EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of October 1, 2008, by and
between Westbridge Research Group, a California corporation (the "Company"), and
Xxxxxxxx Xxxxxx, Ph.D., an individual ("Executive"), with reference to the
following facts:
A. Executive currently serves as Vice President and Director of
Research and Development of the Company.
B. Company and Executive desire to continue the employment of Executive
as Vice President and Director of Research and Development of the Company for a
term of years and on certain other terms as stated herein.
NOW, THEREFORE, in consideration of the foregoing facts and the mutual
agreements set forth below, the parties agree as follows:
1. EMPLOYMENT; TERM. Company hereby employs Executive, and Executive
hereby accepts employment as Vice President and Director of Research and
Development of the Company, for a period commencing October 1, 2008 and ending
November 30, 2011 (the "Term of Employment"). Executive also will serve in the
same capacity for Westbridge Agricultural Products at no additional
consideration.
2. DUTIES.
2.1 Executive's duties shall include the responsibilities of the
Vice President and Director of Research and Development of the Company.
Executive shall report to the President of the Company. Executive shall also
have the general powers and duties of management usually vested in the office of
the Vice President and Director of Research and Development of a corporation and
shall have such other similar powers and duties as from time to time may be
prescribed by the President, the Board of Directors or the Bylaws.
2.2 Executive shall devote substantially all of his productive
time and his best efforts, knowledge, and skill to the operation, promotion, and
advancement of Company's business, and to the proper and efficient discharge of
his duties as described herein. Executive further covenants and agrees that he
will not, directly or indirectly, engage or participate in any activities at any
time during the term of his employment in conflict with the best interest of
Company.
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2.3 During the term of this Agreement, Executive will not directly
compete with the Company's business, whether alone, as a partner, or as an
officer, director, executive, or shareholder of any other corporation, or as a
trustee, a fiduciary, or other representative of any other entity which is in
direct competition with the Company.
3. COMPENSATION.
3.1 SALARY AND BENEFITS. Company shall pay Executive a salary of
$85,000 per annum ("Base Salary"), which shall be payable in the intervals
consistent with the Company's normal payroll schedules. The Base Salary will be
reviewed annually by the President, but in no event may the Base Salary be
reduced by more than ten percent (10%) in any year without the written agreement
of Executive.
3.2 BONUS. See EXHIBIT "A".
3.3 OPTIONS. See EXHIBIT "B".
3.4 COMMISSION. See EXHIBIT "C".
3.5 TAXES. All compensation will be subject to the customary
withholding tax and other employment taxes as required with respect to
compensation paid by an employer to an Executive.
4. BENEFITS.
4.1 Executive shall be entitled to normal executive medical,
dental, long-term disability, and life insurance as the Company may have in
place from time to time. The Company will pay for the medical and dental
insurance coverage of Executive's dependents if such payment is in accordance
with Company's policy.
4.2 Executive shall be entitled to such vacation and personal
leave time as permitted by the Company pursuant to its policies. The timing and
duration of any vacation shall be subject to the prior written notice to the
Company's President.
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4.3 Executive shall be eligible to participate in and be covered
by any pension, insurance, reimbursement, supplemental disability, and other
plans maintained by the Company from time to time.
4.4 The Company shall pay on Executive's behalf or reimburse
Executive for reasonable expenses incurred in connection with his employment
including any business travel, dues, cost of attending industry conventions,
meetings, and entertainment expenses for entertainment aiding the development of
the Company. Executive agrees to submit receipts and other documentation to
support the above expenses as a condition of reimbursement therefore.
4.5 If this Agreement is terminated other than by the death of
Executive, Executive shall have the right to assume the key-person insurance
policy that the Company has in place, if any.
5. TERMINATION.
5.1 Executive may voluntarily terminate his employment upon giving
to Company not less than one hundred twenty (120) days written notice of
Executive's intention to do so.
5.2 This Agreement shall terminate upon the earlier of date of
death, the date when Executive becomes "completely disabled" as that term is
defined in Section 6 below, the expiration of the Term of Employment, or as
otherwise permitted by law. In the event of death or disability, the Company
shall continue Executive's salary for six (6) months from the date of death or
complete disability. In the event of complete disability, the amount of salary
continuation shall be reduced by the amount of any disability payments made to
Executive under the Company's insurance policy. In addition, any stock options
granted to Executive prior to death or complete disability which would normally
vest during the twelve (12) months following such death or disability shall vest
and may be exercised in accordance with the term of the options.
