Exhibit 10.104
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into effective
as of the 6th day of October, 1997 ("Effective Date") by and between
Microelectronic Packaging, Inc. a California corporation ("Company"), and Xxxxxx
Xxxxxx ("Employee").
WHEREAS, the Company desires to employ Employee and Employee desires to be
employed by Company upon all the terms and conditions contained in this
Agreement.
NOW THEREFORE, in consideration of the mutual agreement herein contained,
the parties hereto hereby agree as follows:
1. Employment: Subject to the terms and conditions of this Agreement, the
Company hereby employs Employee as President and Chief Executive
Officer and in such capacity Employee shall serve as the Company's
chief executive officer with full authority and responsibility for the
general supervision and management of all the Company's business.
Employee will have the responsibilities and duties commensurate with
the position of President and Chief Executive Officer of a public
company on an on-0going basis. Employee hereby accepts such employment
ang agrees to perform the services specified herein, all upon the
terms and conditions herein contained. Employee agrees to perform in
good faith and to the best of his ability all services which may be
required of him hereunder, and to be available to render services at
all reasonable times and places in accordance with such reasonable
directions, requests, rules and regulations made by the Company in
connection with his employment. Employee will be reporting directly to
the Board of Directors of the Company.
1.1 Title: Employee title will be President and Chief Executive
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Officer. Employee will also be elected as a member of the Board
of Directors of the Company (the "Board") at the next meeting of
the Board.
2. Term:
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2.1 Initial Term: The term of this Agreement and Employee's
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employment hereunder shall commence on Effective Date and,
subject to earlier termination as provided in Section 11 hereof,
continue for a period of one (1) year ("Employment Period").
2.2 Extension of term: The term of this Agreement shall
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automatically be extended, unless not less than one (1) year
prior to the expiration date, the Company shall have delivered
written notice to Employee that the term of this Agreement shall
terminate on the expiration date; or Employee, not less than
thirty (30) days prior to the expiration date, elects to
terminate this Agreement by delivering written notice of such
desire to terminate to
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Company Initials: /s/ AJM / Employees Initials: /s/ A.W.
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the Company. The extension period hereunder shall be referred to
herein as an "Option Period".
3. Compensation:
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3.1 Salary: Subject to the other terms of this Agreement, Company
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shall pay and Employee shall be entitled to receive from the
Company an annual salary ("Base Salary") of not less than
$220,000 for services rendered, paid in equal twice monthly
installments. The twice-monthly payment periods are referred to
herein as the "Payment Periods". The salary due under this
Section 3.1 during any Payment Period is referred to herein as
the "Installment Amount".
3.2 Annual Salary Increase: On each anniversary of the effective
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date of this Agreement, the Employee shall receive an increase
of no less than six (6) percent of his annual base salary.
3.3 Bonus: Employee shall be entitled to the following bonus,
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payable in cash within ten (10) days after the end of the
quarter:
. Target Bonus: A target bonus equal to sixty percent (60%) of
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Employee's then existing base salary. That bonus will become
payable quarterly pro rata upon the Company's achievement of
the performance criteria set forth in the business plan to be
prepared by Employee for the Company and approved by the
Board. However, payment of $25,000 of the target bonus will
be paid at the end of the first three (3) months of your
employment with the Company, provided that by such date, you
have completed the business plan and such plan has been
approved by the board.
3.4 Equity: Employee will be granted a stock option to purchase
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500,000 shares of the Company's common stock (the "Option"). The
exercise price of the Option will be the fair market value of
the Company's stock on the date of grant, which is the Effective
Date of employment, as determined with reference to the trading
price of the common stock.
The option shares will vest over a three (3) year period
measured from the Effective Date, with such stock vesting
monthly pro rata over the course of three (3) years. Such
options to be exercised within ten (10) years of grant. Upon
merger, acquisition, termination of Employment other than for
cause, or voluntary termination by Employee, all stock options
will vest immediately.
3.5 Reimbursement of Expenses: During the Term of the Employment
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Period and each Option Period, if any, employee shall be
authorized to incur
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Company Initials: /s/ AJM / Employees Initials: /s/ A.W.
