Exhibit 10.39
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of
November 19, 1998 between Data I/O Corporation, a Washington corporation ("Data
I/O"), and Xxxxxx Xxxxxxx ("Employee") and will be effective as of the date
Employee becomes an employee on the U.S. payroll of Data I/O after Employee's
relocation from Germany to the U.S.
In consideration of the mutual covenants and promises contained
herein, Data I/O and the Employee agree as follows:
1. Employment. Data I/O will employ the Employee and the Employee
agrees to relocate to the U.S. at a mutually agreed date during the first nine
(9) months of 1999 and to serve as Data I/O's Vice President, Marketing, subject
to the direction and control of the Board of Directors, or President of Data
I/O. The Employee will perform such additional duties as may be assigned from
time to time by the Board of Directors or President of Data I/O which relate to
the business of Data I/O or any business ventures in which Data I/O may
participate. The Employee will devote his full business time, attention and
effort to Data I/O's business and will use his skills and render services to the
best of his ability to serve the interests of Data I/O. The Employee and Data
I/O agree that adequate consideration has been given for the Employee to enter
into this Agreement and assume the obligations contained in this Agreement.
2. Term. Unless otherwise terminated pursuant to this Agreement, the
Employee's term of employment under this Agreement (the "Term") shall commence
on the date when Employee becomes an employee on the U.S. payroll of Data I/O
and shall expire on November 30, 2000.
3. Compensation.
3.1 Salary. As compensation for his services to Data I/O and
as payment for Employee's covenants herein, Employee shall receive an
annual base salary based on Employee's then-current salary in Germany converted
to U.S. Dollars (currently DM 260,000), and an increase in such salary of $7,200
USD for car-related expenses, all before customary payroll deductions (the
"Salary"). The Salary shall be paid in substantially equal installments at the
same intervals as other employees of Data I/O are paid. The President of Data
I/O shall annually (in accordance with Data I/O's then-current procedure and
schedule) determine any increases in the Salary for future periods.
3.2 Bonus. Employee shall be eligible to receive a bonus
(the "Bonus") beginning in 1999 in an amount of up to twenty-five percent
(25%) of the Salary pursuant to and in accordance with the terms of the Data I/O
Corporation Management Incentive Compensation Plan.
3.3 Right of Offset. Data I/O may deduct from Employee's
compensation any amounts due Data I/O for any advance on salary, mistaken
overpayment, products purchased from Data I/O or for similar reasons,
substantiated by Data I/O's business records and specifically identified in a
written notice to Employee at least five (5) days in advance of any such
deduction. Nevertheless, any such unpaid debt shall become immediately due in
full upon termination or expiration of Employee's employment, payable by payroll
deduction or otherwise, at Data I/O's option. This paragraph 3.3 shall not be
interpreted to allow Data I/O to lower Employee's Salary set forth in paragraph
3.1 above, the percentage of Employee's bonus set forth in paragraph 3.2 above
or any Employee reimbursements set forth in paragraph 4.2 below.
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4. Location, Expenses and Benefits.
4.1 Location. The Employee shall be located at Data
I/O's headquarters.
4.2 Expenses. Data I/O shall reimburse the Employee for all
reasonable and necessary business, relocation (both to and from the U.S.),
temporary living (up to 3 months) and immigration related expenses (including
reasonable attorney fees) as determined by Data I/O's policies and incurred and
advanced by him in carrying out his duties under this Agreement. The Employee
shall present to Data I/O from time to time an itemized account of such expenses
in such form as may be required by Data I/O or Company may pay such expenses
directly. Data I/O shall reimburse all above expenses within thirty (30) days of
receipt of an itemized account.
4.3 Benefits. During the Term, and on satisfaction of any
applicable eligibility and contribution requirements, the Employee shall be
entitled to participate in any benefit plans, programs, policies and any fringe
benefits which are or may be made available to the employees of Data I/O
generally, including but not limited to, medical, dental, disability, stock
purchase, 401(k), holiday pay, personal time off and life insurance.
