Exhibit 10.4
EMPLOYMENT AGREEMENT
NOVINT TECHNOLOGIES, INC., a New Mexico corporation (the "Company") and
XXXXXX X. XXXXXX (the "Employee") agree:
1. EMPLOYMENT. The Company hereby employs Employee, and Employee
agrees to serve, as Chief Technical Officer of Company and any subsidiaries or
affiliates of Company (together, the "Subsidiaries"). Subject to the direction
of the Chief Executive Officer, the Employee will be responsible for, in
addition to any other matters assigned to Employee, Company's technical
development, including development of Company's e-touch software, development of
applications and products, and management of technical staff. The Employee
agrees to devote his full business time and attention and best efforts to the
affairs of the Company and the Subsidiaries during the period of Employee's
employment with Company. Employee will execute and deliver to Company the
Proprietary Information and Inventions Agreement required of all Company
employees.
2. START DATE. The employment of the Employee by the Company under the
terms and conditions of this Agreement will commence as of November 1, 2000.
3. COMPENSATION. The Employee will receive the following compensation:
3.1 ANNUAL SALARY. The Company shall pay to the Employee
an annual salary of $100,000.00 (the "Base Salary") payable in
installments in accordance with Company policy. The Chief Executive
Officer shall review the performance of the Employee periodically and,
subject to the sole discretion of the Chief Executive Officer,
determine whether the Employee is entitled to an increase in the Base
Salary.
3.2 CASH BONUS. The Company may pay to Employee a cash bonus
(the "Cash Bonus"). Any such bonus will be paid at the sole discretion
of the Company.
3.3 REIMBURSEMENT OF EXPENSES. The Employee shall be entitled
to receive prompt reimbursement of all reasonable expenses incurred by
the Employee in performing services hereunder, including all expenses
of travel, entertainment and living expenses while away from Employee's
primary residence on business at the request of, or in the service of,
the Company or any Subsidiary, provided that such expenses are incurred
and accounted for in accordance with the policies and procedures and
approved operating budget established by the Company.
3.4 BENEFITS. The Employee shall be entitled to participate in
and be covered by all health, insurance, pension, cash performance or
profit sharing bonus plans, and other Employee plans and benefits
established by the Company for its employees generally, subject to
meeting applicable eligibility requirements.
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3.5 PERSONAL LEAVE AND HOLIDAYS. The Employee shall be
entitled to an annual personal leave of twenty (20) days at full pay.
Employee may take a reasonable amount of sick leave, which does not
count as personal leave, subject to company's policies on sick leave.
The Employee shall also be entitled to ten paid holidays a year. Such
holidays will be established by the Company for all employees.
3.6 STOCK PLAN AND AGREEMENT. Employee shall be eligible to
participate in Company's employee stock option plan and, pursuant to
the terms and conditions of the plan and a separate agreement between
Company and Employee, shall be granted options to purchase 4,000
shares of Company common stock.
4. CONFIDENTIALITY AND NON-COMPETITION. The Employee agrees to the
following confidentiality and non-competition restrictions:
4.1 CONFIDENTIALITY. The Employee will not during his
employment by the Company or thereafter at any time disclose, directly
or indirectly, to any person or entity or use, or permit the use of,
any trade secrets or confidential information relating to the Company
or any Subsidiary (the "Confidential Information") except as required
by law. "Confidential Information" shall include, but shall not be
limited to, (i) products or services, (ii) business or strategic plans,
(iii) designs, (iv) analyses, (v) drawings, photographs and reports,
(vi) computer hardware and software, including operating systems,
applications, program listings, and installation plans and techniques,
(vii) flow charts, manuals and documentations, (viii) data bases, (ix)
tax or financial data, (x) trade secrets, know-how, inventions,
devices, new developments, methods and processes, whether patentable or
unpatentable and whether or not reduced to practice, (xi) customers and
clients and customers or client lists or other marketing or sales
programs or plans, (xii) other copyrightable works, (xiii) all
technology and trade secrets, (xiv) the terms of any agreement for the
development or commercialization of any invention or technology related
thereto, (xv) the terms of any license, marketing, sales or
distribution agreement of Company, (xvi) all information denominated as
"Confidential" and made available only on a restricted basis and (xvii)
all similar and related information.; provided however, that
"Confidential Information" shall not include information which comes
into the public domain through no fault of the Employee or which the
Employee obtains after the termination of employment with the Company
or otherwise from a third party who, to the knowledge of the Employee,
has the right to disclose such information.
