EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") effective as of the 15th day of March
2000, between XxxxxXxxx.xxx , a Nevada corporation having its principal place of
business at 000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000
("Employer"), and Xxx Xxxx Xxxxx ("Employee").
WITNESSETH:
WHEREAS, Employer desires to employ Employee upon the terms and subject to the
conditions hereinafter set forth, and Employee desires to accept such
employment:
NOW, THEREFORE, for and in consideration of the premises, the mutual promises,
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows.
1. EMPLOYMENT. Subject to the terms and conditions of this Agreement, Employer
shall employ Employee and Employee hereby accepts such employment.
2. TERM. The term of this Agreement shall be for the period from March 15,
2000 through March 15, 2001 (the "Initial Term").
3. POSITION AND DUTIES.
a. POSITION. Employee shall serve as Vice President, Marketing and shall
perform the duties and exercise the powers in connection with such
position and which may from time to time be reasonably assigned to or
vested in him or her by the CEO and/or Board of Directors or similar
governing body of Employer (the "Board") or the duly authorized
committee or designee thereof.
b. FULL TIME EFFORTS. Employee shall perform and discharge faithfully,
diligently and to the best of his or her ability such duties and
responsibilities and shall devote his or her full-time efforts to the
business and affairs of Employer.
c. NO INTERFERENCE WITH DUTIES. Employee shall not devote time to other
activities such as would inhibit or otherwise interfere with the
proper performance of his or her duties.
4. WORK STANDARD. Employee hereby agrees that he or she will at all times
comply with abide by all terms and conditions set forth in this Agreement,
and all applicable work policies, procedures and rules as may be issued by
Employer.
5. COMPENSATION.
a. BASE SALARY. Subject to the terms and conditions set forth in this
Agreement, Employer shall pay Employee, and Employee shall accept, a
salary ("Base Salary") at the annual rate of $95,000 for all services
rendered during the term of this Agreement. Base Salary shall be
reviewed no less frequently than annually. The Base Salary is not to
be considered in any way to limit Employee's opportunity to receive
appropriate increases in Base Salary during the term of this
Agreement. The Base Salary shall be paid in accordance with Employer's
normal payroll procedures.
b. EMPLOYMENT OPTIONS. Employee will earn up to 150,000 employment
options, granted under the XxxxxXxxx.xxx Employee Stock Option Plan.
The options will be priced at the closing price of the stock March 31,
2000.
c. WITHHOLDING. All compensation payable to Employee pursuant to this
Agreement shall be subject to, and Employer will deduct and withhold,
all applicable federal, state and local withholding, employment,
social security, and other similar taxes.
6. FRINGE BENEFITS. During the term of Employee's employment under this
Agreement, Em0ployee shall receive the fringe benefits described below:
a. MEDICAL, DENTAL, VISION, LIFE AND DISABILITY INSURANCE. Employer shall
provide Employee and eligible dependents ("spouse and children under
21 years of age") with medical, dental and vision insurance coverage.
Life and disability insurance coverage will be provided by Employer to
Employee.
b. VACATION. Employee is eligible for four (4) weeks of vacation per
calendar year.
c. OUT OF POCKET EXPENSES. Employer will reimburse Employee for out of
pocket expenses ("out of pocket expenses") as incurred by the Employee
in the normal course of business, including, but not limited to
corporate entertainment, non-capital purchases and corporate travel.
7. LAWS, REGULATIONS, AND PUBLIC ORDINANCES. Employee shall comply with all
federal, state, and local statutes, regulations and public ordinances
governing the work.
8. CONFIDENTIAL INFORMATION; INVENTIONS; CONFLICTING EMPLOYMENT; RETURNING
COMPANY DOCUMENTS; SOLICITATION OF EMPLOYEES; NON-COMPETE.
a. COMPANY INFORMATION: Employee agrees at all times during the term of
employment and thereafter, to hold in strictest confidence, and not
use, except for the benefit of the Employer, or to disclose to any
person, firm or corporation without written authorization of the board
of Directors of the Company, any Confidential Information of the
Company. Employee understands that Confidential Information means any
company proprietary information, technical data, trade secrets or
know-how, including, but not limited to, research, product plans,
products, services, customer lists and customers (including, but not
limited to, customers of the company on whom Employee called or with
whom Employee became acquainted during the term of employment),
markets, software, developments, inventions, processes, formulas,
technology, designs, drawings, engineering, hardware configuration
information, marketing, finances, or other business information
disclosed to me by the company either directly or indirectly in
writing, orally or by drawings or inspection of parts or equipment.
Employee further understands that Confidential Information does not
include any of the foregoing items which has become publicly known and
made generally available through no wrongful act of mine.
b. FORMER EMPLOYER INFORMATION. Employee agrees that she will not, during
employment with the company, improperly use or disclose any
proprietary information or trade secrets of any former or concurrent
employer or other person or entity with which Employee has an
agreement or duty to keep in confidence, information acquired by
Employee in confidence, if any, and that Employee will not bring onto
the premises of the Company any unpublished document or proprietary
information belonging to any such employer, person or entity unless
consented to in writing by such employer, person or entity.
c. THIRD PARTY INFORMATION. Employee recognizes that the company has
received and in the future will receive from third parties their
confidential or proprietary information subject to a duty on certain
limited purposes. Employee agrees to hold all such confidential or
proprietary information in the strictest confidence and not to
disclose it to any person, firm or corporation or to use it except as
necessary in carrying out my work for the company consistent with the
company's agreement with such third party.
d. INVENTIONS RETAINED AND LICENSED: Employee has attached hereto as
Exhibit A, a list describing all inventions, original works of
authorship, developments, improvements and trade secrets which were
made by me prior to employment with the company (collectively referred
to as Prior inventions), which belong to Employee, which relate to the
company's purposed business, products or hereunder; or, if not such
list is attached, Employee represents that there are no such prior
inventions. If in the course of employment wit the company, Employee
incorporates into a company product, process or machine a prior
invention owned by Employee or in which Employee has an interest, the
Company is hereby granted and shall have a non-exclusive,
royalty-free, irrevocable, perpetual, worldwide license to make, have
made, modify, use and sell such prior invention as part of or in
connection with such product, process or machine.
e. ASSIGNMENT OF INVENTIONS; Employee agrees that she will promptly make
full written disclosure to the company, will hold in trust for the
sole right and benefit of the company and hereby assign to the
company, or its designee, all right, title, and interest in and to any
and all inventions, original works of authorship, developments,
concepts, improvements or trade secrets, whither or not patentable or
registrable under copyright or similar laws, which she may solely or
jointly conceive or develop or reduce to practice, during the period
of time she is in the employee of the company (collectively referred
to as "Inventions"), except as provided in Section i below. Employee
further acknowledges that all original works of authorship which are
made by Employee (solely or jointly with others) within the scope of
employment and which are protectable by copyright are "works made for
hire," as that term is defined in the United States Copyright Act.
f. MAINTENANCE OF RECORDS: Employee agrees to keep and maintain adequate
and current written records of all inventions made by her (solely or
jointly with others) during the term of employment with the company.
The records will be in the form of notes, sketches, drawings and any
other format that may be specified by the company. The records will be
available to and remain the sole property of the company at all times.
g. PATENT AND COPYRIGHT REGISTRATION: Employee agrees to assist the
company, or its designee, at the company's expense, in every proper
way to secure the company's rights in the inventions and any
copyrights, patents, mask work rights or other intellectual property
rights relating thereto in any and all countries, including the
disclosure to the company of all pertinent information and data with
respect thereto, the execution of all applications, specifications,
oaths, assignments and all other instruments which the company shall
deem necessary in order to apply for and obtain such rights and in
order to assign and convey to the comp0any, its successors, assigns
and nominees the sole and exclusive rights, title and interest in and
to such inventions, and any copyrights, patents, mask work rights, or
other intellectual property rights relating thereto. Employee further
agrees that her obligation to execute or cause to be executed, when it
is in her power to do so, any such instrument or papers shall continue
after the termination of this Agreement. If the company is unable
because of Employee's mental or physical incapacity or for any other
reason to secure Employee's signature to apply for or to pursue any
application for any United States or foreign patents or copyrights
registrations covering inventions or original works of authorship
assigned to the company as above, then Employee hereby irrevocably
designates and appoints company and its duly authorized officers and
agents as agent and attorney in fact, to act for and in behalf and
stead of Employee to execute and file any such applications and to do
all other lawfully permitted acts to further the prosecution and
issuance of letters patent or copyright registrations thereon with the
same legal force and effect as if executed by Employee.
h. EXCEPTIONS TO ASSIGNMENTS. Employee understands that the provisions of
this Agreement requiring assignment of inventions to company do not
apply to any invention which qualifies fully under the provisions of
California Labor Code Section 2870. Employee will advise the company
promptly in writing of any inventions that she believes meet the
criteria in California Labor Code Section 2870 and not otherwise
disclosed on Exhibit A.
i. RETURNING COMPANY DOCUMENTS. Employee agrees that, at the time of
leaving the employ of the company she will deliver to the company (and
will not keep in her possession or deliver to anyone else) any and all
devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches,
materials, equipment, others documents, or property, or reproductions
of any aforementioned items developed by Employee pursuant to
employment with the company or otherwise belonging to the company, its
successors or assigns.
