EXHIBIT 10.22
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (Agreement), dated as of
October 1, 1998, is by and between Iomega Corporation, a Delaware corporation
(Company) and ____________ (Executive).
RECITALS
WHEREAS, Executive has served as a key member of the Company's
management team and the Company wants to retain Executive's services in the best
interests of the Company and its stockholders; and
WHEREAS, Executive is desirous of continuing in the management team
pursuant to the terms of this Agreement;
NOW, THEREFORE, the Company and Executive, in consideration of the
terms set forth herein and other valuable consideration, agree as follows.
EMPLOYMENT OF EXECUTIVE
1. EMPLOYMENT. Executive is employed by the Company on an at-will basis, which
means that either Executive or the Company may terminate the employment
relationship at any time for any reason, with or without cause.
2. SEVERANCE. If Executive's employment is terminated by the Company, other
than for "Cause" as defined herein, before November 1, 1999, and Executive
executes a General Release releasing all claims and causes of action
Executive may have against the Company, its officers, directors and
employees, excluding claims (i) under this Agreement, (ii) under any option
agreement or performance unit agreement between Executive and the Company,
or (iii) with respect to unreimbursed business expenses incurred by
Executive in connection with Company business, the Company will pay
Executive "Severance" as defined herein. Severance, for this purpose, shall
be Executive's current annual compensation, base and estimated bonus, as of
the date of termination, less any compensation Executive may receive for
subsequent employment in the one-year period following termination.
Severance payments shall be made on the Company's regular payroll schedule
with the bonus component of Severance to be included in the final payment.
3. EMPLOYEE BENEFITS. Subject to the terms and conditions of the Company's
employee benefit plans, following not-for-Cause termination the Company
will continue to provide employee benefits to Executive until: (a)
Executive becomes eligible for similar benefits in subsequent employment
without any exclusion for pre-existing conditions of Executive or his or
her dependents; or (b) Executive discontinues participation in the employee
benefit plan through failure to contribute, or otherwise; or (c) the
expiration of one year after the date of termination; whichever date shall
first occur.
4. CAUSE. "Cause" shall mean: (i) any act of personal dishonesty by the
Executive in connection with his or her responsibilities as an employee, or
(ii) conviction of the Executive of a felony, or (iii) a wanton or willful
act by the Executive in violation of either the Company's own interest or
of Executive's duties or of Executive's expected standard of conduct, or
(iv) violations by the Executive of Executive's obligations as an employee
of the Company which are demonstrably willful and deliberate on the
Executive's part after written demand for performance from the Company
which describes the basis for the Company's belief that the Executive has
not substantially performed his or her duties.
NON-DISCLOSURE AND NON-DISPARAGEMENT
5. NON-DISCLOSURE. Executive acknowledges his or her obligations, both during
and after the term of Executive's employment with the Company, under a
non-disclosure agreement previously entered into between Executive and the
Company. Any breach of Executive's non-disclosure obligations to the
Company shall, in addition to all other remedies available to the Company,
result in the immediate release of the Company from any obligations it
would otherwise have to provide further payments or benefits under this
Agreement.
6. RETURN OF DOCUMENTS. Upon termination, for any reason, of Executive's
employment with the Company, all documents, records, and materials relating
to the Company's business, whether stored electronically or in a written or
printed form, or otherwise, including but not limited to notes, notebooks,
rolodex files, telephone lists, computer or data processing disks and
tapes, marketing plans, financial plans and studies, customer lists, names
of business contacts, policies and procedures, and any materials prepared,
compiled or acquired by Executive relating to any aspect of the Company or
its business, products, plans or proposals, and all copies thereof, then in
Executive's or a related party's possession, custody or control, whether
prepared by Executive or others, shall be returned to the Company. Related
parties shall include each person or entity associated with or related to
Executive at the time of the termination of Executive's employment with the
Company. Executive also agrees to participate in an exit interview upon the
termination of Executive's employment with the Company.
