EXHIBIT 10.8
[FORM OF EMPLOYMENT AGREEMENT]
SIMPLE TECHNOLOGY, INC.
EMPLOYMENT AGREEMENT
THIS AGREEMENT is dated March 10, 2000, between Simple Technology, Inc.
("Employer"), a California Corporation, and _______________________("Employee").
In consideration of the mutual promises and covenants contained in this
Agreement, the parties agree as follows:
1. EMPLOYMENT DUTIES. Employer agrees to employ Employee in the
position of __________________________________, beginning on March 10, 2000, and
Employee agrees to serve in that position or in such other positions (including
positions with a wholly-owned subsidiary or partnership controlled by Employer)
as Employee may be assigned from time to time by Employer. Employee shall report
to the Employer's Board of Directors or, to such other person as management
designates. Employee shall have such duties as are assigned from time to time by
Employer and as are consistent with such position. In connection with Employee's
employment by Employer, Employee shall be based at Employer's place of business
at 3001 and 0000 Xxxxxxx Xxxxxx, Xxxxx Xxx, XX 00000.
2. TIME AND EFFORT, EXCLUSIVITY OF EMPLOYMENT. Employee shall faithfully,
honestly and diligently serve Employer, devote all of Employee's working time,
attention, knowledge and skill to Employee's employment hereunder and use
Employee's best efforts to promote the business and interests of Employer and to
perform the duties and responsibilities that are assigned to Employee. Employer
shall be entitled to all of the benefits arising from or incident to the duties
of Employee pursuant to this Agreement.
3. COMPENSATION. As compensation for the services to be rendered by
Employee, Employer shall pay Employee in equal semi-monthly installments of
$___________________ (less normal withholding for state and federal income
taxes and employee portions of FICA, SDI, and any other required or
Employee-authorized deductions), together with such additional terms of
compensation, if any, as set forth in this Agreement, Employee's employment
offer letter and/or as determined by Employer from time to time. Employee
shall also be entitled to participate in such employee benefit programs as
may be offered by Employer, subject to the terms and eligibility requirements
established by Employer for such programs. The parties contemplate that
compensation adjustments may be made from time to time at the discretion of
Employer. Such adjustments shall be incorporated into and form a part of this
Agreement.
4. TERM AND TERMINATION. Employee's employment with Employer is "at will,"
meaning that either Employee or Employer may terminate the employment
relationship at any time on notice to the other, with or without cause, for any
reason or no reason, and with no liability of Employer to Employee other than
for wages accrued to the date of termination. Employer may also discipline,
demote or alter the terms of employment of Employee at any time, with or without
cause or advance notice.
5. NON-COMPETITION.
(a) For the duration of Employee's employment with Employer and for a
period of one (1) year after the date of termination of Employee's employment
with Employer, whether terminated by Employee or Employer, Employee will not, as
an employee, agent, consultant, advisor, independent contractor, general
partner, officer, director, stockholder, investor, lender or guarantor of any
corporation, partnership or other entity, or in any other capacity, directly or
indirectly:
(i) Engage in any employment, business or activity that
competes or may compete with Employer's business or reasonably anticipated
business or permit Employee's name to be used in connection with, or assist, any
person or organization in competing with or preparing to compete with Employer;
or
(ii) Solicit, divert, or take away or assist any competitor or
potential competitor of Employer in soliciting, diverting or taking away any
person, firm, corporation or other entity from Employer who is or was a past or
present customer or supplier of Employer;
(iii) Induce or attempt to induce any person, who at the time
of such inducement is an employee of Employer, to perform work or services for
any other person or entity other than Employer; or
(iv) Permit other employees of Employer to be used in connection
with a business which is competitive or substantially similar to the business of
Employer.
(b) Notwithstanding the foregoing, Employee may own, directly or
indirectly, solely as an investment, up to one percent (1%) of any class of
"publicly traded securities" of any person or entity which owns a business that
is competitive or substantially similar to the Employer's business. The term
"publicly traded securities" shall mean securities that are traded on a national
securities exchange or listed on the National Association of Securities Dealers
Automated Quotation System.
