EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 1st day of December, 1996, by and
between Xxxxxxx X. Gavois (the "Employee") and XOX CORPORATION, a Delaware
corporation (the "Company").
RECITALS
A. The Employee desires to work as an employee of the Company.
B. Simultaneous with the execution of this Agreement, the Company and
the Employee will also enter into a License and Purchase Agreement, the subject
of which will pertain, in part, to the duties of the Employee while employed by
the Company (the "License Agreement").
C. The Company wishes to enter into an agreement with the Employee
governing the terms and conditions of his employment, and the Employee is
willing to be employed on the terms and conditions set forth in this Agreement.
TERMS AND CONDITIONS
In consideration of the premises recited above and the mutual covenants
set forth in this Agreement, the parties hereby agree as follows:
1. EMPLOYMENT PERIOD. The Company agrees to employ the Employee, and
the Employee agrees to serve the Company in the capacity noted below, for the
period beginning on the date of this Agreement and ending on December 15, 1998,
unless the Employee's employment is terminated pursuant to paragraph 4 or
paragraph 6 of this Agreement. Unless his employment is terminated earlier
pursuant to the terms of this Agreement, after December 15, 1998, the Employee
shall continue to be employed by the Company as an employee at will.
2. DUTIES. The Employee shall perform such duties as the Vice President
of Research or the Development Manager of the Company shall direct. The Employee
shall devote his best efforts and all of his business time and attention (except
for usual vacation periods and reasonable periods of illness or other
incapacity) to the business of the Company and its divisions and subsidiaries.
3. COMPENSATION. During the term of his employment, the Employee shall
be compensated as follows:
a. Salary. The Employee shall be paid a salary at an initial rate of
$65,000 per year. The Employee's salary shall be reviewed by the Company from
time to time. The Employee's salary shall be paid in equal, semi-monthly
installments.
b. Stock Options. The Employee shall be granted an option to
purchase 15,000 shares of the Company's common stock (the "Options") subject to
the terms and conditions of the Company's 1996 Omnibus Stock Plan and related
stock option agreement. The Options shall vest according to the following
schedule: 20% of the Options will vest immediately and 20% of the remaining
Options will vest annually thereafter. The provisions of this Agreement shall
supersede any contrary terms found in the Company's Omnibus Stock Plan and
related stock option agreement.
c. Expenses. The Employee shall be reimbursed for all reasonable
business expenses incurred in the performance of his duties pursuant to this
Agreement, to the extent such expenses are substantiated and are consistent with
the general policies of the Company and its subsidiaries relating to the
reimbursement of expenses.
d. Vacations; Fringe Benefits. In addition to any other compensation
provided under this Agreement, the Employee shall be entitled to vacation in
accordance with the Company's policies as in effect from time to time, and shall
be entitled to participate, during the term of his employment, in any employee
benefit plans or fringe benefit programs which are from time to time maintained
by the Company for its executive officers, in accordance with the provisions of
such plans or programs from time to time in effect.
e. Deductions and Withholding. All compensation and other benefits
payable to or on behalf of the Employee pursuant to this Agreement shall be
subject to such deductions and withholding as may be agreed to by the Employee
or required by applicable law.
4. DISABILITY. If, during the term of his employment, the Employee
shall become incapacitated by accident or illness and, in the opinion of the
Board of Directors of the Company, shall be unable to perform the duties of the
position he then occupies for a period of 120 consecutive days, the Company
shall have the right to place the Employee on disability status by giving
written notice thereof to the Employee, and the Employee's term of employment
shall terminate 30 days after such written notice is given. If the term of his
employment is thus terminated, the Employee shall not be entitled to receive any
compensation or other benefits pursuant to this Agreement, other than
compensation or benefits accrued through the effective date of termination of
employment. In the event that the Employee's employment is terminated pursuant
to this paragraph and does not receive benefits under any disability policy,
then fifty percent (50%) of any unvested Options held by Employee shall vest and
become exercisable in full at the expiration of the non-competition period set
forth in paragraph 7 of this Agreement, provided that the Employee has not
violated his obligations under this Agreement; and provided further, however,
that this provision shall not result in the extension of the expiration date of
any of the Options. Termination of the Employee's employment pursuant to this
section 4 shall not in any way effect either party's obligations under the
License Agreement or the enforceability of such agreement in general.