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reasonable and necessary expenses according to the Company's
policy for the purpose of promoting the business of the Company,
including, without limitation, expenses for entertainment,
travel and similar items, provided such expenses are reasonable
and have a business purpose. The company shall reimburse
Employee for such expenses upon the presentment by Employee of
an itemized accounting of such expenses, including receipts
where required by federal tax regulations. Such accounting shall
be promptly forwarded to the company.
4. Additional Benefits: Throughout the term of the Employment Period and
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each Option Period, if any, Employee shall be entitled to receive
executive benefits that are currently provided to executive officers
of the Company (i) such benefits or rights as may be provided under
any Employee benefit plan approved by the Company from time to time,
and (ii) such other benefits and perquisites of employment as a
generally made available to other members of management of the
Company, including, without limitations, participation in life,
medical, disability, retirement and dental insurance plans, and
participation in equity incentive and stock plans of the Company.
5. Vacation, Sick Leave and Holidays: Employee shall have the right
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during each year of the Employment Period and Option Period, if any,
of this Agreement to take an aggregate of fifteen (15) business days
of vacation with pay at such time as may be mutually agreed upon by
the Company and Employee. In addition, Employee shall be entitled to
paid time off for personal illness and for observance of holidays in
accordance with the Company's policy as may exist from time to time.
6. Devotion of Time: During the term of the Employment Period and each
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Option Period, if any, Employee shall devote full time attention and
energies to the business of the Company in order that he may
satisfactorily and completely perform his duties hereunder. Except as
may be specifically permitted by the Company in writing, Employee
shall not be engaged in any other business activity while in the
employ of the Company; provided, however, Employee may serve on the
Board of directors of other companies without the Company's written
consent. The foregoing shall not be construed as preventing Employee
from making passive investments in other businesses or enterprises;
provided, however, that such investments will not require services on
the part of Employee which would in any way impair the performances of
his duties under this Agreement and, provided further, that such other
businesses or enterprises are not engaged in any business competitive
with the business of the Company as of the time at which such
investments made, or shall the foregoing be construed as requiring the
divestiture of any investment made, or shall the foregoing be
construed as requiring the divestiture of any investment made by
Employee prior to the date hereof. The foregoing shall in no way limit
the application of corporate policy generally applicable to employees
in comparable positions.
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Company Initials: /s/ AJM / Employees Initials: /s/ A.W.
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7. Directors and Officer Liability Insurance: The Company and Employee
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understand and agree that it is the mutual intent of the parties that the
Company agrees to use its best effort to obtain directors and officers
liability insurance in a form acceptable to Employee at the earliest
practicable time.
8. Disclosure to Company Inventions as Sole Property of Company: Employee
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agrees promptly to disclose to Company all inventions, ideas, discoveries,
improvements, trade secrets, formulae, techniques, processes' developments,
know-how, writings, computer programs, and other intellectual property
(hereinafter collectively referred to as the "Inventions"), whether or not
patentable or copyrightable and whether or not reduced to practice,
conceived, made or learned by Employee during the period of his employment,
whether alone or jointly with others, which relate to or result from the
actual or anticipated business, work, research, or investigations of
Company or which result to any extent from use of Company's premises,
resources, property or facilities.
Employee acknowledges and agrees that all inventions (including all patents
rights and rights of copyright therein) shall be the sole property of
Company or such other person or entity as may be designated by Company, and
Employee hereby assigns and agrees to take all reasonable steps to assign
to company Employee's entire right and interest in and to all the
Inventions provided that any such assignment or agreement to assign
complies with the provisions of Section 2870 of the California Labor Code.
Further, Company or its designee shall be the sole owner of all domestic
and foreign rights pertaining to the Inventions. Employee agrees to assist
Company in every reasonable way (at Company's expense) to obtain, register
and enforce patents and copyrights on the Inventions in any and all
countries, and to execute all documents and do all other things reasonably
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necessary and appropriate to vest more fully in Company all right, title,
and interest, including copyrights and patent rights, in and to the
Inventions. Employee's obligation to assist Company in obtaining,
registering and enforcing patents and copyrights shall survive termination
of Employee's employment, but Company shall compensate Employee at
reasonable rate after such termination for the time actually spent by
Employee at Company's request for such assistance.
9. Key Man Life Insurance: Employee agrees that key man life insurance may be
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required by a future investor, Employee will cooperate with Company in
obtaining said insurance.
