EXHIBIT 10.1 (a)
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement) executed as of July 7,
1998 (the "Execution Date") shall be effective as of July 8, 1998
(the "Effective Date") between ENERDYNE TECHNOLOGIES, INC., a
California corporation (the "Company"), having an address for
notices at 0000 Xxxxxxxx Xxxxxx, Xxxxx X, Xxxxxx, Xxxxxxxxxx
00000 and XXXXX X. XXXXX ("Employee"), having an address for
notices at 0000 Xx Xxxxxx xxx Xxxxxx, Xx Xxxxx, Xxxxxxxxxx 00000,
who agree in connection with the acquisition of Enerdyne by
Boatracs, Inc. ("Boatracs") as follows:
1. Hiring. The Company hereby hires Employee as, and
Employee hereby agrees to act as Chief Technology Officer on and
after the Effective Date.
2. Duties. Employee shall faithfully and diligently
perform the following duties on a full-time basis: (a) devoting
Employee's entire productive time, ability and attention to the
business of the Company; and (b) performing such other duties as
the board of directors of the Company (the "Board"), shall from
time to time specify that are consistent with the duties normally
performed by an employee in Employee's position. If Employee
agrees, Employee may travel outside of San Diego County,
California, but such travel shall not be a condition to continued
employment hereunder.
3. Base Compensation.
3.1. Employee's base compensation ("Base
Compensation") under this Agreement shall be $120,000 per year.
The Base Compensation shall be payable bi-weekly, in accordance
with and at the same times as the Company's ordinary payroll
procedures.
3.2. Employee shall receive an option to purchase
500,000 shares of the common stock of Boatracs in accordance with
the form of option agreement attached hereto as Exhibit A.
4. Benefits. Employee shall be entitled to the following
benefits from the Effective Date to the expiration of the term of
this Agreement:
4.1. Twenty (20) business days paid vacation for each
one-year period during the term of this Agreement (prorated for
any partial year), to be taken at such times that are consistent
with Employee's performance of Employee's duties under this
Agreement.
4.2. Reimbursement for reasonable expenses, including
reasonable and customary automobile expenses, incurred in the
proper performance of Employee's duties under this Agreement and
in accordance with the Company's policy.
4.3. Inclusion in the Company's medical plan for the
Company's other employees.
4.4. All customary and usual fringe benefits generally
available to officers of Enerdyne or Boatracs with comparable
levels of responsibility. Notwithstanding the preceding
sentence, Enerdyne reserves the right to change or terminate the
fringe benefits on a prospective basis, at any time, effective
upon delivery of 5 days written notice to Employee. Upon
Employee's termination of employment under this Agreement for any
reason, Employee shall be entitled only to receive fringe
benefits prorated to the date of termination..
5. Termination. This Agreement shall terminate on the
earlier of (a) the second anniversary of the Effective Date, or
(b) the termination of Employee's service as an employee of the
Company. In addition, at any time that Good Cause (as defined
below) exists or has arisen, the Company may, at its election,
terminate this Agreement upon 3 days written notice. For purposes
of this Agreement, "Good Cause" shall mean the existence or
occurrence of any of the following:
5.1. Any neglect or breach of duty by Employee, or any
failure by Employee to perform, to the reasonable satisfaction of
the board of directors of the Company, such duties as may be
delegated to Employee by the Company from time to time.
5.2. If Employee is convicted of a felony.
5.3. If Employee commits theft, larceny, embezzlement,
fraud, any acts of dishonesty, illegality, moral turpitude or
gross mismanagement, as determined in good faith by the board of
directors of the Company, whose determination shall be final and
binding.
5.4. If Employee otherwise materially and repeatedly
breaches any provision of this Agreement.
5.5. If Employee becomes materially disabled to such
an extent that Employee is precluded from performing the duties
set forth in this Agreement for a period of six (6) months or
more.