5. OTHER BENEFITS. The compensation provisions of this Agreement shall
be in addition to, and not in derogation or diminution of, any benefits that the
Employee or his beneficiaries may be entitled to receive under the provisions of
any pension, profit sharing, disability, or other employee benefit plan now or
hereafter maintained by the Company.
6. TERMINATION.
a. By the Company, For Cause. The Company may terminate the
Employee's employment for "cause" immediately, by delivering to the Employee
written notice of such termination.
(i) If the Company terminates the Employee's employment for
cause, the Employee shall not be entitled to receive any compensation or other
benefits pursuant to this Agreement, other than the compensation or benefits
accrued through the effective date of termination of his employment.
(ii) For the purposes of this Agreement, "cause" shall mean any
failure by the Employee to comply with the terms of this Agreement in any
material respect, any failure by the Employee to follow lawful reasonable
written directions of the Employee's managing supervisor, any conduct by the
Employee that has a material detrimental effect upon the Company, or any conduct
by the Employee involving dishonesty or moral turpitude.
b. By the Company, Without Cause. The Company may terminate the
Employee's employment without cause upon 30 days prior written notice to the
Employee. If the Company terminates the Employee's employment at any time for
reasons other than those specified in paragraph (ii) of subparagraph 6.a. of
this Agreement, then any unvested Options held by the Employee shall vest and
become exercisable in full at the expiration of the non-competition period set
forth in paragraph 7 of this Agreement, provided that the Employee has not
violated his obligations under this Agreement; and provided further, however,
that this provision shall not result in the extension of the expiration date of
any of the Options.
c. By the Employee, For Cause. The Employee may terminate his
employment upon 30 days prior written notice to the Company if the Company fails
to perform any of its obligations under this Agreement or the License Agreement.
The 30-day written notice shall specify in reasonable detail the basis for
termination by the Employee and, during such 30-day period, the Company shall
have the opportunity to cure the stated reason. If the Company fails to cure a
stated reason, the Employee may terminate his employment at the end of the
30-day notice period.
d. By the Employee, Without Cause. After December 15, 1998, the
Employee may voluntarily terminate his employment at any time upon 30 days prior
written notice to the Company.
(i) If the Employee terminates his employment for reasons other
than those specified in subparagraph 6.c. of this Agreement, the Employee shall
not be entitled to receive any compensation or other benefits pursuant to this
Agreement, other than the compensation or benefits accrued through the effective
date of termination of his employment; or
(ii) If the Employee terminates his employment for reasons other
than those specified in subparagraph 6.c of this Agreement prior to December 15,
1998, in addition to any and all remedies available under the law, the Company
will not be required to pay any further Transfer Fees owed to the Employee under
the License Agreement in order to receive full ownership of the Software. (Any
terms used in this paragraph 6.d.ii which have not been defined in this
Agreement are to be construed as defined in the License Agreement).
e. Termination After Change in Control. If, after a "change in
control" of the Company, the Employee's employment is terminated by the Company
pursuant to paragraph 6.b. or by the Employee pursuant to paragraph 6.c., all
unvested Options held by the Employee shall vest and become exercisable in full
at the expiration of the non-competition period set forth in paragraph 7 of this
Agreement, provided that the Employee has not violated his obligations under
this Agreement; and provided further, however, that this provision shall not
result in the extension of the expiration date of any such stock option. For
purposes of this Agreement, "change in control" shall mean (i) the merger or
consolidation of the Company with or into another corporation under
circumstances in which the Company is not the surviving entity; or (ii) the sale
of all or substantially all of the assets and business of the Company, or all or
substantially all of the Company's equity securities.
