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EXHIBIT 10.3
SENIOR EXECUTIVE EMPLOYMENT AGREEMENT
Emerald Solutions, Inc. (Emerald Solutions), whose address is 000 -
000xx Xxxxxx X.X., Xxxxx 0000, Xxxxxxxx, Xxxxxxxxxx 00000 and Xxxxx X. Xxxxx
(Executive), whose address is 0000 X. Xxxxxxxx, Xxxxxxx, Xxxxxxxx, 00000, enter
this agreement.
The parties acknowledge that Emerald Solutions sells and implements
software-based custom strategic solutions and that Executive is an experienced
and successful manager and leader.
Emerald Solutions hires Executive under these terms:
1. EMPLOYMENT
1.1 LENGTH. Executive's employment with Emerald Solutions begins on
January 27, 1997 (Effective Date), and continues until ended as
this Agreement provides.
1.2 FULL TIME. Executive will work full time. Executive will devote
his good faith efforts in support of Emerald Solutions'
operations and goals, during the entire term of this Agreement.
While Executive's employment by Emerald Solutions under this
Agreement continues, Executive will not engage in any other
employment or consulting without Emerald Solutions' advanced
written knowledge.
2. EXECUTIVE'S DUTIES.
Executive will serve as Emerald Solutions' Chief Financial
Officer. If Emerald Solutions reassigns Executive without Executive's
consent, the Executive may, at the Executive's option, decline to accept
the change in title or the new assignment and elect instead to treat it
as termination without cause by Emerald Solutions.
3. COMPENSATION PLAN.
3.1 PAY. Emerald Solutions will pay Executive initially at the rate
of $175,000 a year (Base Salary), payable in equal increments on
Emerald Solutions' standard payroll schedules, which are
bi-weekly as of the date of this Agreement. Payment will begin
as of the first standard payroll following the Effective Date.
Executive's compensation will otherwise be reviewed on an annual
basis, as with other executives of the Company.
3.2 STOCK OPTIONS. Executive will be granted 200,000 stock options
on the Effective Date under Emerald Solutions' Stock Option
Plan.
3.3 BONUS. Based on performance criterion established by Executive
and Emerald Solutions Chief Executive Officer, Executive will be
eligible for a bonus up to $50,000.00. To be eligible for this
payment, Executive must be an active employee at end of calendar
year. During first year of employment, any payments will be
prorated based on the number of full calendar months of
employment. This bonus may be doubled based upon the Company
exceeding its financial plan by a specified level.
3.4 RELOCATION. Emerald Solutions will provide up to $25,000 in
relocation assistance to help in Executive's move to Washington.
Should Executive voluntarily terminate employment with Emerald
Solutions within twelve (12) months from Effective Date,
Executive will be responsible for returning a pro-rated amount
of relocation assistance back to Emerald Solutions.
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3.5 OTHER COMPENSATION.
3.5.1 HEALTH INSURANCE BENEFITS. Emerald Solutions will pay
medical insurance, life insurance, disability insurance,
retirement, and other fringe benefits in accordance with
Emerald Solutions' then existing policies applicable
generally to senior executives.
3.5.2 REIMBURSEMENT. Emerald Solutions will reimburse
Executive for all expenses reasonably incurred in
discharging duties as an employee of Emerald Solutions,
subject to Emerald Solutions' standard policies for
amounts and documentation to which all comparable
employees may be subject from time to time.
3.5.3 VACATION/PERSONAL TIME. Executive shall be entitled to
vacation and sick time in accordance with Emerald
Solutions' then existing Earned-Time-Off (ETO) policies
applicable generally to senior management.
4. TERMINATION.
4.1 VOLUNTARY BY EXECUTIVE. Executive may resign from Emerald
Solutions by one month's notice.
4.2 VOLUNTARY BY EMERALD SOLUTIONS. Emerald Solutions may end
Executive's employment, without cause, by Notice, subject to
Emerald Solutions' obligation to pay termination pay noted
below.
4.3 WITH CAUSE. For the purposes of this Agreement, to be terminated
With Cause shall only mean termination for (a) failure or
refusal to carry out directions of the Board of Directors and/or
Emerald Solutions' senior executive officers, which directions
are reasonably consistent with the duties set forth to be
performed by Executive; (b) an act which results in Executive
being convicted of a felony; or (c) an act of misappropriation
of Emerald Solutions' monies or assets, fraud and/or dishonesty
or disloyalty to Emerald Solutions, such as but not limited to a
violation of Executive's obligations under Section 5 or 7 of
this Agreement. Emerald Solutions may terminate this Agreement
effective as of the date Notice of Termination With Cause is
given specifying the cause.
4.4 COMPENSATION ON TERMINATION. Following termination, Emerald
Solutions will pay these things:
4.4.1 COMPENSATION AND EARNED VACATION EARNED THROUGH
TERMINATION DATE. Executive's Base Salary and bonuses as
earned through the termination date, and a buyout of all
accumulated but unused ETO time, to be paid within
thirty days of termination.
