ADVANCED POWER TECHNOLOGY, INC.
EMPLOYMENT AGREEMENT
(SALES PERSONNEL)
THIS EMPLOYMENT AGREEMENT is made and entered into this 19 day of SEPTEMBER
1988, by and between ADVANCED POWER TECHNOLOGY, INC., a Delaware corporation
("Company") and XXXXXX X. XXXXX, an individual ("Employee").
WHEREAS, Company desires to employ Employee upon the terms and conditions
hereinafter set forth, and Employee desires to be so employed;
NOW, THEREFORE, in consideration of the mutual promises contained herein,
Company and Employee agree as follows:
1. EMPLOYMENT
Company hereby employees Employee as SOUTHERN SALES MANAGER of the Company
with the powers an duties consistent with such position, and Employee
hereby accepts such employment, on the terms and conditions hereinafter set
forth. Employee, subject to the control of the Management of Company,
agrees to diligently utilize his or her best efforts to further the
interests of the Company and to discharge those responsibilities and duties
required for the planning, development, operation, promotion and
advancement of the Company, and such other duties as Company may require.
2. TERM AND TERMINATION
2.1 This Agreement shall terminate upon the happening of any of the
following events:
(a) By mutual agreement between Company and Employee;
(b) Unilaterally by Employee without cause;
(c) Upon the death of Employee;
(d) By the Company upon the good faith determination of the Chief
Executive officer of Company that Employee has become so physically or
mentally disabled as to be incapable of satisfactorily performing his
or her duties hereunder for a period of ninety (90) days during any
six month period, such determination may be based upon a certificate
as to such physical or mental disability issued by a licensed
physician and/or psychiatrist (as the case may be) employed by
Company; or
(e) By the Company for cause, that is to say only upon Employee's
conviction of a felony, commission of any material act of dishonesty
against the Company,
material breach of this Agreement by Employee, or misconduct by
Employee having a substantial adverse effect on the business of the
Company.
(f) By the Company without cause, in which event (Section 2.2 to the
contrary not withstanding) the Company will continue to pay Employee
the full amount due as salary for a period of thirty days following
notice of termination.
2.2 In the event that this Agreement is terminated pursuant to Paragraph
2.1, neither Company nor Employee shall have any remaining duties or
obligations hereunder, except that Company shall pay to Employee, or his or
her representatives, such compensation as is due pursuant to Section 3. The
provisions of Section 4-6 shall survive termination.
2.3 This Agreement shall not be terminated by any:
(a) Merger, whether the Company is or is not the surviving
corporation; or
(b) Transfer of all or substantially all of the assets of the
Company; or
(c) Voluntary or involuntary dissolution or liquidation of the
Company; or
(d) Consolidation to which the Company is a party.
In the event of any such merger, transfer of assets, dissolution,
liquidation, or consolidation, the surviving corporation or transferee, as
the case may be, shall be bound by and shall have the benefits of this
Agreement, and Company shall take all action to ensure that such
corporation or transferee is bound by the provisions of this Agreement.
3. COMPENSATION
3.1 As the total consideration for services which Employee agrees to
render hereunder, Employee is entitled to the following:
(a) Beginning on SEPTEMBER 16, 1988, or as soon thereafter as
Employee begins work, an annual base salary at the rate of FIFTY SEVEN
THOUSAND AND SIX HUNDRED Dollars ($57,600.00), subject to increases at
the discretion of Company, in accordance with the regular and ordinary
payment practices of Company. All payroll payments shall be subject to
deduction of payroll taxes and related deductions as required by law.
(b) In addition, the Employee will have an opportunity to
substantially increase total cash compensation under terms of the
Advanced Power Technology Sales Incentive Plan.
(c) Participation in all plans or programs sponsored by Company for
employees in general, including without limitation participation in
any group health plan, medical reimbursement plan and life insurance
plan, pension and profit sharing plan.
(d) Reimbursement of any and all reasonable expenses incurred by
Employee from time to time in the performance of his or her duties
hereunder, including without limitation entertainment expenses and air
fare, taxi, automobile, and other traveling expenses.
(e) Upon completion of six (6) months of continuous employment,
Employee shall be eligible for five (5) working days of paid vacation.