7. COMPETITION; NON-SOLICITATION.
a. During the term of his employment, the Employee will not, except
with the express written consent of the Board of Directors of the Company,
become engaged in, or permit his name to be used in connection with any business
other than the businesses of the Company and its subsidiaries, whether or not
such other business is a competitive business.
b. The Employee covenants and agrees that during the term of his
employment and for a period which is the longer of (1) two years from the date
of this Agreement and only if Employee terminates his employment "without
cause"; or (2) six months from the termination of the Employee's employment with
the Company, he will not, except with the express written consent of the Board
of Directors of the Company:
(i) directly or indirectly engage in, or permit his name to be
used in connection with, any competitive business;
(ii) directly or indirectly engage in business with a customer of
the Company and thereby cause the Company to lose said customer's business or
any significant part thereof;
(iii) directly or indirectly solicit, divert, take away or
attempt to solicit any business of the Company or its subsidiaries;
(iv) directly or indirectly solicit the services of any supplier,
distributor or representative of the Company or induce any supplier, distributor
or representative of the Company to terminate or discontinue its relationship to
the Company; or
(v) directly or indirectly hire, offer to hire, entice away or in
any manner persuade or attempt to persuade any officer, employee or agent of the
Company or any of its subsidiaries to discontinue his or her relationship with
the Company or its subsidiaries.
c. For the purposes of this paragraph 7:
(i) the phrase "directly or indirectly engage in" shall
encompass: (A) all of the Employee's activities whether on his own account or as
an employee, director, officer, agent, consultant, independent contractor, or
partner of or in any person, firm or corporation (other than the Company and its
subsidiaries), or (B) the Employee's ownership of more than 2% of the voting
stock of the corporation, 5% or more of the gross income of which is derived
from any business or businesses in which the Employee may not then engage; and
(ii) the phrase "competitive business" shall mean the conduct,
anywhere in the world, of: (A) the development and/or sale of software for
geometric computing and solid modeling, including but not limited to software
modeling kernels for sale or license to other software developers; or (B) any
other business which accounts for, or is reasonably anticipated to account for,
at least 5% of the Company's consolidated gross revenues.
8. DISCLOSURE OF INFORMATION. Employee acknowledges that, in and as a
result of his employment by the Company, he will be making use of, acquiring
and/or adding to confidential information of a special and unique nature and
value, including, without limitation, the Company's trade secrets, products,
systems, programs (including, without limitation, the Company's computer
software programs, procedures, manuals, guides, as periodically updated or
supplemented), confidential reports and communications (including, without
limitation, customer site information, technical information on the performance
and reliability of the Company's products or programs and the development or
acquisition of future products or product enhancements by the Company) and lists
of customers, as well as the nature and type of the services rendered by the
Company and the fees paid by the Company's customers. Employee further
acknowledges that any information and materials received by the Company from
third parties in confidence (or subject to nondisclosure covenants) shall be
deemed to be and shall be confidential information within the meaning of this
paragraph 8. As a material inducement to the Company to employ Employee and to
pay to Employee compensation for such services to be rendered to the Company by
Employee (it being understood and agreed by the parties hereto that such
compensation shall also be paid and received in consideration hereof), Employee
covenants and agrees that he shall not, except with the prior written consent of
the Company, or except if Employee is acting as an employee of the Company
solely for the benefit of the Company in connection with the Company's business
and in accordance with the Company's business practices and employee policies,
at any time during or following the term of his employment with the Company,
directly or indirectly divulge, reveal, report, publish, transfer or disclose,
for any purpose whatsoever, any of such confidential information which has been
obtained by or disclosed to him as a result of his employment with the Company,
including, without limitation, any Proprietary Information, as defined in
paragraph 9 hereof.