4.2 RETURN OF COMPANY MATERIAL. The Employee shall promptly
deliver to the Company on termination of the Employee's employment with
the Company, for whatever the reason, or at any time the Company may so
request, all Company or Subsidiary memoranda, notes, records, reports,
manuals, drawings, computer software, and all documents containing
Confidential Information belonging to the Company, including all copies
of such materials which the Employee may then possess or have under the
Employee's control irrespective of the format of such materials.
4.3 NON-COMPETITION. During the period of Employee's
employment with the Company and for up to a one-year period thereafter,
the Employee will not, within the United States, directly or
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indirectly, without the consent of the Board of Directors of the
Company: (i) own, manage, operate, join, control, or participate in or
be connected with, as an officer, employee, partner, stockholder of
greater than 1% of available shares, director, adviser, consultant, or
agent (whether paid or unpaid), any business, which is at the time
engaged in any activities which compete with the business of the
Company or any Subsidiary; or (ii) utilize any employees of the Company
to perform any service which conflicts with their full-time employment
with the Company or otherwise take actions which result in the
termination of any employee's relationship with the Company. Employee
hereby acknowledges that because of Company's national presence in its
industry it is necessary for this section to apply to the entire United
States in order to adequately protect Company's interests.
4.4 RIGHT TO INJUNCTIVE AND EQUITABLE RELIEF As a result of
the Employee's position as an Employee of the Company, the Employee's
obligations not to disclose or use Confidential Information and to
refrain from the activities described in this Section 4 are of a
special and unique character which gives them a peculiar value, and
which is supported by valuable consideration. The Company cannot be
reasonably or adequately compensated in damages in an action at law in
the event the Employee breaches such obligations. Therefore, the
Employee expressly agrees that the Company shall be entitled to
injunctive and other equitable relief without bond or other security in
the event of such breach in addition to any other rights or remedies
which the Company may possess. Furthermore, the obligations of the
Employee and the rights and remedies of the Company under this Section
4 are cumulative and in addition to, and not in lieu of, any
obligations, rights, or remedies created by applicable law relating to
misappropriation or theft of trade secrets or confidential information.
5. TERMINATION. Company and Employee agree to the following termination
provisions:
5.1 TERMINATION BY THE COMPANY. The Chief Executive Officer
may terminate the Employee's employment hereunder as follows:
(a) Upon the death of the Employee, whereupon this
Agreement shall immediately terminate;
(b) Upon a determination of Permanent Disability;
"Permanent Disability" shall mean a physical or
mental incapacity as a result of which the Employee
becomes totally unable to continue the performance of
his duties hereunder for a period of 180 consecutive
days or an aggregate of 270 days in any 24 month
period. A determination of Permanent Disability shall
be subject to the certification of a qualified
medical doctor agreed to by the Company and the
Employee or, in the event of the Employee's
incapacity to designate a doctor, the Employee's
legal representative. In the absence of agreement
between the Company and the Employee, each party
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shall nominate a qualified medical doctor and the two
doctors so nominated shall select a third doctor, who
shall make the determination as to the occurrence and
continuance of a Permanent Disability; or
(c) For cause. "Cause" shall mean only the following:
(i) the willful and, after written notice and a
reasonable opportunity to cure, continued
failure by the Employee to follow the
reasonable directions of the Chief Executive
Officer not inconsistent with this Agreement
(other than such failure resulting from the
Employee's incapacity due to physical or
mental illness);
(ii) willful and, after written notice and a
reasonable opportunity to cure, continued
misconduct by the Employee that materially
adversely affects the Company;
(iii) conviction of a felony or guilty plea or
plea of nolo contendre to a crime or offense
relating to the performance of the
Employee's duties to the Company;
(iv) willful theft from the Company;
(v) a willful violation of any law, rule or
regulation, or the imposition of a final
order issued by any regulatory authority
against the Company, which, in any event,
prohibits the Employee from holding an
Employee position with the Company or any
Subsidiary;
(vi) the Employee's habitual drunkenness or
habitual use of illegal substances, after
notice to cease and the opportunity provided
by the Company to enter into and
successfully complete a reputable
rehabilitation program at the expense of the
Company; or
(vii) the Employee fails to substantially perform
any material term or provision of this
Agreement.
