EXHIBIT 10.2
EXECUTIVE EMPLOYMENT AND NON-COMPETE AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into effective as
of August 13, 2002, (the "Effective Date") by and between XXXX MICROPRODUCTS
INC., a California corporation (the "Company"), and XXXXX X. XXXXXX (the
"Executive").
RECITALS:
WHEREAS, Executive desires to obtain employment with the Company and
the Company desires to employee Executive subject to the terms and conditions
contained in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
AGREEMENTS:
EMPLOYMENT DUTIES. THE COMPANY SHALL EMPLOY EXECUTIVE IN THE CAPACITY OF
EXECUTIVE VICE PRESIDENT, FINANCE AND OPERATIONS WITH SUCH POWERS AND DUTIES IN
THAT CAPACITY AS MAY BE ESTABLISHED FROM TIME TO TIME BY THE COMPANY IN ITS
DISCRETION. EXECUTIVE WILL DEVOTE HIS BEST EFFORTS, ATTENTION AND ENERGIES TO
THE COMPANY'S BUSINESS. DURING EXECUTIVE'S EMPLOYMENT, HE WILL NOT ENGAGE IN ANY
OTHER BUSINESS ACTIVITIES, REGARDLESS OF WHETHER SUCH ACTIVITY IS PURSUED FOR
PROFITS, GAINS, OR OTHER PECUNIARY ADVANTAGE WITHOUT THE WRITTEN APPROVAL OF THE
COMPANY. HOWEVER, NOTHING IN THIS AGREEMENT SHALL PREVENT EXECUTIVE FROM BEING
ENGAGED IN BUSINESS ACTIVITIES OUTSIDE THE COMPANY SO LONG AS SUCH ACTIVITIES
REQUIRE NO ACTIVE PARTICIPATION BY EXECUTIVE THAT IN ANY WAY INTERFERES WITH
EXECUTIVE'S DUTIES AND RESPONSIBILITIES TO THE COMPANY, COMPETES WITH THE
BUSINESS OF THE COMPANY, OR CREATES AN ACTUAL OR APPARENT CONFLICT OF INTEREST
WITH EXECUTIVE'S EMPLOYMENT BY THE COMPANY. EXECUTIVE UNDERSTANDS AND AGREES
THAT HE WILL INFORM THE COMPANY OF ANY CURRENT OUTSIDE BUSINESS ACTIVITIES IN
WHICH HE IS ENGAGED AS OF THE EXECUTION OF THIS AGREEMENT, AND IN THE FUTURE
WILL INFORM THE COMPANY OF ANY ADDITIONAL OUTSIDE BUSINESS ACTIVITIES IN WHICH
HE SEEKS TO ENGAGE IN ADVANCE OF SUCH ENGAGEMENT.
2. Term of Employment. Unless his employment is earlier terminated in
accordance with Section 11, 12, 13, or 14 of this Agreement or as provided in
this Section 2, Executive shall be employed on the Effective Date and shall
continue employment through August 12, 2005 (the "Initial Term"). This
Agreement, and Executive's employment under this Agreement, shall automatically
be extended for consecutive twelve (12) month periods (each such period
referenced as a "Subsequent Term") unless at any time during the six months
prior to the expiration of the Initial Term or any Subsequent Term, either the
Company or Executive provides the other with written notice of its or his
election not to extend the Agreement and Executive's employment under this
Agreement ("Notice of Non-renewal"). In the event either Executive or the
Company provides a Notice of Non-renewal under this Section 2, the Company shall
pay Executive his base salary and pro-rated auto allowance through his last date
of employment as well as a pro-rated bonus, if any, earned under the terms of
the Management Incentive Plan. Executive shall not be entitled to any other
payments or benefits of any kind except as provided in applicable benefit plan
documents, stock option and/or restricted stock agreements.
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3. COMPENSATION.
All compensation paid to Executive under this Agreement is subject to
applicable withholding and deductions.
Base Salary. As compensation for services rendered hereunder, Executive shall
receive an annual base salary of three hundred forty-two thousand five hundred
dollars ($342,500), less applicable withholding and deductions, at a rate
payable in equal installments according to Company's normal payroll practices.
Such salary shall be subject to review and change by the Company, in its sole
discretion.
(b) Incentive Bonus Compensation. On an annual basis, the
Company's Board of Directors, in its sole discretion, upon the
recommendation of the Company's Chief Executive Officer, shall
establish Executive's annual target incentive and performance metrics.
