EMPLOYMENT AGREEMENT
This Employment Agreement is entered into by and between Xxx Xxxxxxx
("EMPLOYEE") and AR Industries, Inc. (the "COMPANY") effective as of January 11,
2000, which date also represents the closing of the Company's acquisition by iGo
Corporation, a Delaware corporation ("PARENT") by way of a merger of ARI
Acquisition Corp., a wholly-owned subsidiary of Parent, with and into the
Company (the "MERGER"), such date being hereafter referred to as the "EFFECTIVE
DATE" of this Agreement.
WHEREAS, the Employee is and intends to remain an employee of the
Company or Parent for the foreseeable future and as such possesses confidential
business and technical information regarding the business of the Company and
Parent; and
WHEREAS, the Company and Parent are willing to enter into this
Agreement as a condition to the closing of the Merger;
NOW, THEREFORE, in consideration of the mutual agreements and
obligations contained in this Agreement, the parties agree as follows:
1. TERM OF AGREEMENT. This Agreement shall commence on the Effective
Date and shall have a term of two (2) years. This Agreement may be terminated
prior to the end of its terms by either party, with or without cause, on thirty
(30) days written notice to the other party. The Company shall have the right,
but not the obligation, to extend the term of this Agreement by one (1) year
upon delivery of written notice to Employee.
2. DUTIES. Employee shall be employed as Vice President-Special
Opportunities, and shall perform for the Company such duties as may be
designated by the Company from time to time in a mutually acceptable position to
both Employee and the Company. Employee shall devote his or her full time,
effort and attention during regular business hours to the business and affairs
of the Company; PROVIDED, HOWEVER, that the Employee shall be entitled to serve
as a member of the board of directors of other companies so long as: (i) such
service does not impact the Employee's ability to perform his obligations
hereunder or result in a violation of the terms or conditions of any other
agreement or contract between the Employee and the Company or between the
Employee and Parent, and (ii) prior to so serving, the Employee obtains the
written consent of the Company, which shall not be unreasonably withheld or
delayed. The Company hereby consents to Employee's service as a member of the
board of directors of the company or companies listed on EXHIBIT A attached
hereto and incorporated herein by this reference. The parties acknowledge and
agree that it is Parent's current intention (without further obligation) to move
the Company's operations to Parent's headquarters in Reno, Nevada, at some time
following the Effective Date. Such move and any requirement that Employee
relocate in connection with such move shall not constitute a breach of any terms
of this Agreement by the Company (or Parent) nor shall it give rise to any claim
of constructive termination of Employee's employment without cause.
3. AT-WILL EMPLOYMENT. The Company and Employee acknowledge that
Employee's employment is for an unspecified period of time and shall continue to
be at-will, as defined under applicable law. Any representation to the contrary
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is unauthorized and not valid unless obtained in writing and signed by the Chief
Executive Officer of the Company. If Employee's employment terminates for any
reason, the Employee shall not be entitled to any payments, benefits, damages,
award or compensation other than as provided in this Agreement, or as may
otherwise be available in accordance with the Company's established written
plans and written policies at the time of termination.
4. COMPENSATION. For the duties and services to be performed by
Employee hereunder, the Company shall pay Employee, and Employee agrees to
accept, the salary, stock options, bonuses and other benefits described below in
this Section 4.
(a) SALARY. Employee shall receive a base salary of
$150,000.00 per annum, payable in accordance with the Company's normal payroll
practices.
(b) STOCK OPTIONS AND OTHER INCENTIVE PROGRAMS. Employee shall
be eligible to participate in the stock option or other incentive programs
available to employees of the Company. Employee will receive a stock option to
purchase up to 75,000 shares of Parent's Common Stock that will vest over the
customary vesting schedule for employees of Parent and its subsidiaries. These
options will be priced on the Effective Date.
(c) BONUSES. Employee will participate in the Company's
employee bonus program and be eligible to receive an annual cash bonus not to
exceed twenty percent (20%) of the base salary figure set forth in Section 4(a)
above. Employee's entitlement to incentive bonuses from the Company is
discretionary and shall be determined by the Board, its Compensation Committee
or the Chief Executive Officer of the Company in good faith based Employee's
individual performance and the Company's financial and nonfinancial performance
during the applicable bonus period.
(d) ADDITIONAL BENEFITS. Employee will be eligible to
participate in the Company's employee benefit plans of general application,
including without limitation, those plans covering medical, disability and life
insurance in accordance with the rules established for individual participation
in any such plan and under applicable law. Employee will be eligible for
vacation and sick leave in accordance with the policies in effect during the
term of this Agreement and will receive such other benefits as the Company
generally provides to its employees of similar rank and grade.
(e) REIMBURSEMENT OF RELOCATION EXPENSES. The Company shall
reimburse Employee for relocation expenses as follows: (i) three percent (3%) of
the greater of the selling price of Employee's current primary residence or the
purchase price of Employee's primary residence in the Reno, Nevada metropolitan
area; (ii) the actual moving expenses, not to exceed $7,000.00, associated with
a single relocation of Employee's household goods and personal property from the
location of Employee's current primary residence to Employee's primary residence
in the Reno, Nevada metropolitan area; and (iii) the amount of $1,000.00 for
expenses associated with Employee's visit to the Reno, Nevada metropolitan area
to look for a residence.
