AMENDED & RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "Agreement")
is made effective the 15th day of April, 2003, by and between OAK RIDGE
MICRO-ENERGY, INC., a Colorado corporation ("the Company"), and Xx. Xxxx X.
Xxxxx, a resident of the State of Tennessee ("Employee").
RECITALS:
WHEREAS, Oak Ridge is engaged in the business of developing,
manufacturing and marketing thin-film lithium ion batteries ("TFBs") and other
lawful business; and
WHEREAS, Employee has been instrumental in the acquisition by the
Company of Oak Ridge Micro-Energy, Inc., a Nevada corporation ("Oak Ridge
Nevada"), that was effective on January 15, 2002; and
WHEREAS, Employee has technical skills and expertise in the
thin-film battery industry; and
WHEREAS, the Company had previously contracted for Employee's
services in that certain agreement effective January 15, 2002, entitled
"Employment Agreement," and would like to replace that agreement with this
Agreement, essentially removing the termination bonus of Employee and adding
additional current compensation in the form of shares of common stock that
will be registered with the Securities and Exchange Commission on Form S-8;
and
WHEREAS, Employee is willing to be employed by the Company, on the
terms, covenants and conditions hereafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and
agreements hereinafter set forth, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto mutually agree as follows:
1. Employment. The Company hereby employs, engages and hires
Employee as Chief Technical Officer. Employee hereby accepts and agrees to
such hiring, engagement and employment. Employee shall perform such other
duties as are customarily performed by one holding such positions in other,
same or similar businesses or enterprises as that engaged in by the Company.
2. Best Efforts of Employee. Employee agrees that he will at
all times faithfully, industriously, and to the best of his ability,
experience and talents, perform all of the duties that may be required of and
from him pursuant to the express and implicit terms hereof, to the reasonable
satisfaction of the Company.
3. Term of Employment. The term of this Agreement shall
commence as of April 15, 2003, and continue indefinitely, until terminated as
provided herein.
4. Compensation of Employee. The Company shall pay Employee, and
Employee shall accept from the Company, in full payment for Employee's
services hereunder, the following compensation:
a. The Salary and/or consulting fees in the amount or amounts
approved by the Board of Directors, as and when deemed
warranted.
b. Such grants, stock options, warrants or other rights to
acquire securities of the Company that may be approved by
the Board of Directors, along with the right to participate
in any profit sharing, pension, incentive, bonus, stock
option or other compensatory plans of any type or nature
whatsoever that are adopted by the Company, in an amount
compensatory with the positions in which Employee serves
hereunder.
c. A grant of 65,000 shares of common stock of the Company
valued at the present average bid price of the Company's
common stock on the OTC Bulletin Board on the date hereof
that shall be registered for resale on Form S-8 of the
Securities and Exchange Commission on the execution and
delivery of this Agreement .
5. Other Employment. Employee warrants and represents that
during the term of this Agreement, he shall not work as an employee,
consultant or otherwise engage in business activities outside of the Company.
6. Trade Secrets. Employee shall not at any time or in any
manner, either directly or indirectly, divulge, disclose or communicate to any
person, firm, or corporation in any manner whatsoever any information
concerning any matters affecting or relating to the business of the Company,
including, without limiting the generality of the foregoing, any of its
customers or potential customers, the prices it obtains or has obtained from
the sale of, or at which it sells or has sold, its products, its designs,
design concepts, product plans, technology, business plans, contracts with
suppliers, customers or joint venturers, or any other information concerning
the business of the Company, its manner of operation, its plans, patent
applications, patents, processes or other data without regard to whether all
of the foregoing matters will be deemed confidential, material or important,
the parties hereto stipulating that as between them, the same are important,
material, and confidential and gravely affect the effective and successful
conduct of the business of the Company and the Company's good will. Any
violation of the terms of this Trade Secrets section shall be a deemed a
material breach of this Agreement.
All of the terms of this section (Trade Secrets) shall remain in
full force and effect for the period of three years after the termination of
Employee's employment for any reason, and during such three year period,
Employee shall not make or permit the making of any public announcement or
statement of any kind that he was formally employed by, or connected with, the
Company. Notwithstanding the foregoing, Employee shall not disclose to any
person, company or other entity, information deemed confidential to the
Company, for as long as such information remains confidential to the Company.
