EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made effective the 20th day of October, 1997,
by and between TANISYS TECHNOLOGY, INC., a Wyoming corporation, with principal
offices located at 00000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000
(hereinafter referred to as the "Employer"), and XXXXXXX X. XXXXXX, a resident
of Los Altos Hills, California (hereinafter referred to as the "Employee").
W I T N E S S E T H:
WHEREAS, the Employee and Employer desire to enter into an agreement
relating to the employment of Employee, outlining the duties and obligations of
each.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein set forth, it is agreed as follows:
1. EMPLOYMENT. The Employer agrees to employ the Employee, and the
Employee agrees to be employed by the Employer, subject to the terms and
conditions set forth herein.
2. TERM. Subject to the provisions hereof, the term of the Employee's
employment by the Employer under this Agreement shall be for a period of one (1)
year commencing on the date hereof; provided that such term of employment shall
continue thereafter unless and until terminated by either the Employer or the
Employee upon no less than one hundred twenty (120) days' prior written notice
to the other of the desire to terminate such employment. The term of the
Employee's employment hereunder, including any continuation of the original
term, is hereinafter referred to as the "Employment Period."
3. POSITION AND DUTIES. During the Employment Period, the Employee shall
serve as Chief Executive Officer of the Employer, with such assignments, powers
and duties as are assigned or delegated to him by the Board of Directors of the
Employer. Such assignments, powers and duties may, from time to time, be
modified by the Employer, as the Employer's needs may require. The Employee
shall also, at the request of the Employer, perform similar services for any
Affiliate (as hereinafter defined) of the Employer without additional
compensation. The
Employee agrees to devote all of his business time, skill, attention and best
efforts to the business of the Employer and its Affiliates in the advancement
of the best interests of the Employer and its Affiliates. As used in this
Agreement, the term "Affiliate" of the Employer means any person or
corporation that, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under the control of the Employer.
4. COMPENSATION.
A. For all services rendered by the Employee to the Employer during
the Employment Period, the Employer shall pay the Employee a salary at the rate
of One Hundred Eighty Thousand Dollars ($180,000) annually. At such time as the
Employer reports positive cash flow from operations for all three months of a
fiscal quarter, the Employee's salary will increase to Two Hundred Forty
Thousand Dollars ($240,000) annually. The compensation is to be payable,
subject to such withholdings as are required by law, in installments in
accordance with the Employer's customary payroll practices.
B. The Employer will grant to the Employee a seven (7)-year option
to purchase 1,000,000 shares of its common stock under the Employer's 1993
Employee Stock Option Plan, as amended, at an exercise price to be determined
during the first sixty (60) days of the Employment Period, such exercise price
to be no more than $3.00 per share. The option shall vest as to 100,000 and
150,000 shares on the first and second anniversaries of the date of this
Agreement, respectively, and 250,000 shares on each of the third, fourth and
fifth anniversaries of the date of this Agreement.
C. At such time as the Employer reports positive cash flow from
operations for all three months of a fiscal quarter, the Employer will grant to
the Employee a seven (7)-year option to purchase 500,000 shares of its common
stock under the Employer's 1993 Employee Stock Option Plan, as amended, at an
exercise price equal to the closing price of the Employer's Common Stock as
reported on the Nasdaq Stock Market's SmallCap Market on the date of grant. The
option shall vest as to 125,000 shares on each of the second, third, fourth and
fifth anniversaries of the date of grant.
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D. The Employer will pay the Employee Fifty Thousand Dollars
($50,000) to cover the costs of moving his residence from Los Altos Hills,
California, to Austin, Texas, temporary living and storage expenses and travel
between Los Altos Hills, Califonria and Austin, Texas, such payment to
constitute the only obligation of the Employer in connection with such move.
5. OFFICE FACILITIES. During the Employment Period, the Employer will
furnish the Employee, without charge, suitable office facilities for the purpose
of performing his duties hereunder, which facilities shall include secretarial,
telephone, clerical and support personnel and services and shall be similar to
those furnished to employees of the Employer having comparable positions.
6. FRINGE BENEFITS; VACATIONS. During the Employment Period, the
Employee shall be entitled to participate in or receive benefits under such
pension, medical and life insurance and other employee benefit plans of the
Employer which may be in effect from time to time, to the extent he is eligible
under the terms of those plans, on the same basis as other employees of the
Employer having comparable positions. The Employee shall be entitled to
vacations with pay in accordance with the policies of the Employer in effect
from time to time.
7. EXPENSES. Subject to such policies regarding expenses and expense
reimbursement as may be adopted from time to time by the Employer and compliance
therewith by the Employee, the Employee is authorized to incur reasonable
expenses in the performance of his duties hereunder, and the Employer will
reimburse Employee for such reasonable out-of-pocket expenses upon the
presentation by the Employee of an itemized account and receipts satisfactory to
the Employer.
