EXHIBIT 10.33
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of August 22, 2003, (the
`Effective Date") by and between EXTENDED SYSTEMS, INCORPORATED, a Delaware
corporation (hereinafter referred to as the `Employer"), and Xxxxxxx Xxxxxx
hereinafter referred to as the `Employee").
WITNESSETH:
The Employer wishes to employ the Employee, and the Employee agrees to
accept such employment, on the terms and conditions set forth herein.
NOW THEREFORE, based on the foregoing premises and for and in
consideration of the mutual promises contained herein, the Employer and Employee
agree as follows:
1. Employment. From and after the Effective Date, Employer agrees to
employ the Employee and Employee agrees to accept such employment as the
President and CEO of Extended Systems, Incorporated (the `Employer"). Employee
and Employer acknowledge and agree that such employment will be in accordance
with Employer's standard employment policies, and Employee agrees to be bound by
such employment policies, which shall be in addition to the terms and conditions
contained herein. Employee further acknowledges that Employer policy manual or
other similar documents are to be explanations of benefits or programs, and they
do not change the terms of this Employment Agreement.
2. At-Will Employment. The parties agree that Employee's employment
with the Employer will be "at-will" employment and may be terminated at any time
with or without cause or notice. Employee understands and agrees that neither
his/her job performance nor promotions, commendations, bonuses or the like from
the Employer give rise to or in any way serve as the basis for modification,
amendment, or extension, by implication or otherwise, of his/her employment with
the Employer.
3. Duties of Emulovee. Employee agrees to perform the duties
commensurate with employee's position and experience and as shall be assigned to
employee from time to time by the Employer. Employee shall perform such duties
in a diligent and loyal manner, shall devote his/her entire business time,
attention, and efforts to the affairs of Employer within the scope of his/her
employment as is reasonably necessary for the proper rendition of such services
and shall diligently promote the interest of Employer. Employee shall not
intentionally take any action against the best interest of Employer, or of
Employer's parent, any other subsidiary, or affiliate of Employer. Employee
agrees not to actively engage in any other employment, occupation or consulting
activity for any direct or indirect remuneration without the prior approval of
the Employer. Employee and the company will mutually agree if the employee's
participation on outside boards of directors will be acceptable
4. Scone of Emplovment. The general scope of Employee's employment
shall be to serve as the President and CEO for Employer and to perform such
duties as described in Exhibit "A", attached hereto, and such other duties as
may be mutually agreed upon by the parties in accordance therewith as Employer
may reasonably request.
5. Compensation.
(a) Base Salary. While employed hereunder, the Employer will pay
Employee as compensation for his services a base salary at the monthly rate of
$17,500 (the "Base Salary"). The Base Salary will be paid periodically in
accordance with the Employer's normal payroll practices and be subject to the
usual, required withholding. In addition to base pay, employee will be entitled
to a bonus plan. Current bonus plan targets and details are outlined and
attached in Exhibit "B" Subsequent bonus plan targets and details will be agreed
upon at the beginning of each fiscal year by employee and employer. The employee
shall also be entitled to participate in any generally applicable executive
stock and cash compensation bonus plans, when put in place by the CEO and
compensation committee of the Board of Directors of the company.
(b) Stock Option. On the "effective date", Employee will be granted
a stock option to purchase 213,333 shares at an exercise price per share equal
to the per share FMV of ESI Stock on the date of grant (the "Option"). The
Option will vest as to 25% of the shares shall vest twelve months after the
Vesting Commencement Date, and as to 1148th of the shares subject to the Option
shall vest each month thereafter, so that the Option will be fully vested and
exercisable four (4) years from the date of grant, subject to Employee's
continued service to the Employer on the relevant vesting dates. The Option will
be subject to the terms, definitions and provisions of the Employer's Stock Plan
and the stock option agreement by and between Employee and the Employer, both of
which documents are incorporated herein by reference; provided, that Employee
shall have until the first anniversary of his termination date (or second
anniversary in the event Section 8(b) applies) to exercise any options which are
vested or deemed vested as of such date. Options will be priced at FMV at close
of market on the date of the grant.
(c) Employee Benefits. While employed hereunder, Employee will be
entitled to participate in the employee benefit plans currently and hereafter
maintained by the Employer of general applicability to other employees of the
Employer, including, without limitation, the Employer's group medical, dental,
vision, disability, and life insurance plans. The Employer reserves the right to
cancel or change the benefit plans and programs it offers to its employees at
any time.
