IPEX, Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
June 7, 2005
Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx 00
Xxxxxx 00000 Xxxxx
Dear Massimo:
This letter is being delivered in connection with your continued
employment by IPEX, Inc., a Nevada corporation (the "Company"), in order to
facilitate an acquisition by the Company of certain assets of RGB Channel SRL, B
Tech, Ltd., Xxxxxxxx Xxxx and you. By signing this letter, you agree that this
letter sets forth the basic terms and conditions of your employment.
1. Salary. Your annual salary is currently set at $84,000 ("Salary"). Any
amounts paid as salary will be subject to regular payroll deductions and will be
paid on a semi-monthly basis. As a general matter, your salary will be reviewed
annually, but the Company reserves the right to change your compensation from
time to time on reasonable notice. You will, as additional salary, subject to
payroll deductions, be provided a home to reside, an automobile and a cellular
phone with an aggregate minimum value of $3,000 per month.
2. Duties. Your job title is Chief Science Officer, but you may be
assigned other titles and duties as needed and your title and duties may change
from time to time on reasonable notice, based on the needs of the Company and
your skills, as determined by the Company. As an exempt employee, you are
required to exercise your specialized expertise, independent judgment and
discretion to provide high-quality services. You are required to follow office
policies and procedures adopted from time to time by the Company and to take
such general direction as you may be given from time to time by your superiors.
The Company reserves the right to change these policies and procedures at any
time. (Also see Adjustments and Changes in Employment Status - below). Except as
set forth in Exhibit A, you are required to devote 100% of your energies,
efforts and abilities to your employment, unless the Board expressly agrees in
writing otherwise. Except as set forth in Exhibit A hereto, you are not
permitted to engage in (i) any other business or (ii) any investment (directly
or indirectly, third-party or otherwise) made to support any business similar to
that conducted, or proposed to be conducted by, the Company (except that a less
than two percent (2%) ownership interest in a public corporation shall be
permitted).
3. Hours of Work. As an exempt employee, you are expected to work the
number of hours required to get the job done. However, you are generally
expected to be present during normal working hours of the Company. Normal and
reasonable working hours will be established by the Company and may be changed
as needed to meet the needs of the business.
4. Adjustments and Changes in Employment Status. You understand that the
Company reserves the right to make personnel decisions regarding your
employment, including but not limited to decisions regarding any promotion,
salary adjustment, transfer or disciplinary action, up to and including
termination, consistent with the needs of the business.
5. Proprietary Information Agreement. You will be required to sign and
abide by the terms of the enclosed proprietary information agreement, which is
incorporated into this agreement by reference as Exhibit B.
6. Immigration Documentation. Please be advised that your continued
employment is contingent on your ability to prove your identity and
authorization to work in the U.S. for the Company. You must comply with the
Immigration and Naturalization Service's employment verification requirements.
The Company shall hire an immigration attorney, at Company expense, to assist
you in obtaining a work visa.
7. Representation and Warranty of Employee. You represent and warrant to
the Company that the performance of your duties has not violated and will not
violate any agreements with or trade secrets of any other person or entity.
8. Employee Benefits. You will be eligible to receive paid time off
("PTO") from work for vacations, personal business, personal illness or family
business in accordance with the Company's current PTO policy. PTO will be a
minimum of twenty (20) working days per annum, or as otherwise agreed to by the
Company. You are also eligible to receive the Company's standard health
insurance benefits and dental insurance benefits, as provided in benefit plans
currently, or to be, maintained by the Company. The Company shall obtain a term
life insurance policy insuring your life, payable to beneficiaries of your
choice, with a face value of one million dollars ($1,000,000), for a term equal
to the lesser of (i) 5 years, or (ii) the term of your employment as set forth
in Section 10 of this Agreement. These benefits may change from time to time.
You will be covered by workers' compensation insurance and State Disability
Insurance, as required by state law.
9. Equity-Based Compensation. You may be eligible to receive awards of
equity-based compensation (e.g., options to acquire shares of the capital stock
of the Company or the opportunity to purchase restricted shares of such stock)
pursuant to one or more employee benefit plans maintained by the Company from
time to time for such purpose; however, any such compensation shall be (i)
solely within the discretion of the Board (or a Committee of the Board
maintained for such purpose) and (ii) subject to the terms of any definitive
agreement with respect thereto.
10. Term of Employment. Your employment with the Company shall remain
"at-will" after the effective date of this Agreement. In other words, either you
or the Company can terminate your employment at any time for any reason, with or
without cause and with or without notice. If termination is without cause, you
will be entitled to salary continuation and severance pay in the amount of three
(3) months Salary. Termination for cause is defined as (a) you are derelict in
your duties or commit any misconduct with respect to the Company's affairs and
such dereliction or misconduct shall continue for a period of five (5) days
after the Company shall have given you written notice specifying such
dereliction or misconduct, and advising you that the Company shall have the
right to terminate your employment hereunder in the event such misconduct
continues through such five-day period; (b) you commit an act constituting
common law fraud or any crime, which could reasonably be expected to have an
adverse impact on the Company, its business or assets; or (c) you should fail
(otherwise than on account of illness or other incapacity) or refuse to carry
out the reasonable directives of the Board of Directors of the Company, and such
failure or refusal shall continue for a period of five (5) days after the
Company has given you written notice specifying such directives and wherein you
haves failed or refused to carry out the same, and advising you that the Company
shall have the right to terminate your employment hereunder in the event such
failure or refusal continues through such five-day period.