The Executive will receive an incentive bonus based on Executive's
achievement of the performance metrics in accordance with the Company's
Management Incentive Plan that the Company in its discretion may
establish. For 2002, your target incentive will be one hundred ninety
two thousand five hundred dollars ($192,500) and will be prorated based
on your hire date.
(c) Business Expenses. In accordance with Company's policy
governing travel and other expenses, the Company will reimburse
Executive for approved ordinary and necessary business expenses
incurred by Executive in connection with the performance of his duties,
provided that Executive properly submits to the Company receipts
verifying such expenses.
(d) Employee Benefits. Executive will be eligible to
participate in such group health, life or disability plans and other
benefit plans that Company may maintain from time to time for all
employees, provided that Executive meets the respective eligibility
requirements and subject to the terms and conditions of such plans as
they exist from time to time.
(e) Stock Option Grant: Executive shall be granted an option
to purchase two hundred fifty thousand (250,000) shares of the
Company's common stock with terms and conditions pursuant to the
Company's Stock Option Agreement and the Company's Stock Award Plan.
Future stock options, if any, shall be granted at the discretion of the
Company's Board of Directors and shall be subject to the terms and
conditions of the 1998 Stock Award Plan.
(f) Automobile Allowance. Executive shall be entitled to an
automobile allowance of $300 per month, plus reimbursement of business
mileage at the rate of $0.10 per mile.
(h) Financial Planning/Tax Preparation Allowance. Executive
shall be entitled to an allowance of up to $1,500 per calendar year as
reimbursement for personal financial planning and tax preparation. To
receive the reimbursement, Executive will be required to submit
supporting receipts that support the reimbursement.
4. Noncompetition. As a condition to and in consideration of the terms
of this Agreement, Executive agrees that, during Executive's employment, and for
a period of twenty four (24) months following Executive's resignation or the
termination of Executive's employment, for any reason, whether voluntary or
involuntary, Executive will not, on Executive's behalf or on behalf of any other
person or entity:
(a) Directly or indirectly, as an employee, proprietor, agent,
partner, officer, director or otherwise, participate or engage
in, manage, work for, broker for, operate, control, render
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advice or assistance to or be connected in any way with any
other person or entity in the United States engaged in a
business which is in direct competition with the Company's
principal business (as defined and discussed in Company's
documents filed with the Securities Exchange Commission from
time to time) or any other business in which the Company or
any Subsidiary was engaged at any point during Executive's
employment or other relationship with the Company; or
(b) Directly or indirectly solicit, on Executive's own behalf,
or on behalf of another, any potential or existing customers,
clients, accounts, vendors, licensors or licensees of the
Company or any Subsidiary; or
(c) Directly or indirectly, hire or attempt to hire, or
influence or solicit, or attempt to influence or solicit, any
employee of the Company, or of any Subsidiary, to leave or
terminate his or her employment, or to work for any other
person or entity. For purposes of this Section 4(c),
"employee" shall mean any current employee, and any former
employee who was employed with the Company or any Subsidiary
at any time during the last twelve (12) months of Executive's
employment.
5. Confidential Information. During Executive's employment with the
Company, and at all times after Executive's resignation or the termination of
Executive's employment for any reason, whether voluntary or involuntary,
Executive shall not directly or indirectly use or disclose any trade secret,
proprietary or confidential information of the Company or any Subsidiary for the
benefit of any person or entity other than the Company or any Subsidiary without
prior written approval of the Company's Chief Executive Officer. For purposes of
this Agreement, in addition to all materials and information protected by
applicable statute or law, the parties acknowledge that confidential information
shall include any information relating to the Company or any Subsidiary, whether
in print, on computer disc or tape or otherwise, which is public information and
not generally known by individuals outside the Company or any Subsidiary,
including but not limited to information relating to research, development,
technology, and/or processes; marketing, purchasing, sales, and/or servicing
information, techniques, plans, proposals or reports; all financial information,
reports and statements; information relating to sales and other financial
strategies, plans and/or goals; information relating to proprietary rights and
data, ideas, know-how, inventions, and/or trade secrets; information regarding
current or potential clients or customers, client or customer lists and other
client or customer information; information regarding active and inactive
accounts of the Company or any Subsidiary; information relating to vendors,
licensors or licensees of the Company or any Subsidiary; information provided by
a client or vendor; personnel or employee information; and information relating
to the Company's or any Subsidiary's methods of operation.
