EXHIBIT 10.31
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of February 28, 2003, (the
"Effective Date") by and between EXTENDED SYSTEMS, INCORPORATED, a Delaware
corporation (hereinafter referred to as the "Employer"), and Xxxxxxx Xxxxxx
hereinafter referred to as the "Employee").
W I T N E S S E T H:
The Employer wishes to employ the Employee, and the Employee agrees to
accept such employment, on the terms and conditions set forth herein.
NOW THEREFORE, based on the foregoing premises and for and in
consideration of the mutual promises contained herein, the Employer and Employee
agree as follows:
1. EMPLOYMENT. From and after the Effective Date, Employer agrees to
employ the Employee and Employee agrees to accept such employment as the Vice
President of World Wide Sales and Marketing of Extended Systems, Incorporated
(the "Employer"). Employee and Employer acknowledge and agree that such
employment will be in accordance with Employer's standard employment policies,
and Employee agrees to be bound by such employment policies, which shall be in
addition to the terms and conditions contained herein. Employee further
acknowledges that Employer policy manual or other similar documents are to be
explanations of benefits or programs, and they do not change the terms of this
Employment Agreement.
2. AT-WILL EMPLOYMENT. The parties agree that Employee's employment
with the Employer will be "at-will" employment and may be terminated at any time
with or without cause or notice. Employee understands and agrees that neither
his/her job performance nor promotions, commendations, bonuses or the like from
the Employer give rise to or in any way serve as the basis for modification,
amendment, or extension, by implication or otherwise, of his/her employment with
the Employer.
3. DUTIES OF EMPLOYEE. Employee agrees to perform the duties
commensurate with employee's position and experience and as shall be assigned to
employee from time to time by the Employer. Employee shall perform such duties
in a diligent and loyal manner, shall devote his/her entire business time,
attention, and efforts to the affairs of Employer within the scope of his/her
employment as is reasonably necessary for the proper rendition of such services
and shall diligently promote the interest of Employer. Employee shall not
intentionally take any action against the best interest of Employer, or of
Employer's parent, any other subsidiary, or affiliate of Employer. Employee
agrees not to actively engage in any other employment, occupation or consulting
activity for any direct or indirect remuneration without the prior approval of
the Employer. Employee and the company will mutually agree if the employee's
participation on outside boards of directors will be acceptable
4. SCOPE OF EMPLOYMENT. The general scope of Employee's employment
shall be to serve as the Vice President of World Wide Sales and Marketing for
Employer and to perform such duties as described in Exhibit "A", attached
hereto, and such other duties as may be mutually agreed upon by the parties in
accordance therewith as Employer may reasonably request.
5. COMPENSATION.
(a) BASE SALARY. While employed hereunder, the Employer will
pay Employee as compensation for his services a base salary at the monthly rate
of $14,584 (the "Base Salary"). The Base Salary will be paid periodically in
accordance with the Employer's normal payroll practices and be subject to the
usual, required withholding. In addition to base pay, employee will be entitled
to a commission plan. Current commission plan targets and details are outlined
and attached in Exhibit "B" Subsequent commission plan targets and details will
be agreed upon at the beginning of each fiscal year by employee and employer.
The employee shall also be entitled to participate in any generally applicable
executive stock and cash compensation bonus plans, when put in place by the CEO
and compensation committee of the Board of Directors of the company.
(b) STOCK OPTION. On the "effective date", Employee will be
granted a stock option to purchase 180,000 shares at an exercise price per share
equal to the per share FMV of ESI Stock on the date of grant (the "Option"). The
Option will vest as to 25% of the shares shall vest twelve months after the
Vesting Commencement
Date, and as to 1/48th of the shares subject to the Option shall vest each month
thereafter, so that the Option will be fully vested and exercisable four (4)
years from the date of grant, subject to Employee's continued service to the
Employer on the relevant vesting dates. The Option will be subject to the terms,
definitions and provisions of the Employer's Stock Plan and the stock option
agreement by and between Employee and the Employer, both of which documents are
incorporated herein by reference; provided, that Employee shall have until the
first anniversary of his termination date to exercise any options which are
vested or deemed vested as of such date. Options will be priced at FMV at close
of market on the date of the grant.
