July 23, 2007
Exhibit
10.21
July
23,
2007
Xxx
Xxxxxxxx
000
Xxxxxx Xxxxx Xxxxx
Xxxxxx
Xxxx, XX 00000
Re: Employment
with PureDepth, Inc.
Dear
Xxx:
PureDepth,
Inc. is pleased to confirm the terms of your employment as provided in the
offer
letter of May 7, 2007. Please confirm your acceptance by execution of
a counterpart copy of this letter agreement where indicated below.
1. Employment. Company
hereby affirms Employee’s employment, and Employee hereby affirms his acceptance
of employment, upon the terms and conditions set forth herein.
2. Duties.
2.1 Position. Employee
is employed as of Senior Vice President of World Wide Engineering and shall
report to and have the duties and responsibilities assigned by Company’s Chief
Executive Officer both upon initial hire and as may be reasonably assigned
from
time to time. Employee shall perform faithfully and diligently all
duties assigned to Employee.
2.2 Best
Efforts/Full-time. Employee will expend Employee’s best efforts
on behalf of Company, and will abide by all policies and decisions made by
Company, as well as all applicable federal, state and local laws, regulations
or
ordinances. Employee will act in the best interest of Company at all
times. Employee shall devote Employee’s full business time and
efforts to the performance of Employee’s assigned duties for
Company.
000
Xxxxxxxxx Xxxxx Xxxxx 000 Xxxxxxx Xxxx, XX 00000 Phone (000) 000-0000 Fax
(000)
000-0000
xxx.xxxxxxxxx.xxx
3. Term.
3.1 Term. The
employment relationship pursuant to this Agreement shall be on an at-will
basis
and may be terminated by the Company or the Employee at any time, for any
reason
subject to the provisions regarding termination as set forth in section 6
below.
3.2 Start
Date. Employee’s employment with the Company began as of June 11,
2007.
4. Compensation.
4.1 Base
Salary. As compensation for Employee’s performance of Employee’s
duties hereunder, Company shall pay to Employee a base salary of $185,000.00
per
year, payable in accordance with the normal payroll practices of Company,
less
required deductions for state and federal withholding tax, social security
and
all other employment taxes. In the event Employee’s employment under
this Agreement is terminated by either party, for any reason, Employee will
earn
the Base Salary pro rated to the date of termination. Employee’s Base
Salary shall be subject to review by the CEO/Board on an annual
basis.
4.2 Equity Subject
to approval by the Board, Employee will be granted a stock option to purchase
500,000 shares of Company common stock. The exercise price of the
Option will be equal to the fair market value of the Company’s common stock on
your Option grant date. The Option will also be subject to the terms
and conditions of the Company’s 2006 Stock Plan and form of stock option
agreement, which you will be required to sign as a condition of receiving
the
Option. Subject to Employee’s continued employment, the Option shall
vest as follows: a three (3) year vesting period with the Option
vesting in equal quarterly installments with an initial cliff vesting period
of
six (6) months. To the extent that adequate shares are not available
under the Plan for part or all of your stock option grant, the stock Option
grant for such shares will be remain subject to the approval by the Company’s
stockholders of any increase in the number of shares available under the
Plan
(and such approval date shall be the Option grant date for purposes of the
determining the fair market value exercise price).
4.3 Bonus. Employee
shall be eligible for an annual bonus pursuant to the terms and requirements
of
the Company’s senior management bonus plan or other plan determined by the CEO
or Board of Director’s Compensation Committee. The annual bonus shall
be in an amount up to and shall not exceed fifty percent (50%) of Employee’s
then current annul base salary (and shall be pro-rated for the first year),
and
twenty-five percent (25%) of which, if earned, will be eligible for payment
after 120 days of employment (in the first year, but not subsequent
years).
000
Xxxxxxxxx Xxxxx Xxxxx 000 Xxxxxxx Xxxx, XX 00000 Phone (000) 000-0000 Fax
(000)
000-0000
xxx.xxxxxxxxx.xxx
4.4 Customary
Fringe Benefits, Vacation. Employee will be eligible for all
customary and usual fringe benefits generally available to employees of Company
subject to the terms and conditions of Company’s current benefit plans as
operated for all U.S. resident staff by Administaff. Company reserves
the right to change or eliminate the fringe benefits on a prospective basis,
at
any time. Employee will be entitled to four (4) weeks of paid vacation per
year.
5. Business
Expenses. Employee will be reimbursed for all reasonable,
out-of-pocket business expenses incurred in the performance of Employee’s duties
on behalf of Company. To obtain reimbursement, expenses must be
submitted promptly with appropriate supporting documentation, all in accordance
with Company’s policies.
6. Termination
of Employee’s Employment.