Employee then continues to earn vacation in the amount of five/sixths
(5/6) day per month, and on the monthly date of hire date. This
results in the Employee continuing to earn vacation at the rate of ten
(10) days per anniversary year. Paid vacation is non-cumulative and
must be taken during the eighteen (18) month period following earned
eligibility.
(f) Such other benefits as Company, in its sole discretion, may from
time to time provide, and which Employee qualifies for.
3.2 Subject to the limitations contained in Paragraph 2.1 and to the
Policies of the Company as adopted from time to time, if Employee shall be
absent on account of personal injuries or physical or mental illness,
Employee shall continue to receive all payments provided in this Agreement;
provided, however, that any such payments may, at the sole option of
Company, be reduced by any amount that Employee receives for the period
covered by such payments as disability compensation under insurance
policies maintained by Company or under governmental programs.
3.3 Company shall have the right to deduct from the compensation due to
Employee hereunder any and all sums required for social security and
withholding taxes and for any other federal, state, or local tax or charge
which may be in effect or hereafter enacted or required as a charge on the
compensation of Employee.
3.4 Employee shall repay relocation expenses paid by Company if he or she
voluntarily terminates employment, or is terminated for cause within one
year from date of employment.
3.5 Any payments, whether incurred by the Company or by an employee or
officer of the Company on behalf of and reimbursed b the Company,
including, without limitation, salary, commission, bonus, interest, rent or
travel and entertainment expenses, which are disallowed in whole or in part
as a deductible expense for federal income tax purposes on the grounds that
said payments constitute unreasonable compensation to an employee or
officer, shall be repaid by the employee or officer to the Company to the
full extent of the disallowance, if the Board, in its discretion, agrees to
enforce the repayment of each such amount disallowed.
4. NON-DISCLOSURE
Employee shall not disclose or use in any way, either during his or her
employment with Company or thereafter, except as required in the course of his
or her employment with Company, any confidential business or technical
information or trade secrets acquired during his or her employment by Company,
whether or not conceived of, discovered, developed or prepared by
Employee, including without limitation any formulae, patterns, inventions,
procedures, processes, plans, devices, products, operations, techniques,
know-how, specifications, data, compilations of information, customer lists,
records, financing or production methods, costs, employees, and information
concerning specific customer requirements, preferences, practices and methods of
doing business, all of which are exclusive and valuable property of Company.
5. TANGIBLE ITEMS AS PROPERTY OF COMPANY
Excluding any personal property owned by Employee prior to the date hereof,
all files, records, documents, drawings, plans, specifications, manuals, books,
forms, receipts, notes, reports, memoranda, studies, data, calculations,
recordings, catalogues, compilations of information, correspondence and all
copies, abstracts and summaries of the foregoing, instruments, tools and
equipment and all other physical items related to the business of Company, other
than a merely personal item of a general professional nature, whether of a
public nature or not, and whether prepared by Employee or not, are and shall
remain the exclusive property of Company and shall not be removed from the
premises of Company under any circumstances whatsoever without the prior written
consent of Company, and the same shall be promptly returned to Company by
Employee on the expiration or termination of his or her employment with Company
or at any time prior thereto upon the request of Company.
6. SOLICITATION OF EMPLOYEES
Both during and within one year after the period of employment, Employee
shall not in any way attempt to interfere with the business of Company and,
shall not call on, solicit, interfere with or attempt to entice away, either
directly or indirectly, any employee of Company with whom he or she became
acquainted during his or her employment with Company, either for his or her own
benefit or purposes or for the benefit or purposes of any other person,
partnership, corporation, firm, association or other business organization,
entity or enterprise.
7. INJUNCTIVE RELIEF
Employee hereby acknowledges and agrees that it would be difficult to fully
compensate Company for damages resulting from the breach or threatened breach of
Sections 4, 5, and 6 of this Agreement, and accordingly, that Company shall be
entitled to temporary and injunctive relief, including temporary restraining
orders, preliminary injunctions and permanent injunctions, to enforce such
Sections without the necessity of proving actual damages therewith. This
provision with respect to injunctive relief shall not, however, diminish
Company's right to claim and recover damages.