(c) EMPLOYEE BENEFITS. While employed hereunder, Employee will
be entitled to participate in the employee benefit plans currently and hereafter
maintained by the Employer of general applicability to other employees of the
Employer, including, without limitation, the Employer's group medical, dental,
vision, disability, and life insurance plans. The Employer reserves the right to
cancel or change the benefit plans and programs it offers to its employees at
any time.
6. VACATION. Employee shall accrue three (3) weeks of paid vacation in
accordance with Employer's time-off policy. Vacation is subject to the
requirements of Employer's time-off policy. In the event Employee is terminated
for any reason, Employee shall be paid his/her accrued vacation at 100 % of
normal base pay
7. NOTICE OF TERMINATION. Each party agrees to provide the other with
14 days notice of termination, provided, however, this shall not alter any other
term of this Agreement.
8. SEVERANCE PAY. In the event Employee is involuntarily terminated by
the Employer without cause, Employee shall be entitled to six (6) months of pay,
at Employee's current base salary, (100 % of normal base pay) to be paid
periodically in accordance with Employer's normal payroll practices and subject
to the usual and required withholding, plus a lump sum of $2,000 in lieu of
fringe benefits, and payout of accrued vacation, to be paid at or as soon as
practicable following such termination. In order to receive such salary and lump
sum payment, Employee must execute and not revoke the employer's then current
"Release of All Employment Claims," (Participation in all stock option plans,
stock purchase plans, and other company personnel benefits shall cease on the
Employee's date of termination, subject to the specific provisions of option
agreements or plans that may extend Employee's rights beyond date of
termination. Should employee violate any of the provisions of this agreement,
engage in any criminal activity, or engage in any activity which employer deems
to be detrimental to its business, employer may terminate this agreement for
cause and employee will not be entitled to a severance package. In the event of
a Change of Control, as defined below, the six (6) month base salary termination
shall be increased to twelve (12) months. Employee is responsible for any tax
consequences triggered by severance payment or a Change in Control.
For purposes of this Section 8, a "Change of Control" will include: (a)
the acquisition of the Employer by another entity by means of any transaction or
series of related transactions (including, without limitation, any stock
acquisition, reorganization, merger or consolidation) other than a transaction
or series of transactions in which the holders of the voting securities of the
Employer outstanding immediately prior to such transaction continue to retain
(either by such voting securities remaining outstanding or by such voting
securities being converted into voting securities of the surviving entity), as a
result of shares in the Employer held by such holders prior to such
transactions, at least fifty percent (50%) of the total voting power represented
by the voting securities of the Employer or such surviving entity outstanding
securities immediately after such transaction or series of transactions; or (b)
a sale, lease or other conveyance of all or substantially all of the assets of
the Employer
If, within twelve (12) months following a Change of Control, (i)
Employee terminates his or her employment with the Employer or the successor
corporation due to an Involuntary Termination, or (ii) the Employer or the
successor corporation terminates Employee's employment with the Employer or the
successor corporation without cause, then all of the stock options granted by
the Company on to the Employee prior to the Change of Control that are, as of
the date of the termination, not fully vested and exercisable shall become fully
vested and exercisable as of the date of the termination to the extent such
stock options are outstanding and unexercisable at the time of such termination.
This clause applies to all stock options granted to employee on effective date
and going forward. This clause does not apply to any previously granted stock
options.
"Involuntary Termination" shall mean (i) without the Employee's express
written consent, a significant reduction of the Employee's duties, position or
responsibilities relative to the Employee's duties, position or responsibilities
in effect immediately prior to such reduction, or the removal of the Employee
from such position, duties and responsibilities, unless the Employee is provided
with comparable duties, position and responsibilities; provided, however, that a
reduction in duties, position or responsibilities solely by virtue of the
Employer being acquired and made part of a larger entity (as, for example, when
the Chief Financial Officer of the Employer remains as such following a Change
of Control but is not made the Chief Financial Officer of the acquiring
corporation) shall not constitute an "Involuntary Termination;" (ii) without the
Employee's express written consent, a substantial reduction, without good
business reasons, of the facilities and perquisites (including office space and
location) available to the Employee immediately prior to such reduction; (iii)
without the Employee's express written consent, a reduction by the Employer of
the Employee's base salary as in effect immediately prior to such reduction;
(iv) without the Employee's express written consent, a material reduction by the
Employer in the kind or level of employee benefits to which the Employee is
entitled immediately prior to such reduction with the result that the Employee's
overall benefits package is significantly reduced; (v) without the Employee's
express written consent, the relocation of the Employee to a facility or a
location more than fifty (50) miles from his current location; (vi) any
purported termination of the Employee by the Employer that is effected without
cause or for which the grounds relied upon are not valid; or (vii) the failure
of the Employer to obtain the assumption of this Agreement by any successors
contemplated in Section 18 below.
