EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS EMPLOYMENT AGREEMENT
(this “Agreement”) is made and entered into effective as of August 3, 2010 (the “Effective
Date”), by and between LIQUIDMETAL TECHNOLOGIES,
INC., a Delaware corporation (the "Company"), XXXXXX XXXXXX, an individual
residing in the State of California (the "Employee").
RECITALS
WHEREAS, the Employee desires
to be employed by the Company upon the terms and conditions set forth in this
Agreement; and
WHEREAS, the Company desires
to assure itself of the Employee's continued employment in the capacities set
forth herein.
NOW, THEREFORE, in
consideration of the foregoing recitals and for other good and valuable
consideration, the parties hereto covenant and agree as follows:
1. Employment. The
Company hereby employs Employee, and the Employee hereby accepts such
employment, upon the terms and conditions set forth in this
Agreement.
2. Term.
Subject to the terms and conditions of this Agreement, including, but not
limited to, the provisions for termination set forth in Section 5 hereof, the
employment of the Employee under this Agreement shall commence on the Effective
Date and shall continue through the close of business on August 3, 2015 (the "Initial
Term"). Upon the expiration of the Initial Term, the
Employee’s employment with the Company will continue on an “at-will” basis and
may be terminated by Employee or the Company for any reason and at any time,
provided that the terminating party shall provide at least ninety (90) days
prior written notice of the termination to the other party (unless the
termination is With Cause as defined in this Agreement, in which case the
Employee’s employment may be terminated immediately).
3. Duties. Employee
will serve as PRESIDENT and
CHIEF EXECUTIVE OFFICER of the Company. The Employee will devote his full
business time, attention, skill, and energy to the business of the Company and
will be a full-time employee of the Company. Employee will
use the Employee’s best efforts to promote the success of the Company's business
and will cooperate fully with the Board of Directors in the advancement of the
best interests of the Company. Furthermore, the Employee shall assume
and competently perform such reasonable responsibilities and duties as may be
assigned to the Employee from time to time by the Board of Directors and
Chairman of the Board of the Company or their designee. To the extent
that the Company shall have any parent company, subsidiaries, affiliated
corporations, partnerships, or joint ventures (collectively "Related Entities"),
the Employee shall perform such duties to promote these entities and to promote
and protect their respective interests to the same extent as the interests of
the Company without additional compensation. At all times, the Employee agrees
that the Employee has read and will abide by, and prospectively will read and
abide by, any employee handbook, policy, or practice that the Company or Related
Entities has or hereafter adopts with respect to its employees
generally..
4. Compensation.
(a) Annual Base
Salary. As compensation for Employee’s services and in
consideration for the Employee's covenants contained in this Agreement, the
Company shall pay the Employee an annual base salary of $300,000.00, which
salary shall be paid in accordance with the Company’s regular payroll schedule
and will be subject to applicable tax and other legally required
withholdings. The annual compensation may be adjusted upward (but not
downward) in the sole discretion of the Board of Directors. For
purposes of this Agreement, the term “Salary Year” means
the one year, 365-day period (or 366 day period for a leap year) that begins on
the Effective Date and each successive one year period
thereafter. The base salary established by this paragraph will be
effective as of August 3, 2010, with any retroactive salary amount being payable
by the Company within a reasonable period of time following the execution of
this Agreement.
(b) Bonuses. In
addition to the Employee’s annual base compensation, during the term of the
Employee’s employment hereunder, the Employee shall be entitled to only such
bonuses or additional compensation as may be granted to the Employee by the
Board of Directors or Chairman of the Board of the Company, in their sole
discretion.
(c) Reimbursement of
Expenses. The Employee shall be reimbursed for all reasonable
and customary travel and other business expenses incurred by Employee in the
performance of Employee’s duties hereunder, provided that such reimbursement
shall be subject to, and in accordance with, any expense reimbursement policies
and/or expense documentation requirements of the Company that may be in effect
from time to time
(d) Stock
Grant. In addition to the foregoing, in consideration of the
execution of this Agreement by the Employee, the Company shall, on the date
hereof, grant to the employee 6,000,000 shares of the common
stock of the Company in accordance with a restricted stock agreement in the form
set forth as Exhibit
A hereto.
