AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit
10.11
AMENDMENT
TO
This
Amendment to Employment Agreement (the “Amendment”)
is made
and entered into as of April 12 2006 (“Effective Date”) by and among Wintegra,
Inc. a private company Incorporated under the laws of the State of Delaware,
with its principal offices at Austin, Texas (the “Company”),
and
Xxxxxx
O’Dell,
residing at 0000 Xxxxxx Xxxxx, Xxxxxx Xxxxx, 00000 (the “Employee”).
WHEREAS,
the Company and the Employee previously executed an Employment Agreement dated
9
Feb, 2000 (the "Prior
Agreement")
WHEREAS,
the Company and the Employee desire to amend certain of the terms of the
employment of Employee
NOW,
THEREFORE, in consideration of the promises and the mutual covenants, terms
and
conditions hereinafter set forth, and for other good and valuable consideration,
the receipt of which is hereby specifically acknowledged, the parties hereto
agree as follows:
1.
Severance
Without
derogation of Section 3.2(a) of the Prior Agreement, upon termination of
employment from the Company for any reason, Employee shall receive payment
of
either the amounts set forth in Section 1.1 or Section 1.2 below in
consideration of Employee's undertaking not to compete with the
Company.
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1.1
|
Involuntary
Termination.
If the Company terminates Employee’s employment with the Company for
reasons other than Cause, death or Disability, or Employee resigns
from
his employment with the Company due to a Constructive Termination,
then
Employee shall be entitled to receive continuing payments of severance
pay
(less applicable tax withholding) at the Salary as then in effect,
for a
period of three (3) months from the Termination Date, payable in
accordance with the Company’s normal payroll
policies.
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|
1.2
|
Change of Control Severance.
If within twelve (12) months of a Change of Control of the Company,
the
Company terminates Employee’s employment with the Company for reasons
other than Cause, death, or Disability or Employee resigns from
his
employment with the Company due to a Constructive Termination,
Employee
will be entitled to receive:
|
| (a) |
Continuing
payments of severance pay (less applicable tax withholding) of Salary
as
then in effect, for a period of six (6) months from the Termination
Date,
payable in accordance with the Company’s normal payroll
policies;
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| (b) |
Vesting
as of the Termination Date of fifty percent (50%) of all unvested
options
granted to Employee; and
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| (c) |
Extension
of the exercise period enabling Employee to exercise his options
through
the first anniversary of the Termination Date; notwithstanding, in
no case
shall the exercise period be extended beyond the maximum term of
the
options. Additionally, the exercise period of the options may not
be
extended beyond the later to occur of (x) the fifteenth day of the
third
month after the options would have otherwise expired due to the
termination of Employee's employment, or (y) the end of the calendar
year
during which the options would have otherwise expired due to termination
of Employee's employment.
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2. Definitions.
| (a) |
Cause.
For purposes of this Amendment, “Cause” is defined as:
|
| i. |
an
act of dishonesty made by Employee in connection with Employee's
responsibilities as an employee;
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| ii. |
Employee's
conviction of, or plea of nolo
contendere
to, a felony;
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| iii. |
Employee's
gross misconduct; or
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| iv. |
Employee's
continued substantial violations of his employment duties after Employee
has received a written demand for performance from the Company which
specifically sets forth the factual basis for the Company's belief
that
Employee has not substantially performed his
duties.
|
| (b) |
Change
of Control.
For purposes of this Agreement, “Change of Control” is defined as:
|
| i. |
any
“person” (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended) is or becomes the “beneficial
owner” (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing fifty percent
(50%)
or more of the total voting power represented by the Company's then
outstanding voting securities;
|
| ii. |
a
change in the composition of the Board of Directors of the Company
occurring within a two (2) year period, as a result of which fewer
than a
majority of the directors are Incumbent Directors. “Incumbent Directors”
will mean directors who either (A) are directors of the Company as of
the date of the consummation of the Company's public offering, or
(B) are elected, or nominated for election, to the Board of Directors
of the Company with the affirmative votes of at least a majority
of the
Incumbent Directors at the time of such election or nomination (but
will
not include an individual whose election or nomination is in connection
with an actual or threatened proxy contest relating to the election
of
directors to the Company);
|
| iii. |
the
date of the consummation of a merger or consolidation of the Company
with
any other corporation that has been approved by the stockholders
of the
Company, other than a merger or consolidation which would result
in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than
fifty
percent (50%) of the total voting power represented by the voting
securities of the Company, or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders
of the
Company approve a plan of complete liquidation of the Company; or
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| iv. |
the
date of the consummation of the sale or disposition by the Company
of all
or substantially all the Company's
assets.
|
| (c) |
Constructive
Termination.
