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EXHIBIT 10.8
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made as of March 17th,
2000, by and between XX.XXX, a California corporation ("Employer") and any of
its successor business entities (whether the successor is by way of merger,
acquisition or asset sale) and FREDRIK TORSTENSSON ("Executive").
In consideration of the foregoing and of the mutual covenants and
conditions herein contained, the parties hereby agree as follows:
1.1 EMPLOYMENT. Employer hereby employs Executives as Executive Vice
President of Business Development and Sales, and Executive accepts such
employment, upon the terms and subject to the conditions set forth in this
Agreement.
2.1 TERM. This Agreement shall commence on April 3rd, 2000, which will be
the first date of employment.
POSITIONS AND SERVICES
3.1 POSITION. Executive will initially occupy the position of Executive
Vice President of Business Development and Sales of Employer. Executive shall
report directly to Employer's Board of Directors or Chief Executive Officer.
3.2 BEST EFFORTS. During the employment period, Executive will devote his
best efforts and substantially all of his business time and attention to the
performance of his duties hereunder and to the business and affairs of
Employer, except for vacation periods as set forth herein and reasonable
periods of illness or other incapacities permitted by Employer's general
employment policies.
3.3 DUTIES. Executive shall perform such duties as are customarily
associated with his then current title(s), consistent with the Bylaws of
Employer and as required by Employer's Board of Directors ("Board"). Said
duties shall be performed at such place or places as Employer shall reasonably
designate or as shall be reasonably appropriate and necessary to the discharge
of Executive's duties in connection with his employment.
3.4 COMPANY POLICIES. The employment relationship between the parties
shall be governed by the general employment policies and practices of Employer,
including but not limited to those relating to protection of confidential
information and assignment of inventions. When the terms of this Agreement
differ from or are in conflict with Employer's general employment policies or
practices, this Agreement shall however prevail. Executive will duly,
punctually and faithfully observe Employer's general employment policies and
practices, including, without limitation, any and all rules, regulations,
policies and/or procedures which Employer may now or hereafter establish
governing the conduct of its business.
3.5 PLACE OF EMPLOYMENT. For at least the first 4 months of employment,
Executive will be temporarily based at Employees office in Stockholm, Sweden.
Employer shall, for the transport of Executive to Stockholm, and in all other
cases where Employer asks Executive to
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relocate, pay his and his family's reasonable moving and relocation expenses.
Employer shall furthermore provide Executive with a permanent work
authorization at his place of employment where such authorization is needed.
Employer shall assist Executive in compliance with all immigration laws and
shall pay the reasonable costs of such compliance, specifically including
attorneys' fees. Within ten (10) days of commencing work for Employer, Employer
shall take steps to file a petition with the INS for transfer of Executive's
H-1B Visa from Ericsson to Employer, and shall also begin the process of
sponsoring Executive for a permanent resident work authorization in the United
States. Also, in the event of relocation, Executive's base salary shall be
adjusted upward to reflect any additional taxation and other cost of living
increases associated with the relocation. The amount of increase will be
determined by any applicable CPI (Consumer Price Index) or other valid
indicator generally relied upon by industry or agreed upon by Employer and
Executive.
COMPENSATION
4.1 SALARY. Employer shall pay to Executive base salary at the annual
rate of the equivalence of US $150,000. Executive's salary shall be payable at
the same time and basis as Employer pays its payroll in general. If, during the
term of this Agreement, Executive is domiciled and his services are rendered
substantially in the United States, payment of Executive's salary shall be paid
in US dollars and shall be subject to deductions for social security, federal
and state payroll taxes and unemployment and other standard deductions and
withholdings. Otherwise Executive's salary according to this agreement shall be
paid in the currency of the country in which he is domiciled and his salary
shall be subject to all applicable local withholding requirements. The
relocation of Executive shall not affect his salary unless otherwise agreed in
writing between the parties to this Agreement. Employer agrees that Executive's
salary, when paid in non-US currency, shall be the equivalent of at least US
$7,500 per month net (after taxes and withholding are deducted), based on the
foreign currency's exchange rate with the US dollar, as determined on a
quarterly basis (January 1, April 1, July 1, October 1), by reference to the
exchange rates published in the Wall Street Journal or similar periodical.