9. DEFINITION OF PROPRIETARY INFORMATION. For purposes of this
Agreement, the term "Proprietary Information" shall mean all of the following
materials and information (whether or not reduced to writing and whether or not
patentable or protectable by copyright) which Employee receives, receives access
to, conceives of or develops, in whole or in part, as a direct or indirect
result of his employment with the Company, in the course of his employment with
the Company, (in any capacity, whether executive, managerial, planning,
technical, sales, research, development, manufacturing, engineering or
otherwise) or through the use of any of the Company's facilities or resources:
(a) Application, operating system, communication and other computer
software, including, without limitation, all versions and all options available
with respect to, and all future products developed or derived from Geometric
Processing mathematical models, used in various applications pertaining to the
Company's business;
(b) With respect to the software, hardware and related items
described in paragraph 9.a above, all source and object codes, flowcharts,
algorithms, coding sheets, compilers, assemblers, design concepts, routines and
sub-routines, documents and manuals;
(c) Production processes, marketing techniques, mailing lists,
purchasing information, price lists, pricing policies, quoting procedures,
financial information, customer and prospect names and requirements, customer
data, customer site information and other materials or information relating to
the manner in which the Company does business;
(d) Discoveries, concepts and ideas, whether or not patentable or
protectable by copyright, including, without limitation, the nature and results
of research and development activities, technical information on product or
program performance and reliability, processes, formulas, techniques,
"know-how", source codes, object codes, designs, drawings and specifications;
(e) Any other materials or information related to the business or
activities of the Company which are not generally known to others engaged in
similar businesses or activities; and
(f) All ideas which are derived from or relate to Employee's access
to or knowledge of any of the above-enumerated materials and information.
Failure to xxxx any of the Proprietary Information as confidential shall not
affect its status as part of the Proprietary Information under the terms of this
Agreement.
10. OWNERSHIP OF INFORMATION.
(a) Employee hereby assigns to the Company all of Employee's right,
title and interest in any idea (whether or not patentable of protectable by
copyright), invention, computer software program or other computer related
equipment or technology, conceived or developed in whole or in part, or in which
Employee may have aided in its development, while employed by the Company,
including, without limitation, any Proprietary Information. If any one or more
of the aforementioned are deemed in any way to fall within the definition of
"work made for hire", as such term is defined in 17 U.S.C. ss. 101 such work
shall be considered "work made for hire", the copyright of which shall be owned
solely, completely and exclusively by the Company. If any of the aforementioned
are considered to be work not included in the categories of work covered by the
"work made for hire" definition contained in 17 U.S.C. ss. 101, such work shall
be owned, assigned or transferred completely and exclusively to the Company.
Employee agrees to execute any instruments and to do all other things reasonably
requested by the Company (both during and after Employee's employment with the
Company) in order to more fully vest in the Company all ownership rights in
those items hereby transferred by Employee to the Company. Employee further
agrees to disclose immediately to the Company all Proprietary Information
conceived or developed in whole or in part by him during the term of his
employment with the Company and to assign to the Company any tight, title or
interest he may have in such Proprietary Information.
(b) Employee hereby represents and warrants that Employee has fully
disclosed to the Company on Schedule A hereto any idea, invention, computer
software program or other computer-related equipment or technology not covered
in paragraph 9.a above which, prior to his employment with the Company, Employee
conceived of or developed, wholly or in part, but which has not been published
or filed with the United States Patent or Copyright Offices.