10. Restrictive Covenants:
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10.1 Non-Competition: During the term of the Employment Period and each
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Option Period, if any, Employee shall not, directly or indirectly,
carry on or
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Company Initials: /s/ AJM / Employees Initials: /s/ A.W.
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be engaged or otherwise take part in or render service to any person
(other than the Company, its officers, directors, shareholders, employees,
and affiliates or any subsidiary of the Company or such persons) who or
which is engaged in any business of a type now or hereafter (but during
the Employment Period, and each Option Period), in competition with the
Company. Without limiting the generality of the foregoing provisions of
this Section 8.1, Employee shall be deemed to be engaged in a particular
business if he is an owner, proprietor partner, stockholder, officer,
employee, independent contractor, director or joint venture of, or a
consultant to, any person who or which is directly or indirectly engaged
in such a business. The restrictions of this Section 10.0 prohibit
ownership in a competitive business shall not apply to (i) any ownership
or interest held by Employee at the time of execution of this Agreement,
(ii) any ownership, directly or indirectly, of not more than five percent
(5%) of any class of equity securities of a corporation, provided such
class of equity security is registered under the Securities Exchange Act
of 1934, or (iii) any investment in real property (whether made directly
or through the vehicle of partnership, corporation, investment trust or
other entity), provided that no entity in competition with the Company may
be a lessee of some or all of such real property. For the purpose of this
Section 10.1, the Business of the Company shall include only any business
involved in the development and/or manufacture of interconnect components.
10.2 Delivery of Records: Upon demand and/or termination of Employee's
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employment with the Company, whichever occurs first, Employee shall
deliver to the Company all papers, documents, writing, books, records,
lists of customers and investors, brochures and other property belonging
to the Company or produced by him or coming into his possession by or
through his employment or relating to the confidential knowledge,
information or facts described in Section 10.3 hereof and Employee agrees
that all such materials will at all times remain the property of the
Company. The provisions of this Section 10.2 shall survive the termination
of this Agreement.
10.3 Confidentiality: Except in the course of the Company's business, Employee
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shall not at any time during or after his employment with the Company,
reveal, divulge or make known to any person, firm or corporation outside
Company, any confidential knowledge or information or any confidential
facts concerning any customers, methods, developments, schedules, lists,
plans or other confidential information, knowledge or facts of or relating
to the business of the Company and will retain all confidential knowledge
and information which he has acquired or which he will acquire during his
employment therewith relating to such costumers, method, developments,
schedules, lists or plans and the business of the Company for the sole
benefit of the Company, its successor and assigns, provided,
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Company Initials: /s/ AJM / Employees Initials: /s/ A.W.
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however, that this restriction shall not apply to any knowledge,
information or fact held by or known to Employee which is generally
available from sources other than Employee for a period of five (5)
years. The provisions of Section 10.3 shall survive the termination
of this Agreement.
10.4 Specific Performance: Employee acknowledges that a remedy at low for
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any breach or attempted breach of Section 10.2 and 10.3 of this
Agreement may be inadequate and agrees that Company shall be entitled
to specific performance and injunctive and other equitable relief in
case of any such breach or attempted breach, and further agrees to
waive any requirement for the securing or posting of any bond in
connection with the obtaining of any such injunctive or any other
equitable relief. Nothing herein shall be construed as prohibiting
the Company from pursuing any other remedies available to the Company
for such breach or threatened breach, including recovery of damages
from Employee. In the event the Company brings action to enforce its
rights hereunder, Employee shall pay all the Company's court costs
and legal fees and expenses arising out of such action if the Company
prevails in such action, and the Company shall pay all of Employee's
court costs and legal fees and expenses arising out of such action if
Employee prevails in such action.
10.5 Reasonableness: In the event any court shall finally hold that the
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time or territory or any other provision of this Section 10
constitutes an unreasonable restriction against Employee, the
provisions hereof shall not be rendered void but shall apply as to
such time, territory and other provisions to such extent as such
court may judicially determine or indicate constitutes a reasonable
restriction under the circumstances involved.
