EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") is made effective as
of June 1, 2002 ("Effective Date"), by and between 2 Chansis, Inc., a California
corporation ("Company") and ▇▇▇ ▇. ▇▇▇▇▇, ▇▇. ("Executive").
The parties agree as follows:
1. EMPLOYMENT. Company hereby employs Executive, and Executive
hereby accepts such employment, upon the terms and conditions set forth herein.
2. DUTIES.
2.1 POSITION. Executive is employed as Chief Executive
Officer and shall have the duties and responsibilities assigned by Company's
Board of Directors ("Board of Directors") both upon initial hire and as may be
reasonably assigned from time to time. Executive shall perform faithfully and
diligently all duties assigned to Executive. Company reserves the right to
modify Executive's position and duties at any time in its sole and absolute
discretion, provided that the duties assigned are consistent with the position
of a senior executive and that Executive continues to report to the Board of
Directors.
2.2 BEST EFFORTS/FULL-TIME. Executive will expend Executive'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. Executive will act in the best interest of Company at
all times. Executive shall devote no less than 90% of Executive's full business
time and efforts to the performance of Executive's assigned duties for Company,
unless Executive notifies the Board of Directors in advance of Executive's
intent to engage in other paid work and receives the Board of Directors' express
written consent to do so.
2.3 WORK LOCATION. Executive's principal place of work shall
be located in Carlsbad, California or such other location as the parties may
agree upon from time to time.
3. TERM.
3.1 INITIAL TERM. The employment relationship pursuant to
this Agreement shall be for an initial term commencing on the Effective Date set
forth above and continuing for a period of five (5) years following such date
("Initial Term"), unless sooner terminated in accordance with section 7 below.
3.2 RENEWAL. On completion of the Initial Term specified in
subsection 3.1 above, this Agreement will automatically renew for subsequent one
year terms unless either party provides thirty (30) days' advance written notice
to the other that Company/Executive does not wish to renew the Agreement for a
subsequent one year term. In the event either party gives notice of nonrenewal
pursuant to this subsection 3.2, this Agreement will expire at the end of the
current term.
4. COMPENSATION.
4.1 BASE SALARY. As compensation for Executive's performance
of Executive's duties hereunder, Company shall pay to Executive an initial Base
Salary as set forth in SCHEDULE A attached hereto, payable in accordance with
the normal payroll practices of Company, less required deductions for state and
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federal withholding tax, social security and all other employment taxes and
payroll deductions. In the event Executive's employment under this Agreement is
terminated by either party, for any reason, Executive will earn the Base Salary
prorated to the date of termination.
4.2 INCENTIVE COMPENSATION. Executive will be eligible to
earn incentive compensation in accordance with the provisions set forth in
SCHEDULE A
5. CUSTOMARY FRINGE BENEFITS. Executive will be eligible for all
customary and usual fringe benefits generally available to executives of Company
subject to the terms and conditions of Company's benefit plan documents. Company
reserves the right to change or eliminate the fringe benefits on a prospective
basis, at anytime, effective upon notice to Executive.
6. BUSINESS EXPENSES. Executive will be reimbursed for all
reasonable, out-of-pocket business expenses incurred in the performance of
Executive's duties on behalf of Company. To obtain reimbursement, expenses must
be submitted promptly with appropriate supporting documentation in accordance
with Company's policies.
7. TERMINATION OF EXECUTIVE'S EMPLOYMENT.
7.1 TERMINATION FOR CAUSE BY COMPANY. Although Company
anticipates a mutually rewarding employment relationship with Executive, Company
may terminate Executive's employment immediately at any time for Cause. For
purposes of this Agreement, "Cause" is defined as: (a) acts or omissions
constituting gross negligence, recklessness or willful misconduct on the part of
Executive with respect to Executive's obligations or otherwise relating to the
business of Company; (b) Executive's material breach of this Agreement or
Company's Employee Innovations and Proprietary Rights Agreement; (c) Executive's
conviction or entry of a plea of nolo contendere for fraud, misappropriation or
embezzlement, or any felony or crime of moral turpitude; (d) Executive's willful
neglect of duties as determined in the sole and exclusive discretion of the
Board of Directors; (e) Executive's failure to perform the essential functions
of Executive's position, with or without reasonable accommodation, due to a
mental or physical disability; or (f) Executive's death. In the event
Executive's employment is terminated in accordance with this subsection 7.1,
Executive shall be entitled to receive only the Base Salary then in effect,
prorated to the date of termination. All other Company obligations to Executive
pursuant to this Agreement will become automatically terminated and completely
extinguished. Executive will not be entitled to receive the Severance Payment
described in subsection 7.2 below.