“Constructive Termination” means Employee’s resignation from his
employment within ninety (90) days, plus any applicable thirty (30)
day
cure period, following the occurrence of any of the following without
Employee’s consent:
|
| i. |
a
significant reduction of Employee’s duties, position or responsibilities
relative to Employee’s duties, position or responsibilities in effect
immediately prior to such reduction; provided, however, that a reduction
in duties, position or responsibilities solely by virtue of the Company
being acquired and made part of a larger entity will not constitute
a
“Constructive Termination”; or
|
| ii. |
a
reduction of more than ten percent (10%) by the Company of Employee’s
Company Salary as in effect either on the Effective Date or immediately
prior to such reduction (other than as part of an overall reduction
applicable to similarly situated senior Employees of the Company
or its
successor).
|
| (d) |
In
each case, prior to Employee being permitted to resign from his employment
due to a “Constructive Termination”, the Company will have thirty (30)
days to cure any such alleged breach, assignment, reduction or
requirement, after Employee provides the Company written
notice of the actions or omissions constituting such breach, assignment,
reduction or requirement.
|
| (e) |
Disability.
“Disability” means that Employee is determined by the Company to be
disabled under the provisions of the Disability Insurance, and Employee
has received long-term disability benefits for a period of at least
three
(3) months under such plan.
|
| (f) |
Termination
Date.
Subject to the requirements of Section 3.2(a) of the Prior Agreement,
“Termination Date” means the effective date of any notice of termination
of employment delivered by one party to the
other.
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3 Conditions
to Receive Severance Package.
The
severance payments described in this Amendment will be provided to Employee
only
if Employee executes and delivers to the Company, and does not revoke, a
general release of claims in a form acceptable to the Company.
4. Amendments.
Appendix A, attached hereto, shall supersede Sections 6,7,8 and 9 of the Prior
Agreement.
5. Prior
Agreement.
The
rights described in this Amendment are in addition to any rights granted to
Employee in the Prior Agreement. All terms and conditions of the Prior Agreement
that are not specifically amended by this Amendment shall remain in full force
and effect.
IN
WITNESS WHEREOF, the Company and the Employee have executed this Amendment,
as
of the day and year first above written.
| /s/ Xxxxx Xxx-Xxx | /s/ Xxxxxx O'Dell | ||
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|
XXXXXX
O'DELL
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||
| By: Xxxxx Xxx-Xxx | |||
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APPENDIX
A
Confidentiality,
Non-competition and Proprietary Information Agreement
My
obligations under this Confidentiality and Intellectual Property Assignment
Agreement (hereafter “Agreement”) are towards (i) Wintegra Inc. (the “Company”)
(ii) its present and future parent companies, subsidiaries and affiliates and
successors. All of the aforementioned entities shall be referred to collectively
as the “Company’s Entities”. As a condition of my employment with Wintegra Inc.,
its parents, subsidiaries, affiliates, successors or assigns (collectively,
the
“Company”) and in consideration of my receipt of confidential information upon
execution of this Agreement and my receipt of the compensation now and hereafter
paid to me by Company, I agree to the following terms and conditions of this
Confidentiality, Non-competition and Proprietary Information Agreement (the
“Agreement”) which shall be effective as of the date set forth in the signature
block (“Effective Date”)
1. Confidentiality
I
will
regard and retain as confidential and will not divulge to any third party,
or
use for any unauthorized purposes either during or after the term of my service
with the Company, any Confidential Information, as defined below, that I have
acquired during my service or in connection with my service or contacts with
the
Company’s Entities, except as necessary in the ordinary course of performing my
authorized duties on behalf of the Company’s Entities.
2. Confidential
Information
“Confidential
Information” shall include, but will not be limited to, information regarding
research and development related to actual or anticipated products, inventions,
whether patentable or non-patentable, hardware, software or other products,
methods of manufacture, trade secrets, business plans, customer lists, finances,
and any other data or information related to the business or affairs of any
of
the Company's Entities. Confidential Information will include information in
written, oral or any other format.
Immediately
upon execution of this Agreement, the Company agrees to provide me with certain
Confidential Information regarding the Company, regardless of whether or not
I
am employed by the Company at such time (“Initial Disclosure”). Following the
Initial Disclosure of Confidential Information, the Company may make available
to me additional Confidential Information that will enable me to optimize the
performance of my duties to the Company. Except for the Initial Disclosure,
I
agree that the Company will have no obligation to make available to me any
of
its Confidential Information after the termination of my employment
3. Return
of Confidential Information
All
materials including, but not limited to, documents, notes, memoranda, records,
diagrams, blueprints, bulletins, formulas, reports, computer programs,
databases, and any other material of any kind and in any form that contains
Confidential Information, coming into my possession or prepared by me in
connection with my service, are the exclusive property of the Company’s Entities
(hereinafter the “Documents”). I agree to return to the Company’s Entities all
such Documents upon termination of my employment, unless I acquire the Company’s
specific written consent to release any such Document.
