AGREEMENT
Exhibit 10.72
AGREEMENT
AGREEMENT (this “Agreement”) dated as of September 30, 2007 (the “Effective Date”), by and
between SYNTAX-BRILLIAN CORPORATION, a Delaware corporation (the “Company”), and XXXXXXX X.
XXXXXXXX, XX. (“Xxxxxxxx”).
RECITALS
X. Xxxxxxxx is employed under an employment agreement (the “Employment Agreement”).
B. On September 30, 2007, the Board of Directors appointed Xxxxxxxx as Executive Chairman of
the Board of Directors of the Company.
C. The Company and Xxxxxxxx desire to confirm the terms and conditions of the engagement of
Xxxxxxxx as Executive Chairman of the Board of Directors.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, terms, covenants, and conditions set
forth herein and the performance of each, it is hereby agreed as follows:
1. Duties.
(a) Engagement. The Company hereby engages Xxxxxxxx, and Xxxxxxxx hereby agrees to act, as
the Executive Chairman of the Board of Directors of the Company. As such, Xxxxxxxx shall have
responsibilities, duties, and authority reasonably accorded to, expected of, and consistent with
Xxxxxxxx’x position. Xxxxxxxx hereby accepts this engagement upon the terms and conditions herein
contained. Xxxxxxxx shall provide such services to the Company’s subsidiaries as may be requested
from time to time by the Board of Directors without additional compensation.
(b) Policies. Xxxxxxxx shall faithfully adhere to, execute, and fulfill all lawful policies
established by the Company.
2. Compensation. For all services rendered by Xxxxxxxx, the Company shall compensate Xxxxxxxx as follows:
(a) Base Salary. Effective on the Effective Date, the base salary payable to Xxxxxxxx shall
be $340,000 per year, payable on a regular basis in accordance with the Company’s standard payroll
procedures, but not less than monthly.
(b) Stock Options. All stock options held by Xxxxxxxx shall vest on the date of this
Agreement and shall remain in full force and effect during the term of Xxxxxxxx’x engagement under
this Agreement.
(c) Perquisites, Benefits, and Other Compensation. Xxxxxxxx shall be entitled to receive
additional benefits and compensation from the Company in such form and to such extent as specified
below:
(i) Insurance Coverage. Payment of all premiums for coverage for Xxxxxxxx and Xxxxxxxx’x
dependent family members under all health, hospitalization, disability, dental, life, and other
insurance plans that the Company may have in effect from time to time, with the benefits provided
to Xxxxxxxx to be on terms no less favorable than the benefits provided to other Company executive
officers but with any generally applicable limitations, such as co-payment provisions.
(ii) Reimbursement for Expenses. Reimbursement for business travel and other out-of-pocket
expenses reasonably incurred by Xxxxxxxx in the performance of Xxxxxxxx’x services under this
Agreement. All reimbursable expenses shall be appropriately documented in reasonable detail by
Xxxxxxxx upon submission of any request for reimbursement and shall be in a format and manner
consistent with the Company’s expense reporting policy.
(iii) Vacation. Paid vacation in accordance with the applicable policy of the Company as in
effect from time to time for senior executives, but in no event shall Xxxxxxxx be entitled to less
than two weeks paid vacation per year.
(iv) Other Perquisites. The Company shall provide Xxxxxxxx with other executive perquisites
as may be made available to or deemed appropriate for Xxxxxxxx by the Board or a committee of the
Board and participation in all other Company-wide employee benefits as are available to the
Company’s executives from time to time, including any plans, programs, or arrangements relating to
retirement, deferred compensation, profit sharing, 401(k), and employee stock ownership
