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EXHIBIT 10.10
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made effective
as of January 1, 1999 (the "Effective Date"), by and between PLANET POLYMER
TECHNOLOGIES, INC., a California corporation (the "Company"), and Xxxxxx X.
Xxxxxxxxx (the "Executive"), with respect to the following facts:
WHEREAS, The Company desires to retain the Executive and to avail itself
of the Executive's skill, knowledge and expertise to ensure the successful
management and growth of the Company.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions set forth herein, and in consideration of the employment of Executive
by the Company, the parties hereto agree as follows:
1. EMPLOYMENT AND TERM.
a. EMPLOYMENT. The Company hereby engages the Executive to serve
as a key executive of the Company to serve in such capacity or capacities as may
be determined by the Board of Directors (the "Board") and the Executive hereby
accepts such engagement by the Company, upon the terms and conditions set forth
herein.
b. TERM. The Company agrees to continue the Executive's
employment, and the Executive agrees to remain in the employ of the Company,
from the Effective Date until the earlier of (i) the date that is five (5) years
from the Effective Date (the "Term of Employment") or (ii) the date when the
Executive's employment terminates pursuant to the provisions of Sections 6 and 7
this Agreement. Upon the expiration of the five year Term of Employment, the
Consulting Agreement, a form of which is attached as Exhibit A (the "Consulting
Agreement"), shall have no effect and shall not be binding upon either the
Company or Executive, provided that Executive's employment has not been
terminated with or without cause or Executive has not resigned prior to the
expiration of the Term of Employment.
2. DUTIES OF THE EXECUTIVE.
a. DUTIES. The Executive shall perform all the duties and
obligations as shall be established by the bylaws of the Company and, from time
to time, by the Board of Directors of the Company. The Executive shall perform
the services contemplated herein faithfully, diligently and to the best of his
ability. The Executive shall report directly to and shall be responsible to the
Board of Directors of the Company regarding his services.
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b. EXCLUSIVE SERVICES. The Executive shall devote his entire
business time, attention, energies, skills, learning and best efforts to the
business of the Company. The Executive may serve on the board of directors of
other corporations only with the express prior written consent of the Company's
Board of Directors. In addition, the Executive may participate in social, civic
or professional associations only so far as such services do not materially
interfere with the duties and obligations of the Executive contemplated by this
Agreement.
3. COMPENSATION.
a. SALARY. In consideration of the Executive's services
hereunder, the Company shall pay or cause to be paid to the Executive, in
accordance with the Company's normal payroll practices, a salary (the "Salary")
of $210,000 per year, in equal monthly payments, less required deductions for
state and federal withholding tax, Social Security and other employee taxes or
on such other schedule as the Company may adopt for its other employees
generally. Such Salary shall be pro-rated for any partial employment on the
basis of a 365-day fiscal year.
b. ADJUSTMENT TO SALARY. The Board of Directors shall review
Executive's performance and the Company's financial and operating results on at
least an annual basis and may in its sole discretion increase Executive's base
salary as it deems appropriate based on such review.
c. BONUS. The Executive shall be entitled to a bonus of $25,000
payable within 60 days after the close of business for the fiscal year ending
December 31, 1999. For every year thereafter, annual bonuses, if approved by the
Board of Directors, are anticipated to be 10% or more of Executive's base Salary
if Executive achieves or exceeds certain performance goals jointly established
by the Board and the Executive.
d. OPTIONS. Upon execution of this Agreement, Executive will be
granted an option (the "Option") to purchase up to 125,000 shares of the
Company's Common Stock (the "Option Shares") at a price equal to 110% of the
fair market value of such stock on the date of grant. 25,000 of the Option
Shares shall vest upon execution of this Agreement, 35,000 of the Option Shares
shall vest on the first anniversary of this Agreement, 35,000 on the second
anniversary of this Agreement, and 30,000 of the Option Shares shall vest on the
third anniversary of this Agreement.
4. EXECUTIVE BENEFITS.
a. VACATION. The Executive shall be entitled to six (6) weeks of
vacation per year, without reduction in salary. Any vacation time not used in
any year shall accumulate and carry forward to the next year, up to a maximum
accrual at any one time of eight (8) weeks.
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b. BENEFITS. During the term of his employment under this
Agreement, the Executive shall be entitled to the full benefits for which
Executive is eligible under the employee benefit plans and executive
compensation programs maintained by the Company, including (without limitation)
pension plans, savings or profit-sharing plans, deferred compensation plans,
supplemental retirement or excess-benefit plans, stock option, incentive or
other bonus plans, life, disability, health, accident and other insurance
programs, paid vacation and sabbatical, and similar plans or programs, subject
in each case to the generally applicable terms and conditions of the plan or
program in question.
c. FRINGE BENEFITS. The Executive, the Executive's spouse and
children who qualify as dependents under the Internal Revenue Code shall receive
all group and supplementary insurance and pension plan benefits and any other
benefits on the same basis as the Company may from time to time offer to its
senior management employees and their qualifying spouses and children generally,
including accidental death and dismemberment coverage.
5. REIMBURSEMENT FOR BUSINESS EXPENSES.
a. BUSINESS EXPENSES. The Executive shall be reimbursed by the
Company for all ordinary and necessary expenses incurred by the Executive in the
performance of his duties during the term of this Agreement. Such expenses shall
be limited to entertainment, meals, travel expenses, conventions, meetings and
seminars. The Executive shall keep accurate and complete records of all such
expenses, including, but not limited to, proof of payment, and shall account
fully for all such expenses. Each such expenditure shall be reimbursable within
forty-five (45) days of receipt by the Company of adequate records and
documentary evidence required by federal and state statutes and regulations
issued by the appropriate taxing authorities for the substantiation of that
expenditure as an income tax deduction. Failure to provide evidence of such
expenditure within fifteen (15) days of the incursion of the expenditure may
result in forfeiture of the right to recover.
b. MAINTENANCE OF RECORDS. With respect to the reimbursement of
business expenses, the Executive shall acquire and maintain, in a form required
by the state or federal tax authorities, copies of all receipts, records of
payment, bills or other documents evidencing expenditures for business purposes.
