EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement"), made and entered into as of
the 22nd day of September, 2003 (the "Effective Date"), by and between Dtomi,
Inc., a Nevada, corporation (the "Corporation")" and Xx. Xxxx X. Xxxxxxx, an
individual residing in Weston, Florida (the "Executive")(collectively referred
to herein as the "Parties").
RECITALS:
WHEREAS, the Corporation desires to employ the Executive in the
capacity hereinafter stated, and the Executive desires to enter into the employ
of the Corporation in such capacity for the period and on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth below, it is hereby covenanted and agreed by the Corporation and the
Executive as follows:
1. EMPLOYMENT TERMS AND DUTIES.
1.1 TERMS OF EMPLOYMENT. The Corporation hereby agrees to
employ the Executive as its Chief Executive Officer and the Executive, in such
capacity, agrees to provide services to the Corporation for the period beginning
on the Effective Date and ending on the fifth anniversary of the Effective Date,
September 22, 2008 (the "Employment Period"). During the term of the Agreement,
so long as Executive shall serve as Chief Executive Officer, the Corporation
hereby agrees to nominate and appoint Executive as a member of the Corporation's
Board of Directors (the "Board").
1.2 DUTIES. The Executive agrees that, during the Employment
Period, he shall devote his full business time, attention, and energies, and use
his best efforts in the performance of his duties under the terms of this
Agreement, which shall include, among other things, assisting the Corporation
with raising capital and making presentations to prospective investors, overall
management and oversight of the Corporation's operations, including the
development, distribution, marketing, sale, and commercialization of that
certain AirSpring Axle patent (the "Patent") licensed by the Corporation (the
"Business"), consistent with the gross revenue projections (the "Gross Revenue
Projections"), attached hereto as EXHIBIT A, or as may be amended by the Board
of Directors (the "Board"), the execution of all consulting, agency, advisory
and other external agreements, as well as all other services to the Corporation
as are customary for a Chief Executive Officer, or as shall be reasonably
requested by the Board. The foregoing duties shall be collectively referred to
herein as the "Duties".
(a) NO CONFLICTING DUTIES. During the Employment
Period, the Executive shall not enter the employ of,
or serve as a consultant to, or in any way perform any services with or without
compensation to, any other persons, business or organization or indirectly,
acquire, hold, or retain any interest in any business competing with the
Business of the Corporation without the prior consent of the board of directors.
Nothing in this section shall prevent Executive from engaging in additional
activities in connection with personal investments, business opportunities and
community affairs that are not inconsistent with Executive's duties under this
Agreement.
1.3 COMPENSATION. Subject to the terms and conditions of this
Agreement, during the Employment Period, the Corporation shall compensate the
Executive for his services as follows:
(a) BASE SALARY. For the twelve (12) months following
the Effective Date, Executive shall receive a
salary at the annual rate of One Hundred Thousand Dollars ($100,000) ("First
Base Salary"), less statutory deductions and withholdings, payable on a
bi-weekly basis. Payments due for the First Base Salary shall date back to
August 15, 2003 and shall be paid to Executive immediately following the
Effective Date. For the duration of the Employment Period thereafter, Executive
shall receive a salary at the annual rate of Two Hundred Thousand Dollars
($200,000) ("Second Base Salary"). First Base Salary and Second Base Salary
shall be collectively referred to herein as "Base Salary."
(b) SIGNING BONUS. Immediately following the
Effective Date of this Agreement, the Executive shall
receive a signing bonus of $100,000 (the "Signing Bonus"), payable as One
Hundred (100) "Units" each consisting of (i) 10,526 shares of the Corporation's
common stock, $.001 par value per share ("Common Stock") and (ii) a warrant
("Warrant") to purchase 10,526 shares of Common Stock at an exercise price of
$0.18 per share, such warrant to expire on December 31, 2005, subject to the
terms and conditions set forth in that certain Subscription Agreement attached
hereto as EXHIBIT B.
