EXHIBIT 10.13
KEY EMPLOYEE AGREEMENT
This Key Employee Agreement is made and entered into as of February 25,
1999, by and between Videonics, Inc., a California corporation ("Videonics") and
Xxxx Xxxxxxxx, an individual ("Employee").
R E C I T A L S
A. Employee is employed as an officer of Videonics and has been granted
options to purchase shares of Videonics Common Stock as set forth on Exhibit A
attached hereto (individually, an "Option" and collectively, the "Options")
under Videonics' 1987 Stock Option Plan and/or Amended 1996 Stock Option Plan
(the "Plans").
B. Videonics and Employee desire to enter into this Agreement to provide
an incentive for Employee to continue providing services to Videonics.
C. The Board of Directors has approved and authorized the entry into
Agreement with Employee.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby
covenant and agree as follows:
ARTICLE I
ACCELERATION OF OPTION VESTING
1.1 Accelerated Vesting of Options. Each Option is hereby amended
to provide that it shall accelerate so that Employee shall have the right, at
all times until the expiration or earlier termination of such Option, to
exercise the unexercised portion of the Option, including the portions thereof
which would otherwise not be exercisable, from and after any Involuntary
Termination (as defined below) within twelve (12) months after a Change in
Control (as defined below) that occurs while Employee is an employee of
Videonics, any of its subsidiaries or any entity which assumes the rights and
duties of Videonics under the Plans.
1.2 Definitions.
(a) "Change of Control" shall mean any merger, sale,
consolidation, reorganization, recapitalization or other business combination
with, to, or into one or more third parties which after such event Videonics is
not the surviving entity or as a result of which Videonics' shareholders, by
virtue of their shareholdings in Videonics immediately prior to such merger,
sale, consolidation, reorganization, recapitalization or other business
combination do not own directly or indirectly own more than fifty percent (50%)
of the surviving entity immediately after such transaction.
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(b)"Involuntary Termination" shall mean any termination of Employee's
employment with Videonics, any of its subsidiaries or any entity which
assumes the rights and duties of Videonics under the Plans, for reasons
other than (1) Employee's death, (2) Employee's total and permanent
disability, (3) Employee's voluntary termination of employment other
than for Good Reason (as defined below) or (4) Termination for Cause
(as defined below).
(c) "Good Reason" shall mean a reduction in Employee's base
compensation or a material reduction in benefits, a material change in
responsibilities or duties, or a requirement to relocate, except for office
relocations that would not increase Employee's one-way commute distance by more
than forty (40) miles.
(d) "Termination for Cause" shall mean (i) Employee's continued failure
to perform his duties in good faith to the best of his ability after receipt of
appropriate warnings consistent with the performance review policies in place
and applicable to Employee at such time, (ii) Employee's engaging in willful
misconduct which is demonstrably and materially injurious to Videonics, any of
its subsidiaries or any entity which assumes the rights and duties of Videonics
under the Plans, (iii) Employee's conviction of a felony or (iv) Employee's
commission of an act of fraud upon Videonics, any of its subsidiaries or any
entity which assumes the rights and duties of Videonics under the Plans.
ARTICLE II
NOT EMPLOYMENT CONTRACT
Employee shall continue to be an "at will" employee of Videonics.
Nothing in this Agreement shall confer upon Employee any right to continue in
the employ of Videonics or shall interfere with or restrict in any way the
rights of Videonics, which are hereby expressly reserved, to discharge the
employee at any time for any reason whatsoever, with or without cause, subject
to the provisions of applicable law. This is not an employment contract.
ARTICLE III
NO ASSIGNMENT
(a) This Agreement is personal to each of the parties hereto. No party
may assign or delegate any rights or obligations hereunder without first
obtaining the written consent of the other party hereto; provided, that in the
case of Videonics, such rights and obligations shall inure to the benefit of and
be binding upon any successor corporation or entity with which Videonics may be
merged or otherwise combined or which may acquire Videonics' assets in whole or
substantial part.
(b) This Agreement shall inure to the benefit of and be enforceable by
Employee and his personal or legal representatives, executors, administrators,
successors, heirs, distributees, devises and legatees. If Employee should die,
payments due to Employee hereunder shall be paid in accordance with the terms of
this Agreement to his devisee, legatee or designee or, if there is no such
designee, to his estate, unless otherwise provided in the Options.
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ARTICLE IV
GENERAL PROVISIONS
4.1 Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties. Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
4.2 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
4.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.4 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
4.5 Notices. All notices and other communications required or permitted
hereunder shall be in writing, shall be effective when given, and shall in any
event be deemed to be given (a) five (5) days after deposit with the U.S. Postal
Service or other applicable postal service, if delivered by first class mail,
postage prepaid, (b) upon delivery, if delivered by hand, (c) one business day
after the business day of deposit with Federal Express or similar overnight
courier, freight prepaid, or (d) one day after the business day of delivery by
facsimile transmission, if deliverable by facsimile transmission, with copy by
first class mail, postage prepaid, and shall be addressed, to the parties at the
respective addresses set forth on the signature page of this Agreement or at
such other address as such party may designate by ten (10) days' advance written
notice to the other parties hereto.
4.6 Amendments and Waivers. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Employee and Videonics.
4.7 Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provisions were so excluded and shall be enforceable in accordance with its
terms.
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4.8 Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement among the parties with respect to the
subject matter hereof and no party shall be liable or bound to any other party
in any manner by any warranties, representations, or covenants except as
specifically set forth herein or therein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
"VIDEONICS"
VIDEONICS, INC.
By: /s/ Xxxxxxx D'Addio
---------------------
Name: Xxxxxxx D'Addio
Title: Chief Executive Officer
Address: 0000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
"EMPLOYEE"
/s/ Xxxx Xxxxxxxx
-----------------
Print Name: Xxxx Xxxxxxxx
Address:
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EXHIBIT A
Date of Option Grant Number of Shares Exercise Price Termination Date
-------------------- ---------------- -------------- ----------------
1/30/98 6,000 $2.50 1/30/08
6/24/98 6,000 $1.50 6/24/08
6/24/98 10,504 $1.50 6/24/08
2/16/99 50,000 $0.78 2/16/09
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