4. Ownership
Rights
Without
additional compensation and consideration, I hereby assign and will in the
future irrevocably assign to the Company, and acknowledge and will in the future
acknowledge the Company’s exclusive right (including any ‘moral’ right),
domestic and foreign, to any and all intellectual property, including, without
limitations, all inventions, mask works, discoveries, and works of authorship,
whether capable of being patented or copyrighted or not, which I may conceive,
make, develop, author, or work on, in whole or in part, independently, or
jointly with others, during the term of my employment with the Company, which
are either (i) related to the Company’s Entities’ business; (ii) related to the
Company’s Entities’ research and development; (iii) developed in whole or in
part on the Company’s time or with the use of any Company’s equipment, supplies,
facilities, or trade secret; or (iv) result directly or indirectly from any
work
I performed for the Company (hereinafter the “Company’s Entities’ Intellectual
Property”). To the extent allowed by applicable law, I agree to waive any moral
rights I may have in the Company’s Entities’ Intellectual Property.
5. Disclosure
and Record of Inventions
I
will
promptly disclose and describe to the Company all of the inventions contained
within the Company’s Entities’ Intellectual Property (hereinafter the
“Inventions”). I agree to keep and maintain adequate and current written records
of all Inventions during the term of my employment with the Company’s Entities.
The records will be in the form of notes, sketches, drawings and any other
format that may be specified by the Company’s Entities. The records will be
available to and remain the Company’s Entities’ sole property at all
times.
6. Employee
Assistance
I
will,
at the Company’s Entities’ expense, assist in preparation and registration of
patents and any other intellectual property right in favor of the Company’s
Entities, in any jurisdiction deemed appropriate by the Company’s Entities. Such
assistance shall include, without limitation, the preparation of documents,
drawings and other data and execution of assignments, applications and other
forms. I agree to perform this obligation during and after my service with
the
Company’s Entities. In order to give full effect to this section I hereby
irrevocably appoint the Company’s Entities (and their representatives) as my
attorneys in fact, authorized in my name and on my behalf to execute all such
documents.
7. No
Conflicting Obligations
I
will
not disclose to the Company’s Entities any proprietary or confidential
information belonging to any third party, including any prior or current
employer or contractor, unless I have first received the written approval of
that third party and present it to the Company’s Entities. I undertake not to
perform any activity related to my employment with the Company’s Entities on the
premises of any third party, or while using any equipment or materials that
belong to any such third party, unless instructed to do so by the Company’s
Entities.
8. Third
Party Information
I
recognize that the Company’s Entities have received and will in the future
receive from third parties such third parties’ confidential or proprietary
information, subject to a duty on the Company’s Entities’ part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. I agree to hold all such confidential or proprietary information
in
the strictest confidence and not to disclose it to any person or entity or
to
use it except as necessary in carrying out my services for the Company’s
Entities, consistent with the Company’s Entities’ agreement with such third
party.
9. Non-Solicitation
I
agree
that for a period of one (1) year immediately following the termination of
my
relationship with the Company’s Entities for any reason, whether with or without
cause, at the option either of the Company’s Entities or myself, with or without
notice, I will not, either directly or indirectly, solicit, induce, recruit
or
encourage any of the Company’s Entities’ employees to leave their employment, or
hire or take away such employees, or attempt to solicit, induce, recruit,
encourage, hire or take away employees of the Company’s Entities, either for
myself or for any other person or entity.
10. Covenant
Not to Compete.
I
agree
that during the course of my employment and for a period of one (1) year
immediately following the termination of my relationship with the Company for
any reason, whether with or without cause, at the option either of the Company
or myself, with or without notice, I will not, either directly or indirectly,
(i) serve as an advisor, agent, consultant, director, employee, officer,
partner, proprietor or otherwise of, (ii) have any ownership interest in (except
for passive ownership of one percent (1%) or less of any entity whose securities
have been registered under the Securities Act of 1933, as amended, or
Section 12 of the Securities Exchange Act of 1934, as amended) or (iii)
participate in the organization, financing, operation, management or control
of,
any business in competition with the Company’s Entities business as conducted by
the Company during the course of my employment with the Company. The foregoing
covenant shall cover my activities in every part of the Territory. “Territory”
shall mean (i) all counties in the State of Texas, (ii) all other states of
the
United States of America and (iii) all other countries of the world; provided
that, with respect to clauses (ii) and (iii), the Company’s Entities maintain
non-trivial operations, facilities, or customers in such geographic area prior
to the date of the termination of my relationship with the Company.
I
acknowledge that my fulfillment of the obligations contained in this Agreement,
including, but not limited to, my obligation neither to use, except for the
benefit of the Company’s Entities, or to disclose the Confidential Information
of the Company’s Entities and my obligation not to compete contained in the
preceding paragraph is necessary to protect the Company’s Entities’ Confidential
Information and to preserve the Company’s Entities value and goodwill. I further
acknowledge the time, geographic and scope limitations of my obligations under
the paragraph above are reasonable, especially in light of the Company’s
Entities desire to protect its Confidential Information, and that I will not
be
precluded from gainful employment if I am obligated not to compete with the
Company Entities during the period and within the Territory as described
above.
