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EXHIBIT 10.10
FORM OF EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of this 26th day of December, 1992, between
STORAGE DIMENSIONS, INC., a Delaware corporation formerly known as SDI
Acquisition Corporation (hereinafter called the "Employer"), and __________ of
__________, California (hereinafter called the "Employee").
WITNESSETH:
WHEREAS, pursuant to the terms of the Stock Purchase and Asset
Acquisition Agreement dated as of December 4, 1992 (the "Acquisition Agreement")
among the Employer, the Employee and certain other persons, the Employer is
acquiring the business operations and assets of Storage Dimensions, Inc., a
California corporation ("SDI"); and
WHEREAS, the Employee has been an executive of SDI and is intimately
familiar with its business operations; and
WHEREAS, the Employer desires to employ the Employee as an executive
officer and the Employee desires to accept such employment;
NOW, THEREFORE, in consideration of the premises, the covenants
contained herein, and other good and valuable consideration, the Employer and
the Employee hereby agree as follows:
ARTICLE 1
EMPLOYMENT OF EMPLOYEE
1.1 Employment and Term. The Employer hereby employs the Employee, and
the Employee hereby accepts employment with the Employer, upon the terms and
conditions hereinafter set forth for the period commencing on December 29, 1992
and terminating on the 31st day of December, 1995 (such period, as extended or
reduced pursuant hereto, being referred to herein as the "Term"), unless earlier
terminated pursuant to the provisions of Article 6.
1.2 Position and Location. The Employee is employed to be and serve as
the ____________________ of the Employer and shall work at 0000 XxXxxxxx
Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx or at such other location as may be agreed by
the Employee and the Board of Directors (the "Board") of the Employer.
ARTICLE 2
DUTIES OF EMPLOYEE
2.1 Primary Duty. The primary duty of the Employee shall be to serve as
the ____________________ of the Employer, and to carry out the duties of such
office as provided in the By-Laws of the Employer. The Employee shall devote his
full productive time, ability and attention, and his best efforts, to the
business of the Employer.
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ARTICLE 3
COMPENSATION AND BENEFITS
3.1 Base Compensation. As base compensation for his services to be
rendered under this Agreement, the Employee shall receive the same annual salary
as he is receiving on the date hereof as an employee of SDI, and shall be
eligible to receive merit increases on terms consistent with those under which
such increases have in the past been granted to him by SDI.
3.2 Additional Compensation. As additional compensation for services to
be rendered, the Employee shall be entitled to the following:
(a) Management Bonus Plan. Employee shall be entitled to cash
bonuses under and subject to the terms of Employer's Management Bonus Plan, a
copy of which is attached hereto as Exhibit A.
(b) Stock Options. Employee will be granted a nonstatutory option
to purchase up to ______ shares of Employer's Common Stock at an exercise price
of $0.05 per share. The option will vest over a four year period, will have a
ten year term and shares issuable upon exercise of the option will not be
subject to a right of repurchase.
(c) Other Plans. Employee will participate in Employer's Profit
Sharing Plan and any additional employee benefit plans which may be adopted by
Employer, as determined by the Board, as each such plan may be amended from time
to time by the Employer in its sole discretion.
3.3 Medical, Hospital and Other Benefits. The Employer agrees to
provide to the Employee substantially the same medical, hospital and other
benefits as are provided to him by SDI on the date hereof.
ARTICLE 4
COVENANT NOT TO COMPETE
4.1 Noncompetition Agreement.
(a) During the term of employment provided in Section 1.1 and any
extension or renewal hereof, Employee will be a full-time employee of the
Company. During such period, Employee will not, without the express written
consent of Employer:
(i) work as an employee, consultant, owner, part-owner,
shareholder, partner, director, officer, trustee or agent of any
business, whether or not competitive with Employer or any
subsidiary thereof (provided that Employee may invest in less
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than 5% of the outstanding shares of an enterprise whose
shares are publicly traded); or
(ii) invest in any new or ongoing business or venture
which investment would require Employee's active involvement
in such business or venture.
(b) In addition, for so long as Employee continues to be
engaged by Employer or any subsidiary thereof as an employee or a consultant and
for a period of not less than one (1) year and not more than two (2) years (as
selected by Employer within fifteen (15) days following the date of termination
of employment) after Employee ceases to be so engaged, but not longer than the
period during which Employer or any subsidiary thereof makes severance payments
to Employee pursuant to Section 5.3(a), Employee will not, without the express
written consent of Employer, directly or indirectly engage, participate or
invest in or assist, as owner, part owner, shareholder, partner, director,
officer, trustee, employee, agent or consultant, or in any other capacity, any
business organization other than Employer whose activities or products are
competitive with activities or products of Employer or any subsidiary thereof in
which activities Employee shall have participated or as to which products
Employee shall have had responsibility either in their development, marketing or
otherwise, provided that Employee may make passive investments in a competitive
enterprise the shares of which are publicly traded if Employee's investment
constitutes less than 5% of the outstanding shares of such enterprise. The
foregoing agreement not to compete shall apply in any and all cities and
counties of each state of the United States of America in which the activities
of Employer or any subsidiary thereof shall have been conducted, or the products
of any of them sold, on or before the date upon which Employee's employment by
Employer or any subsidiary thereof ceases.
