EXHIBIT 10.13
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
effective as of August 1, 2001 (the "Effective Date"), by and between
LIQUIDMETAL TECHNOLOGIES, a California corporation (the "Company"), and Xxxx X.
Xxxxx, Xx. (the "Employee").
RECITALS
WHEREAS, the Employee desires to be employed by the Company upon the terms
and conditions set forth in this Agreement; and
WHEREAS, the Company desires to assure itself of the Employee's continued
employment in the capacities set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and for other
good and valuable consideration, the parties hereto covenant and agree as
follows:
1. EMPLOYMENT. The Company hereby employs Employee, and the Employee hereby
accepts such employment, upon the terms and conditions set forth in this
Agreement.
2. TERM. Subject to the terms and conditions of this Agreement, including,
but not limited to, the provisions for termination set forth in Section 5
hereof, the employment of the Employee under this Agreement shall commence on
the Effective Date and shall continue through the close of business of the fifth
(5th) anniversary of the Effective Date (the "Initial Term"). Upon the
expiration of the Initial Term, the Employee's employment with the Company will
continue on an "at-will" basis and may be terminated by Employee or the Company
for any reason and at any time, provided that the terminating party shall
provide at least thirty (30) days prior written notice of the termination to the
other party (unless the termination is pursuant to clause (2), (3), or (4) of
Section 5(d), in which case the Employee's employment may be terminated
immediately).
3. DUTIES. Employee will initially serve as the Vice President and General
Counsel of the Company. The job shall initially include, but not be limited to
serving as Chief Legal Officer of the Company and director of government and
political relations. The Employee will devote Employee's entire business time,
attention, skill, and energy exclusively to the business of the Company, will
use the Employee's best efforts to promote the success of the Company's
business, and will cooperate fully with the Board of Directors in the
advancement of the best interests of the Company. Furthermore, the Employee
shall assume and competently perform such reasonable responsibilities and duties
as may be assigned to the Employee from time to time by the Board of Directors,
Chairman of the Board, President, or Chief Executive Officer of the Company. To
the extent that the Company shall have any parent company, subsidiaries,
affiliated corporations, partnerships, or joint ventures (collectively "Related
Entities"), the Employee shall perform such duties to promote these entities and
their respective interests to the same extent as the interests of the Company
without additional compensation. At all times, the Employee agrees that the
Employee has read and
will abide by, and prospectively will read and abide by, any employee handbook,
policy, or practice that the Company or Related Entities has or hereafter adopts
with respect to its employees generally. Employee will primarily perform his
duties of employment in Tampa, Florida, but may do so from any location he
selects provided it does not compromise his ability to perform.
4. COMPENSATION.
(a) Annual Base Salary. As compensation for Employee's services and in
consideration for the Employee's covenants contained in this Agreement, the
Company shall pay the Employee an annual base salary of One Hundred Seventy Five
Thousand and No/100 Dollars ($175,000.00). Such annual base salary shall be
payable in equal installments in accordance with the policy then prevailing for
the Company's salaried employees generally, and the annual base salary shall be
subject to any tax and other withholdings or deductions required by applicable
laws and regulations. The Employee's annual base salary will be reviewed by the
Board of Directors or Chief Executive Officer of the Company not less frequently
than annually, and the annual base salary may be adjusted upward or downward in
the sole discretion of the Board of Directors or Chief Executive Officer. For
purposes of this Agreement, the term "Salary Year" means the 365-day period that
begins on the Effective Date and each successive 365-day period thereafter.
(b) Bonuses. In addition to the Employee's annual base salary, during the
term of the Employee's employment hereunder, the Employee shall be entitled to
only such bonuses as may be granted to the Employee by the Board of Directors or
Chief Executive Officer of the Company, in their sole discretion.
(c) Other Benefits. During the term of the Employee's employment hereunder,
the Employee shall be eligible to participate in such pension, life insurance,
health insurance, disability insurance and other benefits plans, if any, which
the Company may from time to time make available to similar-level employees.
(d) Vacation. The Employee shall be entitled to 4 weeks paid vacation
during each Salary Year during the term of the Employee's employment hereunder.
Unused vacation from a particular Salary Year will not carry over to succeeding
Salary Years, and the Employee will not be paid for any unused vacation,
EXCEPTING THE FOLLOWING: THE EMPLOYEE WILL ONLY BE PAID FOR ACCRUED/UNUSED
VACATION AVAILABLE AT THE TIME OF THE EMPLOYEE'S TERMINATION.