7.2 TERMINATION WITHOUT CAUSE BY COMPANY/SEVERANCE. Company
may terminate Executive's employment under this Agreement without Cause at any
time on thirty (30) days' advance written notice to Executive. In the event of
such termination, Executive will receive the Base Salary then in effect,
prorated to the date of termination, and a "Severance Payment" equivalent to the
sum of two years of Executive's Base Salary then in effect on the date of
termination and twenty-four times the Executive's average monthly bonus over the
preceding six months, payable in accordance with Company's regular payroll
cycle, provided that Executive: (a) complies with all surviving provisions of
this Agreement as specified in subsection 13.8 below; (b) executes a full
general release, releasing all claims, known or unknown, that Executive may have
against Company arising out of or any way related to Executive's employment or
termination of employment with Company; and (c) agrees to act as a consultant
for Company, without further compensation, for six (6) months following the
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termination of the employment relationship, if requested to do so by Company.
For purposes of the Clause (c), the Severance Payment shall be deemed, in part,
compensation for the consulting services to be provided by Executive during such
period. All other Company obligations to Executive will be automatically
terminated and completely extinguished.
7.3 VOLUNTARY RESIGNATION BY EXECUTIVE FOR GOOD
REASON/SEVERANCE. Executive may voluntarily resign Executive's position with
Company for Good Reason, at any time on thirty (30) days' advance written
notice. In the event of Executive's resignation for Good Reason, Executive will
be entitled to receive the Base Salary then in effect, prorated to the date of
termination, and the Severance Payment described in subsection 7.2 above,
provided Executive complies with all of the conditions in subsection 7.2 above.
All other Company obligations to Executive pursuant to this Agreement will
become automatically terminated and completely extinguished. Executive will be
deemed to have resigned for Good Reason in the following circumstances: (a)
Company's material breach of this Agreement; (b) Executive's Base Salary is
reduced by more than 50% below Executive's salary in effect at any time during
the preceding twelve months, unless the reduction is made as part of, and is
generally consistent with, a general reduction of senior executive salaries; (c)
Executive's position and/or duties are modified so that Executive's duties are
no longer consistent with the position of a senior executive; or (d) Company
relocates Executive's principal place of work to a location more than sixty (60)
miles from the location specified in subsection 2.3, without Executive's prior
written approval.
7.4 VOLUNTARY RESIGNATION BY EXECUTIVE WITHOUT GOOD REASON.
Executive may voluntarily resign Executive's position with Company without Good
Reason, at any time after the Initial Term, on thirty (30) days' advance written
notice. In the event of Executive's resignation without Good Reason, Executive
will be entitled to receive only the Base Salary for the thirty-day notice
period and no other amount for the remaining months of the subsequent renewal
term, if any. All other Company obligations to Executive pursuant to this
Agreement will become automatically terminated and completely extinguished. In
addition, Executive will not be entitled to receive the Severance Payment
described in subsection 7.2 above.
7.5 TERMINATION UPON A CHANGE IN CONTROL.
(a) SEVERANCE PAYMENT. If Executive's employment is
terminated by Company within twelve (12) months after a Change in Control (as
that term is defined below), other than for Cause (as defined in subsection 7.1
above), Executive shall be entitled to receive the Severance Payment described
in subsection 7.2 above, provided Executive complies with all the conditions
described in subsection 7.2 above.
(b) 280G. If, due to the benefits provided under
subsection 7.5(a) above, Executive is subject to any excise tax due to
characterization of any amounts payable under subsection 7.5(a) as excess
parachute payments pursuant to Section 4999 of the Internal Revenue Code of
1986, as amended (the "Code"), the amounts payable under subsection 7.5(a) will
be reduced (to the least extent possible) in order to avoid any "excess
parachute payment" under section 280G(b)(1) of the Code.