4.2 ACCOMMODATION EXPENSES/CAR ALLOWANCE. Employer will, during the term
of this Agreement, bear reasonable expenses of Executive and his family for
accommodation at the place of employment of Executive. The accommodation
provided must be at minimum a two bedroom furnished apartment within approx.
fifteen minute commute from Employer's facilities. Employer will furthermore
pay the equivalence of US $500 per month to Executive in car allowance.
4.3 PARTICIPATION IN BENEFIT PLANS. During the term hereof, Executive
shall be entitled to participate in any and all profit-sharing, group insurance,
hospitalization, medical, dental, health and accident, disability or similar
plan or program of Employer now existing or established hereafter for
executives.
4.4 VACATION. Executive shall be entitled to a period of annual vacation
time equal to that provided to employees of equal position by Employer's
policies and procedures regarding
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vacation, but in no event less than five weeks per year (including one week off
between Christmas and New Years Day during which the offices of Employer will
be closed). The days selected for Executive's vacation must be mutually
agreeable to Employer and Executive.
4.5 EXECUTIVE BONUS PROGRAM. As a sign-on bonus, Executive shall be
entitled to payment of the equivalence of $15,000, to be paid no later than ten
(10) days after the first day of employment according to this Agreement.
Executive shall be eligible for an annual cash bonus, which shall not exceed
one hundred and twenty percent (120%) of his basic salary for such period. The
bonus, payable on April 15th each year, shall be determined in accordance with
the following linear formula:
" equivalent of US $5,000 in bonus for every $1 million in worldwide sales in
year 2000 (e.g., $50,000 if sales are US $10,000,000)
" equivalent of US $6,667 in bonus for every $1 million in worldwide sales in
year 2001 (e.g., US $100,000 if sales are US $15,000,000)
" equivalent of US $5,000 in bonus for every $1 million in worldwide sales in
year 2002 (e.g., US $150,000 if sales are $30,000,000)
If, during the term of this Agreement, Executive is domiciled and his services
are rendered substantially in the United States, payment of Executive's salary
and bonus shall be paid in US dollars and shall be subject to deductions for
social security, federal and state payroll taxes and unemployment and other
standard deductions and withholdings. Otherwise Executive's salary according to
this agreement shall be paid in the currency of the country in which he is
domiciled and his salary and bonus shall be subject to all applicable local
withholding requirements.
Employer agrees the Executive's bonus, including sign-on bonus, when paid in
non-US currency, shall be the equivalent of at least 60% net of the entire
bonus amount payable in United States dollars, based on the foreign currency's
exchange rate with the US dollar, as determined on a quarterly basis (January
1, April 1, July 1, October 1), by reference to the exchange rates published in
the Wall Street Journal or similar periodical. By way of example, if the bonus
payable would be US $100,000 subject to US withholding, Employer shall ensure
that the net amount paid to Executive shall at least equal 60,000 US net dollar.
In this Agreement "world wide sales" shall mean sales by Employer to persons or
entities, as determined in Employer's audited annual financial statement,
prepared in accord with generally accepted accounting principles. World wide
sales shall be calculated on March 31 of the year following the year for which
the bonus is to be granted.
4.6 STOCK OPTIONS. Executive shall be granted an incentive stock option to
purchase up to 200,000 shares of Employer's common stock under the terms of the
OZ Interactive, Inc. 1995 Stock Option Plan ("Stock Option Plan"), as amended.
These options will be due and exercisable in three equal annual installments,
the first being due and exercisable one year from the first day of employment,
the second being due and exercisable two years from the first day of employment,
and the third being due and exercisable three years from the first date of
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employment. In addition and according to the same terms, Executive shall be
granted a performance-based option to purchase shares, if still employed on the
first, second, and third anniversary dates of his first day of employment,
respectively, in accordance with the following schedule:
" 16,700 shares if world wide sales reach or exceed $10,000,000 in the year
2000 (on first anniversary date of employment);
" 16,700 shares if world wide sales reach or exceed $15,000,000 in the year
2001 (on second anniversary date of employment);
" 16,700 shares if world wide sales reach or exceed $30,000,000 in the year
2002 (on third anniversary date of employment).