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11. Dispute Resolution Procedure. You and the Company (the "parties")
agree that any dispute arising out of or related to the employment relationship,
including the termination of that relationship and any allegations of unfair or
discriminatory treatment arising under state or federal law or otherwise, to the
maximum extent permitted by law, shall be resolved by final and binding
arbitration in San Diego, California, except where the law specifically forbids
the use of arbitration as a final and binding remedy, or where section (d) below
specifically allows a different remedy. The following dispute resolution
procedure shall apply:
(a) The party claiming to be aggrieved shall furnish to the other party a
written statement of the grievance identifying any witnesses or documents that
support the grievance and the relief requested or proposed.
(b) The responding party shall furnish a statement of the relief, if any,
that it is willing to provide, and the witnesses or documents that support its
position as to the appropriate action. The parties can mutually agree to waive
this step. If the matter is not resolved at this step, the parties shall submit
the dispute to non-binding mediation before a mediator to be jointly selected by
the parties. The Company will pay the cost of the mediation.
(c) If the mediation does not produce a resolution of the dispute, the
parties agree that the dispute shall be resolved by final and binding
arbitration. The parties shall attempt to agree to the identity of an
arbitrator, and, if they are unable to do so, they will obtain a list of
arbitrators from the Federal Mediation and Conciliation Service and select an
arbitrator by striking names from that list.
The arbitrator shall have the authority to determine whether the conduct
complained of in subsection (a) of this section violates the rights of the
complaining party and, if so, to grant any relief authorized by law, subject to
the exclusions of subsection (d) below. The arbitrator shall not have the
authority to modify, change or refuse to enforce the terms of any employment
agreement between the parties. In addition, the arbitrator shall not have the
authority to require the Company to change any lawful policy or benefit plan.
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The hearing shall be transcribed. The Company shall bear the costs of the
arbitration if you prevail. If the Company prevails, you will pay half the cost
of the arbitration or $5000, whichever is less. Each party shall be responsible
for paying its own attorneys fees.
Arbitration shall be the exclusive final remedy for any dispute between
the parties, to the maximum extent permitted by law, including but not limited
to disputes involving claims for discrimination or harassment (such as claims
under the Fair Employment and Housing Act, Title VII of the Civil Rights Act of
1964, the Americans with Disabilities Act, or the Age Discrimination in
Employment Act), wrongful termination, breach of contract, breach of public
policy, physical or mental harm or distress or any other disputes, and the
parties agree that no dispute shall be submitted to arbitration where the party
claiming to be aggrieved has not complied with the preliminary steps provided
for in subsections (a) and (b) above.
The parties agree that the arbitration award shall be enforceable in any
court having jurisdiction to enforce this Agreement, so long as the arbitrator's
findings of fact are supported by substantial evidence on the whole and the
arbitrator has not made errors of law; provided, however, that either party may
bring an action in a court of competent jurisdiction regarding or related to
matters involving the Company's confidential, proprietary or trade secret
information, or regarding or related to inventions that you may claim to have
developed prior to joining the Company or after joining the Company, pursuant to
California Labor Code 2870. The parties further agree that, for violations of
your confidentiality, proprietary information or trade secret obligations which
the parties have elected to submit to arbitration, the Company retains the right
to seek preliminary injunctive relief in court in order to preserve the status
quo or prevent irreparable injury before the matter can be heard in arbitration.
(d) The Company reserves the right to modify, change or cancel this
provision upon 30 days written notice. However, such cancellation shall not
affect matters which have already been submitted to arbitration.
12. Integrated Agreement. Please note that this Agreement supersedes any
prior agreements, representations or promises of any kind, whether written,
oral, express or implied between the parties hereto with respect to the subject
matters herein. It constitutes the full, complete and exclusive agreement
between you and the Company with respect to the subject matters herein. This
agreement cannot be changed unless in writing, signed by you and the Chief
Executive Officer or President of the Company.
13. Severability. If any term of this Agreement is held to be invalid,
void or unenforceable, the remainder of this Agreement shall remain in full
force and effect and shall in no way be affected; and, the parties shall use
their best efforts to find an alternative way to achieve the same result.
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In order to confirm your agreement with these terms, please sign one copy
of this letter and return it to me. The other copy is for your records. If there
is any matter in this letter which you wish to discuss further, please do not
hesitate to speak to me.
Very truly yours,
IPEX, INC.
By: /s/ Xxxxxx Xxxx
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Xxxxxx "Xxxx" Alt, Chief Executive Officer
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I agree to the terms of employment set forth in this Agreement.