For purposes of this Agreement, no act, or failure to act, on
the Employee's part shall be considered "willful" unless done, or
omitted to be done, by the Employee in bad faith and without a
reasonable belief that such action or omission by the Employee was in
the best interests of the Company, and no termination by the Company
for "Cause" shall be effective unless the Employee shall have been
given written notice of the breaches of this Section 4.1(c) and a
period of 30 days within which to cure any such breach. provided that
such curative period shall be permitted only once in any 12 month
period.
(d) Without Cause for any reason or no reason.
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5.2 TERMINATION BY EMPLOYEE. The Employee may voluntarily
terminate his employment hereunder at any time for any reason or no
reason.
5.3 SEVERANCE PAYMENTS; TERMINATION FOR CAUSE. In the event of
termination for Cause, the Employee shall receive no severance, and
shall be entitled to receive, in lieu of any other payments or
benefits, his accrued and unpaid salary at the rate provided in Section
3.1 (as increased from time to time by the Chief Executive Officer)
through the date of termination, plus any accrued but unpaid Cash
Bonus, and plus (i) any amounts earned but unpaid for any benefit plans
in which Employee is a participant on the date of termination for prior
completed fiscal or calendar year including any accrued vacation and
(ii) any unpaid reimbursable expenses incurred prior to the date of
termination ((i) and (ii) collectively called the "Unpaid Benefits").
5.4 SEVERANCE PAYMENTS; TERMINATION AS A RESULT OF DEATH. In
the event of termination because of the death of Employee, the
Employee's estate or beneficiaries, as the case may be, shall be
entitled to receive, in addition to any other payments or benefits
hereunder, (i) the proceeds from any insurance policies paid for by the
Company in favor of the Employee's estate or beneficiaries and (ii) any
Unpaid Benefits. Such amounts shall be paid promptly in a lump sum in
cash.
5.5 SEVERANCE PAYMENTS; TERMINATION WITHOUT CAUSE. In
the event of termination by the Company without Cause, the Employee
shall be entitled to receive (i) Unpaid Benefits through the date of
termination, plus (ii) an amount equal to any accrued but unpaid Cash
Bonus (each of the amounts in subclauses (i) and (ii) payable in a lump
sum in cash within 30 days after the date of termination), plus (iii)
an amount equal to his Base Salary for a two week period.
5.6 SEVERANCE PAYMENTS; VOLUNTARY TERMINATION BY EMPLOYEE. If
the Employee shall voluntarily resign, he shall be entitled only to
Unpaid Benefits through the effective date of such resignation or
voluntary termination, and any such amounts shall be promptly paid in a
lump sum in cash.
5.7 SEVERANCE PAYMENTS; TERMINATION DUE TO PERMANENT
DISABILITY. If the Employee's employment hereunder is terminated as a
result of Permanent Disability, in lieu of any other payments or
benefits (other than any such disability benefits he may receive), he
shall be paid an amount equal to all Unpaid Benefits in a single lump
sum in cash within thirty (30) days of the date of his termination.
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5.8 GENERAL RELEASE. Prior to the Employee's receipt of any
severance payment under this Section 5, the Employee shall issue a
general release to the Company in such form as the Company may
reasonably require, which release shall extinguish all actual or
potential claims or causes of action he has, may have had, or hereafter
may have against the Company. The Company shall simultaneously provide
a release to the Employee in the same form given to the Company by the
Employee.
5.9 OTHER PAYMENTS UPON TERMINATION. If notice of termination
of the employment of Employee is given by the Employee or the Company,
the Employee shall continue to receive his then Base Salary and
benefits as provided in this Agreement until the date of termination.
6. GENERAL PROVISIONS.
6.1 NOTICE. For purposes of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when delivered or mailed by
United States registered mail, return receipt required, postage
prepaid, as follows:
If to the Company:
Novint Technologies, Inc.
0000 Xxxxxx Xxxx XX
Xxxxx X000
Xxxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
If to Employee:
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or such other address as either party may have furnished to the other
in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
6.2 NO WAIVERS. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing signed by the Employee and the
Company. No waiver by either party hereto at any time or any breach by
the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall
be deemed a waiver or similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
6.3 NO MITIGATION; NO OFFSET. In the event of the Employee's
termination of employment, he shall be under no obligation to seek
other employment and there shall be no offset against any amounts due
the Employee hereunder on account of any remuneration the Employee may
obtain from any subsequent employment.
