DATAMETRICS CORPORATION
AMENDED EMPLOYMENT AGREEMENT
THIS AMENDED EMPLOYMENT AGREEMENT is entered into as of this 12th day
of August, 1997, by and between XXXXXX X. XXXXXX, XX. ("EXECUTIVE") and
DATAMETRICS CORPORATION, a Delaware corporation ("DMC"), and restates in its
entirety the Employment Agreement entered into between the parties as of January
3, 1997 (the "JANUARY AGREEMENT").
RECITALS
A. DMC desires to continue the employment of EXECUTIVE as its President
and wishes to provide EXECUTIVE with certain compensation and benefits
in return for such services; and
B. EXECUTIVE wishes to continue employment by DMC and provide personal
services to DMC in return for certain compensation and services.
AGREEMENT
1. EMPLOYMENT BY DMC.
1.1 DMC agrees to employ EXECUTIVE in the position of President for a
period of five (5) years, commencing on January 3, 1997, and expires on December
31, 2001, unless it is terminated earlier as set forth in Section 5. The
AGREEMENT automatically will be renewed annually, unless either party provides
the other party written notice of his or its intention not to renew the
AGREEMENT, one hundred and eighty (180) days in advance of its expiration, or by
July 1 of the year it will terminate.
1.2 EXECUTIVE shall serve in an executive capacity and shall perform
such duties as are customarily associated with his then-current titles,
consistent with the Bylaws of DMC and as required by DMC's Board of Directors
(the "BOARD"). During the term of employment with DMC, EXECUTIVE will devote his
best efforts and substantially all of his business time and attention to the
business of DMC.
1.3 The employment relationship between the parties also shall be
governed by the general employment policies and practices of DMC, including
those relating to protection of confidential information, except that when the
terms of this AGREEMENT differ from or are in conflict with DMC's general
employment policies or practices, this AGREEMENT shall control.
2. COMPENSATION.
2.1 SALARY. EXECUTIVE shall receive, for services to be rendered under
this AGREEMENT, an annualized base salary equal to Two Hundred and Fifteen
Thousand Dollars ($215,000), payable in installments consistent with DMC's
payroll policies, less all deductions required by federal, state and local tax
laws, rules and regulations. In the sole discretion of the BOARD, EXECUTIVE's
annualized base salary may be increased at any time. In any event, EXECUTIVE's
Salary will be increased annually by an amount equal to the cumulative cost of
living increment as reported in the "Consumer Price Index, Los Angeles,
California, All Items," published by the U.S. Department of Labor (using January
1, 1997 as the base date for comparison), or three percent (3%), whichever is
greater. Each new base salary shall become the base for each successive year
increase.
2.2 PERFORMANCE BONUS. In addition to Salary, the Compensation
Committee of the BOARD may, in its sole discretion, pay a bonus to the
EXECUTIVE, based upon the performance of the EXECUTIVE in any year during the
EMPLOYMENT TERM. The incentive plan in effect on the EXECUTIVE DATE of this
AGREEMENT is as follows:
o Ten Percent (10%) of base salary for achieving the first half year of
budget;
o Ten Percent (10%) of base salary for achieving the second half year of
budget;
o An additional ten percent (10%) of base salary if budget figure is met
at fiscal year end. In addition to meeting budget criteria, to qualify
for this component of the incentive plan, there must be a total of at
least four analyst presentations (in person, per year -- one per
quarter minimum with three analysts whose main office is not based in
the Los Angeles area).
o Exceeding the Annual Budget: If the annual budget is exceeded by ten
percent (10%), then for each percent over ten percent (10%), EXECUTIVE,
will receive one-half (1/2) of a percent (0.5%) of salary for each
percent over ten percent (10%).
