Exhibit 10.48
EMPLOYMENT AGREEMENT
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This Employment Agreement is made and entered into effective July 10,
1995 by and between Micropolis Corporation ("Company") and J. Xxxxx Xxxxx
("Executive").
RECITALS
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WHEREAS, the Company wishes to appoint Executive, currently a Director
of the Company, to the position of Chief Executive Officer of the Company; and
WHEREAS, Executive wishes to become the Company's Chief Executive
Officer; and
WHEREAS, the parties have entered into a Letter of Intent dated July
10, 1995 setting forth certain terms of that employment relationship; and
WHEREAS, the parties now wish to document the employment relationship
in a more formal and definitive fashion,
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1. Title and Duties. Executive shall hold the position of Chief
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Executive Officer ("CEO"), reporting directly to the Board of Directors.
Executive shall be responsible for all of the duties and services normally
performed or provided by a CEO, in accordance with the Company's by-laws and
such directives and instructions as Executive may receive from time to time from
the Company's Board of Directors.
2. Outside Business Activities Precluded. During his employment,
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Executive shall devote his full energies, interest, abilities and productive
time to the performance of his duties under this Agreement and shall not,
without the prior written consent of the Company, render to others services of
any kind for compensation or engage in any other business activity that would
materially interfere with the performance of his duties under this Agreement,
except as listed in Appendix A.
3. Compensation. Executive shall be paid a base salary of $6,731
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per week, in accordance with the Company's normal payroll practices and
procedures.
4. Term. The effective date of this Agreement is July 10, 1995.
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This Agreement shall be terminated immediately upon Executive's death or
disability, or for Executive's willful breach of this Agreement, or habitual
neglect of his duties hereunder ("Cause"). Either the Company or Executive may
terminate this Agreement at any time and for any reason or no reason, upon
thirty (30) days' written notice to the other. The Company's obligation to pay
Executive compensation shall terminate upon the termination of this Agreement,
except that if Executive is terminated without Cause during the first 120 days
of this Agreement, he shall receive his base salary for the remaining portion
of that 120-day period.
5. Post-Employment Consulting. In the event Executive resigns or is
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terminated without Cause, he will, at the Company's option, continue to serve
the Company as an independent contractor consultant for a period of eight (8)
months for a fee of $1,000 per month.
6. Benefits. Executive shall be eligible to participate in all of
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the benefits and benefit programs generally available to employees and senior
executives of the Company pursuant to the terms of the applicable policies or
plan documents.
7. Incentive Stock Options. The Company will recommend to the
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Compensation Committee of the Company's Board of Directors that Executive be
granted, effective July 5, 1995, incentive stock options to purchase up to
350,000 shares of the Company's common stock, at an exercise price equal to the
stock's fair market value as of the date such options are granted by the
Company's Compensation Committee, pursuant to the Stock Option Plan for
Executive and Key Employees of Micropolis Corporation, to be vested over three
(3) years in three (3) equal installments of 166,666 1/3 shares on each of the
first three (3) anniversaries of this Agreement, if Executive is either employed
by the Company at that time or performing services for the Company as an
independent contractor consultant, pursuant to paragraph 5 of this Agreement, In
the event that the common stock of the Company closes at the average trading
price of $11 5/8 or more on the NASDAQ exchange for five (5) or more consecutive
trading days while Executive is employed prior to the third anniversary of this
Agreement, the Compensation Committee shall authorize the immediate vesting of
any incentive stock options that have not yet vested pursuant to this paragraph.
If 33 1/3% or more of the voting power of the fully diluted common stock of the
Company is acquired by a "third party," all the unexpired incentive stock
options granted the Executive pursuant to this paragraph to which Executive
would otherwise be entitled will immediately vest.
8. Cash Bonus. For calendar year 1996 and thereafter, the Company's
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Board of Directors shall develop a long-term cash bonus program for Executive
that will be based on 70% objective evaluation and 30% subjective evaluation.
Prior to the development of a long-term cash bonus program and for the remainder
of calendar year 1995, Executive may be eligible for a cash bonus of 50% of base
salary should the Company report break-even operating results before interest
and taxes in the Company's fourth calendar quarter ending December 31, 1995.
Furthermore, prior to the development of a long-term cash bonus program and for
the remainder of calendar year 1995, Executive may be eligible for a cash bonus
of 25% of base salary if a majority of the Company's Board of Directors
determines, in its sole discretion, that the Company's operations have improved
substantially, even if the Company was unable to achieve break-even results in
the fourth calendar quarter ending December 31, 1995, based on the criteria set
forth below.
Key Objectives: . Restructure and/or reinvigorate current staff
. Substantially improve OEM base
. Bring Tomahawk to Evaluation Stage
. Grow SSD and VOD into successful business
Executive must be employed by the Company to be eligible for payment of a bonus.
