EXHIBIT 10.b4
EMPLOYMENT AGREEMENT
This Employment Agreement ("AGREEMENT") is entered into as of September
30th (the "EFFECTIVE DATE") by and between PivX Solutions, Inc. (the "COMPANY")
and Xxxx Xxxxxx ("EMPLOYEE"). In consideration of the promises and mutual
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, it is mutually
covenanted and agreed by and between the parties as follows:
1. POSITION AND DUTIES. Employee shall be employed as Senior Vice
President, reporting to the Company's [Chief Executive Officer], and assuming
and discharging such responsibilities as are commensurate with Employee's
position, including, but not limited to, Management and over sight of the
company's sales. Including, but not limited to: Direct Sales, Channel and
Business Strategy, Channel Development, Business Development and Business
Planning. A full and complete job description shall be completed (at a later
date) in a collaborative effort between employee and CEO and this shall become a
live and dynamic addendum to this agreement. Employee shall perform Employee's
duties faithfully and to the best of Employee's ability and shall devote
Employee's full business time and effort to the performance of Employee's duties
hereunder.
2. EMPLOYMENT. The parties agree that Employee's employment with the
Company shall be "at-will" employment and may be terminated at any time with or
without cause or notice at the option of either the Company or Employee. No
provision of this Agreement shall be construed as conferring upon Employee a
right to continue as an employee of the Company.
3. COMPENSATION. For all services to be rendered pursuant to this Agreement
by Employee, Employee shall receive $125,000 on an annual basis (the "BASE
SALARY"), payable monthly. Employee understands and agrees that neither
Employee's job performance nor promotions, commendations, bonuses or the like
from the Company give rise to or in any way serve as the basis for modification,
amendment, or extension by implication or otherwise, of this Agreement. Company
agrees to a salary review every 12 months, however in the first year there will
be an initial 6 month review.
4. TARGET VARIABLE COMPENSATION. Employee shall receive a quarterly bonus
equal to 2% of the gross sales up to $10 million annually and on a calendar
basis. Beyond $10 million in annual sales, employee will receive 1% of the
amount in excess of $10 million
5. OTHER BENEFITS. During Employee's employment hereunder, Employee shall
be entitled to participate in the employee benefit plans and programs of the
Company, to the extent that Employee's position, tenure, salary, age, health and
other qualifications make him eligible to participate in such plans or programs,
subject to the rules and regulations applicable thereto. The Company reserves
the right to cancel or change the benefit plans and programs it offers to its
employees at any time.
a) Employee shall accrue paid vacation benefits during the Employment
Period at the rate of two (2) weeks per calendar year.
(ii) EQUITY. 200,000 option shares will be granted upon signature with
a 3 year vesting schedule. Option price shall be at 10% discount to the market
closing price on date of signature. Additional shares will be set aside for
employee in the stock option plan. These will have the opportunity to be earned
over time based on performance objectives that will be covered specifically
under a separate agreement.
6. EXPENSES. The Company shall reimburse Employee for pre-approved travel,
entertainment or other expenses incurred by Employee in the furtherance of or in
connection with the performance of Employee's duties hereunder, in accordance
with the Company's expense reimbursement policy as in effect from time to time.
8. RIGHT TO ADVICE OF COUNSEL. Employee acknowledges that he has had the
right to consult with counsel and is fully aware of Employee's rights and
obligations under this Agreement.
9. SUCCESSORS.
(a) COMPANY'S 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. For all purposes under this Agreement, the term
"Company," shall include any successor to the Company's business and/or assets
which executes and delivers the assumption agreement described in this
subsection (a) or which becomes bound by the terms of this Agreement by
operation of law.
(b) EMPLOYEE'S SUCCESSORS. Without the written consent of the Company,
Employee shall not assign or transfer this Agreement or any right or obligation
under this Agreement to any other person or entity. Notwithstanding the
foregoing, the terms of this Agreement and all rights of Employee 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. DEATH OF DISABILITY. Death or Disability. Upon Executive's death or
Disability during the Employment Period, the employment relationship created
pursuant to this Agreement shall immediately terminate, and no further
compensation shall become payable to Executive pursuant to Paragraph 3. In
connection with such termination, the Corporation shall be required to pay
Executive or his estate (i) any unpaid base salary earned under Paragraph 3 for
services rendered through the date of his death or Disability and (ii) the
dollar value of all accrued and unused vacation benefits based upon Executive's
most recent level of base salary.
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11. TERMINATION OF EMPLOYMENT.
(1) The Corporation may terminate Executive's employment under this
Agreement without Cause at any time by giving at least thirty (30) days prior
written notice of such termination to the Executive.
(2) Executive may terminate his employment under this Agreement at any
time by giving the Corporation at least sixty (60) days prior written notice of
such termination.
(3) The Corporation may at any time, upon written notice, immediately
terminate Executive's employment hereunder for Cause. Such termination shall be
effective immediately upon Executive's receipt of such notice.
