EXHIBIT 10.8
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
This is Amendment No. 1, dated June 28, 2001 (the "Amendment No. 1"), to an
Employment Agreement dated December 31, 2000 (the "Employment Agreement"),
between Liquidmetal Technologies, a California corporation (the "Company"), and
Xxxx Xxxx (the "Employee").
BACKGROUND
WHEREAS, pursuant to the terms of the Employment Agreement, Employee is
employed as Chairman of the Board of Directors of the Company; and
WHEREAS, effective as of the date hereof, the Board of Directors of the
Company has appointed Employee as President and Chief Executive Officer of the
Company, and Employee will no longer serve as Chairman of the Board; and
WHEREAS, the Company and the Employee desire to amend the Employment
Agreement to reflect the foregoing change in offices.
NOW, THEREFORE, the parties hereto intending to be legally bound hereby,
and in consideration of the mutual covenants herein contained, agree as follows:
TERMS
1. The foregoing recitals are true and correct and incorporated herein by
reference. Any capitalized terms used but not defined herein shall have the same
meaning ascribed to them in the Employment Agreement.
2. Section 3 of the Employment Agreement is hereby deleted in its entirety
and replaced with the following:
"3. DUTIES. The Employee will serve as the President and Chief
Executive Officer of the Company. The Employee will use the Employee's best
efforts to promote the success of the Company's business and will cooperate
fully with the Board of Directors in the advancement of the best interests
of the Company. Furthermore, the Employee shall assume and competently
perform such reasonable responsibilities and duties as may be assigned to
the Employee from time to time by the Board of Directors of the Company. To
the extent that the Company shall have any parent company, subsidiaries,
affiliated corporations, partnerships, or joint ventures (collectively
"Related Entities"), the Employee shall perform such duties to promote
these entities and their respective interests to the same extent as the
interests of the Company without additional compensation. The Company
acknowledges and agrees that the Employee is involved with business
enterprises and business interests other than the Company and that the
Employee will continue to be involved with, and will continue to devote
time and attention to, other business enterprises and interests
during the term of his employment with the Company. Nothing set forth in
this Agreement shall be construed as prohibiting the Employee from engaging
in or being involved with such other businesses and interests during
Employee's employment by the Company."
3. Except as specifically set forth in this Amendment No. 1, all of the
terms and provisions of the Employment Agreement shall continue to remain in
full force and effect.
4. This Amendment No. 1 may be executed in any number of counterparts, each
of which shall be deemed to be an original, and all of which together shall
constitute one document.
5. This Amendment No. 1, together with the Employment Agreement, contains
the final, complete, and exclusive expression of the parties' understanding and
agreement concerning the matters contemplated herein and supersedes any prior or
contemporaneous agreement of representation, oral or written, among them.
6. This instrument shall be binding upon, and shall inure to the benefit
of, each of the parties' respective personal representatives, heirs, successors,
and assigns.
7. This instrument shall be governed by, and construed and enforced in
accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 on the
day and year first written above.
LIQUIDMETAL TECHNOLOGIES
By: /s/ Xxxxx XxXxxxxxx
----------------------------------------
Xxxxx XxXxxxxxx, Chief Financial Officer
EMPLOYEE
By: /s/ Xxxx Xxxx
----------------------------------------
Xxxx Xxxx, individually
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
effective as of December 31, 2000 (the "Effective Date"), by and between
LIQUIDMETAL TECHNOLOGIES, a California corporation (the "Company"), and XXXX
XXXX (the "Employee").
RECITALS
WHEREAS, the Employee desires to be employed by the Company upon the terms
and conditions set forth in this Agreement; and
WHEREAS, the Company desires to assure itself of the Employee's continued
employment in the capacities set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and for other
good and valuable consideration, the parties hereto covenant and agree as
follows:
1. EMPLOYMENT. The Company hereby employs Employee, and the Employee hereby
accepts such employment, upon the terms and conditions set forth in this
Agreement.
