Exhibit 10.5
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") made as of this 26th day of
April, 2005 by and between Syscan Imaging, Inc., a Delaware corporation, having
an office at 0000 Xxxxxxxxxx Xxxxx, (hereinafter referred to as "Employer") and
XXXXXX XX, an individual residing at 000 Xxxxx Xx., Xxx Xxxx, XX 00000
(hereinafter referred to as "Employee");
W I T N E S S E T H:
WHEREAS, Employer employs directly or through a co-employment
agreement with a Professional Employer Organization (PEO)licensed in the State
of California, and desires to continue to employ, Employee as President and CEO
of Employer; and
WHEREAS, Employee is willing to continue to be employed as the
President and CEO in the manner provided for herein, and to perform the duties
of the President and CEO of Employer upon the terms and conditions herein set
forth;
NOW, THEREFORE, in consideration of the promises and mutual
covenants herein set forth it is agreed as follows:
1. EMPLOYMENT OF PRESIDENT AND CEO. Employer hereby employs
Employee as President and CEO.
2. TERM.
a. Subject to Section 9 and Section 10 below, the term of this
Agreement shall be for a period of thirty-six (36) months commencing on April
25, 2005 (the Term). The Term of this Agreement shall be automatically extended
for additional one (1) year periods, unless either party notifies the other in
writing at least ninety (90) days prior to the expiration of the then existing
Term of its intention not to extend the Term. During the Term, Employee shall
devote substantially all of his business time and efforts to Employer and its
subsidiaries and affiliates.
3. DUTIES. The Employee shall perform those functions
generally performed by persons of such title and position, shall attend all
meetings of the stockholders and the Board, shall perform any and all related
duties and shall have any and all powers as may be prescribed by resolution of
the Board, and shall be available to confer and consult with and advise the
officers and directors of Employer at such times that may be required by
Employer. Employee shall report directly and solely to the Board.
4. COMPENSATION.
a. (i) Employee shall be paid a base pay of $200,000 per year
during the Term of this Agreement. Employee shall be paid periodically in
accordance with the policies of the Employer during the term of this Agreement,
but not less than monthly.
(ii) Employee is eligible for an annual bonus, if any, which
will be determined and paid in accordance with policies set from time to time by
the compensation committee of the Board.
b. Employer shall grant Employee 1,500,000 options ("Options")
to purchase shares of the Company's common stock at an exercise price of $0.01
per share for a period of seven (7) years, upon execution of this Agreement. The
Options shall vest as follows: (i) one-third on April 4, 2005; (ii) one-third on
April 3, 2006; and (iii) one-third on April 2, 2007.
c. Employer shall include Employee in its health insurance
program, payment of premiums in accordance with company policy.
d. Employee shall have the right to participate in any other
employee benefit plans established by Employer and PEO.
e. (i) In the event of a "Change of Control" whereby:
(A) A person (other than a person who is an officer or a Director of
Employer on the effective date hereof), including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934, after execution of this
Agreement becomes, or obtains the right to become, the beneficial owner of
Employer securities having 30% or more of the combined voting power of then
outstanding securities of the Employer that may be cast for the election of
directors of the Employer;
(B) At any time, a majority of the Board-nominated slate of candidates
for the Board is not elected;
(C) Employer consummates a merger in which it is not the surviving
entity;
(D) Substantially all Employer's assets are sold; or
(E) Employer's stockholders approve the dissolution or liquidation of
Employer; then
(ii) All stock options and warrants ("Rights")
granted by Employer to Employee under any plan or
otherwise prior to the effective date of the Change of Control, shall become
vested, accelerate and become immediately exercisable; any time within twelve
months after the effective date of the change of control, adjusted for any stock
splits and capital reorganizations having a similar effect, subsequent to the
effective date hereof. In the event Employee owns or is entitled to receive any
unregistered securities of Employer, then Employer shall use its best efforts to
effect the registration of all such securities as soon as practicable, but no
later than 120 days after the Change of Control; provided, however, that such
period may be extended or delayed by Employer for one period of up to 60 days
if, upon the advice of counsel at the time such registration is required to be
filed, or at the time Employer is required to exercise its best efforts to cause
such registration statement to become effective, such delay is advisable and in
the best interests of Employer because of the existence of non-public material
information, or to allow Employer to complete any pending audit of its financial
statements.