o "MARKET CAP" CALCULATION: In the event DMC is sold, merged, or in any
way or manner ceases to exist as an independent company (the
"TRANSACTION"), EXECUTIVE will receive one and one-half percent (1.5%)
of the total MARKET CAP of DMC resulting from the terms of the
TRANSACTION. The MARKET CAP of DMC will be defined as the total number
of shares outstanding of DMC stock (including the shares tied to all
awarded stock options and warrants), multiplied by either (i) the cash
price per share paid for DMC's stock (in a cash transaction), or (ii)
the value of the acquiror's stock received by DMC's shareholders for
each share of DMC's stock (in a stock transaction), whichever is
applicable, or any combination thereof (the stock value of these shares
shall be the average share price for the preceding ninety (90) days, or
the closing price on the day of the deal, whichever is higher). On
August 12, 1997, DMC granted to the EXECUTIVE five year warrants, the
number of which will be equal to the value of one and one-half percent
(1.5%) of the total MARKET CAP STOCK PRICE less the closing per share
price of
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DMC's stock on August 12, 1997 ($1.375). In the event that the MARKET
CAP STOCK PRICE is less than or equal to the per share price of $1.375,
then the EXECUTIVE will receive cash equal to one and one-half percent
(1.5%) of the total MARKET CAP.
2.3 Warrants.
(A) As an inducement to the EXECUTIVE to enter into this
AGREEMENT, on execution of the JANUARY AGREEMENT, DMC granted to the EXECUTIVE
Warrants (the "WARRANTS") to purchase up to Five Hundred Thousand (500,000)
shares of common stock, par value $0.01 per share, of DMC (the "COMMON STOCK")
at an exercise price of $2.00 per share. The WARRANTS shall have a term of five
years. The WARRANTS are attached as Exhibit "C".
(B) Notwithstanding anything set forth in Section 2.3, above,
if, prior to December 31, 1997, DMC receives a written notice from a Person or
Entity unaffiliated with DMC, that such Person or Entity intends to commence a
tender offer for the shares of DMC's outstanding Common Stock, intends to engage
in a proxy contest, or otherwise seeks to gain control of the shares of Common
Stock, or a majority of the positions on DMC's Board of Directors (a "CHANGE OF
CONTROL") or such Person or Entity publicly announces its/his/her intention to
seek a CHANGE OF CONTROL, the exercise price for the WARRANTS shall be reduced
to $1.25. See Section 2 of WARRANTS, attached as Exhibit "C".
(C) Upon the death of the EXECUTIVE, all WARRANTS shall be
transferable to the estate of the EXECUTIVE and shall be exercisable by the
heirs and/or executors of the EXECUTIVE.
2.4 VACATION. EXECUTIVE shall be entitled to four (4) weeks paid annual
vacation; provided, however, that in no event shall EXECUTIVE be entitled to
accrue more than twelve (12) weeks vacation. Once EXECUTIVE accrues the maximum
of twelve weeks, he will not accrue vacation until he brings the maximum below
twelve weeks.
2.5 MEDICAL AND DENTAL COVERAGE. DMC shall provide EXECUTIVE, and the
members of his immediate family to such health and medical insurance benefits as
are then in effect and made available to other senior executives of DMC (and the
members of their immediate families), as a group, pursuant to the policies
maintained by DMC. EXECUTIVE agrees to comply with the conditions attendant to
coverage, including, without limitation, the payment of any applicable
contributions.
2.6 ADDITIONAL COMPANY BENEFITS. EXECUTIVE shall be entitled to all
other rights and benefits for which he is eligible under the terms and
conditions of such benefits then in effect and provided by DMC to its employees
generally and to its management and executive employees specifically.
2.7 LIFE INSURANCE PREMIUMS. During the EMPLOYMENT TERM, DMC shall pay
the premiums on a universal life insurance policy in the amount of Five Hundred
Thousand
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Dollars ($500,000) on the life of EXECUTIVE, issued by an insurance carrier
chosen by DMC and acceptable to EXECUTIVE. EXECUTIVE is the owner of the policy
and shall have the right to designate the beneficiaries of the life insurance
policy.
