EMPLOYMENT AGREEMENT
EXHIBIT
10.3
AMENDED
THIS
AMENDED EMPLOYMENT AGREEMENT (the “Agreement”), dated March 31, 2008, is entered
into by and between Acacia Technologies LLC, a Delaware corporation ("Acacia”),
and Xxxxxxx X. Xxxxxx (“You”), on the following terms and
conditions.
BACKGROUND
Acacia
and You desire to enter into this Agreement, subject to the terms and conditions
as set forth below.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants set forth
herein, Acacia and You, intending to be legally bound, hereby agree as
follows:
1. Position and Responsibilities.
You shall be employed as Chief Financial Officer, Sr. Vice President of
Finance and Treasurer. You agree that, at all times during your employment
hereunder, You shall be subject to and comply with Acacia's personnel policies
including Acacia's Xxxxxxx Xxxxxxx Policy (attached hereto as Exhibit A), Sexual
Harassment Policy (attached hereto as Exhibit B) and Employee Handbook, all as
may be modified from time to time. You shall devote your full working
time and efforts to Acacia's business to the exclusion of all other employment
or active participation in other business interests, unless otherwise consented
to in writing by Acacia.
2. Employment. Your
employment will be at-will, and may be terminated by Acacia or You upon thirty
(30) days notice to the other party for any reason. This at-will
arrangement can not be changed during your employment, unless agreed to in
writing by an authorized officer of Acacia.
3. Compensation. For all
services rendered by You pursuant to this Agreement, Acacia shall pay You,
subject to your adherence to all of the terms of this Agreement, and You shall
accept as full compensation hereunder, the following:
3.1 Salary. Acacia
shall pay You an annual salary (the “Salary”) of Two Hundred Fifty Three
Thousand Dollars ($253,000). The Salary shall be subject to all
appropriate federal and state withholding taxes and shall be payable bi-weekly,
in accordance with the normal payroll procedures of Acacia.
3.2 Discretionary Bonus. You shall
be eligible for a discretionary bonus equal in value of up to Thirty percent
(30%) of your annual salary. Such bonus shall be at the sole
discretion of the Compensation Committee of Acacia Research Corporation, and
shall be based upon personal performance, overall company performance, and any
other factors that the Compensation Committee elects to
consider. This bonus is solely within the discretion of the
Compensation Committee, which may elect to pay You no bonus in any given year or
years. The Compensation Committee may increase the amount of the
discretionary bonus, but has no obligation to do so. In order to be eligible for
the discretionary annual bonus, this Agreement must be in full force and effect
at the time of the payment of such bonus. The discretionary annual bonus shall
be subject to all appropriate federal and state withholding taxes in accordance
with the normal payroll procedures of Acacia.
3.3 Benefits and Perquisites.
Acacia shall make benefits available to You, including, but not limited to,
vacation and holidays, sick leave, health insurance, and the like, to the extent
and on the terms made available to other similarly situated employees of Acacia.
This provision does not alter Acacia's right to modify or eliminate any employee
benefit and does not guarantee the continuation of any kind or level of
benefits. All such benefits shall cease upon the termination of your
employment under this Agreement.
4. Termination. The
employment relationship between You and Acacia created hereunder shall terminate
upon the occurrence of any one of the following events:
4.1 Death or Permanent
Disability. Acacia may terminate this Agreement and any
further obligations to You if You die or, due to physical or mental disability,
You are either (a) unable to reasonably and effectively carry out your duties
with reasonable accommodations by Acacia or (b) unable to reasonably and
effectively carry out your duties because any reasonable accommodation which may
be required would cause Acacia undue hardship. In the event of a
disagreement concerning your perceived disability, You shall submit to such
examinations as are deemed appropriate by three practicing physicians
specializing in the area of your disability, one selected by You, one selected
by Acacia, and one selected by both such physicians. The majority
decision of such three physicians shall be final and binding on the
parties.
4.2 Termination for Cause.
Acacia may immediately terminate this Agreement and any further obligations to
You upon the occurrence of any of the following:
(a) You fail
or refuse to perform your duties hereunder, or breach any of your obligations
under this Agreement;
(b) You
commit any act which is likely to have the effect of injuring the reputation,
business or business relationship of Acacia;
(c) You
are convicted of or plead guilty or nolo contendre to any
criminal offense, or are charged with any felony; or
(d) You
embezzle or misuse any of Acacia's funds or assets or commit any act of fraud or
dishonesty with respect to any aspect of Acacia's business;
5. Compensation
Upon Termination;
5.1 Cause, Death or Disability.
Upon termination of your employment under this Agreement due to Cause,
death or disability, You shall be entitled only to payment of the Salary earned
by You before the effective date of termination.
5.2 Other Than
Cause. Upon termination of your employment under this
Agreement other than for Cause, Death or Disability, You shall be entitled only
to (i) payment of the Salary earned by you before the effective date of
termination, as provided in Section 2 hereof; (ii) any accrued and unused
vacation pay earned as of the effective date of termination; and (iii) any
severance payments as provided by Acacia's then current severance plan, if
any.
