ADVANCED POWER TECHNOLOGY, INC.
EMPLOYMENT AGREEMENT
(MANAGEMENT & TECHNICAL PERSONNEL)
EXEMPT SALARIED EMPLOYEES
THIS EMPLOYMENT AGREEMENT is made and entered into this 20 day of JUNE,
1986, by and between ADVANCED POWER TECHNOLOGY, INC., a Delaware corporation
("Company") and XXXXXXX X. XXXXXXXX an individual ("Employee").
WHEREAS, Company desires to employ Employee upon the terms and
conditions hereinafter set forth, and Employee desires to be so employed;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, Company and Employee agree as follows:
1. EMPLOYMENT
Company hereby employees Employee as PRODUCT ENGINEER of the Company
with the powers an duties consistent with such position, and Employee
hereby accepts such employment, on the terms and conditions hereinafter
set forth. Employee, subject to the control of the Management of
Company, agrees to diligently utilize his or her best efforts to
further the interests of the Company and to discharge those
responsibilities and duties required for the planning, development,
operation, promotion and advancement of the Company, and such other
duties as Company may require.
2. TERM AND TERMINATION
2.1 This Agreement shall terminate upon the happening of any of the
following events:
(a) By mutual agreement between Company and Employee;
(b) Unilaterally by Employee without cause;
(c) Upon the death of Employee;
(d) Upon the good faith determination of the Chief Executive
Officer of the Company that Employee has become so physically
or mentally disabled as to be incapable of satisfactorily
performing Employee's duties hereunder for a period of ninety
(90) consecutive days, such determination based upon a
certificate as to such physical or mental disability issued by
a licensed physician and/or psychiatrist (as the case may be)
employed by the Company; or
(e) By the Company for cause, that is to say only upon
Employee's conviction of a felony, commission of any material
act of dishonesty against the Company, material breach of this
Agreement by Employee, or misconduct by Employee having a
substantial adverse effect on the business of the Company.
(f) Unilaterally by the Company without cause, in which event
(Section 2.2 to the contrary not withstanding) the Company
will continue to pay Employee the full amount due as salary
for a period of thirty days following notice of termination.
2.2 In the event that this Agreement is terminated pursuant to
Paragraph 2.1, neither Company nor Employee shall have any remaining
duties or obligations hereunder, except that Company shall pay to
Employee, or his or her representatives, such compensation as is due
pursuant to Sub-Section 2.1(f) and Section 3. The provisions of Section
4-9 shall survive termination.
2.3 This Agreement shall not be terminated by any:
(a) Merger, whether the Company is or is not the surviving
corporation; or
(b) Transfer of all or substantially all of the assets of
the Company; or
(c) Voluntary or involuntary dissolution or liquidation of
the Company; or
(d) Consolidation to which the Company is a party.
In the event of any such merger, transfer of assets, dissolution,
liquidation, or consolidation, the surviving corporation or transferee,
as the case may be, shall be bound by and shall have the benefits of
this Agreement, and Company shall take all action to ensure that such
corporation or transferee is bound by the provisions of this Agreement.
3. COMPENSATION
3.1 As the total consideration for services which Employee agrees to
render hereunder, Employee is entitled to the following:
(a) Beginning on JUNE 20, 1986, an annual base salary at the
rate of $33000 THIRTY THREE THOUSAND Dollars ($33000), subject
to increases at the discretion of Company, in accordance with
the regular and ordinary payment practices of Company. All
payroll payments shall be subject to deduction of payroll
taxes and related deductions as required by law.
(b) Participation in all plans or programs sponsored by
Company for employees in general, including without limitation
participation in any group health plan, medical reimbursement
plan and life insurance plan, pension and profit sharing plan.
(c) Reimbursement of any and all necessary and reasonable
expenses incurred by Employee from time to time in the
performance of his or her duties hereunder, including without
limitation entertainment expenses and air fare, taxi,
automobile, and other traveling expenses.
(d) After six (6) months of continuous employment, Employee
shall be eligible for five (5) working days of paid vacation;
after twelve (12) months of
continuous employment, Employee shall be eligible for ten (10)
working days of paid vacation; thereafter, Employee shall be
eligible for ten (10) working days of paid vacation upon the
completion of each successive twelve (12) month period of
continuous employment. Paid vacations non-cumulative and must
be taken during the twelve (12) months following accrual.
(e) Such other benefits as Company, in its sole discretion,
may from time to time provide.
3.2 Subject to the limitations contained in Paragraph 2.1, if Employee
shall be absent on account of personal injuries or physical or mental
disability, Employee shall continue to receive all payments provided in
this Agreement; provided, however, that any such payments may, at the
sole option of Company, be reduced by any amount that Employee receives
for the period covered by such payments as disability compensation
under insurance policies maintained by Company or under governmental
programs.
