May 7, 2007
Exhibit
10.1
May
7,
2007
Xxxxxxxx
X. XxXxxxx
000
Xxxxx
Xxxxx
Xxxxxxxxx,
XX 00000
Re:
Employment with PureDepth, Inc.
Dear
Xxx:
PureDepth,
Inc. is pleased to confirm the terms of your employment as provided in the
offer
letter of December 19, 2006. Please confirm your acceptance by execution of
a
counterpart copy of this letter agreement (the "Agreement") where indicated
below.
1. Employment.
Company
hereby affirms Employee's employment, and Employee hereby affirms his acceptance
of employment, upon the terms and conditions set forth herein.
2. Duties.
2.1 Position.
Employee
is employed as Chief Financial Officer and shall report to and have the duties
and responsibilities assigned by Company's Chief Executive Officer both upon
initial hire and as may be reasonably assigned from time to time. Employee
shall
perform faithfully and diligently all duties assigned to Employee.
2.2 Best
Efforts/Full-time. Employee
will expend Employee's best efforts on behalf of Company, and will abide by
all
policies and decisions made by Company, as well as all applicable federal,
state
and local laws, regulations or ordinances. Employee will act in the best
interest of Company at all times. Employee shall devote Employee's full business
time and efforts to the performance of Employee's assigned duties for
Company.
3. Term.
3.1 Term.
The
employment relationship pursuant to this Agreement shall be on an at-will basis
and may be terminated by the Company or the Employee at any time, for any reason
subject to the provisions regarding termination as set forth in section 7
below.
3.2 Start
Date. Employee's
employment with the Company began as of January 8, 2007.
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4. Compensation.
4.1 Base
Salary. As
compensation for Employee's performance of Employee's duties hereunder, Company
shall pay to Employee a base salary of $175,000.00 per year, payable in
accordance with the normal payroll practices of Company, less required
deductions for state and federal withholding tax, social security and all other
employment taxes. In the event Employee's employment under this Agreement is
terminated by either party, for any reason, Employee will earn the Base Salary
pro rated to the date of termination. Employee's Base Salary shall be subject
to
review by the CEO/Board on an annual basis.
4.2 Equity.
Subject
to approval by the Board, Employee will be granted a stock option to purchase
500,000 shares of Company common stock. The exercise price of the Option
will be equal to the fair market value of the Company's common stock on your
Option
grant date. The Option will also be subject to the terms and conditions of
the
Company's
E2006 Stock Plan and form of stock option agreement, which you will be
required
to sign as a condition of receiving the Option. Subject to Employee's continued
employment, the Option shall vest as follows: a three (3) year vesting period
with the Option
vesting in equal quarterly installments with an initial cliff vesting period
of
six (6) months.
4.3 Bonus.
Employee
shall be eligible for an annual bonus per the terms and requirements
of the Company's senior management bonus plan. The annual bonus shall
be
in an amount up to and shall not exceed fifty percent (50%) of Employee's then
current annul base salary.
4.4 Customary
Fringe Benefits. Employee
will be eligible for all customary and usual fringe benefits generally available
to employees of Company subject to the terms and conditions of Company's current
benefit plans as operated for all U.S. resident staff by Administaff. Company
reserves the right to change or eliminate the fringe benefits on a prospective
basis, at any time.
5. Relocation
Allowance.
5.1 Relocation
Allowance. The
Company will reimburse Employee for reasonable expenses incurred in relocating
from Southlake, Texas to the San Francisco Bay Area and such relocation to
be
completed by a date to be mutually determined by the Employee and the Company.
Such relocation expenses shall not exceed $25,000. All such expenses shall
be
submitted with proper documentation within the agreed upon time
period.
6. Business
Expenses. Employee
will be reimbursed for all reasonable, out-of-pocket business expenses incurred
in the performance of Employee's duties on behalf of Company. To obtain
reimbursement, expenses must be submitted promptly with appropriate supporting
documentation in accordance with Company's policies.
