Exhibit 10.22
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of
February 22, 1999, by and between ________________ (hereinafter called
"Employee") and XXXXXXX-XXXXXXX COMPANY, a California corporation (hereinafter
called the "Company").
WHEREAS, Employee and the Company have entered into that certain
Amended and Restated Severance Agreement, dated as of January 25, 1999 (the
"Severance Agreement"); and
WHEREAS, Employee and the Company now desire to enter into an agreement
providing for Employee's continued employment by the Company upon the terms and
subject to the conditions set forth herein, which agreement shall, except as
otherwise set forth herein, apply cumulatively with the Severance Agreement.
In consideration of the mutual covenants herein contained the parties
hereto agree as follows:
1. Term and Scope of Employment.
(a) The Company agrees to continue to employ Employee in Palo
Alto, California for a period of twelve (12) months, commencing on the date
hereof and ending on the first anniversary of the date hereof, for the purpose
of rendering services in connection with the Company's business. Employee agrees
to accept employment with the Company for such purpose. In performing his/her
duties hereunder, Employee shall observe and comply with all directions given by
the Board of Directors of the Company or by his/her superiors.
(b) Employee shall devote his/her full time, attention, and
effort to the business of the Company, and shall not during the term of this
Agreement engage in any other business (whether as an employee, partner,
consultant or otherwise) without the consent of the Company; but this shall not
be construed as preventing Employee from investing his/her assets in such form
or manner as will not interfere with the services Employee agreed to render to
the Company hereunder.
(c) Employee agrees to inform the Board of Directors of the
Company, or his/her superiors, of all of his/her work and transactions on behalf
of the Company, and to disclose to them his/her knowledge of the Company's
business and affairs.
2. Salary.
For his/her services the Company agrees to pay Employee an
annual salary of not less than ________________________________________________
Dollars ($_________) payable in equal biweekly installments. In addition to the
above amount, at the sole discretion of the Board of Directors, Employee may be
granted bonuses or other compensation in an amount to be determined in
accordance with Board policy.
3. Termination.
(a) For Cause. During the term of this Agreement, Employee's
employment may be terminated by the Company for Cause, effective immediately
upon the day it sends Notice of Termination (as required by Section 10(b)) to
Employee, at which time compensation will cease. Notwithstanding the foregoing,
Employee shall have the right to contest such termination for Cause (for
purposes of this Agreement) by arbitration in accordance with the provisions of
Section 9.
(b) Without Cause. The Company may terminate Employee's
employment without Cause. In the event the Company terminates Employee's
employment without Cause, in addition to the
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entire compensation provided for hereunder for the remainder of the term
specified in Section 1(a) (which shall be paid in a lump sum), Employee shall be
entitled to receive upon such termination without Cause (in a lump sum)
severance compensation equal to six (6) months' base salary, less all amounts
required by law to be withheld and deducted.
(c) Change in Control. This Agreement shall not be terminated
upon a Change in Control. In the event of a Change in Control: (i) the
provisions of this Agreement shall be binding on and shall inure to the benefit
of the surviving or resulting corporation, or (in the case of a Change in
Control of the kind referred to in Section 2(a)(i)(z) of the Severance
Agreement) the corporation to which the applicable assets of the Company have
been transferred, and (ii) all of the provisions of the Severance Agreement
shall apply in accordance with its terms. In the event of any inconsistency
between the provisions of the Severance Agreement and this Agreement, the
provisions of the Severance Agreement shall govern. Except to the extent of any
such inconsistency, the provisions of this Agreement and the Severance Agreement
shall apply cumulatively and not exclusively.
