EXHIBIT 99.5
August 13, 2008
Xxxxx Xxxx
00000 Xxxxxxxxxx
Xxx Xxxxx, XX 00000
Re: Employment Agreement (this "AGREEMENT")
Dear Xx. Xxxx:
MicroIslet Inc., a Nevada corporation (the "COMPANY"), is pleased to offer
you employment as Vice-President of Finance and Chief Financial Officer of the
Company ("CFO") on the following terms:
1. POSITION; EFFECTIVE DATE. As CFO, you will report to the President
and Chief Executive Officer ("CEO") and the Company's Board of Directors (the
"BOARD"), and will perform the duties customarily associated with this position
and such other duties assigned by the Board. You and the Company agree that you
will work from the Company's facilities in San Diego, CA. Subject to the
"Approved Commitments" set forth in paragraph 3.1 below, you agree to devote
50-75% of your business time and attention to the business of the Company. This
Agreement shall be effective as of August 18, 2008 (the "START DATE").
2. COMPENSATION.
2.1 BASE SALARY AND ADJUSTMENTS. Your base salary will be at a
rate of $110,000 per year (the "BASE SALARY"), less payroll deductions and
required withholdings, paid according to the Company's regular payroll schedule
and procedures.
2.2 EMPLOYEE BENEFITS. You shall be entitled to all benefits,
including vacation, health and disability benefits, for which you are eligible
under the terms and conditions of the standard Company benefit plans, which may
be in effect from time to time and are provided by the Company to its senior
executive level employees generally.
2.3 EXPENSES. The Company shall reimburse you for reasonable
travel and other out-of-pocket expenses (including telephone, lodging and meals)
upon submission of receipts.
2.4 STOCK OPTION. Subject to approval of our Compensation
Committee, you will be granted a stock option to purchase shares of common stock
as soon as practicable after your Start Date. The option will have an exercise
price equal to the fair market value of our common stock on the date of grant,
and will include all the terms as defined in the Company's 2005 Equity Incentive
Plan The option will vest over three years, with the first vesting date being
six months after the grant date, and the balance vesting monthly until the third
anniversary of the grant date.
3. NON-COMPETITION AND NON-SOLICITATION.
3.1 NON-COMPETITION. Except as permitted by the last sentence of
this Paragraph 3, during the term of your employment by the Company and for a
period of one year thereafter, you will not directly or indirectly, whether as
an officer, director, stockholder, employee, advisor, manager, partner,
proprietor, associate, representative, consultant, or in any capacity whatsoever
engage in, become financially interested in, be employed by or have any business
connection with any other person, corporation, firm, partnership or other entity
whatsoever that is engaged anywhere in the world, in any line of business
engaged in (or planned to be engaged in) by the Company without the prior
consent of the Board; provided, however, that anything above to the contrary
notwithstanding, you may own, as a passive investor, securities of any
publicly-traded entity, so long as your holdings in any one such entity do not
in the aggregate constitute more than one percent (1%) of the voting stock of
such entity and securities of any non-publicly traded entity, so long as your
holdings in any one such entity do not in the aggregate constitute more than
five percent (5%) of the voting stock of such entity; and further provided, that
the restrictions in this Paragraph 3 shall apply after your term of employment
only to the extent the restricted actions would involve the use of the Company's
trade secrets. For such purpose, the term "trade secrets" includes "Confidential
Information" as that term is defined in your Confidentiality and Intellectual
Property Agreement. If any restriction set forth in this paragraph is held to be
unreasonable, then you agree, and hereby submit, to the reduction and limitation
of such prohibition to such area or period as shall be deemed reasonable under
the law. Notwithstanding the above, the Company through the Board will give its
consent to allow you to participate on Boards of Directors and management teams
of other companies that are deemed not to be competitive by the Company
("Approved Commitments"). In all cases, you will be subject to your continued
fiduciary obligations to the Company and its stockholders. The Approved
Commitments shall also include other civic or not-for-profit activities you many
engage in so long as such activities do not interfere with the performance of
your job duties. The Approved Commitments shall also include other civic or
not-for-profit activities you many engage in so long as such activities do not
interfere with the performance of your job duties.
