EMPLOYMENT AGREEMENT
Exhibit
10.6
This
Employment Agreement ("Agreement") is made and entered into as of the date
last
written below (the "Effective Date"), by and between XXXXXXXXXX, a California
corporation ("Company"), and XXXX XXXXXXXXXX ("Employee") with reference to
the
following facts:
A. The
Company wishes to retain the services of the Employee as a technical advisor,
upon the terms and conditions herein stated.
B. The
Employee desires to provide the Company with his services as a technical
advisor, upon the terms and conditions herein stated.
C. This
Agreement shall supersede the existing Employment Agreement between Company
and
Employer, dated 8 December 2003.
NOW,
THEREFORE, for valuable consideration, the receipt and satisfaction of which
is
acknowledged, the parties agree as follows:
1.
Employment.
The
Company hereby employs the Employee as of the Effective Date, and the Employee
hereby accepts employment with the Company upon the terms and conditions set
forth in this Agreement.
2.
Duties
and Reporting Relationships. Employee
is hereby employed as a technical advisor to the Company. Employee shall
actively participate, as requested by the Board of Directors or the senior
level
executives of the Company, in all intellectual property meetings and related
activities, attend engineer reviews, attend staff meetings, and other meetings
as appropriate. Employee shall provide technical assistance on Company projects
as requested. Employee shall make himself available during normal business
hours
of the Company, upon reasonable notice, to perform his services as technical
advisor; provided, however, Employee shall not be required to work more than
thirty (30) hours in a work week.
3.
Compensation
and Benefits.
(a) Base
Salary.
The
Company shall pay Employee an annual base salary of One Hundred Thousand Dollars
($100,000.00) ("Base Salary").
(b) Insurance
and Benefits.
Employee shall be eligible to participate in all benefit programs offered to
senior level executives of the Company including, but not limited to, life
and
group health insurance, and shall be eligible for holiday and vacation pay
in
accordance with the Company's policies. Notwithstanding the foregoing, Employee
shall receive no less than 200 hours of PTO for each year of employment under
this Agreement. Employee shall not be eligible to participate in any Company
stock option plan as an employee of the Company, but Employee shall remain
eligible to participate in any and all such plans as a director of the
Company.
(c) Throughout
the term of this Agreement, Employee shall have the exclusive use of his current
office and its attached garage.
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4.
Term.
The
initial term of this Agreement is for five years from the Effective Date (the
"Initial Term"). The Initial Term may be extended by the mutual agreement of
the
parties.
5.
For
Cause Termination.
Employee
shall be subject to immediate termination without notice for "cause." For
purposes of this Agreement, "cause" shall mean the following:
(a) Any
act
of personal dishonesty, including, but not limited to, any intentional
misapplication of the Company's funds or other property, or action resulting
in
personal gain to the Employee at the expense of the Company;
(b) Employee's
regular neglect of his duties or Employee's gross negligence or willful
misconduct in the performance of his duties;
(c) Disobedience
of a lawful and reasonable order or directive given to Employee by the Board
of
Directors of Company and within the scope of Employee's duties that is not
cured
within ten (10) days after receiving written notice from the Company. Employee
shall abstain from any votes by the Board of Directors of Company or an
unauthorized subcommittee thereof relating to this Agreement and Employee's
performance hereunder;
(d) Employee's
participation in a criminal activity or in an activity involving moral turpitude
that has a material adverse effect (the report in the public media of conduct
described in this subparagraph d, above, shall be deemed to cause a material
adverse effect on the Company); or
(e) Employee's
misappropriation or disclosure to others in competition with Company any
Confidential Information of the Company, including investment prospects,
analysis or advice, customer lists, plans or other property interests of the
Company.
6.
Termination
on Disability.
This
Agreement shall terminate upon the disability of Employee. For purposes of
this
Agreement, "disability" shall be defined to mean the Employee's physical or
mental inability to perform his duties hereunder for a period of sixty (60)
consecutive days, or for a cumulative total of ninety (90) days (which need
not
be consecutive) within any period of three hundred sixty-five (365) days, due
to
accident, sickness or other disability that prevents the Employee from
satisfactorily performing the scope of his duties hereunder as such duties
exist
on the date immediately prior to the date the Employee was first absent from
work due to such disability.
