Exhibit 10.16
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made effective the 11th day of October,
1996, by and between TANISYS TECHNOLOGY, INC., a Wyoming corporation, with
principal offices located at 00000 Xxxxxxxxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxx
00000 (hereinafter referred to as the "Employer"), and Xxx Xxxxxxx, a
resident of Houston, Texas (hereinafter referred to as the "Employee").
WITNESSETH:
WHEREAS, the Employer desires to employ the Employee, and the Employee
and Employer desire to enter into an agreement relating to such employment,
outlining the duties and obligations of each:
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein set forth, it is agreed as follows:
ARTICLE I - DEFINITIONS
1.1 "Confidential Information" shall mean any and all information held
in confidence by Employer including information relating to Employer's
Inventions (as defined below), and to Employer's trade secrets including
concepts, prototypes, algorithms, research and development, technology
strategies, product strategies, marketing strategies, supplier lists,
customer lists, personnel lists, personnel assignments, business
relationships, business opportunities, legal proceedings, finances, and
assets. Confidential Information further shall include information made
available to Employer by other parties under a confidential relationship.
1.2 "Invention(s)" shall mean any idea, innovation, concept, creation,
discovery, development, technique, algorithm, method, process, procedure,
prototype, hardware, software, product, improvement, or enhancement,
whether or not protectable by patent, copyright, trade secret or mask work,
and whether or not reduced to practice, but which is (a) within the scope
of Employer's current, later existing, or anticipated business and
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technology, and (b) is created, conceived, discovered, invented, reduced
to practice, developed, or made by Employee during the term of employment
by Employer, whether individually or jointly with others.
1.3 "Intellectual Property Rights" shall mean:
1.3.1 All rights, title and interests in all Letters Patent and
applications for Letters Patent including any reissue,
division, continuation or continuation-in-part applications
throughout the world now or hereafter filed;
1.3.2 All rights, title and interests in all trade secrets, and all
trade secret rights and equivalent rights arising under the
common law, state law, federal law and laws of foreign
countries;
1.3.3 All rights, title and interests in all mask work
registrations, copyrights, and copyrighted interests, and all
mask work registration rights, copyright rights and other
literary property or author's rights, whether or not
protectable by copyright or by mask work registration; and
1.3.4 All rights, title and interests in any and all know-how and
show-how, whether or not patentable, copyrightable or
protectable by trade secret or mask work registration.
ARTICLE 2 - TERMS AND CONDITIONS
2.1 EMPLOYMENT. The Employer agrees to employ the Employee, and the Employee
agrees to be employed by the Employer, subject to the terms and conditions set
forth herein.
2.2 TERM. Subject to the provisions hereof, the term of the Employee's
employment by the Employer under this Agreement shall expire November 1, 1997;
provided that such term of employment shall continue thereafter unless and until
terminated by either the Employer or the Employee upon no less than one hundred
twenty (120) days prior written notice to the other of the desire to terminate
such employment. The term of the
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Employee's employment hereunder, including any continuation of the original
term, is hereinafter referred to as the "Employment Period."
2.3 POSITION AND DUTIES. During the Employment Period, the Employee shall
serve as Vice President of Engineering of the Employer with such assignments,
powers and duties as are assigned or delegated to him by the President of the
Employer. Such assignments, powers and duties may, from time to time, be
modified by the Employer, as the Employer's needs may require. The Employee
shall also, at the request of the Employer, perform similar services for any
Affiliate (as hereinafter defined) of the Employer without additional
compensation. Except as set forth in an Amendment to the Agreement signed by
both parties and effective on the 17th day of October 1996, the Employee
agrees to devote all of his business time, skill, attention and best efforts
to the business of the Employer and its Affiliates in the advancement of the
best interests of the Employer and its Affiliates. As used in this
Agreement, the term "Affiliate" of the Employer means any person or
corporation that, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under the control of the Employer.
2.4 COMPENSATION.
A. For all services rendered by the Employee to the Employer during
the Employment Period, the Employer shall pay the Employee a salary at the
rate of $96,000 per year. The compensation is to be payable, subject to such
withholdings as are required by law, in installments in accordance with the
Employer's customary payroll practices.
B. Contingent upon the approval by the Board of Directors, you will be
granted an option to purchase 100,000 shares of its common stock at an option
price determined by the policies, guidelines, rules and regulations of the
Vancouver Stock Exchange. One third of such option shall vest on each of the
first, second and third anniversaries of the date of grant and shall expire
five (5) years from the date of grant.
2.5 OFFICE FACILITIES. During the Employment Period, the Employer will
furnish the Employee, without charge, suitable office facilities for the
purpose of performing his duties hereunder, which facilities shall include
secretarial, telephone, clerical and support personnel and services and shall
be similar to those furnished to employees of the Employer having comparable
positions.