5. Termination. Employment of the Employee pursuant to this
Agreement may be terminated as follows, but in any case, the provisions relating
to non-competition, non-solicitation and confidential information set forth in
Section 7 and paragraph 8.1 of this Agreement shall survive the termination of
the Employee's employment or the expiration of the Term:
5.1 Termination by Data I/O with Cause. With Cause (as
defined below), Data I/O may terminate the employment of the Employee at any
time during the Term upon giving Notice of Termination, as defined below.
5.2 Automatic Termination. Employment shall terminate
automatically upon death or total disability of the Employee. The term
"total disability" as used herein, shall mean any illness or physical or mental
condition that substantially impairs his performance of his assigned duties for
a period or periods aggregating 180 calendar days in any 12-month period, unless
the Employee is granted a leave of absence by Data I/O. Employee and Company
hereby acknowledge that the Employee's ability to perform the assigned duties is
of the essence of this Agreement. Termination hereunder shall be deemed to be
effective immediately upon the Employee's death or immediately upon Notice of
Termination, as defined below, based upon a reasonable determination by Data I/O
of the Employee's total disability.
5.3 Notice of Termination. The term "Notice of Termination"
shall mean written notice of termination of employment. The effective date of
the termination of employment hereunder shall be the date specified in such
Notice of Termination.
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5.4 Cause. Wherever reference is made in this Agreement to
termination being with Cause, "Cause" means cause given by the Employee to
Data I/O and is limited to the following:
(i) Repeated failure or refusal to carry out the lawful
and reasonable directions of the Board of Directors or
President of Data I/O where such failure or refusal has
an adverse effect on Data I/O;
(ii) Violation of a state or federal law involving the
commission of a crime against Data I/O or a felony;
(iii)Misuse of alcohol or controlled substances which
causes a significant injury to Data I/O;
(iv) Willful misrepresentation to the Board of
Directors or officers of Data I/O;
(v) Any other intentional conduct which has a material
adverse effect on Data I/O;
(vi) Habitual absence from work for reasons unrelated
to illness or physical disability; or
(vii)Violation of Section 7 or paragraph 8.1.
6. Termination Payments. In the event of termination of the
employment of the Employee, all compensation and benefits set forth in this
Agreement shall terminate except as specifically provided below in paragraphs
6.1, 6.2, 6.3 and 6.4.
6.1 Termination by Data I/O with Cause. If Data I/O
terminates the Employee's employment with Cause at any time during the
Term, the Employee shall be entitled to receive only any unpaid Salary which has
accrued for services already performed as of the effective date of the Notice of
Termination, any reasonable relocation expenses related to Employee and his
family relocating to Germany and expenses described in paragraph 4.2 above.
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6.2 Expiration of the Term. In the case of a
termination of the Employee's employment as a result of the expiration of
the Term unless this Agreement is extended or employment is otherwise continued,
the Employee shall not be entitled to receive any payments hereunder other than
any unpaid Salary or Bonus which have accrued for services already performed as
of the Agreement expiration date, any expenses related to Employee and his
family relocating to Germany and expenses described in paragraph 4.2 above.
6.3 Termination Because of Death or Total Disability.
In the event of a termination of the Employee's employment because of his
death or total disability, the Employee or his personal representative shall not
be entitled to receive any amounts hereunder other than any Salary or Bonus
which have accrued for services already performed as of the date of such death
or total disability and one (1) month's Salary following the date of such death
or three (3) months' Salary following the date of such disability and, in either
case, any reasonable relocation expenses related to Employee and/or his family
relocating to Germany and expenses described in paragraph 4.2 above.
6.4 Other Termination by Company. In the event of any
other termination of the Employee's employment by Company for any other
reason not specified in Section 5 of the Agreement, Employee shall receive as
severance the remainder of his Salary until November 30, 2000, any reasonable
relocation expenses related to Employee and his family relocating to Germany and
expenses described in paragraph 4.2 above.
