ADVANCED POWER TECHNOLOGY, INC.
EMPLOYMENT AGREEMENT
(MANAGEMENT & TECHNICAL PERSONNEL)
EXEMPT SALARIED EMPLOYEES
THIS EMPLOYMENT AGREEMENT is made and entered into this day of AUGUST 16,
1985 by and between ADVANCED POWER TECHNOLOGY, INC., a Delaware corporation
("Company") and XXXXXXX XXXXXX an individual ("Employee").
WHEREAS, Company desires to employ Employee upon the terms and conditions
hereinafter set forth, and Employee desires to be so employed;
NOW, THEREFORE, in consideration of the mutual promises contained herein,
Company and Employee agree as follows:
1. EMPLOYMENT
Company hereby employees Employee as PRESIDENT AND CHIEF EXECUTIVE OFFICER
of the Company with the powers an duties consistent with such position, and
Employee hereby accepts such employment, on the terms and conditions
hereinafter set forth. Employee, subject to the control of the Management
of Company, agrees to diligently utilize his or her best efforts to further
the interests of the Company and to discharge those responsibilities and
duties required for the planning, development, operation, promotion and
advancement of the Company, and such other duties as Company may require.
2. TERM AND TERMINATION
2.1 This Agreement shall terminate upon the happening of any of the
following events:
(a) By mutual agreement between Company and Employee;
(b) Unilaterally by Employee without cause;
(c) Upon the death of Employee;
(d) Upon the good faith determination of the Chief Executive Officer
of the Company that Employee has become so physically or mentally
disabled as to be incapable of satisfactorily performing his or her
duties hereunder for a period of ninety (90) consecutive days, such
determination based upon a certificate as to such physical or mental
disability issued by a licensed physician and/or psychiatrist (as the
case may be) employed by the Company; or
(e) By the Company for cause, that is to say only upon Employee's
conviction of a felony, commission of any material act of dishonesty
against the Company, material breach of this Agreement by Employee, or
misconduct by Employee having a substantial adverse effect on the
business of the Company.
(f) Unilaterally by the Company without cause, in which event
(Section 2.2 to the contrary not withstanding) the Company will
continue to pay Employee the full amount due as salary for a period of
thirty days following notice of termination.
2.2 In the event that this Agreement is terminated pursuant to Paragraph
2.1, neither Company nor Employee shall have any remaining duties or
obligations hereunder, except that Company shall pay to Employee, or his or
her representatives, such compensation as is due pursuant to Sub-Section
2.1(f) and Section 3. The provisions of Section 4-9 shall survive
termination.
2.3 This Agreement shall not be terminated by any:
(a) Merger, whether the Company is or is not the surviving
corporation; or
(b) Transfer of all or substantially all of the assets of the
Company; or
(c) Voluntary or involuntary dissolution or liquidation of the
Company; or
(d) Consolidation to which the Company is a party.
In the event of any such merger, transfer of assets, dissolution,
liquidation, or consolidation, the surviving corporation or transferee, as
the case may be, shall be bound by and shall have the benefits of this
Agreement, and Company shall take all action to ensure that such
corporation or transferee is bound by the provisions of this Agreement.
3. COMPENSATION
3.1 As the total consideration for services which Employee agrees to
render hereunder, Employee is entitled to the following:
(a) Beginning on AUGUST 16, 1985, an annual base salary at the rate
of __________Dollars ($150,000), subject to increases at the
discretion of Company, in accordance with the regular and ordinary
payment practices of Company. All payroll payments shall be subject to
deduction of payroll taxes and related deductions as required by law.
(b) Participation in all plans or programs sponsored by Company for
employees in general, including without limitation participation in
any group health plan, medical reimbursement plan and life insurance
plan, pension and profit sharing plan.
(c) Reimbursement of any and all necessary and reasonable expenses
incurred by Employee from time to time in the performance of his or
her duties hereunder, including without limitation entertainment
expenses and air fare, taxi, automobile, and other traveling expenses.
(d) After six (6) months of continuous employment, Employee shall be
eligible for five (5) working days of paid vacation; after twelve (12)
months of
continuous employment, Employee shall be eligible for ten (10) working
days of paid vacation; thereafter, Employee shall be eligible for ten
(10) working days of paid vacation upon the completion of each
successive twelve (12) month period of continuous employment. Paid
vacations non-cumulative and must be taken during the twelve (12)
months following accrual.
(e) Such other benefits as Company, in its sole discretion, may from
time to time provide.