5. EXPENSES. Employee shall be reimbursed for all of his
actual out-of-pocket expenses incurred in the performance of his duties
hereunder, provided such expenses are acceptable to Employer, which approval
shall not be unreasonably withheld, for business related travel and
entertainment expenses, and that Employee shall submit to Employer detailed
receipts, according to IRS guidelines, with respect thereto.
6. VACATION. Employee shall be entitled to receive four (4)
weeks paid vacation time during each year of employment with dates agreed upon
by Employer. Vacation time may not be accrued beyond the end of the calendar
year. In the event of separation of employment, for any reason, vacation time
accrued and not used, in that calendar year, shall be paid at the salary rate of
Employee in effect at the time of employment separation.
7. SECRECY. At no time shall Employee disclose to anyone any
confidential or secret information (not already constituting information
available to the public) concerning (a) internal affairs or proprietary business
operations of Employer or (b) any trade secrets, new product developments,
patents, programs or programming, especially unique processes or methods.
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8. COVENANT NOT TO COMPETE.
(a) Subject to, and limited by, Section 10(b), Employee will not, at
any time, during the term of this Agreement, and for one (1) year thereafter,
either directly or indirectly, engage in, with or for any enterprise,
institution, whether or not for profit, business, or company, competitive with
the business (as identified herein) of Employer as such business may be
conducted on the date thereof, as a creditor, guarantor, or financial backer,
stockholder, director, officer, consultant, advisor, employee, member, inventor,
producer, director, or otherwise of or through any corporation, partnership,
association, sole proprietorship or other entity; provided, that an investment
by Employee, his spouse or his children is permitted if such investment is not
more than four percent (4%) of the total debt or equity capital of any such
competitive enterprise or business and further provided that said competitive
enterprise or business is a publicly held entity whose stock is listed and
traded on a national stock exchange or through the NASDAQ Stock Market. As used
in this Agreement, the business of Employer shall be deemed to include the
manufacturing and marketing of imaging systems.
(b) For a period one year from the date of termination of this
agreement Employee shall not contact or solicit any of the Companies customers,
employees or suppliers.
(c) During the entire time of employment, any outside consulting (paid
or unpaid), employment, business venture or compensated activities must receive
the written approval of the employee compensation committee, established by the
board of directors, or any other committee of the board of directors serving
such function.
9. TERMINATION.
A. TERMINATION BY EMPLOYER
(i) Employer may terminate this Agreement
upon written notice for Cause. For purposes hereof,
"Cause" shall mean (A) Employee's misconduct as could reasonably be expected to
have a material adverse effect on the business and affairs of Employer, (B) the
Employee's disregard of lawful instructions of Employers Board of Directors
consistent with Employee's position relating to the business of Employer or
neglect of duties or failure to act, which, in each case, could reasonably be
expected to have a material adverse effect on the business and affairs of
Employer,(C) engaging by the Employee in conduct that constitutes activity in
competition with Employer, including any unapproved activities identified in
section 8(c) of this agreement; (D) the conviction of Employee for the
commission of a felony; and/or (E) the habitual abuse of alcohol or controlled
substances. Notwithstanding anything to the contrary in this Section 9(a)(i),
Employer may not terminate Employee's employment under this Agreement for Cause
unless Employee shall have first received notice from the Board advising
Employee of the specific acts or omissions alleged to constitute Cause, and such
acts or omissions continue after Employee shall have had a reasonable
opportunity (at least 10 days from the date Employee receives the notice from
the Board) to correct the acts or omissions so complained of. In no event shall
alleged incompetence of Employee in the performance of Employee's duties be
deemed grounds for termination for Cause.
(ii) This agreement automatically shall
terminate upon the death of Employee, except that
Employee's estate shall be entitled to receive any amount accrued under Section
4(a).
b. TERMINATION BY EMPLOYEE
(i) Employee shall have the right to
terminate his employment under this Agreement upon 30 days'
notice to Employer given within 90 days following the occurrence of any of the
following events (A) through (F) or within three years following the occurrence
of event (G):
(A) Employee is not appointed or
retained as President and CEO (or a substantially
similar position).
