ADVANCED POWER TECHNOLOGY, INC.
EMPLOYMENT AGREEMENT
(MANAGEMENT & TECHNICAL PERSONNEL)
EXEMPT SALARIED EMPLOYEES
THIS EMPLOYMENT AGREEMENT is made and entered into this 9th day of
August, 1985 by and between ADVANCED POWER TECHNOLOGY, INC., a Delaware
corporation ("Company") and Xxxx X. Xxxxxx an individual ("Employee").
WHEREAS, Company desires to employ Employee upon the terms and
conditions hereinafter set forth, and Employee desires to be so employed;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, Company and Employee agree as follows:
1. EMPLOYMENT
Company hereby employees Employee as Accounting Manager of the Company
with the powers an duties consistent with such position, and Employee
hereby accepts such employment, on the terms and conditions hereinafter
set forth. Employee, subject to the control of the Management of
Company, agrees to diligently utilize his or her best efforts to
further the interests of the Company and to discharge those
responsibilities and duties required for the planning, development,
operation, promotion and advancement of the Company, and such other
duties as Company may require.
2. TERM AND TERMINATION
2.1 This Agreement shall terminate upon the happening of any of
the following events:
(a) By mutual agreement between Company and Employee;
(b) Unilaterally by Employee without cause;
(c) Upon the death of Employee;
(d) Upon the good faith determination of the Chief
Executive Officer of the Company that Employee has become so
physically or mentally disabled as to be incapable of
satisfactorily performing his or her duties hereunder for a
period of ninety (90) consecutive days, such determination
based upon a certificate as to such physical or mental
disability issued by a licensed physician and/or psychiatrist
(as the case may be) employed by the Company; or
(e) By the Company for cause, that is to say only upon
Employee's conviction of a felony, commission of any material
act of dishonesty against the Company, material breach of this
Agreement by Employee, or misconduct by Employee having a
substantial adverse effect on the business of the Company.
(f) Unilaterally by the Company without cause, in which
event (Section 2.2 to the contrary not withstanding) the
Company will continue to pay Employee the full amount due as
salary for a period of thirty days following notice of
termination.
2.2 In the event that this Agreement is terminated
pursuant to Paragraph 2.1, neither Company nor Employee shall have
any remaining duties or obligations hereunder, except that Company
shall pay to Employee, or his or her representatives, such
compensation as is due pursuant to Sub-Section 2.1(f) and Section 3.
The provisions of Section 4-9 shall survive termination.
2.3 This Agreement shall not be terminated by any:
(a) Merger, whether the Company is or is not the
surviving corporation; or
(b) Transfer of all or substantially all of the assets of
the Company; or
(c) Voluntary or involuntary dissolution or liquidation
of the Company; or
(d) Consolidation to which the Company is a party.
In the event of any such merger, transfer of assets, dissolution,
liquidation, or consolidation, the surviving corporation or
transferee, as the case may be, shall be bound by and shall have the
benefits of this Agreement, and Company shall take all action to
ensure that such corporation or transferee is bound by the
provisions of this Agreement.
3. COMPENSATION
3.1 As the total consideration for services which Employee agrees
to render hereunder, Employee is entitled to the following:
(a) Beginning on December 9, 1985, an annual base salary
at the rate of Thirty-Six Thousand Dollars ($36,000), subject
to increases at the discretion of Company, in accordance with
the regular and ordinary payment practices of Company. All
payroll payments shall be subject to deduction of payroll
taxes and related deductions as required by law.
(b) Participation in all plans or programs sponsored by
Company for employees in general, including without limitation
participation in any group health plan, medical reimbursement
plan and life insurance plan, pension and profit sharing plan.
(c) Reimbursement of any and all necessary and reasonable
expenses incurred by Employee from time to time in the
performance of his or her duties hereunder, including without
limitation entertainment expenses and air fare, taxi,
automobile, and other traveling expenses.
(d) After six (6) months of continuous employment,
Employee shall be eligible for five (5) working days of paid
vacation; after twelve (12) months of
continuous employment, Employee shall be eligible for ten (10)
working days of paid vacation; thereafter, Employee shall be
eligible for ten (10) working days of paid vacation upon the
completion of each successive twelve (12) month period of
continuous employment. Paid vacations non-cumulative and must
be taken during the twelve (12) months following accrual.
(e) Such other benefits as Company, in its sole
discretion, may from time to time provide.