4.4.2 BASE EXTENSION. Unless Employee is terminated With
Cause, or voluntarily resigns for reasons other than a
breach of Emerald Solutions' obligations to the
Executive of which the Executive has given Emerald
Solutions Notice and at least thirty days opportunity to
cure, Emerald Solutions will continue Employee's Base
Salary for the longer of three months after the
termination date, or one year after the Effective Date
of this Agreement. Payment of the Executive's Base
Salary shall be made on Emerald Solutions' standard
payroll schedules from the date of termination, as if
the Executive had not been terminated.
4.4.3 LIMIT TO PAY. Emerald Solutions shall not pay Executive
any continuation of base salary under Section 4.4.2 for
any period during which Executive violates his
obligation under Section 5 or 7 of this Agreement.
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4.5 OFFSET. To the extent permissible under applicable law, without
prejudice to other remedies, Emerald Solutions may offset any
amounts Executive owes Emerald Solutions against any amounts due
upon termination or thereafter.
5. CONFIDENTIALITY.
5.1 CONFIDENTIALITY. Executive will keep Emerald Solutions' Data
confidential. In doing so, Executive will not disclose Emerald
Solutions' Data directly or indirectly to any person, other than
an employee of Emerald Solutions or a person to whom disclosure
is reasonably necessary or appropriate to further Emerald
Solutions' business.
5.2 EMERALD SOLUTION'S DATA. Emerald Solutions' Data consists of any
trade secret or proprietary or confidential information of
Emerald Solutions or of any Emerald Solutions affiliate. Emerald
Solution's Data includes, but is not limited to, records, files,
memorandum, reports, price lists, software, customer lists,
drawings, sketches, documents, equipment, and the like relating
to Emerald Solutions business which Executive uses, prepares, or
comes in contact with during the course of his work for Emerald
Solutions. Any information known generally to the public or any
information of a type not otherwise generally considered
confidential by persons engaged in the same business will not be
treated as confidential.
5.3 THIRD PARTY DATA. Executive will also keep third party Data
confidential as required by Emerald Solutions; obligations to
the third party, for at least as long as is required for Emerald
Solutions' Data, but longer if required by any agreement Emerald
Solutions enters into with the third party.
5.4 RETURN ON TERMINATION. Executive will return all Emerald
Solutions' Data and third party data on termination of this
Agreement.
5.5 SURVIVAL OF OBLIGATION. The provisions of this Section 5 shall
survive termination of this Agreement.
6. INVENTIONS
6.1 DEFINITIONS. "Inventions" means new ideas, improvements, or
discoveries, whether or not patentable or copyrightable, as well
as other newly discovered or newly applied information or
concepts. An Invention is a "Covered Invention" if it relates to
Emerald Solutions' actual or anticipated business; or was
developed in any part using Emerald Solutions' resources (time,
supplies, facilities, or data); or it if results from or is
suggested by a task assigned to, or work performed for Emerald
Solutions by Executive. As used in this Section 6, "Emerald
Solutions" includes Emerald Solutions' sister corporations or
subsidiaries and Emerald Solutions' clients, consultants, and
contractors.
6.2 ASSIGNMENT. All Executive's right, title and interest to any
Covered Inventions that Executive makes or conceives while
employed by Emerald Solutions, belong to Emerald Solutions. This
Agreement operates as a prospective assignment of all those
rights to Emerald Solutions.
6.3 OBLIGATION. The provisions of this Section 6 shall survive
termination of this Agreement.
6.4 NOTICE. Notwithstanding any other provision of this Agreement to
the contrary, this Agreement does not obligate Executive to
assign or offer to assign to Emerald Solutions any of
Executive's rights in an invention for which no equipment,
supplies, facilities or trade secret information of Emerald
Solutions was used and which was developed entirely on
Executive's own time, unless (a) the invention relates (i)
directly to the business of Emerald Solutions or (ii) to Emerald
Solutions' actual or demonstrably anticipated research or
development or (b) the invention results from any work performed
by Executive for Emerald Solutions. This satisfies the written
notice and other requirements of RCW49.44.140.
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7. NON-COMPETITION; NON-SOLICITATION.
7.1 COMPETING DEFINED. During Executive's employment with Emerald
Solutions, and for eighteen months afterward, unless Emerald
Solutions consents in writing, Executive will not compete with
Emerald Solutions, or solicit business from Emerald Solutions'
customers. This commitment will not survive termination of this
Agreement if the Executive voluntarily terminates his employment
as a result of Emerald Solutions' breach of its obligations to
the Executive under this Agreement, provided the Executive has
first given Emerald Solutions Notice of the breach and at least
thirty days' opportunity to cure it.
7.1.1. COMPETING DEFINED. "Competing" means to provide any
services or knowledge in the area of information
technology directly or indirectly to an Emerald
Solutions' customer. Service is "indirect" if the
service is provided to another person or company who in
turn provides it to an Emerald Solutions' customer.
"Service" includes acting as an employee, independent
contractor, consultant, officer, director, or agent.
Being employed by a company that itself provides service
to an Emerald Solutions' customer or competes with
Emerald Solutions is not competition unless the
Executive himself is providing the service directly, or
gives assistance that is substantively related to a
particular Emerald Solutions' customer or to providing
services or knowledge that competes with Emerald
Solutions to others to help them perform those services
or compete directly.
