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EXHIBIT 10.28
EMPLOYMENT AGREEMENT dated as of January 1, 2001, between PATRIOT SCIENTIFIC
CORPORATION, a Delaware Corporation (the "Company"), and Xxxxx X. Xxxx (the
"Executive").
WITNESSETH:
1. Term of Employment.
(a) The Company hereby agrees to employ the Executive and the
Executive hereby agrees to accept employment as Secretary of the Company for a
two and one-half year period commencing January 1, 2001, or for such shorter
period as may be mutually agreed by the Company and the Executive (the
"Employment Period')' subject to the terms and conditions of this Agreement. In
his capacity as Secretary of the Company, Executive will be responsible for the
general duties associated with his title including, but not limited to attending
meetings of the Board of Directors, taking minutes of meetings, and maintaining
the Minute Books and Corporation Records of the Company and/or such other
management duties of a same or similar nature on behalf of the Company as may be
assigned to him from time to time by the President and Chief Executive Officer
("CEO") of the Company.
(b) The Executive agrees that, during the Employment Period, he will
serve the Company faithfully and to the best of his abilities, devoting such
time, energy and skill to the activities of the Company and the promotion of its
interests as would be typical for his position, although it is understood that
this is a part time position and the Executive shall not be required to devote
more than 10 hours per week to the position unless otherwise agreed between the
parties. It is expressly understood that the Executive may devote a reasonable
amount of time to such other business, charitable, civic and personal affairs as
shall not interfere with the obligations set forth in the preceding sentence.
The Executive agrees not to work for or participate in any business that
adversely and directly impacts his duties and obligations to the Company or
competes with the Company during his employment with the Company.
2. Compensation and Benefit Plans
(a) The Executive shall receive a base salary during the Employment
Period which shall be payable in installments at such times as other employees
are paid but in any case at least monthly as follows: (1) During the first year
of the Employment Period (`Year One"), the Executive shall receive a gross base
salary of not less than two thousand dollars ($2,000.00) per month for his
services as Secretary of the Company; (2) During the second year of the
Employment Period ("Year Two"), the Executive shall receive a base salary of not
less than the base salary received in Year One. The base salary received in any
year shall be subject to other upward adjustments as shall be recommended by the
President and CEO of the Company to the Board of Directors of the Company (the
"Board") and as shall be approved by the Board and Compensation Committee.
(b) The Executive is entitled, at the discretion of the Board of
Directors of the Company, to an Annual Incentive Bonus up to 50% of the total
yearly base compensation for the applicable year (the "Annual Incentive Bonus").
The Annual Incentive Bonus payment will be based upon mutually agreed upon
objectives and levels of performance, if any, and shall otherwise be at the
discretion of the Board of Directors.
(c) The Executive shall be eligible to participate in all employee
benefit programs, if any, maintained by the Company, including, but not limited
to, group life insurance, medical, dental, retirement and pension plans, any
deferred compensation profit sharing plans, 401(k) savings plan, and other such
fringe benefits as are or may be available from time to time to senior
executives of the Company, including without limitation a car allowance of $400
per month. During the Employment Period, the Executive is entitled to 4 weeks
vacation per annum.
(d) The Company will pay or reimburse the Executive during the
Employment Period for all expenses normally reimbursed by the Company and
reasonably incurred by the Executive in furtherance of his duties hereunder and
authorized by the Company, including but not limited to, expenses of
entertainment, travel, meals, hotel accommodations and the like upon the
submission of the Executive of vouchers or an itemized list thereof and as may
be required in order to permit such payments as proper
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deductions for the Company under the Internal Revenue Code of 1986 and the rules
and regulations adopted pursuant thereto now or hereafter in effect.
3. Stock Options.
(a) The Executive will be granted an option to purchase twenty-five
thousand (25,000) shares of the Company's common stock at the average of the
closing bid and ask price of the Company's stock on January 1, 2001. This option
will be granted under the Company's 1996 Stock Option Plan. The Company and the
Executive will sign a Stock Option Agreement memorializing the grant as of
January 1, 2001 in the form of the attached Exhibit A upon approval by the Stock
Compensation Committee.
(b) The Stock Options vested on January 1, 2001. All stock options
held by employee will vest immediately prior to a Change in Control of the
Company.