2. TERM. Subject to the terms and conditions of this Agreement, including,
but not limited to, the provisions for termination set forth in Section 5
hereof, the employment of the Employee under this Agreement shall commence on
the Effective Date and shall continue through the close of business on the fifth
(5th) anniversary of the Effective Date (the "Initial Term"). Upon the
expiration of the Initial Term, the term of employment shall automatically and
continuously renew on a year-to-year basis (each such year being referred to as
a "Renewal Term") unless and until the term of employment is terminated pursuant
to Section 5 hereof.
3. DUTIES. The Employee will initially serve as the Chairman of the Board
of Directors of the Company. The Employee will use the Employee's best efforts
to promote the success of the Company's business and will cooperate fully with
the Board of Directors in the advancement of the best interests of the Company.
Furthermore, the Employee shall assume and competently perform such reasonable
responsibilities and duties as may be assigned to the Employee from time to time
by the Board of Directors of the Company. To the extent that the Company shall
have any parent company, subsidiaries, affiliated corporations, partnerships, or
joint ventures (collectively "Related Entities"), the Employee shall perform
such duties to promote these entities and their respective interests to the same
extent as the interests of the Company without additional compensation. The
Company acknowledges and agrees that the Employee is involved with business
enterprises and business interests other than the Company and that the Employee
will continue to be involved with, and will continue to devote time and
attention to, other business enterprises and interests during the term of his
employment with the Company. Nothing set forth in this Agreement shall be
construed as prohibiting the Employee from engaging in or being involved with
such other businesses and interests during Employee's employment by the Company.
4. COMPENSATION.
(a) Annual Base Salary. As compensation for Employee's services and in
consideration for the Employee's covenants contained in this Agreement, the
Company shall pay the Employee an annual base salary of Two Hundred Thousand and
No/100 Dollars ($200,000.00). Such annual base salary shall be payable in equal
installments in accordance with the policy then prevailing for the Company's
salaried employees generally, and the annual base salary shall be subject to any
tax and other withholdings or deductions required by applicable laws and
regulations. The Employee's annual base salary will be reviewed by the Board of
Directors of the Company not less frequently than annually, and the annual base
salary may be adjusted upward, although it may not be adjusted downward at any
time. For purposes of this Agreement, the term "Salary Year" means the 365-day
period that begins on the Effective Date and each successive 365-day period
thereafter.
(b) Bonuses. In addition to the Employee's annual base salary, during the
term of the Employee's employment hereunder, the Employee shall be entitled to
only such bonuses as may be granted to the Employee by the Board of Directors of
the Company, in its sole discretion.
(c) Other Benefits; Use of Automobile. During the term of the Employee's
employment hereunder, the Employee shall be eligible to participate in such
pension, life insurance, health insurance, disability insurance and other
benefits plans, if any, which the Company may from time to time make available
to similar-level employees. In addition, the Company will provide the Employee
with the full-time use of an automobile (to be selected by the Employee) at all
times during the Employee's employment hereunder.
(d) Vacation. The Employee shall be entitled to four (4) weeks paid
vacation during each Salary Year during the term of the Employee's employment
hereunder. Unused vacation from a particular Salary Year will not carry over to
succeeding Salary Years, and the Employee will not be paid for any unused
vacation.
(e) Reimbursement of Expenses. The Employee shall be reimbursed for all
reasonable and customary travel and other business expenses incurred by Employee
in the performance of Employee's duties hereunder, provided that such
reimbursement shall be subject to, and in accordance with, any expense
reimbursement policies and/or expense documentation requirements of the Company
that may be in effect from time to time.
(f) Option Grant. In addition to the foregoing, in consideration of the
execution of this Agreement by the Employee, the Company shall, on the date
hereof, grant to the Employee an option to purchase up to 500,000 shares of the
common stock of the Company at an exercise price of $15.00 per share. Such
option shall be evidenced by a stock option agreement in the form set forth as
Exhibit A hereto.
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5. TERMINATION.
