Oryx Technology Corp.
Employment Agreement
Oryx Technology Corp. (the "Company"), a duly incorporated and existing
Delaware corporation, and Xxxxxxx X. Xxxxxxxx ("Xxxxxxxx" or "Executive"), an
individual residing in the State of California, hereby enter into this
Employment Agreement ("Agreement") on the date set forth below. Together,
Xxxxxxxx and the Company are the only parties hereto.
Whereas, Company desires to keep Xxxxxxxx as its President and Chief
Executive Officer ("CEO"); and
Whereas, Xxxxxxxx desires to continue as the Company's President and CEO
under the terms and conditions set forth below.
NOW THEREFORE, Xxxxxxxx and Company agree as follows.
ARTICLE 1
DEFINITIONS
1.1 "Base Salary" shall mean regular cash compensation paid on a periodic
basis, exclusive of benefits, bonuses or incentive payments.
1.2 "Board" shall mean the Board of Directors of the Company.
1.3 "Disability" shall mean occurrence of both of the following: (1) the
inability of Xxxxxxxx to perform the essential functions of his position under
this Agreement, with reasonable accommodation, because of physical or mental
incapacity, as reasonably determined by the Company after consultation with a
qualified physician selected by the Company; and (2) a determination by
Company's disability insurance carrier that Xxxxxxxx is entitled to long term
disability benefits.
ARTICLE 2
EMPLOYMENT, DUTIES AND TERM
2.1 Employment. Effective on the Term commencement date in Section 2.3
below, Company hereby retains Xxxxxxxx as the Company's President and CEO and
Xxxxxxxx hereby confirms his continuation in such employment positions. Xxxxxxxx
shall work out of the Company's San Jose, California offices (presently 0000
Xxxxxxx Xxxxxxxxxx, Xxxxx 000). Company shall not change the San Xxxx Area
location (including within commute distance thereof) of Xxxxxxxx'x employment
without Xxxxxxxx'x prior written consent.
2.2 Duties. Xxxxxxxx shall devote his primary attention and best efforts to
the Company and to fulfilling the duties of his position which shall include
such duties as may from time to time be assigned him by the Board. Xxxxxxxx
shall comply with the Company's policies
and procedures to the extent they are not inconsistent with this Agreement, in
which case the provisions of this Agreement shall prevail.
2.3 Term. This Agreement shall be effective for a two (2) year period
commencing on March 1, 2002 and ending on February 29, 2004, unless earlier
terminated pursuant to Article 4 of this Agreement (the "Term").
ARTICLE 3
COMPENSATION, EXPENSES AND BENEFITS
3.1 Base Salary. For services rendered under this Agreement from March 1,
2002 through the end of February 2004, the Company shall pay Xxxxxxxx a Base
Salary of $16,667 per month, in each case payable in accordance with Company's
normal payroll practices. All amounts payable to Xxxxxxxx under this Agreement
shall be reduced by such amounts as are required to be withheld by applicable
law.
3.2 Bonus/Additional Option Grants. Bonus or incentive compensation and
additional option grants, if any, shall be paid or granted to Xxxxxxxx in the
sole discretion of the Board.
3.3 Options. If, at February 29, 2004, Xxxxxxxx is still employed as the
Company's President & CEO or serves on the Company's Board of Directors, then
all unvested options which Xxxxxxxx holds in the Company shall automatically
vest. Notwithstanding the foregoing, none of the provisions of this Section 3.3
shall apply if Xxxxxxxx is terminated for Cause by the Company from his
positions as President and CEO as set forth below in Section 4.2.
3.4 Benefits. During the Term, the Company shall pay for Xxxxxxxx'x long
term health care insurance benefits up to a maximum of $90,000. The Company
shall also pay Xxxxxxxx'x other health insurance benefits on the same terms and
conditions as Company pays same for all other employees. Such benefits may
change from time to time or may be eliminated without notice by the Company.
3.5 Disability. If Xxxxxxxx shall become disabled while serving as
President and CEO during the Term of this Agreement, the Company shall continue
to pay Xxxxxxxx'x full salary during the Term.
