EXHIBIT 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into this 31st
day of July 2000 (the "Effective Date"), by and between LARK TECHNOLOGIES, INC.,
a Texas corporation (the "Company), acting herein by and through its officer
hereunto duly authorized, and XXXX X. XXXXXXXXXX ("Employee").
WITNESSETH:
WHEREAS, Company desires to employ Employee to serve in a managerial capacity
with the Company; and,
WHEREAS, Employee is willing to be employed by the Company and to render such
services to the Company on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the compensation and other benefits to be
obtained by Employee by virtue of Employee's employment by the Company, the
Company's promise to provide Employee with initial and ongoing Confidential
Information (defined in paragraph 6 below) and the mutual promises and
agreements by and between the Company and Employee hereinafter set forth, it is
hereby agreed by the Company and the Employee as follows:
1. Employment: Employee is hereby employed by the Company and
Employee hereby accepts such employment upon the terms and
conditions hereinafter set forth.
2. Effective Date; Term of Employment: This Agreement and Employee's
employment by the Company shall be effective on the Effective Date
and shall continue in effect until terminated in accordance with
the provisions hereof (the "Employment Period"). This Agreement
may be terminated by the Company or Employee at any time, subject,
however, to the termination provisions of Section 5 hereof and
applicable law.
3. Duties: Employee shall serve as the Executive Vice President -
Corporate Development of the Company with responsibility for all
aspects of the Company's sales and marketing activities, and new
business opportunities, during the Employment Period, on a
full-time basis. During the Employment Period, Employee shall
devote such time, attention, skill, energy and efforts as may be
necessary for the faithful performance of Employee's duties
hereunder. Notwithstanding the foregoing, nothing herein shall
prohibit the Employee from devoting reasonable time to vacations,
civic and charitable activities, and management of personal
investments, all of which shall be at Employee's sole but
reasonable discretion.
4. Compensation
(a) During the Employment Period, the Company shall pay
Employee, as compensation for his services, an annual base
salary of not less than One Hundred Thirty-five Thousand
and No/100 Dollars ($135,000.00), payable in accordance
with the Company's usual payment practices but in any event
not less often than monthly. The Employee's base salary
shall be reviewed by the Company at least annually in July
of each year for purposes of determining reasonable
increases thereof based on considerations of merit and cost
of living adjustments, and may be increased (but
shall not be decreased) from time to time within the
Company's discretion. In addition, Employee shall be
eligible for an annual bonus in an amount at least equal to
25% of Employee's annual base salary in effect at the time
such bonus is determined, provided that revenue and
profitability goals for the Company meet the plan targets
mutually agreed upon by the Company and the Employee for
purposes of determining such annual bonus with the
opportunity of a maximum bonus in an amount not exceeding
50% of Employee's base salary in effect at the time such
bonus is determined, provided sales levels, mutually agree
upon by the Company and Employee for the year as to which
such bonus is being determined have been met by the
Company. The annual bonus for the calendar year 2000 will
be a guaranteed minimum bonus of Thirteen Thousand Five
Hundred and No/100 Dollars ($13,500.00). All such
compensation shall be subject to customary withholding
taxes and other employment taxes as required with respect
thereto. Employee shall also qualify for and be entitled to
obtain from the Company all rights and benefits for which
Employee may be eligible under any benefit plans offered by
the Company to its executives of comparable position and
responsibility, including, without limitation, life,
medical, health, and disability insurance, savings and
thrift plans, profit participation and stock option plans,
and other similar benefits which are provided for employees
generally.
(b) Contemporaneously with and in consideration of the
execution of this Agreement, the Company shall grant to
Employee options to purchase 45,000 shares of the Company's
common stock at the market price at the close of trading on
the exchange on which such stock is listed on the Effective
Date hereof. As to such options, Employee shall be
immediately vested in options to purchase at least 10,000
shares of the common stock of the Company and the remaining
options covering 35,000 shares of such common shall vest in
Employee incrementally over the 4 or 5-year period (as
provided in the Company's stock option plan) commencing on
the Effective Date; provided, however, that all options
which have not vested at the time of any merger or takeover
of the Company by an unrelated third party, or upon the
dissolution or bankruptcy of the Company shall immediately
vest in the Employee, subject, though, to the provisions of
Section 5 if Employee's employment with the Company has
been previously terminated by the Company. Subject to the
foregoing, such options shall be granted pursuant to and in
accordance with the Company's Stock Option Plan, a copy of
which is attached hereto as Exhibit "A", and made a part
hereof for all purposes.
(c) Contemporaneously with the execution of this Agreement by
Employee and Company and in consideration hereof, the
Company shall also pay the Employee a one-time signing
bonus in the amount of Fifteen Thousand and No/100 Dollars
($15,000.00).