4. Termination of Employment.
(a) The employment of the Executive hereunder shall automatically
terminate if the Executive shall die during the Term of Employment. The
employment of the Executive can be terminated for cause by the Company at its
option only for the following:
(1) the conviction of the Executive under state or federal law of a
felony or other crime, or the equivalent under foreign law; unless in any such
case Executive performed such act in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the Company;
(2) the material breach by Executive of any provision of the Agreement
which has not been cured pursuant to the provisions of Section 5 hereof; or
(3) a determination or request by an appropriate regulatory authority
that the Executive be removed or disqualified from acting as an officer of the
Company.
(b) If the Executive's employment is terminated for other than cause
by the Company, then the Executive is entitled to severance payments equal to
the lesser of (i) four (4) months of the current base salary payable in a lump
sum payment on the last day of the thirty (30) day notice period or (2) the
remaining current base salary for the term of this agreement payable in a lump
sum payment on the last day of the thirty (30) day notice period. In such event,
the Executive shall have the right to continue coverage, at his expense, under
group life insurance, medical, and dental healthcare plans of the Company by
paying the applicable group premium(s) as if the Executive were still employed;
such right, if exercised within thirty days after termination of employment,
shall continue until the Executive reaches the age of 65, at which time it shall
terminate.
(c) The Executive shall have the right at his sole option to terminate
his employment at any time upon ninety (90) days written notice or for such
other notice period to be determined by the President and CEO in his sole
discretion.
(d) If within twelve (12) months of a Change in Control, as that term
is defined herein, Executive's employment is terminated for other than cause or
Executive refused to accept or voluntarily resigns from a position other than a
Qualified Position, as that term is defined herein, Executive shall receive
severance compensation equal to twelve (12) months of his then current base
salary. A "Change in Control" means the acquisition, directly or indirectly of
more than 40% of the outstanding shares of any class of voting securities of the
Company by one person or one entity that is not an existing shareholder as of
the date of this Agreement, or a merger, consolidation or sale of all or
substantially all of the assets of the Company, such that the individuals
constituting the Board of the Company immediately prior to such period shall
cease to constitute a majority of the Board, unless the election of each
director who was not a director prior thereto was approved by vote of at least
two-thirds of the directors then in office who were directors prior to such
period. Notwithstanding the foregoing, an acquisition of the requisite
percentage of voting securities in connection with a public offering of
securities by the Company for the primary purpose of providing capital resources
to the Company shall not be considered a "Change in Control" for purposes of
this Section 4(d). "Qualified Position" is an executive officer position with
the entity surviving the Change in Control with substantially the same
responsibilities as those held by the Executive on the date of
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the Change in Control. Also, notwithstanding the foregoing, if the Company
determines that the amounts payable to Executive under this employment
agreement, when considered together within the other amounts payable to
Executive as a result of a Change in Control, cause such payments to be treated
as excess parachute payments within the meaning of Section 280G .of the Internal
Revenue Code, the Company shall reduce the amount payable to Executive under
this Section 4(d) to an amount that will not subject Executive to the imposition
of tax under Section 4999 of the Internal Revenue Code; provided, however, that
this provision shall apply only to payments to be made under this employment
agreement and shall not cause the reduction of any other payments to be made to
Executive by the Company.
5. Notice of Breach. The Company and the Executive agree that, prior to the
termination of the Employment Period by reason of any breach of any provision of
the Agreement, the injured party will give the party in breach written notice,
specifying such breach and permitting the party in breach to cure such breach
within period of thirty (30) days after receipt of such notice, except a breach
by Executive of provisions of Section 7 of this Agreement shall not have a cure
period.
6. Indemnification.
(a) If, after the date of the commencement of the Employment Period,
the Executive is made a party or is threatened to be made a party to any action,
suit or proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he is or was a director or officer of
the Company or is or was serving at the request of the Company as a director,
officer, member, employee or agent of another corporation or partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether or not the basis of such Proceeding is an alleged act or
failure to act in an official capacity as a director, officer, member, employee
or agent, he shall be indemnified and held harmless by the Company to the
fullest extent authorized by Delaware law, as the same exists or may hereafter
be amended, against all expense, liability and loss (including, without
limitation, attorney's fees, judgments, fines and amounts paid or to be paid in
settlement) reasonably incurred or suffered by the Executive in connection
herewith, including, without limitation, payment of expenses incurred in
defending a Proceeding prior to the final disposition of such Proceeding
(subject to receipt of an undertaking by the Executive to repay such amount if
it shall ultimately be determined that the Executive is not entitled to be
indemnified by the Company under Delaware law), and such indemnification shall
continue as to the Executive even if he has ceased to be a director, officer,
member, employee or agent of the Company or other enterprise and shall inure to
the benefit of his heirs, executors and administrators.
