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EXHIBIT 10.15
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (herein "Agreement") is entered into as of November
13, 1998, by and between JMAR Technologies, Inc. ("JMAR") of 0000 Xxxxxxxx
Xxxxxx Xxxx., Xxx Xxxxx, Xxxxxxxxxx 00000 and E. Xxxx Xxxxxxx ("Xxxxxxx") of 000
Xxxxxxxx Xxxx #000, Xxxxxxx, Xxxxxxxxxxxxx 00000 and 0000 XX Xxxxx Xxxxxx #00,
Xxxxxxxx, Xxxxxx 00000.
Recitals
WHEREAS, JMAR manufactures and markets video and laser-based test, measurement
and inspection equipment that measures, welds, cuts, and inspects
microelectronic components, such as semiconductors and computer disk drives,
provides semiconductor chips and manufacturing process technology and is a
leading developer of advanced semiconductor lithography and laser systems, and
WHEREAS, JMAR desires to have the services of Xxxxxxx, and
WHEREAS, Xxxxxxx desires to be employed by JMAR.
NOW, THEREFORE, JMAR and Xxxxxxx agree as follows:
1. Employment/Title/Responsibilities. Xxxxxxx shall be employed as
President and Chief Operating Officer of JMAR and shall report directly
to the Chief Executive Officer of JMAR. Xxxxxxx'x primary
responsibilities shall be for maximizing the profitability of JMAR's
operating divisions consistent with the achievement of new product
line/emerging business area development milestones set forth in the
Company's annual and strategic business plans which are updated yearly,
and such other services and duties as may be assigned to him from time
to time by JMAR. Xxxxxxx will primarily perform the job duties at the
following locations: San Diego, California; Chatsworth, California;
Irvine, California; and Sacramento, California; and as specified by
JMAR.
2. Compensation/Benefits/Review. As compensation for the services provided
by Xxxxxxx under this Agreement, JMAR will pay Xxxxxxx an annual salary
of not less than $177,500.00 (base pay) payable in accordance with
JMAR's usual payroll procedures. Xxxxxxx will receive all standard JMAR
benefits as described in the enclosed summary of benefits. Xxxxxxx'x
performance will be reviewed annually and this review will be used as a
benchmark for possible increases to base pay. In addition, the standard
vacation accrual plan will be modified for Xxxxxxx such that the initial
yearly accrual rate will be four weeks instead of the standard three
weeks.
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3. Signing Bonus. JMAR shall xxxxx Xxxxxxx a $20,000 signing bonus (the
"Signing Bonus") in consideration for Xxxxxxx starting employment no
later than December 1, 1998. The Signing Bonus is payable immediately or
will be deferred at Xxxxxxx'x request and may be payable in cash or JMAR
shares of common stock at Xxxxxxx'x election. In the event that this
Agreement is terminated prior to December 1, 2000 by JMAR pursuant to
Paragraph 7.2 or by Xxxxxxx for any reason other than pursuant to
Paragraph 7.3, then Xxxxxxx shall return to JMAR that portion of the
Signing Bonus which is equal to the product of $833.33 multiplied by the
number of calendar months remaining until December 1, 2000.
4. Initial Stock Options/Future Stock Options. JMAR shall xxxxx Xxxxxxx
options to purchase 150,000 shares, consisting of (i) incentive stock
options ("ISO's") to purchase 100,000 shares of JMAR common stock
pursuant to the terms of JMAR's 1991 Employee Stock Option Plan, a copy
of which is delivered herewith, and (ii) non-qualified options to
purchase 50,000 shares of Common Stock, outside of the 1991 Employee
Stock Option Plan ("NQSO's"). The ISO's will vest in equal amounts at
the end of each of the first three years after the start date of
Xxxxxxx'x employment and the exercise price of the ISO's will be equal
to the average closing prices of JMAR Common Stock for the five trading
days prior to the date of the grant. The NQSO's shall have terms similar
to the warrants granted to employees under the JMAR Management Incentive
Warrant Plan, as described in Attachment 1 hereto. The other terms of
the options shall be contained in JMAR's standard stock option
agreement, which shall also contain a provision that immediately vests
all options granted to Xxxxxxx in the event that a third party should
acquire a controlling interest in JMAR.