(b) PERFORMANCE BONUSES. Executive shall be eligible
to receive incentive compensation payments,
which, in the aggregate, are not less than the highest salaried payments
provided to any other senior executives of the Corporation. The Corporation
intends to establish an incentive compensation program. Executive shall receive
credit for any periods beginning with the Effective Date of this Agreement.
(c) OPTION TO PURCHASE SHARES. The Corporation shall
grant Executive, immediately following the
Effective Date, an option to acquire, as set forth in that certain Stock Option
Agreement, attached hereto as EXHIBIT C, 910,125 shares of the Corporation's
stock at an exercise price of $0.095 per share. The Corporation hereby
acknowledges and agrees that upon completion of that certain financing (the
"Financing") the terms of which are attached hereto as EXHIBIT D, there will be
approximately 24,000,000 issued and outstanding shares of the Corporation,
including common shares and warrants.
(d) UTILIZATION OF EMPLOYEE LEASING OR PAYROLL
COMPANY. It is acknowledged that the Corporation
intends to utilize an employee leasing or payroll company. This Agreement shall
survive any and all termination of any employee leasing and/or payroll company
that Corporation engages now or in the future. The Executive shall not give up
any rights or entitlements under any such employee leasing and/or payroll
agreements.
(e) CORPORATION NOT LIABLE FOR EXECUTIVE'S PERSONAL
TAX LIABILITIES. All compensation payable to
Executive hereunder shall be subject to the Corporation's rules and regulations,
and shall also be subject to all applicable State and federal employment law(s);
it being understood that Executive shall be responsible for the payment of all
taxes resulting from a determination that any portion of the compensation and/or
benefits paid/received hereunder is a taxable event to Executive; it being
further understood that Executive shall hold the Corporation harmless from any
governmental claim(s) for Executive's personal tax liabilities, including
interest or penalties, arising from any failure by Executive to pay his
individual taxes when due.
1.4 BENEFITS.
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(a) INSURANCE. Executive shall be a participant in
any and all insurance plans (the "Insurance
Plans") maintained by the Corporation on substantially the same terms and
conditions as any and all other of the Corporations' executives, including, but
not limited to:
(i) HEALTH INSURANCE. Executive shall be
entitled to participate in Corporation's health insurance plan on substantially
the same terms and conditions as any and all other of the Corporations'
employees.
(ii) DISABILITY INSURANCE. Corporation will
provide the Executive with disability insurance, the terms of which shall
provide coverage sufficient to compensate or to provide a benefit to Executive
equivalent to the Base Salary due under this Agreement in the event that
Executive becomes disabled, as defined by the terms of the disability policy.
(iii) DIRECTORS AND OFFICERS INSURANCE. The
Corporation will provide the Executive with Directors and Officers Insurance.
(b) FAILURE TO PROVIDE INSURANCE. The Executive
acknowledges that the Corporation, as of the Effective Date, has no Insurance
Plans in effect. The Corporation shall use its best efforts to obtain such
insurance plans. In the event that no Insurance Plans have been provided to
Executive by December 31, 2003, the Corporation shall pay the Executive a
sufficient amount of money, but no more than two thousand five hundred dollars
($2,500) per month, such that Executive may purchase Insurance Plans for
himself.
(c) VACATION. Executive shall be entitled to twenty
(20) days paid vacation per annum. Any unused
vacation time may be carried forward to the following year. Executive agrees
that he will not use his twenty (20) days of paid vacation consecutively during
the first Twelve (12) months following the Effective Date. Executive shall also
be entitled to all recognized holidays provided to all employees of the
Corporation.
(d) REIMBURSEMENT FOR BUSINESS AND TRAVEL EXPENSES.
The Corporation shall reimburse Executive for all
ordinary and necessary business and travel expenses actually incurred by
Executive on behalf of the Corporation in the performance of his duties
hereunder upon presentation by Executive of vouchers, receipts, or other written
evidences in accordance with the standard policies of the Corporation and the
rules of the Internal Revenue Service.