3. Non-Competition Agreement.
(a) Non-Competition. Notwithstanding the provisions of California law, including, without
limitation, Bus. & Prof. Code Secs. 16600 et. seq. and 17200 et. sec., the parties agree that,
during the period of Xxxxxxxx’x engagement by the Company, and for a period equal to the time
during or for which payments are being made by the Company to Xxxxxxxx in accordance with this
Agreement, Xxxxxxxx shall not, directly or indirectly, for himself or on behalf of or in
conjunction with any other person:
(i) Other Activities. Engage, as an officer, director, shareholder, owner, principal,
partner, lender, joint venturer, employee, independent contractor, consultant, advisor, or sales
representative, in any Competitive Business within the Restricted Territory;
(ii) Solicitation of Employees. Call upon any person who is, at that time, within the
Restricted Territory, an employee of the Company or any of its subsidiaries, in a managerial or
supervisory capacity for the purpose or with the intent of enticing such employee away from or out
of the employ of the Company or any of its subsidiaries;
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(iii) Solicitation of Customers. Call upon any person who is, at that time, or who has been,
within one year prior to that time, a customer of the Company or any of its subsidiaries, within
the Restricted Territory for the purpose of soliciting or selling products or services in direct
competition with the Company or any of its subsidiaries within the Restricted Territory;
(iv) Solicitation of Acquisition Candidates. Call upon any prospective acquisition candidate,
on Xxxxxxxx’x own behalf or on behalf of any person, which candidate was, to Xxxxxxxx’x knowledge
after due inquiry, either called upon by the Company, or for which the Company made an acquisition
analysis, for the purpose of acquiring such candidate.
(b) Certain Definitions. As used in this Agreement, the following terms shall have the
meanings ascribed to them:
(i) Competitive Business shall mean any business that is the same as, similar to, or in direct
competition with the business of the Company;
(ii) person shall mean any individual, corporation, limited liability company, partnership,
firm, or other business of whatever nature;
(iii) Restricted Territory shall mean any jurisdiction in which the Company or any subsidiary
of the Company maintains any facilities, sells any products, or provides any services; and
(iv) subsidiary shall mean the Company’s consolidated subsidiaries, including corporations,
partnerships, limited liability companies, and any other business organization in which the Company
holds at least a fifty percent equity interest.
(c) Enforcement. Because of the difficulty of measuring economic losses to the Company as a
result of a breach of the foregoing covenants in this paragraph 3, and because of the immediate and
irreparable damage that could be caused to the Company for which it would have no other adequate
remedy, Xxxxxxxx agrees that the foregoing covenants may be enforced by the Company in the event of
breach by Xxxxxxxx, by injunctions and restraining orders.
(d) Reasonable Restraint. In agreeing to the period of non-competition as set forth herein,
Xxxxxxxx acknowledges that he has had the opportunity to speak with counsel of his choice in
connection with the force and effect of this waiver, and that he is aware that he is waiving rights
under California law to contest the imposition of a non-competition agreement. In agreeing to be
bound hereby, Xxxxxxxx is accepting the consideration extended to him in exchange for a knowing
waiver of his rights, and as full and complete consideration for this waiver, and acknowledges the
adequacy of such consideration. Both parties agree that Xxxxxxxx’x agreement to this term
constitutes a substantial and material term to the Company, without which the Company would not
enter into this Agreement or extend this offer of engagement to Xxxxxxxx. Xxxxxxxx agrees that the
Company may seek and secure an injunction against Xxxxxxxx in order to enforce the terms hereof in
the event that Xxxxxxxx breaches this provision. Xxxxxxxx acknowledges that the scope of the
non-competition clause is reasonable
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in scope and will not preclude him from seeking gainful employment in alternative fields. To
the extent that any court of competent jurisdiction determines that the non-competition provisions
are unreasonable, it is the intent of the parties to enforce the terms hereof to the full extent
held reasonable.
(e) Other Activities. It is further agreed by the parties that, in the event that Xxxxxxxx
shall cease to be engaged hereunder and enters into a business or pursues other activities not in
competition with the Company (including the Company’s subsidiaries), or similar activities or
business in locations, the operation of which, under such circumstances, does not violate this
paragraph 3, and in any event such new business, activities, or location are not in violation of
this paragraph 3 or of Xxxxxxxx’x obligations under this paragraph 3, if any, Xxxxxxxx shall not be
chargeable with a violation of this paragraph 3 if the Company (including the Company’s
subsidiaries) shall thereafter enter the same, similar, or a competitive (i) business, (ii) course
of activities, or (iii) location, as applicable.