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5.3 The Company may terminate this Agreement for cause during the
Term of Employment by written notice given to Executive, effective immediately
or any later date specified by Company, in any of the following events:
(a) conviction in a court of competent jurisdiction regarding any
violation of law or regulation by Executive which affects adversely the ability
of Executive to perform his duties, obligations and responsibilities herein or
the good name, goodwill or reputation of Company,
(b) the failure of Executive to carry out the reasonable
directions of Company's President or Board of Directors, or
(c) for any reason specified in California Labor Code Section
2924, a copy of which is attached hereto as EXHIBIT "D".
There shall be no severance pay in the event of termination for
cause.
6. DEATH OF DISABILITY DURING TERM OF EMPLOYMENT. The term "completely
disabled" as used herein shall mean the inability of the Executive to perform
his duties hereunder for the reason that he has become permanently disabled
within the meaning of any policy of disability income insurance covering
Executives of the Company then in force. In the event the Company has no policy
of disability income insurance covering the executives of the Company in force
when Executive becomes disabled, the term "completely disabled" shall mean the
inability of Executive to perform his duties hereunder by reason of any
incapacity, physical or mental, which the Board of Directors of the Company,
based upon medical advice or opinion provided by a licensed physician acceptable
to said Board of Directors of the Company, determines to have incapacitated
Executive from satisfactorily performing all of his usual services for the
Company during the foreseeable future, taking into account the essential
functions of Executive's position and the existence of reasonable accommodation,
if any, to permit Executive to perform these duties. The action of said Board of
Directors shall be final and binding and the date such action is taken shall be
the date of such complete disability for purposes of termination of this
Agreement.
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7. EXECUTIVE'S DUTIES ON TERMINATION. Upon termination of this
Agreement, Executive shall deliver promptly to the Company all equipment,
notebooks, property, documents, memoranda, reports, files, books,
correspondence, lists, or other written or graphic records and the like,
relating to the Company's business, which are or have been in Executive's
possession or under his control.
8. CHANGE IN CONTROL.
(a) For purposes of the Agreement, a "Change in Control" of the
Company shall mean an event or series of events of a nature that at such time
(i) any "person" (as the term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended) is or becomes the "beneficial
owner" (as determined under Rule 13d of such Act), directly or indirectly, of
voting securities of the Company representing fifty percent (50%) or more of the
Company's outstanding voting securities or right to acquire such securities, or
(ii) a plan of reorganization, merger, consolidation, sale of all or
substantially all of the assets of the Company or similar transaction occurs in
which the Company is not the resulting entity.
(b) If a Change in Control has occurred, Executive shall be
entitled to the benefits provided in Subsections (c) and (d) below, upon
Executive's subsequent termination of regular employment within twenty-four (24)
months following the Change in Control due to (i) termination of Executive's
employment (other than termination for cause as set forth in Section 5.3 of the
Agreement) or (ii) Executive's resignation following any material adverse change
in or loss of title, office or significant authority or responsibility, material
reduction in Base Salary or benefits (excluding bonus) or relocation of the
Executive's principal place of employment by more than twenty (20) miles from
its location at the time of the Change in Control.
(c) Upon Executive's entitlement to benefits under Subsection (b),
(i) the Company shall pay Executive, or in the event of Executive's subsequent
death or disability, Executive's beneficiaries, estate or other representative,
a sum equal to three (3) full years Base Salary, less all required and
applicable withholding regardless of the remaining term under the Agreement; and
(ii) any unvested stock options and related rights shall immediately vest and
shall be exercisable for a period of three (3) years from the date of
termination. The amount referenced in (i) above, shall be paid in a lump sum due
within ten (10) days of the date of termination or resignation.
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(d) Upon the occurrence of a Change in Control followed by
Executive's termination of employment or resignation (other than termination for
cause), the Company and its successors or assigns shall cause to be continued
life, medical and disability coverage substantially identical to the coverage
maintained by the Company for the Executive prior to Executive's termination or
resignation. Such coverage and payment shall cease upon the expiration of twelve
(12) full calendar months from the date of termination or resignation. Nothing
in this provision is intended to restrict or limit Executive's rights under the
Consolidated Omnibus Budget Reconciliation Act, commonly known as COBRA.