8. TERMINATION.
A. If the Employee dies or becomes disabled during the Employment
Period, the Employee's salary and other rights under this Agreement or as an
employee of the Employer (except for salary and other rights accrued prior
thereto) shall terminate at the end of the month during which death or
disability occurs. For purposes of this Agreement, the Employee shall be
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deemed to be "disabled" if, at any time during the Employment Period, the
Employee shall have been unable to perform the duties of his employment
hereunder due to physical or mental incapacity for a period of ninety (90)
days or any ninety (90) days in a period of two hundred seventy (270) days.
B. If the Employee fails to perform his duties hereunder or to
comply with any of the provisions hereof or commits any act of misconduct,
malfeasance, gross negligence or disloyalty, the Employment Period and the
Employee's salary and other rights under this Agreement as an employee of the
Employer, subject to 8C below, shall terminate upon written notice from the
Employer to the Employee, but such termination shall not affect the liability of
the Employee by reason of his misconduct, malfeasance, gross negligence or
disloyalty.
C. If it is determined that the Employer has terminated the Employee
without cause as determined in accordance with Section 8B above, the Employee
will not be subject to the provisions of Section 10, COVENANT NOT TO COMPETE,
herein.
9. COVENANTS NOT TO DISCLOSE. The Employee covenants and agrees that he
will not, at any time during or after the termination of his employment by the
Employer, communicate or disclose to any person, or use for his own account, or
advise, discuss with, or in any way assist any other person or firm in obtaining
or learning about, without the prior written consent of the Employer,
information concerning any inventions, processes, programs, systems, flow charts
or equipment used in, or any secret or confidential information (including,
without limitation, any customer lists or trade secrets) concerning, the
business and affairs of the Employer or any of its Affiliates acquired by the
Employee during the term of his employment by the Employer. The Employee
further covenants and agrees that he shall retain all such knowledge and
information concerning the foregoing in trust for the sole benefit of the
Employer and its Affiliates and their respective successors and assigns.
10. COVENANT NOT TO COMPETE. The Employee covenants and agrees that,
during the Employment Period and for a period of one (1) year after the
voluntary resignation of the Employee or termination for any other reason, he
will not directly render services or advice to, or
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be engaged in a business in the State of Texas during such one-year period
which is in competition with the business of the Employer except in the
course of his employment hereunder or except upon the written consent of the
Employer.
11. ESSENTIAL NATURE OF COVENANTS. The covenants of the Employee
contained in Sections 9 and 10 shall be construed as independent of any other
provision of this Agreement; and the existence of any claim or cause of action
of the Employee against the Employer or any of its subsidiaries, whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Employer of said covenants. The Employee understands that
the covenants contained in Sections 9 and 10 are essential elements of the
transactions contemplated by this Agreement and, but for the agreement of the
Employee to Sections 9 and 10, the Employer would not have agreed to enter into
such transactions.
12. REMEDIES. In the event of a breach or threatened breach by the
Employee of Section 9 or 10, the Employer shall be entitled to a temporary
restraining order and an injunction restraining the Employee from the commission
of such breach. Nothing herein contained shall be construed as prohibiting the
Employer from pursuing any other remedies available to it for such breach or
threatened breach, including the recovery of money damages.
13. WAIVER OF BREACH. The waiver by one party of a breach of any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of any subsequent breach by the other party.
14. AGREEMENT TO PURCHASE STOCK. The Employee agrees to purchase, during
the first sixty (60) days of the Employment Period, a minimum of Fifty Thousand
(50,000) shares of the Employer's Common Stock at a maximum price of $3.00 per
share.
15. BINDING EFFECT. This Agreement shall inure to the benefit of and
shall be binding upon the parties hereto and their respective successors,
assigns, heirs and legal representatives. Insofar as the Employee is concerned,
this Agreement, being personal, cannot be assigned.
16. SEVERABILITY. The invalidity of all or any part of any section of
this Agreement shall not render invalid the remainder of this Agreement or the
remainder of such section. If any
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provision of this Agreement is so broad as to be unenforceable, such
provision shall be interpreted to be only so broad as is enforceable.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall, when executed, be deemed to be an original,
but all of which together shall constitute one and the same instrument.
18. GOVERNING LAW. This Agreement shall be construed (both as to validity
and performance) and enforced in accordance with and governed by the laws of the
State of Texas.
19. NOTICE. All Notices which are required or may be given under this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered in person or three (3) days after being mailed by registered or
certified first-class mail, postage prepaid, return receipt requested, if to the
Employee at 00000 Xxxxxxx Xxx, Xxx Xxxxx Xxxxx, Xxxxxxxxxx 00000, or if to the
Employer, at the address listed above, or to such other address as such party
shall have specified by notice to the other party hereto as provided in this
section.
20. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, understandings
and arrangements, oral or written, between the parties hereto with respect to
the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and date first above written.
TANISYS TECHNOLOGY, INC.
By: /s/ XXXXXX X. XXXXXX, XX.
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Name: Xxxxxx X. Xxxxxx, Xx. /s/ XXXXXXX X. XXXXXX
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Title: Chairman of the Board XXXXXXX X. XXXXXX
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