(b) The right of indemnification and the payment of expenses incurred
in defending a Proceeding in advance of its final disposition conferring in this
Section 6 shall not be exclusive of any other right that the Executive may have
or hereafter may acquire under any statute, provision of the Certificate of
Incorporation or Bylaws of the Company, agreement, vote of shareholders or
disinterested directors or otherwise.
7. Trade Secrets of the Company, Patents and Inventions.
(a) Except as required by the performance of the Executive's services
to the Company under the terms of this Agreement, neither the Executive or any
of his agents or representatives, shall, during his employment and for so long
afterwards as the pertinent information or data remain Confidential Information,
directly or indirectly, make use of, permit others to use, divulge, disseminate,
copy or otherwise disclose the Company's Confidential Information and/or
Inventions as defined by subparagraphs (i) and (ii), respectively.
(i) "Confidential Information" means all information and material
which is proprietary to the Company, whether or not marked as "confidential" or
"proprietary" and which is disclosed to or obtained from the Company by the
Executive, which relates to the Company' past, present or future research,
development or business activities. Confidential Information is all information
or materials prepared by or for the Company and includes, without limitation,
all of the following: designs, drawings, specifications, techniques, models,
data, source code, object code, documentation, diagrams, flow charts, research,
development, processes, systems, methods, machinery, procedures, "know-how", new
product or new technology information, formulas, patents, patent applications,
product prototypes, product copies, cost of
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production, manufacturing, developing or marketing techniques and materials,
cost of production, development or marketing time tables, customer lists,
strategies related to customers, suppliers or personnel, contract forms, pricing
policies and financial information, volumes of sales, and other information of
similar nature, whether or not reduced to writing or other tangible form, and
any other Trade Secrets, as defined by subparagraph (iii), or non-public
business information. Confidential Information does not include any information
which (1) was in the lawful and unrestricted possession of the Executive prior
to its disclosure by the Company, (2) is or becomes generally available to the
public by acts other than those of the Executive after receiving it, or (3) has
been received lawfully and in good faith by the Executive from a third party who
did not derive it from the Company.
(ii) "Inventions" means and all discoveries, concepts and ideas,
whether patentable or not, including but not limited to, processes, methods,
formulas, compositions, techniques, articles and machines, as well as
improvements thereof or "know-how" related thereto, relating at the time of
conception or reduction to practice to the business engaged in by the Company,
or any actual or anticipated research or development by the Company.
(iii) "Trade Secrets" shall mean any scientific or technical data,
information, design, process, procedure, formula or improvement that is
commercially available to the Company and is not generally known in the
industry.
Materials involving Confidential Information and Inventions are the exclusive
property of the Company and shall not be removed under any circumstances from
the premises of the Company where the work is being carried on without prior
written consent of the Company except when consistent with the Company's normal
business practices.
(b) The Executive agrees that any inventions made, conceived or
completed by him during the term of his employment, solely or jointly with
others, which are made with the Company's equipment, supplies, facilities or
Confidential Information, or which relate at the time of conception or reduction
to purpose of the invention to the business of the Company or the Company's
actual or demonstrably anticipated research and development, or which result
from any work performed by the Executive for the Company, shall be the sole and
exclusive property of the Company. The Executive promises to assign such
inventions to the Company. The Executive also agrees that the Company shall have
the right to keep such inventions as trade secrets, if the Company chooses. The
Executive agrees to assign to the Company the Executive's rights in any other
inventions where the Company is required to grant those rights to the United
States government or any agency thereof. In order to permit the Company to claim
rights to which it may be entitled, the Executive agrees to disclose to the
Company in confidence all inventions which the Executive makes arising Out of
the Executive's employment and all patent applications filed by the Executive
within one year after the termination of his employment.
(c) The Executive shall assist the Company in obtaining patents on all
inventions, designs, improvements and discoveries patentable by the Company in
the United States and in all foreign countries, and shall execute all documents
and do all things necessary to obtain letters patent, to vest the Company with
full and extensive title thereto, and to protect the same against infringement
by others.
8. Severability. In the event that any provisions or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason, in whole or
in part, the remaining provisions of this Agreement shall be unaffected thereby
and shall remain in full force and effect to the fullest extent permitted by
law.