11. REMEDIES.
a. Specific Performance; Injunctive Relief. It is agreed that it
would be difflcult to measure the damage to the Company from any breach of this
Agreement by the Employee, and that injury to the Company from any breach would
be incalculable and irremediable and that damages therefor may be an inadequate
remedy. Accordingly, the Employee agrees that the Company may obtain specific
performance and/or injunctive relief in order to enforce the provisions of this
Agreement or prevent any violation thereof. This provision with respect to
specific performance and injunctive relief shall not, however, diminish the
right of the Company to claim and recovery damages in addition to specific
performance and injunctive relief.
b. Enforcement. If, at the time of enforcement of any provision of
paragraphs 7, 8, 9, and 10, a court shall hold that the period, scope, or
geographical area restrictions stated therein are unreasonable under
circumstances then existing, the maximum period, scope, or geographical area
reasonable under the circumstances shall be substituted for the stated period,
scope, or area.
12. SUCCESSORS.
a. Of the Company. The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation, or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would have been required to perform it if no such
succession had taken place. Failure of the Company to obtain such agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Employee to terminate his employment with the
Company and to receive the payments provided for in subparagraph 6.e. As used in
this Agreement, "Company" shall mean the Company as hereinbefore defined, and
any successor to the business and/or assets of the Company which executes and
delivers the agreement provided for in this paragraph 12 or which otherwise
becomes bound by all the terms and provisions of this Agreement as a matter of
law.
b. Of the Employee. This Agreement shall inure to the benefit of and
shall be enforceable by the Employee, his legal representative, or other
successors in interest.
13. GENERAL PROVISIONS.
a. Modification, Amendment or Waiver. No modification, amendment, or
waiver of any provision of this Agreement shall be effective unless approved in
writing by both parties. The failure at any time to enforce any of the
provisions of this Agreement shall in no way be construed as a waiver of such
provisions and shall not affect the right of either party thereafter to enforce
each and every provision of this Agreement in accordance with its terms.
b. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
c. Assignment. The Employee's rights and interests under this
Agreement may not be assigned, pledged, or encumbered by him without the
Company's written consent.
d. Survival. The rights and obligations of the parties, included but
not limited to those under paragraphs 7, 8, 9, and 10 hereof, shall survive the
term of the Employee's employment to the extent that any performance is required
under this Agreement after the expiration or termination of such term.
e. No Strict Construction. The language used in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
person.
f. Notices. Any notice to be served under this Agreement shall be in
writing and shall be deemed given when personally delivered or when mailed by
registered or certified mail, registry or certification fee and postage prepaid
and return receipt requested, addressed:
If to the Company, to XOX Corporation
0000 Xxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
If to the Employee, to: Xxxxxxx X. Gavois
_________________________________
_________________________________
_________________________________
or to such other place as either party may specify in writing, delivered in
accordance with the provisions of this subparagraph.
g. Entire Agreement. This Agreement constitutes the entire agreement
of the parties with respect to the subject matter hereof, and supersedes all
previous agreements between the parties relating to the same subject matter.
h. Applicable Law. All questions concerning the construction,
validity, and interpretation of this Agreement shall be governed by the laws of
the State of Minnesota.
i. Effect of Headings. The headings of all of the paragraphs and
subparagraphs of this Agreement are inserted for convenience of reference only,
and shall not affect the construction or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
THE COMPANY: XOX CORPORATION
By /s/ Xxxxxxxx X. XxXxxx
--------------------------------
Xxxxxxxx X. XxXxxx
President and CEO
EMPLOYEE:
By /s/ Xxxxxxx X. Gavois
--------------------------------
Xxxxxxx X. Gavois
SCHEDULE A
-Any idea, original or special algorithms, mathematical formula, methods or
know-how (the "Trade Secrets and Patentable Inventions" as defined in the
License Agreement) used or embodied in the Software MACADAMIA prior to or at the
time of its delivery to the Company.
-The idea of computing on a surface the reflexion lines of a set of
line-sources of light, equally spaced on a large cylinder, by using reversed
ray-tracing and coding the result (color of pixels) on the bitmap of the screen
such that simple swapping of the bit of that bitmap in graphic memory would give
the illusion of reflexion lines on the surface interactively moving from one
position to another corresponding to diverse rotations (angular shift) of the
cylinder supporting the original line-sources of lights.
