EMPLOYMENT AGREEMENT FOR XXXXX X. XXX
This Employment Agreement (the "Agreement") is made as of April 16, 1997, by and
between Immecor Corporation, a California corporation, located at 000-000
Xxxxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000, hereinafter referred
to as "Immecor" or the "Employer", and Xxxxx X. Xxx, whose address is 0000
Xxxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx 00000, hereinafter referred to as "Lai" or
the "Employee".
In consideration of the mutual promises made herein, Immecor and Lai agree as
follows:
ARTICLE 1. TERM OF EMPLOYMENT
Section 1.01. Specified Term. The Immecor hereby employs Lai and Lai hereby
accepts employment with Immecor for a period of one (1) year, beginning on April
16, 1997.
Section 1.02. Earlier Termination. This Agreement may be terminated earlier only
as hereinafter provided.
ARTICLE 2. DUTIES AND OBLIGATIONS OF EMPLOYEE.
Section 2.01. Title and Description of Duties. Lai shall serve as Vice President
of Sales and Marketing of Immecor Corporation. In that capacity, Lai shall do
and perform all services, acts, or things necessary or advisable to fulfill the
duties of that position. Lai shall ay all times be subject to the direction of
the President, and to the policies established by the Board of Directors of
Immecor. The duties of Lai may be modified from time to time by the mutual
consent of Immecor and Lai without resulting in a rescission of this Agreement.
The mutual written consent of Immecor and Lai shall constitute execution of that
modification.
Section 2.02. Trade Secrets.
(a) The parties acknowledge and agree that during the terms of this
Agreement and in the course of the discharge of his duties hereunder, Lai shall
have access to and become acquainted with information concerning the operation
of Immecor, including without limitation, financial, personnel, sales, planning,
and other information that is owned by Immecor and regularly used in the
operation of Immecor's business and that this information constitutes Immecor's
trade secrets.
(b) Lai agrees that he shall not disclose any such trade secrets,
directly or indirectly, to any other person or use them in any way, except as is
required in the course of his employment with Immecor.
(c) Lai further agrees that all files, records, documents, equipment,
and similar items relating to Immecor's business, whether prepared by lai or
others, are and shall remain exclusively the property of Immecor and that they
shall be removed from the premises of Immecor only with the express prior
consent of Immecor.
(d) However, in the event that Immecor breaches any of its agreements
or contracts with Lai, including any of the provisions of this Agreement, Lai's
obligations under this Section shall terminate and he shall not be restricted in
his use or disclosure of any information or knowledge that Immecor may consider
or claim to be a trade secret.
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ARTICLE 3. OBLIGATIONS OF EMPLOYER.
Section 3.01. General Description. Immecor shall provide Lai with the
compensation, incentives, benefits, and business expense reimbursement specified
elsewhere in this Agreement.
Section 3.02. Office and Staff. Immecor shall provide Lai with office equipment,
supplies, and other facilities and services suitable to Lai's position and
adequate for the performance of his duties.
Section 3.03. Indemnification of Losses of Employee. Immecor shall indemnify Lai
for all losses sustained by Lai in direct consequence of the performance or
discharge of his duties on Immecor's behalf.
ARTICLE 4. OBLIGATIONS OF EMPLOYER.
Section 4.01. Initial Bonus. Upon execution of this Agreement, Immecor shall pay
to Lai the sum of Three Thousand Dollars ($3,000.00) as a signing bonus which
shall be paid in addition to all other compensation described in this Agreement.
Section 4.02. Annual Salary. As compensation for the services to be rendered by
Lai hereunder, Immecor shall pay Lai an annual base salary in the amount of One
Hundred Thousand Dollars ($100,000.00). Such salary shall be payable in equal
semi-monthly installments of Four Thousand One Hundred Sixty-six Dollars
($4,166.67) on the fifteenth (15th) and final days of each month during the
period of employment, prorated for any partial employment period.
Section 4.03. Salary Continuation during Disability. If Lai becomes physically
disabled so that he is unable to perform the duties prescribed herein, Immecor
agrees to pay Lai fifty percent (50%) of Lai's annual salary, payable in the
same manner as provided for the payment of salary herein, for the remainder of
the employment term provided herein.
Section 4.04. Tax Withholding. Immecor shall have the right to deduct or
withhold from the compensation due to Lai hereunder any and all sums required
for federal income and Social Security taxes and all state or local taxes now
applicable or that may be enacted and become applicable in the future.
ARTICLE 4. EMPLOYEE BONUS.
Section 5.01. Cash Bonus Based on Sales.