6. Work Product and Inventions. Executive agrees that the Company shall
be entitled to all of the benefits, profits, results and work product arising
from or incident to all work, services, advice and activities of Executive,
including without limitation all rights in inventions (as set forth below),
trademark or trade name creations, and copyrightable materials. Executive shall
not, during the term of Executive's employment with the Company, be interested,
directly or indirectly, in any manner, including, but not limited to, as
partner, officer, advisor, or in any other capacity in any other business
similar to, or in competition with, the Company's or any Subsidiary's business.
Executive will communicate promptly and fully to the Company all
inventions, discoveries, improvements or designs conceived or reduced to
practice by Executive during the period of Executive's employment with the
Company (alone or jointly with others), and, except as provided in this Section
6, Executive will and hereby does assign to the Company and/or its nominees all
of Executive's right, title and
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interest in such inventions, discoveries, improvements or designs and all of
Executive's right, title and interest in any patents, patent applications or
copyrights based thereon without obligation on the part of the Company or any
Subsidiary to make any further compensation, royalty or payment to Executive.
Executive further agrees to assist the Company and/or its nominee (without
charge but at no expense to Executive) at any time and in every proper way to
obtain and maintain for its and/or their own benefit, patents for all such
inventions, discoveries and improvements and copyrights for all such designs.
This Section 6 does not obligate Executive to assign to the Company any
invention, discovery, improvement or design for which no equipment, supplies,
facility or trade secret, confidential or proprietary information of the Company
or any Subsidiary was used and which was developed entirely on Executive's own
time, and (a) which does not relate (i) directly to the business of the Company
or any Subsidiary, or (ii) to the Company's or any Subsidiary's actual or
demonstrably anticipated research or development, or (b) which does not result
from any work performed by Executive for the Company or any Subsidiary.
7. Exempt Inventions. Identified below by descriptive title are all of
the inventions, if any, in which Executive possessed any right, title or
interest prior to Executive's employment with the Company or execution of this
Restricted Stock Agreement which are not subject to the terms hereof:
None
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8. Copyrights. Executive acknowledges that any documents, drawings,
computer software or other work of authorship prepared by Executive within the
scope of Executive's employment is a "work made for hire" under U.S. copyright
laws and that, accordingly, the Company exclusively owns all copyright rights in
such works of authorship. For purposes of this Section 8, "scope of employment"
means that the work of authorship (a) relates to any subject matter pertaining
to Executive's employment, (b) relates to or is directly or indirectly connected
with the existing or reasonably foreseeable business, products, projects or
confidential information of the Company or any Subsidiary, or (c) involves the
use of any time, material or facility of the Company or any Subsidiary.
9. Return of Property. Executive shall, immediately upon Executive's
resignation or the termination of Executive's employment for any reason, whether
voluntary or involuntary, deliver to the Company all documents, materials and
other items, whether on computer disc or tape or otherwise, including all copies
thereof, belonging to the Company or any Subsidiary, or in any way related to
the business of the Company or any Subsidiary, or the services Executive
performed for the Company or any Subsidiary, including but not limited to, any
documents, materials or items containing trade secret, proprietary, or
confidential information, documents in any way relating to any inventions or
copyrights, client or customer information, information relating to the
Company's or any Subsidiary's processes or procedures and any other documents,
materials or items of any sort relating to the Company or any Subsidiary.
Executive shall not retain any copies or summaries of any kind of documents and
materials covered by this section 9.
10. INJUNCTIVE RELIEF. THE PARTIES RECOGNIZE THAT IRREPARABLE DAMAGE
WILL RESULT TO THE COMPANY IF EXECUTIVE VIOLATES OR THREATENS TO VIOLATE THE
TERMS OF SECTION 4, 5, 6, 8 OR 9, AND THAT THE DAMAGES WOULD BE DIFFICULT TO
PROVE AND QUANTIFY, AND IT IS THEREFORE AGREED THAT, IN THE EVENT OF A BREACH OF
SECTION 4, 5, 6, 8 OR 9, THE COMPANY SHALL BE ENTITLED TO INJUNCTIVE RELIEF, IN
ADDITION TO ALL OTHER LEGAL AND EQUITABLE REMEDIES AVAILABLE TO IT.
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11. Death or Inability to Perform Job Duties.