Such records shall be maintained for all time periods required by applicable
law. The Executive further understands that he shall not be entitled to
reimbursement for any business expense for which such records are not
maintained. Additionally, the Executive understands that should, upon audit, it
be determined that the business records which he maintained for expenses for
which he was reimbursed are found to be inadequate, and the tax deductions for
such expenses are denied to the Company, the Executive shall reimburse the
Company for each such denied deduction.
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6. TERMINATION.
a. DEFINITION. As used herein, the following definitions shall
apply:
i. "CAUSE" shall mean the termination of employment of
Executive shall have taken place as a result of:
(1) The Executive's willful failure or refusal to
perform the duties of his employment, in the estimation of the Board of
Directors, under the provisions of this Agreement, including, without
limitation, the breach by Executive of Section 2(b) hereof, which failure is not
cured within ten (10) days after receipt of written notice;
(2) The Executive's knowing participation in any
activity which, in the estimation of the Board of Directors, is competitive with
or intentionally injurious to the Company and which is not cured to the
satisfaction of the Board of Directors after ten (10) days written notice by the
Board of Directors of a breach of this Section 6(a)(ii)(2);
(3) The Executive's commission of any fraud
against the Company, or unauthorized use or appropriation of any funds or
properties of the Company for the Executive's personal gain;
(4) The Executive's conviction of a felony or any
crime involving moral turpitude;
(5) The Executive's knowing misappropriation of
trade secrets or proprietary information of the Company or of third parties; or
(6) The breach by Executive of the Proprietary
Information Agreement (as defined below).
ii. "CHANGE IN CONTROL" shall mean (a) any merger or
consolidation of the Company with, or any sale of all or substantially all of
the Company's assets to, any other corporation or entity, unless as a result of
such merger, consolidation or sale of assets the holders of the Company's voting
securities prior thereto hold at least fifty percent (50%) of the total voting
power represented by the voting securities of the surviving or successor
corporation or entity after such transaction, or (b) the acquisition by any
Person or Beneficial Owner (as such terms are defined in the Securities Exchange
Act of 1934, as amended, or the rules and regulations thereunder), 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.
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iii. "CONSTRUCTIVE TERMINATION" shall mean (i) a
reduction in Executive's salary or a material reduction in benefits not agreed
to by Executive (except in connection with a decrease to be applied because the
Company's performance has decreased and which is also applied on the same basis
to other officers, and excluding the substitution of substantially equivalent
compensation and benefits), or (ii) a material change in Executive's
responsibilities not agreed to by Executive.
iv. "DISABILITY" shall mean the total mental or physical
incapacity of the Executive, which continues for not less than six (6)
consecutive months and is based upon a certification of such incapacity by
Executive's regularly attending physician, or, if not available, then by a duly
licensed physician selected by the Board of Directors of the Company.
b. TERMINATION BY THE COMPANY. The Company may terminate
Executive's employment at any time, for any reason or for no reason by giving
notice of termination to Executive. Executive's termination shall be effective
immediately on the date of such notice of termination (the "Notice Date").
i. TERMINATION WITHOUT CAUSE. If the Company terminates
Executive's employment during the term of this Agreement for any reason
whatsoever, other than a termination for Cause or a termination upon Change in
Control, then upon Executive's furnishing to the Company an executed waiver and
release of claims, a form of which is attached hereto as Exhibit B (the "Waiver
and Release"), Executive shall agree to be engaged to perform services pursuant
to the Consulting Agreement. In addition, Executive shall be entitled to receive
as compensation Executive's Salary as of the date of termination prorated to the
date of termination and any accrued but unused vacation pay. No other amounts
shall be payable to Executive except pursuant to the Consulting Agreement.
ii. TERMINATION FOR CAUSE. If the Company terminates
Executive's employment for Cause during the term of this Agreement, Executive
shall be entitled to receive as compensation Executive's Salary as of the date
of termination prorated to the date of termination, and any accrued but unused
vacation pay, and Executive shall agree to be engaged to perform services
pursuant to the consulting Agreement; provided that, at the Company's sole
option, the Company may elect not to engage Executive under the Consulting
Agreement, in which event Executive shall receive only the prorated salary to
the date of termination and any accrued but unused vacation pay.
iii. TERMINATION UPON CHANGE IN CONTROL; CONSTRUCTIVE
TERMINATION. If the Company terminates Executive's employment during the term of
this Agreement for any reason within 90 days of a Change in Control, or if
Executive terminates his employment hereunder by giving written notice to the
Company within 90
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days of any Constructive Termination, then upon Executive's furnishing to the
Company an executed Waiver and Release, Executive shall agree to be engaged to
perform services pursuant to the Consulting Agreement. In addition, Executive
shall be entitled to receive as compensation Executive's Salary as of the date
of termination prorated to the date of termination and any accrued but unused
vacation pay. No other amounts shall be payable to Executive except pursuant to
the Consulting Agreement.