(e) Other Benefits. During
the term of the Employee’s employment hereunder, the Employee shall be eligible
to participate in such pension, life insurance, health insurance, disability
insurance and other benefits plans, if any, which the Company may from time to
time make available to similar-level employees.
(f) Vacation. The
Employee shall be entitled to 4
Weeks paid vacation during each Salary Year during the term of the
Employee’s employment hereunder. Vacation shall be taken at such
times and with such notice so as to not disrupt or interfere with the business
of the Company. Unused vacation from a particular Salary Year will
not be paid in cash but will carry over to succeeding Salary Years up to a
maximum of 3 Weeks, and
no more than 3 weeks of carried-over vacation may be taken during any Salary
Year.
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5. Termination.
(a) Death. The
Employee's employment under this Agreement shall terminate immediately upon
Employee’s death. In the event of a termination pursuant to this
Section 5(a), the Employee’s estate shall be entitled to receive any unpaid base
salary owing to Employee up through and including the date of the Employee’s
death.
(b) Disability. If,
during the term of the Employee’s employment hereunder, the Employee becomes
physically or mentally disabled in the determination of a physician appointed or
selected by the Company, or, if due to any physical or mental condition, the
Employee becomes unable for a period of more than sixty (60) days during any
six-month period to perform Employee’s duties hereunder on substantially a
full-time basis as determined by a physician selected by the Company, the
Company may, at its option, terminate the Employee's employment upon not less
than thirty (30) days written notice. In the event of a termination pursuant to
this Section 5(b), the Employee shall be entitled to receive any unpaid base
salary owing to Employee up through and including the effective date of
termination.
(c) Termination By Company
Without Cause. In addition to the other termination provisions
of this Agreement, the Company may terminate the Employee’s employment at any
time without cause (a “Termination Without Cause”). In the event of a
Termination Without Cause, the Employee shall continue to receive the Employee’s
base salary (as then in effect) during the twelve (12) month period immediately
following the effective date of the Termination Without Cause or, if shorter,
through the last day of the Initial Term (the “Severance Period”). In
addition to the severance pay described in the preceding sentence, the Employee
shall continue, during the Severance Period, to receive all employee health and
welfare benefits to which Employee was entitled immediately prior to the
Termination of Cause, but only to the extent that the applicable benefit plan
permits such continuation of benefits. Employee agrees and
acknowledges, however, that Employee will forfeit the right to receive base
salary and benefits during the Severance Period immediately upon the Employee’s
breach of any covenant set forth in Section 6 of this Agreement. The
Employee will also forfeit the right to salary and benefits during the Severance
Period upon accepting employment with another employer with comparable salary,
and benefits hereunder shall be forfeited and shall cease upon the Employee
becoming eligible for benefits from the Employee’s new
employer. Notwithstanding the foregoing, the termination of the
Employee’s employment pursuant to the second sentence of Section 2 of this
Agreement shall not constitute a Termination Without Cause and shall not give
rise to any severance payment or other benefits pursuant to this Section
5(c). The Employee’s right to receive any severance payments pursuant
to this Section 5(c) is conditioned upon the Employee signing a general release
in form and substance satisfactory to the Company under which the Employee
releases the Company and its affiliates, together with their respective
officers, directors, shareholders, employees, agents and successors and assigns,
from any and all claims Employee may have against them as of the date of such
release (whether known or unknown), other than claims arising out of this
Agreement.
