disclosure of any kind or nature, whether intentional or unintentional, and
agrees generally to take all steps necessary to ensure the maintenance of its
confidentiality.
5.3 Employee shall not disclose the Confidential Information, directly or
indirectly, under any circumstance or by any means, to any third person without
the express prior written consent of Employer.
5.4 Employee shall not copy, transmit, reproduce, summarize, in whole or in
part, or otherwise made any use of Confidential Information, except as may be
necessary to perform Employee's duties to Employer and for Employer's benefit.
Employee agrees that all records, notes, computer programs, disks and other
materials (and all copies thereof)
relating to Employer's operations or business, including those which may be
prepared by Employee, and all objects associated therewith, whether or not such
materials include or contain Confidential Information, are and shall remain the
property of Employer, and Employee shall not remove such material from
Employer's business premises except with Employer's prior written consent. Upon
termination of Employee's employment for any reason whatsoever, or at any time
on Employer's request, Employee shall promptly deliver to Employer all
Confidential Information, in whatever form, and such other materials of
Employer, as may be in Employee's possession or within Employee's control.
5.5 Confidential Information shall not include information voluntarily
disclosed to the general public by Employer or otherwise clearly in the public
domain through no act in violation of any covenant of confidentiality.
5.6 The obligations of Employee under this Section 5 shall survive
termination of Employee's employment and shall terminate only pursuant to
Section 3(d) above.
6. Remedies
Employee agrees that a breach of his or her covenants under sections 4 or 5
hereunder would result in substantial damages to Employer which would be
difficult, if not impossible, to ascertain, and by reason of that fact Employee
agrees that upon any such breach, Employer shall have the right to enforce the
provisions of sections 4 and 5 hereof by injunction specific performance, or
other proceeding in equity, without the necessity of bond. The parties hereby
agree that venue for such proceeding may be laid in Lane County, Oregon or the
federal district court for the State of Oregon.
7. Modification
No waiver or modification of any term or provision of this Agreement shall
be valid unless in writing and duly executed by the parties hereto.
8. Notice
Any notice to be given hereunder shall be in writing and delivered
personally or sent by certified or registered mail, return receipt requested,
addressed as follows:
If to Employer: President
Percon Incorporated
0000 Xxxxxx Xxxxx Xxxxxx #000
Xxxxxx, Xxxxxx 00000
If to Employee: Xxxx Xxxx
0000 Xxxx Xxxxxxx Xxxx
Xxxxxx, XX 00000
or to such other address as either party may notify the other in accordance with
this section.
9. Binding Effect
The provisions of this Agreement shall inure to the benefit of and be
binding upon Employer or any assignee of Employer in connection with the sale of
substantially all of the business and operations of Employer. The obligations of
Employee hereunder are personal in nature and may not be assigned.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the date first written above.
Employee: /S/ XXXX XXXX
---------------------------------
Employer:
Percon Incorporated
By: /S/ XXXXXXX XXXXXXXX
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Title: President