11. Termination:
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11.1 Termination by the Company or Employee: This Agreement may be
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terminated for any reason at any time by either party during the
Employment Period or Option Period, if any, upon thirty (30) days
written notice to the other party, provided, however, that unless
Employee is terminated "for cause", as set forth below, or Employee
voluntarily terminates this Agreement other than for "good reason",
and except as provided in Sections 11.2 and 11.3 hereof, Employee
shall be entitled to be paid for one (1) year his aggregate salary
within five business days of Employee's termination. For purposes of
determining Employee's aggregate salary, Employee shall receive
payment of his Base Salary at the highest annual salary level plus
any accrued, but unpaid bonus amounts already earned as of the
termination date.
Severance: In case of termination by the Company for reasons other
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than "cause" or if Employee voluntarily terminates this Agreement for
"good
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Company Initials: /s/ AJM / Employees Initials: /s/ A.W.
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reason", the Company agrees to pay Employee on (1) year continuation
of Employee aggregate salary within five (5) business days of
termination. The Company will make Employee's COBRA payments for
twelve (12) months following such termination.
In the event, however, that Employee is terminated "for cause", he
shall be entitled to no further compensation.
(a) For purposes of this Agreement, "for causes" shall mean (i) the
willful and continued failure by Employee to substantially
perform his duties hereunder (other than such failure resulting
from Employee's incapacity due to physical or mental illness)
after written demand for substantial performance is approved by
the Board of Directors and delivered by the Company that
specifically identifies the manner in which the Company
believes Employee has not substantially performed his duties;
or (ii) the conviction of Employee of any felony. For purposes
of this Agreement, no act, or failure to act, on Employee's
part shall be considered "willful" unless done, or omitted to
be done, by Employee not in good faith and without reasonable
belief that such action or omission was in the best interest of
the Company. Notwithstanding anything to the contrary in the
foregoing, no termination or other action shall be considered
to be for cause under this agreement unless (x) Employee first
shall have received notice setting for the reasons for the
Company's intention to terminate or take other action and (y)
within fifteen (15) days after delivery of such notice,
Employee has not remedied the circumstances constituting the
basis for the proposed "for cause" termination, provided,
however, if more than fifteen (15) days are reasonably needed
to remedy such circumstances, Employee shall have the number of
additional days as, are reasonable to effectuate such remedy
but in no case greater than thirty (30) additional days and (z)
within thirty (30) days after the expiration of the period
during which Executive may remedy such circumstances Employee
shall have been provided an opportunity to appear, accompanied
by counsel, and be heard before the Board, and the Board shall
have duly adopted by an authorized action of the Board, and
provided to Employee, a resolution finding that in the good
faith option of the Board, Employee was guilty of conduct
constituting "cause", as set forth above, and specifying the
particulars thereof in detail.
(b) For purposes of this Agreement, "good reason" shall mean (i)
without Employee's written consent (A) the failure of the
Company to vest Employee with the powers and authority of the
Company's President and Chief Executive Officer, (B) and
removal of
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Company Initials: /s/ AJM / Employees Initials: /s/ A.W.
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Employee from or failure to re-elect Employee to such offices
other than for cause or (C) the assignment to Employee of any
duties substantially inconsistent with those customarily
performed by a company's President and Chief Executive Officer,
(ii) the failure of the Employee to serve as a member of the
Board for any reason other than a voluntary resignation by
Employee or his removal for cause, (iii) the failure of the
Company to nominate Employee for election as a director of the
Company at any election unless Employee declines to stand for
election, (iv) the failure by the Company, without Employee's
written consent, to include Employee as a participant in any
bonus plans as provided in this Agreement, (v) the failure of
the Company to obtain from any successor or assignee of all or
substantially all of the business of the Company, before the
succession or assignment takes place, an agreement to assume
and perform this Agreement, (vi) any purported termination of
Employee's employment for cause which is not effected pursuant
to a notice described in this Agreement, or (vii) the failure
of the Company to comply with any material provision of this
Agreement.
11.2 Termination by Employee: In the event that Employee voluntarily
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terminates this Agreement other than for "good reason", he shall be
entitled to the following compensation:
(a) Employee shall be entitled to the Base Salary due under Section
3.1 and any accrued but unpaid bonus payments and Equity
provided for in Sections 3.2, 3.3, and 3.4 of this Agreement.