c. TERMINATION ON DEATH OR DISABILITY. This Agreement shall
terminate without notice upon the date of Executive's death or Disability. Upon
such termination, upon Executive's or his estate or personal representative's
furnishing to the Company an executed Waiver and Release, the Executive or his
estate or personal representative, as the case may be, shall be entitled to
receive the Executive's then current salary and benefits for a period of one (1)
year following the date of Executive's death or Disability. In addition, the
Executive shall receive disability payments as provided in the Company's
standard benefit plans.
d. TERMINATION BY THE EXECUTIVE. If Executive terminates his
employment hereunder by giving prior written notice to the Company, Executive
shall be entitled to receive as compensation Executive's Salary as of the date
of termination prorated to the date of termination, and any accrued but unused
vacation pay, and Executive shall agree to be engaged to perform services for
the Company pursuant to the Consulting Agreement, provided that, at the
Company's sole option, the Company may elect not to engage Executive under the
Consulting Agreement, in which event Executive shall only receive the prorated
salary to the date of termination and any accrued but unused vacation pay.
e. WAIVER OF NOTICE. Any waiver of notice shall be valid only if
it is made in writing and expressly refers to the applicable notice requirement
in this Section.
7. PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT. The Executive shall
enter into and abide by the terms of the Proprietary Information and Inventions
Agreement (the "Proprietary Information Agreement") in the form attached hereto
as Exhibit C.
8. SUCCESSORS.
a. COMPANY'S SUCCESSORS. Any successors to the Company (whether
direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's business
and/or assets shall assume this Agreement and agree expressly to perform this
Agreement in the same manner and to the same extent as the Company would be
required to perform it in the absence of a succession. For all purposes under
this Agreement, the term "Company" shall include any successor to the Company's
business and/or assets which executes and delivers the
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assumption agreement described in this subsection (a) or which becomes bound by
this Agreement by operation of law.
b. EXECUTIVE'S SUCCESSORS. This Agreement and all rights of the
Executive hereunder shall inure to the benefit of, and be enforceable by, the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
9. NOTICE. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or five days after being mailed by U.S. registered or
certified mail return receipt requested and postage prepaid. In the case of the
Executive, mailed notices shall be addressed to him at the home address which he
most recently communicated to the Company in writing. In the case of the
Company, mailed notices shall be addressed to its corporate headquarters, and
all notice shall be directed to the attention of its Secretary.
10. TERMINATION OF AGREEMENT. The provisions of Sections 1, 2, 3, 4,
5 and 6 of this Agreement shall terminate five (5) years from the date of this
Agreement, and no payments, compensation or other benefits under such Sections
of this Agreement shall be required for any termination of employment occurring
after five (5) years from the date of this Agreement. Such termination shall not
affect any other provisions of this Agreement, and all such other provisions
shall remain in full force and effect.
11. MISCELLANEOUS PROVISIONS.
a. WAIVER. No provisions of this Agreement shall be modified,
waived or discharged unless the modification, waiver or discharge is agreed to
in writing and signed by the Executive and by the Chairman of the Board or a
director of the Company (other than the Executive). No waiver by either party of
any breach of, or of compliance with, any condition or provisions of this
Agreement by the other party shall be considered a waiver of any other condition
or provision or of the same condition or provision at another time.
b. WHOLE AGREEMENT. No agreements, representations or
understandings (whether oral or written and whether express or implied) which
are not expressly set forth in this Agreement, including the exhibits hereto,
have been made or entered into by either party with respect to the subject
matter hereof.
C. CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California.
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d. SEVERABILITY. The invalidity or unenforceability of any
provisions or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
e. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
San Diego County, California, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. The Executive shall be
entitled to receive attorneys' fees and costs in connection with any dispute
under this Agreement if he is the prevailing party.
f. NO ASSIGNMENT OF BENEFITS. The rights of any person to
payments or benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by operation of
law, including (without limitation) bankruptcy, garnishment, attachment or other
creditor's process, and any action in violation of this subsection (f) shall be
void.
g. EMPLOYMENT AT WILL; LIMITATION OF REMEDIES. The Company and
the Executive acknowledge that the Executive's employment is at will, as defined
under applicable law. If the Executives employment terminates for any reason,
the Executive shall not be entitled to any payments, benefits, damages, awards
or compensation other than as provided by this Agreement.
h. EMPLOYMENT TAXES. All payments made pursuant to this Agreement
will be subject to withholding of applicable taxes.
i. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized officer, as of the day and year
first above written.
PLANET POLYMER TECHNOLOGIES, INC.
By: /s/ XXXXXX XXXXXXXX
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EXECUTIVE
/s/ XXXXXX X. XXXXXXXXX 11/18/98
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Xxxxxx X. Xxxxxxxxx, Ph.D.
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EXHIBIT A
CONSULTING AGREEMENT
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CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into
effective as of January 1, 1999 by and between PLANET POLYMER TECHNOLOGIES,
INC., a California corporation (the "Company") and XXXXXX X. XXXXXXXXX
("Consultant").
A. The Company designs, develops, manufactures and markets polymer
materials;
B. Consultant is a key executive of the Company pursuant to an
employment agreement dated as of the date hereof (the "Employment Agreement");
and
C. Because of Consultant's intimate knowledge of the business of the
Company, the Company desires the option to engage the services of Consultant,
and Consultant desires to be so engaged, upon notice of termination of
employment pursuant to the Employment Agreement.