The
covenants contained in the first paragraph of this Section 10 shall be construed
as a series of separate covenants, one for each city, county and state of any
geographic area in the Territory. Except for geographic coverage, each such
separate covenant shall be deemed identical in terms to the covenant contained
in the first paragraph of this Section 10. If, in any judicial proceeding,
a
court refuses to enforce any of such separate covenants (or any part thereof),
then such unenforceable covenant (or such part) shall be eliminated from this
Agreement to the extent necessary to permit the remaining separate covenants
(or
portions thereof) to be enforced. In the event the provisions of the first
paragraph of this Section 10 are deemed to exceed the time, geographic or scope
limitations permitted by applicable law, then such provisions shall be reformed
to the maximum time, geographic or scope limitations, as the case may be, then
permitted by such law.
11. Interference
I
agree
that during the course of my employment and for a period of one (1) year
immediately following the termination of my relationship with the Company’s
Entities for any reason, whether with or without cause, at the option either
of
the Company’s Entities or myself, with or without notice, I will not, either
directly or indirectly, interfere with the Company’s Entities’ customer
relationships.
12. Breach
of Obligation
I
am
aware that a breach of any of the obligations under this Agreement will cause
the Company’s Entities’ serious and irreparable harm, to which no monetary
compensation can be an appropriate remedy. Therefore, I agree that if such
a
breach occurs, the Company’s Entities shall be entitled, without prejudice, to
take all legal means necessary, including any injunctive relief, to restrain
any
continuation or further breach of this Agreement, without any objection from
me
and without the necessity of posting bond.
13. Assignment
This
Agreement may be assigned by the Company. I may not assign or delegate my
obligations under this Agreement without the Company's prior written approval.
Any purported assignment in violation of this section shall be null and
void.
14. Survival
My
obligations under this Agreement, except those set out in Sections 9 and 10
(which shall be enforceable on the terms described) shall remain in full force
after termination, for any reason, of my employment with the
Company.
15. Condition
to Employment
I
acknowledge that execution of this Agreement is a condition to the Company's
Entities’ engagement with me and the disclosure of the Initial Disclosure.
|
Xxxxxx
O'Dell
|
/s/
Xxxxxx O'Dell
|
12
April, 2006
|
|
Name
of Employee
|
Signature |
Date |
This
Employment Agreement (the “Agreement”)
is made
and entered into as of February 9, 2000 (“Effective Date”) by and among
Wintegra, Inc. a private company Incorporated under the laws of the State
of
Delaware, with its principal offices at Austin, Texas (the “Company”),
and
Xxxxxx
O’Dell,
residing at 0000 Xxxxxx Xxxxx, Xxxxxx Xxxxx, 00000 (the “Employee”).
WHEREAS,
the Company desires to employ and secure for itself the services of the
Employee
upon the terms and subject to the conditions specified herein; and
WHEREAS,
the Employee desires to accept employment with the Company upon the terms
and
subject to the conditions specified herein;
NOW,
THEREFORE, in consideration of the promises and the mutual covenants, terms
and
conditions hereinafter set forth, and for other good and valuable consideration,
the receipt of which is hereby specifically acknowledged, the parties hereto
agree as follows:
1. EMPLOYMENT.
| 1.1. |
The
Company hereby employs the Employee in the capacity of Vice President
of
Marketing upon the terms and subject to the conditions set forth
below.
The Employee hereby accepts employment with the Company upon the
terms and
subject to the conditions set forth below. This agreement is personal
and
shall not invoke the provisions of any collective bargaining agreement
or
arrangement, whether presently existing or that shall exist in
the future,
except and only to the extent so mandated by
law.
|
| 1.2. |
The
Employee understands and agrees that the Company reserves the right,
in
its sole discretion, to make personnel changes, including without
limitation, changes in the Employee’s position (title, scope, reporting
structure, duties and responsibility) for the Company’s own purposes,
without limitation, and without incurring any
liability.
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2. DUTIES
.
| 2.1. |
The
Employee agrees to devote his full business time, attention, best
efforts
and ability to the affairs of the Company. He shall report to Xxxxx
Xxx-Xxx and shall be subject to the direction and control of the
Board of
Directors. The Employee shall have primary responsibility for operating
and managing the Marketing, and Systems and Applications Engineering
functions of the Company and such other duties as may be assigned
to the
Employee from time to time by the President of the Company or the
Board of
Directors.