j. SOLICITATION OF EMPLOYEES. Employee agrees that, for a period of one
(1) year immediately following the termination of Employee's
relationship with the company for any reason, whether with or without
cause, either directly or indirectly, on behalf or in the service or
on behalf of other, solicit, recruit or attempt to persuade any person
to terminate such person's employment with the company, whether or not
such person is a full-time employee or whether or not such employment
is pursuant to a written agreement or is at-will.
k. NON-COMPETE. I agree that I shall not, for a period of one year
immediately following the termination of my relationship with the
company for any reason, whether with or without cause, either directly
or indirectly engage in any activity that competes with XxxxxXxxx.xxx
9. TERMINATION FOR CAUSE. This Agreement may be terminated at any time by
Employer without prior notice thereof to Employee and without any
liability owning to Employee under this Agreement under the following
conditions, each of which shall constitute "Cause";
a. FAILURE TO DISCHARGE DUTIES. Employee willfully neglects or refuses to
discharge her duties hereunder or refuses to comply with any lawful
and reasonable instructions given to her by Employer without
reasonable excuse;
b. BREACH. Employee shall have committed any material breach, or repeated
or continued after written notice of any breach, whether material or
not, of her obligations hereunder;
x. XXXXX MISCONDUCT. Employee is guilty of gross misconduct. For the
purposes of this Agreement the following acts shall constitute gross
misconduct:
i) Any act involving fraud or dishonesty or breach of applicable
regulations of competent authorities in relation to trading or
dealing with stocks, securities, investments and the like;
ii) The carrying out of any activity or the making of any statement
which would prejudice or impair the good name or standing of
Employer or would bring Employer into contempt, ridicule or would
reasonable shock or offend any community in which Employer is
located;
iii) Attendance at work in a state of intoxication or otherwise being
found in possession at her place of work any prohibited drug or
substance, possession of which would amount to a criminal
offense;
iv) Assault or other act of violence against any employee of Employer
or other person during the course of his or her employment;
v) Harassment or disparagement of others based on their age,
disability, color, national origin, race, religion, sex or
veteran status, including acts of sexual harassment or,
vi) Conviction of any felony or misdemeanor involving moral
turpitude.
10. TERMINATION BY EMPLOYER FOR REASONS OTHER THAN CAUSE. Notwithstanding
anything herein to the contrary, and subject to the survival
provisions of Paragraph 13.G hereof, Employer may terminate this
Agreement at any time with thirty (30) days prior notice thereof to
Employee. In such an event, Employer shall pay to Employee in
accordance with Employer's normal practices; 1) the Base Salary; 2)
vested Stock Options, 3) Medical, Dental, Vision, Life and Disability
Insurance, 5) and any unused Vacation - for a period of one (1) year
after the termination date.
11. TERMINATION BASED UPON CHANGE OF CONTROL. In the event Employer enters
into an agreement with another person or entity, the effect of which
is to change the control of the Employer, then and in such event,
Employee shall be exclusively entitled to terminate this Agreement,
and in such event, Employer shall pay to Employee the severance
payments in the amount of one (1) year base salary, and benefits
payable through the end of the term. Additionally, upon such
termination, the vesting of all options to purchase Common Stock of
the Company held by Employee shall be accelerated so that such options
are immediately exercisable. For purposes of this Agreement, the term
"change of control: shall mean: (i) any change of equity such that
more than fifty (50%) percent (50%) of the issued and outstanding
shares of the Company are transferred to a third party; (ii) or debt
ownership, including but not limited to conversion rights of debt to
equity of the Employer such that more than fifty percent (50%) of the
issued and outstanding shares are transferred to a third party; or
(iii) a sale of substantially all of Employer's assets. However, a
change of control shall not include a public offering of the
securities of the Company.
12. TERMINATION BY EMPLOYEE.
a. VOLUNTARY TERMINATION. Employee may terminate this employment under
this Agreement at any time with thirty (30) days prior written notice
thereof to Employer. Upon such termination, Employee shall be entitled
to her pro-rata Base Salary through the date of such termination and
all stock options that have vested at that time.
b. RESIGNATION FOR GOOD CAUSE. The termination of her employment under
this Agreement by Employee following a substantial reduction in
Employee's position or duties or material breach of this Agreement by
Employer shall be deemed a termination by employee for reasons other
than cause as set forth in paragraph 10 hereof.
c. TERMINATION UPON DEATH. This Agreement shall terminate immediately
upon Employee's death. Employee's estate shall be entitled to
Employee's Base Salary up to twelve (12) months after the Employee's
death and earned Stock Options. Medical, Dental and Vision Insurance
payments shall continue for six (6) months from date of Employee's
death.