7. EMPLOYMENT INVENTIONS. Executive acknowledges that certain innovations,
products and processes invented or discovered by Executive during
Executive's employment with the Company are the property of the Company and
have been assigned to the Company under an agreement previously entered
into between Executive and the Company. Any breach of Executive's
obligations to the Company with respect to the assignment of inventions
shall, in addition to all other remedies available to the Company, result
in the immediate release of the Company from any obligations it would
otherwise have to provide further payments or benefits under this
Agreement.
8. NON-DISPARAGEMENT. During and after the term of Executive's employment with
the Company, Executive agrees not to disparage, orally or in writing, the
Company, its officers, executives, management, operations, products,
designs, or any other aspects of the Company's affairs to any third person
or entity; and the Company agrees that none of its executive officers shall
disparage, orally or in writing, Executive or the performance of
Executive's duties at the Company to any third person or entity.
NON-SOLICITATION
9. NON-SOLICITATION OF EMPLOYEES. Executive agrees that during Executive's
employment with the Company and for one year following Executive's
voluntary or involuntary termination of employment with the Company,
Executive shall not, directly or indirectly, in any capacity (including but
not limited to, as an individual, a sole proprietor, a member of a
partnership, a stockholder, investor, officer, or director of a
corporation, an executive, agent, associate, or consultant of any person,
firm or corporation or other entity) hire any person from, attempt to hire
any person from, or solicit, induce, persuade, or otherwise cause any
person to leave his or her employment with the Company. Any breach of
Executive's obligations under this paragraph shall, in addition to all
other remedies available to the Company, result in the immediate release of
the Company from any obligations it would otherwise have to provide further
payments or benefits under this Agreement.
10. NON-SOLICITATION OF CUSTOMERS. Executive agrees that during Executive's
employment with the Company and for one year following Executive's
voluntary or involuntary termination of employment with the Company,
Executive shall not, directly or indirectly, in any capacity, solicit the
business of any customer of the Company except on behalf of the Company, or
attempt to induce any customer of the Company to cease or reduce its
business with the Company; provided that following the termination of
Executive's employment with Company he or she may solicit a customer of the
Company to purchase goods or services that do not compete directly or
indirectly with those then offered by the Company. Any breach of
Executive's obligations under this paragraph shall, in addition to all
other remedies available to the Company, result in the immediate release of
the Company from any obligations it would otherwise have to provide further
payments or benefits under this Agreement.
NON-COMPETITION
11. CONFIDENTIAL/PROPRIETARY INFORMATION. Executive acknowledges and agrees
that in Executive's position at the Company, Executive will have access to,
knowledge of and use of the Company's trade secrets, proprietary
information, business operations, business know-how, employee information,
and customer information. Executive acknowledges that such information is
critical to the successful operation of Company's business, that it would
be impossible for Executive to discard all knowledge of such information
upon separation of employment with the Company, and that it would be unfair
to the Company for such information to be used by an Executive in a
business that competes or attempts to compete with the Company. Executive
recognizes and agrees that the Company fills a narrow, specific niche in
the computer storage device industry. A limited number of entities located
throughout the world compete worldwide with the company in the data storage
device industry. As a result of this worldwide market, Executive agrees
that this covenant not to compete extends worldwide and cannot be written
more narrowly.
12. NON-COMPETITION. Executive agrees that during Executive's employment with
the Company, and for one year following the termination of Executive's
employment with the Company for whatever reason, Executive will not
directly or indirectly perform services for an entity, including
Executive's self, which actually or potentially competes with the Company.
For the purposes of this section only and not for purposes of any antitrust
related market definition or analysis, an entity (which includes but is not
limited to a person, partnership, joint venture, or corporation) will be
considered to compete with the Company if such entity (or in the case of a
multi-billion dollar, multi-division corporation, the division thereof for
which services are proposed to be performed by Executive) or any of its
affiliates engages directly or indirectly in the removable media storage
device market segment as all or part of its business. Examples of such
entities include: Syquest, Castlewood, Imation, Sony, HP Storage Division,
Seagate Removable Storage Division, and their affiliates. These examples
are provided for illustration purposes and are not intended to be an
all-inclusive list or to limit the preceding terms in any way. For the
purposes of this Non-Competition Section, performing services shall include
but not be limited to positions as employee, consultant, officer, joint
venturer, owner in full or in part (excluding ownership consisting solely
of not more than 1% of the outstanding stock of a publicly held company),
partner, and director. Any breach of Executive's obligations under this
paragraph shall, in addition to all other remedies available to the
Company, result in the immediate release of the Company from any
obligations it would otherwise have to provide further payments or benefits
under this Agreement.