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-1-
| 2.2. |
The
Employee acknowledges that his capacity as Vice President of Marketing
is
a fiduciary position and requires a special degree of trust. Employee
also
acknowledges that his duties and responsibilities may entail irregular
work hours and extensive traveling, for which he is adequately
rewarded by
the compensation provided for in this Agreement.
|
| 2.3. |
When
the Employee performs services for the Company, the Employee shall
be, at
all times, an employee of the Company. While performing services
for the
Company, the Employee shall not engage in any activities that,
in the
Company’s opinion, may interfere or conflict with the proper discharge
of
his duties.
|
| 2.4. |
The
Employee shall not be entitled to engage in any other business
activity,
unless the Board of Directors has approved in advance such
engagement.
|
3. AT-WILL
EMPLOYMENT.
| 3.1. |
Employee’s
employment with Company is At-Will
and not for any specified period. Employee’s employment may be terminated
at any time, with or without cause by either Employee or Company,
subject
to the notice provisions set forth below. In addition, Company
reserves
the right to modify Employee’s position or duties to meet business needs
and to use discretion in deciding on appropriate discipline. No
representative of the Company, other than the Chief Executive Officerhas
the authority to alter the at-will employment relationship. Any
change to
the at-will employment relationship must be by specific, written
agreement
signed by Employee and the Chief Executive Officer. Nothing in
this
Agreement is intended to or should be construed to contradict,
modify or
alter this at-will relationship.
|
| 3.2. |
The
Agreement and the Employee’s employment may be terminated at any time for
any reason in accordance with the following notice
provisions:
|
| (One) |
at
any time at the option of either party upon ninety (90) days
prior written
notice (“Prior
Notice”);
|
| (Two) |
immediately
for cause. For purposes of this Agreement, an event or occurrence
constituting “cause” includes but is not limited
to:
|
| (a) |
Dishonesty
of the Employee affecting the Company as decided by the Company
in its
sole and absolute discretion;
|
| (b) |
A
serious breach of trust including theft, embezzlement, self-dealing,
prohibited disclosure to unauthorized persons or entities of confidential
or proprietary information of or relating to the Company, all in
the sole
and absolute discretion of the Company;
|
-2-
| (c) |
The
Employee’s conviction of a felony or of any crime involving moral
turpitude, fraud or misrepresentation. The conviction may or may
not
relate to the Company;
|
| (d) |
Any
gross negligence or bad-faith conduct of the Employee resulting
in
material loss to the Company or any of its affiliated companies
or
material damage to the reputation of the Company or any of its
subsidiaries; and
|
| (e) |
Any
material breach of this Agreement.
|
| 3.3. |
Section
3.2 above does not and shall not be construed to change the At-Will
nature
of the Employee's employment with the
Company.
|
| 3.4. |
In
the event of a termination of this Agreement according to section
3.2(One)
pursuant to a Prior Notice, the Employee shall continue to render
services
to the Company during the Prior Notice period, Nevertheless, the
Company
shall have the right not to take advantage of the full Prior Notice
period
and may terminate the employment relationship at any time during
the Prior
Notice period. In the event of such termination, the Company shall
continue to pay the Employee his salary and benefits through the
remainder
of the Prior Notice period.
|
| 3.5. |
For
the avoidance of any doubt, it is hereby expressed that the Company
reserves the right not to take advantage of the full Prior Notice
period
in both the event the notice of termination of employment was delivered
by
it or in the event that the it was delivered by the Employee (in
which
case it shall not constitute a dismissal of employment by the Company).
|
| 3.6. |
All
such payments shall be less deductions for all applicable taxes
and
withholdings under any relevant laws. The Company shall have no
further
obligation to make any salary payments or provide any benefits
to the
Employee, except as required by applicable
law.
|
| 3.7. |
The
Employee undertakes that immediately upon the termination of his
employment with the Company, for any reason, he shall act as
follows:
|
| (One) |
he
shall deliver and/or return to the Company all the documents, CDs,
diskettes or other magnetic media, letters, notes, reports, business
cards
and other papers in his possession and relating to his employment
with the
Company, as well as any equipment and/or other property belonging
to the
Company which was placed at his disposal, including any company
car,
telephone instruments, modems, computers, employee's badge or other
equipment;
|
-3-
| (Two) |
he
shall delete any information relating to the Company or its business
from
his personal computer, if any;
|
| (Three) |
he
shall coordinate his resignation with his supervisors, including
the
orderly handing over of his position according to the timetable
determined
by the Board of Directors, and he shall hand over in an orderly
fashion
and in accordance with the Company procedures his position, the
documents
and all the other matters dealt with by him to whomever the Company
instructs, and all to the satisfaction of the Company.
|
4. BASE
ANNUAL SALARY.
As
compensation for services rendered hereunder, the Company shall pay the
Employee
a gross annual salary of US$ 120,000 (the "Salary")
paid in
monthly installments in accordance with the Company’s normal payroll practice,
less all applicable state and federal withholding tax, social security
and all
other employment taxes or authorized payroll deductions. The
Company
will
periodically review Employee’s performance and adjustments to salary or other
compensation, if any, will be made by the Company in its sole and absolute
discretion.