3.2 NON-SOLICITATION. You will not, at any time during the term of
this Agreement, or during the 24 months following termination of this Agreement,
in any manner, directly or indirectly, alone or jointly, with or as an agent
for, or as an employee of, any person, firm or corporation, employ, solicit or
induce to leave any employee or independent consultant of the Company, or any
former employee or independent consultant who was employed or retained by the
Company within 24 months preceding such attempt to employ or solicit; provided,
however, that this non-solicitation provision shall not prevent you from hiring
any employee or independent consultant of the Company that you can demonstrate
either (i) approached you independently without any prior direct or indirect
solicitation or encouragement by you or on your part, or (ii) replied to a
solicitation made to the general public without any direct or indirect
solicitation or encouragement by you or on your part.
4. COMPANY POLICIES; CONFIDENTIALITY AND INTELLECTUAL PROPERTY
AGREEMENT; STOCKHOLDERS AGREEMENT. You agree to execute the Company's
Confidentiality and Intellectual Property Agreement (the "CONFIDENTIALITY
AGREEMENT") and to abide by the Company's rules, policies and procedures.
5. TERM AND TERMINATION OF EMPLOYMENT.
5.1 AT-WILL EMPLOYMENT RELATIONSHIP. You and the Company each
acknowledge that your employment with the Company is "at-will," as defined under
applicable law, and that either party may terminate your employment with the
Company at any time for any reason, and with or without Cause (as defined below)
or notice. If your employment terminates for any reason, you will not be
entitled to any payments, benefits, damages, award or compensation other than as
expressly provided in this Agreement.
5.2 ACCEPTANCE AND TERMS OF EMPLOYMENT. The Company agrees to
employ you and you agree to serve the Company on the terms and conditions set
forth herein. Your employment with the Company will not be for any specific term
and may be terminated by you or by the Company at any time, with or without
cause and with not later than thirty (30) days prior you or the Company provides
to the other notice in writing of an intention not to continue this Agreement.
Upon notice your employment hereunder shall terminate on the close of business
on the last day of the thirty (30) day notice.
5.3 TERMINATION. The term of your employment shall terminate
earlier than as provided in Section 5.2 hereof upon the earliest to occur of:
(i) your voluntary resignation; (ii) termination by reason of your disability or
death, or (iii) a termination by the Company with or without Cause.
5.4 VOLUNTARY TERMINATION. If you terminate your employment at any
time you shall not be entitled to severance pay, pay in lieu of notice or any
other such compensation other than payment of accrued salary and vacation
through the date of termination and such other benefits as expressly required in
such event by applicable law or the terms of applicable benefit plans. The
continued vesting of the Option shall cease on the termination date, and your
right to exercise any vested portion of the Option shall be governed by the
terms of the Equity Plan and the corresponding stock option agreement.
5.5 TERMINATION FOR CAUSE, DEATH OR DISABILITY. If the Company
terminates your employment at any time for Cause (as defined below) or if your
employment is terminated by reason of your death or disability (defined as the
inability, in the opinion of a qualified physician acceptable to the Company, to
perform the requirements of your position with the Company because of any
disease or condition for a continuous period of more than 90 days) your salary
shall cease on the date of termination and you shall not be entitled to
severance pay, pay in lieu of notice or any other such compensation other than
payment of accrued salary and vacation through the date of termination and such
other benefits as expressly required in such event by applicable law or the
terms of applicable benefit plans. In the event of your death, payment of
accrued salary and vacation, if any exists at time of termination, will be paid
to your estate. The continued vesting of the Option shall cease on the
termination date, and your right to exercise any vested portion of Option shall
be governed by the terms of the Equity Plan and the corresponding stock option
agreement.