(a) Death. The Employee's employment under this Agreement shall terminate
immediately upon Employee's death. In the event of a termination pursuant to
this Section 5(a), the Employee's estate shall be entitled to receive any unpaid
base salary owing to Employee up through and including the date of the
Employee's death.
(b) Disability. If, during the term of the Employee's employment hereunder,
the Employee becomes physically or mentally disabled in accordance with the
terms and conditions of any disability policy covering the Employee or, if due
to any physical or mental condition, the Employee becomes unable for a period of
more than sixty (60) days during any six-month period to perform Employee's
duties hereunder on substantially a full-time basis as determined by the Company
in its sole discretion, the Company may, at its option, terminate the Employee's
employment upon not less than thirty (30) days written notice. In the event of a
termination pursuant to this Section 5(b), the Employee shall be entitled to
receive any unpaid base salary owing to Employee up through and including the
effective date of Termination.
(c) Termination By Company Without Cause. In addition to the other
termination provisions of this Agreement, the Company may terminate the
Employee's employment at any time without cause (a "Termination Without Cause").
(d) Termination By Company With Cause. The Company may terminate the
Employee's employment at any time with Cause. As used in this Agreement, "Cause"
shall include the following: (1) the Employee's failure or inability to
materially perform Employee's duties under this Agreement; (2) intentional
dishonesty, misconduct, or unlawful acts that materially and adversely affect
the Company; (3) a material and intentional violation of the Company's policies
or practices which reasonably justifies immediate termination; (4) pleading
guilty or no contest to, or conviction of, a felony involving moral turpitude,
fraud, dishonesty, or intentional misrepresentation; (5) the commission by the
Employee of any intentional act which could reasonably be expected to materially
injure the reputation, business, or business relationships of the Company or
Related Entities; (6) the Employee's inability to materially perform an
essential function of Employee's position; or (7) any material breach by
Employee of this Agreement. The Company may terminate this Agreement for Cause,
as defined in clauses (1), (3), (5), (6) and (7) above, upon thirty days prior
written notice (the "Cause Notification Period") to Employee, but such
termination shall only become effective in the event of Employee's failure to
cure the applicable breach or violation, to the reasonable satisfaction of
Company, prior to the end of the Cause Notification Period. The Company may
terminate this Agreement for Cause, as defined in clauses (2) and (4) above, at
any time with no notice. In the event of a termination for Cause, the Company
shall be relieved of all its obligations to the Employee provided for by this
Agreement as of the effective date of termination, except that Employee shall be
entitled to the annual base salary and all benefits that have accrued hereunder
up to and including the effective date of termination.
(e) Termination by the Employee for Good Reason. The Employee may terminate
this Agreement at any time for Good Reason. For purposes of this Agreement,
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"Good Reason" means any of the following: (1) the Employer's breach of this
Agreement; (2) the assignment of the Employee to a position, responsibilities,
or duties of a materially lesser status or degree of responsibility than his
position, responsibilities, or duties at the Effective Date; (3) the relocation
of the Company's principal executive offices to a place outside the metropolitan
Los Angeles area (but if the principal executive offices are moved to the Tampa
Bay metropolitan area after the Effective Date, then relocation of the principal
executive offices to a place outside the Tampa Bay metropolitan area will also
constitute "Good Reason"); (4) the requirement by the Company that the Employee
be based anywhere outside the Tampa Bay metropolitan area; or (5) the occurrence
of a Change in Control of the Company. For this purpose, a "Change in Control"
shall be deemed to have occurred upon the happening of any one of the following
events:
(i) any person, entity, or group thereof acting in concert (a "Person")
(other than (A) the Employee, (B) the Company or any of its
subsidiaries, (C) a trustee or other fiduciary holding securities
under any employee benefit plan of the Company or any of its
subsidiaries, (D) an underwriter temporarily holding securities
pursuant to an offering of such securities or (E) a corporation owned,
directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock in the