2. TERMINATION. The Executive may be terminated for any of the
following reasons, and the Executive's right to compensation for periods after
the date his employment with the Corporation terminates shall be determined in
accordance with the following:
2.1 TERMINATION WITHOUT CAUSE. In the event the Corporation
terminates the Executive's employment under this Agreement without cause, the
Executive shall be entitled to receive:
(a) a cash payment equal to two (2) years of Executive's base
salary, in accordance with the provisions of subparagraph 1.3(a); and
(b) benefits as enumerated under subparagraph 1.4(a) and 1.4(b)
for a period of two (2) years from the date of such termination; and
(c) payments of any amounts then due and owing the Executive
under any provisions herein.
2.2 TERMINATION WITH CAUSE. In the event the Corporation
terminates the Executive's employment under this Agreement with Cause, the
Corporation shall have no obligation to make payments to the Executive.
Termination pursuant to this paragraph shall be in addition, and without
prejudice to, any other right or remedy to which the Corporation may be entitled
at law, in equity, or under this Agreement. For purpose of this subparagraph
2.2, the Executive shall be considered discharged for "Cause" if he is
discharged by the Corporation on account of the occurrence of one or more of the
following events:
(a) the Executive becomes habitually addicted to
drugs or alcohol;
(b) the Executive discloses confidential information
in violation of paragraph 3;
(c) the Corporation is directed by regulatory or
governmental authorities to terminate the employment
of the Executive;
(d) the Executive fails to fulfill his Duties under
this Agreement after: (i) notice has been given to
the Executive by the Board that Executive is failing to fulfill his Duties; and
(ii) the Executive has been given a period of twenty (20) days after such notice
to cure such misconduct;
(e) the Executive commits an act of fraud against the
Corporation; and
(f) the Corporation fails to meet seventy
percent (70%) of its Gross Revenue Projections six (6) months following the
completion of the Financing.
2.3 VOLUNTARY RESIGNATION. In the event the Executive
voluntarily resigns from his employment under this Agreement, the Corporation
shall have no obligation to make payments to the Executive unless a Change of
Control shall occur and there is a change in the duties and responsibilities of
Executive from those set forth in Paragraph 1.2 ("Change in Duties") and within
12 months after the Change of Control and the Change in Duties Executive
voluntarily resigns, in which event, Executive shall be entitled to receive:
(a) a cash payment equal to two (2) years
of Executive's Base Salary, in accordance with the provisions of
subparagraph 1.3(a); and
(b) benefits as enumerated under subparagraph
1.4(a)(i) for a period of two (2) years from the date of such termination; and
(c) payments of any amounts then due and owing the
Executive under any provisions herein.