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7. Termination
of Employee's Employment.
7.1 Termination
for Cause by Company. Although
Company anticipates a mutually rewarding employment relationship with Employee,
Company may terminate Employee's employment immediately at any time for Cause
if
the CEO/Company finds that good grounds exist for a "for cause" termination.
For
purposes of this Agreement, Cause shall mean (1) the Employee's theft,
dishonesty, willful misconduct, breach of fiduciary duty for personal profit,
or
falsification of any Company documents or records; (2) the Employee's
unauthorized use, misappropriation, destruction or diversion of any material
asset or corporate opportunity of the Company (including, without limitation,
the Employee's improper use or disclosure of the Company's confidential or
proprietary information or his failure to abide by Company policies relating
to
confidentiality or reasonable workplace conduct); (3) any intentional act by
the
Employee which has a material detrimental effect on the Company's reputation
or
business, (4) any material breach by the Employee of this Agreement and any
other agreement between the Company and Employee, including without limitation,
the Company's Employee Proprietary Rights Agreement/Non-Disclosure Agreement,
which breach is not cured within 15 days after Employee receives notice from
the
CEO specifying said breach; or (5) the Employee's conviction (including any
plea
of guilty or nolo contendere) of any criminal act involving fraud, dishonesty,
misappropriation or moral turpitude, or which impairs the Employee's ability
to
perform his duties with the Company. In the event Employee's employment is
terminated in accordance with this subsection 7.1, Employee shall be entitled
to
receive only the Base Salary then in effect, pro rated to the date of
termination. Employee will also be permitted to retain all rights to fringe
benefits and/or equity that had vested as of the date of his termination. All
other Company obligations to Employee pursuant to this Agreement will become
automatically terminated and completely extinguished. Employee will not be
entitled to receive the Severance described in subsection 7.2
below.
7.2 Termination
Without Cause by Company/Severance. Company
may terminate Employee's employment under this Agreement without Cause at any
time. In the
event
of such termination, Employee will receive (i) the Base Salary then in effect,
pro
rated
to the date of termination, and (ii) a "Severance Payment" equal to four (4)
months
of
Employee's Base Salary then in effect on the date of termination, less
applicable
withholding, payable in accordance with the Company's standard payroll
procedures following the effective date of the release of claims described
in
(b) herein. The Severance Payment (hereafter, referred to as "Severance") shall
be provided to Employee
subject to the following: (a) Employee complies with all surviving provisions
of
this
Agreement as specified in subsection 12.8 below; and (b) Employee executes
a
full general release in a form satisfactory to the Company, releasing all
claims, known or unknown, that Employee may have against Company arising out
of
or any way related to Employee's employment or termination of employment with
Company.
7.3 Voluntary
Resignation by Employee. Employee
may voluntarily resign Employee's position with Company, at any time on thirty
(30) days' advance written
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notice.
In the event of Employee's resignation, Employee will be entitled to receive
only the Base Salary for the notice period. All other Company obligations to
Employee pursuant to this Agreement will become automatically terminated and
completely extinguished. In addition, Employee will not be entitled to receive
the Severance described in subsection 7.2 above.
8. No
Conflict of Interest. During
the term of Employee's employment with Company,
Employee must not engage in any work, paid or unpaid, that creates an
actual
conflict of
interest
with Company. Such work shall include, but is not limited to, directly
or indirectly competing with Company in any way, or acting as an officer,
director,
employee, consultant, over 5% stockholder, volunteer, lender, or agent of any
business
enterprise of
which
is
in direct competition with the business in which Company
is now engaged or in which Company becomes engaged during the term of Employee's
employment with Company, as may be determined by the Company in its sole
discretion. If the Company believes such a conflict exists during the term
of
this Agreement, the Company may ask Employee to choose to discontinue the other
work or resign employment with Company if he chooses not to discontinue the
other work.