7.
Termination
on Death.
This
Agreement shall terminate upon the death of Employee. If Employee dies during
the term of this Agreement, the Company shall pay to (a) Employee’s spouse, or
(b) the executors under Employee’s last will and testament duly admitted to
probate within one (1) year of his death, or (3) Employee’s heirs at law, the
compensation which otherwise would be payable to Employee under Section 3 hereof
for a period of sixty (60) days following the date on which the death occurs.
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8.
Confidential
Information of the Company.
As used
in this Agreement, the term "Confidential Information" means any and all
confidential, proprietary or secret information, including that conceived or
developed by Employee, applicable to or in any way related to: (a) the present
or future business of the Company; (b) all marketing, financial, and accounting
information of the Company; or (c) the business of any customer or vendor of
the
Company. Such Confidential Information of the Company includes, by way of
example and without limitation, the identities of the Company's clients, trade
secrets, formulas, data, program documentation, business plans, bank accounts,
account balances, financial statements, inventions, techniques, all plans or
strategies for marketing, development and pricing, and all information
concerning existing or potential customers or vendors.
9.
Protection
of the Company's Confidential Information.
Employee acknowledges that the Confidential Information of the Company is a
special, valuable, and unique asset of the Company. Employee agrees at all
times
during and after Employee's employment not to disclose for any purpose and
to
keep in strict confidence and trust all of such Confidential Information unless
and until either Employee becomes aware that the Company is no longer treating
such information as Confidential Information or Employee becomes aware of
substantially the same information from a non-confidential source that has
a
bona fide and lawful right to the information. Employee agrees otherwise not
to
use, directly or indirectly, any Confidential Information other than in the
course of performing duties as an employee of Company, nor will Employee
directly or indirectly disclose any Confidential Information or anything
relating to it to any person or entity, except with the Company's consent,
as
may be necessary to the performance of Employee's duties as an employee of
the
Company. Employee will abide by the Company’s policies and rules established
from time to time by the Company for the protection of its Confidential
Information.
10.
Return
of Materials.
Upon
termination of Employee's employment with the Company for any reason, Employee
shall promptly return to the Company all documents, records, notebooks, magnetic
tapes, disks, computers or other materials, including all copies, in Employee's
possession or control which contain Confidential Information of the Company
or
any other information concerning the Company, its finances, products, service
or
customers, whether prepared by the Employee or others. Employee shall not erase
and/or purge any information contained in the Company’s computers when
Employee's employment has terminated or a demand has been made for return of
said computers, whichever is earlier.
11.
Expense
Reimbursement.
During
the employment term, to the extent that such expenditures satisfy the criteria
of the Internal Revenue Code for deductibility by the Company for federal income
tax purposes as ordinary and necessary business expenses, the Company shall
reimburse Employee for reasonable business expenses, including travel, made
and
substantiated in accordance with the policies and procedures established from
time to time by the Company with respect to Company's other executive and
managerial employees.
12.
Proprietary
Information and Inventions Agreement.
Employee
and Company agree that the existing Proprietary Information and Inventions
Agreement between Company and Employee remains in effect.
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13.
Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of California. Each party hereby submits to the exclusive jurisdiction
and
venue of the Superior Court of the State of California for the County of San
Xxxx Obispo for purposes of any legal or equitable action or proceeding arising
out of this Agreement.
14.
Notices.
Any
notice to be given to the Company under the terms of this Agreement shall be
addressed to the Company at the address of its principal place of business,
as
follows: 000
Xxxxxxx Xxxx, Xxx Xxxx Xxxxxx, Xxxxxxxxxx 00000. Any
notice to be given to the Employee shall be addressed to him at the home address
last shown on the records of the Company, or at such other address as either
party may hereafter designate in writing to the other. Any such notice shall
be
deemed to have been duly given when enclosed in a properly sealed and addressed
envelope, personally delivered or registered or certified, and deposited
(postage and registry or certification fee prepaid) in a post office or branch
post office regularly maintained by the United States Government.
