EXHIBIT 10.4
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated as of January 17, 2002 (the
"Effective Date"), between Home Director, Inc., a Delaware corporation (the
"Company"), and Xxx Xxxx ("Employee").
WHEREAS, the Company desires to employ Employee as its President and Chief
Operating Officer and
WHEREAS, Employee is willing to accept such employment on the terms set
forth herein.
NOW, THEREFORE, the Company and Employee hereby agree as follows:
1. Employment.
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1.1. General. The Company hereby employs Employee in the capacity of
President and Chief Operating Officer and Employee hereby accepts such
employment, upon the terms and subject to the conditions herein contained.
1.2. Board of Directors. During the term of Employee's employment
hereunder, the Employee agrees to serve as a member of the Boards of Directors
of the Company.
1.3. Duties and Authority. During the term of Employee's employment
hereunder, the Employee shall have such responsibilities, duties and authority
as are consistent with his title and such additional responsibilities, duties
and authority as may, from time to time, be reasonably assigned to Employee by
the Chief Executive Officer.
2. Term of Employment. The term of this Agreement shall commence on
the Effective Date and shall continue through December 31, 2004 (the "INITIAL
TERM"). Thereafter and unless this Agreement is terminated in accordance with
the provisions set forth in Section 4 hereof, the term of this Agreement shall
be automatically extended for successive and additional one-year periods.
3. Compensation and Benefits
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3.1. Salary. The Company shall pay to Employee a base salary at the
annual rate of $240,000 or at such increased rate as the Chief Executive Officer
may hereafter from time to time determine ("BASE SALARY"), payable in accordance
with the regular payroll practices of the Company and subject to all applicable
federal and state deductions and withholdings. During the term of this
Agreement, Employee's Base Salary shall be reviewed no less frequently to
determine whether or not such Base Salary should be increased in light of
Employee's duties, responsibilities and performance, and, if it is determined
that an increase is merited, such increase shall be promptly put into effect and
Employee's base salary as so increased shall constitute Employee's Base Salary
for purposes of this Section 3.1.
3.2. Expenses. The Company shall pay for, or reimburse Employee for,
all other reasonable out-of-pocket expenses incurred by him in performing
services under this Agreement. All such payments or reimbursements shall be made
by the Company according to the Company's expense account and reimbursement
policies and provided that Employee shall submit reasonable documentation with
respect to such expenses. In addition the company will pay for a leased vehicle
or if it can not obtain a lease will pay a car allowance not to exceed $650 per
month. The employee will participate in the executive healthcare program.
3.3. Incentive Stock Options. Simultaneously with the execution and
delivery of this Agreement, the Company and Employee shall execute and deliver a
Stock Option Agreement (the "Option Agreement") pursuant to which the Company
shall grant Employee an option to purchase TBD shares of the Common Stock of the
Company in accordance with the terms and conditions thereof. The Option
Agreement shall provide that options shall vest quarterly over three years
beginning on the Effective Date (date to be employees hire date), have an
exercise price of TBD per share, and vesting on 100 per-cent of all options will
accelerate upon a Change In Control (excluding the first reverse merger) Also
the Company shall grant the Employee an option to purchase up to TBD shares of
the Common Stock of the Company that vests quarterly over three years after the
Company becomes profitable.
3.4. Vacation. Employee shall be entitled to three weeks of vacation
during each calendar year of this Agreement, or such greater period as the Board
of Directors of the Company shall approve, and to paid holidays given by the
Company to its employees generally, without reduction in salary or other
benefits. Vacation for a calendar year that is not used may be used in
subsequent calendar years. Upon termination of Employee's employment pursuant to
Section 4 hereof, Employee shall be entitled, in addition to the compensation
and benefits provided for in Section 4, to receive in cash an amount equivalent
to all accrued and unused vacation as of such termination date.
3.5. Equipment. The Company shall provide Employee with equipment
reasonably determined by the Company to be necessary for Employee to perform his
duties under this Agreement, including, without limitation, a portable personal
computer and a cellular telephone.
3.6. No Other Benefits. During the term of this Agreement or upon any
termination hereof, the Company shall have no obligation to pay or provide, any
compensation or benefits other than as set forth herein; provided, however that
Employee shall be entitled to all benefits generally available under the
employee benefit plans, and the policies and practices of the Company,
determined in accordance with the applicable terms and provisions of such plans,
policies and practices, in each case, as accrued to the date of termination of
employment. Employee hereby acknowledges that the Company may desire to obtain
key-man life insurance on him. In such event, Employee shall take all action
requested by the Company, including submitting to a physical examination, to
facilitate the Company obtaining such policy.