Company) being or becoming the "beneficial owner" (as such term is
defined in Rule 13d-3 under the Securities Exchange Act of 1934) of
securities of the Company which, together with securities previously
owned, confer upon such Person the combined voting power, on any
matters brought to a vote of shareholders, of fifteen percent (15%) or
more of the then outstanding shares of voting securities of the
Company; or
(ii) the sale, assignment or transfer of assets of the Company or any
subsidiary or subsidiaries, in a transaction or series of
transactions, if the aggregate consideration received or to be
received by the Company or any such subsidiary in connection with such
sale, assignment or transfer is greater than fifty percent (50%) of
the book value, determined by the Company in accordance with generally
accepted accounting principles, of the Company's assets determined on
a consolidated basis immediately before such transaction or the first
of such transactions; or
(iii) the merger, consolidation, share exchange or reorganization of the
Company (or one or more direct or indirect subsidiaries of the
Company) as a result of which the holders of all of the shares of
capital stock of the Company as a group would receive fifty percent
(50%) or less of the combined voting power of the voting securities of
the Company or such surviving or resulting entity or any parent
thereof immediately after such merger, consolidation, share exchange
or reorganization; or
(iv) the adoption of a plan of complete liquidation or the approval of the
dissolution of the Company; or
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(v) the commencement (within the meaning of Rule 13e-4 under the
Securities Exchange Act of 1934) of a tender or exchange offer which,
if successful, would result in a Change of Control of the Company; or
(vi) a determination by the Board of Directors of the Company, in view of
the then current circumstances or impending events, that a Change of
Control of the Company has occurred or is imminent, which
determination shall be made for the specific purpose of triggering the
operative provisions of this Agreement.
(f) Severance Payment. In the event that the Company terminates the
Employee's employment hereunder other than specifically pursuant to Section 5(a)
or Section 5(d) above, or in the event that the Employee terminates his own
employment for Good Reason, the Employee shall receive, as severance
compensation, a lump-sum cash payment equal to two (2) times the sum of (i) the
annual base salary that is in effect on the effective date of termination, plus
(ii) the Employee's average cash bonus during the two full fiscal years of the
Company immediately preceding the effective date of Termination (the "Severance
Payment"). The Severance Payment shall be due and payable to the Employee within
five (5) calendar days of the effective date of the termination, and if the
Severance Payment is not timely paid, the Severance Payment will, upon the
expiration of such five-day period, begin accruing interest daily at a rate
equal to ten percent (10%) per annum. Additionally, if the Severance Payment is
not timely made, all obligations of the Employee pursuant to Section 6 of this
Agreement will automatically and immediately terminate and be of no further
force and effect as of the expiration of such five-day period.
(g) Additional Payment. Notwithstanding any other provision of this
Agreement, if any portion of the Severance Payment or any other payments under
this Agreement or under any other agreement or plan of the Company (in the
aggregate, the "Total Payments"), are subject to the tax (the "Excise Tax")
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (or any
successor provision), then the Company shall pay to the Employee an additional
amount (the "Gross-Up Payment") equal to the sum of (i) any Excise Tax; (ii) any
interest charges or penalties imposed by any taxing authority arising in respect
of the imposition of such Excise Tax; and (iii) any federal, state or local
income tax or Excise Tax imposed upon the Gross-Up Payment. For purposes of
determining the amount of the Gross-up Payment, the Employee shall be deemed to
pay federal income taxes at the highest marginal rate of federal income taxation
in the calendar year in which the Gross-Up Payment is to be made, and the
Employee shall be further deemed to pay state and local income taxes at the
highest marginal rates of taxation in the state and locality of the Employee's
domicile for income tax purposes on the date the Gross-Up Payment is made, net
of the maximum reduction in federal income taxes that could be obtained from
deduction of such state and local taxes.
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6. NONCOMPETITION, NONSOLICITATION, AND NONDISCLOSURE COVENANTS.