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5. SALARY CONTINUATION.
(a) TERMINATION OF EMPLOYMENT. In the event Employee's
employment terminates for any reason during the original term of this Agreement,
then Employee shall be entitled to receive salary continuation as follows:
(i) VOLUNTARY RESIGNATION. If Employee's employment
terminates by reason of Employee's voluntary resignation (and is not an
Involuntary Termination or a Termination for Cause), then Employee shall not be
entitled to receive salary continuation. Employee's benefits will be continued
under the Company's then existing benefit plans and policies solely in
accordance with such plans and policies in effect on the date of termination.
(ii) INVOLUNTARY TERMINATION. If Employee's
employment is terminated as a result of Involuntary Termination other than for
Cause, Employee will be entitled to receive salary continuation equal to
Employee's regular monthly salary for the number of months remaining in the
original term of this Agreement (the "Salary Continuation Period"). Such
payments shall be made ratably over the Salary Continuation Period according to
the Company's standard payroll schedule. Employee's benefits will be continued
under the Company's then existing benefit plans and policies solely in
accordance with such plans and policies in effect on the date of termination.
(iii) INVOLUNTARY TERMINATION FOR CAUSE. If
Employee's employment is terminated for Cause, then Employee shall not be
entitled to receive salary continuation. Employee's benefits will be continued
under the Company's then existing benefit plans and policies solely in
accordance with such plans and policies in effect on the date of termination.
b. OTHER EMPLOYMENT. In the event Employee commences new
employment with a company whose business or proposed business constitutes a
"Competing Business" within the "Restricted Territory" as such terms are defined
in the Non-Competition Agreement of even date herewith between the Company,
Employee and Parent, then any salary continuation pursuant to this Section 5
shall cease.
6. DEFINITION OF CAUSE. For purposes of this Agreement, "cause" shall
mean (i) any material breach of this Agreement by Employee, which breach, if
curable, is not cured within thirty (30) days of written notice thereof, (ii)
any act or acts of gross misconduct by Employee, (iii) conduct grossly
insubordinate or disloyal to the Company or Parent, (iv) the conviction of or
pleading guilty or no contest to a felony, or (v) the continued use of illegal
drugs or alcohol by Employee such that Employee becomes impaired in the
performance of his duties hereunder, in each case (i)-(v), as determined by the
Company's Board of Directors in good faith. Employee expressly acknowledges and
agrees that any breach by Employee of his obligations pursuant to Section 7 or
Section 8 below shall be deemed "uncurable" for purposes of clause (i) above.
7. CONFIDENTIALITY AGREEMENT. Employee shall sign Parent's standard
employee agreement regarding confidentiality and assignment of inventions
Agreement, the general form of which is attached hereto as EXHIBIT B.
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8. NON-SOLICITATION. Employee agrees that during and for one year after
the period of providing services to the Company or Parent, Employee will not
directly or indirectly induce, encourage or solicit any employee or consultant
of Parent, the Company or any other affiliate of Parent or the Company to
terminate their employment or consulting relationship with such entity for any
reason; provided that the foregoing shall not preclude the Employee from
engaging in general employment advertising.
9. 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. The terms of this Agreement and all of Employee's rights 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.
10. NOTICE. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail, return
receipt requested and postage prepaid. Mailed notices to Employee shall be
addressed to Employee at the home address from which Employee most recently
communicated to the Company in writing. In the case of the Company, mailed
notices shall be addressed to it care of Parent's headquarters in Reno, Nevada,
and all notices shall be directed to the attention of Parent's Chief Financial
Officer.
11. MISCELLANEOUS PROVISIONS.
(a) WAIVERS, ETC. No amendment of this Agreement and no waiver
of any one or more of the provisions hereof shall be effective unless set forth
in writing by such person against whom enforcement is sought.
(b) SOLE AGREEMENT. This Agreement, including the Exhibit
hereto, constitutes the sole agreement of the parties and supersedes all oral
negotiations and prior writings with respect to the subject matter hereof.
(c) AMENDMENT. This Agreement may be amended, modified,
suppressed or canceled only by an agreement in writing executed by both parties
hereto.
(d) CHOICE OF LAW. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State of
California, without giving effect to the principles of conflict of laws.
(e) SEVERABILITY. If any term or provision of this Agreement
or the application thereof to any circumstance shall, in any jurisdiction and to
any extent, be invalid or unenforceable, such term or provision shall be
ineffective as to such jurisdiction to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable the remaining
terms and provisions of this Agreement or the application of such terms and
provisions to circumstances other than those as to which it is held invalid or
unenforceable, and a suitable and equitable term or provision shall be
substituted therefor to carry out, insofar as may be valid and enforceable, the
intent and purpose of the invalid or unenforceable term or provision.
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(f) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
AR INDUSTRIES, INC. EMPLOYEE
By: /S/ XXXX XXXXXXX By: /S/ XXX XXXXXXX
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Xxxx Xxxxxxx, Chief Financial Officer Xxx Xxxxxxx
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