6. Vacation. Employee shall accrue three (3) weeks of paid vacation in
accordance with Employer's time-off policy. Vacation is subject to the
requirements of Employer's time-off policy. In the event Employee is terminated
for any reason, Employee shall be paid his/her accrued vacation at 100 % of
normal base pay
7. Notice of Termination. Each party agrees to provide the other with
14 days notice of termination, provided, however, this shall not alter any other
term of this Agreement.
8. Severance Pay.
(a) Termination Without Cause: Constructive Termination. Except as
provided in Section 8(b), in the event EMPLOYEE is terminated without cause, or
in the event any of the following events occur without EMPLOYEE'S consent: (i)
EMPLOYEE is relocated; (ii) EMPLOYEE'S overall compensation package (including
but not limited to salary,, bonus, commission structure, fringe benefits,
perquisites, and vacation time) is detrimentally changed or modified other than
in connection with a general change in compensation for all ESI employees or for
all ESI employees in any group or classification that includes EMPLOYEE
(provided that any reduction in compensation is made as a result of a decline in
ESI's economic conditions, is temporary, and is no greater than twenty percent
(20%) of Base Salary); or (iii) EMPLOYEE'S position within ESI (including
EMPLOYEE'S officer status with ESI or its parent), or any of the duties,
responsibilities or requirements of EMPLOYEE'S position, are substantially
changed or modified, then EMPLOYEE shall be entitled to receive the following:
(A) an amount equal to six (6) months of Base Salary at EMPLOYEE'S then current
Base Salary; (B) $3,000.00 in lieu of fringe benefits; (C) all salary, vacation
time and other benefits earned and accrued to the date of termination; and (D) a
pro rata bonus for the year in which termination occurs assuming the EMPLOYEE
would have received a bonus. In order to receive the severance payment under
this Section 8(a), EMPLOYEE must execute a mutually agreeable form of "Release
of All Employment Claims." Participation in all stock option plans, stock
purchase plans, and other company personnel benefits shall cease on the
EMPLOYEE'S date of termination, subject to the specific provisions of option
agreements or plans that may extend EMPLOYEE'S rights beyond the date of
termination.
(b) Chance in Control. Notwithstanding the foregoing, if within 12
months following a Change in Control, EMPLOYEE is terminated for any reason
other than for cause or any of the following events occur without EMPLOYEE'S
consent: (i) EMPLOYEE is relocated; (ii) any component of EMPLOYEE'S
compensation package (including but not limited to salary, bonus, commission
structure, fringe benefits, perquisites, and vacation time) is detrimentally
changed or modified; or (iii) EMPLOYEE'S position within the surviving entity,
or any of the duties, responsibilities or requirements of EMPLOYEE'S position,
are changed or modified in relation to EMPLOYEE'S position within ESI (including
EMPLOYEE'S officer status with ESI or its parent), then EMPLOYEE shall be
entitled to receive the following: (A) an amount equal to twelve (12) months of
Base Salary at EMPLOYEE'S then current Base Salary; (B) $6,000 in lieu of fringe
benefits; (C) all salary, vacation time and other benefits earned and accrued to
the date of termination; and (D) a pro rata bonus for the year in which
termination occurs assuming the EMPLOYEE would have received a bonus.
Furthermore, all unvested ESI stock options held
by EMPLOYEE shall automatically vest upon termination (or the occurrence of an
event described in Sections 8(bXi)-(iii)) and, on or before the ninetieth (90th)
day following termination (or the triggering event, as the case may be),
EMPLOYEE shall have the option, exercisable by delivery of written notice of
exercise to ESI or its successor, of converting any incentive stock options into
nonqualified stock options with an exercise period extending until the earliest
of twenty-four (24) months following such date, or the expiration date of such
option.
For purposes of this Agreement, a "Change In Control" shall mean the occurrence
of any of the following events:
(x) A third "person," including a "group," but excluding an existing
stockholder of ESI who is the "beneficial owner" (as these terms are
defined in or for the purposes of Section 13(d) of the Securities Exchange
Act of 1934, as amended, and as in effect on the date hereof) of more than
20% of the total number of votes that may be cast for the election of
directors of ESI, (A) becomes the beneficial owner of shares of ESI having
more than 50% of the total number of votes that may be cast for the
election of directors of ESI, or (B) otherwise is able to appoint,
designate or control, by proxy, agreement or otherwise, a majority of the
directors of ESI;
(y) The merger or consolidation of ESI with or into any other corporation
or entity or the merger or consolidation of any other corporation or entity
into or with ESI, in which case those persons who are stockholders of ESI
immediately prior to such merger or consolidation do not receive, as a
result of such merger or consolidation, more than 50% in voting power of
the outstanding capital stock of the surviving corporation; or
(z) Any sale or transfer in a single transaction or series of related
transactions of more than 50% of fair market value of ESI's assets.
