EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.10
The
Executive Employment Agreement (the “Agreement”) is made as of November 3, 2006
(the “Effective Date”), by and between PureDepth, Inc., a Delaware corporation
(the “Company”) and Xxxxxx X’Xxxxxxxx (“Executive”), an individual residing in
California.
WHEREAS,
the Company is in need of an executive with significant experience in finance
to
perform the regular duties of the Chief Financial Officer as determined by
the
Board of Directors and CEO; and
WHEREAS,
Executive has experience in such fields; and
WHEREAS,
the Company wishes to engage Executive to serve as its Chief Financial
Officer,
NOW
THEREFORE, in consideration of the premises and the covenants contained herein,
the parties hereby agree as follows:
1.
DUTIES
AND POSITION. During the term of the Agreement, Executive agrees to be employed
by and to serve the Company as its Chief Financial Officer. The Company agrees
to employ and retain Executive in such capacity and Executive accepts and agrees
to such employment, subject to the general supervision, advice and direction
of
the Company’s Board of Directors. Executive shall perform such duties as are
customarily performed by an executive in a similar position, illustrated by
Schedule A attached. Executive will report directly to Xxxx Xxxxxxxxxxxx, Chief
Executive Officer
2.
TERMS
OF EMPLOYMENT.
2.1.
Term
of Employment. The Agreement shall be effective as of the date first set forth
above and shall continue until terminated pursuant to the provisions set forth
herein (the “Term”).
2.2.
Place of Performance. Executive shall be based at the principal offices of
the
Company, which are located at 000 Xxxxxxxxx Xxxxx, Xxxxxxx Xxxx. In no case
will
Executive be required or expected to move his principal residence from the
San
Francisco Bay Area.
3.
SALARY, BENEFITS AND BONUS COMPENSATION.
3.1.
Salary. As payment for the services to be rendered by Executive as provided
in
Section 1 and subject to the terms and conditions of Section 4, the Company
agrees to pay to Executive a salary equal to $150,000.00 dollars per year,
payable semi monthly (as may be adjusted from time to time, the “Base Salary”).
Executive’s salary shall be reviewed by the Company’s Board of Directors in
accordance with Company policies, and Executive shall be eligible for increases
in salary and benefits as determined by the Company’s Board of Directors in its
sole discretion.
3.2.
Bonuses. Executive shall be eligible to receive discretionary bonuses and an
annual bonus related to Executive’s success in meeting job specific and
corporate performance.
3.3.
Bonus FY 2007: You will be eligible for an annualized bonus per the senior
management bonus plan which will be constructed by Senior Management in
conjunction with the approval of the Board of Directors of the Company,
anticipated to have a goal of 50% of base salary, divided half between specific
plan performance objectives and half on subjective factors.
3.4.
Employee Benefits. Executive shall be eligible to participate in all benefit
plans generally available to employees who are managers of the Company including
health, dental, life insurance, stock and bonus compensation
programs.
3.5
Stock
options. You will be granted certain stock options, as a long term incentive,
per the Company’s current stock option plan as follows: 500,000 options per the
terms of grant approved by the Board on August 4, 2006
4.
TERMINATION.
4.1.
Definitions. For purposes of the Agreement, the following terms shall have
the
following meanings:
(a)
“Termination For Cause” shall mean termination by the Company of Executive’s
employment by the Company for reasons of Executive’s conviction of, or plea of
“guilty” or “no contest” to, a felony involving moral turpitude, persistent
dishonesty or fraud, persistent willful breaches of the material terms of the
Agreement, or habitual neglect of the duties which he is required to perform
hereunder.
(b)
“Termination Other Than For Cause” shall mean termination by the Company of
Executive’s employment by the Company (other than a Termination For Cause), or a
Demotion, as defined below.
(c)
“Voluntary Termination” shall mean termination of Executive’s employment with
the Company by voluntary action of Executive.
(d)
“Demotion” shall mean (i); (ii) any material reduction in the package of
benefits and incentives provided to Executive or any action by the Company
which
would materially and adversely affect Executive’s participation or reduce
Executive’s benefits under any such plans, except to the extent that such
benefits and incentives of all other officers of the Company are similarly
reduced; (iii) any material diminution of Executive’s duties, responsibilities,
or authority other than contemplated in section 4.6 below; or (iv) any
requirement that Executive relocate to a work site that would increase
Executive’s one-way commute distance to more than twenty (50) miles from
Executive’s principal residence.