(e) Reimbursement of Expenses. The Employee shall be reimbursed for all
reasonable and customary travel and other business expenses incurred by Employee
in the performance of Employee's duties hereunder, provided that such
reimbursement shall be subject to, and in accordance with, any expense
reimbursement policies and/or expense documentation requirements of the Company
that may be in effect from time to time.
(f) Option Grant. In addition to the foregoing, in consideration of the
execution of this Agreement by the Employee, the Company shall, on the date
hereof, grant to
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the Employee an option to purchase up to 500,000 shares of the common stock of
the Company at an exercise price of $4.00 per share. Vesting of the options
would occur such that fifty percent (50%) upon the effective date and ten (10%)
upon each anniversary of the effective date. Such option shall be evidenced by a
stock option agreement in the form set forth as Exhibit A hereto.
5. TERMINATION.
(a) Death. The Employee's employment under this Agreement shall terminate
immediately upon Employee's death. In the event of a termination pursuant to
this Section 5(a), the Employee's estate shall be entitled to receive any unpaid
base salary owing to Employee up through and including the date of the
Employee's death.
(b) Disability. If, during the term of the Employee's employment hereunder,
the Employee becomes physically or mentally disabled in accordance with the
terms and conditions of any disability policy covering the Employee or, if due
to any physical or mental condition, the Employee becomes unable for a period of
more than sixty (60) days during any six-month period to perform Employee's
duties hereunder on substantially a full-time basis as determined by the Company
in its sole discretion, the Company may, at its option, terminate the Employee's
employment upon not less than thirty (30) days written notice. In the event of a
termination pursuant to this Section 5(b), the Employee shall be entitled to
receive any unpaid base salary owing to Employee up through and including the
effective date of Termination. THE BENEFITS OF SHORT-TERM AND LONG-TERM
DISABILITY INSURANCE, AS MAY BE ARRANGED FOR THROUGH THE COMPANY, WOULD CONTINUE
IN ACCORDANCE WITH THE PROVISIONS OF SAID INSURANCE PLAN.
(c) Termination By Company Without Cause. In addition to the other
termination provisions of this Agreement, the Company may terminate the
Employee's employment at any time without cause (a "Termination Without Cause").
In the event of a Termination Without Cause, the Employee shall continue to
receive the Employee's base salary (as then in effect) during the 24-month
period immediately following the effective date of the Termination Without Cause
(the "Severance Period"). In addition to the severance pay described in the
preceding sentence, the Employee shall continue to receive, during the Severance
Period, all employee health and welfare benefits that Employee would have
received during the Severance Period in the absence of such termination.
Employee agrees and acknowledges, however, that Employee will forfeit the right
to receive base salary and benefits during the Severance Period immediately upon
the Employee's breach of any covenant set forth in Section 6 of this Agreement.
The Employee will be entitled to stock options that are fully vested at the time
of the termination but will forfeit all options which are not vested as of the
date of termination.
(d) Termination By Company With Cause. The Company may terminate the
Employee's employment at any time with Cause. As used in this Agreement, "Cause"
shall include the following: (1) the Employee's failure or inability to perform
Employee's duties under this Agreement; (2) dishonesty, misconduct, or unlawful
acts that adversely affect the Company; (3) a material violation of the
Company's policies or practices which reasonably
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justifies immediate termination; (4) pleading guilty or no contest to, or
conviction of, a felony or any crime involving moral turpitude, fraud,
dishonesty, or misrepresentation; (5) the commission by the Employee of any act
which could reasonably be expected to materially injure the reputation,
business, or business relationships of the Company or Related Entities; (6) the
Employee's inability to perform an essential function of Employee's position; or
(7) any material breach by Employee of this Agreement. The Company may terminate
this Agreement for Cause, as defined in clauses (1), (5), (6) and (7) above,
upon thirty days prior written notice (the "Cause Notification Period") to
Employee, but such termination shall only become effective in the event of
Employee's failure to cure the applicable breach or violation, to the reasonable
satisfaction of Company, prior to the end of the Cause Notification Period. The
Company may terminate this Agreement for Cause, as defined in clauses (2), (3),
and (4) above, at any time with no notice. In the event of a termination for
Cause, the Company shall be relieved of all its obligations to the Employee
provided for by this Agreement as of the effective date of termination, and all
payments to the Employee hereunder shall immediately cease and terminate as of
such date, except that Employee shall be entitled to the annual base salary
hereunder up to and including the effective date of termination. Termination for
cause or not for cause shall not, however, invalidate any stock option grants
which are fully vested as of the date of termination.