(a) Rationale for Restrictions. Employee acknowledges that Employee's
services hereunder are of a special, unique, and extraordinary character, and
Employee's position with the Company places Employee in a position of confidence
and trust with customers, suppliers, and other persons and entities with whom
the Company and its Related Entities have a business relationship. The Employee
further acknowledges that the rendering of services under this Agreement will
likely require the disclosure to Employee of Confidential Information (as
defined below) relating to the Company and/or Related Entities. As a
consequence, the Employee agrees that it is reasonable and necessary for the
protection of the goodwill and legitimate business interests of the Company and
Related Entities that the Employee make the covenants contained in this Section
6, that such covenants are a material inducement for the Company to employ the
Employee and to enter into this Agreement, and that the covenants are given as
an integral part of and incident to this Agreement.
(b) Noncompetition and Nonsolicitation Covenants. As used herein, the term
"Restrictive Period" means the time period commencing on the Effective Date of
this Agreement and ending on the first (1st) anniversary of the date on which
the Employee's employment by the Company (or any Related Entity) expires or is
terminated. The Employee agrees that, during the Restrictive Period, the
Employee will not utilize his or her knowledge of the business of the Company or
his or her relationships with investors, suppliers, customers, clients, or
financial institutions to compete with the Company or any of the Related
Entities in any business which is the same as, or substantially similar to, any
business conducted by the Company or any of the Related Entities at any time
during the Restrictive Period (a "Covered Business"). Additionally, the Employee
agrees that the Employee will not engage in any of the following acts anywhere
in the world during the Restrictive Period:
(i) directly or indirectly engage or invest in; own, manage, operate,
finance, control, or participate in the ownership, management,
operation, financing, or control of; be employed by, associated with,
or in any manner connected with; lend the Employee's name or any
similar name to; lend Employee's credit to; or render services or
advice to, any business which competes with a Covered Business;
(ii) intentionally and knowingly assist, promote or encourage any existing
or potential employees, customers, clients, or vendors of the Company
or any Related Entity to terminate, discontinue, or materially reduce
the extent of their relationship with the Company or a Related Entity;
and/or
(iii) directly or indirectly solicit business of the same or similar type
as a Covered Business, from any person or entity known by the Employee
to be a customer or client of the Company, whether or not the Employee
had contact with such person or entity during the Employee's
employment with the Company.
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The Employee acknowledges and agrees that, in light of the unique nature of the
Company's business, the Company will market its products on a worldwide basis
and will compete with various companies and businesses across and world.
Accordingly, the Employee agrees that the geographic scope of the above
covenants is a reasonable means of protecting the Company's (and the Related
Entities') legitimate business interests. Notwithstanding the foregoing
covenants, nothing set forth in this Agreement shall prohibit the Employee from
owning the securities of (i) corporations which are listed on a national
securities exchange or traded in the national over-the-counter market in an
amount which shall not exceed 5% of the outstanding shares of any such
corporation or (ii) any corporation, partnership, firm or other form of business
organization which does not compete with, is not engaged in, and does not carry
on any aspect of, either directly or indirectly through a subsidiary or
otherwise, any Covered Business. Furthermore, nothing set forth in this
Agreement shall prohibit the Employee from working for, consulting with,
investing in, or otherwise assisting a competitor of the Company if the Employee
works for, consults with, invests in, or otherwise assists a division,
subsidiary, or subpart of the competitor that is unrelated to a Covered
Business.
(c) Disclosure of Confidential Information. The Employee acknowledges that
the inventions, innovations, software, trade secrets, business plans, financial
strategies, finances, and all other confidential or proprietary information with
respect to the business and operations of the Company and Related Entities are
valuable, special, and unique assets of the Company. Accordingly, the Employee
agrees not to, at any time whatsoever either during or after the Employee's term
of employment with the Company, disclose, directly or indirectly, to any person
or entity, or use or authorize any person or entity to use, any confidential or
proprietary information with respect to the Company or Related Entities without
the prior written consent of the Company, including, without limitation,
information as to the financial condition, results of operations, identities of
clients or prospective clients, products under development, acquisition
strategies or acquisitions under consideration, pricing or cost information,
marketing strategies or any other information relating to the Company or any of
the Related Entities which could be reasonably regarded as confidential
(collectively referred to as "Confidential Information"). However, the term
"Confidential Information" does not include (i) any information which is or does
become generally available to the public other than as a result of disclosure by
the Employee or any agent or representative of the Employee, (ii) any
information that is independently developed by the Employee or any agent,
representative, or affiliate of the Employee, and (iii) any information that is
disclosed to the Employee on a non-confidential basis if such information is
disclosed to the Employee subsequent to the termination of his employment with
the Company and if the Employee has no reason to believe that such information
is being wrongly disclosed. In addition to the foregoing, Company will be fully
entitled to all of the protections and benefits afforded by the Florida Uniform
Trade Secrets Act and other applicable law.