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(d) Termination By Company With
Cause. The Company may terminate the Employee’s employment at
any time with Cause. As used in this Agreement, "Cause" shall mean
the following: (1) the Employee's failure or inability to perform Employee’s
duties under this Agreement to the reasonable satisfaction of the Board of
Directors of the Company after being given written notice of the Employee’s
deficiencies and having a period of at least ten (10) days to cure such
deficiencies to the reasonable satisfaction of the Board of Directors; (2)
dishonesty or other serious misconduct, (3) the commission of an unlawful act
material to Employee’s employment, (4) a material violation of the Company's
policies or practices which reasonably justifies immediate termination; (5)
committing, pleading guilty, nolo contendre or no contest (or their equivalent)
to, entering into a pretrial intervention or diversion program regarding, or
conviction of, a felony or any crime or act involving moral turpitude, fraud,
dishonesty, or misrepresentation; (6) the commission by the Employee of any act
which could reasonably affect or impact to a material degree the interests of
the Company or Related Entities or in some manner injure the reputation,
business, or business relationships of the Company or Related Entities; (7) the
Employee's inability to perform an essential function of Employee’s position;
(8) any material breach by Employee of this Agreement which, if unintentional
and capable of being cured, is not cured within ten (10) of written notice of
such breach by the Company to Employee. The Company may terminate
this Agreement for Cause at any time without notice. In the event of
a termination for Cause, the Company shall be relieved of all its obligations to
the Employee provided for by this Agreement as of the effective date of
termination, and all payments to the Employee hereunder shall immediately cease
and terminate as of such date, except that Employee shall be entitled to the
annual base salary hereunder up to and including the effective date of
termination, provided, however, that the Employee’s obligations under Sections 6
and 7 of this Agreement shall survive such a Termination for Cause, and any
other liabilities or obligations which have accrued and are owed by the Employee
to the Company shall not be extinguished or released by such
termination.
(e) Termination by Employee Upon
Change in Control. In the event that a Change in Control (as
defined below) occurs and Employee terminates his own employment with the
Company by delivering written notice of termination to the Company within thirty
(30) days after such Change in Control (an “Employee Termination Notice”), then
Employee shall be entitled to lump-sum severance compensation in an amount equal
to the amount of base salary to which Employee would have been entitled for the
remainder of the Initial Term at the base salary rate being paid to Employee as
of the date of the Change in Control (the “Change in Control
Compensation”). The Change in Control Compensation shall be payable
on the last pay day of the Company of the month in which the Change in Control
occurs, but no earlier than fifteen (15) days after which Employee delivers the
Employee Termination Notice to the Company. In addition to the Change
in Control Compensation, the Employee shall, to the extent permitted by any
applicable benefit plan, continue to receive, from the date of termination
through the end of the Initial Term, all employee health and welfare benefits
that Employee would have received during such period in the absence of such
termination. Employee agrees and acknowledges, however, that Employee
will forfeit the right to receive Change in Control Compensation and benefits
during such period immediately upon the Employee’s breach of any covenant set
forth in Section 6 of this Agreement. For purposes hereof, the term
“Change in Control” means any of the following events: (i) any person, entity,
or “group” (as described in Rule 13d-5(b)(1) promulgated under the Securities
Exchange Act of 1934, as amended), other than an affiliate or subsidiary of the
Company or an employee benefit plan established or maintained by the Company, a
subsidiary of the Company, or any of their respective affiliates, acquires more
than 50.0% of the combined voting power of the Company’s then outstanding
securities; (ii) the consummation of (A) a merger or consolidation of the
Company with or into another corporation unless, after giving effect to such
transaction, the stockholders of the Company immediately prior to such
transaction own more than 50% of the aggregate voting power of the Company or
the successor entity of such transaction, or (B) a sale or disposition of all or
substantially all of the Company’s assets; (iv) if during any period of two (2)
consecutive years, individuals who at the beginning of such period constitute
the board of directors of the Company (the “Continuing Directors”) cease for any
reason to constitute at least a majority thereof; provided that any
individual whose election or nomination for election as a member of the board of
directors of the Company was approved by a vote of at least a majority of the
Continuing Directors then in office shall be considered a Continuing
Director. In the case of any ambiguity regarding the interpretation
of the foregoing definition of “Change in Control”, such question shall be
resolved in good faith by the board of directors of the Company. The
Employee’s right to receive any compensation pursuant to this Section 5(e) is
conditioned upon the Employee signing (on or before such compensation is due) a
general release in form and substance satisfactory to the Company under which
the Employee releases the Company and its affiliates, together with their
respective officers, directors, shareholders, employees, agents and successors
and assigns, from any and all claims Employee may have against them as of the
date of such release (whether known or unknown), other than claims arising out
of this Agreement.
