1
EXHIBIT 10.17
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into by and between
SpatiaLight, Inc. a New York Corporation (the "Company") and Miles X. Xxxxx
("Xxxxx") as of December 31, 1999 (the "Effective Date").
1. POSITION AND DUTIES:
1.1 The Company has employed Xxxxx in the position of Vice President
Manufacturing/Engineering since October 15, 1998. In this
position, Xxxxx has and will continue to report to the Company's
President.
1.2 Xxxxx agrees to devote his time, energy and skill to his duties
at the Company. These duties shall be commensurate and consistent
with that of the Vice President Manufacturing/Engineering as well
as any other duties that may be assigned to Xxxxx from time to
time. The Company and Xxxxx acknowledge that Xxxxx will be
devoting some of his time to Chronomotion Imaging Applications,
Inc. ("Chronomotion").
2. COMPENSATION:
2.1 Base Salary: Xxxxx will be paid an annual salary of $175,000,
less applicable withholding, in accordance with the Company's
normal payroll procedures. Xxxxx'x salary will be reviewed by the
Board of Directors (the "Board") on approximately an annual
basis, and is subject to an increase adjustment based upon
various factors including, but not limited to Xxxxx'x performance
and the Company's profitability.
2.2 Performance Bonus Plan: Xxxxx will be eligible to participate in
the Company's performance bonus plan (the "Bonus Plan"), and this
bonus will be governed by the terms of the Company's standard
Bonus Plan in effect at the time. Any executive bonus plan shall
be at the discretion of the compensation committee.
2.3 Equity Stake: The Board has approved the issuance to Xxxxx of an
option to purchase a total of 125,000 shares of the Company's
common stock (the "Options") in accordance with Company's Stock
Option Plan (the "Plan"). The Plan provides that fifty (50)
percent of the options vest on November 6, 1999 and the remaining
fifty (50) percent of the options vest on
2
November 5, 2000. Upon the execution of this Agreement the
Options shall be amended to provide that in the event of a Change
of Control of the Company, all of the options issued pursuant to
the Options shall become fully vested as of the date of the
Change of Control. In the event of Xxxxx'x death all Options
shall become fully vested as of that date, and ownership shall be
held by Xxxxx'x beneficiary. On December 31, 1999 the Board
granted an additional 125,000 options which will vest over a
3-year period based upon performance milestones set and agreed
upon by the Compensation Committee of the Board and Xxxxx.
2.4 Additional Provisions. The Options shall be amended to contain,
the following additional provisions: (i) in the event of a Change
of Control (as defined below) of the Company, all of the unvested
shares shall become vested immediately prior to the Change in
Control. For purposes of this Agreement, a "Change of Control"
shall mean an "Ownership Change Event" (as defined below) or a
series of related Ownership Change Events (collectively, the
"Transaction") wherein the stockholders of the Company
immediately before the Transaction do not retain immediately
after the Transaction direct or indirect beneficial ownership of
more than fifty percent (50%) of the total combined voting power
of the outstanding voting stock of the Company or the corporation
or corporations to which the assets of the Company were
transferred (the "Transferee Corporation(s)"), as the case may
be. For purposes of the preceding sentence, indirect beneficial
ownership shall include, without limitation, an interest
resulting from ownership of the voting stock of one or more
corporations which, as a result of the Transaction, own the
Company or the Transferee Corporation(s), as the case may be,
either directly or through one or more subsidiary corporations.
The Board shall have the right to determine whether multiple
sales or exchanges of the voting stock of the Company or multiple
Ownership Change Events are related, and its determination shall
be final, binding and conclusive.
For purpose of this Agreement, an "Ownership Change Event" shall
be deemed to have occurred if any of the following occurs with
respect to the Company:
(a) The direct, indirect sale, exchange, merger or
consolidation in a single or series of related transactions by
the stockholders of the Company of more than fifty percent (50%)
of the voting stock of the Company;
(b) The sale, exchange, or transfer of all or
substantially all of the assets of the Company; or
(c) A liquidation or dissolution of the Company.
3
2.5 Benefits: Xxxxx will be entitled to participate in all of the
Company's benefit plans, as those plans may change from time to
time, on the same terms as all other employees of the Company.
2.6 Vacation: Xxxxx is granted four (4) weeks of paid vacation
yearly.
2.7 Life Insurance: The Company will obtain insurance for Xxxxx in
the amount of three (3) times his annual salary with proceeds
going to his beneficiary in the event of his death.
2.8 Relocation Expenses: The Company shall reimburse Xxxxx for the
reasonable expenses associated with the relocation of his home to
the San Francisco Bay Area. To the extent practicable, the
Company will directly pay the individuals or companies providing
the services described herein. These relocation expenses shall be
limited to 25% of annual salary.
3. TERMINATION
3.1 Terms: Xxxxx'x employment with the Company pursuant to this
Agreement is subject to the provisions regarding termination set
forth in Sections 3.2 and 3.3 and may be terminated by Xxxxx or
the Company at any time. In the event that either party elects to
terminate this Agreement benefits shall be provided as set forth
in Sections 3.2 and 3.3.
