EXHIBIT 10.31
EMPLOYMENT AGREEMENT dated as of December 20, 2001, between PATRIOT SCIENTIFIC
CORPORATION, a Delaware Corporation (the "Company"), and XXXXXXX XXXXXX (the
"Employee").
WITNESSETH:
1. Term of Employment.
The Company hereby agrees to employ the Employee and the Employee hereby agrees
to accept employment as Vice President of Engineering of the Company for a one
year period commencing January 2, 2002, or for such shorter period as may be
mutually agreed by the Company and the Employee (the "Employment Period"),
subject to the terms and conditions of this Agreement. In his capacity as Vice
President of Engineering of the Company, Employee will be responsible for the
general duties associated with his title including, but not limited to
researching, developing, testing, and monitoring the production of products
necessary to enable the Company to successfully market and sell its
microprocessor technology and other technology and/or such other management
duties on behalf of the Company as may be assigned to him from time to time by
the Chairman and Chief Executive Officer ("CEO") of the Company.
The Employee agrees that, during the Employment Period, he will serve the
Company faithfully and to the best of his abilities, devoting substantially all
his time, energy and skill to the activities of the Company and the promotion of
its interests. It is expressly understood that the Employee may devote a
reasonable amount of time to such charitable, civic and personal affairs as
shall not interfere with the obligations set forth in the preceding sentence.
The Employee agrees not to work for or participate in any business that competes
in any manner with the business of the Company during his employment with the
Company, including after hours, or on weekends, or during vacation time, even if
only organizational assistance or limited consultation is involved.
2. Compensation and Benefit Plans
(a) The Employee shall receive a base salary during the Employment Period which
shall be payable in installments at such times as other employees are paid but
in any case at least monthly as follows: The Employee shall receive a gross base
salary of not less than ten thousand dollars ($10,000.00) per month for his
services as Vice President of Engineering. the base salary shall be subject to
other upward adjustments as shall be recommended by the Chairman and CEO of the
Company to the Board of Directors of the Company (the "Board") and as shall be
approved by the Board and Compensation Committee.
(b) The Employee is entitled, at the discretion of the Board of Directors of the
Company, to an Annual Incentive Bonus up to 50% of the total yearly base
compensation for the applicable year (the "Annual Incentive Bonus"). The Annual
Incentive Bonus payment will be based upon mutually agreed upon objectives and
levels of performance, if any, and shall otherwise be at the discretion of the
Board of Directors.
(c) The Employee shall be eligible to participate in all employee benefit
programs, if any, maintained by the Company, including, but not limited to,
group life insurance, medical, dental, retirement and pension plans, any
deferred compensation profit sharing plans, 401(k) savings plan, and other such
fringe benefits as are or may be available from time to time to senior Employees
of the Company, including without limitation a car allowance of $400 per month.
During the Employment Period, the Employee is entitled to 4 weeks vacation per
annum.
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(d) The Company will pay or reimburse the Employee during the Employment Period
for all expenses normally reimbursed by the Company and reasonably incurred by
the Employee in furtherance of his duties hereunder and authorized by the
Company, including but not limited to, expenses of entertainment, travel, meals,
hotel accommodations and the like upon the submission of the Employee of
vouchers or an itemized list thereof and as may be required in order to permit
such payments as proper deductions for the Company under the Internal Revenue
Code of 1986 and the rules and regulations adopted pursuant thereto now or
hereafter in effect.
3. Stock Options.
(a) The Employee will be granted an option to purchase three hundred thirty-five
thousand (335,000) shares of the Company's common stock at the average of the
closing bid and ask price of the Company's stock on January 2, 2002. This option
will be granted under the Company's 2001 Stock Option Plan. The Company and the
Employee will sign a Stock Option Agreement memorializing the grant as of
January 2, 2002 in the form of the attached Exhibit A upon approval by the Stock
Compensation Committee.
(b) The Stock Options will vest according to the following schedule: (1) 185,000
shares will vest as of January 2, 2002, and (2) 150,000 shares will vest on
January 2, 2003. All stock options held by employee will vest immediately prior
to a Change in Control of the Company.