5. Performance Bonus Plan. JMAR shall provide to Xxxxxxx as annual
executive bonus plan that, based upon Company performance, has the
potential of paying Xxxxxxx an additional 75% of annual salary.
6. Relocation Benefits/House-hunting/Temporary Living Expenses. JMAR will
reimburse Xxxxxxx for reasonable, actual expenses involved in moving his
residences from the present locations in Norwood, MA and Portland, OR to
Southern California pursuant to JMAR's standard Relocation Policy. In
addition, JMAR will reimburse Xxxxxxx for the cost of four (4)
house-hunting trips for Xxxxxxx and his "significant other" (from
Portland, OR). JMAR will also reimburse Xxxxxxx for up to four months
temporary living expense during the relocation process. These expenses
may include but are not limited to airfare, car rental and hotel/motel.
7. Employment at Will; Salary Continuation Payments.
7.1 Xxxxxxx'x employment will be "at-will" and may be terminated at
any time, for any reason, by either Xxxxxxx or JMAR. If JMAR
terminates Xxxxxxx for any reason other than pursuant to
Paragraph 7.2 below, Xxxxxxx shall become entitled to receive an
amount ("Salary Continuation Payments")
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equal to twelve (12) months salary (subject to earlier
termination upon the occurrence of an event specified in
Paragraph 7.2), payable commencing on the date of such
termination at the rate and times as such compensation would
have been payable to Xxxxxxx had this Agreement not been
terminated pursuant to this Paragraph 7.1. In addition to the
payment of such Salary Continuation Payments, JMAR shall, at its
expense, continue coverage under those insurance policies in
which Xxxxxxx participates for which COBRA coverage is available
for the twelve month period during which the Salary Continuation
Payments are made (the "Continued Insurance Coverage").
7.2 Notwithstanding the provisions of Paragraph 7.1 above, this
Agreement shall terminate (without any right to Salary
Continuation Payments or Continued Insurance Coverage) upon the
occurrence of any of the following events: (a) the death of
Xxxxxxx; (b) the incapacity or disability of Xxxxxxx, which
renders him unable to perform substantially all of the services
contemplated by this Agreement for a continuous period of sixty
(60) days; (c) the commission of an act of fraud, dishonesty in
a matter which is material to his employment, or embezzlement by
Xxxxxxx; (d) the willful neglect by Xxxxxxx in the performance
of the services contemplated by this Agreement in such manner as
to provide reasonable cause for terminating his services; or (3)
the substantial breach by Xxxxxxx of any of the covenants or
obligations under this Agreement and such breach provides
reasonable cause for JMAR to terminate this Agreement; provided
that, in order to terminate this Agreement pursuant to clauses
(d) and (e) of this Paragraph 7.2, JMAR shall have given thirty
(30) days written notice of termination to Xxxxxxx and Xxxxxxx
shall have failed to fully cure or correct such willful neglect
or breach within the thirty days immediately following such
notice.
7.3 This Agreement may be terminated by Xxxxxxx on thirty (30) days
written notice of termination to JMAR if JMAR breaches any of
its covenants or obligations under the Agreement and such breach
provides reasonable cause for Xxxxxxx to terminate this
Agreement and in such event Xxxxxxx shall also be entitled to
the Salary Continuation Payments and Continued Insurance
Coverage in the manner provided in Paragraph 7.1 above; provided
that, in order to terminate this Agreement pursuant to this
provision, JMAR shall have failed to fully cure or correct such
breach within the thirty days immediately following such notice.
8. Reimbursement for Expenses/Use of Employer Property. JMAR will reimburse
Xxxxxxx for all reasonable expenses incurred by him on the business of
JMAR in accordance with JMAR policies in effect from time-to-time. JMAR
will provide to Xxxxxxx the necessary equipment and materials to
accomplish his employment responsibilities, including a notebook
computer, printer, fax machine, cellular
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telephone, pager, company credit cards, and telephone calling cards.
Xxxxxxx will also be provided with a monthly auto allowance of $600.00.
9. Travel/Requirements. Xxxxxxx will be required to travel from time to
time not averaging more than 40% of his time for JMAR in the normal
course of business. On domestic USA trips Xxxxxxx will travel coach
class. On all international trips Xxxxxxx will travel business class.
For all auto rentals Xxxxxxx will rent full-size vehicles.