3.2 Subject to the limitations contained in Paragraph 2.1, if Employee
shall be absent on account of personal injuries or physical or mental
disability, Employee shall continue to receive all payments provided in
this Agreement; provided, however, that any such payments may, at the sole
option of Company, be reduced by any amount that Employee receives for the
period covered by such payments as disability compensation under insurance
policies maintained by Company or under governmental programs.
3.3 Company shall have the right to deduct from the compensation due to
Employee hereunder any and all sums required for social security and
withholding taxes and for any other federal, state, or local tax or charge
which may be in effect or hereafter enacted or required as a charge on the
compensation of Employee.
3.4 Employee shall repay relocation expenses paid by Company if he or she
voluntarily terminates employment, or is terminated for cause within one
year from date of employment.
4. NON-DISCLOSURE
Employee shall not disclose or use in any way, either during his or her
employment with Company or thereafter, except as required in the course of his
or her employment with Company, any confidential business or technical
information or trade secrets acquired during his or her employment by Company,
whether or not conceived of, discovered, developed or prepared by Employee,
including without limitation any formulae, patterns, inventions, procedures,
processes, plans, devices, products, operations, techniques, know-how,
specifications, data, compilations of information, customer lists, records,
financing or production methods, costs, employees, and information concerning
specific customer requirements, preferences, practices and methods of doing
business, all of which are exclusive and valuable property of Company.
5. ASSIGNMENT OF PROPRIETARY INTEREST
Employee hereby assigns and transfers to Company his or her entire right,
title and interest in and to any and all inventions, improvements, processes,
sketches, methods of production, designs, discoveries, ideas (whether or not
shown or described in writing) or services (collectively "inventions") whether
or not patentable, which are made, conceived or first reduced to practice by
Employee with Company's equipment, supplies, facilities, or trade secrets and on
Company's time, or which relates to the business of Company or Company's actual
or anticipated research or business development, or which results from any work
performed by the Employee for Company. Employee agrees that Company shall have
the right to keep such inventions as trade secrets. To permit Company to claim
rights to which it may be entitled, the Employee agrees to promptly disclose to
Company in confidence all inventions which the employee makes, conceives, or
first reduces to practice during the course of his or her employment or within
one year after termination thereof if such inventions relate to a product,
process or service upon which Employee worked during the period of his or her
employment by Company, and all patent or copyright applications filed by the
Employee within a year after termination of this Agreement. Both during and
after the period of employment with Company, Employee shall further assist
Company in obtaining patents or copyrights on all inventions deemed patentable
or copyrightable by Company in the United States and in all foreign countries,
and shall execute all documents and do all things necessary to obtain letters
patent and/or copyrights, to vest Company with full and extensive title thereto,
and to protect Company's rights against infringement by others. Employee further
agrees that any patent application filed within a year after termination of his
or her employment on an invention for which the Employee was partially or
totally responsible shall be presumed to relate to an invention made during the
term of the Employee's employment unless the Employee can provide evidence to
the contrary.
6. TANGIBLE ITEMS AS PROPERTY OF COMPANY
Excluding any personal property owned by Employee prior to the date hereof,
all files, records, documents, drawings, plans, specifications, manuals, books,
forms, receipts, notes, reports, memoranda, studies, data, calculations,
recordings, catalogues, compilations of information, correspondence and all
copies, abstracts and summaries of the foregoing, instruments, tools and
equipment and all other physical items related to the business of Company, other
than a merely personal item of a general professional nature, whether of a
public nature or not, and whether prepared by Employee or not, are and shall
remain the exclusive property of Company and shall not be removed from the
premises of Company under any circumstances whatsoever without the prior written
consent of Company, and the same shall be promptly returned to Company by
Employee on the expiration or termination of his or her employment with Company
or at any time prior thereto upon the request of Company.
7. SOLICITATION OF CUSTOMERS AND EMPLOYEES
Both during and after the period of employment, Employee shall not in any
way attempt to interfere with the business of Company and, shall not call on,
solicit, interfere with or attempt to entice away, either directly or
indirectly, any employee of Company with whom he or she became acquainted during
his or her employment with Company, either for his or her own benefit or
purposes or for the benefit or purposes of any other person, partnership,
corporation, firm, association or other business organization, entity or
enterprise.
8. NONCOMPETITION
Except as set forth in this Section 8, for a period of 18 months after
termination of this Agreement, Employee shall not, directly or indirectly,
engage or participate in, assist or have any interest in any person,
partnership, corporation, firm, association or other business organization,
entity or enterprise (whether as an employee, officer, director, agent, security
holder, creditor, consultant or otherwise) which, directly or indirectly,
manufactures, designs, develops, engineers, markets or otherwise produces or
offers for sale or sells inventions, products, processes, systems or services
the same as, similar to or competitive with any devices, inventions, products,
processes, systems or services manufactured, designed, developed, engineered,
marketed or otherwise produced or offered for sale or sold by Company (or any
successor thereof) in the United States or abroad.
The parties intend that the covenant contained in this Section 8 shall be
construed as a series of separate covenants. If, in any judicial or arbitration
proceeding, a court shall refuse to enforce any of the separate covenants deemed
included in this paragraph, then this unenforceable covenant shall be deemed
eliminated from these provisions for the purpose of those proceedings to the
extent necessary to permit the remaining separate covenants to be enforced.
Moreover, if, in any judicial or arbitration proceedings, the term of
non-competition shall be determined to be unreasonable, the parties agree that
the term shall be shortened to the maximum period deemed reasonable under the
laws of the state of Oregon, and that modified period shall be enforceable as
though originally set forth herein.
9. INJUNCTIVE RELIEF
Employee hereby acknowledges and agrees that it would be difficult to fully
compensate Company for damages resulting from the breach or threatened breach of
Sections 4, 5, 6, 7 or 8 of this Agreement, and accordingly, that Company shall
be entitled to temporary and injunctive relief, including temporary restraining
orders, preliminary injunctions and permanent injunctions, to enforce such
Sections without the necessity of proving actual damages therewith. This
provision with respect to injunctive relief shall not, however, diminish
Company's right to claim and recover damages.
10. INDEMNIFICATION
Company shall, to the maximum extent permitted by law, indemnify and hold
Employee harmless against expenses, including reasonable attorney's fees,
judgments, fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding arising by reason of Employee's
employment with Company if Employee, in incurring the above expenses, acted in
good faith and in a manner Employee believed to be in the best interests of
Company and, in the case of a criminal proceeding, had no reasonable cause to
believe Employee's conduct was unlawful.
11. COPIES OF AGREEMENT
Employee authorizes Company to send a copy of this Agreement to any and all
future employers which he or she may have, and to any and all persons, firms,
and corporations, with whom he or she may become affiliated in a business or
commercial enterprise, and to inform any and all such employers, persons, firms
or corporations that Company intends to exercise its legal rights should
Employee breach the terms of this Agreement or should another party induce a
breach of Employee's part.
12. SEVERABLE PROVISIONS
The provisions of this Agreement are severable and if any one or more
provisions may be determined to be illegal or otherwise unenforceable, in whole
or in part, the remaining provisions, and any partially unenforceable provisions
to the extent enforceable, shall nevertheless be binding and enforceable.
13. BINDING AGREEMENT
This Agreement shall inure to the benefit of and shall be binding upon
Company, its successors and assigns.
14. CAPTIONS
The Section captions are inserted only as a matter of convenience and
reference and in no way define, limit or describe the scope of this Agreement or
the intent of any provisions hereof.
15. ENTIRE AGREEMENT
This Agreement contains the entire agreement of the parties relating to the
subject matter hereof, and the parties hereto have made no agreements,
representations or warranties relating to the subject matter of this Agreement
that are not set forth in these documents. No modification of this Agreement
shall be valid unless made in writing and signed by the parties hereto.
16. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws
of the state of Oregon.
17. NOTICES
Any notice or demand required or permitted to be given hereunder shall be
in writing and shall be deemed effective upon the personal delivery thereof or,
if mailed, forty-eight hours after having been deposited in the United States
mails, postage prepaid, and addressed to the party to whom it is directed at the
address et forth below:
If to Company:
ADVANCED POWER TECHNOLOGY, INC.
000 X. X. Xxxxxxxx Xxxxxx
Xxxx, Xxxxxx 00000
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Freshman, Marantz, Orlanski, Comsky & Deutsch
0000 Xxxxxxxx Xxxx., Xxx. 0-X
Xxxxxxx Xxxxx, XX 00000
If to EMPLOYEE:
60462 TALL PINES
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XXXX, XXXXXX, 00000
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Either party may change the address to which such notices are to be addressed by
giving the other party notice in the manner herein set forth.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first written above.
ADVANCED POWER TECHNOLOGY, INC.
a Delaware corporation ("Company")
By: S/S
Xxx Xxxxxxxxx
President
S/S
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("Employee")