4. Termination of Employment.
(a) The employment of the Employee hereunder shall automatically terminate if
the Employee shall die during the Term of Employment. The employment of the
Employee can be terminated for cause by the Company at its option only for the
following:
(1) the conviction of the Employee under state or federal law of a
felony or other crime, or the equivalent under foreign law; unless in
any such case Employee performed such act in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
Company;
(2) the material breach by Employee of any provision of the Agreement
which has not been cured pursuant to the provisions of Section 5 hereof;
or
(3) a determination or request by an appropriate regulatory authority
that the Employee be removed or disqualified from acting as an officer
of the Company.
(b) If the Employee's employment is terminated for other than cause by the
Company, then the Employee is entitled to severance payments equal to the lesser
of (I) two (2) months of the current base salary payable in a lump sum payment
on the last day of the thirty (30) day notice period or (2) the remaining
current base salary for the term of this agreement payable in a lump sum payment
on the last day of the thirty (30) day notice period. In such event, the
Employee shall have the right to continue coverage, at his expense, under group
life insurance, medical, and dental healthcare plans of the Company by paying
the applicable group premium(s) as if the Employee were still employed; such
right, if exercised within thirty days after termination of employment, shall
continue until the Employee reaches the age of 65, at which tune it shall
terminate.
(c) The Employee shall have the right at his sole option to terminate his
employment at any time upon ninety (90) days written notice or for such other
notice period to be determined by the President and CEO in his sole discretion.
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(d) If within twelve (12) months of a Change in Control, as that term is defined
herein, Employee's employment is terminated for other than cause or Employee
refused to accept or voluntarily resigns from a position other than a Qualified
Position, as that term is defined herein, Employee shall receive severance
compensation equal to twelve (12) months of his then current base salary. A
"Change in Control" means the acquisition, directly or indirectly of more than
..40% of the outstanding shares of any class of voting securities of the Company
by one person or one entity that is not an existing shareholder as of the date
of this Agreement, or a merger, consolidation or sale of all or substantially
all of the assets of the Company, such that the individuals constituting the
Board of the Company immediately prior to such period shall cease to constitute
a majority of the Board, unless the election of each director who was not a
director prior thereto was approved by vote of at least two-thirds of the
directors then in office who were directors prior to such period.
Notwithstanding the foregoing, an acquisition of the requisite percentage of
voting securities in connection with a public offering of securities by the
Company for the primary purpose of providing capital resources to the Company
shall not be considered "Change in Control" for purposes of this Section 4(d).
"Qualified Position" is an Employee officer position with the entity surviving
the Change in Control with substantially the same responsibilities as those held
by the Employee on the date of the Change in Control. Also, notwithstanding the
foregoing, if the Company determines that the amounts payable to Employee under
this employment agreement, when considered together within the other amounts
payable to Employee as a result of a Change in Control, cause such payments to
be treated as excess parachute payments within the meaning of Section 280G of
the Internal Revenue Code, the Company shall reduce the amount payable to
Employee under this Section 4(d) to an amount that will not subject Employee to
the imposition of tax under Section 4999 of the Internal Revenue Code; provided,
however, that this provision shall apply only to payments to be made under this
employment agreement and Employee by the Company.
5. Notice of Breach. The Company and the Employee agree that, prior to the
termination of the Employment Period by reason of any breach of any provision,
of the Agreement, the injured party will give the party in breach written
notice, specifying such breach and permitting the party in breach to cure such
breach within a period of thirty (30) days after receipt of such notice, except
a breach by Employee of provisions of Section 7 of this Agreement shall not have
a cure period.
6. Indemnification.
(a) If; after the date of the commencement of the Employment Period, the
Employee is made a party or is threatened to be made a party to any action, suit
or proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he is or was a director or officer of
the Company or is or was serving at the request of the Company as a director,
officer, member, employee or agent of another corporation or partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether or not the basis of such Proceeding is an alleged act or
failure to act in an official capacity as a director, officer, member, employee
or agent, he shall be indemnified and held harmless by the Company to the
fullest extent authorized by Delaware law, as the same exists or may hereafter
be amended, against all expense, liability and loss (including, without
limitation, attorney's fees, judgments, fines and amounts paid or to be paid in
settlement) reasonably incurred or suffered by the Employee in connection
herewith, including, without limitation, payment of expenses incurred in
defending a Proceeding prior to the final disposition of such Proceeding
(subject to receipt of an undertaking by the Employee to repay such amount if it
shall ultimately be determined that the Employee is not entitled to be
indemnified by the Company under Delaware law), and such indemnification shall
continue as to the Employee even if he has ceased to be a director, officer,
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member, employee or agent of the Company or other enterprise and shall inure to
the benefit of his heirs, executors and administrators.