(a) In any month in which the total gross sales of Immecor, as defined
below, exceed Two Hundred Fifty Thousand Dollars ($250,000.00) but are less than
Three Hundred Fifty Thousand Dollars ($350,000.00), Lai shall receive a cash
bonus equal to one-half percent (0.5%) of total gross sales.
(b) In any month in which the total gross sales of Immecor, as defined
below, exceed Three Hundred Fifty Thousand Dollars ($350,000.00) but are less
than Four Hundred Fifty Thousand Dollars ($450,000.000), Lai shall receive a
cash bonus equal to one percent (1.0%) of total gross sales.
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(b) In any month in which the total gross sales of Immecor, as defined below,
exceed Three Hundred Fifty Thousand Dollars ($350,000.00) but are less than Four
Hundred Fifty Thousand Dollars ($450,000.000), Lai shall receive a cash bonus
equal to one percent (1.0%) of total gross sales.
(c) In any month in which the total gross sales of Immecor, as defined
below, exceed Four Hundred Fifty Thousand Dollars ($450,000.00), Lai shall
receive a cash bonus equal to one and one half percent (1.5%) of total gross
sales.
Section 5.02. Payment of Cash Bonus. This bonus shall be earned based on sales
made each month by Immecor and shall be paid to Lai within fifteen (15) days
after full payment has been received by Immecor for sales to which the bonus
applies, and shall be in addition to any other compensation to which he is
entitled hereunder.
Section 5.03. Determination of Gross Sales. For the purposes of this Article,
the total gross sales of Immecor shall be determined on a calendar monthly
basis, and shall include for each month all sales booked by Immecor in the
calendar month on a regular and consistent basis, without setoff and whether or
not actual payment has been received for such sales. For the purpose of this
bonus, each calendar month shall be treated as a separate month, and the bonus
determined for any one calendar month shall not be affected by the determination
of any bonus payable in any other month.
ARTICLE 6. EMPLOYEE BENEFITS.
Section 6.01. Annual Vacation. Lai shall be entitled to three weeks vacation
time each year with full pay. Lai may be absent from his employment for vacation
at such times as Immecor and Lai shall mutually agree from time to time. If Lai
is unable for any reason to take the total amount of authorized vacation time
during any year, at Lai's election he may either accrue that time and add it to
vacation time for any following year or he may receive a cash payment in an
amount equal to the amount of annual salary attributable to that unused
vacation.
Section 6.02. Illness. Lai shall be entitled to fifteen (15) days per year as
sick leave with full pay. Sick leave may be accumulated without limit as to the
number of days, but any unused sick leave shall not be paid to Lai upon
termination of employment.
Section 6.03. Group Life Insurance. Immecor agrees to include Lai under
Immecor's group term life insurance coverage in an amount commensurate with the
coverage provided to other employees in Lai's annual salary range if Lai is
medically acceptable as determined by the insurance carrier.
Section 6.04. Group Medical Insurance. Immecor agrees to include Lai under
Immecor's group medical insurance coverage.
Section 6.05. Other Benefits. Immecor agrees to provide to Lai the same or
substantially similar employee benefits that are from time to time provided to
the other employees of Immecor.
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ARTICLE 7. BUSINESS EXPENSES
Section 7.01. Business Expense. Immecor shall promptly reimburse Lai for all
reasonable business expenses incurred by Lai in promoting the business of
Immecor, including expenditures for entertainment, gifts, and travel upon
approval by Immecor.
Section 7.02. No Repayment by Employee of Disallowed Business Expenses. In the
event that any expenses paid for Lai or any reimbursement of expenses paid to
Lai shall, on audit or other examination of Immecor's income tax returns, be
determined not to be allowable deductions from Immecor's gross income, Lai shall
not be required to repay to Immecor any amount of such disallowed expenses
provided they have been approved by Immecor.
ARTICLE 8. TERMINATION OF EMPLOYMENT
Section 8.01. Termination by Employer Only For Cause. Immecor shall have the
right to terminate this Agreement for cause only if Lai (i) wilfully breaches or
habitually neglects the duties which he is required to perform under the terms
of this Agreement, or (ii) commits acts of fraud, gross misrepresentations, or
other acts of moral turpitude which prevent the performance of his duties
hereunder.
Section 8.02. Termination by Employee. Lai may terminate this Agreement and all
of his obligations hereunder at any time upon written notice to Immecor.
Section 8.03. Termination Upon Death of Employee. This Agreement shall be
terminated upon the death of Lai.
Section 8.04. Effect of Merger, Transfer of Assets, or Dissolution. This
Agreement shall not be terminated by any voluntary or involuntary dissolution of
Immecor resulting from either a merger or consolidation in which Immecor is not
the consolidated or surviving corporation, or a transfer of all or substantially
all of the assets of Immecor.