7.1.2. SOLICITING BUSINESS DEFINED. "Soliciting business" means
with respect to custom solutions, performing work for or
soliciting work from anyone who has been a customer or
client of Emerald Solutions, or providing knowledge or
assistance to another for any of those purposes, on
either a consulting or an employment basis.
7.1.3. EMERALD SOLUTIONS' CUSTOMERS DEFINED. Emerald Solutions'
"customers" are:
(a) EXISTING. Entities or individuals who have
purchased consulting or programming services,
software, or goods from Emerald Solutions at
anytime within three years before the day
employment ends.
(b) ACTIVE PROSPECTS. Entities or individuals who
are active prospects of Emerald Solutions. An
active prospect is one upon whom more than three
calls have been made in any one-month period, or
to whom a proposal has been submitted or by whom
a proposal has been requested, and from whom, on
the date employee's employment terminates,
Emerald Solutions reasonably believes it may
secure work or product or service orders.
(c) DEPARTMENTS OR DIVISIONS OF CUSTOMERS. In the
event a customer has more than one department
and/or division, only the particular department
and/or division which would otherwise qualify as
an Emerald Solutions' Customer, if considered
independently, shall be deemed a customer of
Emerald Solutions under this paragraph 7.1.3,
and not any other department or division.
7.2 NON-HIRING. During Executive's employment and for eighteen
months afterward, unless Emerald Solutions consents in writing,
Executive will not solicit or assist in the solicitation of
Emerald Solutions' employees.
7.3 SURVIVAL OF OBLIGATION. The provisions of this Section 7 shall
survive termination of this Agreement.
8. NO CONFLICTING OBLIGATIONS.
8.1 VIOLATION OF OTHER AGREEMENTS. Execution, delivery and
performance of this Agreement and the performance of Executive's
other obligations and duties to Emerald Solutions will not cause
any
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breach, default or violation of any other employment,
nondisclosure, confidentiality, consulting or other agreement to
which Executive is a party or by which Executive may be bound.
8.2 DISCLOSURE OF OTHER TRADE SECRETS. Executive will not use in
performance of Executive's work for Emerald Solutions or
disclose to Emerald Solutions any trade secret, confidential or
proprietary information of any prior employer or other Person if
and to the extent that such use or disclosure may cause a
breach, default, or violation of any obligation or duty that
Executive owes to such other person (e.g., under any agreement
or applicable law). Executive's compliance with this paragraph
will not prohibit, restrict or impair the performance of
Executive's work, obligations and duties to Emerald Solutions.
8.3 FALSE REPRESENTATIONS. Executive will not (a) make any false,
misleading or disparaging representations or statements with
regard to Emerald Solutions or the products or services of
Emerald Solutions or (b) make any statement that may impair or
otherwise adversely affect the goodwill or reputation of Emerald
Solutions.
9. OTHER MATTERS.
9.1 EMPLOYMENT AT WILL. Executive's employment with Emerald
Solutions is "at will" and may be terminated at any time by
Executive or an executive of Emerald Solutions. This Agreement
will survive any termination of Executive's employment.
9.2 NOTICE. Notice to Executive shall be sent to Executive's most
recent address shown in Emerald Solutions' personnel records.
Notice to Emerald Solutions shall be sent to Emerald Solutions'
headquarters address, marked attention: President. Either party
may change its address by Notice. Notice shall be effective when
the person to whom it is sent actually gets it, if sent by any
method that leaves a paper or electronic record in the hands of
the recipient. If sent certified or registered mail, postage
prepaid, return receipt requested, to the proper address this
section defines, notice shall be considered effective whether or
not actually received on the date the return receipt shows the
notice was accepted, refused, or returned undeliverable.
9.3 SEVERABILITY. This agreement will be enforced to the fullest
extent permitted by applicable law. If for any reason any
provision of this Agreement is held to be invalid or
unenforceable to any extent, then (a) such provision will be
interpreted, construed or reformed to the extent reasonably
required to render the same valid, enforceable and consistent
with the original intent underlying such provision and (b) such
invalidity or unenforceability will not affect any other
provision of this Agreement or any other agreement between
Emerald Solutions and Executive. If the invalidity or
unenforceability is due to the unreasonableness of the scope or
duration of the provision, the provision will remain effective
for such scope and duration as may be determined to be
reasonable.
9.4 NON-WAIVER. The failure of Emerald Solutions to insist upon or
enforce strict performance of any provision of this Agreement or
to exercises any of its rights or remedies under this Agreement
will not be construed as a waiver or a relinquishment to any
extent of Emerald Solutions' rights to assert or rely on any
such provision, right or remedy in that or any instance, rather,
the same will be and remain in full force and effect.
9.5 ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of Emerald Solutions, its successors and assigns and
shall be binding upon and inure to the benefit of Executive, and
Executive's administrators, executors, legatees, and heirs. This
Agreement shall not be assigned by Executive.
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EMERALD SOLUTIONS, INC. XXXXX X. XXXXX:
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Title: Chairman and Chief Date: January 7, 1997
Executive Officer
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Date: January 7, 1997
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