NOW, THEREFORE, in consideration of the above facts and the mutual
promises set forth in this Agreement, the parties agree as follows:
1. SERVICES. In the event Consultant's employment under the Employment
Agreement is terminated, by either the Company or by Consultant, for any reason
other than death or disability, then for a period of two (2) years following the
date of either party's notice to the other of such termination (the "Notice
Date"), the Company shall engage Consultant and Consultant hereby agrees to be
engaged to perform the services and undertake the duties and responsibilities
set forth in Schedule A attached hereto and incorporated herein (collectively,
the "Services"), provided that, at the Company's sole option, the Company may
elect within 30 days of the Notice Date, in the event of a termination by the
Company for "cause" pursuant to Section 6(b)(ii) of the Employment Agreement or
the termination by Consultant pursuant to Section 6(d) of the Employment
Agreement not to engage Consultant under this Agreement. Consultant agrees to
render the Services under the terms and conditions set forth in this Agreement.
2. TERM. The term of this Agreement (the "Term") shall commence upon the
Notice Date and shall remain in full force and effect for two (2) years
following the Notice Date. In the event the Company does not elect to engage
Consultant within 30 days of the Notice Date in the event of a termination by
the Company for "cause" pursuant to Section 6(b)(ii) of the Employment Agreement
or the termination by Consultant pursuant to Section 6(d) of the Employment
Agreement, then this Agreement shall have no effect and shall not be binding
upon either the Company or upon Consultant. In addition, the Company, may, at
its sole option, elect to terminate this Agreement prior to the expiration of
the Term if the Company terminated Consultant's employment for "cause" or if
Consultant terminated his employment with the Company. In no event may
Consultant terminate this Agreement.
3. CONSULTING FEES. As payment for the Services, Consultant shall
receive cash fees as set forth in Schedule B attached hereto and incorporated
herein, which shall constitute complete payment for the Services. The Company
shall be entitled to set off against the consulting fees any other income
Consultant receives during the Term from other employment or
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from contracting engagements with any entity other than the Company. Consultant
agrees to immediately inform the Company of any other such income he earns
during the Term.
4. NO OTHER BENEFITS. During the Term, Consultant shall not be entitled
to any other compensation or benefits, including benefits provided generally to
employees of the Company, and Consultant's compensation shall not be subject to
withholding, unless, in the Company's view, withholding is required by
applicable law.
5. CONFIDENTIAL INFORMATION. In connection with the performance of
Services hereunder, Consultant may become familiar with trade secrets and
confidential information of the Company (which shall include all trade secrets
and work product resulting from Consultant's provision of the Services to the
Company), which derive independent economic value, actual or potential, from not
being generally known to the public or to other persons who can obtain economic
value from its disclosure or use ("Confidential Information"). Except as may be
reasonably necessary while providing the Services, Consultant agrees that,
during the Term of this Agreement and thereafter, Consultant and any agents and
employees of Consultant will not disclose or utilize any of the Confidential
Information (including without limitation details regarding the Company's
services, plans for new services, supplier and customer information and
relationships, information regarding the Company's employees, and business and
financial information relating to the actual or planned business, products,
practices and techniques of the Company) to which Consultant has been privy,
unless Consultant becomes legally required to disclose any such Confidential
Information, in which event Consultant shall provide the Company with prompt
notice thereof so that the Company may seek a protective order or other
appropriate remedy. Upon the termination of this Agreement, Consultant shall
deliver to the Company all equipment, notes, documents, memoranda, reports,
files, books, correspondence, lists or other written or graphic records and the
like belonging to the Company which are or have been in Consultant's possession
or control.
6. PRESERVATION OF CONFIDENTIAL INFORMATION; NONCOMPETITION.
Consultant agrees that in order to protect the Confidential
Information of the Company and in consideration of the fees receives hereunder
and the Company's execution of the Employment Agreement, during the Term of this
Agreement, Consultant shall not engage as an advisor, principal, agent, partner,
officer, director, stockholder, employee, member of any association or otherwise
in any business or activity conducted within the United States or Canada which:
6.1 is substantially similar to any business or activity of the
Company as the same is conducted or proposed to be conducted (as evidenced by a
written plan) by the Company as of the first day of the Term; or
6.2 is competitive with any business or activity of the Company
as the same is conducted or proposed to be conducted (as evidenced by a written
plan) by the Company on the first day of the Term.
7. CUSTOMERS AND EMPLOYEES. Consultant agrees that during the Term and
for a period of one year thereafter, he will not solicit or cause to be
solicited (i) any of the existing
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customers of the Company for purposes of obtaining their custom or trade for a
business which is competitive with the business which is conducted by the
Company as of the Notice Date or during the Term, or (ii) any of the existing
employees of the Company for purposes of obtaining their employment services.
8. SEVERABILITY. To the extent any provision of this Agreement shall be
adjudicated to be invalid or unenforceable, it shall be considered deleted
herefrom and the remainder of such provision and of this Agreement shall be
unaffected, such deletion to apply only with respect to the operation of this
Agreement in the particular jurisdiction in which such adjudication is made. In
furtherance and not in limitation of the foregoing, should the duration or
geographical extent of, or business activities covered by, any provision of this
Agreement be in excess of that which is valid and enforceable under applicable
law, then such provision shall be construed to cover only the duration, extent
or activities which may validly and enforceably be covered.
9. REMEDIES. In any event of a breach of Consultant's obligations under
this Agreement, Consultant agrees that (a) any and all proceeds, funds, payments
and proprietary interests, of every kind and description, arising from, or
attributable to, such breach shall be the sole and exclusive property of the
Company and (b) the Company shall be entitled to recover any additional actual
damages incurred as a result of such breach.
10. INJUNCTIVE RELIEF. Consultant understands and agrees that the
Company could not be reasonably or adequately compensated in damages in an
action at law for Consultant's breach of his obligations under this Agreement.
