Exhibit 10b-3
EMPLOYMENT AGREEMENT
This Employment Agreement ("AGREEMENT") is entered into as of November
1, 2004 (the "EFFECTIVE DATE") by and between PivX Solutions, Inc. (the
"COMPANY"), and Xxxxx Xxxxx ("EMPLOYEE"). In consideration of the promises and
mutual covenants herein contained, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, it is mutually
covenanted and agreed by and between the parties as follows:
1. POSITION AND DUTIES. Employee shall be employed as General Counsel
and Corporate Secretary reporting to the Chief Executive Officer. Employee shall
perform Employee's duties faithfully and to the best of Employee's ability and
shall devote Employee's full business time and effort to the performance of
Employee's duties hereunder. A detailed job description will be written after
employee begins. This job description will become a part of this agreement.
2. AT-WILL EMPLOYMENT. The parties agree that Employee's employment
with the Company shall be "at-will" employment and may be terminated at any time
with or without cause or notice at the option of either the Company or Employee.
No provision of this Agreement shall be construed as conferring upon Employee a
right to continue as an employee of the Company.
3. COMPENSATION. For all services to be rendered pursuant to this
Agreement by Employee, Employee shall receive $160,000 on an annual basis (the
"BASE SALARY"), payable monthly. Employee understands and agrees that neither
Employee's job performance nor promotions, commendations, bonuses or the like
from the Company give rise to or in any way serve as the basis for modification,
amendment, or extension by implication or otherwise, of this Agreement.
4. REGISTRATION STATEMENT BONUS. Employee shall receive a $10,000 bonus
upon the declaration that the registration statement filed in connection with
the investor financing from Cornell Capital through the Standby Equity
Distribution Agreement is declared effective by the Securities and Exchange
Commission.
5. DISCRETIONARY BONUS. The performance of Employee and the Company may
be reviewed by the Company's Chief Executive Officer and the Board annually,
and, on that basis, the Company may, in its discretion, award the Employee a
bonus. Any such bonus shall be subject to applicable withholding.
6. INCENTIVE PLAN. Employee has the opportunity for quarterly bonuses.
The MBO's for this will be determined and agreed between employee and
supervisor. These can be paid in cash or in S-8 free trading stock as allowed by
the company's stock option plan.
7. OTHER BENEFITS. During Employee's employment hereunder, Employee
shall be entitled to participate in the employee benefit plans and programs of
the Company, if any, to the extent that Employee's position, tenure, salary,
age, health and other qualifications make him eligible to participate in such
plans or programs, subject to the rules and regulations applicable thereto. The
Company reserves the right to cancel or change the benefit plans and programs it
offers to its employees at any time. Included in these benefits are: Health,
Dental, Vision and Fitness Club membership. Employee shall have two weeks of
paid vacation annually.
8. EQUITY. As of the Effective Date, Employee shall be granted options
to purchase 250,000 shares of the Company's stock (the "EQUITY") at a strike
price of $2.60 per share. This Equity shall vest in equal amounts on the 1st,
2nd and 3rd anniversary of your employment. Vesting of the Equity shall be
subject to Employee's continued employment with the Company on the relevant
vesting dates. The options vest in 3 equal installments beginning on November 1,
2005 and shall be valid for a period not to exceed 5 years from the vesting
date.
8. EXPENSES. The Company shall reimburse Employee for pre-approved
expenses incurred by Employee in the furtherance of or in connection with the
performance of Employee's duties hereunder, in accordance with the Company's
expense reimbursement policy as in effect from time to time.
9. RIGHT TO ADVICE OF COUNSEL. Employee acknowledges that he has had
the right to consult with counsel and is fully aware of Employee's rights and
obligations under this Agreement.
10. SUCCESSORS.
(a) COMPANY'S SUCCESSORS. Any successor 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 the obligations under this
Agreement and agree expressly to perform the obligations under this Agreement in
the same manner and to the same extent as the Company would be required to
perform such obligations 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 assumption agreement
described in this subsection (a) or which becomes bound by the terms of this
Agreement by operation of law.
