Tier One
AGREEMENT REGARDING
TERMINATION OF EMPLOYMENT CONTRACT
This Agreement Regarding Termination of Employment Contract ("Agreement")
is entered into as of this 21st day of December, 2001 by and between __________
("Executive"), on the one hand, and Aura Systems, Inc., a Delaware corporation
("Company"), on the other hand (collectively, the "Parties").
RECITALS
WHEREAS, Executive has been employed by the Company as _______________,
pursuant to an employment agreement with the Company dated March 5, 1998 (the
"Employment Agreement");
WHEREAS, Executive and the Company wish to voluntarily terminate
Executive's Employment Agreement and make Executive an at-will employee of the
Company effective December 21, 2001;
WHEREAS, pursuant to the terms of the Employment Agreement Executive is
entitled to receive a severance payment upon such termination of the Employment
Agreement; and
WHEREAS, the Company and Executive has determined that it would be in the
best interest of Executive, the Company and its shareholders to offer Executive
a buyout of the Employment Agreement and the severance package set forth herein,
in exchange for covenants and agreements contained herein and in lieu of any
severance payment Executive would otherwise be entitled to receive under the
Employment Agreement.
WHEREAS, Executive and the Compensation Committee of the Board of Directors
have negotiated the terms and conditions of this Agreement, which Agreement has
been approved by the Board of Directors of the Company.
NOW THEREFORE, in consideration of the promises and mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are expressly acknowledged, the Parties agree and promise
as follows:
1. TERMINATION OF EXECUTIVE'S EMPLOYMENT AGREEMENT.
Pursuant to this Agreement, Executive's Employment Agreement with the
Company is terminated effective December 21, 2001 (the "Term Date"). Executive
shall continue as an at-will employee of the Company until the Company or
Executive terminates such at-will relationship (the "Separation Date").
2. BUYOUT AND SEVERANCE PAYMENT.
In consideration of Executive's covenants and agreements contained herein,
the Company shall pay Executive as a severance benefit (the "Severance Benefit")
the following:
A. Tier One Buy-Out Stock Option
The Company shall grant to the Executive an option to purchase that number
of shares of Common Stock of the Company (the "Stock") equal to the quotient of
(x) three (3) times the Executive's Base Salary (as defined in the Employment
Agreement) divided by (y) $0.32 multiplied by (z) two (2), (the "Buy-Out Stock
Option"), which option shall have an exercise price equal to $0.55 per share.
The Buy-Out Stock Option shall vest and become exercisable over a ten (10) year
period from the date of grant, with (i) one-third (1/3) of the total shares
represented by the Buy-Out Stock Option (the "Option Shares") vesting and
becoming exercisable after the expiration of six (6) months from the date of
this Agreement (the "First Vesting Date"), and (ii) two-thirds (2/3) of the
Option Shares vesting twelve (12) months after the First Vesting Date. The
Buy-Out Stock Option shall be exercisable, to the extent vested, for the full
ten (10) year term of the option without regard to the Executive's status as an
employee of the Company. The Buy-Out Stock Option shall be subject to such other
terms as evidenced by a stock option agreement entered into between Executive
and the Company and attached hereto. The Company shall grant the Buy-Out Stock
Option pursuant to a shareholder-approved option plan (a "Company Option Plan"),
and to the extent of any shortfall where no additional Stock is available for
grant of options under any Company Option Plan, then in the form of a warrant to
purchase Stock, outside of any Company Option Plan; provided, however, that if
the Company shall grant the Executive a warrant, the Executive shall be entitled
to receive any piggyback registration rights customarily offered to similarly
situated holders of warrants to purchase Stock.
B. Medical Benefits
Executive shall receive continued medical benefits for a period of three
(3) years following termination of employment or be entitled to receive a
payment in the form of cash in lieu of such continuation of medical benefits;
provided, that the Company shall not be obligated to pay a premium or incur any
costs related to the provision of such continued coverage in excess of one
thousand dollars ($1,000.00) per month for such three (3) year period. The
medical benefits shall be substantially similar to the medical benefits
Executive received from the Company prior to termination of employment.
C. Limitation of Benefits
Except for (i) the Severance Benefit and (ii) Executive's salary and all
other compensation through the Separation Date, including any earned but unpaid
vacation pay, Executive shall not be entitled to receive any other compensation
or benefits of any sort including, without limitation, salary, vacation,
bonuses, stock options, short-term or long-term disability benefits, health care
coverage and any severance Executive might otherwise be entitled to received
under the Employment Agreement from the Company, its affiliates, or their
respective partners, principals, officers, directors, shareholders, managers,
employees, agents, representatives, or insurance companies, or their respective
predecessors, successors or assigns at any time.