6. Representations and Warranties. Employee hereby
represents and warrants that as of the Execution Date: (a) this
Agreement will not cause or require Employee to breach any
obligation to, or agreement or confidence with, any other person;
(b) except as disclosed in writing by Employee to the Company
prior to the execution of this Agreement, Employee is not
representing, or otherwise affiliated in any capacity with, any
other lines of products, manufacturers or vendors; and (c)
Employee has not been induced to enter into this Agreement by any
promise or representation other than as expressly set forth in
this Agreement.
7. Confidentiality. Employee hereby acknowledges that the
Company has made (or may make) available to Employee certain
customer lists, product design information, performance standards
and other confidential and/or proprietary information of the
Company or licensed to the Company, including without limitation
trade secrets, copyrighted materials and/or financial information
of the Company (or any of its affiliates) including without
limitation financial statements, reports and data (collectively,
the "Confidential Material"). Except as essential to Employee's
obligations under this Agreement, neither Employee nor any agent,
employee, officer, or independent contractor of or retained by
Employee shall make any disclosure of the Confidential Material.
Unless the terms of this Agreement have been publicly disclosed
by the Company or Boatracs, neither Employee nor any agent of
Employee shall make any disclosure of this Agreement or its terms
except a description of the term of this Agreement or disclosure
to obtain tax or legal advice. Except as essential to Employee's
obligations under this Agreement, neither Employee nor any agent,
employee, officer, or independent contractor of or retained by
Employee shall make any duplication or other copy of any of the
Confidential Material. Immediately upon request from the
Company, Employee shall return to the Company all Confidential
Material. Employee shall notify each person to whom any
disclosure is made that such disclosure is made in confidence,
that the Confidential Material shall be kept in confidence by
such person, and that such person shall be bound by the
provisions of this Paragraph.
8. Proprietary Information. For purposes of this
Agreement, "Proprietary Information" shall mean any information,
observation, data, written material, record, document, computer
program, software, firmware, invention, discovery, improvement,
development, tool, machine, apparatus, appliance, design,
promotional idea, customer list, practice, process, formula,
method, technique, trade secret, product and/or research related
to the actual or anticipated (as demonstrated by contemporaneous
written evidence) research, development, products, organization,
business or finances of the Company (or any of its affiliates).
As used in this Section 8, "Proprietary Information" does not
include (a) any invention or intellectual property that qualifies
fully under the provisions of California Labor Code Section 2870
or any similar or successor statute or (b) any invention or
intellectual property relating to the technologies set forth on
Exhibit B (subject to the conditions set forth therein). All
right, title and interest of every kind and nature whatsoever in
and to the Proprietary Information made, discussed, developed,
secured, obtained or learned by Employee during the term of this
Agreement, or the 60-day period immediately following termination
of this Agreement, shall be the sole and exclusive property of
the Company for any purposes or uses whatsoever, and shall be
disclosed promptly by Employee to the Company. The covenants set
forth in the preceding sentence shall apply regardless of whether
any Proprietary Information is made, discovered, developed,
secured, obtained or learned (a) solely or jointly with others,
(b) during the usual hours of work or otherwise, (c) at the
request and upon the suggestion of the Company or otherwise, or
(d) with the Company's materials, tools, instruments or on the
Company's premises or otherwise. All Proprietary Information
developed, created, invented, devised, conceived or discovered by
Employee that are subject to copyright protection are explicitly
considered by Employee and the Company to be works made for hire
to the extent permitted by law. Employee hereby assigns to the
Company all of Employee's right, title and interest in and to the
Proprietary Information. Employee hereby forever fully releases
and discharges the Company, any affiliates of the Company and
their respective officers, directors and employees, from and
against any and all claims, demands, damages, liabilities, costs
and expenses of Employee arising out of, or relating to, any
Proprietary Information. Employee shall execute any documents
and take any action the Company may deem necessary or appropriate
to effectuate the provisions of this Agreement, including without
limitation assisting the Company in obtaining and/or maintaining
patents, copyrights or similar rights to any Proprietary
Information assigned to the Company, if the Company, in its sole
discretion, requests such assistance. Employee shall comply with
any reasonable rules established from time to time by the Company
for the protection of the confidentiality of any Proprietary
Information. Employee irrevocably appoints the Chief Financial
Officer of the Company to act as Employee's agent and
attorney-in-fact to perform all acts necessary to obtain and/or
maintain patents, copyrights and similar rights to any
Proprietary Information assigned by Employee to the Company under
this Agreement if (a) Employee refuses to perform those acts, or
(b) is unavailable, within the meaning of any applicable laws.
