EMPLOYMENT AGREEMENT
AGREEMENT, dated as of the 1st day of May, 1997, between
Dataram Corporation (the "Company"), a New Jersey corporation,
and Xxxxxx X. Xxxxxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive presently serves as the President and
Chief Executive Officer of the Company, and
WHEREAS, the Company desires to continue to employ the
Executive on the terms and conditions set forth in this
Agreement, and
WHEREAS, the Executive is willing to accept continued
employment with the Company on such terms and conditions; now,
therefore,
IN CONSIDERATION of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
SECTION 1. TERM OF EMPLOYMENT.
The Company will employ the Executive, and the Executive
hereby accepts employment by the Company, on the terms and
conditions contained in this Agreement for the period commencing
upon May 1, 1997 and ending April 30, 2002. If not terminated as
of April 30, 2002, the term of the Executive's employment under
this Agreement (the "Term") will continue thereafter on a year to
year basis, subject to the respective rights of the Executive and
the Company to terminate the Term pursuant to Section 5 below.
SECTION 2. DUTIES.
2.1 Positions. During the Term, the Executive shall
serve as the company's President and Chief Executive Officer,
with such additions to the scope of the duties of his employment
within the Company's field of operations or those of the
Company's subsidiaries or affiliated corporations as the Board of
Directors and the Executive may agree.
2.2 Time. The Executive shall devote the majority of
his time, energy and skill during regular business hours to the
affairs of the Company and its subsidiaries and affiliated
corporations and to the promotion of their interests, provided
that the Executive may serve as a director of such business and
not-for-profit corporations, and as a principal of business and
other ventures, as the Board of Directors shall permit in its
discretion.
SECTION 3. CURRENT COMPENSATION.
3.1 Base Compensation. During the Term, the Company
shall pay the Executive a salary at the rate of $252,000 per
annum, payable in equal installments in accordance with the
Company's normal practices for payment of executives. The
Executive's salary shall be reviewed by the Board of Directors of
the Company annually on its anniversary date commencing as of May
1998. Any increases
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in salary shall be at the sole discretion of the Board of
Directors.
3.2 Bonus Compensation. The Executive will also be
entitled to bonus compensation based upon a formula which shall
be reviewed and approved by the Board of Directors annually on
its anniversary date commencing as of May 1997.
3.3 Reimbursement for Expenses. During the Term, the
Company will reimburse the Executive for all documented expenses
properly incurred by the Executive in the performance of the
Executive's duties under this Agreement.
3.4 Stock Options. Based upon performance, the Company
will consider the Executive for additional options under any
Stock Option Plan in effect for the benefit of executives of the
Company. All such options as may be granted shall be evidenced
by written Option Agreements.
3.5 Other Benefits. In addition to the benefits
specified in Sections 3.1 through 3.4, during the Term the
Executive will be entitled to participate in any present and
future life insurance, disability insurance, health insurance,
pension, retirement and similar plans adopted by the Company for
the general and overall benefit of its employees or its principal
executives.
SECTION 4. NONASSIGNABILITY OF BENEFITS.
No benefit under the Agreement shall be subject in any
manner to anticipation, alienation, sale, transfer or assignment
by the
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Executive, his beneficiaries or his estate, nor shall any benefit
in any manner by liable for or subject to attachments or legal
process for or against the Executive, his beneficiaries or his
estate.
SECTION 5. TERMINATION OF AGREEMENT.
5.1 Termination Generally. This Agreement, and all
liabilities and obligations of the Company to the Executive under
this Agreement, shall cease and terminate upon the earliest of
the events specified below, provided that such termination shall
not effect the right of the Executive or his estate or
beneficiaries to receive any salary or bonus accrued but unpaid,
and shall not affect any vested rights which the Executive may
have at the time of his death pursuant to any insurance or other
death benefit plans or any other plans, policies or arrangements
of the Company or any of its subsidiaries or affiliated
corporations:
(a) Expiration of the Term (including any
continuation thereof) upon written notice of non-renewal by the
Company to the Executive or by the Executive to the Company at
least three months prior to any expiration date;
(b) the disability of the Executive, to such an
extent that he shall be unable to perform the functions of his
office for a continuous period of 6 months or such longer period
as the Board of Directors shall
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determine;
(c) the death of the Executive, subject to Section
5.3;
(d) the date of termination for cause as discussed
in Section 5.2
5.2 Termination for Cause. Anything herein to the
contrary notwithstanding, the Company may terminate the Term and
all of the company's then remaining obligations hereunder by
termination for cause. Termination by the Company for "cause"
shall mean termination by action of the Company's Board of
Directors because of the Executive's willful disregard of his
obligations as Chief Executive Officer which he should reasonably
have expected to have a material adverse effect upon the Company.
5.3 Death. If the Executive dies during the Term, the
Executive's estate shall be entitled to receive the base
compensation provided in Section 3.1 at the then current rate to
the last day of the 6th month after his death occurs together
with the POP bonus for any fiscal year which concludes during
that 6 month period. If a fiscal year does not conclude during
such 6 months, the Executive's estate shall be entitled to a
bonus for the year of his death prorated according to the number
of months in such year through the 6th month of the Executive's
death.