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2.6 FRINGE BENEFITS; VACATIONS. During the Employment Period, the Employee
shall be entitled to participate in or receive benefits under such pension,
medical and life insurance and other employee benefit plans of the Employer
which may be in effect from time to time, to the extent he is eligible under
the terms of those plans, on the same basis as other employees of the
Employer having comparable positions.
2.7 EXPENSES.
A. Subject to such policies regarding expenses and expense
reimbursement as may be adopted from time to time by the Employer and
compliance therewith by the Employee, the Employee is authorized to incur
reasonable expenses in the performance of his duties hereunder, and the
Employer will reimburse Employee for such reasonable out-of-pocket expenses
upon the presentation by the Employee of an itemized account and receipts
satisfactory to the Employer.
B. The Employee will be reimbursed up to, but not to exceed $5,000.00
for the costs of moving personal effects from his current place of residence
to the Austin area. This is to be used within 12 months of the signing of
this agreement.
2.8 TERMINATION.
A. If the Employee dies or becomes disabled during the Employment
Period, the Employee's salary and other rights under this Agreement or as an
employee of the Employer (except for salary and other rights accrued prior
thereto) shall terminate at the end of the month during which death or
disability occurs. For purposes of this Agreement, the Employee shall be
deemed to be "disabled" if, at any time during the Employment Period, the
Employee shall have been unable to perform the duties of his employment
hereunder due to physical or mental incapacity for a period of ninety (90)
days or any ninety (90) days in a period of two hundred seventy (270) days.
B. If the Employee fails to perform his duties hereunder or to comply
with any of the provisions hereof or commits any act of misconduct,
malfeasance, gross negligence or disloyalty, the Employment Period and the
Employee's salary and other rights under this Agreement as an employee of the
Employer, subject to Section 2.8(C) below, shall terminate upon written
notice from the Employer to the Employee, but such termination
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shall not affect the liability of the Employee by reason of his misconduct,
malfeasance, gross negligence or disloyalty.
C. If it is determined that the Employer has terminated the Employee
without cause as determined in accordance with Section 2.8(B) above, the
Employee will not be subject to the provisions of Section 2.10, COVENANT NOT
TO COMPETE, herein.
2.9 COVENANT NOT TO DISCLOSE. Employee covenants and agrees to hold in
strict confidence, and not disclose to others, any Confidential Information
or Inventions in any form. Employee further covenants and agrees that
Confidential Information and Inventions shall only be used in the performance
of work for Employer and its Affiliates, and otherwise be held in trust for
the sole benefit of Employer, and its Affiliates, successors and assigns.
2.10 COVENANT NOT TO COMPETE. As a reasonable precaution against
unauthorized disclosure and use of Confidential Information and Inventions
disclosed to Employee in the performance of Employee's duties during the
period of employment by Employer. Employee covenants and agrees that for a
period of one (1) year after the voluntary resignation of the Employee or
termination for cause as outlined in Section 2.8(B) above, Employee will not
engage in any work relating to electronic products for workstations, network
servers, peripheral products, personal computers, memory test equipment and
touch sensory products within the State of Texas.
2.11 DUTY OF DISCLOSURE TO EMPLOYER. Employee agrees to promptly disclose
to Employer all Confidential Information and Inventions which come into
Employee's possession or to which Employee is exposed during the period of
employment by Employer. Employee further agrees to promptly disclose to
Employer all business opportunities which come to Employee's attention during
the period of employment by Employer and which relate to Employer's business
or technology.
2.12 ESSENTIAL NATURE OF COVENANTS. The covenants of the Employee contained
in Sections 2.9 and 2.10 shall be construed as independent of any other
provision of this Agreement; and the existence of any claim or cause of
action of the Employee against the Employer or any of its subsidiaries,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Employer of said covenants. The
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Employee understands that the covenants contained in Sections 2.9 and 2.10
are essential elements of the transactions contemplated by this Agreement
and, but for the agreement of the Employee to Sections 2.9 and 2.10, the
Employer would not have agreed to enter into such transactions.
2.13 TITLE RIGHTS. All Intellectual Property Rights in and to Confidential
Information and Inventions are and shall remain vested in Employer. Further,
Employee agrees that all copyrightable works prepared under this Agreement
are "works made for hire' under applicable copyright laws.
2.13.1 Employee agrees to assign and hereby assigns to Employer all
Intellectual Property Rights that Employee may now or hereafter have in
Confidential Information and Inventions. Employee agrees to take such
action, including, but not limited to, the execution, acknowledgment,
delivery and preparation of documents, and the giving of testimony, as may
be requested by Employer to evidence, transfer, vest or confirm Employer's
rights, titles, and interests in Confidential Information and Inventions.
2.13.2 Employee hereby waives all moral rights in copyrightable works,
including but not limited to the rights of attribution and integrity
arising under the copyright and equivalent laws throughout the world.