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(f) Special
Termination. In addition to the foregoing, in the event that
the Company does not within ninety (90) days after the date of this Agreement
receive from Crucible Intellectual Property, LLC, a Delaware limited liability
company and special-purpose wholly owned subsidiary of the Company (“Crucible”),
the entire maximum amount of the second payment due to Crucible by Apple Inc.
(“Apple”) pursuant to the Exclusive License Agreement of even date herewith
between Crucible and Apple, the Company may at any time thereafter terminate
this Agreement upon written notice to Employee. In the event of such
a termination, the Company shall be relieved of all its obligations to the
Employee provided for by this Agreement as of the effective date of termination,
and all payments to the Employee hereunder shall immediately cease and terminate
as of such date, except that Employee shall be entitled to the annual base
salary hereunder up to and including the effective date of termination,
provided, however, that the Employee’s obligations under Sections 6 and 7 of
this Agreement shall survive such a termination.
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6. Nonsolicitation
and Nondisclosure Covenants.
(a) Rationale for
Restrictions. Employee acknowledges that Employee’s services
hereunder are of a special, unique, and extraordinary character, and Employee’s
position with the Company places Employee in a position of confidence and trust
with customers, suppliers, and other persons and entities with whom the Company
and its Related Entities have a business relationship. The
Employee further acknowledges that the rendering of services under this
Agreement will likely require the disclosure to Employee of Confidential
Information (as defined below) including Trade Secrets of the Company relating
to the Company and/or Related Entities. As a consequence, the
Employee agrees that it is reasonable and necessary for the protection of the
goodwill and legitimate business interests of the Company and Related Entities
that the Employee make the covenants contained in this Section 6, that such
covenants are a material inducement for the Company to employ the Employee and
to enter into this Agreement, and that the covenants are given as an integral
part of and incident to this Agreement.
(b) Nonsolicitation
Covenants. As used herein, the term "Restrictive Period"
means the time period commencing on the Effective Date of this Agreement and
ending on the second (2nd)
anniversary of the date on which the Employee’s employment by the Company (or
any Related Entity) expires or is terminated for any reason, including both a
termination by the Company for Cause and Not for Cause. In addition,
the term “Covered
Business” means any business which is the same as, or similar to, any
business conducted by the Company or any of the Related Entities at any time
during the Restrictive Period. The Employee agrees that the Employee
will not engage in any of the following acts anywhere in the world during the
Restrictive Period:
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(i)
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directly
or indirectly assist, promote or encourage any existing or potential
employees, customers, clients, or vendors of the Company or any Related
Entity, as well as any other parties which have a business relationship
with the Company or a Related Entity, to terminate, discontinue, or reduce
the extent of their relationship with the Company or a Related
Entity;
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(ii)
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directly
or indirectly solicit business of the same or similar type as a Covered
Business, from any person or entity known by the Employee to be a customer
or client of the Company, whether or not the Employee had contact with
such person or entity during the Employee’s employment with the
Company;
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(iii)
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disparage
the Company, any Related Entities, and/or any shareholder, director,
officer, employee, or agent of the Company or any Related Entity;
and/or
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(iv)
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engage
in any practice the purpose of which is to evade the provisions of this
Section 6.