5.4 Termination by Executive. The Executive may
terminate this Agreement upon three months notice.
5.5 Post-Termination Compensation in the Event of a
Change of Control. Anything herein to the contrary
notwithstanding, if
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within one year of a change in control of the Company in a
transaction or occurrence, or a related series of transactions or
occurrences, resulting from a material change in ownership of
Common Stock and evidenced by cessation in service as directors
of a majority of those persons theretofore serving as members of
the Board, a notice of termination is given to the Executive in
breach of this Agreement or a notice of non-renewal is given
pursuant to 5.1(a) to the Executive or given by the Executive
then the Company will pay the Executive the greater of (1)
damages for breach of this Agreement if a breach has occurred or
(2) one year's base salary at the then current rate together with
one year's bonus determined by averaging the Executive's bonus
for each of the three fiscal years preceding the year of
termination. Such greater amount shall be considered to be a
severance payment and shall relieve the Executive and the Company
of all obligations hereunder except the Executive's covenants in
Section 6, 7 and 8.
SECTION 6. CONFIDENTIALITY.
During the Term of this Agreement and for three years
thereafter Executive will not disclose information concerning the
Company's affairs, including undisclosed financial information,
products, the identity of suppliers and the identity of
customers, which a reasonable man would consider confidential and
as to which the Executive has obtained specific knowledge during
the Term of this Agreement and which is otherwise unknown to the
public.
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SECTION 7. ASSIGNMENT AND DISCLOSURE OF INVENTIONS.
7.1 For purposes of this Agreement, the term "Restricted
Inventions" means all inventions, discoveries, improvements or
modifications to inventions or discoveries, whether patentable or
not, which are conceived of, reduced to practice, or both
conceived of and reduced to practice, by the Executive at any
time during the Term of the Agreement and which are used or
useful by the Company in any of its lines of business.
7.2 The Executive will disclose any Restricted Invention
promptly to the Company and the Executive hereby assigns the
Company all rights to any Restricted Invention. The Executive
will sign all documents necessary for the Company to apply for
and obtain domestic and foreign patents for Restricted
Inventions. The obligations of the Executive to sign such
documents will continue beyond the Term of the Agreement with
respect to Restricted Inventions, discoveries and improvements,
whether patentable or not, conceived or made by the Executive
during the Term of the Agreement.
SECTION 8. COMPETITION AND POST EMPLOYMENT RESTRICTED.
During the Term of this Agreement and for two years after
the period during which the Company is making payments to the
Executive pursuant to the terms of this Agreement, without the
prior written consent of the Company in each case, the Executive
will not directly or indirectly: (a) make any public statement
or
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disclosures inconsistent with his duties to advance the business
and interests of the Company, (b) engage in research, scientific
investigation, employment or consulting as an officer, director,
employee, consultant or individual in any capacity whatsoever in
any enterprise (whether or not for profit) in substantial
competition with, the business of the Company, its successors or
affiliates; or (c) solicit employees of the Company in connection
with any business, whether or not in competition with the
Company.
SECTION 9. SEVERABILITY.
If any provision of this Agreement shall, for any reason, by
adjudged by any court of competent jurisdiction to be invalid or
unenforceable, such judgment shall not affect, impair or
invalidate the remainder of this Agreement but shall be confined
in its operation to the provision of this agreement directly
involved in the controversy in which such judgment shall have
been rendered.
SECTION 10. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the
benefit of the Company, its successors and assigns and shall be
binding upon and inure to the benefit of the Executive and his
heirs, executors, administrators, legal representatives and
assigns.
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SECTION 11. NOTICES.
All notices, requests, demands and other communications
hereunder must be in writing and shall be deemed to have been
duly given if mailed by first class certified mail, return
receipt requested, postage prepaid, addressed as follows:
(a) to the Executive:
Xxxxxx X. Xxxxxxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
(b) to the Company:
Dataram Corporation
P. O. Xxx 0000
Xxxxxxxxx, Xxx Xxxxxx 00000
with a copy to:
Xxxxxx X. Xxxxx, Esq.
Xxxxxx, Xxxxx & Xxxxxx
00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Either party by notice in writing mailed to the other as
hereunder provided may change the address to which future notices
to such party shall be mailed.
SECTION 12. MISCELLANEOUS.
This Agreement shall be construed and enforced in accordance
with, and governed by, the laws of the State of New Jersey. This
Agreement embodies the entire agreement and understanding between
the Company and the Executive and supersedes all prior agreements
and understandings relating to the subject matter hereof except
for written obligation relating to the stock option and benefit
plan.
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This Agreement may not be modified or amended or any term or
provision thereof waived or discharged except in writing signed
by the party against whom such amendment, modification, waiver or
discharge is sought to be enforced. The headings of this
Agreement are for the purpose of reference only and shall not
limit or otherwise affect the meaning thereof.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this agreement as of the day and year first above
written.
DATARAM CORPORATION
XXXX X. XXXXXXXX
By:______________________
XXXX X. XXXXXXXX,
Vice President of Finance
XXXXXX X. XXXXXXXXX
_________________________
XXXXXX X. XXXXXXXXX
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