EXHIBIT 10.25
EMPLOYMENT AGREEMENT
This Agreement, is entered into by and between XXXX.xxx, Inc. ("XXXX.XXX"), and
Xxxx Xxxxxxxxxxx ("Employee") and is effective as of December 8, 1998. XXXX.XXX
and Employee agree to the following terms and conditions of employment.
1. Position and Responsibilities. Employee is employed by XXXX.XXX as Vice
President of Corporate Development and agrees to perform all services
appropriate to that position, as well as such other services as may be assigned
by XXXX.XXX. Employee shall devote his best efforts and full-time attention to
the performance of his duties and shall not accept any other employment or
engage in any other business, commercial, or professional activity that is or
may be competitive with XXXX.XXX, that might create a conflict of interest with
XXXX.XXX, or that otherwise might interfere with the business of XXXX.XXX or any
affiliate. Employee may serve as a director or as a member of the advisory
board of any company provided that he complies with the restrictions set forth
in Section 1 and Section 4.
2. Compensation and Benefits. XXXX.XXX shall pay Employee a base salary at the
rate of One Hundred and Twenty Thousand Dollars ($120,000) per year and a
discretionary annual bonus of up to Fifty Thousand ($50,000) to be paid
quarterly upon achievement of personal and company targets to be defined.
Employee will be eligible for an annual review of this agreement no later than
one year from the date of this agreement.
Employee shall receive benefits from all present and future benefit plans set
forth in XXXX.XXX's policies and generally made available to similarly situated
employees (as these policies may be amended). XXXX.XXX may, in its sole
discretion, adjust Employee's compensation and benefits provided under this
Agreement.
3. Termination of Employment.
(a) By Employer Not For Cause. Except as modified in section 3(c), below, at
any time, XXXX.XXX may terminate Employee's employment for any reason, with
or without Cause, by providing one hundred eighty (180) days' advance
written notice, and shall have the option, in its discretion, to terminate
Employee's employment at any time prior to the end of such notice period,
provided XXXX.XXX pays Employee an amount equal to the base compensation
Employee would have earned through the balance of the above notice period
plus benefits, thereafter all of XXXX.XXX's obligations under this
Agreement shall cease. In the event that XXXX.XXX exercises its right to
terminate Employee's employment upon notice under the terms of this
subsection, Employee shall be immediately entitled to exercise one hundred
percent (100%) of any stock options granted by XXXX.XXX that had not
previously vested. If the stock of XXXX.XXX or any parent company is
publicly traded, Employee's exercise of stock options subject to vesting
under this subsection must be made within four (4) months of the date upon
which Employee was informed of XXXX.XXX's intent to terminate his
employment.
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In the event XXXX.XXX's stock is not publicly traded, Employee's exercise of
stock options must be made within twelve (12) months of the date upon which
Employee was informed of XXXX.XXX's intent to terminate his employment.
XXXX.XXX may dismiss Employee with or without cause notwithstanding anything to
the contrary contained in or arising from any statements, policies, or practices
of XXXX.XXX relating to employment, discipline, or termination.
(b) By Employer For Cause. Except as modified in section 3(c), below, at any
time, XXXX.XXX may terminate Employee for Cause (as defined below).
XXXX.XXX shall pay Employee all compensation then due; thereafter, all of
XXXX.XXX's obligations under this Agreement shall cease. "Cause" shall
include:
1. unsatisfactory performance, misconduct, failure to follow policies or
procedures, material breach of this Agreement, and excessive
absenteeism. XXXX.XXX shall provide at least one appropriate written
warning of specific deficiencies and provide a reasonable period not
to exceed thirty days for Employee to cure any such deficiencies.
2. to the extent permitted by law, unavailability for work due to
disability for more than ninety (90) days in any one (1) year period.
3. Committing a felony, an act of fraud against or the willful
misappropriation of property belonging to XXXX.XXX.
4. Conviction in a court of competent jurisdiction of a felony or
misdemeanor which adversely and materially affects the ability of the
executive to perform his duties, obligations and responsibilities
herein or the good name, goodwill or reputation of XXXX.XXX.
(c) By Employer Following Change in Control or Corporate Transaction.
Notwithstanding the foregoing, in the event that Employee's employment is
involuntarily terminated or Constructively Terminated (as defined herein) by
XXXX.XXX, or any successor or assign of XXXX.XXX, for any reason, with or
without cause (as defined above), following a Change in Control or Corporate
Transaction or the execution of a letter of intent that, by its terms,
ultimately results in a Change in Control or Corporate Transaction, as those
terms are defined in the XXXX.XXX, Inc. 1998 Stock Incentive Plan, Employee
shall be entitled to payment of an amount equal to six months (6) month's base
compensation plus benefits; thereafter, all obligations of XXXX.XXX, or any
successor or assign of XXXX.XXX, under this Agreement shall cease. In the
event that Employee's employment is terminated or Constructively Terminated
under the terms of this subsection, Employee shall be immediately entitled to
exercise any and all stock options granted by XXXX.XXX that had not previously
vested. "Constructive Termination" shall mean (i) a material reduction in
Employee's salary or benefits not agreed to by the Employee; or (ii) a material
change in Employee's position or responsibilities not agreed to by the Employee;
or (iii) XXXX.xxx's (or its successors' or assigns') failure to comply in all
material respects with any material term of this Agreement.