6.1 Termination
for Cause by Company. Although Company anticipates a mutually
rewarding employment relationship with Employee, Company may terminate
Employee’s employment immediately at any time for Cause if the CEO/Company finds
that good grounds exist for a "for cause" termination. For purposes
of this Agreement, Cause shall mean (1) the Employee’s theft,
dishonesty, willful misconduct, breach of fiduciary duty for personal profit,
or
falsification of any Company documents or records; (2) the Employee’s
unauthorized use, misappropriation, destruction or diversion of any material
asset or corporate opportunity of the Company (including, without limitation,
the Employee’s improper use or disclosure of the Company’s confidential or
proprietary information or his failure to abide by Company policies relating
to
confidentiality or reasonable workplace conduct); (3) any intentional act
by the Employee which has a material detrimental effect on the Company’s
reputation or business, (4) any material breach by the Employee of this
Agreement and any other agreement between the Company and Employee, including
without limitation, the Company’s Employee Proprietary Rights
Agreement/Non-Disclosure Agreement, which breach is not cured within 15 days
after Employee receives written notice from the CEO specifying said breach;
or
(5) the Employee’s conviction (including any plea of guilty or nolo
contendere) of any criminal act involving fraud, dishonesty, misappropriation
or
moral turpitude, or which impairs the Employee’s ability to perform his duties
with the Company. In the event Employee’s employment is terminated in
accordance with this subsection 6.1, Employee shall be entitled to receive
only the Base Salary then in effect, pro rated to the date of
termination. Employee will also be permitted to retain all rights to
fringe benefits and/or equity that had vested as of the date of his
termination. All other Company obligations to Employee pursuant to
this Agreement will become automatically terminated and completely
extinguished. Employee will not be entitled to receive the Severance
described in subsection 6.2 below.
000
Xxxxxxxxx Xxxxx Xxxxx 000 Xxxxxxx Xxxx, XX 00000 Phone (000) 000-0000 Fax
(000)
000-0000
xxx.xxxxxxxxx.xxx
6.2 Termination
Without Cause by Company/Severance. Company may terminate Employee’s
employment under this Agreement without Cause at any time. In the
event of such termination, Employee willreceive (i) the Base Salary then in
effect, pro rated to the date of termination, and (ii) a ”Severance
Payment” equal to four (4) months of Employee’s Base Salary then in effect on
the date of termination, less applicable withholding, payable in accordance
with
the Company’s standard payroll procedures following the effective date of the
release of claims described in (b) herein. The Severance Payment
(hereafter, referred to as “Severance”) shall be provided to Employee subject to
the following: (a) Employee complies with all surviving
provisions of this Agreement as specified in subsection 11.8 below; and
(b) Employee executes a full general release in a form satisfactory to the
Company, releasing all claims, known or unknown, that Employee may have against
Company arising out of or any way related to Employee’s employment or
termination of employment with Company.
6.3 Voluntary
Resignation by Employee. Employee may voluntarily resign
Employee’s position with Company, at any time on thirty (30) days’ advance
written notice (which notice may be waived in writing by the
Company). In the event of Employee’s resignation, Employee will not
be entitled to receive the Severance described in subsection 62 above.
7. No
Conflict of Interest. During the term of Employee’s employment
with Company, Employee must not engage in any work, paid or unpaid, that
creates
an actual conflict of interest with Company, or which otherwise materially
impairs Employee’s ability to perform the services contemplated
hereunder. Such work shall include, but is not limited to, directly
or indirectly competing with Company in any way, or acting as an officer,
director, employee, consultant, over 5% stockholder, volunteer, lender, or
agent
of any business enterprise of which is in competition with the business in
which
Company is now engaged or in which Company becomes engaged during the term
of
Employee’s employment with Company, as may be determined by the Company in its
sole discretion. If the Company believes such a conflict exists
during the term of this Agreement, the Company may ask Employee to choose
to
discontinue the other work or resign employment with Company if he chooses
not
to discontinue the other work. Employee agrees to notify the Company
of any potential relationship which may reasonably trigger the conflict of
interest provisions of this paragraph.
8. Confidentiality
and Proprietary Rights. As a condition of employment, Employee
agrees to read, sign and abide by the terms of Company’s Employee Proprietary
Rights Assignment Agreement/Non-Disclosure Agreement, which is provided with
this Agreement and incorporated herein by reference.
9. Nonsolicitation. Employee
understands and agrees that Company’s employees and any information regarding
Company employees are confidential and constitute trade secrets of the
Company. Employee agrees that during the term of this Agreement and
for a period of one (1) year after the termination of employment with the
Company, Employee will not, separately or in conjunction with others, encourage
or cause others to solicit or personally encourage any employees of the Company
to terminate or alter their relationships with the Company.
000
Xxxxxxxxx Xxxxx Xxxxx 000 Xxxxxxx Xxxx, XX 00000 Phone (000) 000-0000 Fax
(000)
000-0000
xxx.xxxxxxxxx.xxx
10. Agreement
to Arbitrate. In the event of any dispute or claim relating to or
arising out of Employee’s employment relationship with the Company, this
Agreement, or the termination of Employee’s employment with the Company for any
reason (including, but not limited to, any claims of breach of contract,
defamation, wrongful termination or age, sex, sexual orientation, race, color,
national origin, ancestry, marital status, religious creed, physical or mental
disability or medical condition or other discrimination, retaliation or
harassment), Employee and the Company agree that all such disputes shall
be
fully resolved by confidential, binding arbitration conducted by a single
arbitrator through the American Arbitration Association (“AAA”) under the AAA’s
National Rules for the Resolution of Employment Disputes then in effect,
which
are available online at the AAA’s website at
xxx.xxx.xxx. Claims for breach of the Company’s Employee
Proprietary Rights and Assignment Agreement/Non-Disclosure Agreement are
excluded.