TERMINATION
5.1 DEATH OR DISABILITY. If Executive is prevented from performing duties
hereunder by reason of illness or injury for: (i) a period of six (6) or more
consecutive months or (ii) more than 180 days in any consecutive twelve month
period (the date of the determination of disability under clause (i) or (ii)
shall be referred to as the "EFFECTIVE DATE OF DISABILITY"), or if Executive
dies during employment, Employer shall pay to the Executive (or in the case of
death to the executors under Executive's last will and testament), the base
salary that would otherwise be payable to the Executive under this Agreement
through the end of the six (6) month following the month in which the
Executive's Effective Date of Disability or death occurs, as the case may be,
and a bonus pro-rated and based on the amount of worldwide sales during the
months of Executive's employment. Executive's (or his Estate's) rights to
purchase stock pursuant to Article 4.6 of this Agreement shall not be
interrupted. This shall occur notwithstanding any contrary terms in the Stock
Option Plan or the Stock Option Agreement. Such payments as described in this
article shall constitute all of Employer's obligations to Executive in the event
of Executive's, death or disability, and all compensation and benefits, except
benefits provided by law (e.g., COBRA health insurance continuation benefits),
shall otherwise cease to accrue. The determination regarding whether Executive
is unable to perform duties hereunder shall be made by Employer's Board of
Directors in the reasonable, good faith exercise of its judgment.
5.2 TERMINATION. This Agreement does not grant Executive any right or
entitlement to be retained by the Employer, and shall not affect or prejudice
Employer's right to discharge the Executive in accordance herewith with or
without cause.
6.1 EMPLOYMENT AT WILL. This Agreement is a contract of employment at
will. This means that employment will continue only so long as both Employer
and Executive want it to do so. Executive is free to quit at any time at his
discretion and Employer is free to terminate Executive's employment at any time
at its discretion.
6.2 TERMINATION WITHOUT CAUSE. Employer's Board may terminate Executive's
employment with Employer at any time, upon thirty days' written notice, without
"cause," as defined below. In the event Executive's employment is terminated
without cause or in the event Executive resigns for "good reason", as defined in
Section 6.5, within the first 12 months of
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employment, Executive shall be entitled in a twelve-month continuation of his
base salary and 50% of the total stock options pursuant to Section 4, excluding
the performance-based options. In the event Executive's employment is
terminated without cause or in the event Executive resigns for "good reason",
as defined in Section 6.5, after the first 12 months of employment. Executive
shall be entitled to a twelve-month continuation of his base salary and all of
the stock options pursuant to Section 4, excluding the performance-based
options. Such salary and benefits shall constitute the entirety of Employer's
obligations to Executive in the event of the termination of Executive's
employment without cause, except benefits provided by law (e.g., COBRA health
insurance continuation benefits). All salary payable under this Section shall
be paid at the same time and basis as Employer pays its payroll in general.
6.3 TERMINATION WITH CAUSE. Employer's Board may terminate Executive's
employment with Employer at any time for cause, immediately upon notice to
Executive of the circumstances leading to such termination for cause. In the
event that Executive's employment is terminated for cause, all compensation and
benefits, except benefits provided by law (e.g., COBRA health insurance
continuation benefits), will immediately cease to accrue, and all compensation
and, except as otherwise required by applicable law, benefits accrued and
options/warrants due and exercisable at the date of termination shall be
paid/offered to Executive within a reasonable time thereafter but in no event
later than thirty days. The date of termination shall be the date upon which
notice of termination is given. Employer shall have no further obligation to
pay severance of any kind nor to make any payment in lieu of notice.