(c) CHANGE OF CONTROL. A Change of Control is defined
as any one of the following occurrences:
(i) Any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange
Act")), other than a trustee or other fiduciary holding securities of Company
under an employee benefit plan of Company, becomes the "beneficial owner" (as
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defined in Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of the securities of Company representing more than 50% of (A) the
outstanding shares of common stock of Company or (B) the combined voting power
of the Company's then-outstanding securities; or
(ii) the sale or disposition of all or
substantially all of Company's assets (or any transaction having similar effect
is consummated); or
(iii) Company is party to a merger or
consolidation that results in the holders of voting securities of Company
outstanding immediately prior thereto failing to continue to represent (either
by remaining outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting power of the voting
securities of Company or such surviving entity outstanding immediately after
such merger or consolidation; or
(iv) the dissolution or liquidation of
Company.
7.6 TERMINATION OF EMPLOYMENT UPON NONRENEWAL. In the event
either party decides not to renew this Agreement for a subsequent one year term
in accordance with subsection 3.2 above, this Agreement will expire, Executive's
employment with Company will terminate and Executive will only be entitled to
Executive's Base Salary paid through the last day of the current term. All other
Company obligations to Executive pursuant to this Agreement will become
automatically terminated and completely extinguished. Executive will not be
entitled to receive the Severance Payment described in subsection 7.2 above.
8. NO CONFLICT OF INTEREST. During the term of Executive's
employment with Company and during any period Executive is receiving payments
from Company pursuant to this Agreement (including the period during which
Executive is acting as a consultant pursuant to Section 7.2 (d)), Executive must
not engage in any work, paid or unpaid, that creates an actual or potential
conflict of interest with Company. 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, stockholder, volunteer, lender, or
agent of any business enterprise of the same nature as, or which is in direct
competition with, the business in which Company is now engaged or in which
Company becomes engaged during the term of Executive's employment with Company,
as may be determined by the Board of Directors in its sole discretion. If the
Board of Directors believes such a conflict exists during the term of this
Agreement, the Board of Directors may ask Executive to choose to discontinue the
other work or resign employment with Company. If the Board of Directors believes
such a conflict exists during any period in which Executive is receiving
payments pursuant to this Agreement, the Board of Directors may ask Executive to
choose to discontinue the other work or forfeit the remaining severance
payments. In addition, Executive agrees not to refer any client or potential
client of Company to competitors of Company, without obtaining Company's prior
written consent, during the term of Executive's employment and during any period
in which Executive is receiving payments from Company pursuant to this
Agreement. Notwithstanding the foregoing, Executive has notified Company of, and
Company has consented to, Executive acting as an advisor to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GmbH
and WeIlCare Solutions, pursuant to which Executive may be listed as a partner
in ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GmbH's and WeIlCare Solutions' marketing materials and
Executive may receive compensation for certain services rendered in a limited,
part-time capacity.
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9. CONFIDENTIALITY AND PROPRIETARY RIGHTS. Executive agrees to
read, sign and abide by Company's Employee Innovations and Proprietary Rights
Assignment Agreement, which is provided with this Agreement and incorporated
herein by reference.
10. NONSOLICITATION. Executive understands and agrees that
Company's employees and customers and any information regarding Company
employees and/or customers is confidential and constitutes trade secrets.
10.1 NONSOLICITATION OF CUSTOMERS OR PROSPECTS. Executive
agrees that during the term of this Agreement and for a period of one (1) year
after the termination of this Agreement, Executive will not, either directly or
indirectly, separately or in association with others, interfere with, impair,
disrupt or damage Company's relationship with any of its customers or customer
prospects by soliciting or encouraging others to solicit any of them for the
purpose of diverting or taking away business from Company.
10.2 NONSOLICITATION OF COMPANY'S EMPLOYEES. Executive agrees
that during the term of this Agreement and for a period of one (1) year after
the termination of this Agreement, Executive will not, either directly or
indirectly, separately or in association with others, interfere with, impair,
disrupt or damage Company's business by soliciting, encouraging or attempting to
hire any of Company's employees or causing others to solicit or encourage any of
Company's employees to discontinue their employment with Company.