(d) Contemporaneously with and in consideration of this
Agreement, the Company shall also provide financial aid, up
to Seven Thousand Five Hundred and No/100 Dollars
($7,500.00) per calendar year, to the Employee in order to
enable the Employee pursue a Master's Degree in Business
Administration (the "MBA"). Employee agrees to not pursue
the MBA prior to January 2001, and further agrees that the
courses of study in which Employee enrolls in connection
therewith will be conducted after the Company's normal
business hours. Said financial aid must be reimbursed in
full should Employee terminate his employment with the
Company for any reason prior to July 31, 2005.
Education expenses must be for an approved, accredited
degree program (Associates, Bachelors, Masters, or PhDs)
received at a regionally accredited college, university, or
junior college. Eligible expenses include the costs of
tuition, books, and related fees associated with an
approved degree program. Correspondence or video course
costs can also qualify, provided they are part of the
approved degree program and taken through an accredited
college or university. Costs for software, supplies and
other expenses are not eligible. Only courses with a final
grade equivalent of "C" or better for undergraduate
courses. Or "B" of better for graduate courses, are
eligible for reimbursement.
A request for reimbursement must be completed and submitted
to the president no later than 60 days after the successful
completion of each course. All required documentation
(including receipts and an official transcript for grade
report) must be provided along with your request.
Reimbursement checks for non-taxable tuition
reimbursements will be sent directly to you from Lark. For
reimbursements that require taxes to be withheld
(currently reimbursements in excess of $5,250 in a
calendar year), payment will be processed through Lark's
payroll system instead and added to your payroll check
(minus tax withholdings)
5. Termination of Employment: Employee's employment and the Company's
obligations under this Agreement may be terminated as follows:
(a) For good cause which, for the purposes of this Agreement,
shall mean:
(i) the continued failure of Employee to perform
material duties assigned to Employee after a written
demand by the Company identifying the manner in
which it believes Employee has not performed his
duties and Employee's subsequent failure to cure the
identified problem within a reasonable time; or,
(ii) A material breach of this Agreement by Employee; or,
(iii) Employee's commission of a felony or fraud or
dishonesty against the Company or willful conduct
involving a third party which significantly impairs
the reputation of, or xxxxx, the Company, its
subsidiaries or affiliates.
(b) For any other reason in the Company's sole discretion.
(c) For any reason in the Employee's sole discretion.
Upon Employee's termination by the Company for any reason,
Employee shall be entitled to continue such benefits for such
periods of time as are customarily permitted by Company policy or
by law to be continued by terminated Employees of the Company,
such as insurance coverage. Further, in the event of a termination
of Employee's employment pursuant to Subsection 5(b) above,
Employee shall be entitled to continue to receive Employee's
annual base salary in effect at the time of such termination for a
period of twelve (12) months commencing on the date of Employee's
termination. Additionally, if Employee is terminated by the
Company pursuant to Subsection 5 (b) above within six (6) months
prior to a change in ownership of the Company pursuant to a merger
with an unrelated third party, or a sale of the majority of the
common stock of the Company to an unrelated third party, or the
dissolution or bankruptcy of the Company, then all options to
acquire common stock of the Company shall vest in Employee
effective as of the date of the Employee's termination of
employment with the Company. If Employee is terminated by the
Company under any circumstances within one (1) year after a merger
with an unrelated third party, or a sale of the majority of the
common stock of the Company to an unrelated third party, or the
dissolution or bankruptcy of the Company, then the Employee shall
be entitled to continue to receive Employee's annual base salary
in effect at the time of such termination for a period of twelve
(12) months commencing on the date of Employee's termination.
6. Confidential Information: The Company promises to provide Employee
initial and ongoing Confidential Information (defined below),
which Employee has not had access to or knowledge of before the
execution of this Agreement. Employee agrees to keep confidential,
except as the Company may consent in writing, and not to disclose,
or make any use except for the benefit of the Company, at any time
during or subsequent to the Employment Period, any trade secrets
or confidential information, knowledge or data of the Company,
including but not limited to that which relates to the Company or
the Company's products, software, research, services, development,
Inventions (as hereafter defined), processes, know-how, designs,
formulas, test data, purchasing, accounting, customer lists,
business plans, marketing plans and strategies, pricing strategies
or other subject matter pertaining to any business of the Company
or any of its clients, customers, consultants, licensees, or
affiliates, that Employee may produce, obtain or otherwise acquire
during the Employment Period (the "Confidential Information"),
except as herein provided. Without limiting the generality of
the foregoing, Confidential Information shall include any
materials or information stamped with the words "Confidential
Information of Lark Technologies, Inc." Employee further agrees
not to deliver, reproduce or in any way allow any Confidential
Information to be delivered to or used by any third parties
without specific direction or consent of a duly authorized
representative of the Company.
