Exhibit 10.7
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of the
30th day of October, 2003, by and between Xxxxx X. Xxxxxx ("Employee") and
Optical Communication Products, Inc., a California corporation ("Company").
RECITALS:
1. The Company has been formed for the purpose of developing,
manufacturing and selling optical communication interface components and
subsystems for use in optical fiber interface components and subsystems for use
in optical fiber communications systems.
2. Employee has previous experience in the businesses conducted and to
be conducted by the Company and is a stockholder of the Company.
COVENANTS:
In consideration of the recitals and mutual covenants contained
herein, the parties agree that:
1. The Company will employ Employee to serve as Chief Financial
Officer, Secretary, and Vice President of Finance and Administrative, in
connection with the Company's operations and Employee does hereby accept such
employment, all subject to the terms and provisions of this Agreement. Employee
represents that she is legally free to enter into this agreement and that it
does not conflict with any of her duties or obligations to any other person and
that she is not in any way restricted by any duties or obligations to any other
person from contributing her full knowledge and talents to the Company in
performing her duties hereunder.
2. This Agreement shall have an initial one-year term, which shall be
automatically renewed each year unless the Company, upon thirty (30) days prior
written notice, notifies Employee of its intent not to renew the Agreement, with
the consequences hereinafter set forth. Notwithstanding the foregoing, the
Company or the Employee may at any time terminate this Agreement and the
employment relationship on thirty (30) days' prior written notice to the other,
with the consequences hereinafter set forth.
3. During the year ending 2004, the Company agrees to compensate
Employee (from the commencement of this Agreement) at the rate of not less than
$190,000 per year from which the Company shall withhold and deduct all
applicable federal and state income, social security and disability taxes as
required by applicable laws. Thereafter, Employee's annual compensation shall be
subject to annual review and shall be established by the Board of Directors of
the Company, but in no event shall Employee's minimum compensation be reduced
below $190,000 per year. Such compensation shall be payable every two weeks or
on such other basis as the Company may establish.
4. Annual bonuses may be paid to Employee in the discretion of the
Company's Board of Directors, but this paragraph should not be construed as
creating any duty on the part of the Company to declare or pay any bonuses to
Employee.
5. Employee agrees to devote her entire working time, attention and
energies to the business of the Company and agrees to perform such reasonable
responsibilities and duties as may be assigned to her from time to time by the
Company's Board of Directors, which shall be consistent with her position as
Chief Financial Officer, Secretary, and Vice President of Finance and
Administrative. In no event shall the Employee be precluded from activities in
professional societies, or from lecturing or writing in areas of her
professional expertise, for reasonable periods and Employee shall be entitled to
retain honoraria, publication royalties and similar compensation paid as a
result of such activities.
6. Employee shall be entitled to reimbursement by the Company for such
customary, ordinary and necessary business expenses as are incurred by her in
the performance of her duties and activities associated with promoting or
maintaining the business of the Company. All expenses as described in this
paragraph will be reimbursed only upon presentation by Employee of such
documentation as may be reasonably necessary to substantiate that all such
expenses were incurred in the performance of her duties.
7. Upon the termination of Employee's employment with the Company and
the concurrent or subsequent sale or other disposition by the Employee of all of
Employee's shares of stock in the Company, Employee agrees to refrain from
carrying on a business similar to Company's business within any county or
counties in which Company has done and continues to do business, for a period of
twelve months or, if Employee's employment is terminated pursuant to Paragraph
12 (e) or 12 (f), then for as long as the Employee receives salary payments from
the Company.
8. As a condition of employment under this Agreement, Employee shall
execute the "Proprietary Rights and Confidentiality Agreement" attached hereto
as Exhibit A and made a part hereof by this reference.
9. During the term of this Agreement, Employee will undertake no
planning for or organization of any business activity competitive with the work
she performs as an employee of the Company, and Employee will not combine or
conspire with other employees of the Company for the purpose of organization of
any such competitive business activity. Employee acknowledges that she has no
confidentiality obligations whatsoever continuing to any previous employer and
relating to the business or proposed business of the Company.
10. Employee agrees to execute any and all documents and take any and
all other actions necessary or desirable for the assignment to the Company of
all of her interests in any patents or patentable ideas developed by her, alone
or in conjunction with others, in the course of her employment by the Company.