(f) Separate Covenants. The covenants in this paragraph 3 are severable and separate, and the
unenforceability of any specific covenant shall not affect the provisions of any other covenant.
Moreover, in the event any court of competent jurisdiction shall determine that the scope, time, or
territorial restrictions set forth are unreasonable, then it is the intention of the parties that
such restrictions be enforced to the fullest extent that the court deems reasonable, and the
Agreement shall thereby be reformed.
(g) Independent Agreement. All of the covenants in this paragraph 3 shall be construed as an
agreement independent of any other provision in this Agreement, and the existence of any claim or
cause of action of Xxxxxxxx against the Company, whether predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement by the Company of such covenants. It is
specifically agreed that the period following termination of employment stated at the beginning of
this paragraph 3, during which the agreements and covenants of Xxxxxxxx made in this paragraph 3
shall be effective, shall be computed by excluding from such computation any time during which
Xxxxxxxx is in violation of any provision of this paragraph 3.
4. Term; Termination; Rights on Termination.
(a) Term. The term of Xxxxxxxx’x engagement under this Agreement (the “Term”) shall be from
the Effective Date until the date that is two years from the Effective Date. Following the end of
the Term, Xxxxxxxx shall provide consulting services to the Company involving not more than ten
hours in any month during which period Xxxxxxxx’x options shall remain in full force and effect.
(b) Termination. Xxxxxxxx’x engagement under this Agreement may be terminated in any one of
the followings ways:
(i) Death of Xxxxxxxx. The engagement of Xxxxxxxx shall terminate immediately upon Xxxxxxxx’x
death provided that the Company shall, for a period of 12 months following such death, pay to the
estate of Xxxxxxxx an amount equal to Xxxxxxxx’x base salary and continue to pay all premiums for
coverage for Xxxxxxxx’x dependent family members
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under all health, hospitalization, disability, dental, life, and other insurance plans that
the Company maintained at the time of Xxxxxxxx’x death.
(ii) Disability of Xxxxxxxx. If, as a result of incapacity due to physical or mental illness
or injury, Xxxxxxxx shall have been absent from Xxxxxxxx’x full-time duties hereunder for six
consecutive months, then 30 days after giving written notice to Xxxxxxxx (which notice may occur
before or after the end of such six month-period, but which shall not be effective earlier than the
last day of such six month-period), the Company may terminate Xxxxxxxx’x engagement provided
Xxxxxxxx is unable to resume Xxxxxxxx’x full-time duties at the conclusion of such notice period.
Also, Xxxxxxxx may terminate Xxxxxxxx’x engagement if Xxxxxxxx’x health should become impaired to
an extent that makes the continued performance of Xxxxxxxx’x duties hereunder hazardous to
Xxxxxxxx’x physical or mental health or Xxxxxxxx’x life, provided that Xxxxxxxx shall have
furnished the Company with a written statement from a qualified doctor to such effect and provided,
further, that, at the Company’s request made within 10 days of the date of such written statement,
Xxxxxxxx shall submit to an examination by a doctor selected by the Company who is reasonably
acceptable to Xxxxxxxx or Xxxxxxxx’x doctor and such doctor shall have concurred in the conclusion
of Xxxxxxxx’x doctor. In the event Xxxxxxxx’x engagement under this Agreement is terminated as a
result of Xxxxxxxx’x disability, Xxxxxxxx shall receive from the Company, in a lump-sum payment due
within 10 days of the effective date of such termination, an amount equal to the base salary
payable to Xxxxxxxx pursuant to paragraph 2(a) of this Agreement, for the lesser of the time period
then remaining under the Term or one year. The disability benefits provided for in this Agreement
are independent of any disability insurance benefits that Xxxxxxxx receives.
(c) Payments to Termination Date. Upon termination of Xxxxxxxx’x engagement under this
Agreement for any reason provided above, Xxxxxxxx shall be entitled to receive all compensation
earned and all benefits and reimbursements due through the effective date of termination.