9. Confidentiality
and Proprietary Rights. As
a
condition of employment, Employee agrees to read, sign and abide by the terms
of
Company's Employee Proprietary Rights Assignment Agreement/Non-Disclosure
Agreement, which is provided with this Agreement and incorporated herein by
reference.
10. Nonsolicitation.
Employee
understands and agrees that Company's employees and any information regarding
Company employees are confidential and constitute trade secrets of the Company.
Employee agrees that during the term of
this
Agreement and for a period of one (1) year after the termination of employment
with the Company, Employee will not, separately or in conjunction with others,
encourage or cause others to solicit or personally encourage any employees
of
the
Company to terminate or alter their relationships with the Company
11. Agreement
to Arbitrate. In
the
event of any dispute or claim relating to or arising out of Employee's
employment relationship with the Company, this Agreement, or the termination
of
Employee's employment with the Company for any reason (including, but not
limited to, any claims of breach of contract, defamation, wrongful termination
or age, sex, sexual orientation, race, color, national origin, ancestry, marital
status, religious creed,
physical or mental disability or medical condition or other discrimination,
retaliation
or harassment), Employee and the Company agree that all such disputes
shall
be
fully resolved by confidential, binding arbitration conducted by a single
arbitrator through the American Arbitration Association ("AAA") under the AAA's
National Rules for the Resolution of Employment Disputes then in effect, which
are available online at the AAA's
website at www.adr.orq.
Claims
for breach of the Company's Employee Proprietary
Rights and Assignment Agreement/Non-Disclosure Agreement are
excluded.
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12. General
Provisions.
12.1 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
Employee's rights or obligations under this Agreement.
12.2 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.
12.3 Attorneys'
Fees. 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.
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 Interpretation;
Construction. The
headings set forth in this Agreement are for
convenience only and shall not be used in interpreting this Agreement. This
Agreement has been drafted by legal counsel representing Company, but Employee
has participated in the negotiation of its terms. Furthermore, Employee
acknowledges that Employee has had an opportunity to review and revise the
Agreement and have it reviewed by legal counsel, if desired, and, therefore,
the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Agreement.
12.6 Governing
Law. This
Agreement will be governed by and construed in accordance with the laws of
the
United States and the State of California. Each party consents to the
jurisdiction and venue of the state or federal courts in San Mateo County,
California, if applicable, in any action, suit, or proceeding arising out of
or
relating to this Agreement.
12.7 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; or (d) by certified or
registered mail, return receipt
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requested,
upon verification of receipt. Notice shall be sent to the addresses set forth
below, or such other address as either party may specify in
writing.
12.8 Survival.
Sections
8 ("No Conflict of interest"), 9 ("Confidentiality and Proprietary Rights"),
10
("Nonsolicitation"), 11 ("Agreement to Arbitrate"), 12 ("General Provisions")
and 13 ("Entire Agreement") of this Agreement shall survive Employee's
employment by Company.
13. Entire
Agreement. This
Agreement, including the Company Employee Proprietary
Rights Assignment Agreement/Non-Disclosure Agreement incorporated herein by
reference and Company's stock option plan and related option documents described
in subsection 4.2 of 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. This
Agreement may be amended or modified only with the written consent of Employee
and
the
Board, including without limitation any changes that may be necessary to
comply
with the provisions of Section 409A of the Code, to the extent applicable.
No
oral waiver, amendment or modification will be effective under any circumstances
whatsoever.
14. Authority
The
individual signing this Agreement on behalf of the Company has the authority
to
bind the Company to the terms of this Agreement and both parties will be
considered bound to the terms of this Agreement upon their signatures thereto
below.
Xxx,
we
are excited and pleased to have you join the PureDepth team.
Sincerely,
/s/
Xxxx Xxxxxxxxxxxx
Xxxx
Xxxxxxxxxxxx
Chief
Executive Officer
Date:
5/14/07
Acknowledged,
Accepted and Agreed:
/s/
Xxxxxxxx XxXxxxx
Xxxxxxxx
XxXxxxx
Date:
5/10/07
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