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Employee
acknowledges that Employee’s services hereunder are of a special, unique, and
extraordinary character, and Employee’s position with the Company places
Employee in a position of confidence and trust with customers, suppliers, and
other persons and entities with whom the Company and its Related Entities have a
business relationship. The Employee further acknowledges that
the rendering of services under this Agreement will likely require the
disclosure to Employee of Confidential Information (as defined below) and Trade
Secrets (as defined below) of the Company relating to the Company and/or Related
Entities. As a consequence, the Employee agrees that it is reasonable
and necessary for the protection of the goodwill and legitimate business
interests of the Company and Related Entities that the Employee make the
covenants contained in this Section 6, that such covenants are a material
inducement for the Company to employ the Employee and to enter into this
Agreement, and that the covenants are given as an integral part of and incident
to this Agreement.
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(c) Disclosure of Confidential
Information. The Employee acknowledges that the inventions,
innovations, software, Trade Secrets, business plans, financial strategies,
finances, and all other confidential or proprietary information with respect to
the business and operations of the Company and Related Entities are valuable,
special, and unique assets of the Company. Accordingly, the Employee
agrees not to, at any time whatsoever either during or after the Employee’s term
of employment with the Company, disclose, directly or indirectly, to any person
or entity, or use or authorize any person or entity to use, any confidential or
proprietary information with respect to the Company or Related Entities without
the prior written consent of the Company, including, without limitation,
information as to the financial condition, results of operations, identities of
clients or prospective clients, products under development, acquisition
strategies or acquisitions under consideration, pricing or cost information,
marketing strategies, passwords or codes or any other information relating to
the Company or any of the Related Entities which could be reasonably regarded as
confidential (collectively referred to as “Confidential
Information”). However, the term “Confidential Information” does not
include any information which is or shall become generally available to the
public other than as a result of disclosure by the Employee or by any person or
entity which the Employee knows (or which the Employee reasonably should know)
has a duty of confidentiality to the Company or a Related Entity with respect to
such information. In addition to the foregoing, Company will be fully
entitled to all of the protections and benefits afforded by the California
Uniform Trade Secrets Acts and any other applicable law. The term
“Trade Secret” shall mean any information, including a formula, pattern,
compilation, program, device, method technique, or process that derives
independent economic value, actual or potential, from being not generally known
to, and not being readily ascertainable by proper means by, other persons who
can derive economic value from its disclosure or use, including but not limited
to the patented information and processes as well as the unpatented information
and processes comprising, underlying, arising from, and associated with
Liquidmetal alloys.
(d) Prevention of Premature
Disclosure of Confidential Information and Trade Secrets. The
Employee agrees and acknowledges that, because the success of the Company is
heavily dependent upon maintaining the secrecy of the Company’s Confidential
Information and Trade Secrets and preventing the premature public disclosure of
the Company’s proprietary information and technology including its Confidential
Information and Trade Secrets, the Employee agrees to use the Employee’s best
efforts and his or her highest degree of care, diligence, and prudence to ensure
that no Confidential Information or Trade Secret prematurely leaks or otherwise
prematurely makes its way into the public domain or any public forum, including,
without limitation, into any trade publications, internet chat rooms, or other
similar forums. In the event that the Employee becomes aware of any
premature leak of Confidential Information or Trade Secret or becomes aware of
any circumstances creating a risk of such a leak, the Employee shall immediately
inform the Board of Directors, the Chief Executive Officer, or the Employee’s
supervisor of such leak or of such circumstances.
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(e) Removal and Return of
Proprietary Items. The Employee will not remove from the
Company's premises (except to the extent such removal is for purposes of the
performance of the Employee’s duties at home or while traveling, and under such
conditions and restrictions as are specifically authorized and/or required by
the Company) or transmit by any means, electronic or otherwise, any document,
record, notebook, plan, model, component, device, computer software or code, or
Confidential Information or Trade Secret whether embodied in a disk or in any
other form, including electronic form (collectively, the "Proprietary
Items"). The Employee recognizes that, as between the Company
and the Employee, all of the Proprietary Items, whether or not developed by the
Employee, are the exclusive property of the Company. Upon termination
of Employee’s employment with the Company by either party (regardless of the
reason for termination), or upon the request of the Company during the term of
employment, the Employee will return to the Company all of the Proprietary Items
in the Employee’s possession or subject to the Employee’s control, and the
Employee shall not retain any copies, abstracts, sketches, or other physical
embodiment of any of the Proprietary Items, Confidential Information, Trade
Secret or any part thereof.