7. Covenant Not to Compete. As a material part of the
consideration of this Agreement, Employee agrees, for a period of two years
from the termination of this Agreement at any place:
a. Not to directly or indirectly engage or be employed in any
capacity in any business which is in any way competitive
with the business of the Company, whether as an employee,
officer, shareholder, consultant, advisor, partner or
otherwise; and
b. Not to consult with or advise any such business which is in
any way competitive with the business of the Company,
including, without limitation, the disclosure of customers
or other relations of the Company or its designs, design
concepts, works in progress, technology and business plans;
c. Not to solicit or receive, or attempt to solicit or receive,
directly or indirectly, for the benefit of Employee or any
other, any patronage from any customer or relation of the
Company, including any customer that may later cease being
serviced by the Company and new customers that the Company
may acquire during the period of this covenant.
Employee acknowledges that the above restrictions are necessary
and fair, and do not unduly limit his ability to be gainfully employed in the
event that this Agreement is terminated.
Employee acknowledges and agrees that because the Company
conducts, or will conduct, business internationally, and because its business
is not limited to any geographic region, this Covenant Not to Compete has
universal geographic application.
Nothing herein shall be deemed to prevent or limit the right of
the Employee to invest any of his own funds in the capital stock or other
securities of any corporation whose stock or securities are publicly owned or
are regularly traded on any public exchange, whether or not they are a
competitor of the Company.
Employee understands and agrees that a violation of this Covenant
Not to Compete section will be deemed a material breach of this Agreement.
8. Assignment of Intellectual Property. Employee agrees as
follows:
a. To assign, transfer and set over to Company, its successors
and assigns, all rights, title and interest in and to any
and all creations which are or may become legally
protectible or recognized as forms of property including all
designs, ideas, inventions, improvements, writings and other
works of authorship, theses, books, computer programs,
lectures, illustrations, photographs, motion pictures,
scientific and mathematical models, prints and any other
subject matter which is or may become legally protectible or
recognized as a form of property which Employee, either
solely or jointly with others, have conceived, made or
suggested, or may hereafter conceive, make or suggest,
during his employment by Company or its successors and the
six-month period next following the termination of such
employment, and which in any way relate directly or
indirectly to its business, procedural, technical or
commercial needs, problems, developments or projects or to
its production, research or experimental developments and
projects of every name and nature under consideration and/or
being carried on by or for Company prior to termination of
his employment or which in any way are likely to be of
benefit to the Company provided such designs, ideas,
inventions, improvements and other creations are originated,
created, developed or perfected (a) in the performance of
the general duties for which he is employed, or (b) with the
use of any time, material, or facilities of the Company, or
(c) which relate to any apparatus, machine, method,
composition, process or article of manufacture or method of
doing business within the scope of the Company 's field of
activity or of the same general character during his
employment including the subject matter of any
manufacturing, selling, testing, research, or experimental
activity.
b. To execute, acknowledge, make and deliver to Company or its
attorneys without additional compensation but without
expense to Employee, any and all instruments, including
United States and foreign patent applications, applications
for securing, protecting or registering any property rights
embraced within this agreement, powers of attorney,
assignments, oaths or affirmations, supplemental oaths and
sworn statements, and to do any and all lawful acts which in
the judgment of Company or its attorneys may be necessary or
desirable to vest in or secure for or maintain for the
benefit of Company adequate patent and other property rights
in the United States and all foreign countries with respect
to any and all such designs, ideas, inventions,
improvements, and other creations embraced within this
agreement, whether published or unpublished and whether or
not the subject of statutory industrial property or
copyright protection.
c. To disclose regularly to Company or its attorneys, any and
all such ideas, designs, inventions, improvements, and other
creations when conceived or made by Employee and to report
promptly to the Company all information of which Employee
may become aware during his employment and which may be of
benefit to the Company or which may prevent or minimize loss
by the Company and of which the Company may not otherwise
then have knowledge.
9. Special Remedies. Employee and the Company specifically
agree that the Company would suffer irreparable harm and shall be entitled to
injunctive or other extraordinary relief, without notice to Employee, and
without being required to furnish a bond, to protect the Company in the event
of any breach by Employee of the terms of sections 6 (Trade Secrets) and 7
(Covenant Not to Compete) of this Agreement, or the breach of any other term
or condition of the Agreement that threatens or causes irreparable harm to the
Company.