4. Nondisclosure and Assignment of Rights in Company Data.
"Company Data" is hereby defined to mean for purposes of this Agreement,
programs, improvements, records, ideas, files, drawings, documents, customer
lists, investment opportunities, sales and marketing techniques and devices,
formulae, specifications, research, studies, investigations, processes, data,
and information disclosed to or known by Employee as a consequence, whether
directly or indirectly, of his/her employment by the Company which is not
generally known in the industry in which the Company is or may become engaged
and which involves special techniques or know-how in connection with the
industry in which the Company is or may become engaged, and, without limiting
the generality of the foregoing, anything not within the public domain and
public knowledge, whether or not patentable or copyrightable. The parties hereto
acknowledge that in the course of his/her employment, Employee will
himself/herself, or with others, have access to, use, come in contact with,
obtain, make, evolve or conceive Company Data. As further consideration for the
Company's
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entering into this Agreement, Employee hereby sells, assigns and transfers to
the Company all right, title, and interest he/she has or at any time may have to
Company Data, and to any and all other Company Data at any time used in the
business of the Company in which Employee may have a right, title, or interest,
and such Company Data shall be the sole and exclusive property of the Company.
5. Assignment. The rights and obligations of Employee hereunder
shall not be assignable and any attempted assignment shall be void. The rights
and obligations of the Company hereunder may be assigned as a part of any
transaction which includes the transfer of all or substantially all of the
assets of the Company, whether such transfer is made pursuant to a sale of
assets or stock, or a merger, reorganization, or otherwise.
6. No Obligation to Mitigate Damages. Employee shall not be
required to mitigate damages or the amount of any payment provided for under
this Agreement by seeking other employment or otherwise, nor shall the amount of
any payment provided for under this Agreement be reduced by any compensation
earned by Employee as a result of employment by another employer or by
retirement benefits after the Date of Termination, or otherwise.
7. Successor to the Company. The Company shall require any
successor or assign (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company, by agreement satisfactory to Employee, expressly,
absolutely and unconditionally to assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession or assignment had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor or assign to its business and/or assets which executes and delivers
the agreement provided for in this Section 7 or which otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law.
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8. Heirs of Employee. This Agreement shall inure to the benefit
of and be enforceable by Employee's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If Employee should die while any amounts are still payable to him/her
hereunder, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Employee's devisees, legatee, or
other designee or, if there be no such designee, to Employee's estate.
9. Arbitration. Any dispute, controversy or claim arising under
or in connection with this Agreement, or the breach hereof, shall be settled
exclusively by arbitration in accordance with the Commercial Arbitration Rules
of the American Arbitration Association then in effect. Judgment upon the award
rendered by Arbitrator(s) may be entered in any court having jurisdiction
thereof. Any arbitration held pursuant to this Section 9 shall take place in San
Francisco, California.
10. Notice.
(a) General. For purposes of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States registered mail, return receipt requested, postage prepaid, as follows:
If to the Company:
Xxxxxxx-Xxxxxxx Company
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: President and Chief Executive Officer of the Company
If to Employee:
__________________
__________________
__________________
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or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of address shall be effective only
upon receipt.
(b) Notice of Termination. Any purported termination of
employment shall be communicated by a written Notice of Termination to Employee
in accordance with paragraph (a) of this Section 10, and shall state the
specific termination provisions in this Agreement relied upon, and set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Employee's employment.
11. Nonwaiver, Complete Agreement, Governing Law. No provisions of
this Agreement may be modified, waived or discharged unless in writing signed by
both parties. No waiver by either party hereto at any time of any breach by the
other party of, or compliance with, any condition or provision of this Agreement
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement. This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
12. Legal Fees and Expenses. The Company shall pay all reasonable
legal fees and expenses which Employee may incur as a result of the Company's
contesting the validity, enforceability or Employee's good faith interpretation
of, or good faith determinations under, this Agreement; provided, however, that
the Company shall not pay any legal fees and expenses incurred by Employee in
contesting the termination of Employee's employment for Cause if, as a result of
such contest, it is determined that Employee was in fact terminated for Cause.
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13. Validity. The invalidity or unenforceability of any provisions
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
15. Certain Defined Terms. Capitalized terms used herein without
definition shall have the meanings given to such terms in the Severance
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
XXXXXXX-XXXXXXX COMPANY
By _____________________
Title:
_____________________
(Employee)
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