(f) Enforcement and
Remedies. In the event of any breach of any of the covenants
set forth in this Section 6, the Employee recognizes that the remedies at law
will be inadequate and that in addition to any relief at law which may be
available to the Company for such violation or breach and regardless of any
other provision contained in this Agreement, the Company shall be entitled to
equitable remedies (including an injunction) and such other relief as a court
may grant after considering the intent of this Section
6. Additionally, the period of time applicable to any covenant set
forth in this Section 6 will be extended by the duration of any violation by
Employee of such covenant. In the event a court of competent
jurisdiction determines that any of the covenants set forth in this Section 6
are excessively broad as to duration, geographic scope, prohibited activities or
otherwise, the parties agree that this covenant shall be reduced or curtailed to
the extent, but only to the extent, necessary to render it
enforceable.
7. Employee
Inventions.
(a) Employee
agrees that any inventions, ideas, original works of authorship or other work
product in whole or in part conceived or made by Employee which are made through
the use of any of the Confidential Information or any of the Company's
equipment, facilities, supplies, trade secrets or time, or which relate to the
Company's business or the Company's actual or demonstrably anticipated research
and development, or which result from any work performed by Employee for the
Company, along with any rights in or to any of the foregoing under copyright,
patent, trade secret, trademark, or other law, shall belong exclusively to the
Company and shall be deemed part of the Confidential Information for purposes of
this Agreement whether or not fixed in a tangible medium of expression. Without
limiting the foregoing, Employee agrees that any such original works of
authorship shall be deemed to be "works made for hire" and that the Company
shall be deemed the author thereof under the U. S. Copyright Act (Title 17 of
the U. S. Code), provided that in the event and to the extent such works are
determined not to constitute "works made for hire" as a matter of law or that
there are any rights that do not accrue to the Company as a work made for hire,
Employee hereby irrevocably assigns and transfers to the Company all right,
title and interest in and to such works, including but not limited to copyrights
and other intellectual property rights. This Agreement shall be construed in
accordance with the provisions of Section 2870 of the California Labor Code (a
copy of which is attached as Exhibit
A hereto) relating to inventions made by Employee, and accordingly this
Agreement is not intended and shall not be interpreted to assign to or vest in
the Company any of Employee's rights in any inventions other than those
described in the first sentence of this Section 7(a).
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(b) At
all times during Employee's employment by the Company, Employee will maintain a
complete and detailed current written record of all ideas, concepts,
improvements, discoveries or inventions, of any nature ("Inventions"), whether
patentable or not, created or made in whole or part by Employee, either solely
or jointly with others, and Employee will promptly disclose any such Inventions
to the Company, in writing. Employee further agrees that all such
written records shall be and remain the sole and exclusive property of the
Company, and Employee shall make such written records available to the Company
at any time upon request, for review, inspection or copying by the Company, and
shall deliver all copies of such records to the Company upon termination of
Employee's employment, for any reason.
(c) With
respect to Inventions made or conceived of in whole or part by Employee, either
solely or jointly with others, whether during Employee's employment by the
Company or after termination of such employment if developed using, applying or
adapting, in any way, the Company's equipment, supplies, facilities,
Confidential Information or trade secret information, or during Employee's
working hours, or such Invention relates to the Company's business, or actual or
demonstrably anticipated research or development, or results from any work done
in whole or part by Employee, either solely or jointly with others, for the
Company, or is based on or related to programs, processes, Inventions or
information learned by Employee during such employment:
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(i)
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Employee
shall inform the Company promptly and fully of such Inventions by a
written report, setting forth in detail the procedures employed and the
results achieved.
