EXHIBIT 10.20
EI CORPORATION
EMPLOYMENT AGREEMENT
This Agreement is made and entered into as of JANUARY 24, 2000 ("Effective
Date"), by and between ei Corporation, a California corporation (the "Company"),
and Xxxx Xxxx Xxx ("Employee").
The Company desires to employ Employee, and Employee desires to be employed by
the Company, on the terms and conditions of this Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. EMPLOYMENT; DUTIES.
1.1 EMPLOYMENT. The Company hereby employs Employee, and Employee hereby
accepts such employment on the terms and conditions set forth herein.
Employee's employment will be in the capacity of CHIEF EXECUTIVE
OFFICER OF EI CORPORATION, A WHOLLY OWNED SUBSIDIARY OF AGATE
TECHNOLOGIES, INC. In such capacity, Employee shall be responsible FOR
SALES AND MARKETING, FINANCIAL PLANS, BUSINESS DEVELOPMENT, SALES
LOGISTICS AND SUPPORT IN ACCORDANCE WITH EI'S BUSINESS PLANS AND
OBJECTIVES. EMPLOYEE SHALL ALSO DEVELOP AND OVERSEE EI'S STRATEGIC
MARKETING PLANS IN ACCORDANCE WITH ITS FINANCIAL OBJECTIVES AND
PROFITABILITY TARGETS. EMPLOYEE SHALL DILIGENTLY EXECUTE THOSE
RESPONSIBILITIES DELEGATED TO EMPLOYEE FROM TIME TO TIME BY THE
CHAIRMAN & CEO OF ITS PARENT COMPANY, AGATE TECHNOLOGIES,
INC.(DELAWARE) AND SHALL COMPLY WITH ALL RULES AND POLICIES OF THE
COMPANY ADOPTED BY ITS BOARD OF DIRECTORS.
1.2 DEDICATION OF SERVICE; CONFLICTS. Employee agrees that, during the
term of this Agreement, Employee will devote his full efforts and time
to the business of the Company. The foregoing, however, shall not
preclude the Employee, outside normal business hours, from engaging in
other appropriate civic or charitable activities, as long as such
activities do not interfere or conflict with his responsibilities to
the Company.
1.3 COMPETING ACTIVITIES. Employee agrees that, during the term of this
Agreement, Employee will not, unless acting pursuant to this Agreement
or with the prior written consent of the Board of Directors of the
Company, participate in the ownership, management, control, operation
or financing of any business or enterprise that is or expects to
become directly competitive with any business conducted by the Company
or any of its affiliates.
Employee hereby undertakes that, except with the prior written consent
of its parent company Agate Technologies, Inc., Employee will not
either by himself or in conjunction with or on behalf of any person,
firm, company or organization during a period of twelve
months after the date of termination of his employment with ei
Corporation (the "Termination Date") do any of the following:
(i) solicit or entice away or attempt to solicit to entice away from
Agate Technologies, Inc., its subsidiaries and affiliates the
custom of the following:
a) any person, firm, company or organization who shall at any
time within one year prior to the Termination Date have been
a customer or client of Agate Technologies, Inc., its
subsidiaries and affiliates or otherwise in the habit of
dealing with Agate Technologies, Inc., its subsidiaries and
affiliates or
b) any person, firm, company or organization who shall at any
time have been a customer or client of Agate Technologies,
Inc., its subsidiaries and affiliates or otherwise in the
habit of dealing with Agate Technologies, Inc., its
subsidiaries and affiliates and who has had contact with
Employee in such capacity at any time within two years prior
to the Termination Date; or
(ii) be employed by, act as agent of, or otherwise provide services to
(as independent contractor or otherwise) any of the following:
a) any person, firm, company or organization who shall at any
time within one year prior to the Termination Date have been
a customer or client of Agate Technologies, Inc., its
subsidiaries and affiliates or otherwise in the habit of
dealing with Agate Technologies, Inc., its subsidiaries and
affiliates or
b) any person, firm, company or organization who shall at any
time have been a customer or client of Agate Technologies,
Inc., its subsidiaries and affiliates or otherwise in the
habit of dealing with either Agate Technologies, Inc., its
subsidiaries and affiliates and who has had contact with you
in such capacity at any time within two years prior to the
Termination Date; or
c) any person, firm, company or organisation in competition
with either Agate Technologies, Inc., its subsidiaries and
affiliates.
2. COMPENSATION.
2.1 FIXED COMPENSATION. As compensation for the services rendered by
Employee under this Agreement, Employee shall be entitled to a Fixed
Compensation of US$78,000.00 per year, payable bi-weekly.
2.2 HOUSING. The Company shall provide acceptable accommodations for
Employee during the period of the employment or reimburse Employee for
the expenses incurred. Such expenses are not to exceed US$2,000 per
month.
2.3 STOCK OPTION PLAN. Employee will be able to participate in its parent
company Agate Technologies, Inc.'s ------------------ stock option
plan subject to approval from the Board of Directors. Upon
commencement of employment, Employee will be eligible to a stock
option grant to acquire 100,000 SHARES of the AGATE TECHNOLOGIES,
INC.'S common stock, exercisable at the fair market value as
determined by the Board of Directors on the Date of Grant. 25% of the
total number of options granted will vest on the first anniversary of
the commencing date of your employment, with monthly vesting
thereafter such that the remaining options will become fully vested by
the fourth anniversary of your date of hire. Any such option will be
on Agate Technologies, Inc.'s standard terms, including expiration
date and vesting.