(b) EMPLOYEE'S SUCCESSORS. Without the written consent of the
Company, Employee shall not assign or transfer this Agreement or any right or
obligation under this Agreement to any other person or entity. Notwithstanding
the foregoing, the terms of this Agreement and all rights of Employee hereunder
shall inure to the benefit of, and be enforceable by, Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
11. CONFIDENTIAL INFORMATION.
(a) COMPANY INFORMATION. Employee shall at all times during
the term of Employee's employment with the Company and thereafter, hold in
strictest confidence, and not use, except for the benefit of the Company, or
disclose to any person, firm or corporation without written authorization of the
Board, any Confidential Information of the Company. As used herein,
"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 has called or with
whom Employee became acquainted during the term of Employee's employment),
2
markets, software, developments, inventions, processes, formulas, technology,
designs, drawings, engineering, hardware configuration information, marketing,
finances or other business information disclosed to Employee by the Company
either directly or indirectly in writing, orally or by drawings or observation
of parts or equipment. "Confidential Information" does not include any of the
foregoing items which has become publicly known and made generally available
through no wrongful act of Employee or of others who were under confidentiality
obligations as to the item or items involved or improvements or new versions
thereof.
(b) FORMER EMPLOYER INFORMATION. Employee shall not, during
Employee's 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 and Employee shall 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 shall hold all
confidential or proprietary information that the Company has received from any
third party to which it is the Company's obligation to maintain the
confidentiality of such information and to use it only for certain limited
purposes 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 Employee's work
for the Company consistent with the Company's agreement with such third party.
12. INVENTIONS. The Employee hereby represents, warrants and covenants
with respect to Prior Inventions (as defined below) or Inventions (as defined
below), as the case may be, as follows:
(a) INVENTIONS RETAINED AND LICENSED. Attached hereto, as
EXHIBIT A, is a list describing all inventions, original works of authorship,
developments, improvements, and trade secrets which were made by Employee prior
to Employee's employment with the Company (collectively referred to as "PRIOR
INVENTIONS"), which belong to Employee, which relate to the Company's proposed
business, products or research and development, and which are not assigned to
the Company hereunder; or, if no such list is attached, Employee hereby
represents that there are no such Prior Inventions. If in the course of
Employee's employment with the Company, Employee incorporates into a Company
product, process or machine a Prior Invention owned by Employee or in which the
Employee has an interest, the Company is hereby granted and shall have a
nonexclusive, 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.
(b) ASSIGNMENT OF INVENTIONS. Employee shall, or 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 of Employee's right, title, and interest in and to any and all
inventions, original works of authorship, developments, concepts, improvements,
designs, discoveries, ideas, trademarks or trade secrets, whether or not
patentable or registrable under copyright or similar laws, which Employee may
solely or jointly conceive or develop or reduce to practice, or cause to be
conceived or developed or reduced to practice, during the period of time
Employee is employed by the Company (collectively referred to as "INVENTIONS"),
except as provided in Section 11(f) below. Employee hereby acknowledges that all
3
original works of authorship which are made by Employee (solely or jointly with
others) within the scope of and during the period of Employee's employment with
the Company and which are protectible by copyright are "works made for hire," as
that term is defined in the United States Copyright Act. Employee hereby
understands and agrees that the decision whether or not to commercialize or
market any invention developed by Employee solely or jointly with others is
within the Company's sole discretion and for the Company's sole benefit and that
no royalty will be due to Employee as a result of the Company's efforts to
commercialize or market any such invention.
(c) INVENTIONS ASSIGNED TO THE UNITED STATES. Employee shall
assign to the United States government all Employee's right, title, and interest
in and to any and all Inventions whenever such full title is required to be in
the United States by a contract between the Company and the United States or any
of its agencies.
(d) MAINTENANCE OF RECORDS. Employee shall keep and maintain
adequate and current written records of all Inventions made by him (solely or
jointly with others) during the term of Employee's 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.
(e) PATENT AND COPYRIGHT REGISTRATIONS. Employee shall 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 Company, 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 agrees that it is Employee's obligation to execute or
cause to be executed, when it is in Employee's power to do so, any such
instrument or papers after the termination of this Agreement. If the Company is
unable because of the 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 copyright registrations covering
Inventions or original works of authorship assigned to the Company as above,
then Employee hereby irrevocably designates and appoints the Company and its
duly authorized officers and agents as Employee's agent and attorney in fact, to
act for and in Employee's behalf and stead 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.
(f) EXCEPTION TO ASSIGNMENTS. It is agreed and acknowledge
that the provisions of this Agreement requiring assignment of Inventions to the
Company do not apply to any invention which qualifies fully under the provisions
of California Labor Code Section 2870 (attached hereto as EXHIBIT B). Employee
covenants that Employee will advise the Company promptly in writing of any
inventions that Employee believes meet the criteria in California Labor Code
Section 2870 and not otherwise disclosed on EXHIBIT A.