5.6 SEVERANCE BENEFITS FOR TERMINATION WITHOUT CAUSE. If the
Company terminates your employment without Cause (as defined below) before the
termination of this Agreement pursuant to Section 5.2 of this Agreement, you
will receive a lump sum severance payment (the "SEVERANCE PAYMENT") equal your
Base Salary in effect as of such termination date multiplied by thirty (30)
calendar days. The Severance Payment shall be paid within thirty (30) calendar
days following any such termination; provided, however, that the Company's
obligation to make the Severance Payment is expressly conditioned upon your
execution and timely delivery, without revocation, of a full general release of
claims (excluding claims for amounts payable under this Agreement), in form and
substance reasonably satisfactory to the Company, against the Company and its
officers, directors, employees and agents. Delivery of such general release
shall not be considered timely, and the Severance Payment shall be extinguished,
if not made by the later of (A) thirty (30) calendar days after your
termination, or (B) twenty-one (21) days after your receipt of a form such
general release to be executed.
5.7 TERMINATION FOR CAUSE. Notwithstanding any other provision
contained in this Agreement, the Company may terminate this Agreement
immediately, at any time, for Cause. For purposes of this Agreement, "CAUSE"
shall mean:
(i) any willful breach or habitual neglect of your material
duties (other than due to a disability or death) that you are required to
perform under the terms of this Agreement or the Confidentiality
Agreement;
(ii) your conviction for committing (A) a felony, (B) a fraud
or act of dishonesty that results in material harm to the Company, (C)
financial impropriety, or (D) an act of moral turpitude;
(iii) your knowing or deliberate violation of any requirement
of the Xxxxxxxx-Xxxxx Act of 2002 or other material provisions of the
federal securities laws; or
(iv) your failure to obey the lawful and reasonable direction
of the Board, or breach of any fiduciary duty owed by you to the Company
or its shareholders, in such a way that has had or will have a direct,
substantial and adverse effect on the business, finances or reputation of
the Company.
Notwithstanding the foregoing, if there exist (without regard to
this and the next succeeding sentence) events or conditions that constitute
Cause under subsection (i) or (iv) above, the Board shall promptly notify you in
writing of such events or conditions, in reasonable detail, including, where
applicable and to the extent practicable, specific examples of acts, omissions,
conduct, performance or other events or conditions which constitute Cause;
provided that no notice shall be required with respect to events that constitute
Cause under subsection (iv) above unless both a cure is reasonably probable and
no substantial and adverse effect has resulted. If such notice is required, you
shall have 30 days from the date such written notice is given to cure such
events or conditions and, if cured, such events or conditions shall not
constitute Cause hereunder. The Board shall make the final determination
regarding the existence of Cause and whether you have effectively cured the
events or conditions constituting Cause, subject to your right to dispute such
determinations in accordance with Section 7.5 hereof. The Company shall be
entitled to suspend your duties pending determination of the existence of Cause,
provided that any period of suspension shall not count toward the 30-day cure
period set forth above, and provided further, that the compensation and other
benefits provided herein shall continue to be paid and afforded to you during
such period.
5.8 POST-TERMINATION COOPERATION. During the period of your
employment (including periods of employment following the Employment Term) and
thereafter, you shall cooperate with the Company or any of its affiliates in any
internal investigation or administrative, regulatory or judicial proceeding as
reasonably requested by the Company (including, without limitation, your being
available to the Company upon reasonable notice for interviews and factual
investigations, appearing at the Company's request to give testimony without
requiring service of a subpoena or other legal process, volunteering to the
Company all pertinent information and turning over to the Company all relevant
documents which are or may come into your possession, all at times and on
schedules that are reasonably consistent with your other permitted activities
and commitments). In the event the Company requires your cooperation in
accordance with this Paragraph 5.8 after the period of your employment with the
Company, the Company shall, at your election, pay you at a daily rate equal to
0.4 percent of your Base Salary, and shall reimburse you for reasonable travel
and other out-of-pocket expenses (including lodging and meals), upon submission
of receipts, provided, however, that a reasonable number of days of said
post-termination consultation shall be unpaid to facilitate any necessary
transitions, but shall include reimbursement of all reasonable expenses as noted
herein.