3.2 Voluntary Termination: In the event Xxxxx voluntarily resigns
from his employment with the Company, Xxxxx shall be entitled to
no compensation or benefits from the Company other than those
earned under paragraph 2 above, through the date of this
termination.
3.3 Involuntary Termination: In the event of the termination of
Xxxxx'x employment by the Company for the reasons set forth
below, Xxxxx shall be entitled to the following:
a. Termination for Cause: If Xxxxx'x employment is terminated
by the Company for cause as defined below, Xxxxx shall be
entitled to no compensation or benefits from the Company
other than those earned under paragraph 2, through the
date of Xxxxx'x termination.
For the purposes of this Agreement, a termination "for cause"
occurs if Xxxxx'x' employment is terminated for any of the
following reasons:
(1) theft, dishonesty, or falsification of any
employment or Company records;
(2) conviction of a felony or any act involving
moral turpitude;
(3) consistent poor performance, as determined by
the Board;
4
(4) improper disclosure of the Company's
confidential or proprietary information;
(5) any intentional act by Xxxxx that has a material
detrimental effect on the Company's reputation
or business;
(6) Any material breach of this Agreement, which
breach, if curable, is not cured within thirty
(30) days following written notice of such
breach from the Company.
b. Termination for Other Than Cause: If Xxxxx'x employment is
terminated by the Company for any reason other than cause,
Xxxxx shall be entitled to continuation of Xxxxx'x salary
and all other benefits, including, but not limited to,
vesting in all stock options, for nine-months following
the termination of Xxxxx'x employment.
4. TERM OF EMPLOYMENT: Xxxxx'x employment by the Company as set forth herein
shall commence on the date of this agreement and shall continue thereafter for a
period of 1 year unless and otherwise terminated pursuant to provisions of
Section 3 above. Notwithstanding the foregoing, the term shall be automatically
renewed upon the same terms and conditions contained herein, for consecutive
periods of one year each upon expiration of the immediately preceding term
unless and until either party elects not to so renew this agreement by
delivering written notice to the other party not less than 30 days prior to the
end of the term. In the event of a "Change of Control" of the Company, outlined
in Sections 2.4 and 2.5, the terms of this Employment Agreement shall remain in
effect.
5. CONFIDENTIAL AND PROPRIETARY INFORMATION: As a condition of Xxxxx'x
employment with the Company, Xxxxx has signed the Company's proprietary
information and assignment of inventions agreement and Xxxxx has and agrees to
continue to comply with the terms of that agreement.
6. DISPUTE RESOLUTION: In the event of any dispute or claim relating to or
arising out of this Agreement (including, but not limited to, any claims of
breach of contract, wrongful termination or age, sex, race or other
discrimination), Xxxxx and the Company agree that all such disputes shall be
fully and finally resolved by binding arbitration conducted by the American
Arbitration Association in San Francisco, California in accordance with its
National Employment Dispute Resolution rules, as those rules are currently in
effect (and not as they may be modified in the future). Xxxxx acknowledges by
accepting this arbitration provision he is waiving any right to a jury trial in
the event of such a dispute. Provided, however, that this arbitration provision
shall not apply to any disputes or claims relating to or arising out of the
misuse or misappropriation of trade secrets or proprietary information.
5
7. ATTORNEYS' FEES: The prevailing party shall be entitled to recover from the
losing party it's attorney's frees and costs incurred in any action brought to
enforce any right arising out of this Agreement.
8. INTERPRETATION: This Agreement shall be interpreted in accordance with and
governed by the laws of the State of California.
9. ASSIGNMENTS: In view of the personal nature of the services to be performed
Under this Agreement by Xxxxx, Xxxxx shall not have the right to assign or
transfer any of his obligations under this Agreement.
10. ENTIRE AGREEMENT: This Agreement, along with any agreements referred to in
paragraph 2, relating to stock options, and paragraph 5, relating to proprietary
information and assignment of inventions, sets forth the entire agreement
between Xxxxx and the Company regarding the terms and conditions of Xxxxx'x
employment, and supersedes all prior negotiations, representations or agreements
between Xxxxx and the Company regarding Xxxxx'x employment, whether written or
oral.
11. REPRESENTATIONS: Xxxxx acknowledges that he is not relying, and has not
relied, on any promise, representation or statement made by or on behalf of the
Company that is not set forth in this Agreement.
12. MODIFICATION: This Agreement may only be modified or amended by a
supplemental written agreement signed by Xxxxx and an authorized member of the
Board.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year written below.
SPATIALIGHT, INC.
By: /s/ MILES X. XXXXX By: /s/ XXXXXX XXXXX
-------------------------------- ---------------------------------
Miles X. Xxxxx Xxxxxx Xxxxx, Director
By: /s/ XXXXXX XXXXX
---------------------------------
Xxxxxx Xxxxx, Director