4.2.
Termination For Cause.
(a)
Termination For Cause may be effected by the Company at any time during the
Term
and shall be effected by notice to Executive.
(b)
Upon
Termination For Cause, Executive immediately shall be paid any accrued salary,
,
any vested deferred compensation (other than pension plan or profit sharing
plan
benefits which will be paid in accordance with the applicable plan), any
benefits under any plan of the Company in which Executive is a participant
to
the full extent of Executive’s rights under such plans, any accrued vacation pay
and any appropriate business expenses incurred by Executive in connection with
his duties hereunder, all to the date of termination, but Executive shall not
be
paid any other compensation or reimbursement of any kind, including without
limitation, severance compensation.
4.3.
Termination Other Than For Cause.
(a)
Notwithstanding anything else in the Agreement, the Company may effect a
Termination Other Than For Cause at any time upon notice to Executive of such
termination.
(b)
Upon
any Termination Other Than For Cause, Executive shall be paid any accrued
salary, , any deferred compensation (other than pension plan or profit sharing
plan benefits which will be paid in accordance with the applicable plan), any
accrued vacation pay and any appropriate business expenses incurred by Executive
in connection with his duties hereunder, all to the date of termination, and
any
severance compensation provided in section 5, but Executive shall be entitled
to
no other compensation or reimbursement of any kind.
4.5.
Voluntary Termination. Executive may effect a Voluntary Termination of his
Agreement at any time upon four (4) months notice to the Company. In the event
of a Voluntary Termination, the Company immediately shall pay any accrued
salary, any bonus compensation to the extent earned, any vested deferred
compensation (other than pension plan or profit sharing plan benefits which
will
be paid in accordance with the applicable plan), any benefits under any plans
of
the Company in which Executive is a participant to the full extent of
Executive’s rights under such plans, any accrued vacation pay and any
appropriate business expenses incurred by Executive in connection with his
duties hereunder, all to the date of termination, but no other compensation
or
reimbursement of any kind.
4.6
Adjustment of Responsibilities. If the Executive is unable to fulfill his duties
as CFO due to factors beyond his control, Company and Executive may mutually
agree to adjust executive’s role to accommodate such situation. In that event
Executive may continue on with the company as Senior Financial Advisor or a
title to be mutually agreed upon. In that case Executive may receive in form
of
Bonus, 4 months salary in addition to any other bonuses due will remain as
an
employee at a mutually agreed upon rate and all employee benefits will remain
in
effect.
5.
SEVERANCE COMPENSATION.
Upon
a
Termination Other Than for Cause, Executive shall receive a severance fee equal
to four (4) months of gross base salary, which will be paid pursuant to section
5 (b) below.
(a)
any
benefits under any plans of the Company in which Executive is a participant
to
the full extent of Executive’s rights under such plans for a period of four (4)
months following the date of termination.
(b)
the
timing of the payment herein shall be at the earliest date which does not
trigger the provisions of IRC 409A.
(c)
The
Executive will extend the customary courtesies and considerations regarding
information on pending matters, post-termination.
6.
PAID
TIME OFF. Executive shall eligible to accrue vacation and sick leave according
to company at the rate of four (4) weeks per year.
7.
HOLIDAYS. Executive shall be entitled to holidays with pay during each calendar
year consistent with the holiday schedule applicable to management employees
of
the Company, generally.
8.
COMPLIANCE WITH EMPLOYER’S RULES. The employment relationship between the
parties shall be governed by the general employment policies and procedures
of
the Company, including (but not limited to) those relating to the protection
of
confidential information and assignment of inventions; provided, however, that
when the terms of the Agreement differ from or are in conflict with the
Company’s general employment policies or procedures, the Agreement shall
control. Executive agrees to abide by all of the Company’s policies and
procedures in effect from time to time.
9.
RETURN
OF PROPERTY. Upon termination of Executive’s employment, Executive shall deliver
all property (including keys, records, notes, lists, data, memoranda, models,
and equipment) that is in the Executive’s possession or under the Executive’s
control which is the Company’s property or related to the Company’s business.
10.
INDEMNIFICATION OF EXECUTIVE. The Company shall indemnify Executive against
any
direct losses incurred by Executive in the course of his duties to the fullest
extent permissible under applicable law.