3.6 Car Allowance. The Company shall lease or purchase an automobile for
Xxxxxxxx'x use which shall not exceed a purchase price of $65,000. (1) At the
end of February 2002, Xxxxxxxx shall have the right (a) to extend the lease of
his current automobile or (b) enter into a new lease for another automobile
and/or (2) (a) at the end of February, 2004 or (b) if earlier, the expiration or
termination of Xxxxxxxx'x employment, Xxxxxxxx shall have the right to purchase
any automobile then under lease by the Company for Xxxxxxxx'x benefit at 80% of
its average Blue Book value.
3.7 Business Expenses. The Company shall, in accordance with, and to the
extent of, its policies in effect from time to time, reimburse all ordinary and
necessary business expenses reasonably incurred by Xxxxxxxx in performing his
duties as an employee of the Company, including, without limitation, the use of
a cell phone, provided that Xxxxxxxx accounts promptly for such expenses to the
Company in the manner prescribed from time to time by the Company.
3.8 Vacation, Sick Leave. Xxxxxxxx shall be entitled to vacation and sick
leave according to the Company's standard policies and procedures.
3.9 Change of Control. During the Term hereof, if Xxxxxxxx is employed by
the Company at the time, upon the Company's acquisition by a third party or the
sale of all or substantially all of the Company's assets to a third party, all
of Xxxxxxxx'x unvested options for the Company's common stock, if any, shall
automatically vest. For purposes hereof, an acquisition by a third party shall
be deemed to occur when the Company is merged with or into a third party in a
merger or other form of business combination or reorganization such that the
Company's stockholders before such event do not control the resulting business
entity after such event. For these purposes, control shall mean Company's
stockholders before such event have either (x) majority voting control of the
resulting business entity after such event or (y) a contractual right under the
acquisition transaction documents to elect or designate a majority of the
resulting entity's Board of Directors after such event.
ARTICLE 4
EARLY TERMINATION
4.1 Early Termination. This Article 4 governs termination of this Agreement
at any time during the Term of this Agreement.
4.2 Termination for Cause. The Company may terminate this Agreement and
Xxxxxxxx'x employment only for "Cause" as that term is defined herein, upon
written notice to Xxxxxxxx.
4.2.1 "Cause" means any one of the following: (a) fraud, (b)
misrepresentation, (c) theft or embezzlement of the Company's
assets, (d) intentional violations of law involving moral
turpitude, (e) the continued failure by Xxxxxxxx to
satisfactorily perform his duties as reasonably assigned to
Xxxxxxxx pursuant to Section 2.2 of this Agreement for a period
of thirty (30) days after a written demand for such
satisfactory performance which specifically and with reasonable
detail identifies the manner in which it is alleged Xxxxxxxx
has not satisfactorily performed such duties, and (f) any
material breach of this Agreement.
4.2.2 In the event of termination for "Cause" pursuant to this
Section 4.2, Xxxxxxxx shall be paid his Base Salary and any
vacation and sick pay due through the date of termination
specified in any notice of termination. In such case, Xxxxxxxx
shall not be entitled to any additional compensation or
severance thereafter and Xxxxxxxx shall not receive the rights
set forth in Section 3.3, 3.4, 3.5, 3.6, and/or 3.9 above.
4.3 Termination Without Cause. This Section 4.3 shall not be applicable
where "Cause" for termination exists or in the event of Xxxxxxxx'x death or
Disability.
4.3.1 Xxxxxxxx may terminate this Agreement and Xxxxxxxx'x employment
at any time by giving at least 30 days' written notice to the
Company; provided, however, that the Company shall have the
option of making termination of this Agreement and termination
of Xxxxxxxx'x employment effective immediately upon the date of
such notice, in which case Xxxxxxxx shall be paid his Base
Salary through such 30 day notice period. If the notice of
termination is given by Xxxxxxxx pursuant to this Section
4.3.1, Xxxxxxxx shall be entitled to receive his Base Salary
through the date of termination and shall not be entitled to
any additional compensation or severance nor the benefits set
forth in Sections 3.3, 3.4, 3.5, and 3.6 above.
4.3.2 The Company may terminate this Agreement and Xxxxxxxx'x
employment at any time without "Cause" upon giving Xxxxxxxx at
least 30 days' written notice; provided, however, that in such
case, Xxxxxxxx shall be entitled to all the benefits for the
remainder of the Term of this Agreement to which he would
otherwise be entitled under Sections 3.1, 3.3, 3.4, 3.5, 3.6,
3.7 and 3.8 as if he were still employed at the Company as its
President and CEO and ended his employment on February 29,
2004.