(b) The right of indemnification and the payment of expenses incurred in
defending a Proceeding in advance of its final disposition conferring in this
Section 6 shall not be exclusive of any other right that the Employee may have
or hereafter may acquire under any statute, provision of the Certificate of
Incorporation or Bylaws of the Company, agreement, vote of shareholders or
disinterested directors or otherwise.
7. Trade Secrets of the Company. Patents and Inventions.
(a) Except as required by the performance of the Employee's services to the
Company under the terms of this Agreement, neither the Employee or any of his
agents or representatives, shall, during his employment and for so long
afterwards as the pertinent information or data remain Confidential Information,
directly or indirectly, make use of; permit others to use, divulge, disseminate,
copy or otherwise disclose the Company's Confidential Information and/or
Inventions as defined by subparagraphs (i) and (ii), respectively.
(i) "Confidential Information" means all information and material which
is proprietary to the Company, whether or not marked as "confidential"
or "proprietary" and which is disclosed to or obtained from the Company
by the Employee, which relates to the Company's past, present or future
research, development or business activities. Confidential Information
is all information or materials prepared by or for the Company and
includes, without limitation, all of the following: designs, drawings,
specifications, techniques, models, data, source code, object code,
documentation, diagrams, flow charts, research, development, processes,
systems, methods, machinery, procedures, "know-how", new product or new
technology information, formulas, patents, patent applications, product
prototypes, product copies, cost of production, manufacturing,
developing or marketing techniques and materials, cost of production,
development or marketing time tables, customer lists, strategies related
to customers, suppliers or personnel, contract forms, pricing policies
and financial information, volumes of sales, and other information of
similar nature, whether or not reduced to writing or other tangible
form, and any other Trade Secrets, as defined by subparagraph (iii), or
non-public business information. Confidential Information does not
include any information which (1) was in the lawful and unrestricted
possession of the Employee prior to its disclosure by the Company, (2)
is or becomes generally available to the public by acts other than those
of the Employee after receiving it, or (3) has been received lawfully
and in good faith by the Employee from a third party who did not derive
it from the Company.
(ii) "Inventions" means and all discoveries, concepts and ideas, whether
patentable or not, including but not limited to, processes, methods,
formulas, compositions, techniques, articles and machines, as well as
improvements thereof or "know-how" related thereto, relating at the time
of conception or reduction to practice to the business engaged in by the
Company, or any actual or anticipated research or development by the
Company.
(iii) "Trade Secrets" shall mean any scientific or technical data,
information, design, process, procedure, formula or improvement that is
commercially available to the Company and is not generally known in the
industry.
Materials involving Confidential Information and Inventions are the exclusive
property of the Company and shall not be removed under any circumstances from
the premises of the Company where the work is being carried on without prior
written consent of the Company except when consistent with the Company's normal
business practices.
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(b) The Employee agrees that any inventions made, conceived or completed by him
during the term of his employment, solely or jointly with others, which are made
with the Company's equipment, supplies, facilities or Confidential Information,
or which relate at the time of conception or reduction to purpose of the
invention to the business of the Company or the Company's actual or demonstrably
anticipated research and development, or which result from any work performed by
the Employee for the Company, shall be the sole and exclusive property of the
Company. The Employee promises to assign such inventions to the Company. The
Employee also agrees that the Company shall have the right to keep such
inventions as trade secrets, if the Company chooses. The Employee agrees to
assign to the Company the Employee's rights in any other inventions where the
Company is required to grant those rights to the United States government or any
agency thereof. In order to permit the Company to claim rights to which it may
be entitled, the Employee agrees to disclose to the Company in confidence all
inventions which the Employee makes arising out of the Employee's employment and
all patent applications filed by the Employee within one year after the
termination of his employment.
(c) The Employee shall assist the Company in obtaining patents on all
inventions, designs, improvements and discoveries patentable by the Company in
the United States and in all foreign countries, and shall execute all documents
and do all things necessary to obtain letters patent, to vest the Company with
full and extensive title thereto, and to protect the same against infringement
by others.
8. Severability In the event that any provisions or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason, in whole or
in part, the remaining provisions of this Agreement shall be unaffected thereby
and shall remain in full force and effect to `the fullest extent permitted by
law.