(e) In the event that any amount due hereunder constitutes an
"excess parachute payment" as defined in Section 280G of the Internal Revenue
Code of 1986, the Company and Executive shall meet in good faith to minimize the
adverse tax consequences to Executive.
9. CONFIDENTIALITY AGREEMENT AND FUTURE INVENTIONS. Executive shall
sign a Proprietary Information and Inventions Agreement in the form set forth in
EXHIBIT "E".
10. ASSIGNMENT AND BINDING EFFECT. This Agreement shall be binding upon
and inure to the benefit of Executive and Executive's heirs, executors,
administrators and legal representatives. Neither this Agreement nor the rights
or obligations hereunder shall be assignable by Executive. The rights and
obligations hereunder shall inure to the benefit of and be binding upon the
successors, assigns, and legal representatives of the Company.
11. NOTICES. All notices or demands of any kind required or permitted
to be given by the Company or Executive hereunder shall be given in writing and
shall be delivered personally (and receipted for) or mailed by certified mail,
return receipt requested, postage prepaid, as follows:
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If intended for the Company: Westbridge Research Group
0000 Xxxxxxx Xxxxxxx
Xxxxx, XX 00000-0000
Attn: President
If intended for the Executive: Xxxxxxxx Xxxxxx, Ph.D.
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Any such written notice shall be deemed received when personally delivered (and
receipted for) or on the fourth (4th) day following its deposit in the United
States Mail, as specified herein. Any Party may change the address to which
notice is intended for it; such change of address shall be sent by a notice to
the other party given in the manner specified in this section.
12. CHOICE OF LAW. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California.
13. INTEGRATION. This Agreement contains the entire agreement of the
parties and cannot be amended or modified except by written agreement between
Executive and the Company.
14. WAIVER. No term or condition of this Agreement or the breach
thereof shall be deemed waived, except by written consent of the Party against
whom the waiver is claimed and any waiver or any condition or breach shall not
be deemed to be a waiver of any preceding or succeeding breach of the same or
any other covenant, term or condition.
15. SEVERABILITY. The unenforceability, invalidity, or illegality of
any provision in this Agreement shall not render any other provision in this
Agreement unenforceable, invalid, or illegal.
16. INTERPRETATION; CONSTRUCTION. The captions of the sections of this
Agreement are for convenience only and shall not be deemed to be relevant in
resolving any question of interpretation or construction of this Agreement. This
Agreement shall not be interpreted for or against any party on the basis that a
Party drafted the Agreement or caused it to be drafted.
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17. REPRESENTATIONS AND WARRANTIES. Executive represents and warrants
that he is not restricted or prohibited, contractually or otherwise, from
entering into and performing each of the terms and covenants contained in this
Agreement, and that his execution and performance of this Agreement is not a
violation or breach of any other agreement between Executive and any other
person or entity.
18. ARBITRATION. Any controversy or claim arising out of or relating to
this Agreement or the breach thereof, the employment of Executive by the
Company, or relating to the termination of that employment, including all claims
in tort or contract, pursuant to statute or otherwise, and including any claim
as to the arbitrability of any claim or controversy and any claim for
rescission, shall be settled by binding arbitration before a single, neutral
arbitrator in San Diego County, California by the American Arbitration
Association under its National Rules for the Resolution of Employment Disputes.
The arbitrator shall have power to interpret this Agreement, but shall have no
power to alter or amend this Agreement. The arbitrator may award his/her fees,
the costs or arbitration, and attorney's fees. Judgment upon the award rendered
by the arbitrators may be entered in any court having jurisdiction thereof;
provided, however, that the Company may pursue equitable remedies, including
injunctive relief, against the breach of any such term or in aid of the exercise
of any power granted in this Agreement, or any combination thereof, in any court
having jurisdiction thereof, without resort to arbitration.
19. LEGAL COUNSEL. Executive acknowledges that he has the right and
opportunity to seek the advice of independent counsel of Executive's own
choosing with respect to Executive's legal rights and obligations and the legal
effect of this Agreement. Executive further acknowledges that she has either
sought or declined to seek the advice of legal counsel and that Executive has
read the Agreement and is fully aware of the contents thereof and its meaning
and legal effect.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
The Company: Executive:
Westbridge Research Group,
a California corporation ---------------------------
Xxxxxxxx Xxxxxx, Ph.D.