4. Termination of Employment.
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4.1. Events of Termination. Employee's employment hereunder shall
terminate prior to the expiration of the term set forth in Section 2 hereof upon
the occurrence of any one or more of the following events:
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(a) Death. In the event of Employee's death, Employee's employment
shall terminate on the date of death.
(b) Termination By the Company for Cause. The Company may, at its
option, terminate Employee's employment for Cause (as defined below) upon giving
written notice of termination to Employee. Employee's employment shall terminate
on the date on which such notice shall be given. For purposes hereof, "Cause"
shall mean Employee's (i) conviction of or guilty plea to a felony, (ii)
commission of fraudulent, illegal or dishonest acts, as determined by the Board
of Directors of the Company, (iii) willful misconduct or gross negligence which
reasonably could be expected to be materially injurious to the business or
operations of the Company (monetarily or otherwise) or (iv) material failure to
perform his duties under this Agreement, or any other material breach of this
Agreement, as reasonably determined by the Board of Directors of the Company and
Employee fails to cure such failure to perform or such breach within thirty (30)
days following receipt of written notice of such failure to perform or such
breach.
(c) Termination By the Company Without Cause. The Company may, at its
option, terminate Employee's employment for any reason whatsoever by giving at
least thirty (30) days prior written notice of termination to Employee.
(d) Termination By Employee. Employee may terminate Employee's
employment for any reason whatsoever by giving at least thirty (30) days prior
written notice of termination to the Company.
(e) Disability. In the event of Employee's Disability (as defined
below), the Company will have the option to terminate Employee's employment by
giving a written notice of termination to Employee. Such notice shall specify
the date of termination, which date shall not be earlier than thirty (30) days
after such notice is given. For purposes of this Agreement, "Disability" means
the inability of Employee to substantially perform his duties hereunder for
ninety (90) consecutive days or one hundred eighty (180) days out of three
hundred sixty-five (365) days as a result of a physical or mental illness, all
as determined in good faith by the Board of Directors of the Company following
consultation with medical or mental health experts selected by the Board of
Directors of the Company.
(f) Termination By Employee for Good Reason. Employee may, at his
option, terminate, Employee's employment upon giving written notice of
termination to the Company in the event that (i) the Company commits a material
breach of the terms of this Agreement and fails to cure such breach within
thirty days (30) days following receipt of written notice of such breach, or
(ii) Employee's Base Salary , title, duties, authority, or responsibilities (as
such duties, authority, and responsibilities (as such duties, authority, and
responsibilities have been established by the Chief Executive Officer of the
Company) are substantially reduced, or the Company moves corporate Headquarters
more than 50 miles that is not an agreed upon location by employee.
4.2. Company's Obligations Upon Termination. Following the
termination of Employee's employment under the circumstances described below,
the Company shall pay to Employee (or in the event of Employee's death, as
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directed by the executor of Employee's estate) the following compensation and
provide the following benefits, and in the case of Section 4.2(a) in full
satisfaction and final settlement of any and all claims and demands that
Employee now has or hereafter may have against the Company the full satisfaction
and final settlement of which claims and demands shall be controlled by the
Option Agreement or such other Incentive Stock Option Agreement or Nonqualified
Stock Option Agreement):
(a) Termination Without Cause By the Company or By Employee With Good
Reason. In the event that Employee's employment shall be terminated by the
Company pursuant to Section 4.1(c) hereof, or by Employee pursuant to Section
4.1 (f) hereof, the Company shall pay Employee (a) all Base Salary through the
date of termination, in accordance with the Company's then existing payroll
practices. Base Salary shall be paid with the payroll immediately after the
termination of Employee's and (b) any Bonus earned on or prior to the date of
termination, but not yet paid, which such Bonus shall be paid with the payroll
immediately after the termination of Employee's employment and (c) Base Salary
and existing benefits for a period covering the remaining term of the agreement
or one year, whichever is greater from the date of termination. In addition, (i)
the Company shall reimburse Employee for any expenses incurred through the date
of such termination in accordance with Section 3.2 hereof, (ii) the Company
shall provide Employee with executive outplacement services reasonably
acceptable to Employee, and (iii) with respect to a termination by the Company
without Cause pursuant to Section 4.1(c) hereof, all stock options of the
Company then issued to Employee (the "Options") shall become fully vested and
exercisable as of the date of such termination and shall continue to be
exercisable for a period of 365 days after the date of such termination with
respect to all shares of the Company's Common Stock subject to the Option.