3.2 Subject to the limitations contained in Paragraph
2.1, if Employee shall be absent on account of personal injuries or
physical or mental disability, Employee shall continue to receive
all payments provided in this Agreement; provided, however, that any
such payments may, at the sole option of Company, be reduced by any
amount that Employee receives for the period covered by such
payments as disability compensation under insurance policies
maintained by Company or under governmental programs.
3.3 Company shall have the right to deduct from the
compensation due to Employee hereunder any and all sums required for
social security and withholding taxes and for any other federal,
state, or local tax or charge which may be in effect or hereafter
enacted or required as a charge on the compensation of Employee.
3.4 Employee shall repay relocation expenses paid by Company if
he or she voluntarily terminates employment, or is terminated for
cause within one year from date of employment.
4. NON-DISCLOSURE
Employee shall not disclose or use in any way, either during his or her
employment with Company or thereafter, except as required in the course of his
or her employment with Company, any confidential business or technical
information or trade secrets acquired during his or her employment by Company,
whether or not conceived of, discovered, developed or prepared by Employee,
including without limitation any formulae, patterns, inventions, procedures,
processes, plans, devices, products, operations, techniques, know-how,
specifications, data, compilations of information, customer lists, records,
financing or production methods, costs, employees, and information concerning
specific customer requirements, preferences, practices and methods of doing
business, all of which are exclusive and valuable property of Company.
5. ASSIGNMENT OF PROPRIETARY INTEREST
Employee hereby assigns and transfers to Company his or her entire
right, title and interest in and to any and all inventions, improvements,
processes, sketches, methods of production, designs, discoveries, ideas (whether
or not shown or described in writing) or services (collectively "inventions")
whether or not patentable, which are made, conceived or first reduced to
practice by Employee with Company's equipment, supplies, facilities, or trade
secrets and on Company's time, or which relates to the business of Company or
Company's actual or anticipated research or business development, or which
results from any work performed by the Employee for Company. Employee agrees
that Company shall have the right to keep such inventions as trade secrets. To
permit Company to claim rights to which it may be entitled, the Employee agrees
to promptly disclose to Company in confidence all inventions which the employee
makes, conceives, or first reduces to practice during the course of his or her
employment or within one year after termination thereof if such inventions
relate to a product, process or service upon which Employee worked during the
period of his or her employment by Company, and all patent or copyright
applications filed by the Employee within a year after termination of this
Agreement. Both during and after the period of employment with Company, Employee
shall further assist Company in obtaining patents or copyrights on all
inventions deemed patentable or copyrightable by Company in the United States
and in all foreign countries, and shall execute all documents and do all things
necessary to obtain letters patent and/or copyrights, to vest Company with full
and extensive title thereto, and to protect Company's rights against
infringement by others. Employee further agrees that any patent application
filed within a year after termination of his or her employment on an invention
for which the Employee was partially or totally responsible shall be presumed to
relate to an invention made during the term of the Employee's employment unless
the Employee can provide evidence to the contrary.
6. TANGIBLE ITEMS AS PROPERTY OF COMPANY
Excluding any personal property owned by Employee prior to the date
hereof, all files, records, documents, drawings, plans, specifications, manuals,
books, forms, receipts, notes, reports, memoranda, studies, data, calculations,
recordings, catalogues, compilations of information, correspondence and all
copies, abstracts and summaries of the foregoing, instruments, tools and
equipment and all other physical items related to the business of Company, other
than a merely personal item of a general professional nature, whether of a
public nature or not, and whether prepared by Employee or not, are and shall
remain the exclusive property of Company and shall not be removed from the
premises of Company under any circumstances whatsoever without the prior written
consent of Company, and the same shall be promptly returned to Company by
Employee on the expiration or termination of his or her employment with Company
or at any time prior thereto upon the request of Company.
7. SOLICITATION OF CUSTOMERS AND EMPLOYEES
Both during and after the period of employment, Employee shall not in
any way attempt to interfere with the business of Company and, shall not call
on, solicit, interfere with or attempt to entice away, either directly or
indirectly, any employee of Company with whom he or she became acquainted during
his or her employment with Company, either for his or her own benefit or
purposes or for the benefit or purposes of any other person, partnership,
corporation, firm, association or other business organization, entity or
enterprise.
