EMPLOYMENT AGREEMENT
EXHIBIT 10.28
THIS EMPLOYMENT AGREEMENT is
entered into as of May 28, 2002, (the “Effective Date”) by and between EXTENDED SYSTEMS, INCORPORATED., a Delaware corporation (hereinafter referred to as the “Employer”), and Xxxxxxx Xxxxxx, hereinafter referred to as the
“Employee”).
The Employer, Venus Acquisition Corporation, a Delaware corporation and wholly-owned subsidiary of Employer (the “Merger Sub”), ViaFone, Inc., a Delaware corporation
(the “Company”), and certain other parties have entered into an Agreement and Plan of Merger and Reorganization (the “Reorganization Agreement”), dated May 28, 2002, whereby the Merger Sub will merge with and into the Company on
the closing date of the transactions contemplated by the Reorganization Agreement (the “Closing Date”). Immediately following the Closing Date, Employer wishes to employ the Employee, and the Employee agrees to accept such employment, on
the terms and conditions set forth herein.
1. Employment. From and after the Closing Date, Employer agrees to employ the Employee and Employee agrees to accept such employment as a Vice President, Solutions Group of Extended Systems,
Incorporated (the “Employer”). Employee and Employer acknowledge and agree that such employment will be in accordance with Employer’s standard employment policies, and Employee agrees to be bound by such employment policies, which
shall be in addition to the terms and conditions contained herein. Employee further acknowledges that Employer policy manual or other similar documents are to be explanations of benefits or programs, and they do not change the terms of this
Employment Agreement.
In the event of a Change of
Control, as defined below, the six (6) month base salary termination and COBRA payment shall be increased to twelve (12) months. Employee is responsible for any tax consequences triggered by severance payment or a Change in Control.
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For purposes of this Section 8, a “Change of Control” will include: (a) the
acquisition of the Employer by another entity by means of any transaction or series of related transactions (including, without limitation, any stock acquisition, reorganization, merger or consolidation) other than a transaction or series of
transactions in which the holders of the voting securities of the Employer outstanding immediately prior to such transaction continue to retain (either by such voting securities remaining outstanding or by such voting securities being converted into
voting securities of the surviving entity), as a result of shares in the Employer held by such holders prior to such transactions, at least fifty percent (50%) of the total voting power represented by the voting securities of the Employer or such
surviving entity outstanding securities immediately after such transaction or series of transactions; or (b) a sale, lease or other conveyance of all or substantially all of the assets of the Employer.
If Employee’s employment with the Employer is terminated by the Employee, then (i) all vesting of the Option will terminate immediately and all
payments of compensation by the Employer to Employee hereunder will terminate immediately (except as to amounts already earned), and (ii) Employee will only be eligible for severance benefits in accordance with the Employer’s established
policies as then in effect.
Effective the date the Employee’s employment with the Employer is terminated by either the
Employer or the Employee, the Employee shall have a period of one (1) year following such termination date to fully exercise any remaining vested shares that resulted from option grants during the duration of the employment. Employee understands
that this provision of employment makes all option grants non-qualified options.
(a) Inventions Retained and
Licensed. The Employee has attached to this Employment Agreement, as Exhibit “B,” a list describing all inventions, original works of authorship, developments, improvements, and trade secrets that were made by
him/her prior to his/her employment with the Employer, that relate to the Employer’s proposed business, products or research and development, and that are not assigned to the Employer under this Employment Agreement (collectively, “Prior
Inventions”). If no such list is attached, the Employee represents that there are no Prior Inventions. If in the course of the Employee’s employment with the Employer, he/she incorporates into an Employer product, process or machine a
Prior Invention owned by him/her or in which he/she have an interest, the Employer is granted a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell the Prior Invention as part of or in
connection with the Employer’s product, process or machine.
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only when such inventions relate to the Employer’s proposed business, products or
research and development (collectively referred to as “Inventions”). The Employee further acknowledges that all original works of authorship that are made by him/her (solely or jointly with others) within the scope of and during the period
of his/her employment with the Employer and that are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act. The decision whether or not to commercialize or market any Invention
developed by the Employee solely or jointly with others is within the Employer’s sole discretion and for the Employer’s sole benefit. Neither the Employer nor any other entity will pay the Employee a royalty as a result of the
Employer’s efforts to commercialize or market any such Invention. The Employee will not incorporate any original work of authorship, development, concept, improvement, or trade secret owned, in whole or in part, by any third party, into any
Invention without the Employer’s prior written permission signed by the President of the Employer.
(e) Patent and Copyright Registrations. The Employee will assist the Employer, or its designee, at the Employer’s expense, in every proper
way to secure and protect the Employer’s rights in the Inventions and any related copyrights, patents, mask work rights or other intellectual property rights in any and all countries. The Employee will disclose to the Employer all pertinent
information and data. The Employee will execute all applications, specifications, oaths, assignments and all other instruments that the Employer deems necessary in order to apply for and obtain such rights and in order to assign and convey to the
Employer, its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such Inventions, and any related copyrights, patents, mask work rights or other intellectual property rights. The Employee’s obligation
to execute or cause to be executed, when it is in his/her power to do so, any such instrument or papers will continue after the termination of this Employment Agreement. If the Employer is unable because of the Employee’s mental or physical
incapacity or for any other reason to secure the Employee’s signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering Inventions or original works of authorship assigned to
the Employer as above, then the Employee hereby irrevocably designates and appoints the Employer and its duly authorized officers and agents as his/her agent and attorney-in-fact. Accordingly, the Employer may act for and in the Employee’s
behalf to execute and file any applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations with the same legal force and effect as if executed by the Employee.
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16. Governing Law. All rights and obligations of
the parties arising out of this Agreement will be construed and enforced in accordance with the laws of the state of Idaho, without reference to its rules as to conflicts of laws.
18. Assignment. This Agreement may not be assigned or otherwise transferred by Employer without the prior
written consent of Employee, which consent shall not be unreasonably withheld. No such consent shall be required for a transfer of value of all or substantially all of Employer’s assets, whether such transfer is effected by asset sale, merger,
stock sale or otherwise. Any attempted assignment in violation of the provisions of this section will be void. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties and their respective successors and
assigns.
If to the Employer:
Extended Systems, Inc.
0000 X. Xxxxxx Xxx
Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
If to Employee: At the last residential address known by the Employer.
EMPLOYER: |
EXTENDED SYSTEMS, INCORPORATED | |||
By: |
/s/ XXXXXX X. XXXXXXX | |||
| ||||
Xxxxxx X. Xxxxxxx President/CEO
| ||||
EMPLOYEE: |
||||
/s/ XXXXXXX XXXXXX | ||||
| ||||
Xxxxxxx Xxxxxx |
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EXHIBIT A
DUTIES OF EMPLOYEE
TO BE FINALIZED BETWEEN XXXXX AND XXXXXXX
EXHIBIT B
In general, any invention that has no applicability for ESI businss
shall fall under here.
At minimum, the two following inventions should be listed. To be filled more in
detail but two areas of inventions are:
1) Patent on internet-based/telecommunication-based
customer-retention/customer-loyalty programs.
Patent registered and issued in Europe. Patent to be expanded
worldwide.
2) Invention on use of advanced technologies (computing, sensors,) for improvement of
human sleep patterns. Invention in the process of being patented