Notwithstanding the above, ESI and EMPLOYEE acknowledge that this Section 8(b)
shall be triggered and EMPLOYEE shall be entitled to severance thereunder if
after execution of a definitive agreementbut . prior to the actual closing of a
Change in Control, EMPLOYEE is terminated in relation to the Change in Control.
(d) Payments. Severance payments may be paid in one lump sum or in
installments at the option of EMPLOYEE.
(e) Excess Parachute Payments. If any portion of the payments or
benefits under this Agreement or any other agreement or benefit plan of the
Company (including stock options) would be characterized as an "excess parachute
payment" to the Employee under Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"), the Employee shall be paid any excise tax that
the Employee owes under Section 4999 of the Code as a result of such
characterization, such excise tax to be paid to the Employee at least ten (10)
days prior to the date that he or she is obligated to make the excise tax
payment. The determination of whether and to what extent any payments or
benefits would be "excess parachute payments" and the date by which any excise
tax shall be due, shall be determined by recognized tax counsel selected by ESI
and reasonably acceptable to the Employee.
9. Confidential Information. Employee agrees to sign the Nondisclosure
Agreement.
10. Return of Pronerty. On termination of his/her employment with
Employer, Employee will immediately surrender to Employer, in good condition,
all sales manuals, price lists, customer account lists, copies of invoices,
mailing lists, letters, notes, memoranda, design specifications, drawings,
minutes of meetings, financial reports, computer software programs, source
codes, works in progress and any other similar items that have been supplied to
Employee by Employer, or generated by Employee for the Employer's use or
business and that are in Employee's possession, custody, or control wherever
located, including all reproductions or copies of such materials. Unless the
severance is as a result of a change of control, in this event the employee will
be granted company owned office equipment in his possession, not to exceed
$5000.
11. Equitable Relief. In the event of a breach of any covenant
contained in this Agreement, the non-breaching party shall be entitled to an
injunction restraining such breach in addition to any other remedies provided by
law or in equity.
12. Assignment of Inventions.
(a) Inventions Retained and Licensed. The Employee has attached to
this Employment Agreement, as Exhibit "C" a list describing all inventions,
original works of authorship, developments, improvements, and trade secrets that
were made by him/her prior to his/her employment with the Employer, that relate
to the Employer's proposed business, products or research and development, and
that are not assigned to the Employer under this Employment Agreement
(collectively, "Prior Inventions"). If no such list is attached, the Employee
represents that there are no Prior Inventions. If in the course of the
Employee's employment with the Employer, he/she incorporates into an Employer
product, process or machine a Prior invention owned by him/her or in which
he/she have an interest, the Employer is granted a nonexclusive, royalty-free,
irrevocable, perpetual, worldwide license to make, have made, modify, use and
sell the Prior Invention as part of or in connection with the Employer's
product, process or machine.
(b) Assignment of Inventions. The Employee will promptly make a full
written disclosure to the Employer, will hold in trust for the sole right and
benefit of the Employer, and hereby assigns to the Employer, or its designee,
all his/her right, title, and interest in and to any and all inventions,
original works of authorship, developments, concepts, improvements, designs,
discoveries, ideas, trademarks or trade secrets, whether or not patentable or
registrable under copyright or similar laws, that he/she may solely or jointly
conceive or develop or reduce to practice, or cause to be conceived or developed
or reduced to practice, during the period of time the Employee is in the employ
of the Employer (collectively referred to as "Inventions"). The Employee further
acknowledges that all original works of authorship that are made by him/her
(solely or jointly with others) within the scope of and during the period of
his/her employment with the Employer and that are protectable by copyright are
"works made for hire," as that term is defined in the United States Copyright
Act. The decision whether or not to commercialize or market any Invention
developed by the Employee solely or jointly with others is within the Employer's
sole discretion and for the Employer's sole benefit. Neither the Employer nor
any other entity will pay the Employee a royalty as a result of the Employer's
efforts to commercialize or market any such Invention. The Employee will not
incorporate any original work of authorship, development, concept, improvement,
or trade secret owned, in whole or in part, by any third party, into any
Invention without the Employer's prior written permission signed by the
President of the Employer.