(d) By Employee. At any time, Employee may terminate his employment for any
reason, with
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or without cause, by providing XXXX.XXX thirty (30) days' advance written
notice. XXXX.XXX shall have the option, in its complete discretion, to make
Employee's termination effective at any time prior to the end of such notice
period, provided XXXX.XXX pays Employee all compensation due and owing through
the last day actually worked, plus an amount equal to the base salary Employee
would have earned through the balance of the above notice period, not to exceed
thirty (30) days; thereafter, all of XXXX.XXX's obligations under this Agreement
shall cease.
(e) Termination Obligations. Employee agrees that all property, including
tangible Proprietary Information (as defined below), documents, records, notes,
contracts, and computer-generated materials furnished to or prepared by Employee
related to his employment, belongs to XXXX.XXX and shall be returned promptly to
XXXX.XXX upon termination. Employee's obligations under this subsection shall
survive the termination of his employment and the expiration of this Agreement.
4. Proprietary Information. "Proprietary Information" is all information and
any idea pertaining in any manner to the business of XXXX.XXX (or any
affiliate), its employees, clients, consultants, or business associates, which
was produced by any employee of XXXX.XXX in the course of his or her employment
or otherwise produced or acquired by or on behalf of XXXX.XXX. Proprietary
Information shall include, without limitation, trade secrets, product ideas,
inventions, processes, formulas, data, know-how, software and other computer
programs, copyrightable material, marketing plans, strategies, sales, financial
reports, forecasts, and customer lists. All Proprietary Information not
generally known outside of XXXX.XXX's organization, and all Proprietary
Information so known only through improper means, shall be deemed "Confidential
Information." During his employment, Employee shall use Proprietary
Information, and shall disclose Confidential Information, only for the benefit
of XXXX.XXX and as is necessary to perform his job responsibilities under this
Agreement. Following termination, Employee shall not use any Proprietary
Information and shall not disclose any Confidential Information, except with the
express written consent of XXXX.XXX. By way of illustration and not in
limitation of the foregoing, following termination, Employee shall not use any
Confidential Information to compete against XXXX.XXX or employ any of its
employees. Employee further agrees that for one (1) year following termination,
he shall not solicit any customer or employee of XXXX.XXX. Employee's
obligations under this Section shall survive the termination of his employment
and the expiration of this Agreement.
5. Integration and Amendment. This Agreement is intended to be the final,
complete, and exclusive statement of the terms of Employee's employment. This
Agreement supersedes all other prior and contemporaneous agreements and
statements, whether written or oral, express or implied, pertaining in any
manner to the employment of Employee, and it may not be contradicted by evidence
of any prior or contemporaneous statements or agreements. To the extent that
the practices, policies, or procedures of XXXX.XXX, now or in the future, apply
to Employee and are inconsistent with the terms of this Agreement, the
provisions of this Agreement shall control.
This Agreement may not be amended except by a written agreement signed by each
of the
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parties. Failure to exercise any right under this Agreement shall not constitute
a waiver of such right.
6. Interpretation. This Agreement shall be governed by and construed in
accordance with the law of the State of California. This Agreement shall be
construed as a whole, according to its fair meaning, and not in favor of or
against any party. By way of example and not in limitation, this Agreement
shall not be construed in favor of the party receiving a benefit nor against the
party responsible for any particular language in this Agreement. If a court or
arbitrator holds any provision of this Agreement to be invalid, unenforceable,
or void, the remainder of this Agreement shall remain in full force and effect.
Captions are used for reference purposes only and should be ignored in the
interpretation of the Agreement.
7. Acknowledgment. Employee acknowledges that he has had the opportunity to
consult legal counsel in regard to this Agreement, that he has read and
understands this Agreement, that he is fully aware of its legal effect, and that
he has entered into it freely and voluntarily and based on his own judgment and
not on any representations or promises other than those contained in this
Agreement.
8. Successors and Assigns. This Agreement shall be binding upon, and inure to
the benefit of and shall be enforceable by the respective successors and assigns
of the parties hereto, as well as the Employee's heirs, executor or
administrator.
9. Waiver, Modification or Amendment. No amendment of, or waiver of any
obligations under this Agreement will be enforceable unless set forth in a
writing signed by the party against which enforcement is sought.
The parties have duly executed this Agreement as of the date first written
above.
EMPLOYEE XXXX.XXX, INC.
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By: By: Xxxxxxx Xxxxx
Its: President and CEO
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