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(ii)
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Employee
hereby expressly transfers and assigns to the Company all of Employee's
right, title and interest in and to such Inventions; and to Applications
for U.S. and/or foreign letters patent and/or copyrights as well as any
and all continuations, continuations-in-part, and divisions thereof, and
to U.S. and/or foreign letters patent and/or copyrights issued thereon, as
well as any and all reissues, extensions, improvements, or further
developments thereof.
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(iii)
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Employee
shall apply, or assist the Company in applying, at the Company's request
and expense, for U.S. and/or foreign letters patent and/or copyrights in
the Company's name, or otherwise as the Company shall
desire. The decision to obtain letters patent and/or copyrights
shall reside solely with the Company; however, the decision not to obtain
or apply for letters patent and/or copyrights at the time of disclosure or
at any time thereafter, shall not be construed as a waiver of any rights
hereunder.
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(iv)
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the
Company shall also have the perpetual, royalty-free right to use in its
business, to license others to use, and to make, use and sell products,
processes and/or services derived from any Inventions, discoveries,
designs, improvements, concepts, ideas, whether patentable or not,
including but not limited to process, methods, formulas, techniques or
know-how related thereto, which are not within the scope of Inventions as
defined herein, but which are conceived or made in whole or part by
Employee, either solely or jointly with others, during regular working
hours or with the use of the Company's equipment, supplies, facilities,
Confidential Information, trade secret information materials or
personnel.
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8. Essential
and Independent Covenants. The Employee’s covenants in
Sections 6 and 7 of this Agreement are independent covenants, and the existence
of any claim by the Employee against the Company under this Agreement or
otherwise will not excuse the Employee’s breach of any covenant in Section 6 or
7. The covenants of Sections 6 and 7 shall survive the expiration,
termination, extinguishment, or lapse of this Agreement under any circumstances,
even if this Agreement is terminated by either party, whether for Cause or Not
for Cause.
9. Representations
and Warranties by The Employee. The Employee represents and warrants to
the Company that the execution and delivery by the Employee of this Agreement do
not, and the performance by the Employee of the Employee’s obligations hereunder
will not, with or without the giving of notice or the passage of time, or both:
(a) violate any judgment, writ, injunction, or order of any court,
arbitrator, or governmental agency applicable to the Employee, or
(b) conflict with, result in the breach of any provisions of or the
termination of, or constitute a default under, any agreement to which the
Employee is a party or by which the Employee is or may be bound, including,
without limitation, any noncompetition agreement or similar
agreement. Employee further represents and warrants that he fully and
completely understands this Agreement and that he has engaged in negotiations
with the Company and has either consulted with an attorney of his choice or has
had ample opportunity to do so and is fully satisfied with the opportunity he
has had.
10. Notices. For
purposes of this Agreement, notices and all other communications provided for
herein shall be in writing and shall be deemed to have been duly given when
hand-delivered, sent by facsimile transmission (as long as receipt is
acknowledged), or mailed by United States certified or registered mail, return
receipt requested, postage prepaid, addressed to the address or facsimile number
for each party set forth on the signature page hereto, or to such other address
or facsimile number as either party may have furnished to the other in writing
in accordance herewith, except that a notice of change of address shall be
effective only upon receipt.