4.4 Termination in the Event of Death. This Agreement and Xxxxxxxx'x
employment shall terminate immediately in the event of Xxxxxxxx'x death. In the
event of termination due to Xxxxxxxx'x death, the Company shall pay an amount
equal to the sum of six months Base Salary as a lump sum to Xxxxxxxx'x estate as
soon as practicable following the Company's receipt of notice of Xxxxxxxx'x
death. At Xxxxxxxx'x death, no further payments or other consideration shall be
made by the Company to Xxxxxxxx or his estate, including, without limitation,
the benefits set forth in Section 3.3,3.4,3.5, and/or 3.6.
4.5 Termination in the Event of Disability. The Company shall be entitled
to terminate this Agreement and Xxxxxxxx'x employment upon Xxxxxxxx'x
Disability. In the event of termination due to Xxxxxxxx'x Disability, Xxxxxxxx'x
Base Salary shall be paid from such Disability termination date to the earlier
to occur of (x) six months thereafter or (y) the last day of February 2004.
ARTICLE 5
PROPRIETARY INFORMATION/CONFLICT
OF INTEREST/NON-SOLICITATION
5.1 Proprietary Information. Xxxxxxxx shall keep confidential, except as
the Company may otherwise consent in writing, and not disclose or make any use
of except for the benefit of the Company, at any time either during or
subsequent to his employment by the Company, any Proprietary Information which
he may produce, obtain or otherwise acquire during the course of his employment.
As used herein, "Proprietary Information" shall include any trade secrets,
confidential information, knowledge, data, or other information of the Company
relating to its investments, customer lists, business plans, marketing plans and
strategies, and pricing strategies, or other subject matter pertaining to any
business of the Company for any of its clients, customers, consultants,
licensees or affiliates, which information is not in the public domain. In the
event of the termination of Xxxxxxxx'x employment for any reason whatsoever,
Xxxxxxxx shall promptly return all records, materials, equipment, drawings,
software and the like pertaining to or embodying any Proprietary Information.
Proprietary Information shall exclude any publicly available information.
5.2 Non-Solicitation of Company's Employees. Xxxxxxxx agrees that the
Company has invested substantial time and effort in assembling its staff and
personnel. Accordingly, Xxxxxxxx agrees that for a period of one (1) year after
termination of Xxxxxxxx'x employment for any reason, Xxxxxxxx shall not directly
or indirectly induce or solicit any of the Company's employees to leave their
employment or to become employed by any other entity nor shall Xxxxxxxx refer
any of the Company's employees to any other entity or person for purposes of
inducing or soliciting such employee(s) to leave the Company's employment or to
become employed by any other person or entity.
5.3 Assignment of Inventions. All of Xxxxxxxx'x right, title and interest
to any Covered Invention, as that term is defined below, that Xxxxxxxx makes or
conceives while employed by the Company, belongs to the Company. This Agreement
operates as a prospective assignment of all of those rights to the Company.
Xxxxxxxx agrees to execute such documents and provide such reasonable assistance
as may be necessary to perfect this assignment.
"Invention" means any idea, improvement, design, discovery or authored work
(whether software or other form), whether or not patentable or copyrightable, as
well as other newly discovered or newly applied information or concepts. An
Invention is a "Covered Invention" if it relates to the Company's actual or
anticipated business; or was developed in any part using the Company's resources
(time, supplies, equipment, facilities, or data); or if it results from or is
suggested by a task assigned to, or work performed for the Company by, Xxxxxxxx;
provided, however, if any term of this Section 5.3 shall be deemed unenforceable
under Cal. Labor Code ss. 2870, a copy of which is attached in Exhibit A, such
term shall be ineffective only to the extent of such unenforceability without
invalidating the remainder of any provision or the remaining provisions of this
Section 5.3.
5.4 Consent to Injunction. Xxxxxxxx agrees that the Company will or would
suffer an irreparable injury if Xxxxxxxx were to violate or threaten to violate
Section 5.1, Section 5.2, or Section 5.3 hereof and that the Company would, by
reason of such breach or threat of breach, be entitled to injunctive relief in a
court of appropriate jurisdiction and upon proof thereof, Xxxxxxxx hereby
stipulates to the entering of such injunctive relief.