Signature: /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxx Date: June 7, 2005
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EXHIBIT A
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The undersigned, Xxxxxxx Xxxxxxxxx, hereby certifies, represents, warrants
and covenants to IPEX, Inc., a Nevada corporation (the "Company") the following:
(a) Ownership Interests. The undersigned is currently the owner (directly
or indirectly) of capital stock in the Company. The undersigned owns no other
ownership interests in, nor has any rights to acquire any ownership interests in
(directly or indirectly) any business similar to that conducted, or proposed to
be conducted by, the Company.
(b) Noncompetition. The undersigned represents, warrants and covenants
that he shall not hold any ownership interests or rights to acquire ownership
interests in, directly or indirectly, any business similar to that conducted, or
proposed to be conducted by, the Company, or their respective affiliates,
related parties, predecessors, successors and assigns until the later of (i)
twelve (12) months following the termination of the undersigned's employment
with the Company, or (ii) six (6) months after such time as the undersigned
holds no ownership interests or rights to acquire ownership interests in the
Company, except that a less than two percent (2%) ownership interest in a public
corporation shall be permitted.
(c) Nonsolicitation. During the period commencing on the date hereof and
ending two (2) years after the termination of the undersigned 's employment by
the Company for any reason, the undersigned shall not directly or indirectly
induce or attempt to induce any of the employees of the Company to leave the
employ of the Company, or solicit the business of any client or customer of the
Company or any consultant to the Company.
(d) Proprietary Information.
(i) For purposes of this Agreement, "Proprietary Information" shall
mean any information relating to the business of the Company that has not
previously been publicly released by duly authorized representatives of the
Company and shall include (but shall not be limited to) information encompassed
in all proposals, marketing and sales plans, financial information, costs,
pricing information, computer programs (including source code, object code,
algorithms and models), customer information, customer lists, and all methods,
concepts, know-how or ideas in or reasonably related to the business of the
Company as well as confidential information belonging to the Company 's
customers or clients. The undersigned agrees to regard and preserve as
confidential all Proprietary Information whether undersigned has such
Proprietary Information in undersigned 's memory or in writing or other physical
form.
(ii) The undersigned will not, without written authority from the
Company to do so, directly or indirectly, use any Proprietary Information for
the undersigned 's benefit or purposes, nor disclose any Proprietary Information
to others, either during the term of the undersigned 's employment by the
Company or thereafter, except as required by the conditions of the undersigned
's employment by the Company. The undersigned agrees not to remove from the
premises of the Company, except as an employee of the Company in pursuit of the
business of the Company, or except as specifically permitted in writing by the
Company, any document or object containing or reflecting any Proprietary
Information. The undersigned recognizes that all such documents and objects,
whether developed by undersigned or by someone else, are the sole and exclusive
property of the Company.
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(iii) All Proprietary Information and all of the undersigned 's
interest in trade secrets, trademarks, computer programs, customer information,
customer lists, employee lists, products, procedure, copyrights and developments
created or developed by the undersigned during the term of this Agreement as a
result of, or in connection with, the undersigned 's employment by the Company,
shall be the sole and exclusive property of the Company and shall be deemed work
made for hire for purposes of the United States copyright laws. Without further
compensation, but at the Company's expense, forthwith upon request of the
Company, the undersigned shall execute any and all such assignments and other
documents and take any and all such other action as the Company may reasonably
request in order to vest in the Company all of the undersigned 's right, title
and interest in all of the aforesaid items, free and clear of any and all liens,
claims and encumbrances of any kind or nature whatsoever.
(e) Indemnification. The undersigned hereby agrees to indemnify the
Company, and to save the Company harmless, from and against any loss, liability,
demand, claim, action, cause of action, cost, damage or expense whether or not
arising out of third party claims (including, without limitation, attorneys'
fees and court costs) (collectively, "Losses") which the Company may suffer,
sustain or become subject to as a result of, in connection with, relating to or
by virtue of any inaccuracy in or breach of the representations, warranties and
covenants made in Sections 2, 5 or 7 or this Exhibit A of this employment letter
(the undersigned hereby acknowledging that such indemnification is a necessary
inducement to the Company, in order to continue its interest, agreements,
arrangements, business or affairs with the Company (and thus benefit the
undersigned)).
(f) Survival. The representations, warranties and covenants made in this
employment letter shall terminate only when all applicable statutes of
limitation with respect to the liabilities in question shall expire (after
giving effect to any extensions or waivers thereof); provided, however, that any
representation, warranty or covenant in respect of which indemnity may be sought
under the rights enumerated in this employment letter, and the indemnity with
respect thereto, shall survive the time at which it would otherwise terminate
pursuant to this employment letter if notice of an inaccuracy or breach or
potential inaccuracy or breach thereof giving rise to such right or potential
right of indemnity shall have been given to the undersigned prior to such time.
/s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
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EXHIBIT B
Assignment of Intellectual Property, Know-how and Inventions Agreement
[attached]
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