(4) Upon the termination of Executive's employment for any reason
during the Employment Period, Executive shall be paid all base salary and unused
vacation earned through the date of such termination.
12. CONFIDENTIAL INFORMATION.
COMPANY INFORMATION. Employee shall at all times during the term of
Employee's employment with the Company and thereafter, hold in strictest
confidence, and not use, except for the benefit of the Company, or disclose to
any person, firm or corporation without written authorization of the Board, any
Confidential Information of the Company. As used herein, "Confidential
Information" means any Company proprietary information, technical data, trade
secrets or know-how, including, but not limited to, research, product plans,
products, services, customer lists and customers (including, but not limited to,
customers of the Company on whom Employee has called or with whom Employee
became acquainted during the term of Employee's employment), markets, software,
developments, inventions, processes, formulas, technology, designs, drawings,
engineering, hardware configuration information, marketing, finances or other
business information disclosed to Employee by the Company either directly or
indirectly in writing, orally or by drawings or observation of parts or
equipment. "Confidential Information" does not include any of the foregoing
items which has become publicly known and made generally available through no
wrongful act of Employee or of others who were under confidentiality obligations
as to the item or items involved or improvements or new versions thereof.
(b) THIRD PART INFORMATION. Employee shall hold all confidential or
proprietary information that the Company has received from any third party to
which it is the Company's obligation to maintain the confidentiality of such
information and to use it only for certain limited purposes in the strictest
confidence and not to disclose it to any person, firm or corporation or to use
it except as necessary in carrying out Employee's work for the Company
consistent with the Company's agreement with such third party.
13. INVENTIONS. The Employee hereby represents, warrants and covenants with
respect to Prior Inventions (as defined below) or Inventions (as defined below),
as the case may be, as follows:
(c) INVENTIONS RETAINED AND LICENSED. Attached hereto, as Exhibit A,
is a list describing all inventions, original works of authorship, developments,
improvements, and trade
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secrets which were made by Employee prior to Employee's employment with the
Company (collectively referred to as "Prior Inventions"), which belong to
Employee, which relate to the Company's proposed business, products or research
and development, and which are not assigned to the Company hereunder; or, if no
such list is attached, Employee hereby represents that there are no such Prior
Inventions. If in the course of Employee's employment with the Company, Employee
incorporates into a Company product, process or machine a Prior Invention owned
by Employee or in which the Employee has an interest, the Company is hereby
granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual,
worldwide license to make, have made, modify, use and sell such Prior Invention
as part of or in connection with such product, process or machine.
(d) ASSIGNMENT OF INVENTIONS. Employee shall, or will promptly make,
full written disclosure to the Company, will hold in trust for the sole right
and benefit of the Company, and hereby assign to the Company, or its designee,
all of Employee's 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, which Employee 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 Employee is employed
by the Company (collectively referred to as "Inventions"), except as provided in
Section 11(f) below. Employee hereby acknowledges that all original works of
authorship which are made by Employee (solely or jointly with others) within the
scope of and during the period of Employee's employment with the Company and
which are protectible by copyright are "works made for hire," as that term is
defined in the United States Copyright Act. Employee hereby understands and
agrees that the decision whether or not to commercialize or market any invention
developed by Employee solely or jointly with others is within the Company's sole
discretion and for the Company's sole benefit and that no royalty will be due to
Employee as a result of the Company's efforts to commercialize or market any
such invention.
(e) INVENTIONS ASSIGNED TO THE UNITED STATES. Employee shall assign to
the United States government all Employee's 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 Company and the United States or any of its
agencies.
(f) MAINTENANCE OF RECORDS. Employee shall keep and maintain adequate
and current written records of all Inventions made by him (solely or jointly
with others) during the terra of Employee's employment with the Company. The
records will be in the form of notes, sketches, drawings, and any other format
that may be specified by the Company. The records will be available to and
remain the sole property of the Company at all times.
(g) PATENT AND COPYRIGHT REGISTRATIONS. Employee shall assist the
Company, or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the Inventions and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments which the Company
shall deem necessary in order to apply for and obtain such rights and in order
to assign and convey to the Company, its successors, assigns, and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and any
copyrights, patents,
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mask work rights or other intellectual property rights relating thereto.
Employee agrees that it is Employee's obligation to execute or cause to be
executed, when it is in Employee's power to do so, any such instrument or papers
after the termination of this Agreement. If the Company is unable because of the
Employee's mental or physical incapacity or for any other reason to secure
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 Company as above, then Employee
hereby irrevocably designates and appoints the Company and its duly authorized
officers and agents as Employee's agent and attorney in fact, to act for and in
Employee's behalf and stead to execute and file any such applications and to do
all other lawfully permitted acts to further the prosecution and issuance of
letters patent or copyright registrations thereon with the same legal force and
effect as if executed by Employee.
(h) EXCEUTION TO ASSIGNMENTS. It is agreed and acknowledge that the
provisions of this Agreement requiring assignment of Inventions to the Company
do not apply to any invention which qualifies fully under the provisions of
California Labor Code Section 2870 (attached hereto as Exhibit B). Employee
covenants that Employee will advise the Company promptly in writing of any
inventions that Employee believes meet the criteria in California Labor Code
Section 2870 and not otherwise disclosed on Exhibit A.