6. NONCOMPETITION, NONSOLICITATION, AND NONDISCLOSURE COVENANTS.
(a) Rationale for Restrictions. Employee acknowledges that Employee's
services hereunder are of a special, unique, and extraordinary character, and
Employee's position with the Company places Employee in a position of confidence
and trust with customers, suppliers, and other persons and entities with whom
the Company and its Related Entities have a business relationship. The Employee
further acknowledges that the rendering of services under this Agreement will
likely require the disclosure to Employee of Confidential Information (as
defined below) relating to the Company and/or Related Entities. As a
consequence, the Employee agrees that it is reasonable and necessary for the
protection of the goodwill and legitimate business interests of the Company and
Related Entities that the Employee make the covenants contained in this Section
6, that such covenants are a material inducement for the Company to employ the
Employee and to enter into this Agreement, and that the covenants are given as
an integral part of and incident to this Agreement.
(b) Noncompetition and Nonsolicitation Covenants. As used herein, the term
"Restrictive Period" means the time period commencing on the Effective Date of
this Agreement and ending on the second (2nd) anniversary of the date on which
the Employee's employment by the Company (or any Related Entity) expires or is
terminated. The Employee agrees that, during the Restrictive Period, the
Employee will not utilize his or her knowledge of the business of the Company or
his or her relationships with investors, suppliers, customers, clients, or
financial institutions to compete with the Company or any of the Related
Entities in any business which is the same as, or similar to, any business
conducted by the Company or any of the Related Entities at any time during the
Restrictive Period (a "Covered Business"). Additionally, the Employee agrees
that the Employee will not engage in any of the following acts anywhere in the
world during the Restrictive Period:
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(i) directly or indirectly engage or invest in; own, manage, operate,
finance, control, or participate in the ownership, management,
operation, financing, or control of; be employed by, associated with,
or in any manner connected with; lend the Employee's name or any
similar name to; lend Employee's credit to; or render services or
advice to, any business which competes with, is engaged in, or carries
on any aspect of a Covered Business;
(ii) directly or indirectly assist, promote or encourage any existing or
potential employees, customers, clients, or vendors of the Company or
any Related Entity, as well as any other parties which have a business
relationship with the Company or a Related Entity, to terminate,
discontinue, or reduce the extent of their relationship with the
Company or a Related Entity;
(iii)directly or indirectly solicit business of the same or similar type
as a Covered Business, from any person or entity known by the Employee
to be a customer or client of the Company, whether or not the Employee
had contact with such person or entity during the Employee's
employment with the Company;
(iv) disparage the Company, any Related Entities, and/or any shareholder,
director, officer, employee, or agent of the Company or any Related
Entity; and/or
(v) engage in any practice the purpose of which is to evade the provisions
of this Section 6 or commit any act which adversely affects the
Company, any Related Entity, or their respective businesses.
The Employee acknowledges and agrees that, in light of the unique nature of the
Company's business, the Company will market its products on a worldwide basis
and will compete with various companies and businesses across and world.
Accordingly, the Employee agrees that the geographic scope of the above
covenants is a reasonable means of protecting the Company's (and the Related
Entities') legitimate business interests. Notwithstanding the foregoing
covenants, nothing set forth in this Agreement shall prohibit the Employee from
owning the securities of (i) corporations which are listed on a national
securities exchange or traded in the national over-the-counter market in an
amount which shall not exceed 5% of the outstanding shares of any such
corporation or (ii) any corporation, partnership, firm or other form of business
organization which does not compete with, is not engaged in, and does not carry
on any aspect of, either directly or indirectly through a subsidiary or
otherwise, any Covered Business.
(c) Disclosure of Confidential Information. The Employee acknowledges that
the inventions, innovations, software, trade secrets, business plans, financial
strategies, finances, and all other confidential or proprietary information with
respect to the business and operations of the Company and Related Entities are
valuable, special, and unique assets of the
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Company. Accordingly, the Employee agrees not to, at any time whatsoever either
during or after the Employee's term of employment with the Company, disclose,
directly or indirectly, to any person or entity, or use or authorize any person
or entity to use, any confidential or proprietary information with respect to
the Company or Related Entities without the prior written consent of the
Company, including, without limitation, information as to the financial
condition, results of operations, identities of clients or prospective clients,
products under development, acquisition strategies or acquisitions under
consideration, pricing or cost information, marketing strategies or any other
information relating to the Company or any of the Related Entities which could
be reasonably regarded as confidential (collectively referred to as
"Confidential Information"). However, the term "Confidential Information" does
not include any information which is or shall become generally available to the
public other than as a result of disclosure by the Employee or by any person or
entity which the Employee knows (or which the Employee reasonably should know)
has a duty of confidentiality to the Company or a Related Entity with respect to
such information. In addition to the foregoing, Company will be fully entitled
to all of the protections and benefits afforded by the Florida Uniform Trade
Secrets Act and other applicable law.