2.8 DISABILITY INSURANCE PREMIUMS. During the EMPLOYMENT TERM, DMC
shall pay the annual premiums necessary to maintain a disability insurance
policy in favor of the EXECUTIVE, issued by a company chosen by DMC and
reasonably acceptable to EXECUTIVE, which would provide aggregate annual
payments to EXECUTIVE or such other beneficiary as may be designated by
EXECUTIVE, of One Hundred and Thirty Thousand Dollars ($130,000).
2.9 EXPENSES.
(A) Executive shall be entitled to receive prompt
reimbursement of all reasonable expenses incurred by Executive in performing DMC
services. Executive agrees to furnish DMC reasonably adequate records and other
documentary evidence of such expenses for which EXECUTIVE seeks reimbursement.
Such expenses shall be accounted for under the policies and procedures
established by DMC.
(B) Travel expenses between EXECUTIVE's home and DMC's offices
in California are considered to be a necessary business expense. In addition,
during extended periods of time when EXECUTIVE is at the offices of DMC, the
reasonable costs and expenses of the travel and housing for immediate members of
EXECUTIVE's family are reimbursable business expenses under this Section.
(C) DMC shall reimburse EXECUTIVE for the necessary and
reasonable expenses of maintaining a home office (at EXECUTIVE's principal
residence), which are incurred in connection with the performance by EXECUTIVE
of his duties and obligations hereunder. Requests for reimbursement of home
office expenses by EXECUTIVE shall be accompanied by an invoice.
3. CONFIDENTIALITY OBLIGATION .
3.1 AGREEMENT. EXECUTIVE agrees to execute and abide by the
"DATAMETRICS Proprietary Information and Invention Confidentiality Agreement"
(the "CONFIDENTIALITY AGREEMENT"), which EXECUTIVE has previously executed. An
executed copy is attached hereto as Exhibit "A".
3.2 REMEDIES. EXECUTIVE's duties under the CONFIDENTIALITY AGREEMENT
survive termination of EXECUTIVE 's employment with DMC. EXECUTIVE acknowledges
that a remedy at law for any breach or threatened breach of the provisions of
the CONFIDENTIALITY AGREEMENT would be inadequate, and therefore agrees that DMC
shall be entitled to injunctive relief in case of any such breach or threatened
breach, as provided for in Section 8.12 and Exhibit "C".
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4. OUTSIDE ACTIVITIES.
4.1 Except with the prior written consent of the BOARD, EXECUTIVE will
not during the term of this AGREEMENT undertake or engage in any other
employment or business enterprise, as an executive or as a consultant.
EXECUTIVE, may serve as a Director on the Board of any company, and may engage
in civic and not-for-profit activities, so long as such service does not
materially interfere with the performance of duties hereunder.
4.2 Except as permitted by Section 4.3, EXECUTIVE agrees not to
acquire, assume, or participate in (directly or indirectly) any position,
investment or interest known to be adverse or antagonistic to DMC, its business,
or its prospects, financial or otherwise.
4.3 During the term of employment by DMC, except on behalf of DMC,
EXECUTIVE, will not have any direct or indirect business connection or interest,
in any capacity whatsoever, with any other person or entity known by EXECUTIVE
to compete directly with DMC, throughout the world, in any line of business
engaged in (or planned to be engaged in) by DMC. Nothing in this paragraph shall
bar EXECUTIVE from owning securities of any competitor as a passive investor, so
long as EXECUTIVE'S aggregate direct holdings in any one such corporation shall
not constitute more than One Percent (1%) of the voting stock of that
corporation.
5. NON-SOLICITATION.
While employed by DMC, and for one year after the expiration or
termination of this AGREEMENT, EXECUTIVE agrees not to interfere with DMC's
business by:
(A) soliciting or attempting to solicit any employee of DMC to
terminate his or her employment in order to become an employee, consultant or
independent contractor to or for any competitor of DMC; or
(B) directly or indirectly soliciting the business of any
distributor of DMC which was a distributor of DMC at the time of termination, or
at any time in the year immediately preceding that date.