7. Conflicting Employment; Return of Confidential Material: Employee
agrees that, during the Employment Period, Employee will not
engage in any other employment, occupation, consulting or other
activity relating to the business in which the Company is now or
may hereafter become engaged, or that would otherwise conflict
with Employee's obligations to the Company. In the event of
Employee's termination of employment with the Company for any
reason whatsoever, Employee agrees promptly to surrender and
deliver to the Company all records, materials, equipment,
drawings, documents, and data of any nature pertaining to any
Confidential Information or to his employment, and Employee will
not take with him any description containing or pertaining to any
Confidential Information that Employee may produce or obtain
access to during the Employment Period.
8. Inventions: Employee hereby assigns to the Company all of the
Employee's rights, title, and interest in and to all discoveries
(the "Inventions"), whether or not patentable and whether or not
reduced to practice, made or conceived by Employee (whether made
solely by Employee or jointly with others) during the period of
the Employment Period that (i) relate in any manner to the actual
or demonstrably anticipated business, work, or research and
development of the Company or its subsidiaries, (ii) are developed
in whole or in part on the Company's time or using the Company's
equipment, supplies, facilities and Confidential Information, or
(iii) result from or are suggested by any task assigned to
Employee or any work performed by Employee for or behalf of the
Company or its subsidiaries.
9. Disclosure of Inventions: Patents: Employee agrees that in
connection with any Invention:
(a) Employee shall promptly disclose such Invention in writing
to Employee's immediate supervisor at the Company in order
to permit the Company to claim rights to which it may be
entitled under this Agreement.
(b) Employee shall promptly notify the Company in writing, in
order to permit it to exercise its right hereunder, of the
occurrence of any of the following events in connection
with any Invention: (i) any application for, official
action in connection with or grant of any patent,
trademark, service xxxx, copyright or master work
registration; or (ii) any license, sale or other
disposition of any rights whatsoever to any Invention,
including without limitation any manufacturing distribution
or other rights. Any such license, sale or disposition in
contravention with this Agreement of effected without
written notice to the Company as provided hereunder shall
be void.
(d) Upon written request from the Company, Employee agrees to
assist the Company or its nominee (at the Company's
expense), during and at any time subsequent to the
Employment Period, in every reasonable way to obtain for
the Company's own benefit patents, copyrights, and other
intellectual property rights for such Inventions in any and
all countries, which Inventions shall be and remain the
sole and exclusive property of the Company or its nominee,
whether or not patented or copyrighted.
10. Non-Solicitation Agreement
(a) To protect the Company's Confidential Information, and in
the event of Employee's termination of employment for any
reason whatsoever, whether by Employee or the Company,
Employee covenants and agrees that Employee will not,
directly or indirectly, either individually or as a
principal partner, agent, employee, or as a director or
officer of any corporation or association, or in any other
manner or capacity whatsoever, except on behalf of the
Company, solicit business, or attempt to solicit business,
in products or services competitive with products or
services sold by the Company, from the Company's clients or
customers, or those individuals or entities with whom the
Company did business during
Employee's employment, including, without limitation, the
Company's prospective or potential customers or clients.
(b) The prohibition set forth in paragraph 10(a) in this
Agreement shall be for a period of one (1) year after the
date of Employee's termination from employment.
11. Non-Competition Agreement: Employee agrees that in order to
protect the Company's Confidential Information, it is necessary to
enter into the following restrictive covenant, which is ancillary
to the enforceable promises between the Company and Employee in
this Agreement including, without limitation, the Company's
promise to provide Employee with initial and ongoing Confidential
Information and specialized training. Employee agrees that for the
period Employee is employed with the Company, and for a period of
one (1) year following the termination of Employee's employment,
Employee will not without the prior written consent of the
Company, engage or become interested in any capacity, directly or
indirectly (whether as proprietor, stockholder, director, partner,
employee, agent, independent contractor, consultant, trustee,
beneficiary, or in any other capacity), in any business in the
United States selling, providing or developing products or
services competitive with products or services sold or maintained
by the Company. Employee acknowledges that, due to the nature of
the products and services marketed by the Company, the Company's
geographic customer base is nation-wide and, accordingly, a
restriction of the described activities within the United States
is reasonable and necessary to protect the Company's goodwill and
Confidential Information.
12. Non-Recruitment Agreement: Employee agrees that during Employee's
employment, and for a period of one (1) year from the date of any
termination of Employee's employment, Employee will not, either
directly or indirectly, or by act in concert with others, seek to
influence or influence any Company employee to leave the Company's
employment.
13. If a court concludes that any time period or area specified in
paragraphs 10, 11, or 12 in this Agreement is unenforceable, then
the time period shall be reduced by such number of months or the
area shall be reduced by the elimination of such portion thereof
or both so that the restrictions may be enforced in the area and
for the time to the fullest extent permitted by law. If Employee
violates any of the restrictions contained in paragraphs 10, 11,
or 12 in this Agreement, the restrictive period shall be suspended
and will not run in favor of Employee from the time of the
commencement of any such violation until the time when the
Employee cures the violation to the Company's satisfaction.