7. Non-Competition and Non-Solicitation. The following
non-competition and non-solicitation provisions shall apply to this
Agreement:
7.1 Non-Competition. The Employee agrees that he will not,
directly or indirectly, during his employment and for a period until the later
of November 30, 2000 or six (6) months from the date on which his employment
with Data I/O terminates or this Agreement expires for any reason (the "Term"),
directly or indirectly be employed by, own, manage, operate, join, control or
participate in the ownership, management, operation or control of or be
connected with, in any manner, any person or entity engaged in competition with
Data I/O or its subsidiaries with respect to any product or service sold or
activity engaged in by Data I/O or its subsidiaries (including without
limitation, products or services used in the "IC Programmer Products Market" as
defined below) up to the time of expiration or termination of this Agreement in
any geographical area in which at the time of expiration or termination of this
Agreement such product or service is sold or activity is engaged in. "IC
Programmer Products Market" means the design, development, manufacture, sale or
distribution of any device or system used to program programmable integrated
circuits. The Employee shall be deemed to be connected with such business if
such business is carried on by a partnership, corporation or association of
which he is an employee, officer, director, shareholder, partner, member,
consultant or agent; provided, however, that nothing herein shall prevent the
purchase or ownership by the Employee of shares which constitute less than five
percent (5%) of the outstanding equity securities of a publicly-held
corporation.
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7.2 Non-Solicitation. The Employee shall not, in addition,
directly or indirectly solicit, influence or entice any employee or
consultant of Data I/O or its subsidiaries to cease his relationship with Data
I/O or its subsidiaries or solicit, entice or in any way divert any customer or
supplier of Data I/O or its subsidiaries to do business with the Employee or any
entity described herein. This paragraph 7.2 shall apply during the time period
and geographic region described in paragraph 7.1 of this Agreement.
7.3 Equitable Relief. The Employee acknowledges that the
provisions of this Agreement are essential to Data I/O, that Data I/O would
not enter into this Agreement if the Employee did not agree to covenants not to
compete or solicit and with respect to confidentiality and that damages
sustained by Data I/O as a result of a breach of such covenants cannot be
adequately remedied by money damages, and the Employee agrees that Data I/O,
notwithstanding any other provision of this Agreement , in addition to any other
remedy it may have under this Agreement or at law, shall be entitled to
injunctive and other equitable relief to prevent or curtail any breach of any
provision of this Agreement, including without limitation, paragraphs 7.2 or
7.3. The Employee acknowledges that the covenants in this Agreement are
reasonable and that compliance with such covenants will not prevent him from
pursuing his livelihood.
8. Other Conditions. As a condition of his employment hereunder
the following shall also apply as of the effective date of this Agreement:
8.1 Confidentiality and Intellectual Property Assignment
Agreement. The Employee has executed and delivered to Data I/O and will comply
with Data I/O's form of Confidentiality and Intellectual Property Assignment
Agreement.
8.2 Immigration Matters. The Employee has executed and
delivered to Data I/O the I-9 immigration form and is authorized to work in the
U.S. Data I/O will continue to use its reasonable efforts to assist Employee in
obtaining the required authorization to work in the U.S., including without
limitation, obtaining a L1A visa for the Employee and/or "Green Cards" for the
Employee and his family.
9. Notices. Every notice required by the terms of this Agreement
shall be given in writing by serving the same upon the party to whom it was
addressed personally, by courier, by facsimile transmission (with hard copy
delivered by overnight courier) or by registered or certified mail, return
receipt requested, at the address set forth below or at such other address as
may hereafter be designated by notice given in compliance with the terms hereof:
If to the Employee: Xxxxxx Xxxxxxx
If to Data I/O: Data I/O Corporation
00000 Xxxxxxx Xxxx X.X.
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: President
FAX: (000) 000-0000
CC: General Counsel
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Notice shall be effective upon personal delivery, delivery by courier, receipt
of facsimile transmission or three days after mailing.
