EXHIBIT 10.10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
effective as of October 1, 2001 (the "Effective Date"), by and between
LIQUIDMETAL TECHNOLOGIES, a California corporation (the "Company"), and Xxxxxxx
Xxxxxxx (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 September
30, 2003 (the "Initial Term"). Upon the expiration of the Initial Term, the
Employee's employment with the Company will continue on an "at-will" basis and
may be terminated by Employee or the Company for any reason and at any time,
provided that the terminating party shall provide at least thirty (30) days
prior written notice of the termination to the other party (unless the
termination is pursuant to clause (2), (3), or (4) of Section 5(d), in which
case the Employee's employment may be terminated immediately).
3. DUTIES. Employee will initially serve as Vice Chairman of Technology of
the Company. The Employee will devote Employee's majority of business time,
attention, skill, and energy exclusively to the business of the Company, 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,
Chairman of the Board, President, or Chief Executive Officer 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. At all times, the Employee agrees that the
Employee has read and will abide by, and prospectively will read and abide by,
any employee
handbook, policy, or practice that the Company or Related Entities has or
hereafter adopts with respect to its employees generally.
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 $300,000. 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 or Chief Executive Officer of the
Company not less frequently than annually, and the annual base salary may be
adjusted upward or downward in the sole discretion of the Board of Directors or
Chief Executive Officer. 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 or
Chief Executive Officer of the Company, in their sole discretion.
(c) Other Benefits. 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.
(d) Vacation. The Employee shall be entitled to 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.
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
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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").
In the event of a Termination Without Cause, the Employee shall continue to
receive the Employee's base salary (as then in effect) during the 12-month
period immediately following the effective date of the Termination Without Cause
(the "Severance Period"). In addition to the severance pay described in the
preceding sentence, the Employee shall continue to receive, during the Severance
Period, all employee health and welfare benefits that Employee would have
received during the Severance Period in the absence of such termination.
Employee agrees and acknowledges, however, that Employee will forfeit the right
to receive base salary and benefits during the Severance Period immediately upon
the Employee's breach of any covenant set forth in Section 6 of this Agreement.
Notwithstanding the foregoing, the termination of the Employee's employment
pursuant to the second sentence of Section 2(b) of this Agreement shall not
constitute a Termination Without Cause and shall not give rise to any severance
payment or other benefits pursuant to this Section 5(c).
(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 perform
Employee's duties under this Agreement; (2) dishonesty, misconduct, or unlawful
acts that adversely affect the Company; (3) a material 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 or
any crime involving moral turpitude, fraud, dishonesty, or misrepresentation;
(5) the commission by the Employee of any 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 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), (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), (3), 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, and all payments to the
Employee hereunder shall immediately
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cease and terminate as of such date, except that Employee shall be entitled to
the annual base salary hereunder up to and including the effective date of
termination.
6. 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) 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 second (2nd) anniversary of the date on which the Employee's
employment by the Company (or any Related Entity) expires or is terminated. In
addition, the term "Covered Business" means any business which is the same as,
or similar to, any business conducted by the Company or any of the Related
Entities at any time during the Restrictive Period. 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 assist, promote or encourage any existing or
potential employees, customers, clients, or vendors of the Company or
any Related Entity, as well as any other parties which have a business
relationship with the Company or a Related Entity, to terminate,
discontinue, or reduce the extent of their relationship with the
Company or a Related Entity;
(ii) 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;
(iii) disparage the Company, any Related Entities, and/or any shareholder,
director, officer, employee, or agent of the Company or any Related
Entity; and/or
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(iv) engage in any practice the purpose of which is to evade the provisions
of this Section 6 or commit any act which adversely affects the
Company, any Related Entity, or their respective businesses.
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.
(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 any information which is or shall
become generally available to the public other than as a result of disclosure by
the Employee or by any person or entity which the Employee knows (or which the
Employee reasonably should know) has a duty of confidentiality to the Company or
a Related Entity with respect to such information. In addition to the foregoing,
Company will be fully entitled to all of the protections and benefits afforded
by the California Uniform Trade Secrets Act and other applicable law.
(d) Prevention of Premature Disclosure of Information. The Employee agrees
and acknowledges that, because the success of the Company is heavily dependent
upon maintaining the secrecy of the Company's Confidential Information and
preventing the premature public disclosure of the Company's proprietary
information and technology, the Employee agrees to use the Employee's best
efforts and his or her highest degree of care, diligence, and prudence to ensure
that no Confidential Information prematurely leaks or otherwise prematurely
makes its way into the public domain or any public forum, including, without
limitation, into any trade publications, internet chat rooms, or other similar
forums. In the event that the Employee becomes aware of any premature leak of
Confidential Information or becomes aware of any circumstances creating a risk
of such a leak, the Employee shall immediately inform the Board of Directors,
the Chief Executive Officer, or the Employee's supervisor of such leak or of
such circumstances.
(e) Removal and Return of Proprietary Items. The Employee will not remove
from the Company's premises (except to the extent such removal is for purposes
of the
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performance of the Employee's duties at home or while traveling, or except as
otherwise specifically authorized by the Company) any document, record,
notebook, plan, model, component, device, or computer software or code, whether
embodied in a disk or in any other form (collectively, the "Proprietary Items").
The Employee recognizes that, as between the Company and the Employee, all of
the Proprietary Items, whether or not developed by the Employee, are the
exclusive property of the Company. 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 Proprietary Items in the Employee's possession
or subject to the Employee's control, and the Employee shall not retain any
copies, abstracts, sketches, or other physical embodiment of any of the
Proprietary Items.
(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 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.
Notwithstanding the foregoing, the term "Employee Invention") shall not include
any idea, invention, process, or improvement if (i) it is conceived by Employee
as a direct and sole result of his activities as principal investigator for the
Caltech Research Projects (as defined in Section 9 below), and (ii) the
California Institute of Technology or any other sponsor of the Caltech Research
Projects (such as DARPA or NASA) has exclusive rights to such invention, process
or improvement pursuant to the policies of the California Institute of
Technology or applicable law.
(b) Ownership of Employee Inventions. Employee agrees and acknowledges that
all Employee Inventions will belong exclusively to the Company and that all
Employee
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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;
(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. Notwithstanding
the foregoing, the Company agrees and acknowledges that Employee is on a
leave-of-absence from the California Institute of Technology and, during the
term of the Employee's employment with the Company, the Employee will continue
to act as principal investigator for those research projects at the California
Institute of Technology that Employee was principal investigator for as of the
Effective Date (the "Caltech Research Projects"). These Caltech projects include
those supported by DARPA, NASA, DOE, and other government agencies. The employee
declares that he has certain obligations to California Institute of Technology
as set forward in the
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attached memorandum of understanding (MOU). The company acknowledges and accepts
the declaration of these obligations as set forward in the MOU.
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 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 California 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 California,
County of Orange, or, if it has or can acquire jurisdiction, in the United
States District Court located in Orange County, California, 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
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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: /s/ Xxxx Xxxx
------------------------------------------------
Xxxx Xxxx, President and Chief Executive Officer
Liquidmetal Technologies 00000
Xxxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000 Facsimile
Number: [___________________]
EMPLOYEE
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Address and Facsimile Number:
137-38 Calif. Inst. of Tech.
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Xxxxxxxx, XX 00000
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(Fax: (000) 000-0000
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October 1, 2001
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