(d) Legal Proceedings. Notwithstanding the provisions of Section 6(c)
above, the Employee shall be permitted to disclose Confidential Information if
the Employee is legally compelled to make such disclosure or, alternatively, if
such disclosure is necessary for the defense of any legal action brought against
the Employee by the Company or any other party, provided that the Employee must
provide the Company with reasonably prompt notice
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of such legal proceeding so that the Company may seek an appropriate protective
order or other appropriate relief, or waive compliance with the provisions of
this Agreement.
(e) Removal and Return of Proprietary Items. Upon termination of Employee's
employment with the Company by either party (regardless of the reason for
termination), or upon the request of the Company during the term of employment,
the Employee will return to the Company all of the documents and other items
containing Confidential Information in the Employee's possession or subject to
the Employee's control.
(f) Enforcement and Remedies. In the event of any breach of any of the
covenants set forth in this Section 6, the Employee recognizes that the remedies
at law will be inadequate and that in addition to any relief at law which may be
available to the Company for such violation or breach and regardless of any
other provision contained in this Agreement, the Company shall be entitled to
equitable remedies (including an injunction) and such other relief as a court
may grant after considering the intent of this Section 6. Additionally, the
period of time applicable to any covenant set forth in this Section 6 will be
extended by the duration of any violation by Employee of such covenant. In the
event a court of competent jurisdiction determines that any of the covenants set
forth in this Section 6 are excessively broad as to duration, geographic scope,
prohibited activities or otherwise, the parties agree that this covenant shall
be reduced or curtailed to the extent, but only to the extent, necessary to
render it enforceable.
7. EMPLOYEE INVENTIONS.
(a) Definition. For purposes of this Agreement, "Employee Invention" means
any idea, invention, technique, modification, process, or improvement (whether
patentable or not), any industrial design (whether registerable or not), any
mask work, however fixed or encoded, that is suitable to be fixed, embedded or
programmed in a semiconductor product (whether recordable or not), and any work
of authorship (whether or not copyright protection may be obtained for it)
created, conceived, or developed by the Employee, either solely or in
conjunction with others, during the Employee's employment with the Company or
during the six (6) month period following such employment, that relates in any
way to, or is useful in any manner in, the businesses then being conducted or
proposed to be conducted by the Company or any Related Entity.
(b) Ownership of Employee Inventions. Employee agrees and acknowledges that
all Employee Inventions will belong exclusively to the Company and that all
Employee Inventions are works made for hire and the property of the Company,
including any copyrights, patents, semiconductor mask protection, or other
intellectual property rights pertaining thereto. If it is determined that any
such works are not works made for hire, the Employee hereby assigns to the
Company all of the Company's right, title, and interest, including all rights of
copyright, patent, semiconductor mask protection, and other intellectual
property rights, to or in such Employee Inventions. The Employee covenants that
the Employee will promptly:
(i) disclose to the Company in writing any Employee Invention;
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(ii) assign to the Company or to a party designated by the Company, at the
Company's request and without additional compensation, all of the
Employee's right to the Employee Invention for the United States and
all foreign jurisdictions;
(iii) execute and deliver to the Company such applications, assignments,
and other documents as the Company may request in order to apply for
and obtain patents or other registrations with respect to any Employee
Invention in the United States and any foreign jurisdictions;
(iv) sign all other papers necessary to carry out the above obligations;
and
(v) give testimony and render any other assistance in support of the
Company's rights to any Employee Invention.