In the event that the Company ceases operations, or becomes
insolvent, or declares bankruptcy, and if Employee thereupon leaves the employ
of the Company, then, at that point in time, the terms of sections 6 (Trade
Secrets) and 7 (Covenant Not to Compete) of this Agreement shall become null
and void.
The Company shall make best efforts to acquire directors'
insurance for members of its board of directors, of which Employee is a
member. The Company indemnifies Employee against any and all legal action
taken by others against Employee in connection with his involvement with The
Company, until such time as directors' insurance is in place.
10. Complete Agreement. This Agreement contains the complete
agreement concerning the employment arrangements between the parties and
shall, as of the effective date hereof, supersede all other agreements between
the parties. Specifically, that certain agreement effective January 15, 2002
entitled "Employment Agreement" is hereby cancelled. The parties hereto
further acknowledge that any payments or representations that may have
heretofore been made by either of them to the other are of no effect and that
neither of them has relied thereon in connection with his dealings with the
other.
11. Modification of Agreement. No waiver or modification of
this Agreement or of any covenant, condition or limitation herein shall be
valid unless in writing and duly executed by the party to be charged
therewith, and no evidence of any waiver or modification shall be offered or
received in evidence of any proceeding, arbitration or litigation between the
parties hereto arising out of or affecting this Agreement, or the rights or
obligations of the parties hereunder, unless such waiver or modification is in
writing, duly executed as aforesaid, and the parties further agree that the
provisions of this section may not be waived except as herein set forth.
12. Termination.
a. This Agreement may be terminated by the Company upon fifteen
days prior written notice, with or without cause.
Notwithstanding any provision hereof to the contrary, in the
event of any material breach by Employee of any of the terms
of this Agreement, the Company thereon may terminate
Employee's employment without notice.
b. This Agreement may be terminated by Employee upon ninety
days prior written notice. The Company warrants that it
shall not take action against Employee in the event he
resigns from his position of employment with the Company so
long as Employee has not, and does not, violate the terms of
sections 6 (Trade Secrets) and 7 (Covenant Not to Compete)
of this Agreement.
13. Severability. All agreements and covenants contained herein
are severable, and in the event any of them shall be held to be invalid by any
competent court, this Agreement shall be interpreted as if such invalid
agreements or covenants were not contained herein.
14. Choice of Law and Forum. It is the intention of the parties
hereto that this Agreement and the performance hereunder and all suits and
special proceedings hereunder be construed in accordance with, and pursuant to
the laws of, the State of Utah, and that any action, special proceeding, or
other proceeding that may be brought arising out of, in connection with, or by
reason of, this Agreement, the laws of the State of Utah shall be applicable
and shall govern to the exclusion of the law of any other forum. The parties
further agree that jurisdiction and venue lies exclusively in the State of
Utah for any legal proceedings between the parties concerning this Employment
Agreement or involving the employment of Employee, and Employee waives any
objection to personal jurisdiction in the State of Utah.
15. Return of Company Property. Upon termination of Employee's
employment, Employee agrees to return to the Company all property of the
Company or any other affiliate or subsidiary of the Company of which he has
had custody and to deliver to the Company all paper or electronic documents,
notes, email, keys, credit cards, forms, contracts, notebooks and other data
relating to customers, inventions designed by him or her while employed by the
Company, and any personal property of the Company in Employee's possession at
the time of termination.
16. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been given if delivered in
person or sent by prepaid first-class registered or certified mail, return
receipt requested, as follows:
If to Employee: Xx. Xxxx X. Xxxxx
00 Xxxxxxx Xxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxx 00000
If to Oak Ridge: Xxxx Xxxxxxxxxx
0000 X Xxxxxxxx Xxxxx
XXX, Xxxx 00000
17. Keyman Insurance. The Company views Employee as key to its
success, and the loss of his services should he die or become disabled would
be extremely detrimental to the Company and its shareholders. Employee
therefore agrees to cooperate with the Company and execute a Keyman insurance
policy, with the Company as the beneficiary, should the policy be presented to
him.
IN WITNESS WHEREOF, the parties hereby agree to the terms of this
Agreement.
EMPLOYEE: THE COMPANY:
OAK RIDGE MICRO-ENERGY, INC.
By /s/ Xxxx X. Xxxxx, Ph.D. By /s/ Xxxx Xxxxxxxxxx
Chief Executive Officer &
President
Dated June 2, 2003 Dated May 28, 2003