(d) Prevention of Premature Disclosure of Information. The Employee agrees
and acknowledges that, because the success of the Company is heavily dependent
upon maintaining the secrecy of the Company's Confidential Information and
preventing the premature public disclosure of the Company's proprietary
information and technology, the Employee agrees to use the Employee's best
efforts and his or her highest degree of care, diligence, and prudence to ensure
that no Confidential Information prematurely leaks or otherwise prematurely
makes its way into the public domain or any public forum, including, without
limitation, into any trade publications, internet chat rooms, or other similar
forums. In the event that the Employee becomes aware of any premature leak of
Confidential Information or becomes aware of any circumstances creating a risk
of such a leak, the Employee shall immediately inform the Board of Directors,
the Chief Executive Officer, or the Employee's supervisor of such leak or of
such circumstances.
(e) Removal and Return of Proprietary Items. The Employee will not remove
from the Company's premises (except to the extent such removal is for purposes
of the performance of the Employee's duties at home or while traveling, or
except as otherwise specifically authorized by the Company) any document,
record, notebook, plan, model, component, device, or computer software or code,
whether embodied in a disk or in any other form (collectively, the "Proprietary
Items"). The Employee recognizes that, as between the Company and the Employee,
all of the Proprietary Items, whether or not developed by the Employee, are the
exclusive property of the Company. Upon termination of Employee's employment
with the Company by either party (regardless of the reason for termination), or
upon the request of the Company during the term of employment, the Employee will
return to the Company all of the Proprietary Items in the Employee's possession
or subject to the Employee's control, and the Employee shall not retain any
copies, abstracts, sketches, or other physical embodiment of any of the
Proprietary Items.
(f) Enforcement and Remedies. In the event of any breach of any of the
covenants set forth in this Section 6, the Employee recognizes that the remedies
at law will be
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inadequate and that in addition to any relief at law which may be available to
the Company for such violation or breach and regardless of any other provision
contained in this Agreement, the Company shall be entitled to equitable remedies
(including an injunction) and such other relief as a court may grant after
considering the intent of this Section 6. Additionally, the period of time
applicable to any covenant set forth in this Section 6 will be extended by the
duration of any violation by Employee of such covenant. In the event a court of
competent jurisdiction determines that any of the covenants set forth in this
Section 6 are excessively broad as to duration, geographic scope, prohibited
activities or otherwise, the parties agree that this covenant shall be reduced
or curtailed to the extent, but only to the extent, necessary to render it
enforceable.
7. EMPLOYEE INVENTIONS.
(a) Definition. For purposes of this Agreement, "Employee Invention" means
any idea, invention, technique, modification, process, or improvement (whether
patentable or not), any industrial design (whether registerable or not), any
mask work, however fixed or encoded, that is suitable to be fixed, embedded or
programmed in a semiconductor product (whether recordable or not), and any work
of authorship (whether or not copyright protection may be obtained for it)
created, conceived, or developed by the Employee, either solely or in
conjunction with others, during the Employee's employment with the Company or
during the twenty four (24) month period following such employment, that relates
in any way to, or is useful in any manner in, the businesses then being
conducted or proposed to be conducted by the Company or any Related Entity.
(b) Ownership of Employee Inventions. Employee agrees and acknowledges that
all Employee Inventions will belong exclusively to the Company and that all
Employee Inventions are works made for hire and the property of the Company,
including any copyrights, patents, semiconductor mask protection, or other
intellectual property rights pertaining thereto. If it is determined that any
such works are not works made for hire, the Employee hereby assigns to the
Company all of the Company's right, title, and interest, including all rights of
copyright, patent, semiconductor mask protection, and other intellectual
property rights, to or in such Employee Inventions. The Employee covenants that
the Employee will promptly:
(i) disclose to the Company in writing any Employee Invention;
(ii) assign to the Company or to a party designated by the Company, at the
Company's request and without additional compensation, all of the
Employee's right to the Employee Invention for the United States and
all foreign jurisdictions;
(iii)execute and deliver to the Company such applications, assignments,
and other documents as the Company may request in order to apply for
and obtain patents or other registrations with respect to any Employee
Invention in the United States and any foreign jurisdictions;
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(iv) sign all other papers necessary to carry out the above obligations;
and
(v) give testimony and render any other assistance in support of the
Company's rights to any Employee Invention.