(d) For the purposes of this Agreement, "Change of
Control" shall mean, and shall be deemed to have occurred upon the occurrence
of, any of the following events, but only to the extent that such Change of
Control is not a result of the Corporation's breach of any provision of the
Patent License Agreement:
(i) the Corporation acquires actual
knowledge that (x) any person, other than the
Corporation, a subsidiary, any employee benefit plan(s) sponsored by the
Corporation or a subsidiary, has acquired the Beneficial Ownership (as
provided in Rule 13d-3 of the Securities Exchange Act of 1934), directly
or indirectly, of securities of the Corporation entitling such person to
30% of more of the voting power of the Corporation, or (y) any person or
persons agree to act together for the purpose of acquiring, holding,
voting or disposing of securities of the Corporation or to act in concert
or otherwise with the purpose of effect of changing or influencing control
of the Corporation, or in connection with or as Beneficial Ownership,
directly or indirectly, of securities of the Corporation entitling such
person(s) to 30% or more of the voting power of the Corporation;
(ii) a tender offer is made to acquire
securities of the Corporation entitling the holders
thereof to 30% or more of the voting power of the Corporation;
(iii) the occurrence of a successful
solicitation subject to Rule 14a-11 under the Securities
Exchange Act of 1934 as amended (or any successor Rule) (the "1934 Act")
relating to the election or removal of 50% or more of the members of the
board or any class of the board shall be made by any person other than the
Corporation or less than 51% of the members of the board of directors
(excluding vacant seats) shall be continuing directors;
(iv) the occurrence of a merger,
consolidation, share exchange, division or sale or other
disposition of assets of the Corporation as a result of which the
stockholders of the Corporation immediately prior to such transaction
shall not hold, directly or indirectly, immediately following such
transaction a majority of the voting power of (i) in the case of a merger
or consolidation, the surviving or resulting corporation, (ii) in the case
of a share exchange, the acquiring corporation or (iii) in the case of a
division or a sale or other disposition of assets, each surviving,
resulting or acquiring corporation which, immediately following the
transaction, holds more than 30% of the consolidated assets of the
Corporation immediately prior to the transaction; or
(v) the current board of directors,
including the Executive, shall not constitute a majority
of the directors of the Corporation.
2.4 DEATH OR DISABILITY. The Corporation shall have no
obligation to make payment to the Executive immediately upon the death of
Executive or six (6) months subsequent to a determination by a physician
acceptable to the Executive and the Corporation that Executive has ceased to be
able to perform the essential functions of his duties, with or without
reasonable accommodation, due to a mental or physical illness.
(a) SALARY CONTINUATION DURING DISABILITY.
Notwithstanding paragraph 2.4 above, if Executive suffers
any physical or mental disability that would prevent the performance of his
essential job duties, the Corporation agrees to pay Executive fifty percent
(50%) of Executive's Base Salary, payable in the same manner as provided for the
payment of salary herein, for the duration of the disability, or six (6) months,
whichever is less.
(b) REASONABLE ACCOMMODATION. Reasonable
accommodation shall mean the acquisition or modification of
equipment or devices, adjustment or modifications of training materials or
policies, the provision of qualified readers or interpreters, and other similar
accommodations for individuals with disabilities so long as said accommodation
does not require significant difficulty or expense when considered in light of
(i) the nature and cost of the accommodation; (ii) the impact of the
accommodation on the operations of the Corporation; and (iii) the financial
resources of the Corporation.
2.5 FAILURE TO RAISE CAPITAL. In the event the Corporation
fails to complete its Financing of at least $600,000 on the terms set
forth in EXHIBIT D, by October 31, 2003, the Executive may voluntarily
resign his employment under this Agreement, Corporation shall have no
obligation to make payments to the Executive provided, Executive shall be
entitled to receive:
(a) benefits as enumerated in Subparagraph 1.4(a) for a
period of three months from the date of such termination; and
(b) payment of any amounts then due and owing the Executive.
3. CONFIDENTIAL INFORMATION. Except as may be required by the lawful
order of a court or agency of competent jurisdiction, the Executive agrees to
keep secret and confidential indefinitely all non-public information concerning
the Corporation and its affiliates that was acquired by or disclosed to the
Executive during the course of his employment by the Corporation or any of its
affiliates, including information relating to customers (including, without
limitation, credit history, repayment history, financial information and
financial statements), cost, and operations, financial data and plans, whether
past, current or planned and not to disclose the same, either directly or
indirectly, to any other person, firm or business entity or to use it in any
way; provided, however, that the provisions of this paragraph 3 shall not apply
to information that is in the public domain or that was disclosed to the
Executive by independent third parties who were not bound by an obligation of
confidentiality. The Executive further agrees that he shall not make any
statement or disclosure that (a) would be prohibited by applicable federal or
state laws or (b) is intended to be detrimental to the Corporation or any of its
subsidiaries or affiliates.