5. BENEFITS.
| 5.1. |
In
addition to the Salary set forth in paragraph 42
above, the Employee shall receive the following benefits, and only
such
benefits, from the Company , it being understood that any wage
based
benefits shall be calculated exclusively on the basis of the Salary:
|
| (One) |
Vacation.
The Employee shall be entitled to ten (10) business days of vacation
per
year.
|
| (Two) |
Holiday.
The Employee shall be entitled to ten (10) days of holidays per
year.
|
| (Three) |
Sick
Leave.
The Employee shall be entitled to five (5) days of paid sick leave
per
year. Any sick days not used may be converted to vacation
days.
|
| (Four) |
Benefit
Plans.
|
| (a) |
The
Employee will be entitled to participate in a 401K plan as defined
by the
Company. The Employee will contribute to the plan and the Company
will
contribute to the plan a comparable contribution of up to 3% of
the
Employee’s salary.
|
| (b) |
The
Employee will be entitled to participate in a health care plan
as defined
by the Company. The Company will contribute a portion of the premium
payments for health care coverage of the Employee as determined
by the
plan.
|
-4-
| (c) |
The
Employee will be entitled to participate in a vision service plan
and
dental care plan as defined by the Company. The Company will contribute
a
portion of the premiums for vision service and dental care coverage
of the
Employee as determined by the plan
|
| (Five) |
Life
Insurance.
The Employee will participate in a life Insurance plan that will
compensate for Employee’s death and disability in a face amount of up to 1
times the Employee’s annual salary.
|
| 5.2. |
The
Company will make deductions, withholdings, from all payments and
benefits, pursuant to this Agreement which are required by law
or
regulations. (taxes and other charges).
|
| 5.3. |
The
Company reserves the right to change or eliminate the fringe benefits
on a
prospective basis, at any time, effective upon notice to
Employee.
|
6. CONFIDENTIAL
INFORMATION.
The
Employee agrees not to divulge or use, except in furtherance of the Company’s
business at any time during his employment or after the termination of
his
employment with the Company, any confidential and other proprietary information
(“Confidential
Information”)
obtained at any time, disclosed to the Employee or developed by the Employee
in
the course of the Employee’s employment with the Company or regarding the
technology, know how, intellectual property and business of either the
Company,
its subsidiaries, affiliates, or any of its customers, except that the
Employee
may disclose certain necessary information to co-workers employed at the
Company
and to third parties when required to do so in connection with the performance
of his duties hereunder. “Confidential Information” shall mean information which
is not known to the public and shall include, but not be limited to, technology,
intellectual property, trade secrets, know-how, data, technical or
non-technical, whether written, graphic or oral, the names or addresses
of
prospective or existing investors, customers, employees, supply sources,
ideas,
financial information, operations policies, marketing strategies, product
roadmaps, business development plans, corporate assets, financial forecasts,
and
historical financial results.
7. COVENANT
NOT TO SOLICIT EMPLOYEES.
During
Employee’s employment and for a period of one year from the date of termination
of this Agreement, without the prior written consent of the Board of Directors
of the Company, the Employee shall not directly or indirectly solicit or
seek to
obtain or achieve the employment of any person employed by or engaged as
consultant of, either the Company, its subsidiaries, affiliates, or any
successors or assigns thereof, except for those employees or consultants
who
have left the Company, its subsidiaries, affiliates, or any successors
or
assigns thereof more than one (1) year prior to the date of the Employee’s
termination of employment with the Company.
-5-
8. COVENANT
NOT COMPETE POST-TERMINATION.
| 8.1. |
Consideration
For Promise To Refrain From Competing.
Employee agrees that Company’s disclosure of confidential and proprietary
information and provision of specialized training and/or knowledge
to
Employee, and Employee’s level of compensation and benefits, are partly in
consideration of and conditioned upon Employee not competing with
Company.
Employee acknowledges that such consideration for his services
under this
Agreement is adequate consideration for his promises contained
within this
Section 8.
|
| 8.2. |
Promise
To Refrain From Competing.
For a period of six (6) months from the date of termination of
this
Agreement, without the prior written consent of the Board of Directors
of
the Company, the Employee shall not participate, directly or indirectly
(whether as advisor, principal, agent, partner, officer, director,
employee, stockholder, associate or consultant) in any Business
Entity.
For purposes of this paragraph, the term “Business
Entity”
shall mean any person, partnership, corporation or other business
entity
that is involved in any competition with any business or activity
carried
on by the Company or its affiliates or subsidiaries prior to the
date of
this Agreement or hereafter conducted by the Company or its affiliates
or
subsidiaries during the term of this Agreement anywhere in the
world.