2.13.3 Employee shall not contest the validity of any copyright, any
trademark, or any mask work registration owned by or vesting in Employer
under this Agreement.
2.13.4 NOTICE: Notwithstanding the provisions of Section 2.13.1 above,
this Agreement does not obligate Employee to assign or offer to assign to
Employer any of Employee's rights in an invention which:
(i) was conceived and reduced to practice without the use of
equipment, supplies, facilities, Confidential Information, ,or
Inventions of Employer;
(ii) was conceived and reduced to practice entirely on Employee's
own time; and
(iii) does not relate to the current, later existing or reasonably
anticipated business and technology of Employer.
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2.14 REMEDIES. In the event of a breach or threatened breach by the
Employee of Section 2.9 or 2.10, the Employer shall be entitled to a
temporary restraining order and an injunction restraining the Employee from
the commission of such breach. Nothing herein contained shall be construed
as prohibiting the Employer from pursuing any other remedies available to it
for such breach or threatened breach, including the recovery of money damages.
2.15 WAIVER OF BREACH. The waiver by one party of a breach of any provision
of this Agreement by the other party shall not operate or be construed as a
waiver of any subsequent breach by the other party, whether of a same or
different nature.
2.16 BINDING EFFECT. This Agreement shall inure to the benefit of and shall
be binding upon the parties hereto and their respective successors, assigns,
heirs and legal representatives. This Agreement, being personal, cannot be
assigned.
2.17 SEVERABILITY. The invalidity of all or any part of any section of this
Agreement shall not render invalid the remainder of this Agreement or the
remainder of such section. If any provision of this Agreement is
unenforceable, such provision shall be interpreted to be reformed as
necessary to become enforceable.
2.18 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall, when executed, be deemed to be an
original, but all of which together shall constitutes one and the same
instrument.
2.19 GOVERNING LAW. This Agreement shall be construed (both as to validity
and performance) and enforced in accordance with and governed by the laws of
the State of Texas.
2.20 NOTICE. All Notices which are required or may be give under this
Agreement shall be in writing and shall be deemed to have been duly given
when delivered in person or three (3) days after being mailed by registered
or certified first-class mail, postage prepaid, return receipt requested, if
to the Employee at 0000 Xxxxx, Xxxxxxx, Xxxxx, 00000, or if to the Employer,
at the address listed above, or to such other address as such party shall
have specified by notice to the other party hereto as provided in this
section.
2.21 ENTIRE AGREEMENT. This Agreement and the Amendment to this Agreement
effective October 17, 1996, which is incorporated herein and made a part
hereof,
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constitutes the entire agreement between the parties hereto and supersedes
all prior agreements, understanding and arrangements, oral or written,
between the parties hereto with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and date first above written.
TANISYS TECHNOLOGY, INC.
By: /s/ XXXX X. XXXXXXXXX
------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President & Chief
Operating Officer
/s/ XXX XXXXXXX
---------------------------------
XXX XXXXXXX
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ADDENDUM A TO EMPLOYMENT AGREEMENT
Xx. Xxx X. Xxxxxxx and Xx. Xxxx X. Alito, each a U.S. citizen and
respectively residing at 0000 Xxxxx, Xxxxxxx, Xxxxx 00000, and 00000 Xxxxxxxx
Xxxxx, Xxxxxxx, Xxxxx 00000 (hereafter "Innovators"), and Tanisys Technology,
Inc., a United States corporation with principal officers at 00000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 (hereafter "Tanisys"), agree that
Innovators have independently developed prior to their employment by Tanisys the
following confidential and proprietary technology on which they are now filing
patent applications:
"Authentication and encryption communications technology, both with and
without unique tamper resistant security modules (TRSMs), for authenticating
originating systems, answering systems, and TRSM systems occurring singularly
or in networks, and encrypting information to be exchanged among such systems
with encryption keys which are highly resistant to cryptographic analysis and
brute force trial and error attacks, and encryption key management processes
which do not require the maintenance of key directories."
Innovators will be continuing their research and development of the
above technology during their employment by Tanisys, and Tanisys agrees that
all rights, title, interests, and intellectual property rights, including
patent, copyright, trademark, mask work, and trade secret rights, in the
above technology and in all modifications, improvements, enhancements and
derivatives of the above technology either conceived or made by Innovators
before, during or after Innovators employment by Tanisys, are owned solely by
and vested solely in Innovators to the complete exclusion of Tanisys.
NOW THEREFORE, the parties have signed or have caused this Addendum to be
signed by their duly authorized representative.
Tanisys Technology, Inc. Xxx X. Xxxxxxx Xxxx X. Alito
By: /s/ XXXX X. XXXXXXXXX /s/ XXX X. XXXXXXX /s/ XXXX X. ALITO
------------------------ -------------------- --------------------
Xxxx X. Xxxxxxxxx Date: 10/17/96 Date: 10/17/96
Title: President and COO
Date: 10/17/96