11.
MISCELLANEOUS.
11.1.
Every notice or other communication required or contemplated by the Agreement
by
either party shall be delivered to the other party at the address set forth
on
the signature page below by: (i) personal delivery; (ii) postage prepaid, return
receipt requested, registered or certified mail; (iii) internationally
recognized express courier, such as Federal Express, UPS or DHL; or (iv)
facsimile or email with a confirmation copy sent simultaneously by postal mail.
Notice not given in writing shall be effective only if acknowledged in writing
by a duly authorized representative of the party to whom it was given. Either
party may change its or his address for notice from time to time by providing
written notice in the manner set forth above.
11.2.
Attorney Fees. In the event that any action, suit or other proceeding at law
or
in equity is brought to enforce the provisions of the Agreement, or to obtain
money damages for the breach thereof, and such action results in the award
of a
judgment for money damages or in the granting of any injunction in favor of
the
Company, then all reasonable expenses, including, but not limited to, reasonable
attorneys’ fees and disbursements (including those incurred on appeal) of the
Company in such action, suit or other proceeding shall (on demand of the
Company) forthwith be paid by Executive. If such action results in a judgment
in
favor of Executive, then all reasonable expenses, including but not limited
to,
reasonable attorney’s fees and disbursements (including those incurred on
appeal) of Executive in such action, suit or other proceeding shall (on demand
of Executive) forthwith be paid by the Company.
11.3.
Entire Agreement. The Agreement supersedes all prior agreements, and the terms
set forth herein represent the entire understanding and agreement between the
Company and Executive regarding compensation, employment, status and position.
It is further understood that the Company’s policies, procedures and rules may
be amended or changed at any time by the Company.
11.4.
Amendment. The Agreement may be modified or amended only if the amendment is
made in writing and is signed by both parties. The Agreement cannot be altered
in any way by any oral statement(s) made by Executive or the
Company.
11.5.
Severability. If any provision(s) of the Agreement shall be held to be invalid
or unenforceable for any reason, the remaining provisions shall continue to
be
valid and enforceable. If a court finds that any provision(s) of the Agreement
is invalid or unenforceable, but that by limiting such provision it would become
valid or enforceable, then such provision shall be deemed to be written,
construed, and enforced as so limited.
11.6.
Waiver Of Contractual Right. The failure of either party to enforce any
provision of the Agreement shall not be construed as a waiver or limitation
of
that party’s right subsequently to enforce and compel strict compliance with
every provision of the Agreement.
11.7.
Applicable Law. The Agreement shall be governed by the laws of the State of
California.
11.8
Compliance with IRC 409A. In the event the timing of any provision herein is
deemed to trigger tax under the provisions of IRC 409A, the parties agree to
amend the timing to provide compliance with IRC 409A.
IN
WITNESS WHEREOF, the parties have executed his Agreement as of the date first
above written.
/s/
__________________________
By
Xxxx
Xxxxxxxxxxxx
Executive
/s/
__________________________
Xxxxxx
X’Xxxxxxxx
Schedule
A
The
Chief
Financial Officer will be responsible will include but not be limited
to:
| 1. |
Direct
the preparation of all financial reports, including income statements,
balance sheets, reports to shareholders, tax returns, and reports
for
government regulatory agencies.
|
| 2. |
Oversee
accounting departments, budget preparation, and audit functions.
Meets
regularly with department heads to keep informed and to offer direction.
|
| 3. |
Review
reports to analyze projections of sales and profit against actual
figures,
budgeted expenses against final totals, and suggests methods of improving
the planning process as appropriate.
|
| 4. |
Analyze
company operations to pinpoint opportunities and areas that need
to be
reorganized, down-sized, or eliminated.
|
| 5. |
Confer
with C.E.O., Vice President of Sales and Marketing, C.O.O., and group
leaders to coordinate and prioritize planning.
|
| 6. |
Studies
long-range economic trends and projects company prospects for future
growth in overall sales and market share, opportunities for acquisitions
or expansion into new product areas. Estimates requirements for capital,
land, buildings, and an increase in the work force.
|
| 7. |
Supervises
investment of funds; works with banks and/or investment bankers to
raise
additional capital as required for
expansion
|
| 8. |
Direct
the on going legal services for the company including contract
administration, Human Resource and SEC
compliance.
|