14. Employee acknowledges that the restrictions contained in this
Agreement, in view of the nature of the Company's business, are
reasonable and necessary to protect the Company's legitimate
business interests and that any violation of this Agreement would
result in irreparable injury to the Company. In the event of a
breach or a threatened breach by Employee of any provision in this
Agreement, the Company shall be entitled to a temporary
restraining order and injunctive relief restraining Employee from
the commission of any breach, and to recover the Company's
attorneys' fees, costs and expenses related to the breach or
threatened breach. Nothing contained in this Agreement shall be
construed as prohibiting the Company from pursuing any other
remedies available to it for any breach or threatened breach,
including, without limitation, the recovery of money damages.
These covenants and disclosures shall each be construed as
independent of any other provisions in this Agreement, and the
existence of any claim or cause of action by Employee against the
Company, whether predicated on this Agreement or otherwise, shall
not constitute a defense to the enforcement by the Company of any
portion of this Agreement.
15. Modification: No modification, amendment or waiver of any of the
provisions of this Agreement shall be effective unless in writing
and signed by the parties hereto.
16. Entire Agreement: This Agreement supersedes any and all prior
employment and similar agreements, written and/or oral, between
the Company and Employee, and Employee hereby waives and releases
all rights and claims there under or with respect to thereto.
17. Severability: In the event that any Section or provision of this
Agreement shall be held to be illegal or unenforceable, such
Section or provision shall be severed from this Agreement and the
entire Agreement shall not fail on account thereof, but shall
otherwise remain in full force and effect.
18. Assignments: This Agreement shall be freely assignable by the
Company and shall inure to the benefit of, and be binding upon,
the Company, it successors and assigns and/or any other corporate
or other entity or person that shall succeed to the business
presently being operated by the Company, but, being a contract for
personal services, neither this Agreement nor any rights hereunder
are assignable by Employee.
19. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Texas, without
reference to conflicts of law principles, and any action to
enforce or interpret the terms hereof shall be brought in a court
of competent jurisdiction in Xxxxxx County, Texas.
20. Waiver. No waiver, termination or discharge of this Agreement or
any of its terms or provisions will be binding upon either party
unless confirmed in writing. No waiver by either party of any term
or provision of this Agreement or of any default under this
Agreement will affect that party's subsequent right to enforce
such term or provision or to exercise any right or remedy in the
event of any other default, whether or not similar.
21. Notices.
(a) All notices, consents, requests and other communications
under this Agreement must be in writing and shall be sent
by hand delivery, by certified or registered mail
(return-receipt requested), by facsimile or by a recognized
national overnight courier service set forth below:
If to Company: Lark Technologies, Inc.
0000 Xxxx Xxx Xxxxxxx Xxxxxxx Xxxxx,
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Ph.: (000) 000-0000
Fax: (000) 000-0000
If to Employee: Xx. Xxxx X. Xxxxxxxxxx
00 Xxxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxx 00000
Ph.: (281) 298-5573
(b) Notices delivered pursuant to this Agreement will be deemed
given at the time delivered, if personally delivered; upon
facsimile transmission provided the transmitting party
receives confirmation by its facsimile of the transmission
and receipt by the intended recipient of such notices by
5:00 o'clock p.m. (recipient's local time); three business
days after being deposited in the mail, if mailed; and one
business day after timely delivery to the courier, if by
overnight courier service.
(c) Either party may change the address to which notice is to
be sent by written notice to the other party in accordance
with this Section 12.
22. Headings. The titles, captions and headings contained in this
Agreement are inserted by convenience of reference only and are
not intended to be part of or to affect in any way the meaning or
interpretation of this Agreement.
23. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original but
all of which together will constitute one and the same instrument.
24. Amendment. This Agreement may be amended or modified only by a
written instrument signed by Employee and by a duly authorized
officer of Company.
25. Construction. The parties hereto acknowledge and agree that they
have each had the opportunity to be represented by legal counsel
in connection with the negotiation and preparation of this
Agreement and that the parties and their respective legal counsel
have reviewed and revised this Agreement and that the normal rules
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 or any exhibits or amendments
hereto.
26. Attorneys' Fees. Should either party employ attorneys to enforce
any of the provisions hereof, the party losing any final judgment
agrees to pay the prevailing party all reasonable costs, charges
and expenses, including reasonable attorneys' fees expended or
incurred in connection therewith.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
COMPANY:
LARK TECHNOLOGIES, INC.
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------
Title: President and COO
---------------------------------
EMPLOYEE:
/s/ XXXX X. XXXXXXXXXX
---------------------------------
Xxxx X. Xxxxxxxxxx