6. TERMINATION OF EMPLOYMENT.
6.1 COMPANY-INITIATED TERMINATION WITHOUT CAUSE.
(A) DMC shall have the right to terminate EXECUTIVE's
employment with DMC at any time without CAUSE (as defined below). In that event,
DMC shall pay to EXECUTIVE as soon as reasonably practicable after EXECUTIVE's
termination, all earned and unpaid salary, all unreimbursed expenses, subject to
the provisions of Section 2.9, and all accrued and unused vacation, pursuant to
Section 2.4.
(B) In addition, if DMC, in its discretion, terminates
EXECUTIVE's employment without CAUSE, EXECUTIVE shall be entitled (i) to the
payment of BASE
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SALARY for a period equal to the greater of (i) one (1) year from the date of
termination, or the remainder of the EMPLOYMENT TERM; and (ii) DMC shall
continue to provide EXECUTIVE and the members of EXECUTIVE's immediate family
all benefits provided by DMC pursuant to Sections 2.5 through 2.8 for such
period. If any of these benefits terminate by operation of law, DMC will
reimburse EXECUTIVE for the costs of replacing those benefits for the remainder
of such period. The (i) salary continuation and (ii) benefits described in this
section are referred to as the "SEVERANCE PACKAGE".
(C) SECURITY. As security for all of DMC's obligations to make
any payments to Executive under the Severance Package, DMC hereby grants to
Executive a security interest in all assets of DMC now owned or hereafter
acquired, described as:
All personal property, whether presently existing or
hereafter created or acquired, including, but not
limited to: All accounts, chattel paper, documents,
instruments, money, deposit accounts and general
intangibles including returns, repossessions, books
and records relating thereto, and equipment
containing said books and records. All goods
including equipment and inventory. All proceeds
including, without limitation, insurance proceeds.
All guarantees and other security therefor.
Except for the prior, perfected, and continuing
security interests granted by DMC pursuant to the agreements described on
Exhibit "E", attached hereto, in favor of (1) Imperial Bank or its replacement
as the Company's senior and primary lender, and (2) the holders of certain
Senior Subordinated Secured Debentures of DMC, DMC has not granted any perfected
security interests that now exist and are continuing. This security interest is
issued concurrently with an identical security interest issued to Xxxxxx X.
Xxxxx, both such security interests ranking pari passu to each other and
subordinate to the Security Interest created in favor of Imperial Bank and the
holders of the Senior Subordinated Secured Debentures. The grant of the Security
Interest in favor of EXECUTIVE shall be effected pursuant to a Security
Agreement in the form attached hereto as Exhibit "D".
6.2 COMPANY-INITIATED TERMINATION IN CONNECTION WITH A CHANGE IN
CONTROL.
(A) In the event EXECUTIVE's employment with DMC is terminated
by DMC without CAUSE within six (6) months prior to or twenty-four (24) months
following a Change in Control, DMC shall pay to EXECUTIVE , as soon as
reasonably practicable after EXECUTIVE's termination, all earned and unpaid
salary, all unreimbursed expenses, subject to the provisions of Section 2.9, and
all accrued and unused vacation, pursuant to Section 2.4.
(B) In addition to any payments pursuant to Section 6.2(A),
upon execution of the Release, EXECUTIVE shall be entitled to a cash payment
equal to the lesser of three years' BASE SALARY or the maximum amount which
would not result in any portion of the payment being subject to the excise tax
under Section 4999 of the Code (the "EXCISE TAX").
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(C) "CHANGE IN CONTROL" shall mean: (1) a merger or
consolidation in which DMC is not the surviving corporation; (2) a reverse
merger in which DMC is the surviving corporation but the shares of DMC's common
stock outstanding immediately preceding the merger are converted by virtue of
the merger into other property, whether in the form of securities, cash or
otherwise; or (3) the acquisition by any person, entity or group within the
meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended (the "1934 ACT"), or any comparable successor provisions (excluding any
employee benefit plan, or related trust, sponsored or maintained by DMC or any
affiliate of DMC) of the beneficial ownership (within the meaning of Rule 13d-3
promulgated under the 1934 ACT or comparable successor rule) of securities of
DMC representing at least Fifty Percent (50%) of the combined voting power
entitled to vote in the election of directors; provided, however, that financing
transactions entered into by DMC shall not result in a CHANGE IN CONTROL.
(D) CONSTRUCTIVE TERMINATION. In the event of a Constructive
Termination, EXECUTIVE's employment shall be deemed to have been terminated in
connection with a CHANGE OF CONTROL pursuant to Section 6.1. For purposes of
this AGREEMENT, a "Constructive Termination" means that during the period
commencing six (6) months prior to a CHANGE IN CONTROL and ending twenty-four
(24) months following a CHANGE IN CONTROL, EXECUTIVE voluntarily terminates
employment after any of the following are undertaken without EXECUTIVE's express
written consent:
(1) the assignment to EXECUTIVE of any duties or responsibilities which
result in the material diminution of EXECUTIVE's position; provided, however,
that the acquisition of DMC and subsequent conversion of DMC to a division or
unit of the acquiring corporation will not by itself result in a diminution of
EXECUTIVE's position;
(2) a reduction by the Company in Executive's annual base salary by
greater than Five Percent (5%), except to the extent the base salaries of other
executive officers of DMC are not accordingly reduced;
(3) a relocation of EXECUTIVE, or DMC's principal executive offices if
EXECUTIVE's principal office is at such offices, to a location outside the
Woodland Hills (Warner Center) metropolitan area, except for required travel by
EXECUTIVE on DMC's business;
(4) any breach by DMC of any material provision of this AGREEMENT; or,
(5) any failure by DMC to obtain the assumption of this AGREEMENT by
any successor or assign of DMC.
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6.3 COMPANY-INITIATED TERMINATION FOR CAUSE.
(A) DMC shall have the right without advance notice to
terminate EXECUTIVE's employment with DMC at any time for CAUSE.
(B) "Cause" shall mean: (1) conviction of any felony or any
crime involving dishonesty; (2) participating in any fraud against DMC; (3)
breach of EXECUTIVE's duties to DMC, including but not limited to willful or
habitual neglect of duties or violations of DMC policy; (4) intentional damage
to any property of DMC; or (5) conduct by EXECUTIVE which, in the good faith and
reasonable determination of the BOARD, demonstrates gross unfitness to serve.
(C) If EXECUTIVE's employment is terminated at any time for
CAUSE, EXECUTIVE will not be entitled to severance pay, pay in lieu of notice,
any continuation of benefits (other than provided for under the federal
Consolidated Omnibus Budged Reconciliation Act ("COBRA")), or any other such
compensation pursuant to this AGREEMENT or otherwise. Notwithstanding the
foregoing, EXECUTIVE shall be paid, as soon as reasonably practicable after such
termination, all earned and unpaid salary, all earned and unpaid performance
bonus, pro-rated for that portion of the bonus period Executive was employed;
all unreimbursed expenses, subject to the provisions of Section 2.9; and all
accrued and unused vacation, pursuant to Section 2.4.
7. INDEMNIFICATION
7.1 During the EMPLOYMENT TERM, EXECUTIVE shall be an insured under the
Directors and Officers Liability Insurance maintained by DMC. EXECUTIVE is to be
named as an additional insured on the Comprehensive, General, and Automobile
Liability and Excess Liability Policies.
7.2 During the EMPLOYMENT TERM and thereafter, DMC shall indemnify
EXECUTIVE and hold EXECUTIVE harmless from and with respect to any actions of or
inactivities by EXECUTIVE, during the EMPLOYMENT TERM to the fullest extent
permitted in accordance with DMC's Bylaws and the laws of the State of Delaware,
each as from time to time in effect.
8. GENERAL PROVISIONS.
8.1 NOTICES. Any notices provided hereunder must be in writing and
shall be deemed effective upon the earlier of personal delivery (including
personal delivery by fax) or the fifth day after mailing by first-class mail to
DMC at its primary office location and to EXECUTIVE at such address as then
listed on DMC payroll.