(c) If any restriction set forth in this non-competition section is
found by a court to be unreasonable, then Employee agrees and hereby submits, to
the reduction and limitation of such prohibition to such area or period as shall
be deemed reasonable. Employee acknowledges that the services that Employee will
provide to Employer under this agreement are unique and that irreparable harm
will be suffered by Employer in the event of the breach by Employee of any of
its obligations under this agreement, and that Employer may be entitled, in
addition to its other rights, to enforce obligations set forth in this agreement
by an injunction or decree of specific
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performance. Any claims asserted by Employee against Employer shall not
constitute a defense in any injunction action brought by Employer to obtain
specific enforcement of said obligations.
6. OBSERVANCE OF RULES AND REGULATIONS. Employee agrees to abide by all
Employer's policies, rules and regulations as adopted or amended from time to
time by Employer in its discretion.
7. EMPLOYEE NONDISCLOSURE AND INVENTION ASSIGNMENT AGREEMENT. Employee's
employment is subject to the requirement that Employee sign, observe, and agree
to be bound, both during and after Employee's employment, by the provisions of
the Employer's Employee Nondisclosure and Invention Assignment Agreement, a copy
of which is being furnished to Employee at the same time as this Agreement.
Employee's execution of the Employee Nondisclosure and Invention Assignment
Agreement is an express condition precedent to Employee's commencement and
continuation of employment with Employer.
8. REMEDIES. Employee acknowledges that a breach or threatened breach by
Employee of the provisions of Sections 5 and 7 of this Agreement or Sections 2
or 4 of the Employee Nondisclosure and Invention Assignment Agreement will
result in Employer and its affiliates suffering irreparable harm which cannot be
calculated or fully or adequately compensated by recovery of damages alone.
Accordingly, Employee agrees that Employer shall be entitled to temporary and
permanent injunctive relief, specific performance and other equitable remedies,
in addition to any other relief to which Employer may become entitled.
9. NOTICES. Any notice or other communication required or permitted to be
given under the Agreement shall be in writing and shall be given by prepaid
first class mail or by hand-delivery. Any such notice or other communication, if
mailed by prepaid first class mail shall be deemed to have been received on the
fourth business day after the postmarked date, or if delivered by hand, shall be
deemed to have been received by Employer at the time it is delivered to the
applicable address noted below or by Employee at the time it is received by
Employee or at the time it is delivered to the applicable address noted below.
Notices and other communications shall be addressed as follows:
(a) If to Employer:
Simple Technology, Inc.
0000 Xxxxxxx Xx.
Xxxxx Xxx, XX 00000
Attn: Human Resources Dept.
(b) If to Employee:
c/o Simple Technology, Inc.
0000 Xxxxxxx Xx.
Xxxxx Xxx, XX 00000
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Either party may change its address for the purposes of this Agreement by giving
written notice of such change to the other party.
10. INVALIDITY OF PROVISIONS. If any provision of this Agreement should be
declared to be void or unenforceable by a court of competent jurisdiction from
which no further appeal lies or is taken, that provision shall be deemed to be
severed from this Agreement and the remaining provisions shall not be affected
and shall remain valid and enforceable.
11. ENTIRE AGREEMENT, AMENDMENT, WAIVER. This Agreement, together with the
Employer's Employee Nondisclosure and Invention Assignment Agreement and the
Employer's employment offer letter, if any, to Employee (each of which is
incorporated herein), constitute the entire agreement between the parties with
respect to the subject matter contained in such documents, and supersede all
prior agreements relating to the same subject matter. There are no other
representations, warranties, conditions, agreements or acknowledgments, which
form a part of or affect this Agreement. Except as provided in this Agreement,
no waiver or termination shall be binding unless accepted in writing by both
parties. No waiver of any provision of this Agreement shall constitute a waiver
of any other provision and no waiver of any provision of this Agreement shall
constitute a continuing waiver unless otherwise expressly provided.
12. GOVERNING LAW AND FORUM SELECTION. This Agreement shall be governed by, and
interpreted and enforced in accordance with, the laws of the State of California
(excluding any conflict of law rule or principle, which might refer such
construction to the laws of another jurisdiction). Employer and Employee
irrevocably submit to jurisdiction of the courts of Orange County, California,
for the purpose of obtaining an order to compel submission to binding
arbitration pursuant to Section 13 below.