Accordingly, Consultant specifically agrees that the Company shall be entitled
to an injunction enjoining Consultant or any person or persons acting for or
with Consultant in any capacity whatsoever from violating any of the terms
herein. This provision with respect to injunctive relief shall not diminish the
right of the Company to claim and recover damages pursuant to Section 9 in
addition to injunctive relief.
11. REPRESENTATIONS AND WARRANTIES. Consultant represents and warrants
that (a) Consultant is not restricted or prohibited, contractually or otherwise,
from entering into and performing each of the terms and covenants contained in
this Agreement, and (b) Consultant's execution and performance of this Agreement
is not a violation or breach of any other agreement to which Consultant is a
party.
12. GOVERNING LAW. This Agreement is made in San Diego, California and
shall be interpreted and enforced under the internal laws of the State of
California.
13. ENTIRE AGREEMENT. This Agreement and any agreements referenced
herein constitute the entire agreement between the parties and may be waived,
modified or amended only by an agreement in writing signed by both parties.
14. ASSIGNMENT. This Agreement shall inure to the benefit of, and be
binding upon, the successors and permitted assigns of the parties hereto. This
Agreement may not be assigned by Consultant. This Agreement may not be assigned
by the Company except in connection with a merger of the Company or pursuant to
the sale, transfer or other conveyance of all or substantially all of the assets
of the Company.
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15. WAIVER. No covenant, term or condition of this Agreement or breach
thereof shall be deemed waived unless the waiver is in writing, signed by the
party against whom enforcement is sought, and any waiver shall not be deemed to
be a waiver of any preceding or succeeding breach of the same or any other
covenant, term or condition.
16. NOTICE. All notices and other communications required or permitted
to be given under this Agreement shall be in writing and shall be deemed to have
been given if delivered personally or sent by certified mail, return receipt
requested, postage prepaid, to the parties at the following addresses or to such
other address as either party to this Agreement shall specify by notice to the
other:
If to Company:
PLANET POLYMER TECHNOLOGIES, INC.
0000 Xxxxxxxxxxxx Xxx., Xxxxx X
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Chairman
If to Consultant:
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17. HEADINGS. Headings or captions of paragraphs or sections of this
Agreement are for convenience of reference only and shall not be considered in
the interpretation of this Agreement.
18. ATTORNEY CONSULTATION. Each party has been informed of his/its right
to consult with his/its attorney prior to signing this Agreement and has either
done so or has considered the matter and decided not to do so.
The Company:
PLANET POLYMER TECHNOLOGIES, INC.
a California corporation
By:______________________________
Name: ___________________________
Title: ____________________________
Consultant:
/s/ XXXXXX X. XXXXXXXXX
----------------------------------
Xxxxxx X. Xxxxxxxxx
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SCHEDULE A
SERVICES, DUTIES AND RESPONSIBILITIES
During the Term, Consultant shall, upon request, consult with the
Company by telephone, by mail and in person from time to time on a part-time
basis during regular business hours. The consultation shall concern the
management, operation, research, product development, marketing, sales,
purchasing, leasing, financing and other aspects of the business of the Company,
and may include Consultant's direct contacting of third parties at the
reasonable request of the Company. Unless otherwise agreed in writing by the
parties, the consultation shall not exceed ten (10) hours per week on average
during the Term.
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SCHEDULE B
CONSULTING FEE
The Company shall pay to Consultant for the Services, a consulting fee
equal to the Salary as defined in the Employment Agreement or Consultant's
salary on the Notice Date, whichever is higher, paid according to the Company's
regular payroll during the Term as provided herein.
The Company shall pay on Consultant's behalf, or reimburse Consultant
for, any expenses reasonably incurred in connection with his rendering of the
Services and which are not incurred in violation of any policy or policies
regarding expenses which may be adopted by the Board of Directors from time to
time. Consultant agrees to submit receipts and other documentation to support
the above expenses as a condition of reimbursement therefor.
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EXHIBIT B
RELEASE AND WAIVER OF CLAIMS
In exchange for payment to me of amounts pursuant to Sections 6(b)(i),
6(b)(iii) and 6(c) (and for the other benefits provided therein) of my
Employment Agreement (the "Agreement"), to which this form is attached, I hereby
furnish Planet Polymer Technologies, Inc. (the "Company") with the following
release and waiver.
I hereby release, and forever discharge the Company, its officers,
directors, agents, employees, stockholders, successors, assigns and affiliates,
of and from any and all claims, liabilities, demands, causes of action, costs,
expenses, attorneys' fees, damages, indemnities and obligations of every kind
and nature, in law, equity, or otherwise, known and unknown, suspected and
unsuspected, disclosed and undisclosed, arising at any time prior to and
including my employment termination date with respect to any claims relating to
my employment and the termination of my employment, including but not limited
to, claims pursuant to any federal, state or local law relating to employment,
including, but not limited to, discrimination claims, claims under the
California Fair Employment and Housing Act, and the Federal Age Discrimination
in Employment Act of 1967, as amended ("ADEA"), or claims for wrongful
termination, breach of the covenant of good faith, contract claims, tort claims,
and wage or benefit claims, including but not limited to, claims for salary,
bonuses, commissions, stock, stock options, vacation pay, fringe benefits,
severance pay or any form of compensation (other than the obligations under
Sections 6(b)(i), 6(b)(iii) and 6(c) of the Agreement.)
I also acknowledge that I have read and understand Section 1542 of the
California Civil Code which reads as follows: "A general release does not extend
to claims which the creditor does not know or suspect to exist in his favor at
the time of executing the release, which if known by him must have materially
affected his settlement with the debtor." I hereby expressly waive and
relinquish all rights and benefits under that section and any law of any
jurisdiction of similar effect with respect to any claims I may have against the
Company.