6.4 DEFINITION OF CAUSE. For the purposes of this Agreement, "cause" shall
mean: (a) insubordination (defined as intentional refusal to execute or carry
out directions from the Board); (b) conviction of any felony or any crime
involving moral turpitude; (c) continuing willful and material breach of
Executive's duties to Employer, after Executive has been given 30 days' written
notice of the breach and specific instructions as to how to cure it, if in the
good faith, reasonable determination of the Board, Executive has failed to cure
the breach after 30 days.
6.5 GOOD REASON. The Executive shall have "good reason" to resign his
employment under this Agreement if any of the following occur:
(a) any decrease in Executive's compensation or change in his eligibility
to participate in Employer's benefit plans, insurance programs,
incentive and bonus plans and deferred compensation plans; or the sale
or transfer of more than fifty percent (50%) of the beneficial
ownership interest in the equity of XX.XXX, to an entity or entities
not affiliated with XX.XXX.
(b) any attempt to change Executive's eligibility for Employer's stock; or
(c) any change in Executive's title, reporting or responsibilities; or
(d) any material breach by Employer of any term or provision of this
Agreement.
7.1 BREACH OR VIOLATION OF AGREEMENT. The parties agree that a breach or
violation of this Agreement will result in immediate and irreparable injury and
harm to the innocent party, who shall have, in addition to any and all remedies
of law, the right to an injunction, specific
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performance or other equitable relief to prevent the violation of the
obligations hereunder, plus reasonable attorneys' fees and costs incurred in
obtaining any such relief.
8.1 NOTICES. Any notice required to be given pursuant to the provisions
of this Agreement shall be in writing and, if mailed, sent by registered or
certified mail, postage prepaid, or by an overnight delivery service, to the
party named at the address set forth below, or at such other address as each
party may hereafter designate in writing to the other party.
Employer: XX.XXX
C/O Xxx X. Xxxxxx, CFO
Snorrabraun 00
XX-000 Xxxxxxxxx, Xxxxxxx
with a copy to: Xxxxxx X. Xxxxx, Esq.
Xxxxx & Xxxxx
00000 Xxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Executive: ________________________
________________________
________________________
Any such notices shall be deemed to have been delivered when served personally
(including personal delivery by telecopy), within five business days after
being mailed by registered or certified mail, or within two business days after
being mailed by an overnight delivery service.
9.1 ENTIRE AGREEMENT. This Agreement and certain Proprietary Information
and Inventions Agreement by and between Executive and Employer of even date
herewith supersede all prior discussions, negotiations and agreements between
the parties with respect to the subject matter, or otherwise in consideration
hereof, and reflects their entire agreement.
10.1 CHANGE, MODIFICATION, WAIVER. No change or modification of this
Agreement shall be valid unless it is in writing and signed by each of the
parties hereto. No waiver of any provision of this Agreement shall be valid
unless it is in writing and signed by the party against whom the waiver is
sought to be enforced. The failure of a party to insist upon strict performance
of any provision of this Agreement in any one or more instances shall not be
construed as a waiver or relinquishment of the right to insist upon strict
compliance with such provision in the future.
11.1 SEVERABILITY OF PROVISIONS. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision, but this Agreement will be reformed,
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construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provisions had never been contained herein.
12.1 SUCCESSORS AND ASSIGNS. The services and duties to be performed by
Executive hereunder are personal and may not be assigned. This Agreement shall
be binding upon and inure to the benefit of Employer its successors and
assigns, and Executive, his heirs and representatives. This Agreement shall be
assignable by Employer to any successor entity to Employer, or any entity
controlled by or under common control with Employer.
13.1 ATTORNEYS' FEES. If any legal proceeding is necessary to enforce or
interpret the terms of this Agreement, or to recover damages for breach
therefore, the prevailing party shall be entitled to reasonable attorneys' fees,
as well as costs and disbursements, in addition to any other relief to which he
or it may be entitled.