(b) By the Company for Cause. In the event that Employee's employment
shall be terminated by the Company for Cause pursuant to Section 4.1(b) hereof,
Employee shall be entitled to no further compensation or other benefits under
this Agreement other than any Base Salary and Bonus earned by him up to and
including the effective date of such termination, but not yet paid. In addition,
the Company shall reimburse Employee for any expenses incurred through the date
of such termination in accordance with Section 12 hereof.
(c) Termination upon Expiration of the Employment Term. Upon expiration
of the term of this Agreement, Employee shall be entitled to no further
compensation or other benefits under this Agreement other than that portion of
any unpaid Base salary earned, but unpaid, through the end of such term and
Bonus earned on or prior to the end of such term, but not yet paid. In addition,
the Company shall reimburse Employee for any expenses incurred through the date
of such termination in accordance with Section 3.2 hereof.
(d) Termination by the Employee. In the Event that Employee's employment
shall be terminated by the Company for Cause pursuant to Section 4.1(d) hereof,
Employee shall be entitled to no further compensation or other benefits under
this Agreement other than that portion of any unpaid Base Salary earned, but
unpaid, through the end of such termination and Bonus earned on our prior to the
end of such termination, but not yet paid. In addition, the Company shall
reimburse Employee for any expenses incurred through the date of such
termination in accordance with Section 3.2 hereof
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(e) Termination Due to Death or Disability. In the event that
Employee's employment shall be terminated by the Company pursuant to Section
4.1(a) or 4.1(e) hereof, (i) the Company shall pay Employee all Base Salary and
Bonus earned, but unpaid, through the date of termination, and shall reimburse
Employee for any expenses incurred through the date of termination in accordance
with Section 3.2 hereof and (ii) the Options shall become fully vested and
exercisable as of the date of such termination and shall continue to be
exercisable for a period of three (3) months after the date of such termination
with respect to all shares of Common Stock subject to the Options.
5. Non-Interference; Noncompetition. During the term of this Agreement
and for a period of twelve (12) months thereafter, Employee shall not:
(a) interfere with any of the Company's or Digital Interiors'
relationships with, or endeavor to employ or entice away from the Company or
Digital Interiors, any person who at any time on or after the date hereof, is or
shall be an employee of the Company or Digital Interiors or interfere with or
seek to alter the Company's or Digital Interiors' relationship with, divert any
supplier, licensee or distributor of the Company or Digital Interiors; or
(b) directly or indirectly, engage in or facilitate or support others to
engage in the production, sale or distribution of any products or services
competitive to the business of the Company or Digital Interiors in which the
Company or Digital Interiors or any successor thereof (only to the extent of the
products and services of the Company or Digital Interiors immediately prior to
the successor succeeding to the Company's or Digital Interiors' business) is
then actively engaged or any successor thereof anywhere in the United States or
any other country in which Company or Digital Interiors is then actively
conducting its business or, directly or indirectly, solicit or attempt to
solicit for business in a manner which could reasonably be expected to result in
a detriment to the Company or Digital Interiors, in competition with the Company
or Digital Interiors or any successor thereof, any suppliers, clients or
customers with whom the Company or Digital Interiors or any successor thereof
shall have done business; or
(c) seek or obtain employment with or provide services to any customer
or client of the Company or Digital Interiors with whom Employee interacted
during the Term of this Agreement which employment or services could reasonably
be expected to result in a detriment to the Company or Digital Interiors.
6. Property Rights. With respect to information, inventions and
discoveries developed, made or conceived of by Employee, either alone or with
others, at any time during his employment by the Company and whether or not
within working hours, arising out of such employment or pertinent to any field
of business or research in which, during such employment, the Company is engaged
or (if such is known to or ascertainable by Employee) is considering engaging,
Employee agrees:
(a) that all such information, inventions and discoveries, whether or
not patented or patentable, shall be and remain the exclusive property of the
Company;
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(b) to disclose promptly to an authorized representative of the Company
all such information, inventions and discoveries and all information in
Employee's possession as to possible applications and uses thereof
(c) not to file any patent application relating to any such invention
or discovery except with the prior written consent of an authorized officer of
the Company;
(d) that Employee hereby waives and releases any and all rights
Employee may have in and to such information, inventions and discoveries, and
hereby assigns to the Company and/or its nominees all of Employee's right, title
and interest in them, and all Employee's right, title and interest in any
patent, patent application, copyright or other property right based thereon.