Employee acknowledges that the grant of the foregoing power of
attorney is coupled with an interest and shall survive the death
or disability of Employee. Employee shall promptly disclose to
the Company, in confidence (a) all Proprietary Information that
Employee creates during the term of this Agreement, and (b) all
patent applications filed by Employee within one year after
termination of this Agreement. Any application for a patent,
copyright registration or similar right filed by Employee within
one year after termination of this Agreement shall be presumed
not to relate to Proprietary Information created by Employee
during the term of this Agreement, unless Company can prove
otherwise. Nothing contained in this Agreement shall be
construed to preclude the Company from exercising all of its
rights and privileges as sole and exclusive owner of all of the
Proprietary Information owned by or assigned to the Company under
this Agreement. The Company, in exercising such rights and
privileges with respect to any particular item of Proprietary
Information, may decide not to file any patent application or any
copyright registration on such Proprietary Information, may
decide to maintain such Proprietary Information as secret and
confidential, or may decide to abandon such Proprietary
Information or dedicate it to the public. Employee shall have no
authority to exercise any rights or privileges with respect to
the Proprietary Information owned by or assigned to the Company
under this Agreement.
9. Right of First Negotiations. For purposes of this
Agreement, "Qualified Information" shall mean any information,
observation, data, written material, record, document, computer
program, software, firmware, invention, discovery, improvement,
development, tool, machine, apparatus, appliance, design,
promotional idea, customer list, practice, process, formula,
method, technique, trade secret, product and/or research that (a)
(i) qualifies fully under the provisions of California Labor Code
Section 2870 or (ii) relates to the technologies set forth on
Exhibit B hereto (subject to the conditions set forth therein)
and (b) is made, discussed or developed by Employee during the
term of this Agreement or the 60-day period immediately following
termination of this Agreement. The Company shall have a right of
first negotiation to commercially manufacture, sell or exploit
any Qualified Information. Employee agrees that before
undertaking to commercially manufacture, sell, license or assign
any such Qualified Information that Employee shall notify Company
in writing of Employee's intention regarding such Qualified
Information, describing the Qualified Information in question and
the proposed terms and conditions of the manufacture, sale,
license or assignment (the "Notice"). Employee shall provide
such information or documents to the Company which are in
Employee's possession and which the Company reasonably requests
in order to assess Qualified Information. The Company shall have
a period of 30 days following the receipt of the Notice to
determine whether it has an interest in acquiring rights in or to
the Qualified Information. In the event that the Company
determines that it has no such interest, the Company shall
provide a written statement to Employee to that effect on or
before the 30th day after receipt of the Notice, and thereafter
the provisions of this Section 9 shall no longer apply to the
Qualified Information described to the Company (including any
improvements and any subsequent invention derived therefrom). In
the event that the Company determines that it does have an
interest acquiring the rights to the Qualified Information, it
shall provide a written statement to Employee to that effect on
or before the 30th day after receipt of the Notice, and the
Company will then have a 90 day period to negotiate with Employee
the terms of a definitive agreement regarding such Qualified
Information. During such 90 day negotiation period, Employee and
the Company agree to negotiate with each other in good faith.
In the event that the parties cannot enter into a definitive
agreement, then following the expiration of such 90 day
negotiation period the provisions of this Section 9 shall no
longer apply to the Qualified Information Employee described to
the Company (including any improvements and any subsequent
invention described therefrom).
10. Business Opportunities. Nothing in this Agreement is
intended to affect any common law obligations or any duties of
Employee as a director or officer of the Company to offer a
project, investment, venture, business or other opportunity (an
"Opportunity") to the Company or to use good-faith efforts to
cause the Company to have the opportunity to invest in or
participate in such Opportunity.
11. Successors and Assigns. The rights and obligations of
Enerdyne under this Agreement shall inure to the benefit of and
shall be binding upon the successors and assigns of Enerdyne.