11. General
Provisions.
11.1 Successors
and Assigns. The rights and obligations of Company under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of Company. Employee shall not be entitled to assign any
of Employee’s rights or obligations under this Agreement.
11.2 Waiver. Either
party’s failure to enforce any provision of this Agreement shall not in any way
be construed as a waiver of any such provision, or prevent that party thereafter
from enforcing each and every other provision of this Agreement.
11.3 Attorneys’
Fees. Each side will bear its own attorneys’ fees in any dispute
unless a statutory section at issue, if any, authorizes the award of attorneys’
fees to the prevailing party.
11.4 Severability. In
the event any provision of this Agreement is found to be unenforceable by
an
arbitrator or court of competent jurisdiction, such provision shall be deemed
modified to the extent necessary to allow enforceability of the provision
as so
limited, it being intended that the parties shall receive the benefit
contemplated herein to the fullest extent permitted by law. If a
deemed modification is not satisfactory in the judgment of such arbitrator
or
court, the unenforceable provision shall be deemed deleted, and the validity
and
enforceability of the remaining provisions shall not be affected
thereby.
000
Xxxxxxxxx Xxxxx Xxxxx 000 Xxxxxxx Xxxx, XX 00000 Phone (000) 000-0000 Fax
(000)
000-0000
xxx.xxxxxxxxx.xxx
11.5 Interpretation;
Construction. The headings set forth in this Agreement are for
convenience only and shall not be used in interpreting this
Agreement. This Agreement has been drafted by legal counsel
representing Company, but Employee has participated in the negotiation of
its
terms. Furthermore, Employee acknowledges that Employee has had an
opportunity to review and revise the Agreement and have it reviewed by legal
counsel, if desired, and, therefore, the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party
shall
not be employed in the interpretation of this Agreement.
11.6 Governing
Law. This Agreement will be governed by and construed in
accordance with the laws of the United States and the State of
California. Each party consents to the jurisdiction and venue of the
state or federal courts in San Mateo County, California, if applicable, in
any
action, suit, or proceeding arising out of or relating to this
Agreement.
11.7 Notices. Any
notice required or permitted by this Agreement shall be in writing and shall
be
delivered as follows with notice deemed given as indicated: (a) by personal
delivery when delivered personally; (b) by overnight courier upon written
verification of receipt; (c ) by telecopy or facsimile transmission upon
acknowledgment of receipt of electronic transmission; or (d) by certified
or registered mail, return receipt requested, upon verification of
receipt. Notice shall be sent to the addresses set forth below, or
such other address as either party may specify in writing.
11.8 Survival. Sections
7 (“No Conflict of Interest”), 8 (“Confidentiality and Proprietary Rights”), 9
(“Nonsolicitation”), 10 (“Agreement to Arbitrate”), 11 (“General Provisions”)
and 12 (“Entire Agreement”) of this Agreement shall survive Employee’s
employment by Company.
12. Entire
Agreement. This Agreement, including the Company Employee
Proprietary Rights Assignment Agreement/Non-Disclosure Agreement incorporated
herein by reference and Company’s stock option plan and related option documents
described in subsection 4.2 of this Agreement, constitutes the entire
agreement between the parties relating to this subject matter and supersedes
all
prior or simultaneous representations, discussions, negotiations, and
agreements, whether written or oral. This Agreement may be amended or
modified only with the written consent of Employee and the Board, including
without limitation any changes that may be necessary to comply with the
provisions of Section 409A of the Code, to the extent
applicable. No oral waiver, amendment or modification will be
effective under any circumstances whatsoever.
000
Xxxxxxxxx Xxxxx Xxxxx 000 Xxxxxxx Xxxx, XX 00000 Phone (000) 000-0000 Fax
(000)
000-0000
xxx.xxxxxxxxx.xxx
13. Authority The
individual signing this Agreement on behalf of the Company has the authority
to
bind the Company to the terms of this Agreement and both parties will be
considered bound to the terms of this Agreement upon their signatures thereto
below.
Xxx,
we
are excited and pleased to have you join the PureDepth team.
Sincerely,
| __________________________________________ | |
|
Xxx
XxXxxxx
|
|
|
Chief
Financial Officer
|
|
|
Date: ______________________________________
|
Acknowledged,
Accepted and Agreed:
___________________________________________
Xxx
Xxxxxxxx
___________________________________________
Date:
000
Xxxxxxxxx Xxxxx Xxxxx 000 Xxxxxxx Xxxx, XX 00000 Phone (000) 000-0000 Fax
(000)
000-0000
xxx.xxxxxxxxx.xxx