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5.3 Remedy. Should
Acacia terminate your employment for Cause, and it is later determined that
Acacia did not have Cause for the termination, then Acacia’s decision to
terminate You shall be deemed to have been made without Cause and Acacia shall
pay You the compensation as set forth in this Agreement, as your sole and
exclusive remedy.
6. Confidentiality.
6.1 Confidential
Information. Acacia and You recognize that You will acquire certain
confidential and proprietary information relating to Acacia's business and the
business of Acacia's affiliates. Such confidential and proprietary information
is information that derives independent economic value, actual or potential,
from not being generally known to the public or to other persons who can obtain
economic value from its disclosure or use, and is the subject of efforts that
are reasonable under the circumstances to maintain its secrecy ("Confidential
Information"). Confidential Information may include, without
limitation, the following: business plans, projections, planning and strategies,
marketing plans, materials, pricing, programs and related data, product
information, services, budgets, acquisition plans, the names or addresses of any
employees, independent contractors or customers, licensing strategy, statistical
data, financial information or arrangements, manuals, forms, techniques,
know-how, trade secrets, software, any method or procedure of Acacia's business,
whether developed by Acacia or developed, or contributed to, by You during the
course of your employment, or made available to You by Acacia or any of Acacia's
affiliates in the course of your employment, or any market development, research
or expansion projects, business systems and procedures and other confidential
business and proprietary information. Confidential Information may be
contained in written materials, verbal communications, the unwritten knowledge
of employees, or any other tangible medium, such as tape, computer, or other
means of electronic storage of information.
6.2 Obligation of Confidentiality.
You acknowledge and agree that (a) all of the Confidential Information
constitutes special, unique and valuable assets of Acacia and trade secrets, the
disclosure of which would cause irreparable harm and substantial loss to Acacia
and/or its affiliates. In view of the foregoing, You agree that at no
time will You, directly or indirectly, and whether during or after your
employment with Acacia, use, reveal, disclose or make known any Confidential
Information without specific written authorization from or written direction by
Acacia. You further agree that, immediately upon termination or
expiration of your employment for any reason whatsoever, or at any time upon
request by Acacia, You will return to Acacia all Confidential
Information.
7. Intellectual
Property. You agree that any and all discoveries, concepts, ideas,
inventions, writings, plans, articles, devices, products, designs, treatments,
structures, processes, methods, formulae, techniques and drawings, and
improvements or modifications related to the foregoing that are in any way
related to Acacia's audio and video patent portfolio or any other intellectual
property owned by Acacia or its affiliates or subsidiaries, whether patentable,
copyrightable or not, which are made, developed, created, contributed to,
reduced to practice, or conceived by You, whether solely or jointly with others,
in connection with your employment with Acacia (collectively, the “Intellectual
Property”) shall be and remain the exclusive property of Acacia, and, to the
extent applicable, a “work made for hire,” and Acacia shall own all rights,
title and interests thereto, including, without limitation, all rights under
copyright, patent, trademark, statutory, common law and/or otherwise. By your
execution of this Agreement, You hereby irrevocably and unconditionally assign
to Acacia all right, title and interest in any such Intellectual Property. You
further agree to take all such steps and all further action as Acacia may
reasonably request to effectuate the foregoing, including, without limitation,
the execution and delivery of such documents and applications as Acacia may
reasonably request to secure the rights to Intellectual Property worldwide by
patent, copyright or otherwise to Acacia or its successors and assigns. You
further agree promptly and fully to disclose any Intellectual Property to the
officers of Acacia and to deliver to such officers all papers, drawings, models,
data and other material (collectively, the “Material”) relating to any
Intellectual Property made, reduced to practice, developed, created or
contributed to by You and, upon termination, or expiration of your employment
with Acacia, to turn over to Acacia all such Material. Any
intellectual property which was developed by You prior to the date of this
agreement, or which is developed by You during or after the termination of this
Agreement and is not in any way related to any of Acacia's or any of its
subsidiaries' or affiliates' intellectual property, shall be owned by
You.
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8. Other Activities,
Non-Solicitation. During the term of this Agreement, You shall not engage
in any activities that are competitive with Acacia, or any of its affiliates or
subsidiaries, or that would result in a conflict of interest. You are
not prohibited from engaging in any other activities. In the event of
the termination of your employment for any reason, You, for a period of one year
shall not: (a) solicit for employment and then employ any employee of Acacia or
any of its affiliates or subsidiaries or any person who is an independent
contractor involved in any of its affiliates or subsidiaries; (b) make any
public statement concerning Acacia, or any of its affiliates or subsidiaries, or
your employment, unless previously approved by Acacia, except as may be required
by law; or (c) induce, attempt to induce or knowingly encourage any Customer of
Acacia or any of its affiliates or subsidiaries to divert any business or income
from Acacia or any of its affiliates or subsidiaries or to stop or alter the
manner in which they are then doing business with Acacia or any of its
affiliates or subsidiaries. The term “Customer” shall mean any
individual or business firm that was or is a customer or client of, or one that
was or is a party in a investor agreement with, or whose business was actively
solicited by, Acacia or any of its affiliates or subsidiaries at any time,
regardless of whether such customer was generated, in whole or in part, by your
efforts.