ARBITRATION OF DISPUTES
14.1 CHOICE OF ARBITRATION. All disputes in connection with this
Agreement or the execution thereof shall be amicably settled through
negotiation. Any and all disputes arising out of or in connection with the
present Agreement that cannot be settled amicably, shall be settled in
accordance with the Rules of Conciliation and Arbitration of the International
Chamber of Commerce ("ICC.") or by any other body mutually agreed upon by the
parties. Pre-arbitration discovery shall be permitted at the request of either
party under appropriate protection for proprietary and confidential business
information. If any terms in this Section 14 are inconsistent with the rules of
the ICC in effect at the time of the dispute, then the rules of the ICC shall
prevail.
14.2 NOTICE AND ATTEMPTS TO RESOLVE. Before filing a demand for
arbitration, a party must send the other party written notice identifying the
matter in dispute and invoking the procedures in this paragraph. Such written
notice shall be sent promptly after the party knew or reasonably should have
known of an alleged violation of this Agreement. Within fifteen days after such
written notice is given, one or more principals of each party shall meet at a
mutually agreeable, for the purpose of determining whether they can resolve the
dispute themselves by written agreement. If the parties fail to resolve the
dispute by written agreement within the fifteen-day period, the complaining
party may then initiate the arbitration process by filing a demand with the ICC
or such other body as the parties may agree upon. Nothing in this paragraph
shall prevent a party from seeking temporary equitable relief, from ICC or such
other body as the parties may mutually agree upon, during the fifteen-day
period if necessary to prevent irreparable harm.
14.3 NUMBER OF ARBITRATORS. There shall be three arbitrators to be chosen
in accordance with the then current ICC rules for selecting arbitrators. Either
party may disqualify any individual arbitrator who is a present or past
employee, owner, or consultant to the opposing party or a competing
organization.
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14.4 LOCATION AND PROCEDURES. The place of arbitration shall be
Massachusetts, unless the parties mutually agree upon another location. The
language of the proceedings shall be English. In its decision, the arbitration
panel shall apply the provisions of this Agreement first and foremost. If and
when this Agreement does not provide solutions to given problems, the panel
shall apply the law of Massachusetts. The procedural rules of the Arbitration of
the International Chamber of Commerce shall govern the proceedings. At the
request of either party, arbitration proceedings will be conducted in the utmost
secrecy and, in such case, all documents, testimony and records shall be
received, heard and maintained by the arbitrators in secrecy under seal,
available for inspection only by Executive and Employer, their respective
attorneys, and their respective experts, consultants or witnesses who shall
agree, in advance and in writing, to receive all such information confidentially
and to maintain such information in secrecy, and make no use of such information
except for the purposes of the arbitration, until such information shall become
generally known.
14.5 POWER OF ARBITRATORS. The arbitrators, who shall act by majority
vote, shall be able to decree any and all relief of an equitable nature,
including but not limited to such relief as a temporary restraining order, a
temporary injunction, or a permanent injunction, and shall also be able to
award damages, with or without an accounting and costs. The decree or judgment
of an award rendered by the arbitrators may be entered in any court having
jurisdiction over the parties.
14.6 RIGHTS OF PREVAILING PARTIES. If any action is necessary to enforce
or interpret the terms of this Section 14, the prevailing party shall be
entitled to reasonable attorneys' fees, costs, and necessary disbursements in
addition to any other relief to which that party may be entitled.
MISCELLANEOUS
15.1 FORM. As used in this Agreement, the singular form shall include, if
appropriate, the plural.
15.2 HEADINGS. The headings used in this Agreement are solely for the
convenience and reference of the parties and are not intended to be
descriptive of the entire contents of any paragraph and shall not limit or
otherwise affect any of terms, provisions, or constrictions thereof.
15.3 CONFIDENTIAL INFORMATION. Before the first date of employment,
Executive shall have signed and returned to Employer the Attached Proprietary
Information and Inventions Agreement.
IN WITNESS WHEREOF, this Agreement is executed as of the date first above
written.
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By: /s/ XXXXX XXXXXXXX /s/ FREDRIK TORSTENSSON
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For the Board of Directors Fredrik Torstensson