8.2 SEVERABILITY. Whenever possible, each provision of this AGREEMENT
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this AGREEMENT is held to be invalid, illegal, or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this AGREEMENT will be
reformed,
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construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provisions had never been contained herein.
8.3 WAIVER. If either party should waive any breach of any provisions
of this AGREEMENT, that party shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
AGREEMENT.
8.4 COMPLETE AGREEMENT. This AGREEMENT and its Exhibits constitute the
entire agreement between EXECUTIVE and DMC and it is the complete, final, and
exclusive embodiment of their agreement with regard to this subject matter. It
is entered into without reliance on any promise or representation other than
those expressly contained herein, and it cannot be modified or amended except in
a writing signed by both the Compensation Committee of the BOARD and EXECUTIVE.
8.5 COUNTERPARTS. This AGREEMENT may be executed in separate
counterparts, any one of which need not contain signatures of more than one
party, but all of which taken together will constitute one and the same
AGREEMENT.
8.6 HEADINGS. The Headings of the Sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof, nor to
affect the meaning thereof.
8.7 SUCCESSORS AND ASSIGNS. This AGREEMENT is intended to bind and
inure to the benefit of and be enforceable by EXECUTIVE and DMC, and their
respective successors, assigns, heirs, executors and administrators.
8.8 CHOICE OF LAW. All questions concerning the construction, validity
and interpretation of this AGREEMENT will be governed by the laws of the State
of Delaware, without regard to such state's conflict of laws rules.
8.9 NON-PUBLICATION. The parties mutually agree not to disclose
publicly the terms of this AGREEMENT, except to the extent that disclosure is
mandated by applicable law.
8.10 CONSTRUCTION. In the event of a conflict between the text of the
AGREEMENT and any summary, description or other information regarding the
AGREEMENT, the text of the AGREEMENT shall control.
8.11 ATTORNEYS' FEES. Except as otherwise provided in Section 8.12, if
either party hereto brings any action to enforce any rights hereunder, the
prevailing party in any such action shall be entitled to reasonable
reimbursement for its costs and attorneys' fees incurred in connection with such
action.
8.12 ARBITRATION. To ensure rapid and economical resolution of any and
all disputes which may arise under this AGREEMENT, DMC and EXECUTIVE each agree
that any and all disputes or controversies, whether of law, or fact, or any
nature whatsoever (including, but not limited to, all state and federal
statutory and common law discrimination claims), with the sole
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exception of those disputes which may arise from EXECUTIVE's CONFIDENTIALITY
AGREEMENT, arising from or regarding the interpretation, performance,
enforcement or breach of this AGREEMENT, or any other disputes or claims arising
from or related to EXECUTIVE's employment or the termination of EXECUTIVE's
employment, shall be resolved by final and binding confidential arbitration
under the procedures set forth in Exhibit "C" to this AGREEMENT and the then
existing American Arbitration Association ("AAA") Employment Dispute Rules
(except insofar as they are inconsistent with the procedures set forth in
Exhibit "C").
The parties have executed this AGREEMENT on the day and year first above
written.
DATAMETRICS CORPORATION XXXXXX X. XXXXXX, XX.
/s/ Xxxxxxx X. Xxxx /s/ Xxxxxx X. Xxxxxx, Xx.
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Xxxxxxx Xxxx, Chairman Xxxxxx X. Xxxxxx, Xx.
Adult and Compensation Committee
Dated: August 25, 1997 Dated: September 10, 1997
-------------------------- ----------------------
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EXHIBIT "A"
DATAMETRICS CORPORATION
PROPRIETARY INFORMATION AND INVENTION AGREEMENT
As used in this AGREEMENT, the terms DMC "PROPRIETARY" or 'PRIVATE' information
includes all information or knowledge of the business or technical nature
relating to DMC's business products, or manufacturing processes acquired by me
during the term of my employment which relates to DMC's business, products, or
manufacturing processes, and which has not been made generally available to the
public, such as "know-how" formulae, secret processes or machines, inventions,
studies, research projects, developmental products and plans, contracts,
customer lists, and information about costs, profits, sales and/or markets.
As used in the AGREEMENT, the term "INVENTION" means all ideas, contributions
and improvements, whether preferable or not, which are related to or useful in
DMC's business products or manufacturing processes, and which are made and
conceived or first reduced to practice by me, either alone or jointly with
others, while employed by DMC, whether or not in the course of my employment,
whether or not during normal working hours, and whether or not on DMC's
premises.
As an employee, consultant, agency employee, or principal of an independent
business contracted by DMC for goods and/or technical services, and in
consideration of my employment by DMC (which term means DATAMETRICS CORPORATION,
its divisions, subsidiaries, affiliates, and/or its successor in business,
and/or its subsidiaries that may be acquired or formed from time to time), and
in consideration of the salary or wages to be paid for my services during the
employment period, I hereby agree as follows:
1. During the term of my employment by DMC, I will not, except as
my duties for DMC may require, publish, discuss use or
disclose any such PROPRIETARY or PRIVATE information to others
without prior written authorization from DMC to do so.
2. After the termination of my employment or completion of
services contracted by DMC, for whatever reason whatsoever, I
will not disclose any such PROPRIETARY or PRIVATE information
to others unless such use or disclosure first has been
authorized in writing by DMC.
3. Any information, either oral or in writing, which may come to
me identified as PROPRIETARY or PRIVATE information, or which
I believe could be PRIVATE or PROPRIETARY information marking
appears on the document containing such information will be
held in confidence by me and will not be disclosed to anyone
outside the employ of DMC, or to anyone within DMC who does
not have the
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"need to know". I further agree that such information also
shall be treated as PROPRIETARY or PRIVATE information as
defined above in this AGREEMENT.
4. On termination of my employment by DMC, or at any time DMC may
so request, I will promptly deliver to DMC all property
rightfully belonging to DMC in my possession. With respect to
PROPRIETARY or PRIVATE information, this request includes any
memoranda, notes, records, reports, disks, drawings, prints,
or other data which I possess or may have under my control.
5. To promptly and fully disclose to DMC any and all such
INVENTIONS for which DMC's equipment, supplies, facilities or
PROPRIETARY information are used, or which are developed on
DMC's time. All such INVENTIONS shall be the sole property of
DMC.
6. At any time during or after my employment by DMC, and at DMC's
expense, I agree to sign all papers and do such other acts and
things as DMC may reasonably require of me to protect its
rights to such INVENTIONS, including applying for, obtaining
and enforcing patents thereon, in any and all countries.
7. A complete list of all INVENTIONS, patented or unpatented,
owned by me, including a brief description of each such
invention, which have been made or conceived or first reduced
to practice by me along or jointly with others prior to the
date hereof and which I desire to remove from the operation of
this AGREEMENT, is attached hereto. I will make no claim
against DMC in connection with any invention not so listed.
8. This AGREEMENT is in addition to and supplements any previous
written agreement between me and DMC concerning PROPRIETARY
and PRIVATE information, and/or INVENTIONS.
I certify that I am not a party to or bound by any AGREEMENT with any person,
company, corporation or any other entity, other than DMC, which is in conflict
with this AGREEMENT. Any AGREEMENT, which I desire to remove from the operation
of this AGREEMENT is attached hereto.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto, their successors and assigns; shall be governed by State of Delaware,
and can be modified rescinded only by written modification signed by both
parties.
I have read the foregoing, agree thereto, and hereby acknowledge the receipt of
a copy of this AGREEMENT. I further understand that DMC's AGREEMENT does not
apply to any Invention which was developed by me for which no equipment,
supplies, facility or Proprietary Information of DMC was use; which was
developed entirely on my own time; which does not relate to DMC's business or
current, contemplated, or reasonably foreseeable research and development
activities;
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which does not result in any work performed by me for DMC (A list of
Intention(s) is attached hereto.)