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11. Miscellaneous. No
provision of this Agreement may be modified or waived unless such waiver or
modification is agreed to in writing signed by both of the parties
hereto. No waiver by any party hereto of any breach by any other
party hereto shall be deemed a waiver of any similar or dissimilar term or
condition at the same or at any prior or subsequent time. This
Agreement is the entire agreement between the parties hereto with respect to the
Employee's employment by the Company, and there are no agreements or
representations, oral or otherwise, expressed or implied, with respect to or
related to the employment of the Employee which are not set forth in this
Agreement. This Agreement shall be binding upon, and inure to the
benefit of, the Company, its respective successors and assigns, and the Employee
and Employee’s heirs, executors, administrators and legal
representatives. The duties and covenants of the Employee under this
Agreement, being personal, may not be delegated or assigned by the Employee
without the prior written consent of the Company, and any attempted delegation
or assignment without such prior written consent shall be null and void and
without legal effect. The parties agree that if any provision of this
Agreement shall under any circumstances be deemed invalid or inoperative, the
Agreement shall be construed with the invalid or inoperative provision deleted
and the rights and obligations of the parties shall be construed and enforced
accordingly. This Agreement may be assigned by the Company without
the consent of the Employee, provided, however, that the Employee is given
notice of the assignment.
12. Governing
Law; Resolution of Disputes. The validity, interpretation,
construction, and performance of this Agreement shall be governed by the laws of
the State of California without regard to principles of choice of law or
conflicts of law thereunder. Any action or proceeding seeking to
enforce any provision of, or based on any right arising out of, this Agreement
may be brought against either of the parties in the courts of the State of
California, County of Orange, or, if it has or can acquire jurisdiction, in the
federal courts located in, Orange County, California, and each of the parties
consents to the jurisdiction of such courts (and of the appropriate appellate
courts) in any such action or proceeding and waives any objection to venue laid
therein. Process in any action or proceeding referred to in the preceding
sentence may be served on either party anywhere in the world. The
parties hereto agree that having venue and jurisdiction solely in California is
reasonable in that the headquarters for the Company is in Orange County,
California and that site for litigation is the most central for such
matters. THE PARTIES HEREBY WAIVE A JURY TRIAL IN ANY LITIGATION
ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE EMPLOYMENT OF THE EMPLOYEE
WITH THE COMPANY. This Agreement shall not be construed against
either party but shall be construed without regard to the participation of
either party in the drafting of this Agreement or any part thereof.
13. Counterparts;
Facsimile Signatures. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement
may be effective upon the execution and delivery by any party hereto of
facsimile copies of signature pages hereto duly executed by such party; provided, however, that any
party delivering a facsimile signature page covenants and agrees to deliver
promptly after the date hereof two (2) original copies to the other party
hereto.
11
14. Modification
By The Court. In the event that any provision or Section
of this Agreement violates any law of the state of California or is for some
other reason unenforceable as written in the state of California, the Employee
and the Company agree that the unenforceable provision or Section should not
cause the entire Agreement to become unenforceable unless it is caused to fail
in its essential purpose. In the event that any provision or Section
of this Agreement violates any law of the state of California or is for some
other reason unenforceable as written in the state of California, the Employee
agrees that the provision should be reduced in scope or length or otherwise
modified by the Court, if possible under the law, to cause the provision or
Section of the Agreement to be legal and enforceable but to still provide to the
Company the maximum protection available to it under the law.
[signature(s)
on following page]
12
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the day and year first above
written.
| LIQUIDMETAL TECHNOLOGIES, INC. | |||
|
|
By:
|
/s/ Xxxx Xxxxxxxx | |
| Xxxx Xxxxxxxx, Chairman | |||
| Liquidmetal Technologies | |||
| 00000 Xxxxxxxxx | |||
| Xxxxxx Xxxxx Xxxxxxxxx, XX | |||
| 00000 | |||
| Facsimile Number: 949.635.2108 | |||
| EMPLOYEE | |||
|
|
By:
|
/s/ Xxxxxx Xxxxxx | |
|
|
Printed
Name:
|
Xxxxxx Xxxxxx | |
|
Address
and Facsimile Number:
|
|||
13
EXHIBIT
A
Section
2870 of the California Labor Code provides:
(a) Any
provision in an employment agreement which provides that an employee 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 employee 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
of 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 employee for the employer.
(b) To
the extent a provision in an employment agreement purports to require an
employee to assign an invention otherwise excluded from being required to be
assigned under subdivision (a), the provision is against the public policy of
this state and is unenforceable.