8. ESSENTIAL AND INDEPENDENT COVENANTS. The Employee's covenants in
Sections 6 and 7 of this Agreement are independent covenants, and the existence
of any claim by the Employee against the Company under this Agreement or
otherwise will not excuse the Employee's breach of any covenant in Section 6
or 7.
9. REPRESENTATIONS AND WARRANTIES BY THE EMPLOYEE. The Employee represents
and warrants to the Company that the execution and delivery by the Employee of
this Agreement do not, and the performance by the Employee of the Employee's
obligations hereunder will not, with or without the giving of notice or the
passage of time, or both: (a) violate any judgment, writ, injunction, or order
of any court, arbitrator, or governmental agency applicable to the Employee, or
(b) conflict with, result in the breach of any provisions of or the termination
of, or constitute a default under, any agreement to which the Employee is a
party or by which the Employee is or may be bound, including, without
limitation, any noncompetition agreement or similar agreement.
10. NOTICES. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when hand-delivered, sent by facsimile transmission (as
long as receipt is acknowledged), or mailed by United States certified or
registered mail, return receipt requested, postage prepaid, addressed to the
address or facsimile number for each party set forth on the signature page
hereto, or to such other address or facsimile number as either party may have
furnished to the other in writing in accordance herewith, except that a notice
of change of address shall be effective only upon receipt.
11. MISCELLANEOUS. No provision of this Agreement may be modified or waived
unless such waiver or modification is agreed to in writing signed by both of the
parties hereto. No waiver by any party hereto of any breach by any other party
hereto shall be deemed a waiver of any similar or dissimilar term or condition
at the same or at any prior or subsequent time. This Agreement is the entire
agreement between the parties hereto with respect to the Employee's employment
by the Company, and there are no agreements or representations, oral or
otherwise, expressed or implied, with respect to or related to the employment of
the
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Employee which are not set forth in this Agreement. This Agreement shall be
binding upon, and inure to the benefit of, the Company, its respective
successors and assigns, and the Employee and Employee's heirs, executors,
administrators and legal representatives. The duties and covenants of the
Employee under this Agreement, being personal, may not be delegated or assigned
by the Employee without the prior written consent of the Company, and any
attempted delegation or assignment without such prior written consent shall be
null and void and without legal effect. The parties agree that if any provision
of this Agreement shall under any circumstances be deemed invalid or
inoperative, the Agreement shall be construed with the invalid or inoperative
provision deleted and the rights and obligations of the parties shall be
construed and enforced accordingly.
12. GOVERNING LAW; RESOLUTION OF DISPUTES. The validity, interpretation,
construction, and performance of this Agreement shall be governed by the laws of
the State of Florida without regard to principles of choice of law or conflicts
of law thereunder. Any action or proceeding seeking to enforce any provision of,
or based on any right arising out of, this Agreement may be brought against
either of the parties in the courts of the State of Florida, County of
Hillsborough, or, if it has or can acquire jurisdiction, in the United States
District Court located in Hillsborough County, Florida, and each of the parties
consents to the jurisdiction of such courts (and of the appropriate appellate
courts) in any such action or proceeding and waives any objection to venue laid
therein. Process in any action or proceeding referred to in the preceding
sentence may be served on either party anywhere in the world. THE PARTIES HEREBY
WAIVE A JURY TRIAL IN ANY LITIGATION ARISING UNDER OR RELATING TO THIS
AGREEMENT.
13. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Agreement may
be effective upon the execution and delivery by any party hereto of facsimile
copies of signature pages hereto duly executed by such party; provided, however,
that any party delivering a facsimile signature page covenants and agrees to
deliver promptly after the date hereof two (2) original copies to the other
party hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
LIQUIDMETAL TECHNOLOGIES
By: Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: President and CEO
Liquidmetal Technologies
00000 Xxxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000 Facsimile
Number: [___________________]
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EMPLOYEE
By: /s/ Xxxx Xxxx
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Printed Name: Xxxx Xxxx
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Address and Facsimile Number:
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11