10. Assignment. Neither of the parties shall assign or delegate or
in any way transfer any rights, interests or obligations hereunder without the
prior written consent of the other parties, except that the parties agree that
this Agreement: (A) shall be transferred or assigned by Data I/O to (i) an
entity resulting from any merger, consolidation or other reorganization to which
Data I/O is a party or (ii) a buyer of all or substantially all of Data I/O's
assets relevant to Data I/O's performance under this Agreement, whereupon such
assignee or transferee shall succeed to the rights and obligations of Data I/O
hereunder, and (B) may be transferred or assigned by Data I/O to any entity in
which Data I/O has a controlling interest or which is under common control with
Data I/O, whereupon such assignee or transferee shall succeed to the rights and
obligations of Data I/O hereunder. Subject to the foregoing restrictions, this
Agreement will be fully binding upon, inure to the benefit of, and be
enforceable by the parties hereto and their respective successors and permitted
assigns.
11. Waiver. No waiver of any of the provisions hereof shall be valid
unless in writing and signed by the party against whom such claim or waiver is
sought to be enforced. Failure to enforce any right hereunder shall not
constitute a continuing waiver of the same or a waiver of any other right
hereunder.
12. Amendments in Writing. No amendment, modification, waiver,
termination or discharge of any provision of this Agreement, nor consent to any
departure therefrom by either party hereto, shall in any event be effective
unless the same shall be in writing, specifically identifying this Agreement and
the provision intended to be amended, modified, waived, terminated or discharged
and signed by Data I/O and the Employee, and each such amendment, modification,
waiver, termination or discharge shall be effective only in the specific
instance and for the specific purpose for which it is given. No provision of
this Agreement shall be varied, contradicted or explained by any oral agreement,
course of dealing or performance or any other matter not set forth in an
agreement in writing and signed by Data I/O.
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13. Applicable Law and Attorneys' Fees. This Agreement shall be
governed by the substantive laws of the State of Washington, without regard to
its conflict of law provisions. The parties agree that the exclusive
jurisdiction and venue of any lawsuit between them shall be the state or federal
courts sitting in King County, Washington. In any action or proceeding brought
by any party against the other arising out of or relating in any way to this
Agreement, the most prevailing party shall, in addition to other allowable
costs, be entitled to an award of reasonable attorneys' fees.
14. Severability. In the event that any provision of this Agreement
shall be determined by any court or arbitrator of competent jurisdiction to be
unenforceable or otherwise invalid for any reason, including but not limited to,
the duration of such provision, its geographical scope or the extent of the
activities prohibited or required by it, such provision shall be enforced and
validated to the extent permitted by law, and the court or arbitrator shall have
the power to reform such provision to the extent necessary for such provision to
be enforceable under applicable law. All provisions of this Agreement are
severable, and the unenforceability or invalidity of any single provision hereof
shall not affect the remaining provisions.
15. Survival. Paragraphs 4.2 and 8.1 and Sections 5, 6, 7 and 9
through 17 shall survive the termination of Employee's employment with Data I/O
or the expiration of the Term.
16. Headings. All headings or titles in this Agreement are for the
purpose of reference only and shall not in any way affect the interpretation or
construction of this Agreement.
17. Complete Agreement. This Agreement comprises the entire
agreement between Data I/O and Employee with respect to his terms of employment
and supersedes and merges within it all prior agreements and understandings
between them concerning such employment, whether written or oral, express or
implied. In interpreting and construing this Agreement, the fact that either
party may have drafted this Agreement or any provisions hereof shall not be
given any weight or relevance.
IN WITNESS WHEREOF, the parties have entered into this Agreement as
of November 19, 1998.
DATA I/O CORPORATION EMPLOYEE:
By//S//XXXXX X. XXXXXX //S//XXXXXX XXXXXXX
Printed Name Xxxxx X. Xxxxxx Xxxxxx Xxxxxxx
Title President/CEO
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