Further, employee will be entitled to an additional stock option grant
of 100,000 shares of Agate Technologies, Inc. common stock,
exercisable at the fair market value as determined by the Board of
Directors on the Date of Grant. This stock option grant will be vested
subject to employee having met the Performance Plan and Objectives as
outlined by the Chairman and CEO of Agate Technologies, Inc.,
Delaware. The vesting schedule for these stock options will be as
follows:
On or about September 30, 2000: 50,000 stock options will vest subject
to the employee having achieved the business and financial objectives
established for ei corporation for the period ended September 30,
2000.
On or about March 30, 2001: 50,000 stock options will vest subject to
the employee having achieved the business and financial objectives
established for ei corporation for the period ended March 30, 2001.
2.4 EMPLOYEE BENEFITS. Employee shall be eligible to participate in the
Company's health and dental insurance and employee benefits that are
applicable to similarly situated employees of the Company. Such
eligibility shall be subject in each case to the generally applicable
terms and conditions of the plan or program in question and to the
determination of any committee administering such plan or program.
2.5 TAXES. All compensation paid pursuant to this Section 2 shall be
subject to all applicable federal, state and local taxes, including,
without limitation, income tax and other employment taxes required to
be with held with respect to compensation paid by a corporation to an
employee.
3. TERM AND TERMINATION.
3.1 AT WILL EMPLOYMENT. THE COMPANY AND THE EMPLOYEE ACKNOWLEDGE THAT THE
EMPLOYEE'S EMPLOYMENT IS AT WILL ------------------- AND
CAN BE TERMINATED BY EITHER PARTY AT ANY TIME WITH OR WITHOUT CAUSE.
If the Employee's employment terminates for any reason, with or
without cause, the Employee shall not be entitled to any payments,
benefits, damages, awards or compensation other than as provided in
this Agreement.
3.2 SEVERANCE BENEFITS. The Employee shall not be entitled to receive
severance benefits or other benefits upon termination of employment
for any reason.
4. CONFIDENTIALITY. The Employee shall be subject to all terms set out in the
Company's standard Employee Confidential Information and Intellectual
Property Agreement, attached as Exhibit 1.
5. NOTICE. Any notice or other communication hereunder shall be in writing and
shall be deemed given and effective (i) when delivered personally, by
facsimile, or by overnight courier service, or (ii) three (3) days after
the postmark date if mailed by certified or registered mail, postage
prepaid, return receipt requested, addressed to a party at its address
stated below its signature hereto or to such other address as such party
may designate by written notice to the other party in accordance with the
provisions of this Section.
6. MISCELLANEOUS.
6.1 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto relating to the subject matter hereof and
supersedes all prior oral and written and all contemporaneous oral
negotiations, commitments and understandings of the parties with
respect to Employee's work for the Company.
6.2 AMENDMENT. This Agreement may not be changed or amended except by a
writing executed by both parties ---------- hereto.
6.3 BENEFIT; ASSIGNMENT. This Agreement shall inure to the benefit of the
Company and shall be binding upon the Company and Employee and their
respective successors and assigns (to the extent this Agreement is
assignable). Employee may not assign this Agreement without the prior
written consent of the Company.
6.4 GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California,
excluding conflict of law rules and principals.
6.5 MEDIATION AND ARBITRATION. The Employee and the Company agree in the
first instance to attempt in good faith to resolve by mediation any
dispute arising out of or relating to this Agreement, including issues
related to the interpretation, performance or breach of this
Agreement. Either party may initiate a mediation proceeding by a
request in writing to the other party. Thereupon, both parties will be
obligated to engage in a mediation.
If such mediation proceeding does not result in resolution of the
dispute, the Employee and the Company agree that the dispute shall be
decided by binding arbitration by a three arbitrator panel of the
American Arbitration Association in San Jose, California, or such
other person to whom the parties agree in writing. Judgment upon the
award rendered in such arbitration may be entered in the California
Superior Court in and for the County of Santa Xxxxx.
6.6 WAIVER. No delay or failure by either party to exercise or enforce at
any time any right or provision of this Agreement shall be considered
a waiver thereof or of such party's right thereafter to exercise or
enforce each and every right and provision of this Agreement. A waiver
to be valid shall be in writing, but need not be supported by
consideration. No single waiver shall constitute a continuing or
subsequent waiver.
6.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which shall constitute but one and the same instrument.
6.8 INTERPRETATION. This Agreement shall be fairly interpreted in
accordance with its terms without any strict construction in favor of
or against either party and ambiguities shall not be interpreted
against the drafting party.
6.9 SEVERABILITY. If any provision of this Agreement shall be held
illegal, invalid or unenforceable, in whole or in part, such provision
shall be modified to the minimum extent necessary to make it or its
application legal, valid and enforceable, and the legality, validity
and forceability of all other provisions of this Agreement and all
other applications of such provision shall not be affected thereby.
6.10 COUNSEL. This Agreement has been drafted by counsel for the Company.
Employee has been given the opportunity to consult with independent
counsel of his own choosing with respect to the negotiation and
drafting of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
EMPLOYEE: THE COMPANY:
Address: 000 Xxx Xxxxx xx Xxxxxxxxxxx
Xxxxxxx, XX 00000 00000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Xxxx Xxxx Xxx By: /S/ XXXXXXX XXX, DIRECTOR
--------------------------------------- --------------------------------
Name xxxxxx Xxx, Director
/s/ Xxxx Xxxx Lin
---------------------------------------
Signature