10. Retirement Plan. Xxxxxxx shall be able to participate in JMAR's 401(k)
retirement plan in accordance with the plan's terms and the requirement
of law.
11. Confidential Information. Concurrently herewith, Xxxxxxx shall enter
into an Employee Confidentiality and Inventions Agreement in the form
provided to Xxxxxxx.
12. No Violation of Other Contracts. Xxxxxxx represents and warrants that
the execution, delivery and performance of this Agreement by Xxxxxxx
does not and will not result in a breach of or violation of, or
constitute a default under, any agreement to which Xxxxxxx is a party or
by which Xxxxxxx is bound.
13. No Conflicts of Interest. Xxxxxxx does not have any financial interest,
whether by stock ownership or otherwise, in any entity which is a
supplier, customer or competitor of JMAR.
14. Compliance with JMAR's Rules. Xxxxxxx agrees to comply with all of the
rules, regulations and standard practices of JMAR as in effect from time
to time. JMAR will provide Xxxxxxx with all such current rules,
regulations and standard practices and all future updates.
15. General Provisions.
15.1 Assignment. Neither the rights nor obligations under this Agreement
may be assigned, transferred, pledged or hypothecated by any party
hereto, except that this Agreement shall be binding upon and inure to
the benefit of any successor of JMAR.
15.2 Notices. Any notice required or permitted to be given under this
Agreement shall be deemed to have been duly given if in writing and if
personally delivered or sent by registered or certified mail, return
receipt requested, with postage prepaid:
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if to JMAR:
JMAR Technologies, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx, Ph.D.
If to the Employee:
E. Xxxx Xxxxxxx
0000 XX Xxxxx Xxxxxx #00
Xxxxxxxx, XX 00000
Any party may change the address to which notices are to be sent to it
or him by giving ten days' written notice of such change of address to
the other party in the manner above provided for giving notice. Notices
will be considered delivered on the date of personal delivery or on the
date of deposit in the United States mail in the manner above provided
for giving notice by mail.
15.3 Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration
at San Diego, California, in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, and judgment upon the
award of the arbitrator(s) shall be entered in any court with
appropriate jurisdiction as the final binding judgment. The provisions
of California Code of Civil Procedure Section 1283.05 are hereby
incorporated into and made applicable to this Agreement. In addition to
any other relief as may be granted, the prevailing party shall be
entitled to reasonable attorneys' fees in such arbitration, with the
amount thereof to be determined by the arbitrator or the court.
15.4 Counterparts. This Agreement may be executed in several
counterparts, and all counterparts so executed shall constitute one
agreement binding on all of the parties hereto notwithstanding that all
parties are not signatory to the original or same counterpart.
15.5 Entire Agreement. This Agreement constitutes the entire agreement
and understanding between Xxxxxxx and JMAR with respect to the
employment of Xxxxxxx, and supersedes all other agreements, written or
oral, regarding such employment. This Agreement may be altered or
amended only by a written instrument executed by each of the parties
hereto.
15.6 Severability. If any provision of this Agreement or the application
thereof to any person or circumstance shall be invalid or unenforceable
to any extent, the remainder of this Agreement and the application of
such provisions to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
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15.7 Interpretation of Xxxxxxxxx.Xx the event of any arbitration or
other dispute, neither this Agreement or any provision hereof shall be
interpreted for or against any part on the basis said party or its
attorney drafted the Agreement or provision in question.
15.8 Waiver.The waiver by any party hereto of a breach of any of the
provisions of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach hereof by such party.
15.9 California Law. This Agreement shall be governed by and considered
in accordance with the laws of the State of California.
15.10 Headings. The subject headings of the Sections of this Agreement
are included for the purposes of convenience only and shall not affect
the construction or interpretation of any term or provision hereof.
15.11 Disclosure. Subject to JMAR's disclosure obligations under
applicable laws, JMAR and Xxxxxxx agree not to publicly disclose the
terms of this Agreement without each other's prior consent which will
not be unreasonably withheld.
AGREED TO AND ACCEPTED BY:
Employer: Employee:
JMAR TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxxx By: /s/ E, Xxxx Xxxxxxx
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Xxxx X. Xxxxxxxx E. Xxxx Xxxxxxx
Chairman of the Board & CEO
agree\327
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