5.5 Other Obligations. Xxxxxxxx acknowledges that the Company from time to
time may have agreements with other persons or with the U.S. Government, or
agencies thereof, which impose obligations or restrictions on the Company
regarding inventions made during the course of work thereunder or regarding the
confidential nature of such work. Xxxxxxxx agrees to be bound by all such
obligations and restrictions and to take all action necessary to discharge the
obligations of the Company thereunder.
5.6 Executive's Representations. Xxxxxxxx represents and warrants that his
employment by the Company does not and will not breach any agreement to keep in
confidence proprietary information, knowledge, or data acquired by Xxxxxxxx in
confidence or in trust prior to his employment with the Company, nor does it
breach any restrictive covenant or non-competition agreement. Xxxxxxxx will not
disclose to the Company, or induce the Company to use, any confidential or
proprietary information or material belonging to any previous employer or
others. Xxxxxxxx agrees not to enter into any written or oral agreement in
conflict herewith.
5.7 Conflict of Interest. During Xxxxxxxx'x employment with the Company,
Xxxxxxxx will engage in no activity or employment which will conflict with the
interests of the Company and will comply with the Company's policies and
guidelines pertaining to business conduct and ethics.
5.8 Survival of Obligations. The provisions of this Article 5 shall survive
termination of this Agreement and shall survive termination of Xxxxxxxx'x
employment.
ARTICLE 6
GENERAL PROVISIONS
6.1 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the successors and assigns of the Company and each subsidiary,
whether by way of merger, consolidation, operation of law, assignment, purchase
or other acquisition of all or substantially all of the assets or business of
the Company, and any such successor or assign shall absolutely and
unconditionally assume all of the Company's obligations hereunder. This
Agreement shall be binding upon and inure to the benefit of Xxxxxxxx, his
administrators, executors, legatees, and heirs. In that this Agreement is a
personal services contract, it shall not be assigned by Xxxxxxxx.
6.2 Notices. All notices, requests and demands made pursuant hereto shall,
except as otherwise specified herein, be in writing and delivered or mailed to
any such party at, if to Xxxxxxxx, his address as set forth in the Company's
personnel records, and, if to Company, at its headquarters. Either party may
change its address, by notice to the other party given in the manner set forth
in this Section 6.2. Any notice, if mailed properly addressed, postage prepaid,
registered or certified mail, shall be deemed dispatched on the registered date
or that date stamped on the certified mail receipt, and shall be deemed received
on the third business day thereafter or when it is actually received, whichever
is sooner.
6.3 Caption. The various headings or captions in this Agreement are for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
6.4 Governing Law/Forum. The validity, construction and performance of this
Agreement shall be governed by the laws of the State of California. The
exclusive forum for the litigation or arbitration of any dispute arising under
this Agreement shall be the appropriate state or federal court located in San
Jose, California.
6.5 Arbitration. Any dispute concerning the interpretation, construction,
breach or enforcement of this Agreement or arising in any way from Xxxxxxxx'x
employment with the Company or termination of such employment shall be submitted
to final and binding arbitration, which shall be specifically enforceable. Such
arbitration is to be conducted before a single arbitrator in Palo Alto,
California. The arbitration shall be conducted pursuant to the American
Arbitration Association ("AAA") Commercial Dispute Resolution Rules. Xxxxxxxx
and the Company agree that, except as provided in Section 5.1 or 5.2 herein, the
procedures outlined in this Section 6.5 are the exclusive method of dispute
resolution regarding this Agreement and Xxxxxxxx'x employment with the Company
or the termination thereof. No discovery shall be permitted in any arbitration
except an exchange of documents as may be ordered by the arbitrator.
6.6 Attorney Fees. If any action at law, in equity or by arbitration is
taken to enforce or interpret the provisions of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled, including fees and expenses on appeal.
6.7 Construction. Wherever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
6.8 Waivers. No failure on the part of either party to exercise, and no
delay in exercising, any right or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right or remedy granted hereby or by any related document or by law.
6.9 Modification. This Agreement may not be and shall not be modified or
amended except by written instrument signed by the parties hereto.
6.10 Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the parties as to its subject matter. This Agreement
supersedes, merges, and voids all prior agreements or understandings of the
parties with respect to the subject matter
hereof, whether oral or written, including but not limited to that employment
agreement for the period ending February 28, 2002.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
Oryx Technology Corp.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxx Xxxx
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Xxxxxxx X. Xxxxxxxx Xxx Xxxx
Chairman
Compensation Committee
EXHIBIT A
California Labor Code 2870