ADDITIONAL PROVISIONS
13. SUCCESSOR IN INTEREST.
(a) COMPANY'S SUCCESSORS. Any successor to the Company (whether
direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) or to all or
substantially all of the Company's business and/or assets shall
assume the obligations of the Company under this Agreement and
agree expressly to perform the Company's obligations under this
Agreement in the same manner and to the same extent as the
Company would be required to perform such obligations in the
absence of a succession. For all purposes under this Agreement,
the term "Company" shall include any successor to the Company's
business and/or assets which executes and delivers the assumption
agreement described in this subsection or which becomes bound by
the terms of this Agreement by operation of law.
(b) Executive's Successors. The terms of this Agreement and all
rights of the Executive hereunder shall inure to the benefit of,
and be enforceable by, the Executive's personal or legal
representative, executors, administrators, successors, heirs,
distributees, devisees and legatees.
14. NEW EMPLOYMENT. Executive shall inform the Company immediately of any
change in his or her employment status during the period that Executive is
receiving Severance.
15. SEVERABILITY. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full
force and effect.
16. EMPLOYMENT TAXES. All payments made pursuant to this Agreement will be
subject to withholding of applicable income and employment taxes.
17. REMEDIES: NO IMPLIED WAIVERS. The parties shall attempt in good faith to
resolve any dispute arising out of or relating to this Agreement by
negotiation. If the dispute has not been resolved by negotiation within 30
days, the parties shall endeavor to resolve it by mediation. Unless the
parties otherwise provide, the mediator shall be selected from the CPR
Panels of Distinguished Neutrals. Any dispute which remains unresolved 30
days after appointment of a mediator shall be settled by arbitration by a
sole arbitrator in accordance with the CPR Rules for Non-Administrated
Arbitration, and judgment upon the award rendered by the arbitrator may be
entered by any court having jurisdiction thereof. The reference in this
Agreement to particular breaches resulting in an immediate release of the
Company from certain of its obligations shall not mean that other material
breaches would not also create a right on the part of the Company to
discontinue all payments and benefits under this Agreement or to be
relieved of other obligations. No delay or omission by either party in
exercising any right under this Agreement will operate as a waiver of that
or any other rights. A waiver or consent given by the Company on one
occasion is effective only in that instance and will not be construed as a
bar or waiver of any right on any other occasion.
18. SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties recognize that
irreparable injury to the Company will result from a material breach of the
Assignment of Inventions, Non-Disclosure, , Non-Disparagement,
Non-Solicitation, or Non-Compete provisions in pargraph 5-12 of this
Agreement, and that monetary damages will be inadequate to rectify such
injury. Accordingly, notwithstanding the dispute resolution provisions in
the foregoing paragraph, the Company shall be entitled to one or more
preliminary or permanent orders: (i) restraining or enjoining any act which
would constitute a material breach of paragraph 5-12 of this Agreement,
and (ii) compelling the performance of any obligation which, if not
performed, would constitute a material breach of paragraph 5-12 of this
Agreement.
19. ENTIRE AGREEMENT. Except with respect to the terms of any written
employment agreement, if any, by and between the Company and Executive that
is signed on behalf of the Company, no agreements, representations or
understandings (whether oral or written and whether express or implied)
which are not expressly set forth in this Agreement have been made or
entered into by either party with respect to the subject matter hereof.
20. GOVERNING LAW. This Agreement shall be interpreted, construed and governed
in accordance with the laws of the State of Delaware, without giving effect
to the choice of law rules thereof.
IN WITNESS WHEREOF, Executive and the Company have executed this Agreement as of
the date hereinabove written.
IOMEGA CORPORATION
By:/s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
and General Counsel
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[Executive]