By:
------------------------------
Xxxxxxxxx Xxxxxxxxx, President
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EXHIBIT "A"
BONUS
Executive's portion of any Board approved employee bonus pool, if any, is to be
determined by the Company's President at the President's sole discretion.
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EXHIBIT "B"
OPTIONS
None
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EXHIBIT "C"
COMMISSIONS
Executive's commissions rates and terms to be reviewed and approved annually by
the Company's President.
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EXHIBIT "D"
CALIFORNIA LABOR CODE SECTION 2924 - EMPLOYMENT FOR SPECIFIED TERM; GROUNDS FOR
TERMINATION BY EMPLOYER
An employment for a specified term may be terminated at any time by the
employer in case of any willful breach of duty by the Executive in the
course of his employment, or in case of his habitual neglect of his
duty or continued incapacity to perform it.
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EXHIBIT "E"
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
In consideration of the execution of an Employment Agreement by Westbridge
Research Group (the "Company"), and the compensation now and hereafter paid to
me, I hereby agree as follows:
1. RECOGNITION OF COMPANY'S RIGHTS; NONDISCLOSURE. At all times during the term
of my employment and thereafter, I will hold in strict confidence and will not
disclose, use, lecture upon or publish any of the Company's Proprietary
Information (defined below) except as such disclosure, use or publication may be
required in connection with my work for the Company or unless an appropriate
officer of the Company expressly authorizes such in writing. I hereby assign to
the Company any rights I may have or acquire in such Proprietary Information and
recognize that all Proprietary Information shall be the sole property of the
Company and its assigns, and the Company and its assigns shall be the sole owner
of all trade secrets rights, patent rights, copyrights, mask work rights and all
other rights through out the world (collectively, "Proprietary Rights") in
connection therewith.
2. "PROPRIETARY INFORMATION". As herein stated "Proprietary Information" shall
mean trade secrets, confidential knowledge, data or any other proprietary
information of the Company. By way if illustration but not limitation,
"Proprietary Information" includes (a) trade secrets, inventions, ideas,
processes, formulas, data, programs, other works of authorship, know-how,
improvements, discoveries, developments, designs and techniques (hereinafter
collectively referred to as "Inventions") and (b) information regarding plans
for research, development, new products, marketing and selling, business plans,
budgets and unpublished financial statements, licenses, processes and costs,
suppliers and customers.
3. THIRD PARTY INFORMATION. I understand, in addition, that the Company has
received and in the future will receive from third parties confidential or
proprietary information ("Third Party Information") subject to a duty on the
Company's part to maintain the confidentiality of such information and to use it
only for certain limited purposes. During the term of my employment and
thereafter I will hold Third Party Information in the strictest confidence and
will not disclose (to anyone other than Company personnel who need to know such
information in connection with their work for the Company) or use, except in
connection with my work for the Company, Third Party Information unless
expressly authorized by an officer of the Company in writing.
4. ASSIGNMENT OF INVENTIONS. I hereby confirm my assignment to the Company all
my rights, title and interest in and to all Inventions (and all Proprietary
Rights with respect thereto) whether or not patentable or registerable under
copyright or similar statutes, made or conceived or reduced to practice or
learned by me, either alone or jointly with others, during the period of my
employment with the Company. Inventions assigned to or as directed by the
Company by this paragraph 4 are hereinafter referred to as "Company Inventions".
I recognize that this Agreement does not require assignment of any invention
which qualifies fully for protection under Section 2870 of the California Labor
Code (hereinafter "Section 2870") which provides as follows:
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"i. Any provision in an employment agreement which provides that an
Executive shall assign or offer to assign, any of his or her rights in
an invention to his or her employer shall not apply to an invention
that the Executive developed entirely on his or her own time without
using the employer's equipment, supplies, facilities or trade secret
information except for those inventions that either:
(1) Relate at the time of conception or reduction to practice
to the invention to the employer's business, or actual or
demonstrably anticipated research or development of the
employer.
(2) Result from any work performed by the Executive for the
employer.
ii. To the extent a provision in an employment agreement purports to
require an Executive to assign an invention otherwise excluded form
being required to be assigned under subdivision (i), the provision is
against the public policy of this state and is unenforceable."
5. GOVERNMENT. I also agree to assign all my right, title and interest in and to
any and all Inventions, required to be transferred to the United States required
by a contract between the Company and the United States or any of its agencies.