4.2 No Interference. During the period in which the noncompetition
agreement set forth in Section 4.1 is in effect, the Employee shall not, whether
for his own account or for the account of any other individual, corporation,
partnership, firm, joint venture, sole proprietorship or other entity (other
than the Employer), intentionally solicit, endeavor to entice away from the
Employer, or otherwise interfere with the relationship of the Employer with, any
person who is employed or retained in any capacity by the Employer (including,
but not limited to, any independent sales representative or organization), or
any person or entity who is, or was within the then most recent twelve-month
period, a customer or client of the Employer.
4.3 Secrecy. The Employee agrees to execute and be bound by the terms
of the Proprietary Information Agreement of the Employer (the "Proprietary
Information Agreement"), a form of which is attached hereto as Exhibit B. Any
breach of the Proprietary Information Agreement shall be deemed to be a breach
of the provisions of this Article 4.
4.4 Injunctive Relief. Without limiting the remedies available to the
Employer, the Employee acknowledges that a breach of any of the covenants
contained in this Article 4 or in the Proprietary Information Agreement may
result in material irreparable injury to the Employer for which there is no
adequate remedy at law, that it will not be possible to measure damages for such
injuries precisely and that, in the event of such a breach or threat thereof,
the Employer shall be
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entitled to obtain a temporary restraining order and/or a preliminary or
permanent injunction restraining the Employee from engaging in activities
prohibited by this Article 4 or such other relief as may be required to enforce
specifically any of the covenants in this Article 4.
ARTICLE 5
RENEWAL; TERMINATION
5.1 Renewal. After the initial term set forth in Section 1.1, this
Agreement shall automatically continue until termination by either party on not
less than 60 days' written notice to the other.
5.2 Termination.
(a) This Agreement and Employee's employment hereunder may be
terminated at any time by the mutual consent of the parties hereto.
(b) Employee's employment may be terminated by Employer for
any reason (in addition to the reasons set forth in Section 5.2(c)), or for no
reason, by Employer giving Employee thirty (30) days written notice of
termination and, in such event, Employer shall make severance payments as
provided in Section 5.3(a). If Employee voluntarily terminates his employment
thereunder as a result of (i) a change in the location at which Employee is
expected to perform his duties to a location outside of Santa Xxxxx County, (ii)
a decrease in compensation or benefits payable to Employee which is not
applicable to Employer's executive employees generally, (iii) a material
diminution of the duties assigned to Employee, (iv) a material breach of this
Agreement (including the terms of the Management Bonus Plan attached as an
Exhibit hereto) by Employer, which breach is not cured within thirty (30) days
after written notice thereof by Employee, or (v) a change in the position or
title of Employee, such termination shall be deemed to be a termination by
Employer pursuant to this Section 5.2(b) and Employer shall make severance
payments as provided in Section 5.3(a).
(c) Employee's employment hereunder may be terminated by
Employer, effective upon written notice to Employee, in the event of:
(i) the willful commission by the Employee of any act or
acts that are dishonest and demonstrably and materially injurious to
the Employer, monetarily or otherwise;
(ii) the Employee is found guilty by a court of competent
jurisdiction of any felonious act or acts involving moral turpitude;
(iii) a material breach of any of the covenants set forth
in Article 4 of this Agreement; or
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(iv) the resignation by the Employee from his
employment hereunder simultaneously with or following (A) his
termination for any of the reasons set forth in subsections (i) - (iii)
above, or (B) the occurrence of an event which if known to the Employer
at the time of such resignation would constitute grounds for
termination by Employer pursuant to subsections (i) - (iii) above.
5.3 Effects of Termination.
(a) Upon a termination described in Section 5.2(b), Employer
shall pay to Employee each month during the period of non-competition by
Employee selected by Employer pursuant to Section 4.1(b) (but in no event for
less than one (1) year or more than two (2) years), less applicable income tax
withholding, one hundred percent (100%) of Employee's monthly salary in effect
on the date of termination of Employee's regular employment hereunder, such
amount to be payable in equal installments on the Company's normal payment date
for employees beginning on the payment date next following the date of
termination. In addition, vesting under the stock option referred to in Section
3.2(b), and in any subsequently granted stock options, shall be accelerated and
such stock option(s) shall become immediately exercisable in full.