I acknowledge that, among other rights, I am waiving and releasing any
rights I may have under ADEA, that this waiver and release is knowing and
voluntary, and that the consideration given for this waiver and release is in
addition to anything of value to which I was already entitled as an employee of
the Company. I further acknowledge that I have been advised, as required by the
Older Workers Benefit Protection Act, that: (a) the waiver and release granted
herein does not relate to claims which may arise after this agreement is
executed; (b) I have the right to consult with an attorney prior to executing
this agreement (although I may choose voluntarily not to do so); (c) I have
twenty-one (21) days from the date I receive this agreement, in which to
consider this agreement (although I may choose voluntarily to execute this
agreement earlier); (d) I have seven (7) days following the execution of this
agreement to revoke my consent to the agreement; and (e) this agreement shall
not be effective until the seven (7) day revocation period has expired.
Date: __________________ By:____________________________
1-1
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EXHIBIT C
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
1-2
19
PLANET POLYMER TECHNOLOGIES, INC.
EMPLOYEE PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT
In consideration of my employment or continued employment by Planet
Polymer Technologies, Inc. (the "Company"), and the compensation now and
hereafter paid to me, I hereby agree as follows:
1. NONDISCLOSURE
1.1 RECOGNITION OF COMPANY'S RIGHTS; NONDISCLOSURE. At all times during
my employment and thereafter, I will hold in strictest confidence and will not
disclose, use, lecture upon or publish any of the Company's Proprietary
Information (defined below), except as such disclosure, use or publication may
be required in connection with my work for the Company, or unless an officer of
the Company expressly authorizes such in writing. I will obtain Company's
written approval before publishing or submitting for publication any material
(written, verbal, or otherwise) that relates to my work at Company and/or
incorporates any Proprietary Information. I hereby assign to the Company any
rights I may have or acquire in such Proprietary Information and recognize that
all Proprietary Information shall be the sole property of the Company and its
assigns.
1.2 PROPRIETARY INFORMATION. The term "PROPRIETARY INFORMATION" shall
mean any and all confidential and/or proprietary knowledge, data or information
of the Company. By way of illustration but not limitation, "PROPRIETARY
INFORMATION" includes (a) trade secrets, inventions, mask works, ideas,
processes, formulas, source and object codes, data, programs, other works of
authorship, know-how, improvements, discoveries, developments, designs and
techniques (hereinafter collectively referred to as "INVENTIONS"); and (b)
information regarding plans for research, development, new products, marketing
and selling, business plans, budgets and unpublished financial statements,
licenses, prices and costs, suppliers and customers; and (c) information
regarding the skills and compensation of other employees of the Company.
Notwithstanding the foregoing, it is understood that, at all such times, I am
free to use information which is generally known in the trade or industry, which
is not gained as result of a breach of this Agreement, and my own, skill,
knowledge, know-how and experience to whatever extent and in whichever way I
wish.
1.3 THIRD PARTY INFORMATION. I understand, in addition, that the Company
has received and in the future will receive from third parties confidential or
proprietary information ("THIRD PARTY INFORMATION") subject to a duty on the
Company's part to maintain the confidentiality of such information and to use it
only for certain limited purposes. During the term of my employment and
thereafter, I will hold Third Party Information in the strictest confidence and
will not disclose to anyone (other than Company personnel who need to know such
information in connection with their work for the Company) or use, except in
connection with my work for the Company, Third Party Information unless
expressly authorized by an officer of the Company in writing.
1.4 NO IMPROPER USE OF INFORMATION OF PRIOR EMPLOYERS AND OTHERS. During
my employment by the Company I will not improperly use or disclose any
confidential information or trade secrets, if any, of any former employer or any
other person to whom I have an obligation of confidentiality, and I will not
bring onto the premises of the Company any unpublished documents or any property
belonging to any former employer or any other person to whom I have an
obligation of confidentiality unless consented to in writing by that former
employer or person. I will use in the performance of my duties only information
which is generally known and used by persons with training and experience
comparable to my own, which is common knowledge in the industry or otherwise
legally in the public domain, or which is otherwise provided or developed by the
Company.
2. ASSIGNMENT OF INVENTIONS.
2.1 PROPRIETARY RIGHTS. The term "PROPRIETARY RIGHTS" shall mean all
trade secret, patent, copyright, mask work and other intellectual property
rights throughout the world.
2.2 PRIOR INVENTIONS. Inventions, if any, patented or unpatented, which
I made prior to the commencement of my employment with the Company are excluded
from the scope of this Agreement. To preclude any possible uncertainty, I have
set forth on Exhibit B (Previous Inventions) attached hereto a
1.
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complete list of all Inventions that I have, alone or jointly with others,
conceived, developed or reduced to practice or caused to be conceived, developed
or reduced to practice prior to the commencement of my employment with the
Company, that I consider to be my property or the property of third parties and
that I wish to have excluded from the scope of this Agreement (collectively
referred to as "PRIOR INVENTIONS"). If disclosure of any such Prior Invention
would cause me to violate any prior confidentiality agreement, I understand that
I am not to list such Prior Inventions in Exhibit B but am only to disclose a
cursory name for each such invention, a listing of the party(ies) to whom it
belongs and the fact that full disclosure as to such inventions has not been
made for that reason. A space is provided on Exhibit B for such purpose. If no
such disclosure is attached, I represent that there are no Prior Inventions. If,
in the course of my employment with the Company, I incorporate a Prior Invention
into a Company product, process or machine, the Company is hereby granted and
shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide
license (with rights to sublicense through multiple tiers of sublicensees) to
make, have made, modify, use and sell such Prior Invention. Notwithstanding the
foregoing, I agree that I will not incorporate, or permit to be incorporated,
Prior Inventions in any Company Inventions without the Company's prior written
consent.
2.3 ASSIGNMENT OF INVENTIONS. Subject to Sections 2.4, and 2.6, I hereby
assign and agree to assign in the future (when any such Inventions or
Proprietary Rights are first reduced to practice or first fixed in a tangible
medium, as applicable) to the Company all my right, title and interest in and to
any and all Inventions (and all Proprietary Rights with respect thereto) whether
or not patentable or registrable under copyright or similar statutes, made or
conceived or reduced to practice or learned by me, either alone or jointly with
others, during the period of my employment with the Company. Inventions assigned
to the Company, or to a third party as directed by the Company pursuant to this
Section 2, are hereinafter referred to as "COMPANY INVENTIONS."
2.4 NONASSIGNABLE INVENTIONS. This Agreement does not apply to an
Invention which qualifies fully as a nonassignable Invention under Section 2870
of the California Labor Code (hereinafter "Section 2870"). I have reviewed the
notification on Exhibit A (Limited Exclusion Notification) and agree that my
signature acknowledges receipt of the notification.
2.5 OBLIGATION TO KEEP COMPANY INFORMED. During the period of my
employment and for six (6) months after termination of my employment with the
Company, I will promptly disclose to the Company fully and in writing all
Inventions authored, conceived or reduced to practice by me, either alone or
jointly with others. In addition, I will promptly disclose to the Company all
patent applications filed by me or on my behalf within a year after termination
of employment. At the time of each such disclosure, I will advise the Company in
writing of any Inventions that I believe fully qualify for protection under
Section 2870; and I will at that time provide to the Company in writing all
evidence necessary to substantiate that belief. The Company will keep in
confidence and will not use for any purpose or disclose to third parties without
my consent any confidential information disclosed in writing to the Company
pursuant to this Agreement relating to Inventions that qualify fully for
protection under the provisions of Section 2870. I will preserve the
confidentiality of any Invention that does not fully qualify for protection
under Section 2870.
2.6 GOVERNMENT OR THIRD PARTY. I also agree to assign all my right,
title and interest in and to any particular Company Invention to a third party,
including without limitation the United States, as directed by the Company.
2.7 WORKS FOR HIRE. I acknowledge that all original works of authorship
which are made by me (solely or jointly with others) within the scope of my
employment and which are protectable by copyright are "works made for hire,"
pursuant to United States Copyright Act (17 U.S.C., Section 101).
2.8 ENFORCEMENT OF PROPRIETARY RIGHTS. I will assist the Company in
every proper way to obtain, and from time to time enforce, United States and
foreign Proprietary Rights relating to Company Inventions in any and all
countries. To that end I will execute, verify and deliver such documents and
perform such other acts (including appearances as a witness) as the Company may
reasonably request for use in applying for, obtaining, perfecting, evidencing,
sustaining and enforcing such Proprietary Rights and the assignment thereof. In
addition, I will execute, verify and deliver assignments of such Proprietary
Rights to the Company or its designee. My obligation to assist the Company with
respect to Proprietary Rights relating to such Company Inventions in any and all
countries shall continue beyond the termination of my employment, but the
Company shall compensate me at a reasonable rate after my
2.
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termination for the time actually spent by me at the Company's request on such
assistance.
In the event the Company is unable for any reason, after reasonable effort, to
secure my signature on any document needed in connection with the actions
specified in the preceding paragraph, I hereby irrevocably designate and appoint
the Company and its duly authorized officers and agents as my agent and attorney
in fact, which appointment is coupled with an interest, to act for and in my
behalf to execute, verify and file any such documents and to do all other
lawfully permitted acts to further the purposes of the preceding paragraph with
the same legal force and effect as if executed by me. I hereby waive and
quitclaim to the Company any and all claims, of any nature whatsoever, which I
now or may hereafter have for infringement of any Proprietary Rights assigned
hereunder to the Company.
3. RECORDS. I agree to keep and maintain adequate and current records (in the
form of notes, sketches, drawings and in any other form that may be required by
the Company) of all Proprietary Information developed by me and all Inventions
made by me during the period of my employment at the Company, which records
shall be available to and remain the sole property of the Company at all times.
4. ADDITIONAL ACTIVITIES. I agree that during the period of my employment by the
Company I will not, without the Company's express written consent, engage in any
employment or business activity which is competitive with, or would otherwise
conflict with, my employment by the Company. I agree further that for the period
of my employment by the Company and for one (l) year after the date of
termination of my employment by the Company I will not induce any employee of
the Company to leave the employ of the Company.
5. NO CONFLICTING OBLIGATION. I represent that my performance of all the terms
of this Agreement and as an employee of the Company does not and will not breach
any agreement to keep in confidence information acquired by me in confidence or
in trust prior to my employment by the Company. I have not entered into, and I
agree I will not enter into, any agreement either written or oral in conflict
herewith.
6. RETURN OF COMPANY DOCUMENTS. When I leave the employ of the Company, I will
deliver to the Company any and all drawings, notes, memoranda, specifications,
devices, formulas, and documents, together with all copies thereof, and any
other material containing or disclosing any Company Inventions, Third Party
Information or Proprietary Information of the Company. I further agree that any
property situated on the Company's premises and owned by the Company, including
disks and other storage media, filing cabinets or other work areas, is subject
to inspection by Company personnel at any time with or without notice. Prior to
leaving, I will cooperate with the Company in completing and signing the
Company's termination statement.
7. LEGAL AND EQUITABLE REMEDIES. Because my services are personal and unique and
because I may have access to and become acquainted with the Proprietary
Information of the Company, the Company shall have the right to enforce this
Agreement and any of its provisions by injunction, specific performance or other
equitable relief, without bond and without prejudice to any other rights and
remedies that the Company may have for a breach of this Agreement.
8. NOTICES. Any notices required or permitted hereunder shall be given to the
appropriate party at the address specified below or at such other address as the
party shall specify in writing. Such notice shall be deemed given upon personal
delivery to the appropriate address or if sent by certified or registered mail,
three (3) days after the date of mailing.
9. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ of the
Company, I hereby consent to the notification of my new employer of my rights
and obligations under this Agreement.
10. GENERAL PROVISIONS.
10.1 GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION. This Agreement
will be governed by and construed according to the laws of the State of
California, as such laws are applied to agreements entered into and to be
performed entirely within California between California residents. I hereby
expressly consent to the personal jurisdiction of the state and federal courts
located in San Diego County, California for any lawsuit filed there against me
by Company arising from or related to this Agreement.
10.2 SEVERABILITY. In case any one or more of the provisions contained
in this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity,
3.
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illegality or unenforceability shall not affect the other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. If moreover, any one or
more of the provisions contained in this Agreement shall for any reason be held
to be excessively broad as to duration, geographical scope, activity or subject,
it shall be construed by limiting and reducing it, so as to be enforceable to
the extent compatible with the applicable law as it shall then appear.
10.3 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
10.4 SURVIVAL. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the Company
to any successor in interest or other assignee.
10.5 EMPLOYMENT. I agree and understand that nothing in this Agreement
shall confer any right with respect to continuation of employment by the
Company, nor shall it interfere in any way with my right or the Company's right
to terminate my employment at any time, with or without cause.
10.6 WAIVER. No waiver by the Company of any breach of this Agreement
shall be a waiver of any preceding or succeeding breach. No waiver by the
Company of any right under this Agreement shall be construed as a waiver of any
other right. The Company shall not be required to give notice to enforce strict
adherence to all terms of this Agreement.
10.7 CENTIRE AGREEMENT. The obligations pursuant to Sections 1 and 2 of
this Agreement shall apply to any time during which I was previously employed,
or am in the future employed, by the Company as a consultant if no other
agreement governs nondisclosure and assignment of inventions during such period.
This Agreement is the final, complete and exclusive agreement of the parties
with respect to the subject matter hereof and supersedes and merges all prior
discussions between us. No modification of or amendment to this Agreement, nor
any waiver of any rights under this Agreement, will be effective unless in
writing and signed by the party to be charged. Any subsequent change or changes
in my duties, salary or compensation will not affect the validity or scope of
this Agreement.
This Agreement shall be effective as of the first day of my employment
with the Company, namely: _______________, 19__.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY FILLED OUT EXHIBIT B TO THIS AGREEMENT.
Dated: ___________
---------------------------------------
(SIGNATURE)
---------------------------------------
(PRINTED NAME)
ACCEPTED AND AGREED TO:
PLANET POLYMER TECHNOLOGIES, INC.
By:
------------------------------------
Title:
----------------------------------
0000 Xxxxxxxx Xxxx Xxxxxx, Xxxxx X
Xxx Xxxxx, XX 00000
Dated: _______
4.
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EXHIBIT A
LIMITED EXCLUSION NOTIFICATION
THIS IS TO NOTIFY you in accordance with Section 2872 of the California
Labor Code that the foregoing Agreement between you and the Company does not
require you to assign or offer to assign to the Company any invention that you
developed entirely on your own time without using the Company's equipment,
supplies, facilities or trade secret information except for those inventions
that either:
1. Relate at the time of conception or reduction to practice of the
invention to the Company's business, or actual or demonstrably anticipated
research or development of the Company;
2. Result from any work performed by you for the Company.
To the extent a provision in the foregoing Agreement purports to require
you to assign an invention otherwise excluded from the preceding paragraph, the
provision is against the public policy of this state and is unenforceable.
This limited exclusion does not apply to any patent or invention covered
by a contract between the Company and the United States or any of its agencies
requiring full title to such patent or invention to be in the United States.
I ACKNOWLEDGE RECEIPT of a copy of this notification.
By:
-----------------------------------
Date:
----------------------------------
WITNESSED BY:
-----------------------------------
(PRINTED NAME OF REPRESENTATIVE)
A-1.
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EXHIBIT B
TO: PLANET POLYMER TECHNOLOGIES, INC.
FROM:
-------------------------------
DATE:
-------------------------------
SUBJECT: PREVIOUS INVENTIONS
1. Except as listed in Section 2 below, the following is a complete list of all
inventions or improvements relevant to the subject matter of my employment by
Planet Polymer Technologies, Inc. (the "COMPANY") that have been made or
conceived or first reduced to practice by me alone or jointly with others prior
to my engagement by the Company: [ ] No inventions or improvements.
[ ] See below:
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
[ ] Additional sheets attached.
2. Due to a prior confidentiality agreement, I cannot complete the
disclosure under Section 1 above with respect to inventions or improvements
generally listed below, the proprietary rights and duty of confidentiality with
respect to which I owe to the following party(ies):
INVENTION OR IMPROVEMENT PARTY(IES) RELATIONSHIP
1.
------------------------ ------------------ ---------------------
2.
------------------------ ------------------ ---------------------
3.
------------------------ ------------------ ---------------------
[ ] Additional sheets attached.