8. NONCOMPETITION
Except as set forth in this Section 8, for a period of 18 months after
termination of this Agreement, Employee shall not, directly or indirectly,
engage or participate in, assist or have any interest in any person,
partnership, corporation, firm, association or other business organization,
entity or enterprise (whether as an employee, officer, director, agent, security
holder, creditor, consultant or otherwise) which, directly or indirectly,
manufactures, designs, develops, engineers, markets or otherwise produces or
offers for sale or sells inventions, products, processes, systems or services
the same as, similar to or competitive with any devices, inventions, products,
processes, systems or services manufactured, designed, developed, engineered,
marketed or otherwise produced or offered for sale or sold by Company (or any
successor thereof) in the United States or abroad.
The parties intend that the covenant contained in this Section 8 shall
be construed as a series of separate covenants. If, in any judicial or
arbitration proceeding, a court shall refuse to enforce any of the separate
covenants deemed included in this paragraph, then this unenforceable covenant
shall be deemed eliminated from these provisions for the purpose of those
proceedings to the extent necessary to permit the remaining separate covenants
to be enforced. Moreover, if, in any judicial or arbitration proceedings, the
term of non-competition shall be determined to be unreasonable, the parties
agree that the term shall be shortened to the maximum period deemed reasonable
under the laws of the state of Oregon, and that modified period shall be
enforceable as though originally set forth herein.
9. INJUNCTIVE RELIEF
Employee hereby acknowledges and agrees that it would be difficult to
fully compensate Company for damages resulting from the breach or threatened
breach of Sections 4, 5, 6, 7 or 8 of this Agreement, and accordingly, that
Company shall be entitled to temporary and injunctive relief, including
temporary restraining orders, preliminary injunctions and permanent injunctions,
to enforce such Sections without the necessity of proving actual damages
therewith. This provision with respect to injunctive relief shall not, however,
diminish Company's right to claim and recover damages.
10. INDEMNIFICATION
Company shall, to the maximum extent permitted by law, indemnify and
hold Employee harmless against expenses, including reasonable attorney's fees,
judgments, fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding arising by reason of Employee's
employment with Company if Employee, in incurring the above expenses, acted in
good faith and in a manner Employee believed to be in the best interests of
Company and, in the case of a criminal proceeding, had no reasonable cause to
believe Employee's conduct was unlawful.
11. COPIES OF AGREEMENT
Employee authorizes Company to send a copy of this Agreement to any and
all future employers which he or she may have, and to any and all persons,
firms, and corporations, with whom he or she may become affiliated in a business
or commercial enterprise, and to inform any and all such employers, persons,
firms or corporations that Company intends to exercise its legal rights should
Employee breach the terms of this Agreement or should another party induce a
breach of Employee's part.
12. SEVERABLE PROVISIONS
The provisions of this Agreement are severable and if any one or more
provisions may be determined to be illegal or otherwise unenforceable, in whole
or in part, the remaining provisions, and any partially unenforceable provisions
to the extent enforceable, shall nevertheless be binding and enforceable.
13. BINDING AGREEMENT
This Agreement shall inure to the benefit of and shall be binding upon
Company, its successors and assigns.
14. CAPTIONS
The Section captions are inserted only as a matter of convenience and
reference and in no way define, limit or describe the scope of this Agreement or
the intent of any provisions hereof.
15. ENTIRE AGREEMENT
This Agreement contains the entire agreement of the parties relating to
the subject matter hereof, and the parties hereto have made no agreements,
representations or warranties relating to the subject matter of this Agreement
that are not set forth in these documents. No modification of this Agreement
shall be valid unless made in writing and signed by the parties hereto.
16. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the
laws of the state of Oregon.
17. NOTICES
Any notice or demand required or permitted to be given hereunder shall
be in writing and shall be deemed effective upon the personal delivery thereof
or, if mailed, forty-eight hours after having been deposited in the United
States mails, postage prepaid, and addressed to the party to whom it is directed
at the address et forth below:
If to Company:
ADVANCED POWER TECHNOLOGY, INC.
000 X. X. Xxxxxxxx Xxxxxx
Xxxx, Xxxxxx 00000
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Freshman, Marantz, Orlanski, Comsky & Deutsch
0000 Xxxxxxxx Xxxx., Xxx. 0-X
Xxxxxxx Xxxxx, XX 00000
If to EMPLOYEE:
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Either party may change the address to which such notices are to be addressed by
giving the other party notice in the manner herein set forth.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the day and year first written above.
ADVANCED POWER TECHNOLOGY, INC.
a Delaware corporation ("Company")
By: S/S
Xxxxxxx Xxxxxx
President
S/S
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("Employee")
