EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Agreement is executed effective October 1, 2000 (the "Effective Date")
between SVI Solutions, Inc., a Delaware corporation (the "Company"), having an
address for notices at 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx
00000, and Xxxxx Xxxxxxxxx ("Executive"), having an address for notices at 00000
Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, who agree as follows:
1. Hiring. The Company hereby hires Executive as, and Executive hereby agrees to
act as Chief Executive Officer of the Company.
2. Duties. Executive shall faithfully and diligently perform the following
duties on a full-time basis: (a) Devoting Executive's entire productive time,
ability and attention to the business of the Company; (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 a
Chief Executive Officer; and (c) reporting directly to the Board.
3. Base Compensation. Executive's total compensation ("Base Compensation") under
this Agreement shall be:
First Year $27,082 per month ($325,000 per annum)
Second Year $29,167 per month ($350,000 per annum)
Third Year $31,250 per month ($375,000 per annum)
payable monthly in arrears from the Effective Date, in accordance with and at
the same times as the Company's ordinary payroll procedures.
3.1. The Company reserves the right to change the compensation level, at its
sole discretion, during the term of this Agreement.
4. Additional Compensation. As additional compensation, Executive shall receive,
on each anniversary of his employment under this Agreement, the option to
purchase from the Company a number of shares (the "Option Shares") equal to 150%
of the Executive's Base Compensation, for the preceding year, divided by the
closing price on the anniversary date (the "Option Price"). The Share Option may
be exercised by the Executive, in whole or in part, at any time within ten (10)
years of the date of the grant by written notice tendering payment of the Option
Price. Such Option will be fully vested on the date of the grant.
5. Benefits. Executive shall be entitled to the following benefits during the
term of this Agreement:
5.1. 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 Executive's performance of Executive's duties
under this Agreement.
5.2. Reimbursement for reasonable out-of-town travel expenses and local expenses
incurred in the proper performance of Executive's duties under this Agreement,
in accordance with the Company's policy.
5.3. Reimbursement for reasonable expenses, including reasonable and customary
automobile expenses, incurred in the proper performance of Executive's duties
under this Agreement and in accordance with the Company's policy.
5.4. Inclusion in the Company's medical plan for the Company's other Executives.
5.5. All benefits generally available to other officers of the Company.
6. Term. The term of this Agreement shall commence on the Effective Date and
unless terminated earlier as set forth below, shall expire on September 30,
2003. Upon expiration of this Agreement, the parties shall negotiate, in good
faith, an extension of the contract on such terms and conditions as shall
reasonably be agreed to. At any time that Good Cause (as defined below) exists
or has arisen, the Company may, at its election, terminate this Agreement upon
14 days written notice. For purposes of this Agreement, "Good Cause" shall mean
the existence or occurrence of any of the following:
6.1.1. Any repeated breach of duty by Executive, or any repeated failure by
executive to perform such duties as may be delegated to Executive by the Company
from time to time after written notice specifying such breach or failure which
Executive fails to cure within fourteen (14) days of receipt of such notice.
6.2. If Executive is convicted of a felony.
6.3. If Executive commits theft, larceny, embezzlement, fraud, any acts of
dishonesty, illegality, moral turpitude or gross mismanagement.
6.4. If Executive otherwise materially and repeatedly breaches any provision of
this Agreement.
6.5. The death of Executive.
6.6. If Executive becomes materially disabled to such an extent that Executive
is precluded from performing the duties set forth in this Agreement for a period
of six (6) months.
7. Confidentiality. Executive hereby acknowledges that the Company has made (or
may make) available to Executive 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 Executive's obligations under this Agreement, neither Executive
nor any agent, employee, officer, or independent contractor of or retained by
Executive shall make any disclosure of this Agreement, the terms of this
Agreement, or any of the Confidential Material. Except as essential to
Executive's obligations under this Agreement, neither Executive nor any agent,
employee, officer, or independent contractor of or retained by Executive shall
make any duplication or other copy of any of the Confidential Material.
Immediately upon request from the Company, Executive shall return to the Company
all Confidential Material. Executive 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
research, development, products, organization, business or finances of the
Company (or any of its affiliates). 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 Executive 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 Executive 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
Executive that are subject to copyright protection are explicitly considered by
Executive and the Company to be works made for hire to the extent permitted by
law. Executive hereby assigns to the Company all of Executive's right, title and
interest in and to the Proprietary Information. Executive 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 Executive arising
out of, or relating to, any Proprietary Information. Executive 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. Executive shall
comply with any reasonable rules established from time to time by the Company
for the protection of the confidentiality of any Proprietary Information.
Executive irrevocably appoints the Chairman of the Company to act as Executive'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 Executive to the Company under this Agreement if (a) Executive
refuses to perform those acts, or (b) is unavailable, within the meaning of any
applicable laws. Executive acknowledges that the grant of the foregoing power of
attorney is coupled with an interest and shall survive the death or disability
of Executive. Executive shall promptly disclose to the Company, in confidence
(a) all Proprietary Information that Executive creates during the term of this
Agreement, and (b) all patent applications filed by Executive within one year
after termination of this Agreement. Any application for a patent, copyright
registration or similar right filed by Executive within one year after
termination of this Agreement shall be presumed to relate to Proprietary
Information created by Executive during the term of this Agreement, unless
Executive 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. Executive
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. This Agreement does not apply to any Proprietary Information that
qualifies fully under the provisions of California Labor Code Section 2870 or
any similar or successor statute.
9. Survival. The representations, warranties and covenants of Executive in this
Agreement shall survive any termination of this Agreement.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
11. 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.
12. 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.
13. 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.
14. Time of Essence. Time and strict and punctual performance are of the essence
with respect to each provision of this Agreement.
15. 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 (d)
such Proceeding (whether or not such Proceeding proceeds to judgment), and (e)
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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
SVI HOLDINGS, INC., a Nevada corporation
/s/ Xxxxx Xxxxx
By: Xxxxx Xxxxx
Secretary
EMPLOYEE
/s/ Xxxxx Xxxxxxxxx
By: Xxxxx Xxxxxxxxx
Chief Executive Officer