4
13. CONFLICTING EMPLOYMENT. Employee shall not, during the term of
Employee's employment with the Company, engage in any other employment,
occupation, consulting or other business activity directly related to the
business in which the Company is now involved or becomes involved during the
term of Employee's employment, nor will Employee engage in any other activities
that conflict with Employee's obligations to the Company.
14. INDEMNITY. Employee shall defend, indemnify and hold harmless the
Company, its officers, directors and employees, from and against any and all
loss, liability, damage, claims, demands or suits, and related costs and
expenses (including, without limitation, reasonable attorney fees and costs)
arising or resulting, directly or indirectly, from any breach by Employee of
this Agreement.
15. RETURNING COMPANY DOCUMENTS. At the time of leaving the employ of
the Company, Employee covenants that Employee shall deliver to the Company (and
will not keep in Employee's possession, recreate or deliver to anyone else) any
and all devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items developed by Employee pursuant to Employee's employment with the Company
or otherwise belonging to the Company, its successors or assigns, including,
without limitation, those records maintained pursuant to paragraph 11(d). In the
event of the termination of Employee's employment, Employee hereby covenants to
sign and deliver the "Termination Certification" attached hereto as EXHIBIT C.
16. NOTIFICATION OF NEW EMPLOYER. In the event that Employee leaves the
employ of the Company, Employee agrees to grant consent to notification by the
Company to Employee's new employer about Employee's rights and obligations under
this Agreement.
17. SOLICITATION OF EMPLOYEES. Employee covenants that, for a period of
twelve (12) months immediately following the termination of Employee's
relationship with the Company for any reason, whether with or without cause,
Employee shall not either directly or indirectly solicit, induce, recruit or
encourage any of the Company's employees to leave their employment, or take away
such employees, or attempt to solicit, induce, recruit, encourage or take away
employees of the Company, either for Employee or for any other person or entity.
18. CONFLICT OF INTEREST GUIDELINES. Employee covenants that Employee
shall diligently adhere to the Conflict of Interest Guidelines attached as
EXHIBIT D hereto.
19. NOTICE CLAUSE.
(a) MANNER. Any notice hereby required or permitted to be
given shall be sufficiently given if in writing and delivered in person or sent
by First Class, registered or certified mail, postage prepaid, to either party
at the address of such party or such other address as shall have been designated
by written notice by such party to the other party.
(b) EFFECTIVENESS. Any notice or other communication required
or permitted to be given under this Agreement will be deemed given on the day
when delivered in person, or the third business day after the day on which such
notice was mailed in accordance with this Section.
5
20. ARBITRATION.
(a) Except as provided in Section 19(c) below, the parties
hereto agree that any dispute or controversy arising out of, relating to, or in
connection with this Agreement, or the interpretation, validity, construction,
performance, breach, or termination thereof, shall be finally settled by binding
arbitration, unless otherwise required by law, to be held in Los Angeles,
California under the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association as then in effect. The arbitrator(s) may
grant injunctions or other relief in such dispute or controversy. The decision
of the arbitrator(s) shall be final, conclusive and binding on the parties to
the arbitration, and judgment may be entered on the decision of the
arbitrator(s) in any court having jurisdiction.
(b) The arbitrator(s) shall apply California law to the merits
of any dispute or claim, without reference to rules of conflicts of law.
(c) The parties may apply to any court of competent
jurisdiction for a temporary restraining order, preliminary injunction, or other
interim or conservatory relief, as necessary, without breach of this arbitration
agreement and without abridgement of the powers of the arbitrator.
(d) EMPLOYEE HAS READ AND UNDERSTANDS THIS SECTION, WHICH
DISCUSSES ARBITRATION. EMPLOYEE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT,
EMPLOYEE AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN
CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION,
PERFORMANCE, BREACH OR TERMINATION THEREOF TO BINDING ARBITRATION, UNLESS
OTHERWISE REQUIRED BY LAW, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER
OF EMPLOYEE'S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL
DISPUTES RELATING TO EMPLOYEE'S RELATIONSHIP WITH THE COMPANY, INCLUDING BUT NOT
LIMITED TO, CLAIMS OF HARASSMENT, DISCRIMINATION, WRONGFUL TERMINATION AND ANY
STATUTORY CLAIMS.
21. SEVERABILITY. The invalidity or unenforceability of any provision
of this Agreement, or any terms hereof, shall not affect the validity or
enforceability of any other provision or term of this Agreement.