(B) Employer acts to materially
reduce Employee's duties and responsibilities
hereunder. Employee's duties and responsibilities shall not be deemed materially
reduced for purposes hereof solely by virtue of the fact that Employer is (or
substantially all of its assets are) sold to, or is combined with, another
entity, provided that Employee shall continue to have the same duties and
responsibilities with respect to Employer's business, and Employee shall report
directly to the board of directors of the entity (or individual) that acquires
Employer or its assets.
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(C) Employer acts to change the geographic
location of the performance of Employee's duties from the San Xxxx area. For
purposes of this Agreement, the San Xxxx area shall be deemed to be the area
within 60 miles of San Jose, California.
(D) A Material Reduction (as hereinafter
defined) in Employee's rate of base compensation, or Employee's other benefits.
"Material Reduction" shall mean a ten percent (10%) differential;
(E) A failure by Employer to obtain the
assumption of this Agreement by any successor;
(F) A material breach of this Agreement by
Employer, which is not cured within thirty (30) days of written notice of such
breach by Employer;
(G) A Change of Control.
(ii) Anything herein to the contrary
notwithstanding, Employee may terminate this Agreement upon
thirty (30) days written notice to Employer.
(iii) If Employee shall terminate this
Agreement under Section 9(b)(i), Employee shall be
entitled to receive the lesser of: (a) the remaining salary due to Employee
under this Agreement, or (b) six (6) months salary, at his then current yearly
salary rate, (the SEVERANCE PAYMENT), and Employer shall pay 100% of the
C.O.B.R.A. premiums for six (6) months after such termination. Other than the
Severance Payment and the payment of C.O.B.R.A. premiums described in this
section 9(b)(iii), Employer shall have no further obligation to compensate
Employee pursuant to Section 4 above. If Employee shall terminate this Agreement
pursuant to Section 9(b)(ii), Employee shall not be entitled to the Severance
Payment or any additional compensation as provided in Section 4.
C. TERMINATION BY BOARD OF DIRECTORS ACTIONS DUE TO ECONOMIC
HARDSHIP OF THE EMPLOYER.
(i) In the event the Employer, under
direction from its board of directors due to financial
distress, is required to take actions that may effect any or all of the Section
9,b,i events (A) through (F), the employee will waive any right to claim
Severance Payments under the provisions of Section(s) 4 or 9(b).
(ii) Within thirty (30) days of such board
action, Employee may voluntarily terminate this
Agreement with written notice to Employer.
(iii) If Employee shall terminate this
Agreement under Section 9(c)(ii), Employee shall be
entitled to receive: (a) three (3) months salary, at the annual salary rate set
forth in section 4(a), (the SEVERANCE PAYMENT), and Employer shall pay 100% of
the C.O.B.R.A. premiums for three (3) months after such termination. Other than
the Severance Payment and the payment of C.O.B.R.A. premiums described in this
section 9(c)(iii), Employer shall have no further obligation to compensate
Employee pursuant to Section(s) 4 or 9(b)above. If Employee shall terminate this
Agreement pursuant to Section 9(c)(iii), Employee shall not be entitled to the
Severance Payment or any additional compensation as provided in Section 4 or
9(b)above.
10. CONSEQUENCES OF BREACH BY EMPLOYER;
EMPLOYMENT TERMINATION
a. If the Employer shall terminate Employee's
employment under this Agreement in any way that is a breach
of this Agreement by Employer, the following shall apply:
(i) Employee shall be entitled to receive
the Severance Payment, and Employer shall pay 100% of the C.O.B.R.A. premiums
for twelve (12) months after such termination. Other than the Severance Payment
and the payment of C.O.B.R.A. premiums described, Employer shall have no further
obligation to compensate Employee pursuant to Section(s) 4 or 9 above; and
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(ii) Employee shall be entitled to payment
of any previously declared bonus as provided in Section 4(a) above.
b. In the event of termination of Employee's
employment pursuant to Section 9(b)(i) of this
Agreement, Sections 8(a) and 8(b) shall apply to Employee for the number of
months remaining under this Agreement at the time of termination plus a period
of six (6) months thereafter.