11. The parties hereto agree and acknowledge that many of the rights
conveyed by this Agreement are of a unique and special nature and that the
Company will not have an adequate remedy at law in the event of failure of
Employee to abide by its terms and
2
conditions, nor will money damages adequately compensate for such injury. It is,
therefore, agreed between the parties that in the event of breach by Employee of
Employee's agreement contained in paragraphs 7, 8, or 9 of this Agreement, the
Company shall have the rights, among other rights, to damages sustained thereby
and to a preliminary or permanent injunction to restrain Employee from the
prohibited acts. Employee agrees that this Paragraph (and Paragraphs 7, 8 and 9
as and to the extent referred to in this paragraph) shall survive the
termination of her employment for a period of twelve months or, if Employee's
employment is terminated pursuant to Paragraph 12(e) or 12(f), then for as long
as the Employee receives salary payments from the Company. Nothing herein
contained shall in any way limit or exclude any and all other rights granted by
law or equity to the Company.
12. a. If the Company provides notice to Employee of its intent not to
renew the Agreement, as provided in Paragraph 2 of the Covenants to this
Agreement, Employee shall be entitled to payment of an amount equal to
Employee's salary and benefits at the time of termination for a period of twelve
months from the date of termination. Other than payment of this amount, the
Company shall have no further obligation to pay Employee any compensation or
benefits whatsoever.
b. This Agreement shall be terminated upon the death of Employee.
In such event, Employee shall be entitled to payment of Employee's salary and
benefits through one month after the date of Employee's death. Other than
payment of this amount, the Company shall have no further obligation to pay
Employee any compensation or benefits whatsoever.
c. If, in the sole opinion of the Company's Board of Directors,
Employee shall be prevented from properly performing her duties hereunder by
reason of any physical or mental incapacity or disability, for a period of more
than one hundred and twenty (120) days in the aggregate in any twelve-month
period, then, to the extent permitted by law, her employment with the Company
shall terminate. Employee shall be entitled in such event to payment of
Employee's salary and benefits through one month after the effective date of
termination upon disability. Other than payment of this amount, the Company
shall have no further obligation to pay Employee any compensation or benefits
whatsoever.
d. The Company reserves the right to terminate this agreement
immediately, at any time, if, in the reasonable opinion of the Company's Board
of Directors: Employee breaches or neglects the duties which she is required to
perform under the terms of this Agreement; commits any material act of
dishonesty, fraud, misrepresentation or other act of moral turpitude; is guilty
of gross carelessness or misconduct; fails to obey the lawful direction of the
Company's Board of Directors; or acts in any way that has a direct, substantial
and adverse effect on the Company's reputation. The Company's total liability to
Employee in the event of termination of Employee's employment under this section
shall be limited to the payment of Employee's salary and benefits through the
effective date of termination.
e. The Company reserves the right to terminate this Agreement
without cause, and for any reason whatsoever, upon 30 days' notice to Employee.
Upon termination under this subsection, Employee shall receive payment of an
amount equal to Employee's salary and benefits at the time of termination for a
period of twelve months from the
3
date of termination. Other than payment of this amount, the Company shall
have no further obligation to pay Employee any compensation or benefits
whatsoever.
f. This Agreement may be terminated upon mutual written consent
of the Company and Employee. Upon termination under this subsection, Employee
shall receive payment of an amount equal to Employee's salary and benefits at
the time of termination for a period of six months from the date of termination.
Other than payment of this amount, the company shall have no further obligation
to pay Employee any compensation or benefits whatsoever.
g. Upon termination of employment for any reason whatsoever,
Employee shall be deemed to have resigned from all offices then held with the
Company.
13. This Agreement and the documents referred to herein contain the
entire agreement of the parties relevant to the subject matter hereof, and it
may be amended only by a written document signed by all parties to this
agreement who are affected by the amendment.
14. This Agreement shall be governed by the laws of the State of
California, the principal place of business of the company.
15. If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
shall, nevertheless, continue in full force and effect without being impaired or
invalidated in any way.
16. The parties hereto shall not be deemed to have waived any of their
respective rights under this Agreement unless the waiver is in writing and
signed by such waiving party. No delay in exercising any right shall be a waiver
nor shall a waiver on one occasion operate as a waiver of such right on a future
occasion.
17. All notices provided for herein shall be in writing and shall be
deemed to have been given when delivered personally, when deposited in the
United States mail, registered or certified, postage prepaid, or when delivered
to an overnight courier guaranteeing next-day delivery, addressed as follows:
To: Optical Communications Products, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
To: Xxxxx X. Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
or at such other addresses as either of said parties may from time to time in
writing appoint.
18. This agreement is personal to employee and she may not assign or
delegate any of her rights or obligations hereunder without first obtaining the
written consent of the Company.
4
19. With the exception of matters arising under Section 7 of this
Agreement, any controversy between the Company and Employee or between any
employee of the Company and Employee, including, but not limited to, those
involving the construction or application of any of the terms, provisions or
conditions of this agreement or otherwise arising out of or relating to this
Agreement, shall be settled by arbitration in accordance with the then current
commercial arbitration rules of the American Arbitration Association, and
judgment on the award rendered by the arbitrator(s) may be rendered by any court
having jurisdiction thereof. The Company and Employee shall share the cost of
the arbitrator equally but shall each bear their own costs and legal fees
associated with the arbitration. The location of the arbitration shall be in Los
Angeles, California.