11.3 Termination by Death or Disability: The parties hereto mutually agree
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that although, pursuant to Section 4, Employee will be offered
participation in any disability plan the Company might enter,
providing, for the security of one's family in the event of one's
demise or disability ultimately is a personal responsibility.
Accordingly, this Agreement and the Company's obligations to
Employee and Employee's heirs hereunder shall terminate upon the
death or disability of Employee, other than to pay unpaid salary and
bonus, if any, that shall have accrued as of the date of said death
or disability, subject to the following provisions:
(a) Death: To the extent that any future investor might require the
Company to purchase a key man life insurance policy under
Section 9 above, Company shall make available to Employee the
opportunity to purchase a rider under said policy for the
benefit of Employee's designee(s).
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Company Initials: /s/ AJM / Employees Initials: /s/ A.W.
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(b) Disability: If and only if Company obtains disability insurance
covering Employee, Company agrees to pay to Employee Employee's
Base Salary from the date of Employee's disability until such time
as the disability insurance payments commence, for a period not to
exceed three months.
12. Notices: All notices or other communications required or permitted by this
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Agreement or by law to be given by any party hereto shall be in writing.
All such notices and communications shall be deemed duly served and given
to the other party when delivered by hand, if personally delivered, when
answered back, if telexed, when receipt is acknowledged, if telecopied; and
five (5) calendar days after mailed, if sent by registered or certified
mail with return receipt. For purposes hereof, notices and other
communications hereunder shall be directed to the parties hereto at the
following address:
(a) To the Company:
Microelectronic Packaging, Inc.
0000 Xxxxx Xxxxx
Xxx Xxxxx, XX 00000
(b) To Employee:
Xxxxxx Xxxxxx
0000 Xxxxx Xxxxx
Xx Xxxxx, Xxxxxxxxxx 00000
Any party hereto may change its address for the purpose of receiving
notices and other communications as herein provided by a written notice
given in the manner aforesaid to the other party or parties hereto.
13. Applicable Law: This Agreement shall, in all respects, be construed,
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interpreted and enforced in accordance with and governed by the internal
substantive laws of the State of California applicable to agreements
executed and to be wholly performed within the State of California, without
regard to choice of law rules thereof.
14. Severability: Any provision in this Agreement which is illegal, invalid or
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unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent to such illegality, invalidity or
unenforceability without invalidating the remaining provisions hereof or
affecting the legality, validity or enforceability of such provision in any
other jurisdiction. The parties hereto agree to negotiate in good faith to
replace any illegal, invalid or unenforceable provision of this Agreement
with a legal, valid and enforceable provision that, to the extent possible,
will preserve the economic bargain of this Agreement, or otherwise to
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Company Initials: /s/ AJM / Employees Initials: /s/ A.W.
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amend this Agreement, including the provision relating to choice of law, to
achieve such result.
15. Modification or Amendment. No amendment, change or modification of this
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Agreement shall be valid unless in writing and signed by all the parties
hereto.
16. Successors and Assigns: This Agreement and the rights, interests and
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obligations hereunder may not be assigned by Employee. Neither Employee nor
his spouse shall have any right to commute, encumber or dispose of any
right to revive payments hereunder, it being the intention of the parties
that such payments and the right hereto are non-assignable and non-
transferable. All of the terms and provisions contained herein shall inure
to the benefit of and shall be binding upon the parties hereto, their
respective heirs, personal representatives, permitted assigns and
successors in interest.
17. Time of the Essence: Time of the essence of this Agreement and all of the
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terms, provisions, covenants and conditions hereof.
18. Entire Agreement: This document constitutes the entire understanding and
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agreement of the parties with respect to the subject matter of this
Agreement, and any and all prior agreements, understand or representations
are hereby terminated and canceled in their entirety and are of not further
force or effect.
19. Captions: The captions set forth in this Agreement are for convenience
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only and shall not be considered as part of this agreement or as in any way
limiting or amplifying the terms and provisions hereof.
20. Counterparts: This Agreement may be executed in multiple original
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Company:
Microelectronic Packaging, Inc.
By: /s/ Xxxxxx Xxx Xxxxx, Xx.
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Xxxxxx X. Xxxxx, Xx.
President & Chief Executive Officer
Employee:
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx 10/7/97
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Company Initials: /s/ AJM / Employees Initials: /s/ A.W.
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