If Employee's employment with the Employer is terminated by the
Employee , then (i) all vesting of the Option will terminate immediately and all
payments of compensation by the Employer to Employee hereunder will terminate
immediately (except as to amounts already earned), and (ii) Employee will only
be eligible for severance benefits in accordance with the Employer's established
policies as then in effect.
Effective the date the Employee's employment with the Employer is
terminated by either the Employer or the Employee, the Employee shall have a
period of (90) ninety days following such termination date to fully exercise any
remaining vested shares that resulted from option grants during the duration of
the employment.
9. CONFIDENTIAL INFORMATION. Employee agrees to sign the Nondisclosure
Agreement.
10. RETURN OF PROPERTY. On termination of his/her employment with
Employer, Employee will immediately surrender to Employer, in good condition,
all sales manuals, price lists, customer account lists, copies of invoices,
mailing lists, letters, notes, memoranda, design specifications, drawings,
minutes of meetings, financial reports, computer software programs, source
codes, works in progress and any other similar items that have been supplied to
Employee by Employer, or generated by Employee for the Employer's use or
business and that are in Employee's possession, custody, or control wherever
located, including all reproductions or copies of such materials. Unless the
severance is as a result of a change of control, in this event the employee will
be granted company owned office equipment in his possession, not to exceed
$5000.
11. EQUITABLE RELIEF. In the event of a breach of any covenant
contained in this Agreement, the non-breaching party shall be entitled to an
injunction restraining such breach in addition to any other remedies provided by
law or in equity.
12. ASSIGNMENT OF INVENTIONS.
(a) INVENTIONS RETAINED AND LICENSED. The Employee has
attached to this Employment Agreement, as Exhibit "C" a list describing all
inventions, original works of authorship, developments, improvements, and trade
secrets that were made by him/her prior to his/her employment with the Employer,
that relate to the Employer's proposed business, products or research and
development, and that are not assigned to the Employer under this Employment
Agreement (collectively, "Prior Inventions"). If no such list is attached, the
Employee represents that there are no Prior Inventions. If in the course of the
Employee's employment with the Employer, he/she incorporates into an Employer
product, process or machine a Prior Invention owned by him/her or in which
he/she have an interest, the Employer is granted a nonexclusive, royalty-free,
irrevocable, perpetual, worldwide license to make, have made, modify, use and
sell the Prior Invention as part of or in connection with the Employer's
product, process or machine.
(b) ASSIGNMENT OF INVENTIONS. The Employee will promptly make
a full written disclosure to the Employer, will hold in trust for the sole right
and benefit of the Employer, and hereby assigns to the Employer, or its
designee, all his/her 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, that he/she 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 the
Employee is in the employ of the Employer (collectively referred to as
"Inventions"). The Employee further acknowledges that all original works of
authorship that are made by him/her (solely or jointly with others) within the
scope of and during the period of his/her employment with the Employer and that
are protectable by copyright are "works made for hire," as that term is defined
in the United States Copyright Act. The decision whether or not to commercialize
or market any Invention developed by the Employee solely or jointly with others
is within the Employer's sole discretion and for the Employer's sole benefit.
Neither the Employer nor any other entity will pay the Employee a royalty as a
result of the Employer's efforts to commercialize or market any such Invention.
The Employee will not incorporate any original work of authorship, development,
concept, improvement, or trade secret owned, in whole or in part, by any third
party, into any Invention without the Employer's prior written permission signed
by the President of the Employer.
(c) INVENTIONS ASSIGNED TO THE UNITED STATES. The Employee
agrees to assign to the United States government all his/her 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 Employer and the United
States or any of its agencies.
(d) MAINTENANCE OF RECORDS. The Employee will keep and
maintain adequate and current written records of all Inventions made by him/her
(solely or jointly with others) during the term of his/her employment with the
Employer. The records will be in the form of notes, sketches, drawings,
laboratory notebooks, and any other format that may be specified by the
Employer. At all times, the records will (a) be available to Employer, and (b)
remain the sole property of the Employer.