8. ESSENTIAL AND INDEPENDENT COVENANTS. The Employee's covenants in
Sections 6 and 7 of this Agreement are independent covenants, and the existence
of any claim by the Employee against the Company under this Agreement or
otherwise will not excuse the Employee's breach of any covenant in Section 6 or
7.
9. REPRESENTATIONS AND WARRANTIES BY THE EMPLOYEE. The Employee represents
and warrants to the Company that the execution and delivery by the Employee of
this Agreement do not, and the performance by the Employee of the Employee's
obligations hereunder will not, with or without the giving of notice or the
passage of time, or both: (a) violate any judgment, writ, injunction, or order
of any court, arbitrator, or governmental agency applicable to the Employee, or
(b) conflict with, result in the breach of any provisions of or the termination
of, or constitute a default under, any agreement to which the Employee is a
party or by which the Employee is or may be bound, including, without
limitation, any noncompetition agreement or similar agreement.
10. NOTICES. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when hand-delivered, sent by facsimile transmission (as
long as receipt is acknowledged), or mailed by United States certified or
registered mail, return receipt requested, postage prepaid, addressed to the
address or facsimile number for each party set forth on the signature page
hereto, or to such other address or facsimile number as either party may have
furnished to the other in writing in accordance herewith, except that a notice
of change of address shall be effective only upon receipt.
11. MISCELLANEOUS. No provision of this Agreement may be modified or waived
unless such waiver or modification is agreed to in writing signed by both of the
parties hereto. No waiver by any party hereto of any breach by any other party
hereto shall be deemed a waiver of any similar or dissimilar term or condition
at the same or at any prior or subsequent time. This Agreement is the entire
agreement between the parties hereto with respect to the Employee's employment
by the Company, and there are no agreements or representations, oral or
otherwise, expressed or implied, with respect to or related to the employment of
the Employee which are not set forth in this Agreement. This Agreement shall be
binding upon, and inure to the benefit of, the Company, its respective
successors and assigns, and the Employee and Employee's heirs, executors,
administrators and legal representatives. The duties and covenants of the
Employee under this Agreement, being personal, may not be delegated or assigned
by the Employee without the prior written consent of the Company, and any
attempted delegation or assignment without such prior written consent shall be
null and void and without legal effect. The parties agree that if any provision
of this Agreement shall under any circumstances be deemed invalid or
inoperative, the Agreement shall be construed with the invalid or inoperative
provision deleted and the rights and obligations of the parties shall be
construed and enforced accordingly.
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12. GOVERNING LAW; RESOLUTION OF DISPUTES. The validity, interpretation,
construction, and performance of this Agreement shall be governed by the laws of
the State of Florida without regard to principles of choice of law or conflicts
of law thereunder. Any action or proceeding seeking to enforce any provision of,
or based on any right arising out of, this Agreement may be brought against
either of the parties in the courts of the State of Florida, County of
Hillsborough, or, if it has or can acquire jurisdiction, in the United States
District Court located in Hillsborough County, Florida, and each of the parties
consents to the jurisdiction of such courts (and of the appropriate appellate
courts) in any such action or proceeding and waives any objection to venue laid
therein. Process in any action or proceeding referred to in the preceding
sentence may be served on either party anywhere in the world. THE PARTIES HEREBY
WAIVE A JURY TRIAL IN ANY LITIGATION ARISING UNDER OR RELATING TO THIS
AGREEMENT.
13. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Agreement may
be effective upon the execution and delivery by any party hereto of facsimile
copies of signature pages hereto duly executed by such party; provided, however,
that any party delivering a facsimile signature page covenants and agrees to
deliver promptly after the date hereof two (2) original copies to the other
party hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
LIQUIDMETAL TECHNOLOGIES
By: /s/ Xxxx Xxxx
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Xxxx Xxxx, President and CEO
Liquidmetal Technologies 00000
Xxxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Facsimile Number: [________________]
EMPLOYEE
By: /s/ Xxxx X. Xxxxx, Xx.
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Printed Name: Xxxx X. Xxxxx, Xx.
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Address and Facsimile Number:
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