9. Assignment. The rights of the Company (but not its obligations) under this
Agreement may, without the consent of the Executive, be assigned by the Company
to any parent, subsidiary, or a successor of the Company; provided that such
parent, subsidiary or successor acknowledges in writing that it is also bound by
the terms and obligations of this Agreement. Except as provided in the preceding
sentence, the Company may not assign all or any of its rights, duties or
obligations hereunder without the prior written consent of the Executive. Except
as provided for in Section 11 hereunder, the Executive may not assign all or any
of his rights, duties or obligations hereunder without the prior written consent
of the Company.
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10. Survival of Certain Provisions. The covenants and agreements set forth in
Paragraph 7 of this Agreement shall survive termination of the Executive's
employment and/or this Agreement, and shall remain in full force and effect
regardless of the cause of such termination.
11. Beneficiaries: References. The Executive shall be entitled to select (and
change) a beneficiary or beneficiaries to receive any compensation or benefit
payable following the Executive's death, and may change such election, in either
case, by giving the Company written notice thereof. In the event of the
Executive's death or a judicial determination of his incompetence, reference in
this Agreement shall be deemed, where appropriate, to refer to the Executive's
beneficiary, estate, committee, conservator or other legal representative.
12. Notices. All notices, requests, demands and other communications shall be in
writing and shall be defined to have been duly given if delivered or if mailed
by registered mail, postage prepaid;
(a) If to the Executive, addressed to him at the following address as
may be changed in writing from time to time:
Xxxxx X. Xxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
(b) If to the Company, addressed to:
Patriot Scientific Corporation
00000 Xxx Xxxxxxxx
XxxXxxxx, XX 00000
or to such other address as any party may request by notice given as aforesaid
to the other parties hereto.
13. Titles and Headings. Titles and heading to paragraphs hereof are for the
purposes of references only and shall in no way limit, define or otherwise
effect the provisions hereof.
14. Governing Law. This Agreement is being executed and delivered and is
intended to be performed in the State of California, and shall be governed by
and construed in accordance with the laws of the State of California.
14.5 Arbitration/Sole Remedy for Breach of Agreement. In the event of any
dispute between the Company and the Executive concerning any aspect of the
employment relationship, including any disputes upon termination, all such
disputes shall be resolved by binding arbitration before a single neutral
arbitrator. The arbitrator shall be selected from the "American Arbitration
Association." The arbitration shall be held in San Diego, California. The
arbitrator is bound to rule only on whether or not there has been a violation of
the terms of this employment agreement and to render an award, if any, that is
consistent with the terms of this employment agreement. Neither party to this
employment agreement is entitled to any legal recourse or rights or remedies
other than those provided within this employment agreement. The Executive's sole
remedies, are those set forth in this employment agreement. The arbitrator shall
determine a "prevailing party" and shall award such prevailing party (i)
attorney's fees and costs and (ii) the prevailing party's portion of the costs
of arbitration.
In the event of any dispute between the Company and the Executive concerning any
ownership, use or disclosure of the Company's Confidential Information or other
intellectual property, the requirement of arbitration may be waived, at the
Company's sole election, and any such dispute may be brought before a court
having jurisdiction of the matter.
15. Counterparts. This Agreement shall be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. It shall not be necessary
in making proof of this Agreement to produce or account for more than one
original counterpart.
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16. Entire Agreement. This Agreement contains the entire agreement of the
parties hereto and may be modified or amended only by a written instrument
executed by the parties hereto. Effective on the first day of the Employment
Period, any prior employment agreements between the Company and the Executive
shall terminate.
17. Good Faith. Each of the parties hereto agrees that he or it shall act in
good faith in all actions taken under this Agreement.
18. Waiver. No waiver of any of the provisions of this Agreement shall be deemed
to be or shall constitute a waiver of any other provision of the Agreement,
whether or not similar, nor shall any waiver constitute a continuing waiver. No
waiver of any provision of this Agreement shall be binding upon the parties
hereto unless it is executed in writing by the party making the waiver.
IN WITNESS WHEREOF, the parties hereto have executed the Agreement as of the day
and year first above written.
Patriot Scientific Corporation
By
/s/ XXXXXXX X. XXXX
Xxxxxxx X. Xxxx, Chairman & CEO
/s/ XXXXX X. XXXX
Xxxxx X. Xxxx, Executive
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