Additional compensation subsequent to termination, if any, will be due and payable to Xxxxxxxx only
to the extent and in the manner expressly provided above. All other rights and obligations of the
Company and Xxxxxxxx under this Agreement shall cease as of the effective date of termination,
except that the Company’s obligations under paragraph 8 (relating to indemnification of Xxxxxxxx)
and Xxxxxxxx’x obligations under paragraph 3 (relating to non-competition and non-solicitation, as
applicable), paragraph 5 (relating to return of Company property), paragraph 6 (relating to
inventions), and paragraph 7 (relating to trade secrets).
(d) Mitigation. In the event Xxxxxxxx commences employment with a third party during the
Term, the Company shall continue to pay Xxxxxxxx’x compensation under paragraph 2(a) for the lesser
of the time period then remaining under the Term or six months.
5. Return of Company Property. All records, designs, patents, business plans, financial
statements, manuals, memoranda, lists, and other property delivered to or compiled by Xxxxxxxx by
or on behalf of the Company (or its subsidiaries) or its representatives, vendors, or customers
that pertain to the business of the Company (or its subsidiaries) shall be and remain the property
of the Company and be subject at all times to its discretion and control. Likewise, all
correspondence, reports, records, charts, advertising materials, and other similar data pertaining
to the business, activities, or future plans of the Company (or its subsidiaries) that
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is collected by Xxxxxxxx shall be delivered promptly to the Company without request by it upon
termination of Xxxxxxxx’x employment.
6. Inventions. Xxxxxxxx shall disclose promptly to the Company any and all significant
conceptions and ideas for inventions, improvements, and valuable discoveries, whether patentable or
not, which are conceived or made by Xxxxxxxx, solely or jointly with another, during the period of
engagement, and which are directly related to the business or activities of the Company (or its
subsidiaries), and which Xxxxxxxx conceives as a result of Xxxxxxxx’x engagement by the Company.
Xxxxxxxx hereby assigns and agrees to assign all Xxxxxxxx’x interests therein to the Company or its
nominee. Whenever requested to do so by the Company, Xxxxxxxx shall execute any and all
applications, assignments, and other instruments that the Company shall deem necessary to apply for
and obtain Letters Patent of the United States or any foreign country or to otherwise protect the
Company’s interest therein.
7. Trade Secrets. Xxxxxxxx agrees that Xxxxxxxx will not, during or after the period of
engagement under this Agreement, disclose the specific terms of the Company’s relationships or
agreements with its respective significant vendors or customers, or any other significant and
material trade secret of the Company, whether in existence or proposed, to any person, firm,
partnership, corporation, or business for any reason or purpose whatsoever.
8. Indemnification. In the event Xxxxxxxx is made a party to any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative
(other than an action by the Company against Xxxxxxxx), by reason of the fact that Xxxxxxxx is or
was performing services under this Agreement, then the Company shall indemnify Xxxxxxxx against all
expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement, as actually
and reasonably incurred by Xxxxxxxx in connection therewith to the maximum extent permitted by
applicable law. The advancement of expenses shall be mandatory. In the event that both Xxxxxxxx
and the Company are made a party to the same third-party action, complaint, suit, or proceeding,
the Company agrees to engage competent legal representation, and Xxxxxxxx agrees to use the same
representation, provided that if counsel selected by the Company shall have a conflict of interest
that prevents such counsel from representing Xxxxxxxx, Xxxxxxxx may engage separate counsel and the
Company shall pay all attorneys’ fees of such separate counsel. Further, while Xxxxxxxx is
expected at all times to use Xxxxxxxx’x best efforts to faithfully discharge Xxxxxxxx’x duties
under this Agreement, Xxxxxxxx cannot be held liable to the Company for errors or omissions made in
good faith if Xxxxxxxx has not exhibited gross, willful, and wanton negligence and misconduct or
performed criminal and fraudulent acts that materially damage the business of the Company.