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6.4 LEGAL FEES. The losing party shall promptly pay or
reimburse the prevailing party for reasonable costs of enforcing this
Agreement, including, specifically, the fees and expenses of counsel.
6.5 ARBITRATION. Any and all disputes or controversies arising
out of or relating to this Agreement, other than injunctive relief
pursuant to Section 4.4, shall be resolved by arbitration at the
American Arbitration Association at its Albuquerque, New Mexico offices
before a panel of three arbitrators under the then existing rules and
regulations of the American Arbitration Association. The parties agree
that in any such arbitration, the arbitrators shall not have the power
to reform or modify this Agreement in any way and to that extent their
powers are so limited. The determination of the arbitrators shall be
final and binding on the parties hereto and judgment on it may be
entered in any court of competent jurisdiction. Except as required by
law, neither the Company nor the Employee shall issue any press release
or make any statement which is reasonably foreseeable to become public
with respect to any arbitration or dispute between the parties without
receiving the prior written consent of the other party to the content
of such press release or statement. The losing party in such
arbitration will, in addition to any other amounts deemed payable by
the losing party, reimburse the prevailing party for the prevailing
party's expenses (including, without limitation, legal fees and
expenses) incurred in connection with such proceedings. All such
amounts shall be paid promptly, but in any event within ten (10) days
after the Employee provides the Company with a statement of such
amounts to be recovered.
6.6 INDEMNIFICATION. The Company hereby agrees to hold the
Employee harmless and indemnify the Employee from and against, and to
reimburse the Employee for, any and all judgments, fines, liabilities,
amounts paid in settlement and expenses, including attorneys' fees,
incurred directly or indirectly as a result of or in connection with
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, whether or
not such action, suit or proceeding is by or in the right of the
Company to procure a judgment in its favor, including an action, suit
or proceeding by or in the right of any other corporation of any type
or kind, domestic or foreign, or any partnership, joint venture, trust,
employee benefit plan or other enterprise for which the Employee served
in any capacity at the request of the Company, to which the Employee
is, was or at any time becomes a party, or is threatened to be made a
party, or a result of or in connection with any appeal therein, by
reason of the fact that the Employee is or was at any time a director,
officer, employee or agent of the Company; provided, however, that (i)
indemnification shall be paid pursuant to this paragraph if and only if
the Employee acted in good faith and in a manner reasonably believed by
the Employee to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the Employee's conduct was unlawful; and
(ii) no indemnification shall be payable pursuant to this paragraph if
a court having jurisdiction in the matter shall determine that such
indemnification is not lawful.
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6.7 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of theState of New
Mexico without regard to its Conflicts of Laws provisions.
6.8 SEVERABILITY OR PARTIAL INVALIDITY. The invalidity or
unenforceability of any provisions of this Agreement shall not affect
the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
6.9 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original but
all of which together will constitute one and the same instrument.
6.10 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties and supersedes all prior written or oral and
all contemporaneous oral agreements, understanding, and negotiations
between the parties with respect to the subject matter hereof. This
Agreement is intended by the parties as the final expression of their
agreement with respect of such terms as are included in this agreement
and may not be contradicted by evidence of any prior or contemporaneous
agreement. The parties further intend that this Agreement constitutes
the complete and exclusive statements of its terms and that no
extrinsic evidence may be introduced in any judicial proceeding
involving this Agreement.
6.11 ASSIGNMENT. This Agreement and the rights, duties and
obligations hereunder may not be assigned or delegated by any party
without the prior written consent of the other party. Any such
assignment or delegation without the prior written consent of the other
party shall be void and be of no effect. Notwithstanding the foregoing
provisions of this Section 6.11, the Company may assign or delegate its
rights, duties and obligations hereunder to any person or entity which
succeeds to all or substantially all of the business of the Company
through merger, consolidation, reorganization, or other business
combination or by acquisition of all or substantially all of the assets
of the Company; provided that such person assumes the Company's
obligations under this Agreement.
6.12 BENEFICIAL INTERESTS. This Agreement shall inure to the
benefit of and be enforceable by the Employee's personal and legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Employee should die while
any amounts are still payable to him hereunder, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to the Employee's devisee, legatee, or other
designee, or, if there be no such designee, to the Employee's estate.
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DATED AS OF: November ___, 2000
COMPANY: EMPLOYEE:
NOVINT TECHNOLOGIES, INC.
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XXXXXX X. XXXXXX
By
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Its
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