Employee hereby irrevocably designates and appoints the Company and each of its
duly authorized officers and agents as his agent and attorney-in-fact to act for
him and in his behalf and stead to execute and file any document and to do all
other lawfully permitted acts to further the prosecution, issuance and
enforcement of any such patent, patent application, copyright or other property
right with the same force and effect as if executed and delivered by Employee;
and
(e) at the request of the Company, and without expense to Employee, to
execute such documents and perform such other acts as the Company deems
necessary or appropriate, for the Company to obtain patents on such inventions
in a jurisdiction or jurisdictions designated by the Company, and to assign to
the Company or its designee such inventions and any and all patent applications
and patents relating thereto.
7. Confidentiality. With respect to the information, inventions and
discoveries referred to in Section 6 hereof, and also with respect to all other
information, whatever its nature and form and whether obtained orally, by
observation, from graphic materials or otherwise (except such as is generally
available through publication), obtained by Employee during or as a result of
his employment by the Company and relating to any invention, improvement,
enhancement, product, know-how, formula, software, process, apparatus, design,
concept or other creation, or to any use of any of them, or to materials,
tolerances, specifications, costs (including, without limitation, manufacturing
costs), prices, or to any plans of the Company or Digital Interiors, or to any
other trade secret or proprietary information of the Company or Digital
Interiors, Employee agrees:
(a) to hold all such information, inventions and discoveries which have
not otherwise become public knowledge in strict confidence and not to publish or
otherwise disclose any thereof to any person or entity other than the Company
except with the prior written consent of an authorized officer of the Company or
as may be required by law;
(b) to take all reasonable precautions to assure that all such
information, inventions and discoveries are properly protected from access by
unauthorized persons;
(c) to make no use of nor exploit in any way any such information,
invention or discovery except as required in the performance of his employment
duties for the Company; and
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(d) upon termination of his employment by the Company, or at any time
upon request of the Company, to deliver to it all graphic materials and all
substances, models, software, prototypes and the like containing or relating to
any such information, invention or discovery, all of which graphic materials and
other things shall be and remain the exclusive property of the Company.
For purposes of this Agreement, the term "graphic materials" includes, without
limitation, letters, memoranda, reports, notes, notebooks, books of account,
drawings, prints, specifications, formulae, software, data print-outs,
microfilms, magnetic tapes and disks and other documents and recordings,
together with all copies, excerpts and summaries thereof.
8. No Conflicts. Employee agrees and acknowledges that his employment
by the Company and compliance with this Agreement do not and will not breach any
agreement made by Employee to keep in confidence information acquired by him
prior to or outside of his employment with the Company. Employee will comply
with any and all valid obligations which he may now have to prior employers or
to others relating to confidential information, inventions or discoveries which
are the property of those prior employers or others, as the case may be.
Employee has supplied or shall promptly supply to the Company upon its request a
copy of each written agreement setting forth any such obligation. Employee
hereby agrees and acknowledges that he has not brought and will not bring with
him for use in the performance of his duties at the Company any materials,
documents or information of a former employer or any third party that are not
generally available to the public, unless he has express written authorization
from the owner thereof for possession and use or Employee otherwise has
undisputed proprietary rights to such material, documents or information.
Employee hereby agrees not to serve on any board of directors, advisory board or
similar board without the prior written consent of the Board of Directors of the
Company.
9. Specific Performance. Without intending to limit the remedies
available to the Company, Employee agrees that damages at law would be an
inadequate remedy to the Company in the event that he shall breach or attempt to
breach any of the provisions of Sections 5, 6, or 7 hereof and that the Company
may apply for and, without the posting of any bond or other security, have
injunctive relief in any court of competent jurisdiction to restrain the breach
or threatened breach of, or otherwise to enforce specifically, any of the
covenants contained in such Sections. Such injunctive relief in such court shall
be available to the Company in lieu of any arbitration proceeding pursuant to
Section 12 hereof
10. Survival. The provisions of Sections 3, 4, 5, 6, 7, 8, 9, 11, 12.1
and 12.4 shall, subject to any express provisions of such Sections, survive any
termination of this Agreement. Employee's obligations under Sections 5, 6, and 7
hereof shall remain in effect throughout Employee's employment by the Company
and, subject to the express provisions of such Sections, thereafter, unaffected
by any transfer to a subsidiary or affiliate of the Company, and without regard
to the reason for termination of Employee's employment.