20. This Agreement shall inure to the benefits of and be binding upon
the heirs, successors and assigns of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized officers or agents.
EMPLOYEE:
-----------------------------------
Xxxxx X. Xxxxxx
OPTICAL COMMUNICATION PRODUCTS, INC.
By: -------------------------------
Chief Executive Officer and President
5
EXHIBIT A
---------
PROPRIETARY RIGHTS AND CONFIDENTIALITY AGREEMENT
------------------------------------------------
In return for new or continued employment by Optical Communication
Products, Inc. (hereinafter, the "Company"), Employee acknowledges and agrees as
follows:
1. For the purposes of this Agreement:
a. "Information" shall mean any and all discoveries, ideas,
facts, or any other information relating to the operation of the Company's
business, of whatever type and in whatever form, which is disclosed or otherwise
made available to Employee by the Company in confidence, including, but not
limited to, all information relating to financial, personnel, sales, customers
and scientific matters of the Company, and any other discoveries, ideas,
business plans, or facts relating to any of the foregoing, whether developed by
Employee or by others;
b. "Trade Secret" shall mean any and all Information that derives
independent economic value, actual or potential, from not being generally known
to persons who can obtain economic value from its disclosure or use, and that is
the subject of reasonable efforts by the Company to maintain its secrecy.
c. "Inventions" shall mean designs, trademarks, discoveries,
formulae, processes, manufacturing techniques, Trade Secrets, Information,
improvements, ideas or copyrightable works.
2. Employee understands that any and all Information and Trade Secrets
are received or developed by her and are disclosed to her in confidence, and are
to be used only for the purpose for which they are provided. During the term of
this employment with the Company or thereafter, Employee shall not, directly or
indirectly, except as required by the normal business of the Company or
expressly consented to in writing by the Board of Directors of the Company:
a. disclose, publish or make available any Information or Trade
Secrets, other than to an employee, officer or director of the Company who, in
the reasonable exercise of Employee's judgment, needs to know such Information
or Trade Secrets in order to perform her duties to the Company;
b. sell, transfer or otherwise use or exploit or permit the sale,
transfer, use or exploitation of the Information or Trade Secrets for any
purpose other than those for which they were provided; or
c. remove from the Company's premises or retain upon termination
any Information or Trade Secrets, any copies thereof or any tangible or
retrievable materials containing or constituting Information or Trade Secrets.
3. Upon termination of Employee's employment or upon request by the
Company, Employee shall return to the Company all tangible forms of Information
and Trade Secrets.
4. Employee understands that the Company is the sole owner of any and
all property rights in Inventions, including, but not limited to, the right to
use, sell, license or otherwise transfer or exploit the Inventions, and the
right to make such changes in them and the uses thereof as the Company may from
time to time determine. Employee agrees to disclose and assign to the Company,
without further consideration, her entire right, title, and interest (throughout
the United States and in all foreign countries) free and clear of all liens and
encumbrances, in and to all Inventions, which shall be the sole property of the
Company, whether or not patentable. Employee also agrees to cooperate with the
Company both during and after employment in obtaining and enforcing patents,
copyrights, and other protection of the Company's rights in Inventions. As
provided in Section 2870 of the California Labor Code, this section 4 does not
apply to any inventions:
a. for which no equipment, supplies, facility, or Trade Secrets
of the Company were used;
b. which was developed entirely on Employee's own time; and
c. which does not relate at the time of conception or reduction
to practice to the Company's current business or its actual or demonstrably
anticipated research or development, or which does not result from any work
performed by Employee for the Company.
5. Employee certifies that she has no continuing obligations with
respect to the assignment of Inventions or the worldwide copyrights to
Inventions, nor does Employee claim any previous uncopyrighted Inventions within
the scope of this Agreement as Employee's own, except for the Inventions, if
any, which Employee has listed in Appendix A to this Agreement.
6. Employee certifies that there is no other contract or duty on
Employee's part now in existence to assign Inventions. Employee will not
disclose or induce the Company to use any confidential information or material
that Employee is now or shall become aware of which belongs to anyone other than
the Company.
7. This Agreement does not constitute a contract of employment and
does not in any way restrict Employee's right or the right of the Company to
terminate Employee's employment.
Dated:_____________________________ __________________________________
Employee
7
APPENDIX A
----------
I have made or improved the following Inventions and claim sole right
to them. I include below the names of co-inventors or employers to whom I owe a
continuing obligation with respect to these Inventions.
Dated:_____________________________ __________________________________
Employee