(e) PATENT AND COPYRIGHT REGISTRATIONS. The Employee will
assist the Employer, or its designee, at the Employer's expense, in every proper
way to secure and protect the Employer's rights in the Inventions and any
related copyrights, patents, mask work rights or other intellectual property
rights in any and all countries. The Employee will disclose to the Employer all
pertinent information and data. The Employee will execute all applications,
specifications, oaths, assignments and all other instruments that the Employer
deems necessary in order to apply for and obtain such rights and in order to
assign and convey to the Employer, its successors, assigns, and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and any
related copyrights, patents, mask work rights or other intellectual property
rights. The Employee's obligation to execute or cause to be executed, when it is
in his/her power to do so, any such instrument or papers will continue after the
termination of this Employment Agreement. If the Employer is unable because of
the Employee's mental or physical incapacity or for any other reason to secure
the 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 Employer as above, then the
Employee hereby irrevocably designates and appoints the Employer and its duly
authorized officers and agents as his/her agent and attorney-in-fact.
Accordingly, the Employer may act for and in the Employee's behalf to execute
and file any applications and to do all other lawfully permitted acts to further
the prosecution and issuance of letters patent or copyright registrations with
the same legal force and effect as if executed by the Employee.
13. CONFLICTING EMPLOYMENT. During the term of the Employee's
employment with the Employer, he/she will not engage in any other employment,
occupation, consulting or other business activity directly related to the
business that the Employer is now involved or becomes involved during the term
of the Employee's employment. The Employee will also not engage in any other
activities that conflict with his/her obligations to the Employer. The employee
is currently being paid as an employee of Diligent Software Systems. This
arrangement will continue no longer than July 15, 2003. The employee has no
obligations under his agreement with Diligent Systems that require any of his
time to be devoted to that company.
14. SURVIVAL. The provisions of paragraphs 8, 9, 10, 11 and 12 hereof
shall survive the termination of the Agreement.
15. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity and enforceability of the other provisions hereof. If any
provision of this Agreement is unenforceable for any reason whatsoever, such
provision shall be appropriately limited and given effect to the extent that it
may be enforceable.
16. GOVERNING LAW. All rights and obligations of the parties arising
out of this Agreement will be construed and enforced in accordance with the laws
of the state of Idaho, without reference to its rules as to conflicts of laws.
17. PREVAILING PARTY'S FEES. If the parties hereto become parties to
any litigation, commenced by or against one another involving the enforcement of
any rights or remedies under this Agreement, or arising on account of a default
of the other party in its performance of such party's obligations hereunder, the
prevailing party in such litigation shall be entitled to reimbursement of all of
its legal fees, costs, and expenses incurred in connection with such litigation,
and interest accrued thereon from the date of judgment, at the maximum rate
permitted by law.
18. ASSIGNMENT. This Agreement may not be assigned or otherwise
transferred by Employer without the prior written consent of Employee, which
consent shall not be unreasonably withheld. No such consent shall be required
for a transfer of value of all or substantially all of Employer's assets,
whether such transfer is effected by asset sale, merger, stock sale or
otherwise. Any attempted assignment in violation of the provisions of this
section will be void. Subject to the foregoing, this Agreement shall be binding
on and inure to the benefit of the parties and their respective successors and
assigns.
19. NOTICES. All notices, requests, demands and other communications
called for hereunder shall be in writing and shall be deemed given (i) on the
date of delivery if delivered personally, (ii) one (1) day after being sent by a
well established commercial overnight service, or (iii) four (4) days after
being mailed by registered or certified mail, return receipt requested, prepaid
and addressed to the parties or their successors at the following addresses, or
at such other addresses as the parties may later designate in writing:
If to the Employer:
Extended Systems, Inc.
0000 X. Xxxxxx Xxx
Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
If to Employee: At the last residential address known by the Employer.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
EMPLOYER: EXTENDED SYSTEMS, INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxx Date: 2/28/03
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Xxxxxx X. Xxxxxxx, President/CEO
EMPLOYEE:
By: /s/ Xxxxxxx X. Xxxxxx Date: 2/28/03
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Xxxxxxx X. Xxxxxx