11. INJUNCTIVE RELIEF. Executive acknowledges that Executive's
breach of the covenants contained in sections 8-10 (collectively "Covenants")
would cause irreparable injury to Company and agrees that in the event of any
such breach, Company shall be entitled to seek temporary, preliminary and
permanent injunctive relief without the necessity of proving actual damages or
posting any bond or other security.
12. AGREEMENT TO ARBITRATE. To the fullest extent permitted by
law, Executive and Company agree to arbitrate any controversy, claim or dispute
between them arising out of or in any way related to this Agreement, the
employment relationship between Company and Executive and any disputes upon
termination of employment, including but not limited to breach of contract,
tort, discrimination, harassment, wrongful termination, demotion, discipline,
failure to accommodate, family and medical leave, compensation or benefits
claims, constitutional claims; and any claims for violation of any local, state
or federal law, statute, regulation or ordinance or common law. Claims for
workers' compensation, unemployment insurance benefits, breach of Company's
Employee Innovations and Proprietary Rights Agreement and Company's right to
obtain injunctive relief pursuant to section 11 above are excluded. For the
purpose of this agreement to arbitrate, references to "Company" include all
parent, subsidiary or related entities and their employees, supervisors,
officers, directors, agents, pension or benefit plans, pension or benefit plan
sponsors, fiduciaries, administrators, affiliates and all successors and assigns
of any of them, and this agreement shall apply to them to the extent Executive's
claims arise out of or relate to their actions on behalf of Company.
12.1 CONSIDERATION. The mutual promise by Company and
Executive to arbitrate any and all disputes between them (except for those
referenced above) rather than litigate them before the courts or other bodies,
provides the consideration for this agreement to arbitrate.
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12.2 INITIATION OF ARBITRATION. Either party may exercise the
right to arbitrate by providing the other party with written notice of any and
all claims forming the basis of such right in sufficient detail to inform the
other party of the substance of such claims. In no event shall the request for
arbitration be made after the date when institution of legal or equitable
proceedings based on such claims would be barred by the applicable statute of
limitations.
12.3 ARBITRATION PROCEDURE. The arbitration will be conducted
in San Diego, California by a single neutral arbitrator and in accordance with
the then current rules for resolution of employment disputes of the American
Arbitration Association ("AAA"). The parties are entitled to representation by
an attorney or other representative of their choosing. The arbitrator shall have
the power to enter any award that could be entered by a judge of the trial court
of the State of California, and only such power, and shall follow the law. The
parties agree to abide by and perform any award rendered by the arbitrator. The
arbitrator shall issue the award in writing and therein state the essential
findings and conclusions on which the award is based. Judgment on the award may
be entered in any court having jurisdiction thereof.
12.4 COSTS OF ARBITRATION. Company shall bear the costs of
the arbitration filing and hearing fees and the cost of the arbitrator.
13. GENERAL PROVISIONS.
13.1 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. Executive shall not be entitled to
assign any of Executive's rights or obligations under this Agreement.
13.2 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.
13.3 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.
13.4 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.
13.5 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 Executive has participated in the negotiation of its terms.
Furthermore, Executive acknowledges that Executive 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.
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13.6 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 Diego, California, if applicable, in any action, suit, or
proceeding arising out of or relating to this Agreement.
13.7 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 parry may specify in writing.
13.8 SURVIVAL. Sections 8 ("No Conflict of Interest"), 9
("Confidentiality and Proprietary Rights"), 10 ("Nonsolicitation"), 11
("Injunctive Relief"), 12 ("Agreement to Arbitrate"), 13 ("General Provisions")
and 14 ("Entire Agreement") of this Agreement shall survive Executive's
employment by Company.
14. ENTIRE AGREEMENT. This Agreement, including the Company
Employee Innovations and Proprietary Rights Assignment Agreement incorporated
herein by reference 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
Executive and the Board of Directors of Company. No oral waiver, amendment or
modification will be effective under any circumstances whatsoever.
THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY
UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES
HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Dated: 7/1/02 /s/ ▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2 CHANSIS, INC., a California corporation
Dated: 7/1/02 By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇, President
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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