(a) Executive's employment shall terminate automatically in
the event of Executive's death. In such event, Executive's estate shall
receive Executive's base salary and pro-rated auto allowance through
Executive's last date of employment as well as a pro-rated bonus, if
any, earned under the terms of the Management Incentive Plan.
Executive's estate shall not be entitled to any other payments or
benefits of any kind except as provided in applicable benefit plan
documents, stock option and/or restricted stock agreements.
(b) If, due to mental or physical disability, Executive is
unable to perform the essential functions of Executive's job, with or
without reasonable accommodation, for a total of ninety (90) days
within any twelve (12) month period, then the Company may terminate
Executive. Executive shall, in such event, receive his base salary and
pro-rated auto allowance through his last date of employment as well as
a pro-rated bonus, if any, earned under the terms of the Management
Incentive Plan. Executive shall not be entitled to any other payments
or benefits of any kind except as provided in applicable benefit plan
documents, stock option and/or restricted stock agreements. Nothing in
this Section 11(b) shall limit the Company's right to terminate
Executive's employment under any other section of this Agreement.
12. Termination of Executive's Employment by the Company for Cause. The
Company may terminate Executive's employment "for cause" at any time. As used
herein, "for cause" shall mean any one of the following:
(a) The continued neglect by Executive of Executive's job
duties and responsibilities, and /or continued poor
job performance, after reasonable notice and a
reasonable opportunity to correct such neglect; or
(b) Conviction of a felony or other serious crime,
including but not limited to crimes involving moral
turpitude; or
(c) Commission of a proven act of dishonesty; or
(d) Commission of a proven serious violation of any of
Company's personnel policies, including but not
limited to violations of Company's policies against
any form of harassment; or
(e) Any proven act or omission deemed as grounds for
termination of Executives as set forth in Company's
personnel policies in existence at the time; or
(f) A breach of Section 4, 5, 6, or 8 of this Agreement;
or
(g) A material breach of any other provision of this
Agreement which continues to exist after notice and a
reasonable opportunity to cure such breach.
In the event the Company terminates Executive's employment for cause, Executive
shall receive his base salary and pro-rated auto allowance through his last date
of employment as well as a pro-rated bonus, if any,
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earned under the terms of the Management Incentive Plan. Executive shall not be
entitled to any other payments or benefits of any kind except as provided in
applicable benefit plan documents, stock option and/or restricted stock
agreements.
13. Termination of Executive's Employment by the Company Without Cause.
The Company may terminate Executive's employment without cause at any time upon
thirty (30) days' prior written notice to Executive. In the event the Company
terminates Executive's employment without cause under this Section 13, the
Company will pay Executive his base salary and pro-rated auto allowance through
his last date of employment as well as a pro-rated bonus, if any, earned under
the terms of the Management Incentive Plan. In addition, the Company shall pay
Executive a severance payment of an amount equal to twelve (12) months of his
then current base salary, less applicable withholding and deductions. However,
in order to receive the severance payment under this Section 13, Executive must
first execute a waiver and release of claims agreement in the form prescribed by
the Company. Executive shall not be entitled to any other payments or benefits
of any kind except as provided in applicable benefit plan documents, stock
option and/or restricted stock agreements.
14. Termination of Employment by Executive. Executive may terminate
Executive's employment with the Company with or without cause upon thirty (30)
days prior written notice to the Company. Executive shall be required to perform
Executive's job duties and will be paid Executive's base salary through his last
date of employment. At the option of the Company, the Company may require
Executive to terminate employment at any time during the thirty (30) day notice
period. In such event, Company will pay Executive his base salary for the
remainder of the thirty (30) day notice period. Executive shall, in addition,
receive his pro-rated auto allowance through his last date of employment as well
as a pro-rated bonus, if any, earned under the terms of the Management Incentive
Plan. Executive shall not be entitled to any other payments or benefits of any
kind except as provided in applicable benefit plan documents, stock option
and/or restricted stock agreements.
15. SEVERABILITY AND INTERPRETATION. IN THE EVENT THAT ANY PROVISION OF
THIS AGREEMENT IS HELD INVALID BY A COURT OF COMPETENT JURISDICTION, THE
REMAINING PROVISIONS SHALL NONETHELESS BE ENFORCEABLE ACCORDING TO THEIR TERMS.