Notwithstanding the foregoing, in the event the Company is subsequently
acquired by another person, corporation or business enterprise,
“Business
Entity”
shall be limited to any person, partnership, corporation or other
business
entity that is involved in any competition with any business or
activity
carried on by the Company or its affiliates or subsidiaries at
the time of
acquisition.
|
| 8.3. |
Reasonableness
of Restrictions.
Employee represents and agrees that the restrictions on competition,
as to
time, geographic area, and scope of activity, required by this
Section are
reasonable, do not impose a greater restraint than is necessary
to protect
the goodwill and business interests of the Company, and are not
unduly
burdensome to Employee. Employee expressly acknowledges that the
Company
competes on a worldwide basis and that the geographical scope of
these
limitations is reasonable and necessary for the protection of Company's
trade secrets and other confidential and proprietary information.
Employee
further agree that these restrictions allow Employee an adequate
number
and variety of employment alternatives, based on Employee’s varied skills
and abilities. Employee represents that Employee is willing and
able to
compete in other employment not prohibited by this
Agreement.
|
-6-
| 8.4. |
Reformation
if Necessary.
In the event a court of competent jurisdiction determines that
the
geographic area, duration, or scope of activity of any restriction
under
this Section is unenforceable, the restrictions under this Section
shall
not be terminated but shall be reformed and modified to the extent
required to render them valid and
enforceable.
|
-7-
9. INTELLECTUAL
PROPERTY ASSIGNMENT.
| 9.1. |
Disclosure
of Prior Inventions.
Employee has identified on Exhibit
A
(“Prior Inventions”) attached hereto all inventions relating in any way to
the Company’s business or demonstrably anticipated research and
development which were made by Employee prior to his employment
with the
Company (“Prior Inventions”), and Employee represents that such list is
complete. Employee represents that Employee has no rights in any
such
inventions other than those Prior Inventions specified in Exhibit
A
(“Prior Inventions”). If there is no such list on Exhibit
A
(“Prior Inventions”), Employee represents that Employee has made no such
Prior Inventions at the time of signing this
Agreement.
|
| 9.2. |
Ownership.
Any invention, development or know-how which shall be conceived,
developed
or reduced to practice by the Employee during the period of his
employment
relating to the business of the Company or the use of any of its
technologies, facilities or Confidential Information, notwithstanding
that
it is perfected or reduced to specific form at any time thereafter
provided that its conception arose during such period, including
all
rights therein and in any patent or other form of intellectual
property or
legal protection with respect thereto, shall become the sole property
of
the Company, without need for any specific action or notice or
any
consideration to the Employee other than as provided for by this
Agreement
(“Company
Inventions”).
The Employee shall cooperate with the Company and assist it in
obtaining
any patent or other form of legal protection for such Company Inventions
or know-how for no additional compensation (other than the coverage
of the
Employee's reasonable out of pocket expenses). Employee agrees
to grant
the Company or its designees a royalty free, irrevocable, worldwide
license (with rights to sublicense through multiple tiers of distribution)
to practice all applicable patent, copyright and other intellectual
property rights relating to any Prior Inventions which Employee
incorporates, or permits to be incorporated, in any Company Inventions.
Notwithstanding the foregoing, Employee agrees that Employee will
not
incorporate, or permit to be incorporated, such Prior Inventions
in any
Company Inventions without Company’s
prior written consent.
|
10. NO
CONFLICTING OBLIGATIONS
The
Employee will not disclose to the Company any confidential information
or
material belonging to a third party, including that belonging to any prior
employer, contractor, unless the Employee has first received the written
approval of that third party and presents such approval to the
Company.
| 11. |
Agreement
to Arbitrate.
To the fullest extent permitted by law, Employee and Company agree
to
arbitrate any controversy, claim or dispute between them arising
out of or
in any way related to this Agreement, the employment relationship
between
Company and Employee and any disputes upon termination of employment,
including but not limited to breach of contract, tort, discrimination,
harassment, wrongful termination, failure to accommodate, family
and
medical leave, compensation or benefits claims, constitutional
claims; and
any claims for violation of any local, state or federal law, statute,
regulation or ordinance or common law. Claims for injunctive relief
regarding breach of any of the covenants contained in sections
7-10 are
excluded. For the purpose of this agreement to arbitrate, references
to
“Company” include all parent, subsidiary or related entities and their
employees, supervisors, officers, directors, agents, pension or
benefit
plans, pension or benefit plan sponsors, fiduciaries, administrators,
affiliates and all successors and assigns of any of them, and this
agreement shall apply to them to the extent Employee’s claims arise out of
or relate to their actions on behalf of
Company.
|
-8-
| 11.1. |
Consideration.
The mutual promise by Company and Employee to arbitrate any and
all
disputes between them (except for those referenced above) rather
than
litigate them before the courts or other bodies, provides the
consideration for this agreement to
arbitrate.
|
| 11.2. |
Initiation
of Arbitration.