9. Remedies. Each of the
parties to this Agreement will be entitled to enforce its rights under this
Agreement specifically, to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights existing in its
favor. The parties agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Agreement and that any
party may in its sole discretion apply to any court of law or equity of
competent jurisdiction for injunctive relief without the need for an undertaking
in order to enforce or prevent any violations of the provisions of this
Agreement.
10. Assignment. This
Agreement is personal to You and may not be assigned in any way by You without
the prior written consent of Acacia. Any such attempted
assignment without Acacia's written consent shall be void.
11. Severability and
Reformation. The parties intend all provisions of this Agreement to
be enforced to the fullest extent permitted by law. If, however, any provision
of this Agreement is held to be illegal, invalid, or unenforceable under present
or future law, such provision shall be fully severable, and this Agreement shall
be construed and enforced as if such illegal, invalid, or unenforceable
provision were never a part hereof and the remaining provisions shall remain in
full force and effect. Moreover, any provision so affected shall be
limited only to the extent necessary to bring the Agreement within the
applicable requirements of law.
12. Governing Law and
Venue. This Agreement is to be governed by and construed in
accordance with the laws of the State of California applicable to contracts made
and to be performed wholly within such State, and without regard to the
conflicts of laws principles thereof. Any suit brought and any and
all legal proceedings to enforce this Agreement whether in contract, tort,
equity or otherwise, shall be brought in the state or federal courts sitting in
Los Angeles County, California, the parties hereto hereby waiving any claim or
defense that such forum is not convenient.
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13. Arbitration. Any
controversy, claim or dispute arising out of or in any way relating to this
Agreement, the alleged breach thereof, and/or your employment with Acacia or its
termination including, without limitation, claims for breach of any express or
implied contract, tort claims, claims for violation of any federal, state or
other governmental law, statute, ordinance, Executive Order or regulation, and
any and all claims for employment discrimination or harassment, shall be
determined by binding arbitration administered by the American Arbitration
Association under its National Rules for Resolution of Employment Disputes
("Rules") which are in effect at the time of the arbitration. The
Rules are hereby incorporated by reference. California Code of Civil
Procedure § 1283.05, which provides for certain discovery rights, shall
apply to any such arbitration, and said code section is also hereby incorporated
by reference. In reaching a decision, the arbitrator shall have no
authority to change, extend, modify or suspend any of the terms of this
Agreement. The arbitration shall be commenced and heard in Los
Angeles County, California. The arbitrator shall apply the
substantive law (and the law of remedies, if applicable) of California or
federal law, or both, as applicable to the claim(s) asserted. The
Arbitrator shall issue a written decision explaining his/his
award. Judgment on the award may be entered in any court of competent
jurisdiction, even if a party who received notice under the Rules fails to
appear at the arbitration hearing(s). The parties may seek, from a
court of competent jurisdiction, provisional remedies or injunctive relief in
support of their respective rights and remedies hereunder without waiving any
right to arbitration. However, the merits of any action that involves
such provisional remedies or injunctive relief, including, without limitation,
the terms of any permanent injunction, shall be determined by arbitration under
this paragraph. Notwithstanding the foregoing, claims for workers'
compensation benefits, unemployment compensation benefits, or claims based upon
an employee benefit plan which provides by its own terms for arbitration are
exempted from the provisions of this Paragraph. In any arbitration
hereunder, the parties will each pay for their costs and attorneys' fees, if
any. However, if either party prevails on a statutory claim which
entitles the prevailing party to attorneys' fees, the arbitrator may award
reasonable attorneys' fees to the prevailing party in accordance with that
statute. If any claim or class of claim is determined by applicable
law not to be subject to arbitration, this Agreement to arbitrate shall remain
in full force and effect with respect to all other claims asserted between the
parties.
14. Entire Agreement, Amendment and
Waiver. This Agreement contains the entire understanding and
agreement between the parties, and supersedes any other agreement between Acacia
and You, whether oral or in writing, with respect to the subject matter hereof.
This Agreement may not be altered or amended, nor may any of its provisions be
waived, except by a writing signed by both parties hereto or, in the case of an
asserted waiver, by the party against whom the waiver is sought to be
enforced. Waiver of any provision of this Agreement, or any breach
thereof, shall not be deemed to be a waiver of any other provision or any
subsequent alleged breach of this Agreement.
15. Survival and
Counterparts. The provisions of Sections 4, 6, 7, 8, 9, 10, 11, 12,
13, 14 and 15 of this Agreement shall survive the termination of this Agreement.
This Agreement may be executed in counterparts, with the same effect as if both
parties had signed the same document. All such counterparts shall be
deemed an original, shall be construed together and shall constitute one and the
same instrument.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
ACACIA
TECHNOLOGIES LLC
By
/s/ Xxxx X.
Xxxx
Name:
Xxxx X. Xxxx
Its:
Chairman and CEO
/s/ Xxxxxxx X.
Xxxxxx
Xxxxxxx
X. Xxxxxx
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