3.1 INVENTIONS, DISCOVERIES AND IMPROVEMENTS. Any and all
inventions, discoveries and improvements, whether protectible or unprotectible
by Patent, trademark, copyright or trade secret, made, devised, or discovered by
Executive, whether by Executive alone or jointly with others, from the Effective
Date until the earlier of the Termination Date of this Agreement or the actual
date of termination of employment, relating or pertaining in any way to
Executive's employment with the Corporation, shall be promptly disclosed in
writing to the Board, and become and remain the sole and exclusive property of
the Corporation. Executive agrees to execute any assignments to the Corporation,
or its nominee, of the Corporation's entire right, title, and interest in and to
any such inventions, discoveries and improvements and to execute any other
instruments and documents requisite or desirable in applying for and obtaining
Patents, trademarks or copyrights at the cost of the Corporation, with respect
thereto in the United States and in all foreign countries, that may be requested
by the Corporation. Executive further agrees, whether or not then in the
employment of the Corporation, to cooperate to the fullest extent and in the
manner that may be reasonably requested by the Corporation in the prosecution
and/or defense of any suits involving claims of infringement and/or
misappropriation of proprietary rights relevant to Patents, trademarks,
copyrights, trade secrets, processes, and/or discoveries involving the
Corporation's products; it being understood that all reasonable costs and
expenses thereof shall be paid by the Corporation. The Corporation shall have
the sole right to determine the treatment of disclosures received from
Executive, including the right to keep the same as a trade secret, to use and
disclose the same without a prior Patent Application, to file and prosecute
United States and foreign Patent Applications thereon, or to follow any other
procedure which the Corporation may deem appropriate. .
3.2 CONFIDENTIAL INFORMATION AND TRADE SECRETS. Executive
hereby acknowledges that all trade, engineering, production, and technical data,
information or "know-how" including, but not limited to, customer lists, sales
and marketing techniques, vendor names, purchasing information, processes,
methods, investigations, ideas, equipment, tools, programs, costs, product
profitability, plans, specifications, Patent Application(s), drawings,
blueprints, sketches, layouts, formulas, inventions, processes and data, whether
or not reduced to writing, used in the development and manufacture of the
Corporation's products and/or the performance of services, or in research or
development, are the exclusive secret and confidential property of the
Corporation, and shall be at all times, whether after the Effective Date or
after the Termination Date, be kept strictly confidential and secret by
Executive.
3.3 RETURN OF PROPERTY. Executive agrees not to remove from
the Corporation's office or copy any of the Corporation's confidential
information, trade secrets, books, records, documents or customer or supplier
lists, or any copies of such documents, without the express written permission
of the Board of Directors of the Corporation. Executive agrees, at the
Termination Date, to return any property belonging to the Corporation,
including, but not limited to, any and all records, notes, drawings,
specifications, programs, data and other materials (or copies thereof)
pertaining to the Corporation's businesses or its product(s) and service(s),
generated or received by Executive during the course of his employment with the
Corporation.
3.4 NON-DISCLOSURE. Executive represents and agrees that
during the term of this Agreement, and after the Termination Date, he will not
report, publish, disclose, use, or transfer (collectively referred to as
"Dissemination") to any person(s) or entity(ies) any property or information
belonging to the Corporation without first having obtained the prior express
written consent of the Corporation to do so; it being understood, however, that
information which was publicly known, or which is in the public domain, or which
is generally known, or the dissemination of which is required by the lawful
order of a court or agency of competent jurisdiction, shall not be subject to
this restriction nor shall any information which Executive is required to
disclose by law.