Either party may exercise the right to arbitrate by providing the
other
party with written notice of any and all claims forming the basis
of such
right in sufficient detail to inform the other party of the substance
of
such claims. In no event shall the request for arbitration be made
after
the date when institution of legal or equitable proceedings based
on such
claims would be barred by the applicable statute of
limitations.
|
| 11.3. |
Arbitration
Procedure.
The arbitration will be conducted in [[insert
city]], Texas
by a single neutral arbitrator and in accordance with the American
Arbitration Association’s (“AAA”) then current rules for resolution of
employment disputes. The parties are entitled to representation
by an
attorney or other representative of their choosing. The arbitrator
shall
have the power to enter any award that could be entered by a judge
of the
trial court of the State of Texas, and only such power, and shall
follow
the law. In the event the arbitrator does not follow the law, the
arbitrator will have exceeded the scope of his or her authority
and the
parties may, at their option, file a motion to vacate the award
in court.
The parties agree to abide by and perform any award rendered by
the
arbitrator. Judgment on the award may be entered in any court having
jurisdiction thereof.
|
| 11.4. |
Costs
of Arbitration/Attorneys’ Fees.
Each party shall bear one half the cost of the arbitration filing
and
hearing fees, and the cost of the arbitrator. In addition, each
side will
bear its own attorneys’ fees in any dispute unless a statutory section at
issue, if any, authorizes the award of attorneys’ fees to the prevailing
party.
|
-9-
12. MISCELLANEOUS.
| 12.1. |
Governing
Law; Submission to Jurisdiction.
This Agreement shall be governed by and construed in accordance
with the
laws of the State of Texas. Any litigation concerning any claims
under or
breach of this Agreement shall be brought exclusively in the competent
courts in Texas, except as otherwise provided in Section 11
herein
|
| 12.2. |
Successors
and Assigns.
The rights and obligations of Company under this Agreement shall
inure to
the benefit of and shall be binding upon the successors and assigns
of
Company. Employee shall not be entitled to assign any of his rights
or
obligations under this Agreement.
|
| 12.3. |
Waiver.
Either party’s failure to enforce any provision of this Agreement shall
not in any way be construed as a waiver of any such provision,
or prevent
that party thereafter from enforcing each and every other provision
of
this Agreement. No oral waiver, amendment or modification will
be
effective under any circumstances
whatsoever.
|
| 12.4. |
Severability.
In the event any provision of this Agreement is found to be unenforceable
by an arbitrator or court of competent jurisdiction, such provision
shall
be deemed modified to the extent necessary to allow enforceability
of the
provision as so limited, it being intended that the parties shall
receive
the benefit contemplated herein to the fullest extent permitted
by law. If
a deemed modification is not satisfactory in the judgment of such
arbitrator or court, the unenforceable provision shall be deemed
deleted,
and the validity and enforceability of the remaining provisions
shall not
be affected thereby.
|
| 12.5. |
Notices.
Any notice required or permitted by this Agreement shall be in
writing and
shall be delivered as follows with notice deemed given as indicated:
(a)
by personal delivery when delivered personally; (b) by overnight
courier
upon written verification of receipt; (c ) by telecopy or facsimile
transmission upon acknowledgment of receipt of electronic transmission;
(d) by certified or registered mail, return receipt requested,
upon
verification of receipt; or (e) by electronic communication upon
written
verification of receipt. Notice shall be sent to the addresses
set forth
above, or such other address as either party may specify in
writing.
|
| 12.6. |
Modification.
This Agreement may not be amended, modified, changed or discharged
in any
respect except as mutually agreed in writing and signed by both
parties.
No oral waiver, amendment or modification will be effective under
any
circumstances whatsoever.
|
| 12.7. |
Descriptive
Headings.
The paragraph headings contained herein are for reference purposes
only
and shall not in any way affect the meaning or interpretation of
this
Agreement.
|
-10-
| 12.8. |
Counterparts.
This Agreement may be executed in counterparts, each of which shall
be
deemed an original, and all such counterparts shall constitute
one and the
same instrument.
|
| 12.9. |
Survival.The
provisions of paragraphs 6,
7,
8,
9, 10, 11 and 12 shall survive any termination of this
Agreement.
|
| 12.10. |
Entire
Agreement.
This Agreement constitutes the entire agreement between the parties
relating to this subject matter and supersedes all prior or simultaneous
representations, discussions, negotiations, and agreements, whether
written or oral.
|
IN
WITNESS WHEREOF, the Company and the Employee have executed this Employment
Agreement, as of the day and year first above written.
|
/s/
Xxxxx Xxx-Xxx
|
/s/
Xxxxxx O'Dell
Xxxxxx
O'Dell
|
|
|
By:___________________
|
-11-