Dated _______________________ ___________________________
Signature
Employee Number__________CA Number_____ ___________________________
Print or Type Name
Accepted for DATAMETRICS
CORPORATION
Dated_______________________ By_________________________
Human Resources Department
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EXHIBIT "B"
ARBITRATION PROCEDURE
1. The parties agree that any dispute that arises in connection with
this Agreement or the termination of this Agreement shall be resolved by binding
arbitration in the manner described below, in the County of the then headquarter
offices of DMC.
2. A party intending to see resolution of any dispute under the
Agreement by arbitration shall provide a written demand for arbitration to the
other party, which demand shall contain a brief statement of the issues to be
resolved.
3. The arbitration shall be conducted in the County of DMC's
headquarter office by a mutually-acceptable arbitrator from the panel of the
American Arbitration Association ("AAA") employment law panel, or by mutual
agreement of the parties. At the request of either party, arbitration
proceedings will be conducted in the utmost secrecy and, in such case, all
documents, testimony and records shall be received, heard and maintained by the
arbitrator in secrecy under seal, available for inspection only by the parties
to the arbitration, their respective attorneys, and their respective expert
consultants or witnesses who shall agree, in advance and in writing, to receive
all such information confidentially and to maintain such information in secrecy,
and make no use of such information, except for the purposes of the arbitration,
unless compelled by legal process.
4. The arbitrator is required to disclose any circumstances that might
preclude the arbitrator from rendering and objective and impartial
determination. In the event the parties cannot mutually agree upon the selection
of a AAA arbitrator, the chair of the employment law panel shall designate the
arbitrator.
The party demanding arbitration shall promptly request that
AAA conduct a scheduling conference within fifteen (15) days of the date of that
party's written demand for arbitration, or on the first available date
thereafter on the arbitrator's calendar. The arbitration hearing shall be held
within thirty (30) days after the scheduling conference or on the first
available date thereafter on the arbitrator's calendar. Nothing in this
paragraph shall prevent a party from at any time seeking temporary equitable
relief, from AAA or any court of competent jurisdiction, to prevent irreparable
harm pending the resolution of the arbitration.
5. Discovery shall be conducted as follows: (a) prior to the
arbitration any party may make a written demand for lists of the witnesses to be
called and the documents to be introduced at the hearing; (b) the lists must be
served within fifteen (15) days of the date of receipt of the demand, or one day
prior to the arbitration, whichever is earlier; and (c) each party may take no
more than two (2) depositions (pursuant to the procedures set forth in the
California Code of Civil Procedure) with a maximum of five (5) hours of
examination time per deposition, and no other form of prearbitration discovery
shall be permitted.
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6. It is the intent of the parties that the Federal Arbitration Act
("FAA") shall apply to the enforcement of this provision unless it is held
inapplicable by a court with jurisdiction over the dispute, in which event the
Delaware Uniform Arbitration Act ("DUAA") shall apply.
7. The Arbitrator shall apply Delaware law, including the Delaware
Uniform Rules of Evidence, and shall be able to decree any and all relief of an
equitable nature, including but not limited to such relief as a temporary
restraining order, a preliminary injunction, or a permanent injunction. The
Arbitrator shall also be able to award actual, general or consequential damages,
but shall not award any other form of damage (e.g., punitive damages).
8. Each party shall pay its pro rata share of the arbitrator's fees and
expenses, in addition to other expenses of the arbitration approved by the
Arbitrator, pending the resolution of the arbitration. The Arbitrator shall have
authority to award the payment of such fees and expenses to the prevailing
party, as appropriate in the discretion of the Arbitrator. Each party shall pay
its own attorneys fees, witness fees and other expenses incurred for its own
benefit.
9. The Arbitrator shall render a written award setting forth the
reasons for his or her decision. The decree or judgement of an award rendered by
the Arbitrator may be entered and enforced in any court having jurisdiction over
the parties. The award of the Arbitrator shall be final and binding upon the
parties, without appeal or review, except as permitted by the FAA, or if the FAA
is not applicable, as permitted by the DUAA.
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