GENERAL PROVISIONS.
a. AMENDMENT. This Agreement may be amended or modified only by a writing
signed by both of the parties hereto.
b. BINDING AGREEMENT. This Agreement shall inure to the benefit of and be
binding upon Employee, his or her heirs and personal representatives,
and Employer, its successors and assigns.
c. WAIVER. The waiver by either party of a breach of any provision
contained in this Agreement shall not be construed as or operate as a
waiver of any subsequent breach.
d. NOTICES
i) All notices and all other communication provided for herein shall
be in writing and delivered personally to the other designated
party, or mailed by certified or registered mail, return receipt
requested or delivered by a recognized national overnight courier
service, or sent by facsimile as follows:
If to Employer to: Xx. Xxxxxxx Xxxx
Director
If to Employee to: Mr. Xxxx Xxxxxxxx
CEO, President, Treasurer
If Employee has provided notice to Employer that he is represented by
counsel, Employer shall copy Employee's counsel at the address
specified. Employee agrees and understands that any legal fees or
expenses incurred by him in connection with this Agreement are his
sole responsibility and Employer shall not reimburse Employee for any
portion of such fees or expenses.
ii) All notices sent under this Paragraph 13 shall be deemed given
twenty-four (24) hours after sent by facsimile or courier and
seventy-two (72) hours after sent by certified or registered
mail.
iii) Either party hereto may change the address to which notice is to
be sent hereunder by written notice to the other party in
accordance with the provisions of this Paragraph.
e. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without regard to
principles of conflicts of laws.
f. ENTIRE AGREEMENT. This Agreement contains the full and complete
understanding of the parties hereto with respect to the subject matter
contained herein and this Agreement supersedes and replaces any prior
agreement , either oral or written, which Employee may have with
Employer that relates generally to the same subject matter.
g. SURVIVAL. Notwithstanding any expiration or termination of this
Agreement, the provisions of this agreement shall survive and remain
in full force and effect, as shall any other provision hereof that, by
its terms or reasonable interpretation thereof, sets forth obligations
that extend beyond the termination of this Agreement.
h. ASSIGNMENT. This Agreement may not be assigned by Employee without the
prior written consent of Employer, and any attempted assignment not in
accordance herewith shall be null and void and of no force or effect.
Employer can assign this Agreement to any Affiliate with Employee's
written consent. Thereafter, any such assignee shall be considered to
be the Employer for all purposes under this Agreement; provided
however, that references to previous incentive bonuses shall be deemed
to include incentive bonuses paid by any assignor.
i. SEVERABILITY. If any one or more of the terms, provisions, covenants
or restrictions of this Agreement shall be determined by a court of
competent jurisdiction to be invalid, void or unenforceable, then the
remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect, and to that end the
provisions hereof shall be deemed severable.
j. PARAGRAPH HEADING. The section headings set forth herein are for
convenience of reference only and shall not affect the meaning or
interpretation of this Agreement whatsoever.
k. VOLUNTARY AGREEMENT. Employee and Employer represent and agree that
each has reviewed all aspects of this Agreement, has carefully read
and fully understands all provisions of this Agreement, and is
voluntarily entering into this Agreement. Each party represents and
agrees that such party has had the opportunity to review any and all
aspects of this Agreement with legal, tax or other advisers(s) of such
party's choice before executing this Agreement.
13. REMEDIES.
ARBITRATION OF DISAGREEMENTS. Any dispute, controversy or claim
arising out of or relating to the obligations under this Agreement
shall be settled by final and binding arbitration in accordance with
the American Arbitration Association Employment Dispute Resolution
Rules. The arbitrator shall be selected by mutual agreement of the
parties, if possible. If the parties fail to reach agreement upon
appointment of an arbitrator within 30 days following receipt by one
party of the other party's notice of desire to arbitrate, the
arbitrator shall be selected from a panel or panels of persons
submitted by the American Arbitration Association (the "AAA"). The
selection process shall be that which is set forth in the AAA
Employment Dispute Resolution Rules, except that, if the parties fail
to select an arbitrator from one or more panels, AAA shall not have
the power to make an appointment but shall continue to submit
additional panels until an arbitrator has been selected.
All fees and expenses of the arbitration, including a transcript if
requested, will be borne by the Employer. Any action to enforce or
vacate the arbitrator's award shall be governed by the Federal
Arbitration Act, if applicable, and otherwise by California state law.
IN WITNESS WHEREOF, the parties hereto have executed, or caused their duly
authorized representative to execute, this Agreement as of the date first
above written.
EMPLOYER EMPLOYEE
Xxxxxxx Xxxx Xxx Xxxx Xxxxx
BY:
