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EXHIBIT 10.33
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into effective as of October 18,
2000, by and between Xxxx Microproducts Inc., a California corporation ("Xxxx"),
and Xxxxx X. Xxxxxx ("Employee").
BACKGROUND
WHEREAS, Xxxx is in the storage solutions and components distribution
business; and
WHEREAS, Xxxx and Employee wish to enter into an employment
relationship for their mutual benefit and to set forth the terms of that
relationship in writing.
NOW, THEREFORE, in consideration of these representations and the
following mutual covenants, Xxxx and Employee agree to the following terms and
conditions.
1. Services to Be Performed. Xxxx hereby engages Employee as an
employee to provide services including, but not limited to, the following:
a. Advising on and facilitating mergers and acquisitions;
b. Advising on, facilitating and growing a global storage
solutions business;
c. Advising on and facilitating the identification of new
executive management; and
d. Other projects as assigned.
In addition, Employee agrees to serve, for any period for which he is appointed
or elected during the term of this Agreement, as Vice Chairman of the Board of
Directors of Xxxx.
2. Manner of Performance. Employee agrees to perform the services in a
quality and efficient manner in accordance with the requirements of Xxxx, as
defined by its President/CEO, Xxxxxx Xxxx or the Board of Directors of Xxxx.
3. Services for Other Entities. Xxxx understands and agrees that,
during the term of this Agreement, Employee will devote approximately ten to
twenty percent (10% - 20%) of his business time to providing services under this
Agreement. Employee could, however, be engaged by other entities that do not
conflict with Xxxx'x business, and for which Xxxx will not provide any services,
including, but not limited to, the following:
a. Serving on the board of directors of other entities; and
b. Investing in and managing new high-tech venture
opportunities.
4. Terms of Payment, Expenses. For the services Employee provides under
this Agreement, Xxxx shall pay Employee an aggregate One Hundred Thirty-Six
Thousand Dollars ($136,000) per year, which shall be paid in biweekly
installments in accordance with Xxxx'x normal payroll cycle. Employee shall
submit expense claims with relevant supporting documentation for expenses
incurred in performing services under this Agreement. Expenses shall be directly
related to
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the services performed under this Agreement and submitted for approval. In
addition, Xxxx has granted or will grant to Employee options to purchase an
aggregate 100,000 shares of common stock of Xxxx. Based on the number of hours
per week that Employee anticipates providing services to Xxxx, he will be
eligible to receive other employment benefits from Xxxx in accordance with, and
only to the extent permitted under, Xxxx'x standard employment policies and
plans. Employee understands and agrees that Employee shall be entitled to no
other remuneration or benefits for services provided under this Agreement other
than as set forth in this paragraph.
5. Term. This Agreement shall begin on October 18, 2000 and shall
terminate on October 17, 2002; provided, however, that the parties may mutually
agree to extend this Agreement for additional one-year periods on terms and
conditions to be agreed upon between the parties or to terminate the agreement
by mutual consent at an earlier period consistent with clause 7.
6. Payroll and Employment Taxes. Xxxx shall treat Employee as an
employee for federal, state, and local tax purposes. Xxxx shall withhold and pay
payroll and employment taxes with respect to any amounts that Employee is paid
under this Agreement, including but not limited to, FICA, FUTA, federal and
state personal income tax, state disability insurance tax, and state
reemployment benefits tax.
7. Termination. This Agreement may be terminated by either party at any
time with Cause. "Cause" shall include, but not be limited to, material
violation of this Agreement or any act exposing the other party to liability to
others, including but not limited to liability for personal injury or property
damage. This Agreement may also be terminated by (i) mutual agreement with a
60-day notice (unless Xxxx and Employee mutually agree to a shorter period) or
(ii) either party with 60 days' prior written notice to the other.
8. Confidentiality. Employee recognizes that the services to be
performed by Employee will involve acquiring confidential information or trade
secrets concerning the operations of Xxxx, the use or disclosure of which could
cause Xxxx substantial losses and damages. Employee agrees that he will not at
any time, except in performance of his obligations as stated in this agreement,
or with prior written consent of Xxxx, directly or indirectly disclose to any
person any secret or confidential information that Employee may learn or has
learned by reason of his association as an employee with Xxxx. The term
"confidential information" means any information not previously disclosed or
otherwise available to the public or to the trade with respect to Xxxx'x
products, facilities and methods, trade secrets and other intellectual property,
systems, procedures, manuals, confidential reports, product price lists,
customer lists, financial information, business plans, prospects or
opportunities. Employee further agrees that all confidential information is and
shall remain the exclusive property of Xxxx, its affiliates and subsidiaries.
9. Indemnification. Employee hereby assumes the entire responsibility
and liability for any and all damage or injury of any kind or nature to all
persons, whether employees or otherwise, and to all property, relating to or
resulting from Employee's performance under this Agreement. Employee releases
and holds Xxxx harmless from and against all such responsibility and liability.
10. Non-Waiver. The delay or failure of either party to enforce any
provision of this Agreement shall not constitute a waiver of its or his right to
enforce that or any other provision.
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11. Severability. In the event any part of this Agreement is found to
be unenforceable, Xxxx and Employee agree that part shall be modified by the
court to make it enforceable to the maximum extent possible. If the part cannot
be modified, that part may be severed and the other parts of the Agreement shall
remain enforceable.
12. Governing Law. This Agreement and all questions arising in
connection with it shall be governed by the laws of the State of California.
13. Successors and Assigns. The rights and obligations of Xxxx under
this Agreement shall inure to the benefit of the successors and assigns of Xxxx.
The rights and obligations of Employee shall not be assignable to others.
14. Entire Agreement. Except as elsewhere provided for in this
Agreement, this Agreement states the entire agreement of the parties, and merges
all prior negotiations, agreements, and understandings, if any. No modification,
release, discharge, or waiver of any provision of this Agreement will have any
force or effect unless made in writing and signed by both Xxxx and Employee.
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Address: 000 Xxxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000
Social Security No.:
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XXXX MICROPRODUCTS, INC.
By /s/ W. Xxxxxx Xxxx
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W. Xxxxxx Xxxx
Its President and Chief Executive Officer
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