6. PARACHUTE PAYMENTS.
If any payment or benefit you would receive from the Company or
otherwise ("PAYMENT") would (i) constitute a "parachute payment" within the
meaning of Paragraph 280G of the Internal Revenue Code (the "Code"), and (ii)
but for this sentence, be subject to the excise tax imposed by Paragraph 4999 of
the Code (the "EXCISE TAX"), then such Payment shall be equal to the largest
portion of the Payment that would result in no portion of the Payment being
subject to the Excise Tax. An accounting firm engaged by the Company for general
audit purposes and reasonably acceptable to you shall perform the foregoing
calculation. The Company shall bear all expenses with respect to the
determinations by such accounting firm required to be made hereunder.
The accounting firm engaged to make the determinations hereunder
shall provide its calculations, together with detailed supporting documentation,
to you and the Company at least thirty (30) calendar days prior to the date on
which your right to a Payment is triggered or such other time as requested by
you or the Company. If the accounting firm determines that no Excise Tax is
payable with respect to a Payment, either before or after the application of the
Reduced Amount, it shall furnish you and the Company with a letter with its
conclusions as to why no Excise Tax will be imposed with respect to such
Payment. Any good faith determinations of the accounting firm made hereunder
shall be final, binding and conclusive upon you and the Company.
7. GENERAL PROVISIONS.
7.1 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
the validity of any other provision or the validity of such provision in any
other jurisdiction, and such invalid, illegal or unenforceable provision will be
reformed, construed and enforced in such jurisdiction so as to render it valid,
legal, and enforceable consistent with the intent of the parties insofar as
possible.
7.2 ENTIRE AGREEMENT. This Agreement, its exhibits, together with
any agreement entered into between you and the Company in connection with the
grant of the Option constitutes the entire and exclusive agreement between you
and the Company, and it supersedes any prior agreement, promise, representation,
or statement, written or otherwise, between you and the Company with regard to
this subject matter. It is entered into without reliance on any promise,
representation, statement or agreement other than those expressly contained or
incorporated herein, and it cannot be modified or amended except in a writing
signed by you and a duly authorized officer of the Company.
7.3 SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by you, the Company and your and its
respective successors, assigns, heirs, executors and administrators, except that
you may not assign any of your duties hereunder and you may not assign any of
your rights hereunder without the written consent of the Company.
7.4 GOVERNING LAW. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the law of the
State of California as applied to contracts made and to be performed entirely
within California, without regard to its conflicts of law principles.
7.5 DISPUTE RESOLUTION. Except as the parties may otherwise agree
in writing, all claims, demands, causes of action or controversies - past,
present or future - that you may have against the Company, its officers,
directors, employees, independent contractors or agents - past, present or
future - or that the Company may have against you, shall be resolved by final
and binding arbitration pursuant to the provisions of EXHIBIT A hereto. PLEASE
READ CAREFULLY. BY SIGNING THIS AGREEMENT, YOU ARE GIVING UP YOUR RIGHT TO FILE
A LAWSUIT IN A COURT OF LAW AND TO HAVE YOUR CASE HEARD BY A JUDGE AND/OR JURY.
7.6 NOTICE. Notices and all other communications contemplated by
this Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by overnight courier, U.S. registered
mail or certified mail, return receipt requested and postage prepaid. Mailed
notices shall be addressed to you at the home address you most recently
communicated in writing to the Company. In the case of the Company, mailed
notices shall be addressed to its corporate headquarters, and all notices shall
be directed to the attention of its Secretary.
7.7 MODIFICATIONS AND WAIVERS. No provision of this Agreement
shall be modified, waived or discharged unless the modification, waiver or
discharge is agreed to in writing and signed both by you and by an authorized
officer of the Company (other than you).
7.8 IRC SECTION 409A. To the extent that this Agreement or any
part thereof is deemed to be a nonqualified deferred compensation plan subject
to Section 409A of the Code and the regulations and guidance promulgated
thereunder, (i) the provisions of this Agreement shall be interpreted in a
manner to comply in good faith with Section 409A of the Code, and (ii) the
parties hereto agree to amend this Agreement, if necessary, for the purposes of
complying with Section 409A of the Code promptly upon issuance of any
regulations or guidance thereunder.