15.
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
16.
Entire
Agreement; Counterparts.
This
Agreement may be modified only by a duly authorized and executed writing, signed
by an officer of the Company authorized by Company's Board of Directors and
by
Employee. This Agreement may be executed in two or more counterparts, each
of
which shall be deemed an original but all of which shall constitute one and
the
same agreement.
17.
Severability.
To the
extent a provision of this Agreement shall be invalid or unenforceable, it
shall
be considered deleted from the Agreement and the remainder of this Agreement
shall be unaffected and shall continue in full force and effect. Notwithstanding
the foregoing, in the event a provision of this Agreement is unenforceable
because it is over-broad, then such provision shall be limited to the extent
necessary to make it enforceable under the applicable law and enforced as so
limited. Employee acknowledges the uncertainty of the law in this respect and
expressly stipulates that this Agreement be given the construction which renders
its provisions valid and enforceable to the maximum extent (not exceeding its
express terms) possible under the applicable law.
18.
Enforcement.
Company
and Employee recognize that under this Agreement, Employee is obligated to
render personal services of a special, unique, unusual and extraordinary
character, which gives this Agreement peculiar value. The Employee agrees that
a
breach by him of this Agreement, including its covenants, could not reasonably
or adequately be compensated in damages in an action at law, and that Company
shall be entitled to injunctive relief, which may include but shall not be
limited to restraining the Employee from rendering any service which could
breach this Agreement.
19.
Mediation.
The
parties agree to mediate any dispute or claim arising out of or relating to
this
Agreement, including the interpretation, application of any provision in this
Agreement. Mediation shall take place within thirty (30) days of written notice
in accordance with the provisions in this Agreement for notice being served
on
the other party. The mediator shall be a neutral mediator from a recognized
mediation service. The fees and expenses of mediation shall be borne evenly
by
the parties. Evidence of anything said, any admission made, or any documents
prepared in the course of the mediation shall not be admissible in evidence,
or
subject to discovery in any arbitration or court action, pursuant to Evidence
Code §1152.5. If any party commences an arbitration or court proceeding based
upon a dispute or claim to which this paragraph applies without first attempting
to resolve the matter through mediation, then such party shall not be entitled
to recover attorneys' fees, even if it would otherwise be available to that
party in any such arbitration or court proceeding.
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20.
Arbitration.
Any
action to resolve disputes with respect to this Agreement shall be settled
by
arbitration in accordance with California Code of Civil Procedure §§ 1280
through 1294.2 and any successor provisions thereto. Arbitration shall be the
exclusive dispute resolution process for disputes with respect to this
Agreement. Any party may commence arbitration by sending a written demand for
arbitration to the other party. Such demand shall set forth the nature of the
matter to be resolved by arbitration. The place of arbitration shall be in
the
County of San Xxxx Obispo, State of California. The substantive law of the
State
of California shall be applied by the arbitrator to the resolution of the
dispute. The Employer shall pay all costs of arbitration. The prevailing party
shall be entitled to reimbursement of attorneys' fees and expenses incurred
in
connection with the arbitration. All decisions of the arbitrator shall be final,
binding, and conclusive on all parties. Judgment may be entered upon any such
decision in accordance with applicable law in any court having jurisdiction
over
the dispute.
21.
Survival.
The
parties expressly acknowledge and agree that the provisions of this Agreement
which, by their express or implied terms, extend beyond the termination of
Employee's employment hereunder, including without limitation the obligations
incurred under Sections 8, 9, 10, 12, 18 and 19 shall continue in full force
and
effect notwithstanding Employee's termination of employment hereunder or the
termination of this Agreement.
IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by its
duly authorized Officer and Employee has executed this Agreement as of the
day
and year last written below.
EMPLOYEE:
/s/
Xxxx Xxxxxxxxxx
Xxxx
Xxxxxxxxxx
Date:
May
30, 2007
COMPANY:
XXXXXXXXXX,
a California corporation
By:
/s/ Xxxxx Xxxxxxxxxx
Title:
President & CEO
Date:
May
29, 2007
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