6. WORKS FOR HIRE. I acknowledge that all original works of authorship which are
made by me (solely or jointly with others) in the scope of my employment and
which are protectable by copyright are "works made for hire," as that term is
defined in the United States Copyrights Act (17 U.S.C., Section 101).
7. ENFORCEMENT OF PROPRIETARY RIGHTS. I will assist the Company in every proper
way to obtain and from time to time enforce United States and foreign
Proprietary Rights relating to Company Inventions in any and all countries. To
the end I will execute, verify and deliver such documents and perform such other
acts (including appearances as a witness) as the Company may reasonably request
for use in applying for, obtaining, perfecting, evidencing, sustaining and
enforcing such Proprietary Rights to the Company or its designee. In addition, I
will execute, verify and deliver assignments of such Proprietary Rights to the
Company or its designees. My obligation to assist the Company with respect to
Proprietary Rights relating to such Company Inventions in any and all countries
shall continue beyond the termination of my employment, and the Company shall
compensate me at a reasonable rate after my termination for the time actually
spent by me at the Company's request on such assistance.
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8. NO CONFLICTING OBLIGATION. I represent that my performance of all the terms
of this Agreement and an Employment Agreement does not and will not breach any
agreement to keep in confidence information acquired by me in confidence or in
trust prior to my employment by the Company. I have not entered into, and agree
I will not enter into, an agreement either written or oral in conflict herewith.
9. RETURN OF COMPANY DOCUMENTS. When I leave the employ of the Company, I will
deliver to the Company any and all drawings, notes, memoranda, specifications,
devices, formulas and documents, together with all copies thereof, and other
material containing or disclosing any Company Inventions, Third Party
Information or Proprietary Information of the Company. I further agree that any
property situated on the Company's premises and owned by the Company, including
disks and other storage media, filing cabinets or other work areas, is subject
to inspection by Company personnel at any time with or without notice. Prior to
leaving, I will cooperate with the Company in completing and signing the
Company's termination statement for technical and management personnel.
10. LEGAL AND EQUITABLE REMEDIES. Because my services are personal and unique
and because I may have access to and become acquainted with the Proprietary
Information of the Company, the Company shall have the rights to enforce this
Agreement and any of its provisions by injunction, specific performance or other
equitable relief, without bond and without prejudice to any other rights and
remedies that the Company may have for a breach of this Agreement.
11. NOTICES. All notices, requests, consents and other communications required
or permitted to be given hereunder shall be in writing, and deemed to have been
duly given when delivered by the U.S. Postal Service, postage prepaid,
certified, return receipt requested, four business days after the date on the
postal receipt for payment of the certified mailing. The notices shall be mailed
to the following addresses:
The Company Westbridge Research Group
0000 Xxxxxxx Xxxxxxx
Xxxxx, XX 00000-0000
Attn: President
The Executive Xxxxxxxx Xxxxxx, Ph.D.
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12. GOVERNING LAW. This Agreement will be governed by and construed according to
the law of the State of California.
13. ATTORNEY FEES AND COSTS. If either of the Parties hereto brings any action
to enforce his or its rights hereunder, the prevailing party in any such action
shall be entitled to recover his or its reasonable attorneys' fees and costs
incurred in connection with such action.
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14. COMPLETE AGREEMENT. This Agreement constitutes the entire agreement between
the Parties, it supersedes any and all prior oral or written Agreements entered
into since the first meeting between the Company and me, including the Invention
Assignment and Secrecy Agreement dated March 11, 1995. This includes all such
representations, interpretations, omissions or other material facts including
but not limited or any assumed beliefs of the Parties hereto.
15. SEVERABILITY. If one or more of the provisions in this Agreement are deemed
unenforceable by law, then such provision will be deemed stricken from the
Agreement and the remaining provisions will continue in full force and effect.
16. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my heirs,
executors, administrators, and other legal representatives and will be for the
benefit of the Company, its successors and its assigns.
17. WAIVERS. No waiver by the Company of any breach of this Agreement shall be a
waiver of any preceding or succeeding breach. No waiver by the Company of any
right under this Agreement shall be construed as a waiver of any other right.
The Company shall not be required to give notice to enforce strict adherence to
all terms of the Agreement.
Dated:
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Xxxxxxxx Xxxxxx, Ph.D.
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