[END OF TEXT]
To indicate your acceptance of the Company's offer of continued employment,
please sign and date this Agreement in the space provided below and return it to
me.
Sincerely,
MICROISLET, INC.
By:
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Title:
---------------------------
Date:
----------------------------
ACKNOWLEDGED AND AGREED:
/s/ Xxxxx Xxxx
---------------------------------
Xxxxx Xxxx
Date:
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EXHIBIT A - Arbitration
EXHIBIT A
ARBITRATION
The provisions of this Exhibit A are incorporated into and made a part of
the Employment Agreement dated August 13, 2008 by and between MicroIslet, Inc.
and Xxxxx Xxxx (the "Agreement") Capitalized terms used and not defined herein
have the same meaning as set forth in the Agreement.
(a) WAIVER OF RIGHT TO TRIAL. The Company and you (the
"PARTIES") understand that they are waiving any right they may have to file a
lawsuit or other civil action or proceeding against each other, and are
voluntarily waiving any right they may have to resolve disputes between the
parties through trial by judge or jury. Any and all claims or disputes arising
out of or relating to the employment relationship and/or the termination of the
employment relationship between the parties that are not resolved by their
mutual agreement shall be resolved exclusively by confidential, final and
binding arbitration. The parties have the right to be represented by counsel in
any arbitration proceeding commenced pursuant to the Agreement.
(b) CLAIMS SUBJECT TO ARBITRATION. Except as the parties may
otherwise agree in writing, all claims, demands, causes of action or
controversies - past, present or future - that you may have against the Company,
its officers, directors, employees, independent contractors or agents - past,
present or future - or that the Company may have against you (collectively the
"CLAIMS") shall be resolved by final and binding arbitration. The Claims include
but are not limited to any claims or disputes in connection with: (1) the
recruiting and hiring process; (2) the employment relationship between the
parties; (3) the termination of the employment relationship; (4) any contracts
between the parties; or (5) any and all Claims arising under any federal, state
or local law or regulation, including, but not limited to, those relating to
employment, compensation, wages, stock options, benefits (except where an
employee benefit or pension plan specifies that its claims procedure shall
culminate in a dispute resolution procedure different from this one),
discrimination, harassment, wrongful termination, wrongful demotion, breach of
contract, breach of the implied covenant of good faith and fair dealing,
interference with contract or prospective economic advantage, intentional or
negligent infliction of emotional distress, violation of public policy,
retaliation, fraud, promissory estoppel, defamation, unfair business practices,
invasion of privacy, negligence, assault or battery. (The Claims for
discrimination and harassment include but are not limited to those based on
race, color, sex, sexual orientation, religion, national origin, ancestry,
citizenship, age, marital status, registered domestic partner status, physical
disability, pregnancy, mental disability, medical condition, veteran status, and
any claims arising under the California Fair Employment and Housing Act, the
California Family Rights Act, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the Equal Pay Act, the Civil Rights Act, the
Family and Medical Leave Act, the Employee Retirement Income Security Act of
1974, Title VII of the Civil Rights Act of 1964 as amended, the California Labor
Code, and any other local, state, federal or common law concerning employment or
employment discrimination or harassment.)
This Exhibit A does not affect your right to seek administrative relief
from the United States Equal Employment Opportunity Commission or the California
Department of Fair Employment and Housing. Further, this Exhibit A does not
cover claims you may have for workers' compensation, state disability benefits,
unemployment compensation benefits or disputes covered by a collective
bargaining agreement. Nothing in this Exhibit A shall prohibit or limit the
parties from seeking provisional relief pursuant to California Code of Civil
Procedure ss. 1281.8 or any similar statute of an applicable jurisdiction.
(c) THE ARBITRATION PROCESS. Either you or the Company may
commence the arbitration process by filing a written demand for arbitration with
the American Arbitration Association ("AAA"), and sending a copy by personal
delivery or certified mail to the other party. If the Company initiates
arbitration, it will send the notice to your last known home address as
reflected in the Company's personnel records. If you initiate arbitration, you
will send notice to the Company's Human Resources department. Demands for
arbitration must be made within the applicable statute of limitations.