Notwithstanding this paragraph 8, the provision of any written indemnification agreement applicable
to the directors and officers of the Company to which Xxxxxxxx shall be a party shall apply rather
than this paragraph 8 to the extent inconsistent with this paragraph 8. Xxxxxxxx shall cooperate
with the Company without additional compensation in any litigation involving the Company during the
Term.
9. Nondisparagement. The Company and its officers or directors on the one hand and Xxxxxxxx
on the other hand shall not disparage the other. Xxxxxxxx shall cooperate in any litigation
involving the Company.
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10. Assignment; Binding Effect. Xxxxxxxx understands that Xxxxxxxx is being engaged by the
Company on the basis of Xxxxxxxx’x personal qualifications, experience, and skills. Xxxxxxxx
agrees, therefore, Xxxxxxxx cannot assign all or any portion of Xxxxxxxx’x performance under this
Agreement. Subject to the preceding two sentences and the express provisions of paragraph 11
below, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the
parties hereto and their respective heirs, legal representatives, successors, and assigns.
11. Complete Agreement. This Agreement replaces the Employment Agreement, which shall have no
further force and effect. This Agreement is not a promise of future employment. Except as
specifically provided herein, Xxxxxxxx has no oral representations, understandings, or agreements
with the Company or any of its officers, directors, or representatives covering the same subject
matter as this Agreement. This written Agreement is the final, complete, and exclusive statement
and expression of the agreement between the Company and Xxxxxxxx and of all the terms of this
Agreement, and it cannot be varied, contradicted, or supplemented by evidence of any prior or
contemporaneous oral or written agreements. This written Agreement may not be later modified
except by a further writing signed by a duly authorized officer of the Company and Xxxxxxxx, and no
term of this Agreement may be waived except by writing signed by the party waiving the benefit of
such term. This Agreement hereby supersedes any other employment agreements or understandings,
written or oral, between the Company and Xxxxxxxx.
12. Notice. Whenever any notice is required hereunder, it shall be given in writing addressed
as follows:
| To the Company: | 0000 X. Xxxxxx Xxxxx | |||
| Xxxxx, Xxxxxxx 00000 | ||||
| Attention: Xxxx Xxxxxxx | ||||
| To Xxxxxxxx: | To the residence address of Xxxxxxxx | |||
| as shown in the records of the Company |
Notice shall be deemed given and effective on the earlier of three days after the deposit in
the U.S. mail of a writing addressed as above and sent first class mail, certified, return receipt
requested, or when actually received. Either party may change the address for notice by notifying
the other party of such change in accordance with this paragraph 12.
13. Severability; Headings. If any portion of this Agreement is held invalid or inoperative,
the other portions of this Agreement shall be deemed valid and operative and, so far as is
reasonable and possible, effect shall be given to the intent manifested by the portion held invalid
or inoperative. The paragraph headings herein are for reference purposes only and are not intended
in any way to describe, interpret, define or limit the extent or intent of the Agreement or of any
part hereof.
14. No Participation in Severance Plans. Except as contemplated by this Agreement, Xxxxxxxx
acknowledges and agrees that the compensation and other benefits set forth in this Agreement are
and shall be in lieu of any compensation or other benefits that may otherwise be payable to or on
behalf of Xxxxxxxx pursuant to the terms of any severance pay
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arrangement of the Company or any affiliate thereof, or any other similar arrangement of the
Company or any affiliates thereof providing for benefits upon involuntary termination of
employment.
15. Governing Law. This Agreement shall in all respects be construed according to the laws of
the state of Arizona, notwithstanding the conflict of laws provisions of such state.
16. Counterparts; Facsimile Signatures. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall constitute the same
agreement. This Agreement may be executed by facsimile, PDF, or other electronic means.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| SYNTAX-BRILLIAN CORPORATION | ||||||
| By: Name: |
/s/ Xxxxx Xx
|
|||||
| Its: | Chief Executive Officer | |||||
| XXXXXXXX: | ||||||
| /s/ Xxxxxxx X. Xxxxxxxx, Xx. | ||||||
| Xxxxxxx X. Xxxxxxxx, Xx. | ||||||
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