3.5 INFORMATION OF OTHERS. Executive agrees that the
Corporation does not desire to acquire from Executive any secret or confidential
information or "know-how" of others. Executive, therefore, specifically
represents to the Corporation that he will not bring to the Corporation any
materials, documents, or writings containing any such information. Executive
represents and warrants that from the Effective Date of this Agreement he is
free to divulge to the Corporation, without any obligation to, or violation of
the rights of others, information, practices and/or techniques which Executive
will describe, demonstrate or divulge or in any other manner make known to the
Corporation during Executive's performance of services. Executive also agrees to
indemnify and hold the Corporation harmless from and against any and all
liabilities, losses, costs, expenses, damages, claims or demands for any
violation of the rights of others as it relates to Executive's misappropriation
of secrets, confidential information, or "know-how" of others.
4. NON-SOLICITATION OF CUSTOMERS AND EMPLOYEES.
4.1 NON-SOLICITATION OF CUSTOMERS. Executive agrees that he
will not, for a period of eighteen (18) months following the Termination Date,
contact or solicit orders, sales or business from any customer of the
Corporation for similar products or services produced or sold by the
Corporation.
4.2 NON-SOLICITATION OF EMPLOYEES. Executive agrees that he
will not, without the prior written consent of the Board for a period of
eighteen (18) months following the Termination Date, directly or indirectly
disturb, entice or hire away, or in any other manner persuade, any employee(s)
or consultant(s) of the Corporation to discontinue that person's or firm's
relationship with the Corporation if that employee(s) or consultant(s) were
employed by the Corporation at any time during the six (6) month period prior to
the Termination Date.
5. NOTICE. All notices and other communications under this Agreement
shall be in writing and shall be delivered personally or mailed by registered or
certified mail, return receipt requested, and shall be deemed given when so
delivered or mailed, to a party at his or its address as follows (or at such
other address as a party may designate by notice given hereunder):
If to Executive: Xxxx X. Xxxxxxx
0000 Xxxxxxxxx Xxxxx,
Xxxxxx, Xxxxxxx 00000
If to the Corporation: Dtomi, Inc.
000 0xx Xxxxxx Xxxxx
Xxxxxx Xxxxxx, Xxxxxxx 00000
With a copy to: Xxxxx X. Xxxx
The Xxxx Law Group, PLLC
000 Xxxxxx Xxx., Xxxxx 0000
Xxxxxxx, XX 00000
6. SUIT, JURISDICTION. Any controversy between the Company and
Executive arising out of, relating to, or concerning any of the terms,
provisions or conditions of this Agreement shall be submitted first to mediation
administered by the American Arbitration Association under its Commercial
Mediation Rules, and, in the event that the Parties fail to reach a settlement
of the controversy as a result of such mediation, to arbitration in accordance
with the American Arbitration Association's National Arbitration Rules for the
Resolution of Employment Disputes. The Parties agree that the mediation or
arbitration shall take place in the State of Florida. On the written request of
either party for arbitration of such a claim pursuant to this paragraph, the
Company and Executive shall both be deemed to have waived the right to litigate
the claim in any federal or state court. To the extent that any claim or
controversy arising out of this Agreement cannot be submitted to arbitration as
set forth above, each party hereby agrees that any suit, action or proceeding
with respect to this Agreement, and any transactions relating hereto, shall be
brought in the State of Florida, and each of the parties hereby irrevocably
consents and submits to the jurisdiction of such Court for the purpose of any
such suit, action or proceeding. Each of the parties hereby waives and agrees
not to assert, by way of motion, as a defense or otherwise, in any such suit,
action or proceeding; any claim that it (he) is not personally subject to the
jurisdiction of the above-named Court(s); and, to the extent permitted by
applicable law, any claim that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is
improper or that this Agreement or any replacements hereof or thereof may not be
enforced in or by such Court(s). The Company shall pay any and all costs
associated with arbitration.
7. MISCELLANEOUS.
7.1 ASSIGNMENT. This Agreement shall be assigned to and inure
to the benefit of, and be binding upon, any successor to substantially all of
the assets and business of the Corporation as a going concern, whether by
merger, consolidation, liquidation or sale of substantially all of the assets of
the Corporation or otherwise. Executive understands and agrees, however, that
this Agreement is exclusive and personal to him only, and, as such, he will
neither assign nor subcontract all or part of his undertaking(s) or
obligation(s) under the terms of this Agreement.