3.3 Company shall have the right to deduct from the compensation due to
Employee hereunder any and all sums required for social security and
withholding taxes and for any other federal, state, or local tax or
charge which may be in effect or hereafter enacted or required as a
charge on the compensation of Employee.
3.4 Employee shall repay relocation expenses paid by Company if he or
she voluntarily terminates employment, or is terminated for cause
within one year from date of employment.
3.5 Any payments, whether incurred by the Company or by an employee or
officer of the Company on behalf of and reimbursed b the Company,
including, without limitation, salary, commission, bonus, interest,
rent or travel and entertainment expenses, which are disallowed in
whole or in part as a deductible expense for federal income tax
purposes on the grounds that said payments constitute unreasonable
compensation to an employee or officer, shall be repaid by the employee
or officer to the Company to the full extent of the disallowance, if
the Board, in its discretion, agrees to enforce the repayment of each
such amount disallowed.
4. NON-DISCLOSURE
Employee shall not disclose or use in any way, either during his or her
employment with Company or thereafter, except as required in the course of his
or her employment with Company, any confidential business or technical
information or trade secrets acquired during his or her employment by Company,
whether or not conceived of, discovered, developed or prepared by Employee,
including without limitation any formulae, patterns, inventions, procedures,
processes, plans, devices, products, operations, techniques, know-how,
specifications, data, compilations of information, customer lists, records,
financing or production methods, costs, employees, and information concerning
specific customer requirements, preferences, practices and methods of doing
business, all of which are exclusive and valuable property of Company.
5. ASSIGNMENT OF PROPRIETARY INTEREST
Employee hereby assigns and transfers to Company his or her entire
right, title and interest in and to any and all inventions, improvements,
processes, sketches, methods of production, designs, discoveries, ideas (whether
or not shown or described in writing) or services (collectively "inventions")
whether or not patentable, which are made, conceived or first reduced to
practice by Employee with Company's equipment, supplies, facilities, or trade
secrets and on Company's time, or which relates to the business of Company or
Company's actual or anticipated research or business development, or which
results from any work performed by the Employee for Company. Employee agrees
that Company shall have the right to keep such inventions as trade secrets. To
permit Company to claim rights to which it may be entitled, the Employee agrees
to promptly disclose to Company in confidence all inventions which the employee
makes, conceives, or first reduces to practice during the course of his or her
employment or within one year after termination thereof if such inventions
relate to a product, process or service upon which Employee worked during the
period of his or her employment by Company, and all patent or copyright
applications filed by the Employee within a year after termination of this
Agreement. Both during and after the period of employment with Company, Employee
shall further assist Company in obtaining patents or copyrights on all
inventions deemed patentable or copyrightable by Company in the United States
and in all foreign countries, and shall execute all documents and do all things
necessary to obtain letters patent and/or copyrights, to vest Company with full
and extensive title thereto, and to protect Company's rights against
infringement by others. Employee further agrees that any patent application
filed within a year after termination of his or her employment on an invention
for which the Employee was partially or totally responsible shall be presumed to
relate to an invention made during the term of the Employee's employment unless
the Employee can provide evidence to the contrary.
6. TANGIBLE ITEMS AS PROPERTY OF COMPANY
Excluding any personal property owned by Employee prior to the date
hereof, all files, records, documents, drawings, plans, specifications, manuals,
books, forms, receipts, notes, reports, memoranda, studies, data, calculations,
recordings, catalogues, compilations of information, correspondence and all
copies, abstracts and summaries of the foregoing, instruments, tools and
equipment and all other physical items related to the business of Company, other
than a merely personal item of a general professional nature, whether of a
public nature or not, and whether prepared by Employee or not, are and shall
remain the exclusive property of Company and shall not be removed from the
premises of Company under any circumstances whatsoever without the prior written
consent of Company, and the same shall be promptly returned to Company by
Employee on the expiration or termination of his or her employment with Company
or at any time prior thereto upon the request of Company.
7. SOLICITATION OF CUSTOMERS AND EMPLOYEES
Both during and within one year after the period of employment,
Employee shall not in any way attempt to interfere with the business of Company
and, shall not call on, solicit, interfere with or attempt to entice away,
either directly or indirectly, any employee of Company with whom he or she
became acquainted during his or her employment with Company, either for his or
her own benefit or purposes or for the benefit or purposes of any other person,
partnership, corporation, firm, association or other business organization,
entity or enterprise.