Employee shall not be entitled to assign any of Employee' rights
or obligations under this Agreement.
12. Survival. The representations, warranties and
covenants of Employee in this Agreement (including those set
forth in Sections 6, 7, 8 and 9) shall survive any termination of
this Agreement.
13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
14. Further Assurances. Each party to this Agreement shall
execute all instruments and documents and take all actions as may
be reasonably required to effectuate this Agreement.
15. Venue and Jurisdiction. For purposes of venue and
jurisdiction, this Agreement shall be deemed made and to be
performed in the City of San Diego, California.
16. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all
of which together shall constitute one document.
17. Time of Essence. Time and strict and punctual
performance are of the essence with respect to each provision of
this Agreement.
18. Attorney's Fees. In the event any litigation,
arbitration, mediation, or other proceeding ("Proceeding") is
initiated by any party(ies) against any other party(ies) to
enforce, interpret or otherwise obtain judicial or quasi-judicial
relief in connection with this Agreement, the prevailing
party(ies) in such Proceeding shall be entitled to recover from
the unsuccessful party(ies) all costs, expenses, and actual
attorney's fees relating to or arising out of such Proceeding
(whether or not such Proceeding proceeds to judgment), and any
post-judgment or post-award proceeding including without
limitation one to enforce any judgment or award resulting from
any such Proceeding. Any such judgment or award shall contain a
specific provision for the recovery of all such subsequently
incurred costs, expenses, and actual attorney's fees.
19. Modification. This Agreement may be modified only by a
contract in writing executed by the party(ies) to this Agreement
against whom enforcement of such modification is sought.
20. Headings. The headings of the Paragraphs of this
Agreement have been included only for convenience, and shall not
be deemed in any manner to modify or limit any of the provisions
of this Agreement, or be used in any manner in the interpretation
of this Agreement.
21. Prior Understandings. This Agreement contains the
entire agreement between the parties to this Agreement with
respect to the subject matter of this Agreement, is intended as a
final expression of such parties' agreement with respect to such
terms as are included in this Agreement, is intended as a
complete and exclusive statement of the terms of such agreement,
and supersedes all negotiations, stipulations, understandings,
agreements, representations and warranties, if any, with respect
to such subject matter, which precede or accompany the execution
of this Agreement.
22. Interpretation. Whenever the context so requires in
this Agreement, all words used in the singular shall be construed
to have been used in the plural (and vice versa), each gender
shall be construed to include any other genders, and the word
"person" shall be construed to include a natural person, a
corporation, a firm, a partnership, a joint venture, a trust, an
estate or any other entity.
23. Partial Invalidity. Each provision of this Agreement
shall be valid and enforceable to the fullest extent permitted by
law. If any provision of this Agreement or the application of
such provision to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected by such invalidity or
unenforceability, unless such provision or such application of
such provision is essential to this Agreement.
24. Notices. All notices or other communications required
or permitted to be given to a party to this Agreement shall be in
writing and shall be personally delivered, sent by certified
mail, postage prepaid, return receipt requested, or sent by an
overnight express courier service that provides written
confirmation of delivery, to such party at its address as set
forth above in the introductory Paragraph of this Agreement.
Each such notice or other communication shall be deemed given,
delivered and received upon its actual receipt, except that if it
is sent by mail in accordance with this Paragraph, then it shall
be deemed given, delivered and received three days after the date
such notice or other communication is deposited with the United
States Postal Service in accordance with this Paragraph. Any
party to this Agreement may give a notice of a change of its
address to the other party(ies) to this Agreement.
25. Drafting Ambiguities. Each party to this Agreement has
reviewed and revised this Agreement. Each party to this
Agreement has had the opportunity to have such party's legal
counsel review and revise this Agreement. The rule of
construction that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of
this Agreement or of any amendments or exhibits to this
Agreement.
ENERDYNE TECHNOLOGIES, INC., a California corporation
By: /S/ XXX XXXXXXX
/s/ XXXXX X. XXXXX
Xxxxx X. Xxxxx