9. Reimbursement of Expenses. The Company shall reimburse Executive
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for actual and reasonable business expenses incurred in connection with
performance of his duties, subject to the Company's policies and procedures. The
Company shall provide a San Xxxx office set-up for
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Executive and shall pay for reasonable, business travel incurred to perform
Executive's business duties.
10. Arbitration of Disputes. The Company and Executive agree that
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any and all disputes concerning this Agreement or his employment by the Company
shall be submitted to final and binding arbitration to be conducted according to
the Commercial Arbitration Procedures of the American Arbitration Association.
Such arbitration may be compelled and enforced according to the California
Arbitration Act, C.C.P. (S) 1280, et seq. If any party to this Agreement brings
an action to enforce or declare his/its rights hereunder, the prevailing party
shall be entitled to recover his/its costs and expenses, including reasonable
attorneys' fees, incurred in connection with such action.
11. Ancillary Agreement. Executive shall sign and comply with the
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Company's standard form Assignment of Inventions and Confidential Information
Agreement and any other agreements generally applicable to the Company's
employees.
12. Competitive Activities. During the term of this Agreement,
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Executive shall not, directly or indirectly, either as an employee, employer,
consultant, agent, principal, partner, stockholder, corporate officer, director,
or in any other individual or representative capacity, engage or participate in
any business that is in competition in any manner whatsoever with the business
of the Company, nor shall he, for himself or for any other person or entity,
call on, solicit, entice or make known to any other organization or firm the
names of customers or employees of the Company for the purposes of competing
with the Company, or otherwise interfere with the Company's operations.
13. Confidentiality and Non-Disclosure of Proprietary Information.
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Executive acknowledges that the Company holds as confidential certain
information and knowledge respecting the intimate and confidential affairs of
the Company in the various phases of its business, including, but not limited
to, trade secrets, marketing plans, forecasts, and customer lists ("Proprietary
Information"). Executive agrees as follows:
a. All Proprietary Information shall be the sole property of
the Company and its assigns at all times. Both during the term of this
Agreement and after its termination, Executive agrees that he will keep all
Proprietary Information in confidence and will not use or disclose any
Proprietary Information or anything related to it without the prior written
consent of the Company, except as required in the ordinary course of
performing his duties as Executive.
b. Upon the termination of this Agreement, or at the Company's
written request at any time, Executive agrees to return all written
Proprietary Information to the Company, including all copies and
photocopies of such documents.
14. General Provisions.
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14.1 Notices. Any notice, request, demand, or other
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communication required or permitted hereunder shall be deemed to properly given
when personally served in writing, when deposited in the United States mail,
postage pre-paid, or when communicated to a public telegraph company for
transmittal, addressed to the Company or Executive at his or its last known
address. Each party may change his or its address by written notice in
accordance with this paragraph.
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14.2 Applicable Law. This Agreement is made and is to be
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governed by and construed under the laws of the State of California.
14.3 Captions and Paragraph Headings. Captions and paragraph
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headings as used herein are for convenience only and are not part of this
Agreement and shall not be used in construing it.
14.4 Severability. The provisions of this Agreement ace
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severable. If any provision of this Agreement shall be held to be invalid or
otherwise unenforceable, in whole or in part, the remainder of the provisions or
enforceable parts hereof shall not be affected thereby and shall be enforced to
the fullest extent permitted by law.
14.5 Benefit of Agreement. This Agreement shall inure to the
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benefit of and be binding upon the parties hereto and their respective
executors, administrators, successors and assigns; provided, however, that
Executive may not assign any of his rights or duties hereunder except upon the
prior written consent of the Board of Directors of the Company.
14.6 Entire Agreement. This Agreement contains the entire
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agreement of the parties, and except as expressly stated herein supersedes any
and all other agreements, whether oral or in writing, between the parties
hereto with respect to the employment of the Executive by the Company. Each
party to this Agreement acknowledges that no representations, inducements,
promises, or agreements, oral or otherwise, have been made by any party, or
anyone acting on behalf of any party, which are not embodied herein, and that no
other agreement, statement or promise not contained in this Agreement shall be
valid or binding. This Agreement may not be modified or amended by oral
agreement, but only by an agreement in writing signed by the Chairman of the
Board on the one hand and by Executive on the other. If Executive becomes
Chairman of Board, any modifications or amendments to this Agreement must be by
an agreement ratified by a majority of the Board of Directors or signed by the
Chairman of the Compensation Committee.
MICROPOLIS CORPORATION
/s/ J. Xxxxx Xxxxx By: /s/ Xxxxxx X. Street
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J. Xxxxx Xxxxx Name
Dated: July 10, 1995 Chairman of the Compensation Committee
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Title
Dated: July 10, 1995
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Exhibit A
Southwall Technologies Chairman BOD Consultant
Western Micro Tech Member BOD* Consultant
Wireless Access Member BOD* Consultant
*Invitation extended and accepted contingent upon upcoming BOD approval.