11. REMEDIES
Employer recognizes that because of
Employee's special talents, stature and opportunities in the imaging industry,
and because of the special creative nature of and compensation practices of said
industry and the material impact that individual projects can have on the
Company's results of operations, in the event of termination by Employer
hereunder (except under Section 9(a)(i) or (iii), or in the event of termination
by Employee under Section 9(b)(i) before the end of the agreed term, the
Employer acknowledges and agrees that the provisions of this Agreement regarding
further payments of base salary, bonuses and the exercisability of Rights
constitute fair and reasonable provisions for the consequences of such
termination, do not constitute a penalty, and such payments and benefits shall
not be limited or reduced by amounts' Employee might earn or be able to earn
from any other employment or ventures during the remainder of the agreed term of
this Agreement.
12. EXCISE TAX. In the event that any payment or benefit
received or to be received by Employee in connection with a termination of his
employment with Employer would constitute a "parachute payment" within the
meaning of Code Section 280G or any similar or successor provision to 280G
and/or would be subject to any excise tax imposed by Code Section 4999 or any
similar or successor provision then Employer shall assume all liability for the
payment of any such tax and Employer shall immediately reimburse Employee on a
"grossed-up" basis for any income taxes attributable to Employee by reason of
such Employer payment and reimbursements.
13. ATTORNEYS' FEES AND COSTS. If any action at law or in
equity is necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements in addition to any other relief to which he may be
entitled.
14. ENTIRE AGREEMENT; SURVIVAL. This Agreement contains the
entire agreement between the parties with respect to the transactions
contemplated herein and supersedes, effective as of the date hereof any prior
agreement or understanding between Employer and Employee with respect to
Employee's employment by Employer. The unenforceability of any provision of this
Agreement shall not effect the enforceability of any other provision. This
Agreement may not be amended except by an agreement in writing signed by the
Employee and the Employer, or any waiver, change, discharge or modification as
sought. Waiver of or failure to exercise any rights provided by this Agreement
and in any respect shall not be deemed a waiver of any further or future rights.
b. The provisions of Sections 4, 7, 8,
9(a)(ii), 9(b)(iii), 10, 11, 12, 14, 16, 17 and 18 shall survive the termination
of this Agreement.
15. ASSIGNMENT. This Agreement shall not be assigned to other
parties.
16. GOVERNING LAW. This Agreement and all the amendments
hereof, and waivers and consents with respect thereto shall be governed by the
laws of the State of California, without regard to the conflicts of laws
principles thereof.
17. NOTICES. All notices, responses, demands or other
communications under this Agreement shall be in writing and shall be deemed to
have been given when
a. delivered by hand;
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b. sent be telex or telefax, (with receipt
confirmed), provided that a copy is mailed by registered
or certified mail, return receipt requested; or
c. received by the addressee as sent be express
delivery service (receipt requested) in each case to the
appropriate addresses, telex numbers and telefax numbers as the party may
designate to itself by notice to the other parties:
(i) if to the Employer: Syscan Imaging,
Inc. 0000 Xxxxxxxxxx Xxxxx Xxx Xxxx,
XX 00000 Telefax: (000)-000-0000
Telephone: (000)-000-0000
(ii) if to the Employee: Xxxxx Xx., Xxx
Xxxx, XX 00000
18. SEVERABILITY OF AGREEMENT. Should any part of this
Agreement for any reason be declared invalid by a court of competent
jurisdiction, such decision shall not affect the validity of any remaining
portion, which remaining provisions shall remain in full force and effect as if
this Agreement had been executed with the invalid portion thereof eliminated,
and it is hereby declared the intention of the parties that they would have
executed the remaining portions of this Agreement without including any such
part, parts or portions which may, for any reason, be hereafter declared
invalid.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed this
agreement as of the day and year first above written.
EMPLOYEE
Signature: /s/ Xxxxxx Xx
--------------------------
Printed Name: Xxxxxx Xx
Date: April 26, 2005
SYSCAN IMAGING, INC.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Operating Officer and Secretary
Date: April 26, 2005
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