3. NO DISPARAGEMENTS.
Executive and the Company agree that neither Executive nor the Company
shall make any oral or written, public or private, statements that are
disparaging of Executive or the Company, its affiliates, or their respective
partners, principals, officers, directors, shareholders, managers, employees,
agents, representatives, or their respective predecessors, successors or assigns
at any time; provided, however, nothing in this Section 3 shall preclude
Executive or the Company from making truthful factual statements regarding
Executive or former officers, directors or employees of the Company.
4. NON-COMPETITION.
A. For a period of three (3) years from the Separation Date, Executive
shall not, directly or indirectly, without the prior written consent of the
Company, provide consultative services or otherwise provide services to (whether
as an employee or a consultant, with or without pay), own, manage, operate,
join, control, participate in, or be connected with (as a stockholder, partner,
or otherwise), any business, individual, partner, firm, corporation, or other
entity that is a competitor of the Company, its subsidiaries or affiliates in
any business now conducted, or conducted at any time through the Separation
Date, by the Company, its subsidiaries or affiliates (each such competitor a
"Competitor of the Company"). Executive and the Company acknowledge and agree
that the business of the Company extends throughout the United States, Europe
and Asia, and that the terms of the non-competition agreement set forth herein
shall apply throughout the United States, Europe and Xxxx
X. Non-Solicitation of Customers and Suppliers. For a period of three years
from the Separation Date, Executive shall not, directly or indirectly, influence
or attempt to influence customers or suppliers of the Company, or any of its
subsidiaries or affiliates, to divert their business to any Competitor of the
Company.
C. Non-Solicitation of Employees. Executive recognizes that he possesses
and will possess confidential information about other employees of the Company,
its subsidiaries and affiliates, relating to their education, experience,
skills, abilities, compensation and benefits, and inter-personal relationships
with customers of the Company, its subsidiaries and affiliates. Executive
recognizes that the information he possesses and will possess about these other
employees is not generally known, is of substantial value to the Company, its
subsidiaries and affiliates in developing their business and in securing and
retaining customers, and has been and will be acquired by him because of his
business position with the Company, its subsidiaries and affiliates. Executive
agrees that for a period of three (3) years from the Separation Date, he will
not, directly or indirectly, solicit or recruit any employee of the Company, its
subsidiaries and affiliates for the purpose of being employed by him or by any
company on whose behalf he is acting as an agent, representative or employee and
that he will not convey any such confidential information or trade secrets about
other employees of the Company, its subsidiaries and affiliates to any other
person.
If Executive in any way violates the provisions of this Section 4, all
Severance Benefits shall cease, including the continued vesting of the Stock
Options.
5. RETURN OF THE COMPANY'S DOCUMENTS AND PROPERTY.
Executive agrees to return all records, documents, proposals, notes, lists,
files and any and all other materials including, without limitation,
computerized and/or electronic information that refers, relates or otherwise
pertains to the Company, its affiliates, and/or their respective partners,
principals, officers, directors, shareholders, managers, employees, agents,
representatives, or insurance companies, or their respective predecessors,
successors or assigns at any time. In addition, Executive shall return to the
Company all property or equipment that he has been issued during the course of
his employment or which he otherwise currently possesses. Executive shall
deliver to the Company before the Separation Date at Executive's expense all of
the Company's records, documents, proposals, notes, lists, files and materials
and property and equipment that are in his possession. Executive is not
authorized to retain any copies of any such records, documents, proposals,
notes, lists, files or materials. Nor is he authorized to retain any other of
the Company's property or equipment.
6. PROPRIETARY INFORMATION.
Executive acknowledges that Executive has had or may have had access to
proprietary information, trade secrets, and confidential material of the Company
or its affiliates, including, but not limited to, all ideas, information and
materials, tangible or intangible, not generally known to the public, relating
in any manner to the business of the Company, its personnel (including partners,
principals, employees and contractors), its clients or others with whom it does
business that Executive learned, acquired, or created, or helped to create
during the period of Executive's employment with the Company ("Proprietary
Information"). Proprietary Information includes, but is not limited to, all
trade secrets, patents and pending patents, documents, computer programs, source
code, users manuals, algorithms, compilations of technical, financial, legal or
other data, client or prospective client lists, names of suppliers,
specifications, designs, business or marketing plans, forecasts, financial
information, work in progress, and other technical or business information.
Executive agrees, without limitation in time or until such Proprietary
Information shall become public other than by Executive's unauthorized
disclosure, to maintain the confidentiality of such information and to refrain
from divulging, disclosing or using said Proprietary Information for any other
purpose. Executive acknowledges and affirms that all existing Proprietary
Information is the exclusive property of the Company and Executive hereby
assigns to the Company any and all rights the Executive may have had or acquired
(or hereinafter may have or acquire) in any Proprietary Information. Executive
further acknowledges and agrees that the Company is the sole owner of such
Proprietary Information and Executive has no claim of ownership to such
Proprietary Information.