7.2 ENTIRE AGREEMENT. Each party acknowledges that this
Agreement constitutes the entire understanding between them, and that there are
no other written or verbal agreement(s) or understanding(s) between them other
than those set forth herein; it being understood that no amendment(s) to this
Agreement shall be effective unless reduced to writing and signed by each party
hereto.
7.3 SEVERABILITY. In the event that any provision of this
Agreement shall be determined to be unenforceable or otherwise invalid, the
balance of the provision(s) shall be deemed to be enforceable and valid; it
being understood that all provision(s) of this Agreement are deemed to be
severable, so that unenforceability or invalidity of any single provision will
not affect the remaining provision(s).
7.4 HEADINGS. The Section(s) and paragraph heading(s) in this
Agreement are deemed to be for convenience only, and shall not be deemed to
alter or affect any provision herein.
7.5 INTERPRETATION OF AGREEMENT. This Agreement shall
be interpreted in accordance plain meaning of its terms and under the
laws of the State of Florida.
7.6 VARIATION. Any changes in the Sections relating to salary,
bonus, or other material condition(s) after the Effective Date of this Agreement
shall not be deemed to constitute a new Agreement. All unchanged terms are to
remain in force and effect.
7.7 UNENFORCEABILITY. The unenforceability or invalidity of
any provision(s) of this Agreement shall not affect the enforceability and/or
the validity of the remaining provision(s).
7.8 COLLATERAL DOCUMENTS. Each party hereto shall make,
execute and deliver such other instrument(s) or document(s) as may be reasonably
required in order to effectuate the purposes of this Agreement.
7.9 NON-IMPAIRMENT. This Agreement may not be amended or
supplemented at any time unless reduced to a writing executed by each party
hereto. No amendment, supplement or termination of this Agreement shall affect
or impair any of the rights or obligations which may have matured thereunder.
7.10 EXECUTION. This Agreement may be executed in one or more
counterpart(s), and each executed counterpart(s) shall be considered by the
parties as an original.
7.11 LEGAL COUNSEL. Executive represents to the Corporation
that he has retained legal counsel of his own choosing, and was given sufficient
opportunity to obtain legal counsel prior to executing this Agreement. Executive
also represents that he has read each provision of this Agreement and
understands its meaning.
7.12 EFFECT OF MERGER, TRANSFER OF ASSETS, DISSOLUTION. This
Agreement shall not be terminated by any voluntary or involuntary dissolution of
the Corporation resulting from either a merger or consolidation in which the
Corporation is not the consolidated or surviving corporation, or a transfer of
all or substantially all of the assets of the Corporation. In the event of any
such merger, or consolidation or transfer of assets, the Corporation's rights,
benefits, and obligations hereunder shall be assigned to the surviving or
resulting corporation or the transferee of the Corporation's assets and the
surviving entity or transferee corporation or person shall specifically agree to
assume the obligations of the Corporation under this Agreement.
7.13 TRANSITION. In the event that Executive's employment with
the Corporation terminates, Executive shall, through the last day of employment,
and at the Corporation's request, use Executive's reasonable best efforts (at
the Corporation's expense) to assist the Corporation in transitioning
Executive's duties and responsibility responsibilities to Executive's successor
and maintaining the Corporation's professional relationship with all customers,
suppliers, etc. Without limiting the generality of the foregoing, Executive
shall cooperate and assist the Corporation, at the Corporation's direction and
instruction, during the transition period between any receipt of or giving of
notice of the termination of employment and the final day of employment.
IN WITNESS WHEREOF, the parties hereto have set their hands
and seals the day and year first above written.
DTOMI, INC.
By:_________________________________________
Xxxxx X. Xxxx, Chairman of the Board
EXECUTIVE
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Xxxx X. Xxxxxxx