(c) Inventions Assigned to the United States. The Employee agrees to
assign to the United States government all his/her right, title, and interest in
and to any and all Inventions whenever such full title is required to be in the
United States by a contract between the Employer and the United States or any of
its agencies.
(d) Maintenance of Records. The Employee will keep and maintain
adequate and current written records of all Inventions made by him/her (solely
or jointly with others) during the term of his/her employment with the Employer.
The records will be in the form of notes, sketches, drawings, laboratory
notebooks, and any other format that may be specified by the Employer. At all
times, the records will (a) be available to Employer, and (b) remain the sole
property of the Employer.
(e) Patent and Convriaht Registrations. The Employee will assist the
Employer, or its designee, at the Employer's expense, in every proper way to
secure and protect the Employer's rights in the Inventions and any related
copyrights, patents, mask work rights or other intellectual property rights in
any and all countries. The Employee will disclose to the Employer all pertinent
information and data. The Employee will execute all applications,
specifications, oaths, assignments and all other instruments that the Employer
deems necessary in order to apply for and obtain such rights and in order to
assign and convey to the Employer, its successors, assigns, and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and any
related copyrights, patents, mask work rights or other intellectual property
rights. The Employee's obligation to execute or cause to be executed, when it is
in his/her power to do so, any such instrument or papers will continue after the
termination of this Employment Agreement. If the
Employer is unable because of the Employee's mental or physical incapacity or
for any other reason to secure the Employee's signature to apply for or to
pursue any application for any United States or foreign patents or copyright
registrations covering Inventions or original works of authorship assigned to
the Employer as above, then the Employee hereby irrevocably designates and
appoints the Employer and its duly authorized officers and agents as his/her
agent and attorney-in-fact. Accordingly, the Employer may act for and in the
Employee's behalf to execute and file any applications and to do all other
lawfully permitted acts to further the prosecution and issuance of letters
patent or copyright registrations with the same legal force and effect as if
executed by the Employee.
13. Conflicting Employment. During the term of the Employee's employment
with the Employer, he/she will not engage in any other employment, occupation,
consulting or other business activity directly related to the business that the
Employer is now involved or becomes involved during the term of the Employee's
employment. The Employee will also not engage in any other activities that
conflict with his/her obligations to the Employer. The employee is currently
being paid as an employee of Diligent Software Systems. This arrangement will
continue no longer than July 15, 2003. The employee has no obligations under his
agreement with Diligent Systems that require any of his time to be devoted to
that company.
14. Survival. The provisions of paragraphs 8, 9, 10, 11 and 12 hereof
shall survive the termination of the Agreement.
15. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity and enforceability of the other provisions hereof. If any
provision of this Agreement is unenforceable for any reason whatsoever, such
provision shall be appropriately limited and given effect to the extent that it
may be enforceable.
16. Governing Law. All rights and obligations of the parties arising
out of this Agreement will be construed and enforced in accordance with the laws
of the state of Idaho, without reference to its rules as to conflicts of laws.
17. Prevailing Party's Fees. If the parties hereto become parties to
any litigation, commented by or against one another involving the enforcement of
any rights or remedies under this Agreement, or arising on account of a default
of the other party in its performance of such party's obligations hereunder, the
prevailing party in such litigation shall be entitled to reimbursement of all of
its legal fees, costs, and expenses incurred in connection with such litigation,
and interest accrued thereon from the date of judgment, at the maximum rate
permitted by law.
18. Assignment. This Agreement may not be assigned or otherwise
transferred by Employer without the prior written consent of Employee, which
consent shall not be unreasonably withheld. No such consent shall be required
for a transfer of value of all or substantially all of Employer's assets,
whether such transfer is effected by asset sale, merger, stock sale or
otherwise. Any attempted assignment in violation of the provisions of this
section will be void. Subject to the foregoing, this Agreement shall be binding
on and inure to the benefit of the parties and their respective successors and
assigns.
19. Notices. All notices, requests, demands and other communications
called for hereunder shall be in writing and shall be deemed given (i) on the
date of delivery if delivered personally, (ii) one (1) day after being sent by a
well established commercial overnight service, or (iii) four (4) days after
being mailed by registered or certified mail, return receipt requested, prepaid
and addressed to the parties or their successors at the following addresses, or
at such other addresses as the parties may later designate in writing:
