EXHIBIT 10.23 EMPLOYMENT AGREEMENT This Employment Agreement (the "Employment Agreement" or "Agreement"), dated this 14th day of January 2004, is by and between eLinear, Inc., a Delaware corporation, Houston, Texas (the "Company"), and Michael Lewis (the "Executive") an individual for employment beginning May 25, 2004. WHEREAS, the Executive is willing to enter into an agreement with the Company upon the terms and conditions herein set forth. NOW, THEREFORE, in consideration of the premises and covenants herein contained, the parties hereto agree as follows: 1. Term of Agreement. Subject to the terms and conditions hereof, the term ------------------ of employment of the Executive under this Employment Agreement shall be for the period commencing on the date hereof (the "Commencement Date") and terminating two years from the Commencement Date, unless sooner terminated in accordance with the provisions of Section 6 hereof. (Such term of employment is herein sometimes called the "Employment Term.") 2. Employment. As of the Commencement Date, the Company hereby agrees to ---------- employ the Executive as Executive Vice President of Sales and Operations of eLinear, Inc. with such duties as assigned from time to time by the Company, and the Executive hereby accepts such employment and agrees to perform his duties and responsibilities hereunder in accordance with the terms and conditions hereinafter set forth. 3. Duties and Responsibilities. ----------------------------- (a) Duties. Executive shall perform such duties as are usually performed by a Chief Operating Officer, Senior Vice President with such duties as assigned from time to time by the Company of a business similar in size and scope as the Company and such other reasonable additional duties as may be prescribed from time-to-time by the Company's Chief Executive Officer which are reasonable and consistent with the Company's operations, taking into account Executive's expertise and job responsibilities. This agreement shall survive any job title or responsibility change. All actions of Executive shall be subject and subordinate to the review and approval of the Chief Executive Officer and board of directors of the Company. The Chief Executive Officer of the Company shall be the final and exclusive arbiter of all policy decisions relative to the Company's business (including their subsidiaries). (b) Devotion of Time. During the term of this agreement, Executive agrees to devote his exclusive and full-time service during normal business hours to the business and affairs of the Company (including their subsidiaries) to the extent necessary to discharge the responsibilities assigned to Executive and to use reasonable best efforts to perform faithfully and efficiently such responsibilities. During the term of this Agreement it shall not be a violation of this Agreement for Executive to manage personal investments or companies in which personal investments are made so long as such activities do not significantly interfere with the performance of Executive's responsibilities with the Company and which companies are not in direct competition with the Company. 4. Compensation and Benefits During the Employment Term. ---------------------------------------------------------- (a) Salary. Executive will be compensated by the Company at a monthly base salary of $8,000, from which shall be deducted income tax withholdings, social security, and other customary employee deductions in conformity with the Company's payroll policy in effect. (b) Relocation Allowance. Executive will receive a relocation allowance of $18,000.00, such bonus will be payable on or before June 7, 2004. Executive shall also be entitled to receive a $5000.00 quarterly performance bonus. Executive will also be eligible for an additional bonus set by the Compensation Committee of up to one half of Executive's base salary. Executive acknowledges that the Compensation Committee will set the bonus parameters to be achieved in their sole discretion, and that Executive has not been given any guidance as to the criteria to be used by the Compensation Committee, nor has the Executive entered into this Agreement based on any representations as to the criteria to be used by the Compensation Committee. (c) Option. The Executive shall receive an employee option expiring five years from the date hereof to purchase 450,000 shares at an exercise price of $ 2.00 per share. The vesting schedule shall be 25% upon the one-year anniversary of the execution of this Agreement and 25% each subsequent year thereafter; provided that no vesting shall occur unless Executive is employed by the Company on the respective vesting date; provided further that if the Company terminates the Executive during the Employment Term for any reason other than for Cause, for vesting calculation purposes, the options due the Executive at year-end will be prorated in relation to the date of Executive's employment termination and such prorated amount will vest immediately at the date of Executive's employment termination. For the avoidance of doubt, if Executive is terminated for Cause, resigns, or dies, Executive will not be entitled to any prorated vesting as set forth in the previous sentence. In addition, if Executive is terminated for any reason, resigns, or dies this option shall expire on the earlier of: (i) four years from the date hereof, or (ii) six months from the date of the termination, resignation, or death. The option shall be evidenced by an option agreement, shall expire in five years, and shall be subject to the terms of the Company's 2003 Stock Option Plan and such option agreement. The term of the option is not intended to extend or otherwise modify the Employment Term. (d) Executive Allowance. The Executive will receive a $1,000.00 expense allowance per month for home office and car. 5. Change of Control ------------------- In the case of a change of control of the Company, all unvested options, those described in paragraph 4(c) and any others granted since the effective date of this Agreement, shall be accelerated and will vest immediately. Change of control is defined as the sale of over 50.1% of eLinear common stock to a single entity. 6. Termination ----------- (a) Executive's employment under the Agreement may be terminated under any of the following circumstances: (i) Immediately by the Company, upon the death of Executive. (ii) By the Executive at any time, upon 14 days written notice. (iii) Immediately, upon written notice by the Company for Cause which for purposes of the Agreement shall be defined as (i) Executive's willful and persistent inattention to his reasonable duties which amounts to gross negligence or willful dishonesty towards, fraud upon, or deliberate injury or attempted injury to, the Company, (ii) Executive's willful breach of any term or provision of the Agreement which breach shall have remained substantially uncorrected for 15 days with an opportunity to cure following written notice to the Executive; or (iii) the commission by Executive of any act or any failure by Executive to act involving criminal conduct or moral turpitude, whether or not directly relating to the business and affairs of the Company. (b) Effects of Termination. In the event that the Agreement is terminated ------------------------ pursuant to Section 6(a) or upon expiration of the term of the Agreement, neither the Executive nor the Company shall have any further obligations hereunder except for (a) obligations occurring prior to the date of termination, and (b) obligations, promises or covenants contained herein which are expressly made to extend beyond the term of the Agreement. (c) Improper Termination. In the event of the Executive's termination by --------------------- the Company for any reason other than for Cause or the death of the Executive, Executive shall continue to be paid, as severance pay, an amount equal to his salary at the time of termination until the earlier of: (i) the end of the Employment Term, or (ii) 90 calendar days from the date of the termination. 7. Revealing of Trade Secrets, etc. Executive acknowledges the interest of -------------------------------- the Company in maintaining the confidentiality of information related to its business and shall not at any time during the Employment Term or thereafter, directly or indirectly, reveal or cause to be revealed to any person or entity the supplier lists, customer lists or other confidential business information of the Company; provided, however, that the parties acknowledge that it is not the intention of this paragraph to include within its subject matter (a) information not proprietary to the Company, (b) information which is then in the public domain through no fault of Executive, or (c) information required to be disclosed by law. 8. Non-Competition Agreement. As part of the consideration for the -------------------------- compensation and benefits to be paid and extended to Executive hereunder, and as an additional incentive for the Company to enter into this employment relationship, Executive agrees to the non-competition provisions of this section. (a) Executive hereby agrees that for a period commencing on the date hereof and ending 1 year following the termination of Executive's employment with the Company for whatever reason, he will not, directly or indirectly, as employee, agent, consultant, stockholder, director, co-partner or in any other individual or representative capacity, own, operate, manage, control, engage in, invest in or participate in any manner in, act as a consultant or advisor to, render services for, or otherwise assist any person or entity (other than the Company) that engages in or owns, invests in, operates, manages or controls any venture or enterprise that engages or proposes to engage in the business of technology consulting and IT equipment sales within Harris County (the "Territory"). (b) Restrictions on Future Employment. Executive understands that the foregoing restrictions may limit his ability to engage in certain businesses in the Territory during the period provided for above, but acknowledges that Executive will receive sufficiently high remuneration and other benefits (e.g., high remuneration during the term of the Agreement and access to certain confidential and proprietary information and trade secrets) under this Agreement to justify such restriction. Executive acknowledges that money damages would not be sufficient remedy for any breach of this section by Executive, and Company or any of its subsidiaries or affiliates shall be entitled to enforce the provisions of this section by terminating any payments then owing to Executive under this Agreement and/or to specific performance and injunctive relief as remedies for such breach or any threatened breach, without any requirement for the securing or posting of any bond in connection with such remedies. Such remedies shall not be deemed the exclusive remedies for a breach of this section, but shall be in addition to all remedies available at law or in equity to Company or any of its subsidiaries or affiliates, including, without limitation, the recovery of damages from Executive and his agents involved in such breach. (c) Acknowledgement by Parties. It is expressly understood that the restrictions contained in this section are related to and result from the agreements of the Company and Executive in this section and it is agreed that the Company and Executive consider the restrictions contained in this section to be reasonable and necessary to protect the confidential and proprietary information and trade secrets of the Company and its subsidiaries and affiliates. 9. Survival. In the event that this Agreement shall be terminated, then -------- notwithstanding such termination, the obligations of Executive pursuant to Section 7 and 8 of this Agreement shall survive such termination. 10. Contents of Agreement, Parties in Interest, Assignment, etc. This ----------------------------------------------------------------- Agreement sets forth the entire understanding of the parties hereto with respect to the subject matter hereof. All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective heirs, representatives, successors and assigns of the parties hereto, except that the duties and responsibilities of Executive hereunder which are of a personal nature shall neither be assigned nor transferred in whole or in part by Executive. This Agreement shall not be amended except by a written instrument duly executed by the parties. 11. Severability; Construction. If any term or provision of this Agreement --------------------------- shall be held to be invalid or unenforceable for any reason, such term or provision shall be ineffective to the extent of such invalidity or unenforceability without invalidating the remaining terms and provisions hereof, and this Agreement shall be construed as if such invalid or unenforceable term or provision had not been contained herein. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 12. Notices. Any notice, request, instruction or other document to be given ------- hereunder by any party to the other party shall be in writing and shall be deemed to have been duly given when delivered personally; or five (5) days after dispatch by registered or certified mail, postage prepaid, return receipt requested; or one (1) day after dispatch by overnight courier service; in each case, to the party to whom the same is so given or made: IF TO THE COMPANY ADDRESSED TO: eLinear, Inc. 2901 West Sam Houston Parkway North, Ste. E-300 Houston, Texas 77043 Attn: Chief Executive Officer IF TO EXECUTIVE ADDRESSED TO: Mike Lewis ___________________ ___________________ or to such other address as the one party shall specify to the other party in writing. 13. Counterparts and Headings. This Agreement may be executed in one or --------------------------- more counterparts, each of which shall be deemed an original and all which together shall constitute one and the same instrument. All headings are inserted for convenience of reference only and shall not affect the meaning or interpretation of this Agreement. 14. Governing Law; Venue. This Agreement shall be construed and enforced in --------------------- accordance with, the laws of the State of Texas, without regard to the conflict of laws provisions thereof. Venue of any dispute concerning this Agreement shall be exclusively in Harris County, Texas. 15. Waiver. The failure of either party to enforce any provision of ------ this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written. Executive ELINEAR, INC. ___________________________ ___________________________ Mike Lewis Kevan Casey, CEO