7. CONSULTING ARRANGEMENT.
For a period of one (1) year following the Separation Date, Executive shall
consult for the Company and make himself available to the Company as reasonably
needed and requested by the Company (the "Consulting Period"). During the
Consulting Period Executive shall receive an amount equal to 85% of the Base
Salary under Executive's Employment Contract on a monthly basis. All such
payments shall be paid in accordance with normal payroll practices of the
Company. In the event that the Company and the Executive enter into an
arrangement subsequent to the date hereof whereby the Executive accepts a
position as an employee of the Company, the provisions of this Section 7 shall
be subject to appropriate modification.
8. COOPERATION IN LITIGATION.
Executive shall cooperate with the Company, its affiliates, and each of
their respective attorneys, barristers, solicitors or other legal
representatives (collectively, "Attorneys") in connection with any claim,
litigation, or judicial or arbitral proceeding which is now pending or may
hereinafter be brought against the Company or its affiliates by any third-party.
Executive's duty of cooperation shall include, but not be limited to, (a)
meeting with the Company's and/or its affiliates' Attorneys by telephone or in
person at mutually convenient times and places in order to state truthfully his
knowledge of matters at issue and recollection of events; (b) appearing at the
Company's, its affiliates' and/or their Attorneys' request (and, to the extent
possible, at a time convenient to Executive that does not conflict with the
needs or requirements of his then-current employer) as a witness at depositions
or trials, without necessity of a subpoena, in order to state truthfully
Executive's knowledge of matters at issue; and (c) signing at the Company's, its
affiliates' and/or their Attorneys' request declarations or affidavits that
truthfully state matters of which Executive has knowledge. The Company and/or
its affiliates shall promptly reimburse Executive for his actual and reasonable
travel or other expenses that he may incur in cooperating with the Company, its
affiliates, and/or their Attorneys pursuant to this Section 8.
9. INDEMNIFICATION.
The Company shall continue to indemnify Executive for all actions and
inactions related to his service as an officer or director of the Company to the
extent such actions and inactions are covered by the Company's Directors and
Officers insurance policy as then in effect ("Indemnified Actions") through the
expiration of the applicable statute of limitations. Notwithstanding the
foregoing, in the event such Indemnified Actions result from Executive's gross
negligence or willful misconduct, the indemnification hereunder shall not apply.
10. BINDING EFFECT.
This Agreement shall be binding upon the Parties and their respective
heirs, administrators, representatives, executors, successors and assigns, and
shall inure to the benefit of the Parties and their respective heirs,
administrators, representatives, executors, successors and assigns.
11. SEVERABILITY.
While the provisions contained in this Agreement are considered by the
Parties to be reasonable in all circumstances, it is recognized that some
provisions may fail for technical reasons. Accordingly, it is hereby agreed and
declared that if any one or more of such provisions shall, either by itself or
themselves or taken with others, be adjudged to be invalid as exceeding what is
reasonable in all circumstances for the protection of the interests of the
Company, but would be valid if any particular restrictions or provisions were
deleted or restricted or limited in a particular manner, then the said
provisions shall apply with any such deletions, restrictions, limitations,
reductions, curtailments, or modifications as may be necessary to make them
valid and effective and the remaining provisions shall be unaffected thereby.
12. ENTIRE AGREEMENT; MODIFICATION.
This Agreement constitutes the entire understanding among the Parties and
may not be modified without the express written consent of the Parties. This
Agreement supersedes all prior written and/or oral and all contemporaneous oral
agreements, understandings and negotiations regarding the subject matter hereof.
13. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced pursuant to
the laws of the State of California applicable to contracts made and entirely to
be performed therein.
14. VOLUNTARY AGREEMENT; NO INDUCEMENTS.
Each Party to this Agreement acknowledges and represents that he or it (a)
has fully and carefully read this Agreement prior to signing it, (b) has been,
or has had the opportunity to be, advised by independent legal counsel of his or
its own choice as to the legal effect and meaning of each of the terms and
conditions of this Agreement, and (c) is signing and entering into this
Agreement as a free and voluntary act without duress or undue pressure or
influence of any kind or nature whatsoever and has not relied on any promises,
representations or warranties regarding the subject matter hereof other than as
set forth in this Agreement.
IN WITNESS WHEREOF, the Parties have set their hand as of the date first
written above.
EXECUTIVE:
________________________________________
AURA SYSTEMS, INC.
By:___________________________________
Xxxxxxx Froch
Title: Sr. Vice President, General Counsel and
Secretary
Approved and Agreed to by the Board of Directors
By: ____________________________________
Xxxxxxx X. Xxxxxxxxx
Title: Vice Chairman