Any arbitration between the parties shall be conducted pursuant to the AAA
procedures for the arbitration of employment disputes that are in effect at the
time of the commencement of arbitration, except as otherwise agreed in writing
by the parties. The arbitration shall be conducted in the County of San Diego,
California, unless the parties mutually agree to conduct the arbitration
elsewhere. The arbitration shall be conducted by a neutral Arbitrator (the
"ARBITRATOR") selected by mutual agreement of the parties, or if no mutual
agreement can be reached, selected from a list of arbitrators provided by AAA,
as specified in the AAA's procedures. The parties will cooperate in scheduling
the arbitration proceedings. Absent a subsequent contrary written agreement
between the parties, the arbitration hearing shall be scheduled for a date that
is within 180 days after the commencement of the arbitration. As for discovery,
the parties will comply with California Code of Civil Procedure ss. 1283.05 or
any other discovery required by California law. Should a non-party witness
refuse to comply with a subpoena issued by the Arbitrator and the Arbitrator is
unable to enforce compliance with the subpoena, the parties agree to submit the
subpoena to a court of competent jurisdiction for enforcement of the subpoena.
The Arbitrator shall apply the applicable substantive law, and the
applicable law of remedies, for the State of California, or federal law, or
both. The Arbitrator is without jurisdiction to apply any different substantive
law or law of remedies. The Arbitrator is authorized to award any remedies
allowed by applicable law. The Arbitrator cannot modify any of the provisions of
the Agreement. The Arbitrator shall issue a written and signed statement of the
basis of its decision, including findings of fact and conclusions of law. The
statement and award, if any, shall be based on the terms of the Agreement, the
findings of fact and the statutory and decisional case law applicable to this
dispute. Proceedings to confirm, correct or vacate an award or decision rendered
by the Arbitrator will be controlled by and conducted in conformity with
applicable state law, including California Code of Civil Procedure ss. 1285.8,
et seq. The arbitration shall be final and binding upon the parties, except as
provided in this Exhibit A. Neither the parties nor the Arbitrator may disclose
the existence, content, or results of any arbitration without the prior written
consent of both parties.
(d) ARBITRATION FEES, COSTS AND AWARDS. If you initiate
arbitration against the Company, you must pay a filing fee to AAA equal to the
current filing fee in the appropriate court had your claim been brought there,
and the Company shall bear the remaining costs of the arbitration forum,
including Arbitrator fees. If the Company initiates arbitration against you, the
Company shall bear the entire cost of the arbitration forum, including
Arbitrator fees. (Such costs do not include costs of attorneys, discovery,
expert witnesses, or other costs which you would have been required to bear had
the matter been filed in a court.) The Arbitrator may award attorneys' fees and
costs to the prevailing party as authorized by law. If there is any dispute as
to whether the Company or you is the prevailing party, the Arbitrator will
decide that issue. Any postponement or cancellation fee imposed by the
arbitration service will be paid by the party requesting the postponement or
cancellation, unless the Arbitrator determines that such fee would cause undue
hardship on the party. At the conclusion of the arbitration, each party agrees
to promptly pay any arbitration award imposed against that party.
(e) FAILURE TO USE ARBITRATION PROCESS. Should either party
pursue any dispute subject to this Exhibit A by any method other than set forth
herein, the responding party shall be entitled to recover from the initiating
party all damages, costs, expenses and attorneys' fees incurred as a result of
appearing in, dismissing, staying or litigating such action.
(f) COMPLETE AGREEMENT. This Exhibit A is the complete
agreement of the parties on the subject of arbitration of claims or disputes.
This Exhibit A supersedes any prior or contemporaneous oral or written
understanding on the subject. No party is relying on any representations, oral
or written, on the subject of the effect, enforceability or meaning of this
Exhibit A, except as specifically set forth in this Exhibit A.
PLEASE READ CAREFULLY. BY SIGNING THE AGREEMENT, YOU ARE GIVING UP YOUR RIGHT TO
FILE A LAWSUIT IN A COURT OF LAW AND TO HAVE YOUR CASE HEARD BY A JUDGE AND/OR
JURY.