22. INTEGRATION. This Agreement represents the entire agreement and
understanding between the parties as to the subject matter herein and supersede
all prior or contemporaneous agreements whether written or oral. No waiver,
alteration, or modification of any of the provisions of this Agreement shall be
binding unless in writing and signed by duly authorized representatives of the
parties hereto.
23. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal substantive laws, but not the choice of law rules,
of the State of California. 24. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be an original, and all of which
together shall constitute one and the same instrument.
6
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by their duly authorized officers, as of the day and
year first above written.
PIVX SOLUTIONS, INC.
By:
-------------------------------------
Xxxxxx Xxxxxxx Date
Chief Executive Officer
EMPLOYEE
----------------------------------------
Xxxxx Xxxxx Date
7
EXHIBIT A
---------
LIST OF PRIOR INVENTIONS
AND ORIGINAL WORKS OF AUTHORSHIP
TITLE DATE IDENTIFYING NUMBER OR BRIEF DESCRIPTION
----- ---- ---------------------------------------
_____ No inventions or improvements
_____ Additional Sheets Attached
Signature of Employee:____________________
Xxxxx Xxxxx
Date: __________________
EXHIBIT C
---------
PIVX SOLUTIONS, INC.
TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I
failed to return, any devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items belonging to PivX Solutions, Inc., its subsidiaries, affiliates,
successors or assigns (together, the "COMPANY").
I further certify that I have complied with all the terms of the
Employment Agreement signed by me, including the reporting of any inventions and
original works of authorship (as defined therein), conceived or made by me
(solely or jointly with others) covered by that agreement. I further agree that,
in compliance with the Employment Agreement, I will preserve as confidential all
trade secrets, confidential knowledge, data or other proprietary information
relating to products, processes, know-how, designs, formulas, developmental or
experimental work, computer programs, data bases, other original works of
authorship, customer lists, business plans, financial information or other
subject matter pertaining to any business of the Company or any of its
employees, clients, consultants or licensees.
I further agree that for twelve (12) months from this date, I will not
hire any employees of the Company and I will not solicit, induce, recruit or
encourage any of the Company's employees to leave their employment.
Date: _________________
_____________________________
Xxxxx Xxxxx
EXHIBIT D
---------
PIVX SOLUTIONS, INC.
CONFLICT OF INTEREST GUIDELINES
It is the policy of PivX Solutions, Inc. (the "COMPANY") to conduct its
affairs in strict compliance with the letter and spirit of the law and to adhere
to the highest principles of business ethics. Accordingly, all officers,
employees and independent contractors must avoid activities which are in
conflict, or give the appearance of being in conflict, with these principles and
with the interests of the Company. The following are potentially compromising
situations which must be avoided. Any exceptions must be reported to the Chief
Executive Officer and written approval for continuation must be obtained.
1. Revealing confidential information to outsiders or misusing
confidential information. Unauthorized divulging of
information is a violation of this policy whether or not for
personal gain and whether or not harm to the Company is
intended. (The Employment Agreement elaborates on this
principle and is a binding agreement.)
2. Accepting or offering substantial gifts, excessive
entertainment, favors or payments which may be deemed to
constitute undue influence or otherwise be improper or
embarrassing to the Company.
3. Participating in civic or professional organizations that
might involve divulging confidential information of the
Company.
4. Initiating or approving personnel actions affecting reward or
punishment of employees or applicants where there is a family
relationship or is or appears to be a personal or social
involvement.
5. Initiating or approving any form of personal or social
harassment of employees.
6. Investing or holding outside directorship in suppliers,
customers, or competing companies, including financial
speculations, where such investment or directorship might
influence in any manner a decision or course of action of the
Company.
7. Borrowing from or lending to employees, customers or
suppliers.
8. Acquiring real estate of interest to the Company.
9. Improperly using or disclosing to the Company any proprietary
information or trade secrets of any former or concurrent
employer or other person or entity with whom obligations of
confidentiality exist.
10. Unlawfully discussing prices, costs, customers, sales or
markets with competing companies or their employees.
11. Making any unlawful agreement with distributors with respect
to prices.
12. Improperly using or authorizing the use of any inventions
which are the subject of patent claims of any other person or
entity.
13. Engaging in any conduct which is not in the best interest of
the Company.
Each officer, employee and independent contractor must take every
necessary action to ensure compliance with these guidelines and to bring problem
areas to the attention of higher management for review. Violations of this
conflict of interest policy may result in discharge without warning.
