Exhibit 10.35
EMPLOYMENT AGREEMENT
AGREEMENT dated as of September 30, 1994 between CIDCO Incorporated, a
Delaware corporation (the "Company"), and Xxxxxxx Xxxxxx (the "Employee").
WHEREAS, the Employee has been a key employee of the Company; and
WHEREAS, the Company is engaged in a highly technical and competitive
business.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, receipt of which is hereby
acknowledged, the parties, intending to be legally bound, agree as follows:
1. Employment and Term.
The Company hereby agrees to employ the Employee during the period
commencing as of the date hereof and continuing until this Agreement is
terminated pursuant to the terms hereof, to serve as Vice President, Business
Development - Telephone Companies of the Company and in such other executive
managerial position or positions with the Company or its subsidiaries or
affiliates as shall hereafter be designated by the Board of Directors of the
Company, to perform such managerial duties consistent with the usual duties of
an officer of his status. Such employment shall, except as otherwise stated
herein, be on the same terms and conditions as Employee is currently employed by
the Company. The Employee hereby accepts such employment and agrees to devote
his full business time exclusively to the faithful and diligent performance of
the duties provided herein and agrees in connection with the performance of such
duties to act in a manner consistent with the primary objective of maximizing
the profitability of the Company.
2. Compensation.
(a) Salary. The Company shall compensate the Employee with a base
salary of at least $52,000 (representing the Employee's base salary for 1994),
subject to annual review by the Company's Compensation Committee, with a minimum
annual increase in 1995 and subsequent years to reflect the percentage increase
in the cost of living during the preceding year as reflected in the All Items
Consumer Price Index for all urban consumers in the San Francisco-Oakland-San
Jose, California area as published by the United States Bureau of Labor
Statistics. Payment shall be made in 26 installments. In addition to the
Employee's base salary, the Company may also compensate the Employee with
commission and other bonuses in such amounts as the Company and the Employee may
from time to time agree.
(b) Benefits. The Employee shall be entitled to participate in such
pension plans, 401(k) plans, group health, accident or life insurance plans,
group medical and hospitalization plans, stock option plans, stock purchase
plans and other similar benefits, as may hereafter be available to the
executives of the Company. It is understood that, except as set forth herein,
the Company does not by reason of this Agreement obligate itself to make such
benefits available to its employees.
(c) Expenses. The Company shall pay or reimburse the Employee for all
expenses normally reimbursed by the Company and reasonably incurred by him in
furtherance of his duties hereunder including, without limitation, expenses for
traveling, meals, hotel accommodations and the like upon submission by him of
vouchers or an itemized list thereof prepared in compliance with such rules
relating thereto as the Board may, from time to time, adopt and as may be
required in order to permit such payments as proper deductions to the Company
under the Internal Revenue Code of 1986, as amended, and the rules and
regulations adopted pursuant thereto now or hereafter in effect.
(d) Vacations. During each year of employment (including the current
year ending December 31, 1994), the Employee shall be entitled to paid vacations
for an aggregate of the greater of (A) two weeks, or (B) such period as may be
provided from time to time in the Company's vacation policy. The Company shall
not pay the Employee any additional compensation for any vacation time not used
by the Employee.
3. Termination.
(a) This Agreement shall be terminated upon the happening of any of the
following events: (i) whenever the Company or the Employee shall give written
notice terminating this Agreement; (ii) upon the death of the Employee; or (iii)
upon the Permanent Disability (as such term is defined in Section 3(d) hereof)
of the Employee.
(b) In the event that the Employee's employment with the Company is
terminated by the Company without Cause (as defined in Section 3(c) hereof) or
is terminated by the Employee for Good Reason (as defined in Section 3(e)
hereof), then for a period of six months following the date his employment is so
terminated, the Employee shall continue to receive compensation payments in
amounts pro-rated over such six month period which in the aggregate equal the
total of all salary, commission and bonus compensation received by the Employee
during the six month period immediately prior to the date of such termination,
plus all other benefits to which the Employee is entitled pursuant to Section
2(b) hereof (including, without limitation, continuation of the Employee's
participation in the Company's pension, 401(k) plan, insurance, medical, stock
option, stock purchase and other benefit plans as if the Employee's employment
continued throughout such six month period), provided, however, that if during
such sic month period the Employee obtains reasonably comparable employemnt with
another employer, then the Employee's continuing compensation payments hereunder
shall cease upon the date of commencement of such comparable employemtn (but the
Employee's right to continued participating in Company benefits shall
nevertheless continue until the end of such six month period).
(c) For purposes hereof, "Cause" shall mean any of the following: (i)
the intentional failure, neglect or refusal of the employee to substantially
fulfill his material duties as an employee; (ii) a material breach of any
fiduciary duty or other material dishonesty by the employee with respect to the
Company or any affiliate thereof resulting in actual material harm to the
Company or such affiliate; or (iii) the conviction of the employee for a
fraudulent act or felony.
(d) For purposes hereof, "Permanent Disability" shall mean the total
incapacitation of the Employee so as to preclude performance of the duties of
his employment hereunder for an aggregate period of four months in any twelve
month period.
(e) For purposes hereof, "Good Reason" shall exist if the company
shall: (i) be in breach of or default under any material provision of this
Agreement and not cure such breach within 30 days of receiving notice of such
breach from the Employee; (ii) change the principal work location of the
Employee without the consent of the Employee, which consent may be withheld by
the Employee for any reason; (iii) materially change the duties of the Employee
without the Employee's consent, which consent may be withheld by the Employee
for any reason; (iv) reduce the Employee's base salary or benefits without the
Employee's consent, which consent may be withheld by the Employee for any
reason; or (v) become insolvent or bankrupt or file a voluntary or involuntary
petition in bankruptcy or make an assignment for the benefit of creditors or
consent to the appointment of a trustee or receiver.
4. Noncompetition and Nonintervention.
(a) While in the employ of the Company, the Employee agrees to devote
substantially all of his entire time, attention and energies to the performance
of the business of the Company and the Employee shall not, directly or
indirectly, alone or as a member of any partnership or other business
organization, or as a partner, officer, director, employee, stockholder,
consultant or agent of any other corporation, partnership or other business
organization, be actively engaged in or concerned with any other duties or
pursuits which interfere with the performance of his duties as an Employee of
the Company, or which, even if noninterfering, may be contrary to the best
interests of the Company.
(b) For a period of one year after the termination or cessation of the
Employee's employment with the Company for any reason (including termination of
employment by the Company without Cause), the Employee shall not, directly or
indirectly, alone or as a member of any partnership or other business
organization, or as a partner, officer, director, employee, stockholder,
consultant or agent of any corporation, partnership or business organization,
engage in any business activity which is directly or indirectly in competition
with the products or services being developed, manufactured, marketed, provided
or sold by the Company or which is directly or indirectly detrimental to the
business of the Company. For a period of eighteen months after the termination
or cessation of the Employee's employment with the Company for any reason
(including termination of employment by the Company without Cause) the Employee
shall not, directly or indirectly, alone or as a member of any partnership or
other business organization, or as a partner, officer, director, employee,
stockholder, consultant or agent of any corporation, partnership or business
organization (i) request or cause any customer of the Company to cancel or
terminate any business relationship with the Company, or (ii) solicit or
otherwise cause any employee of the Company to terminate such employee's
relationship with the Company. For the purposes of this Section 4(b), a business
shall be deemed to be in competition with the Company only if the products or
services of such business are substantially similar in function or capability to
the products or services then being developed, manufactured, marketed, provided
or sold by the Company, and are marketed to substantially the same type of user
as that to which the products and services of the Company are marketed or
proposed to be marketed.
5. Confidential Information.
(a) The Employee will not at any time, whether during or after the termination
or cessation of his employment, reveal to any person, association or company any
of the trade secrets or confidential information concerning the organization,
business or finances of the Company so far as they have come or may come to his
knowledge, except as may be required in the ordinary course of performing his
duties as an employee of the Company or except as may be in the public domain
through no fault of the Employee, and the Employee shall keep secret all matters
entrusted to him and shall not use or attempt to use any such information in any
manner which may injure or cause loss or may be calculated to injure or cause
loss whether directly or indirectly to the Company.
(b) The Employee agrees that during his employment he shall not make,
use or permit to be used any notes, memoranda, drawings, specifications,
programs, data or other materials of any nature relating to any matter within
the scope of the business of the Company or concerning any of its dealings or
affairs otherwise than for the benefit of the Company. The Employee shall not,
after the termination or cessation of his employment, use or permit to be used
any such notes, memoranda, drawings, specifications, programs, data or other
materials, it being agreed that any of the foregoing shall be and remain the
sole and exclusive property of the Company and that immediately upon the
termination or cessation of his employment the Employee shall deliver all of the
foregoing, and all copies thereof, to the Company, at its main office.
6. Patent and Copyright Assignment.
The Employee agrees to assign and transfer to the Company or its
designee, without any separate remuneration or compensation, his entire right,
title and interest in and to all Inventions and Works in the Field (as
hereinafter defined), together with all United States and foreign rights with
respect thereto, and at the Company's expenses to execute and deliver all
appropriate patent and copyright applications for securing United States and
foreign patents and copyrights on such Inventions and Works, and to perform all
lawful acts, including giving testimony, and to execute and deliver all such
instruments, that may be necessary or proper to vest all such Inventions and
Works in the Field and patents and copyrights with respect thereto in the
Company, and to assist the Company in the prosecution or defense of any
interference which may be declared involving any said patent applications or
patents or copyright applications or copyrights. For the purposes of this
Agreement, the words "Inventions and Works" shall include any discovery,
process, design, development, improvement, application, technique, program or
invention, whether practice or not, conceived or made by the Employee,
individually or jointly with others (whether on or off the Company's premises or
during or after normal working hours) while in the employ of the Company,
provided, however, that no discovery, process, design, development, improvement,
application, technique, program or invention reduced to practice or conceived by
the Employee off the Company's premises and after normal working hours shall be
deemed to be included in the term "Inventions and Works" unless directly or
indirectly related to the business then being conducted by the Company or any
business which the Company is then actively exploring (collectively, the
"Field").deemed cumulative and the exercise of one shall not preclude the
exercise of any other remedy at law or in equity for the same event or any other
event.
7. Binding Effect.
This Agreement shall inure to the benefit of and shall be binding upon the
parties hereto and the Company's successors or assigns (whether resulting from
any reorganization, consolidation or merger of the Company or any business to
which all or substantially all of the assets of the Company are sold) and the
Employee's heirs, executors and legal representatives.
8. Entire Agreement
This Agreement contains the entire agreement and understanding of the
parties with respect to the subject matter hereof, supersedes all prior
agreements and understandings with respect thereto and cannot be modified,
amended, waived or terminated, in whole or in part, except in writing signed by
the party to be charged.
9. Right to Injunction.
The Employee acknowledges and agrees that the services rendered and to
be rendered to the Company by him are of a specialized and unique character and
that irreparable and immediate damage will result to the Company if Employee
fails to, refuses to or neglects to perform his agreements and obligations
hereunder. In the event of such a failure, refusal or neglect by the Employee,
the Company shall be entitled to injunctive relief or any other legal or
equitable remedies including the recovery, by appropriate action, of the amount
of the actual damage caused by the Company by any such failure, refusal or
neglect by the Employee. The remedies provided in this Agreement shall be deemed
cumulative and the exercise of one shall not preclude the exercise of any other
remedy at law or in equity for the same vent or any other event.
10. Miscellaneous
(a) Amendments. No amendment, modification or waiver of any of the
terms of this Agreement shall be valid unless made in writing and signed by the
Employee and the Company.
(b) Successors in Interest. All provisions of this Agreement shall
survive the termination or cessation of the Employee's employment with the
Company and shall be binding upon and inure to the benefit of and be enforceable
by and against the respective heirs, executors, administrators, personal
representatives, successors and assigns of either of the parties to this
agreement.
(c) Waiver. The waiver by the Company of a breach of this Agreement by
the Employee shall not operate or be construed as a waiver of any subsequent
breach by the Employee.
(d) Severability. If any provision of this Agreement shall contravene
any law or any particular state where the Employee shall perform services for
the Company, then this Agreement shall be first construed to be limited in scope
and duration so as to be enforceable in that state, and if still unenforceable,
shall then be construed as if such provision is not contained herein.
(e) Governing Law. This Agreement shall be governed by the laws of the
State of New York without regard to the conflict of laws principles thereof.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, and by each party on separate counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
/s/___________________________
Xxxxxxx Xxxxxx
CIDCO INCORPORATED
By:/s/___________________________
Xxxx X. Xxxxxxx
President