8. NONCOMPETITION
Except as set forth in this Section 8, for a period of 18 months after
termination of this Agreement, Employee shall not, directly or indirectly,
engage or participate in, assist or have any interest in any person,
partnership, corporation, firm, association or other business organization,
entity or enterprise (whether as an employee, officer, director, agent, security
holder, creditor, consultant or otherwise) which, directly or indirectly,
manufactures, designs, develops, engineers, markets or otherwise produces or
offers for sale or sells inventions, products, processes, systems or services
the same as, similar to or competitive with any devices, inventions, products,
processes, systems or services manufactured, designed, developed, engineered,
marketed or otherwise produced or offered for sale or sold by Company (or any
successor thereof) in the United States or abroad.
The parties intend that the covenant contained in this Section 8 shall
be construed as a series of separate covenants. If, in any judicial or
arbitration proceeding, a court shall refuse to enforce any of the separate
covenants deemed included in this paragraph, then this unenforceable covenant
shall be deemed eliminated from these provisions for the purpose of those
proceedings to the extent necessary to permit the remaining separate covenants
to be enforced. Moreover, if, in any judicial or arbitration proceedings, the
term of non-competition shall be determined to be unreasonable, the parties
agree that the term shall be shortened to the maximum period deemed reasonable
under the laws of the state of Oregon, and that modified period shall be
enforceable as though originally set forth herein.
9. INJUNCTIVE RELIEF
Employee hereby acknowledges and agrees that it would be difficult to
fully compensate Company for damages resulting from the breach or threatened
breach of Sections 4, 5, 6, 7 or 8 of this Agreement, and accordingly, that
Company shall be entitled to temporary and injunctive relief, including
temporary restraining orders, preliminary injunctions and permanent injunctions,
to enforce such Sections without the necessity of proving actual damages
therewith. This provision with respect to injunctive relief shall not, however,
diminish Company's right to claim and recover damages.
10. INDEMNIFICATION
Company shall, to the maximum extent permitted by law, indemnify and
hold Employee harmless against expenses, including reasonable attorney's fees,
judgments, fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding arising by reason of Employee's
employment with Company if Employee, in incurring the above expenses, acted in
good faith and in a manner Employee believed to be in the best interests of
Company and, in the case of a criminal proceeding, had no reasonable cause to
believe Employee's conduct was unlawful.
11. COPIES OF AGREEMENT
Employee authorizes Company to send a copy of this Agreement to any and
all future employers which he or she may have, and to any and all persons,
firms, and corporations, with whom he or she may become affiliated in a business
or commercial enterprise, and to inform any and all such employers, persons,
firms or corporations that Company intends to exercise its legal rights should
Employee breach the terms of this Agreement or should another party induce a
breach of Employee's part.
12. SEVERABLE PROVISIONS
The provisions of this Agreement are severable and if any one or more
provisions may be determined to be illegal or otherwise unenforceable, in whole
or in part, the remaining provisions, and any partially unenforceable provisions
to the extent enforceable, shall nevertheless be binding and enforceable.
13. BINDING AGREEMENT
This Agreement shall inure to the benefit of and shall be binding upon
Company, its successors and assigns.
14. CAPTIONS
The Section captions are inserted only as a matter of convenience and
reference and in no way define, limit or describe the scope of this Agreement or
the intent of any provisions hereof.
15. ENTIRE AGREEMENT
This Agreement contains the entire agreement of the parties
relating to the subject matter hereof, and the parties hereto have made no
agreements, representations or warranties relating to the subject matter of
this Agreement that are not set forth in these documents. No modification of
this Agreement shall be valid unless made in writing and signed by the
parties hereto.
16. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the
laws of the state of Oregon.
17. NOTICES
Any notice or demand required or permitted to be given hereunder shall
be in writing and shall be deemed effective upon the personal delivery thereof
or, if mailed, forty-eight hours after having been deposited in the United
States mails, postage prepaid, and addressed to the party to whom it is directed
at the address et forth below:
If to Company:
ADVANCED POWER TECHNOLOGY, INC.
000 X. X. Xxxxxxxx Xxxxxx
Xxxx, Xxxxxx 00000
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Freshman, Marantz, Orlanski, Comsky & Deutsch
0000 Xxxxxxxx Xxxx., Xxx. 0-X
Xxxxxxx Xxxxx, XX 00000
If to EMPLOYEE:
________________________________
________________________________
________________________________
Either party may change the address to which such notices are to be addressed by
giving the other party notice in the manner herein set forth.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first written above.
ADVANCED POWER TECHNOLOGY, INC.
a Delaware corporation ("Company")
By: S/S
Xxxxxxx Xxxxxx
President and Chief Executive Officer
S/S
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("Employee")