8. INDEMNIFICATION
Company shall, to the maximum extent permitted by law, indemnify and hold
Employee harmless against expenses, including reasonable attorney's fees,
judgments, fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding arising by reason of Employee's
employment with Company if Employee, in incurring the above expenses, acted in
good faith and in a manner Employee believed to be in the best interests of
Company and, in the case of a criminal proceeding, had no reasonable cause to
believe Employee's conduct was unlawful.
9. SEVERABLE PROVISIONS
The provisions of this Agreement are severable and if any one or more
provisions may be determined to be illegal or otherwise unenforceable, in whole
or in part, the remaining provisions, and any partially unenforceable provisions
to the extent enforceable, shall nevertheless be binding and enforceable.
10. BINDING AGREEMENT
This Agreement shall inure to the benefit of and shall be binding upon
Company, its successors and assigns.
11. CAPTIONS
The Section captions are inserted only as a matter of convenience and
reference and in no way define, limit or describe the scope of this Agreement or
the intent of any provisions hereof.
12. ENTIRE AGREEMENT
This Agreement, together with that offer of employment dated AUGUST 30,
1988 a copy of which is attached hereto and incorporated herein, contains the
entire agreement of the parties relating to the subject matter hereof, and the
parties hereto have made no agreements, representations or warranties relating
to the subject matter of this Agreement that are not set forth in these
documents. No modification of this Agreement shall be valid unless made in
writing and signed by the parties hereto.
13. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws
of the state of Oregon.
14. NOTICES
Any notice or demand required or permitted to be given hereunder shall be
in writing and shall be deemed effective upon the personal delivery thereof or,
if mailed, forty-eight hours after having been deposited in the United States
mails, postage prepaid, and addressed to the party to whom it is directed at the
address et forth below:
If to Company:
ADVANCED POWER TECHNOLOGY, INC.
000 X. X. Xxxxxxxx Xxxxxx
Xxxx, Xxxxxx 00000
With a copy to:
Xxxxx Xxxxx-Xxxxxx
Freshman, Marantz, Orlanski
Xxxxxx & Xxxxx
0000 Xxxxxxxx Xxxx., xxxxx 0-X
Xxxxxxx Xxxxx, XX 00000
If to EMPLOYEE
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Either party may change the address to which such notices are to be addressed by
giving the other party notice in the manner herein set forth.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first written above.
ADVANCED POWER TECHNOLOGY, INC.
a Delaware corporation ("Company")
By: S/S
Xxxxxxx Xxxxxx
President and Chief Executive Officer
S/S
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("Employee")
[ADVANCED POWER TECHNOLOGY LETTERHEAD]
Xxx Xxxxx August 30, 1988
000 Xxxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
Dear Xxx:
All of us at APT are delighted with your decision to join the
company as its Southern Sales Manager, reporting to Xxxxx Xxxxxx, APT
Marketing and Sales Manager.
This letter confirms the terms of our discussions of last week and
our most recent telephone conversation. Your annual salary will be $57,600
and you will be offered the possibility to buy 15,000 shares of common stock
of APT at the price of $0.059 per share upon your joining the company and
subject to the approval of the Board of Director. The payment of these
shares, $885, will be made in cash or in the form of a one (1) year note
bearing 10% annual interest rate. You will also be eligible for all the
benefits provided by the company, including Group Medical and Dental
coverages, Life Insurance, and the 401K program.
In addition, you will participate in APT's Sales Incentive
Compensation Program. This program provides you with the opportunity to earn
commission on the sales booked in your territory as well as new account
bonuses. A draft of the "Southern Sales Manager Incentive Compensation
Agreement" for the period September 1, 1988 to December 31, 1988 is enclosed
for reference.
This letter constitutes a formal offer of employment to join
Advanced Power Technology in the capacity of Southern Sales Manager. The
Company's policies and procedures require that you sign the attached
Employment Agreement on your first day of employment. Let me know if you have
any questions about it.
After you have a chance to review the terms of this letter, please
give me a call to discuss when you will be able to joint APT and any other
point which might still be open.
Again, we are all extremely pleased to have you join us and we look
forward to welcoming you soon.
Sincerely,
/s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
President and Chief Executive Officer
Advanced Power Technology, Inc.