13. BINDING ARBITRATION. Employer and Employee agree to submit to final and
binding arbitration before J-A-M-S/ENDISPUTE in Orange County, California, all
past, present, and future claims or disputes in any way arising out of or
relating to Employee's employment with Employer, including, without limitation
(except as expressly excluded below in this Section), any claims or disputes
concerning the separation of that employment; any other adverse personnel action
by Employer; any claims by Employee against Employer, or by Employer against
Employee, arising out of or related to any federal, state or local law, statute
or regulation prohibiting employment discrimination or harassment; any public
policy, and any other claim for personal, emotional, physical or economic injury
(individually or collectively, "Covered Claims"). The only claims or disputes
excluded from binding arbitration under this Agreement are the following: any
claim by Employee for workers' compensation benefits or for benefits under an
Employer plan that provides its own arbitration procedure; and any claim by
Employer for equitable relief, including but not limited to, a temporary
restraining order, preliminary injunction or permanent injunction against
Employee.
(a) The party asserting a Covered Claim must give written notice to the
other party within 180 days of the date of the accrual of such claim for statute
of limitations purposes. If such notice is not given within this time period,
the claim shall be deemed waived.
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(b) Prior to initiating arbitration, an Employee shall attempt in good
faith to resolve a Covered Claim through means of conciliation with Employer. An
Employee asserting a Covered Claim ordinarily must attempt to conciliate the
matter first in accordance with Employer's Conflict Resolution Policy.
(c) If Employer's conciliation process does not produce a satisfactory
resolution, within 30 days thereafter the aggrieved party may demand arbitration
of a Covered Claim. The arbitration shall be conducted in accordance with the
then-existing Rules and Procedures of J-A-M-S/ENDISPUTE for Arbitration of
Employment Disputes, except that the mediation and optional appeal procedures of
J-A-M-S/ENDISPUTE shall not be required. The Arbitrator shall not have the power
to commit errors of law or legal reasoning, or to grant relief, which would not
be legally available in a California court.
(d) This Agreement to submit all Covered Claims to binding arbitration
in no way alters Employee's at-will employment with Employer and does not
require Employer to provide Employee with any type of progressive discipline.
14. ATTORNEY'S FEES AND COSTS. Should any legal action (other than binding
arbitration under Section 13 above, in which each party shall bear its, his or
her own fees and costs) be required to resolve any dispute over the meaning or
enforceability of this Agreement or to enforce the terms of this Agreement, the
prevailing party shall be entitled to recover its, his or her reasonable
attorneys' fees and costs incurred in such action, in addition to any other
relief to which that party may be entitled.
15. ACKNOWLEDGMENTS AND REPRESENTATIONS. Employee acknowledges, represents and
agrees that:
(a) Employee has read and understands the terms of this Agreement and
Employee's obligations hereunder, and Employee agrees to abide by the terms of
this Agreement;
(b) Employer has made no promises or representations concerning future
promotions, compensation, or other terms and conditions of employment other than
as expressly stated in this Agreement; and,
(c) By accepting employment under this Agreement, Employee has not
relied upon or been induced to accept employment with Employer on the basis of
any such promises or representations.
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IN WITNESS WHEREOF, the parties have executed this Agreement.
EMPLOYEE
------------------------------------
Signature
SIMPLE TECHNOLOGY, INC.
By: /s/ Xxxx Xxxxxx
-----------------
Name: Xxxx Xxxxxx
Title: Vice President of Strategic Planning
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SCHEDULE OF SUBSTANTIALLY IDENTICAL AGREEMENTS
The filed agreement is substantially identical in all material respects to
the Company's agreements with the following employees except for the material
details set forth below:
EMPLOYEE POSITION SEMI-MONTHLY SALARY SIGNATURE
-------- -------- ------------------- ---------
Xxxxxxx Xxxxxxxxx CEO and Chairman of the $18,333.33 /s/ Xxxxxxx Xxxxxxxxx
Board
Xxxx Xxxxxxxxx President $18,333.33 /s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx Chief Technology Officer, $18,333.33 /s/ Xxxx Xxxxxxxxx
Chief Operating Officer
and Secretary
Xxx Xxxxx Chief Financial Officer $6,250.00 /s/ Xxx Xxxxx
Xxxxxxx Xxxxx Vice President of OEM $10,416.67 /s/ Xxxxxxx Xxxxx
Division
Xxxx Xxxxxx Vice President of $8,333.33 /s/ Xxxx Xxxxxx
Strategic Planning and
General Counsel
Xxxxx Xxxxxxxxx Vice President of $6,666.67 /s/ Xxxx Xxxxxxxxx
Operations
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