(b) If Employee is terminated for any reason other than as
specified in 5.2(b), (i) the stock option referred to in Section 3.2(b), and any
subsequently granted stock options, shall be exercisable only to the extent
vested in accordance with their terms, (ii) Employee's eligibility for payments
under the Management Bonus Plan and under any other employee benefit plan in
which employee was then participating shall be prorated through the termination
date and (iii) Employer shall have the option (exercisable within fifteen (15)
days following the date of termination of employment), but not the obligation,
to elect to continue the period of noncompetition by Employee for a period of up
to two (2) years. In the event that Employer elects to continue the period of
noncompetition as provided in this Section 5.3(b), Employer shall pay to
Employee each month during the period of non-competition by Employee selected by
Employer one hundred percent (100%) of Employee's monthly salary in effect on
the date of termination of Employee's regular employment hereunder (less
applicable income tax withholding), such amount to be payable in equal
installments on the Company's normal payment date for employees beginning on the
payment date next following the date of termination.
(c) Employee's employment under this Agreement will terminate
upon his death and in such event his current salary and his eligibility for and
right to payments under the Management Bonus Plan, if any, will be prorated as
of the date of his death.
(d) In the event of Employee's permanent physical or mental
disability or incapacity, this Agreement may be terminated by the Employer and
Employee will be subject to and entitled to benefits under the Employer's
disability plan, if any, as then in effect. In the event of such termination,
Employee's current salary and his eligibility for and right to payments under
the Management Bonus Plan, if any, will be prorated as of the date of such
disability or incapacity.
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ARTICLE 6
GENERAL PROVISIONS
6.1 Successors; Binding Agreement. This Agreement shall not be
assignable by Employee. This Agreement shall inure to the benefit of and be
enforceable by the Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Employee should die while any amount would still be payable hereunder if the
Employee had continued to live, all such amounts, unless otherwise provided to
the contrary herein, shall be paid in accordance with the terms of this
Agreement to the Employee's devisee, legatee or other designee to whom the right
to receive such payment shall have been effectively assigned or, if there is no
such devisee, legatee or other designee, to the Employee's estate.
6.2 Notices. Any notices to be given hereunder by either party to the
other may be effected either by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt requested. Mailed
notices shall be addressed to the parties at the addresses appearing below, but
each party may change his address by written notice in accordance with this
Section . Notices delivered personally shall be deemed communicated as of actual
receipt; mailed notices shall be deemed communicated as of three (3) days after
mailing. Notices shall be sent:
To Employer: Storage Dimensions, Inc.
c/o Capital Partners
Xxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: A. Xxxxxx Xxxxxxx
To Employee: _________________________
_________________________
_________________________
6.3 Amendment and Waiver. No provision of this Agreement may be
amended, modified or discharged unless such amendment, modification or discharge
is agreed to in writing and signed by the Employee and the Employer. No waiver
by either party hereto at any time of any breach by the other party hereto of,
or compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the same or at any prior or subsequent time.
6.4 Partial Invalidity. If the final determination of a court of
competent jurisdiction declares, after the expiration of the time within which
judicial review (if permitted) of such determination may be perfected, that any
term or provision hereof is invalid or unenforceable, (a) the remaining term and
provisions hereof shall be unimpaired and (b) the invalid or unenforceable term
or provision shall be deemed replaced by a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid or
unenforceable term or provision.
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6.5 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
6.6 Inclusion of Entire Agreement Herein. This Agreement supersedes any
and all other agreements, either oral or in writing, between the parties hereto
with respect to the employment of the Employee by the Employer, and contains all
of the covenants and agreements between the parties with respect to such
employment in any manner whatsoever.
6.7 Law Governing Agreement. This Agreement shall be governed by and
construed in accordance with the laws of the State of California. Each of the
Employer and the Employee hereby irrevocably and unconditionally submits to the
non-exclusive jurisdiction of any California State or federal court sitting in
Santa Xxxxx County, California, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement and waives, to
the fullest extent it may effectively do so, any defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
IN WITNESS WHEREOF, the undersigned have executed this Employment
Agreement as of the day and year first above written.
STORAGE DIMENSIONS, INC.
By: _______________________________
Title: Vice Chairman of the Board
___________________________________
Employee Name
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SCHEDULE ONE
1. Employment Agreement with Xxxxx X. Eeg dated December 26, 1992.
2. Employment Agreement with Xxxx X. Xxxxxx, Xx. dated December 26, 1992.
3. Employment Agreement with Xxxxxx X. Xxxxx dated December 26, 1992.
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