Section 8.05. Effect on Compensation. In the event that this Agreement is
terminated prior to the completion of the term of employment specified herein,
Lai shall be entitled to the compensation earned by and vested in him prior to
the date of termination as provided for in this Agreement, computed pro rate up
to and including that date.
ARTICLE 9. COVENANT NOT TO COMPETE ON TERMINATION
Section 9.01. Covenant Not To Compete. Except as provided in Section 9.04 , upon
the expiration of the term of this Agreement, or upon termination of this
Agreement for cause by Immecor and for one (1) year after such termination, Lai
agrees not to sell any products (which at the time of termination are then being
marketed by Immecor) to the following three customers of Immecor: KLA
Instruments, Advanced Fibre Communications, and Compumotor.
Section 9.021. Deferred Compensation For Covenant. As compensation for this
covenant, un-
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less Lai is terminated for cause, Immecor shall pay to Lai the sum of One
Hundred Thousand Dollars ($100,000.00), payable in monthly installments of Eight
Thousand Three Hundred Thirty-three and 33/100 Dollars ($8,333,33) on the first
day of each month after termination of employment.
Section 9.03. Breach Of This Article by Either Party. In the event that Lai
breaches the covenant under this Article, or Immecor fails to make any payment
of deferred compensation under this Article, then the sole remedy of either
party for such breach shall be the complete release of any further obligations
of both parties under this Article. That is, if Lai breaches the covenant
hereunder, Immecor's sole remedy shall be to cease making additional installment
payments of deferred compensation (but Immecor shall not be entitled to any
reimbursement of such payments made prior to the breach); and if Immecor
breaches the agreement to make deferred compensation payments, then Lai's sole
remedy shall be his complete release from the covenant and his release from any
restrictions under Section 2.02 above.
Section 9.04. Voluntary Termination. In the event that Lai voluntarily
terminates this Agreement, without cause, prior to the end of the initial
employment term, then Lai agrees that the Covenant Not to Compete under Section
9.01 above shall apply but only until the end of the initial employment term
under Section 1.01 above and only with respect to the following three customers
of Immecor: KLA Instruments, Advanced Fibre Communications, and Compumotor. In
that event, Immecor shall not be obligated to pay any deferred compensation to
Lai under Section 9.02 above and except to the three above named companies, Lai
shall be released from any restrictions under Section 2.02 above.
ARTICLE 10. GENERAL PROVISIONS
Section 10.01. Notices. Any notices to be given by either party to the other
shall be in writing and may be transmitted either by personal delivery or by
mail, registered or certified, postage prepaid with return receipt requested.
Mailed notices shall be addressed to the parties at the addresses appearing in
the introductory paragraph of this Agreement, but each party may change this
address by written notice in accordance with this section. Notices delivered
personally shall be deemed communicated as of the date of actual receipt; mailed
notices shall be deemed communicated as of two (2) days after the date of
mailing.
Section 10.02. Attorneys' Fees and Costs. If any proceedings or legal action is
brought to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to actual attorneys' fees, costs, and necessary
disbursements in addition to any other relief to which that party may be
entitled. This provision shall be construed as applicable to the entire
contract.
Section 10.03. Modifications. Any modification of this Agreement will be
effective only if it is in writing signed by the party to be charged.
Section 10.04. Effect of Waiver. The failure of either party to insist on strict
compliance with any of the terms, covenants, or conditions of this Agreement by
the other party shall not be deemed a waiver of that term, covenant, or
condition, nor shall any waiver or relinquishment of any right or
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power at any one time or times be deemed a waiver or relinquishment of that
right or power for all or any other times.
Section 10.05. Partial Invalidity. If any provision in this Agreement is held by
a court or competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any way.
Section 10.06. Law Governing Agreement. This Agreement shall be governed by and
construed in accordance with the laws of the State of California. Venue for any
action brought with respect to this Agreement or for any other purposes
hereunder shall be Santa Xxxxx County.
Section 10.07. Sums Due Deceased Employee. If Lai dies prior to the expiration
of the term of his employment, any sums that may be due to him from Immecor
under this Agreement as of the date of death shall be paid to Lai's executors,
administrators, heirs, personal representatives, successors, and assigns.
EMPLOYER
Immecor Corporation
a California corporation
100-105 Professional Xxxxxx Xxxxx,
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
/s/
By: Heinot X. Xxxxxxxxxx, President
EMPLOYEE
/s/
Xxxxx X. Xxx
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