9. Assignment. The rights of the Company (but not its obligations) under this
Agreement may, without the consent of the Employee, be assigned by the Company
to any parent, subsidiary, or a successor of the Company; provided that such
parent, subsidiary or successor acknowledges in writing that it is also bound by
the terms and obligations of this Agreement. Except as provided in the preceding
sentence, the Company may not assign all or any of its rights, duties or
obligations hereunder without the prior written consent of the Employee. Except
as provided for in Section 11 hereunder the Employee may not assign all or any
of his rights, duties or obligations hereunder without the prior written consent
of the Company.
10. Survival of Certain Provisions. The covenants and agreements set forth in
Paragraph 7 of this Agreement shall survive termination of the Employee's
employment and/or this Agreement, and shall remain in full force and effect
regardless of the cause of such termination.
11. Beneficiaries: References. The Employee shall be entitled to select (and
change) a beneficiary or beneficiaries to receive any compensation or benefit
payable following the Employee's death, and may change such election, in either
case, by giving the Company written notice thereof. In the event of the
Employee's death or a judicial determination of his incompetence, reference in
this Agreement shall be deemed, where appropriate, to refer to the Employee's
beneficiary, estate, committee, conservator or other legal representative.
12. Notices. All notices, requests, demands and other communications shall be in
writing and shall be defined to have been duly given if delivered or if mailed
by registered mail, postage prepaid;
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(a) If to the Employee, addressed to him at the following address as may be
changed in writing from time to time:
Xxxxxxx Xxxxxx
00000 Xxxxxxxxxxxx Xxx
Xxx Xxxxx, XX 00000
(b) If to the Company, addressed to:
Patriot Scientific Corporation
00000 Xxx Xxxxxxxx
Xxx Xxxxx, XX 00000
or to such other address as any party may request by notice given as
aforesaid to the other parties hereto.
13. Titles and Headings. Titles and heading to paragraphs hereof are for the
purposes of references only and shall in no way limit, define or otherwise
effect the provisions hereof
14. Governing Law. This Agreement is being executed and delivered and is
intended to he performed in the State of California, and shall be governed by
and construed in accordance with the laws of the State of California.
14.5 Arbitration/Sole Remedy for Breach of Agreement. In the event of any
dispute between the Company and the Employee concerning any aspect of the
employment relationship, including any disputes upon termination, all such
disputes shall be resolved by binding arbitration before a single neutral
arbitrator. The arbitrator shall be selected from the "American Arbitration
Association" The arbitration shall be held in San Diego, California. The
arbitrator is bound to rule only on whether or not there has been a violation of
the terms of this employment agreement and to render an award, if any, that is
consistent with the terms of this employment agreement. Neither party to this
employment agreement is entitled to any legal recourse or rights or remedies
other than those provided within this employment agreement. The Employee's sole
remedies, are those set forth in this employment agreement. The arbitrator shall
determine a "prevailing party" and shall award such prevailing party (i)
attorney's fees and costs and (ii) the prevailing party's portion of the costs
of arbitration.
In the event of any dispute between the Company and the Employee concerning any
ownership, use or disclosure of the Company's Confidential Information or other
intellectual property, the requirement of arbitration may be waived, at the
Company's sole election, and any such dispute may be brought before a court
having jurisdiction of the matter.
15. Counterparts. This Agreement shall be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. It shall not be necessary
in making proof of this Agreement to produce or account for more than one
original counterpart.
16. Entire Agreement. This Agreement contains the entire agreement of the
parties hereto and may be modified or amended only by a written instrument
executed by the parties hereto. Effective on the first day of the Employment
Period, any prior employment agreements between the Company and the Employee
shall terminate.
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17. Good Faith. Each of the parties hereto agrees that he or it shall act in
good faith in all actions taken under this Agreement.
18. Waiver. No waiver of any of the provisions of this Agreement shall be deemed
to he or shall constitute a waiver of any other provision of the Agreement,
whether or not similar, nor shall any waiver constitute a continuing waiver. No
waiver of any provision of this Agreement shall be binding upon the parties
hereto unless it is executed in writing by the party making the waiver.
IN WITNESS WHEREOF, the parties hereto have executed the Agreement as of the day
and year first above written.
Patriot Scientific Corporation
By:
/S/ XXXXXX XXXXXXX
-----------------------------------
Xxxxxx Xxxxxxx, Chairman & CEO
Employee
/S/ XXXXXXX XXXXXX
-----------------------------------
Xxxxxxx Xxxxxx
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