11. Arbitration. Any controversy or claim based on, arising out of or
relating to the interpretation and performance of this Agreement or any
termination hereof shall be solely and finally settled by arbitration under the
rules of the American Arbitration Association, and judgment on the award
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rendered in the arbitration may be entered in any court having jurisdiction
thereof Any such arbitration shall be in Santa Xxxxx County, California, and
shall be submitted to a single arbitrator appointed by the mutual consent of the
parties or, in the absence of such consent, by application of any party to the
American Arbitration Association. A decision of the arbitrator shall be final
and binding upon the parties, and the arbitrator shall be authorized to
apportion fees and expenses (including counsel fees and expenses) as the
arbitrator shall deem appropriate. In the absence of any such apportionment, the
fees and expense of the arbitrator shall be borne equally by each party, and
each party will bear the fees and expenses of its own attorney. The Company
shall reimburse Employee for all reasonable travel, lodging, and meal expenses
incurred by Employee in connection with any such Arbitration. Such reimbursement
shall be made within 10 business days of Employee submitting reasonable
documentation of such expenses. The parties agree that this clause has been
included to rapidly and inexpensively resolve any disputes between them with
respect to this Agreement and that this clause shall be grounds for dismissal of
any court action commenced by either party with respect to this Agreement, other
than (i) post-arbitration actions seeking to enforce an arbitration award and
(ii) actions seeking appropriate equitable or injunctive relief pursuant to
Section 9 hereof
12. Miscellaneous.
12.1. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California that are
applicable to agreements entered into between residents of the State of
California and without regard to principles of conflict of laws.
12.2. Assignment. This Agreement and the rights and obligations
hereunder, shall not be assignable or delegable by any party hereto without the
prior written consent of the other party, except with respect to an assignment
by the Company to any affiliate of the Company or pursuant to a merger or
consolidation involving the Company or pursuant to the sale of all or
substantially all of the assets of the Company.
12.3. Severability. In the event that any provision or portion of
this Agreement shall be determined to be invalid or unenforceable for any
reason, in whole or in part, (the remaining provisions of this Agreement shall
be unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law and (any such invalidity or unenforceability shall be
deemed replaced by a term or provision determined by the parties as coming
closest to expressing the intention of the invalid or unenforceable term or
provision.
12.4. Notice. Any notice to be given hereunder shall be in writing
and either delivered in person, by facsimile, by nationally recognized overnight
courier, or by registered or certified first class mail, postage prepaid,
addressed (a) if to the Company at 0000 Xxxxx Xxxxxx Xxxx., Xxx Xxxx, Xxxxxxxxxx
00000, and (b) if to Employee at the address set forth on the signature page
hereof Notices delivered personally shall be deemed given as of actual receipt;
notices sent via facsimile transmission shall be deemed given as of one business
day following sender's receipt from sender's facsimile machine of written
confirmation of transmission thereof, notices sent by overnight courier shall be
deemed given as of one business day following sending; and notices mailed shall
be deemed given as of five business days after proper mailing. Any party may
change its address in a notice given to the other party in accordance with this
Section 12.5.
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12.5. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs, legal
representatives, successors (including, without limitation, any successor by
merger or sale of all or substantially all assets) and permitted assigns.
12.6. Further Assurances. Employee shall execute and deliver all
instruments and other documents which are mutually and reasonably agreed to by
Employee and the Company to be necessary or appropriate to carry out the terms
of this Agreement. The Company shall pay or reimburse any expenses incurred by
Employee in connection with Employee's obligations under this Section 12.7.
12.7. Headings. The Section headings in this Agreement are for
convenience of reference only and shall not affect its interpretation.
12.8. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which when
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, this Employment Agreement has been executed and
delivered by the parties hereto as of the date first above written.
EMPLOYER:
HOME DIRECTOR, INC.
By:________________________________
Xxx Xxxxxx
Chairman
EMPLOYEE:
By:_______________________________
Xxx Xxxx
Address: 0000 Xxxxxx Xxxxx Xxxxxx Xx #0X0
Xxx Xxxx, XX 00000
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