ANY PROVISION HELD OVERBROAD OR UNREASONABLE AS WRITTEN SHALL BE DEEMED AMENDED
TO NARROW ITS APPLICATION TO THE EXTENT NECESSARY TO MAKE THE PROVISION
ENFORCEABLE UNDER APPLICABLE LAW, AND SHALL BE ENFORCED AS AMENDED. THIS
AGREEMENT SHALL BE CONSTRUED WITHOUT REGARD TO ANY PRESUMPTION OR OTHER RULE
REQUIRING CONSTRUCTION HEREOF AGAINST THE PARTY CAUSING THIS AGREEMENT TO BE
DRAFTED.
16. SURVIVAL. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE
CONTRARY, THE PROVISIONS OF SECTIONS 4, 5, 6, 7, 8, 9, AND 10 SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT AND SHALL SURVIVE EXECUTIVE'S RESIGNATION OR THE
TERMINATION OF HIS EMPLOYMENT, WHETHER VOLUNTARY OR INVOLUNTARY, AND WITH OR
WITHOUT CAUSE.
17. NOTICES. ALL NOTICES OR OTHER COMMUNICATIONS REQUIRED OR PERMITTED
HEREUNDER SHALL BE IN WRITING AND SHALL BE PERSONALLY DELIVERED OR PROVIDED BY
FACSIMILE (WITH CONFIRMATION OF TRANSMISSION) TO THE PARTY RECEIVING SUCH NOTICE
OR SHALL BE DELIVERED BY FEDERAL EXPRESS OR SIMILAR OVERNIGHT COURIER, ADDRESSED
TO THE PARTY TO WHOM SUCH NOTICE IS INTENDED TO BE GIVEN AS FOLLOWS:
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(a) COMPANY
XXXXXXX X. XXXXXXX
XXXX MICROPRODUCTS, INC.
0000 XXXXXXXX XXXXXX
XXX XXXX, XX 00000-0000
Facsimile (000) 000-0000
(b) EXECUTIVE:
Xxxxx X. Xxxxxx
00 Xxxx Xxxx
Xxxxxx Xxxxx Xxxxxx, XX 00000
ALL NOTICES SHALL BE DEEMED GIVEN ON THE DAY WHEN ACTUALLY DELIVERED AS
PROVIDED ABOVE, IF DELIVERED PERSONALLY OR BY FACSIMILE, OR ON THE NEXT BUSINESS
DAY AFTER THE DATE DISPATCHED, IF DELIVERED BY FEDERAL EXPRESS OR OTHER
OVERNIGHT COURIER.
EITHER PARTY MAY, BY WRITTEN NOTICE HEREUNDER, DESIGNATE A CHANGE OF
ADDRESS. ANY NOTICE, IF MAILED PROPERLY ADDRESSED, POSTAGE PREPAID, BY
REGISTERED OR CERTIFIED MAIL, SHALL BE DEEMED DISPATCHED ON THE REGISTERED DATE
OR THE DATE STAMPED ON THE CERTIFIED MAIL RECEIPT, AND SHALL BE DEEMED RECEIVED
ON THE FIFTH BUSINESS DAY THEREAFTER, OR WHEN IT IS ACTUALLY RECEIVED, WHICHEVER
IS SOONER.
18. AMENDMENTS. THIS AGREEMENT EXPRESSES THE ENTIRE UNDERSTANDING OF
THE PARTIES AND SUPERSEDES ALL PRIOR AGREEMENTS CONCERNING THE SAME SUBJECT
MATTER. IT MAY NOT BE CHANGED ORALLY. ANY CHANGE OR MODIFICATION MUST BE MADE IN
WRITING AND SIGNED BY THE PARTIES.
19. GOVERNING LAW. THE VALIDITY, ENFORCEABILITY, CONSTRUCTION, AND
INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS.
20. Waiver by the Company. Any waiver by the Company or Executive of
any of its/his rights under this Agreement shall be made in a writing signed by
the party seeking to effect the waiver of its/his rights and specifically
designated as a waiver of a right or rights under this Agreement. Neither the
Company's nor Executive's failure to enforce a breach of this Agreement shall
act as a waiver or otherwise prevent The Company or Executive from enforcing the
Agreement as to such breach or any other breach.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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21. SUCCESSORS AND ASSIGNS. THIS AGREEMENT SHALL BE BINDING UPON AND
INURE TO THE BENEFIT OF THE COMPANY AND ITS SUCCESSORS AND ASSIGNS.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
XXXX MICROPRODUCTS INC.
By: /s/ Xxxxx Xxxxxx
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Its:
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