14. INDEMNITY. Employee shall defend, indemnify and hold harmless the
Company, its officers, directors and employees, from and against any and all
loss, liability, damage, claims, demands or suits, and related costs and
expenses (including, without limitation, reasonable attorney fees and costs)
arising or resulting, directly or indirectly, from any breach by Employee of
this Agreement.
15. RETURNING COMPANY DOCUMENTS. At the time of leaving the employ of the
Company, Employee covenants that Employee shall deliver to the Company (and will
not keep in Employee's possession, recreate or deliver to anyone else) any and
all devices, records, data, notes, reports, proposals, lists, correspondence,
specifications, drawings blueprints, sketches, materials, equipment, other
documents or property, or reproductions of any aforementioned items developed by
Employee pursuant to Employee's employment with the Company or otherwise
belonging to the Company, its successors or assigns, including, without
limitation, those records maintained pursuant to paragraph 11(d). In the event
of the termination of Employee's employment, Employee hereby covenants to sign
and deliver the "Termination Certification" attached hereto as Exhibit C.
16. NOTIFICATION OF NEW EMPLOYER. In the event that Employee leaves the
employ of the Company, Employee agrees to grant consent to notification by the
Company to Employee's new employer about Employee's rights and obligations under
this Agreement.
17. SOLICITATION OF EMPLOYEES. Employee covenants that, for a period of
twelve (12) months immediately following the termination of Employee's
relationship with the Company for any reason, whether with or without cause,
Employee shall not either directly or indirectly solicit, induce, recruit or
encourage any of the Company's employees to leave their employment, or take away
such employees, or attempt to solicit, induce, recruit, encourage or take away
employees of the Company, either for Employee or for any other person or entity.
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18. CONFLICT OF INTEREST GUIDELINES. Employee covenants that Employee shall
diligently adhere to the Conflict of Interest Guidelines attached as Exhibit D
hereto.
19. NOTICE CLAUSE.
(a) MANNER. Any notice hereby required or permitted to be given shall
be sufficiently given if in writing and delivered in person or sent by First
Class, registered or certified mail, postage prepaid, to either party at the
address of such party or such other address as shall have been designated by
written notice by such party to the other party.
(b) EFFECTIVENESS. Any notice or other communication required or
permitted to be given under this Agreement will be deemed given on the day when
delivered in person, or the third business day after the day on which such
notice was mailed in accordance with this Section.
20. ARBITRATION.
(a) Except as provided in Section I9(c) below, the parties hereto
agree that any dispute or controversy arising out of, relating to, or in
connection with this Agreement, or the interpretation, validity, construction,
performance, breach, or termination thereof, shall be finally settled by binding
arbitration, unless otherwise required by law, to be held in Los Angeles,
California under the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association as then in effect. The arbitrator(s) may
grant injunctions or other relief in such dispute or controversy. The decision
of the arbitrator(s) shall be final, conclusive and binding on the parties to
the arbitration, and judgment may be entered on the decision of the
arbitrator(s) in any court having jurisdiction.
(b) The arbitrator(s) shall apply California law to the merits of any
dispute or claim, without reference to rules of conflicts of law.
(c) The parties may apply to any court of competent jurisdiction for a
temporary restraining order, preliminary injunction, or other interim or
conservatory relief, as necessary, without breach of this arbitration agreement
and without abridgement of the powers of the arbitrator.
(d) EMPLOYEE HAS READ AND UNDERSTANDS THIS SECTION, WHICH DISCUSSES
ARBITRATION. EMPLOYEE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EMPLOYEE
AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH
THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE,
BREACH OR TERMINATION THEREOF TO BINDING ARBITRATION, UNLESS OTHERWISE REQUIRED
BY LAW, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EMPLOYEE'S
RIGHT TO A JURY TRIAL AND RELA'T'ES TO THE RESOLUTION OF ALL DISPUTES RELATING
TO EMPLOYEE'S RELATIONSHIP WITH THE COMPANY, INCLUDING BUT NOT LIMITED TO,
CLAIMS OF HARASSMENT, DISCRIMINATION, WRONGFUL TERMINATION AND ANY STATUTORY
CLAIMS.
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21. SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement, or any terms hereof, shall not affect the validity or
enforceability of any other provision or term of this Agreement.
22. INTEGRATION. This Agreement represents the entire agreement and
understanding between the parties as to the subject matter herein and supersede
all prior or contemporaneous agreements whether written or oral. No waiver,
alteration, or modification of any of the provisions of this Agreement shall be
binding unless in writing and signed by duly authorized representatives of the
parties hereto.
23. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal substantive laws, but not the choice of law rules,
of the State of California.
24. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by their duly authorized officers, as of the day and year
first above written.
PivX Solutions, LLC
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Chief Executive Officer
EMPLOYEE
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx - Senior Vice President
