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PATRIOT SCIENTIFIC CORPORATION
FORM 10-KSB
Annual Report
EXHIBIT NO. 10.21
XXXXXX X. XXXXXXXX EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT dated as of July 23, 1998, between PATRIOT SCIENTIFIC
CORPORATION, a Delaware Corporation (the "Company"), and
Xxxxxx X. Xxxxxxxx (the "Executive").
WITNESSETH:
1. Term of Employment.
(a) The Company hereby agrees to employ the Executive and the Executive
hereby agrees to accept employment as the Chief Financial Officer of the Company
for a three year period commencing July 20, 1998, or for such shorter period as
may be mutually agreed by the Company and the Executive (the "Employment
Period"), subject to the terms and conditions of this Agreement. In his capacity
as Chief Financial Officer of the Company, Executive will be responsible for the
general duties associated with his title including, but not limited to the care
and custody of all funds, securities, evidence of indebtedness and other
valuable effects of the Company, shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Company and shall deposit
all money and other valuable effects of the Company in the name and to the
credit of the Company in such depositories as from time to time may be
designated by the Board. The Executive shall disburse the funds of the Company
in such manner as may be ordered by the Board from time to time and shall render
to the Chairman of the Board, the President and Chief Executive Officer and the
Board, at regular meetings or whenever any of them may so require, an account of
all transactions and of the Company's financial condition. The Executive shall
also perform such other management duties on behalf of the Company as may be
assigned to him from time to time by the President and Chief Executive Officer
("CEO") of the Company.
(b) The Executive agrees that, during the Employment Period, he will
serve the Company faithfully and to the best of his abilities, devoting
substantially all his time, energy and skill to the activities of the Company
and the promotion of its interests. It is expressly understood that the
Executive may devote a reasonable amount of time to such charitable, civic and
personal affairs as shall not interfere with the obligations set forth in the
preceding sentence. The Executive agrees not to work for or participate in any
business that competes in any manner with the business of the Company during his
employment with the Company, including after hours, on weekends, or during
vacation time, even if only organizational assistance or limited consultation is
involved. The Executive may sit on the Board of Directors of other companies as
long as such companies do not in any way compete in the business of the Company.
2. Compensation and Benefit Plans
(a) The Executive shall receive a base salary during the Employment
Period which shall be payable in installments at such times as other employees
are paid but in any case at least monthly as follows: (1) During the first year
of the Employment Period ("Year One"), the Executive shall receive a gross base
salary of not less than nine thousand one hundred sixty seven dollars
($9,167.00) per month; (2) During the second and third year of the Employment
Period ("Year Two" and "Year Three" respectively), the Executive shall receive a
base salary of not less than the
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base salary received in Year One. The base salary received in any year shall be
subject to other upward adjustments as shall be recommended by the President and
CEO of the Company to the Board of Directors of the Company (the "Board") and as
shall be approved by the Board and Compensation Committee.
(b) The Executive is entitled, at the discretion of the Board of
Directors of the Company, to an Annual Incentive Bonus up to 50% of the total
yearly base compensation for the applicable year (the "Annual Incentive Bonus").
The Annual Incentive Bonus payment will be based upon mutually agreed upon
objectives and levels of performance.
(c) The Executive shall be eligible to participate in all employee
benefit programs, if any, maintained by the Company, including, but not limited
to, group life insurance, medical, dental, retirement and pension plans, any
deferred compensation profit sharing plans, 401(k) savings plan, and other such
fringe benefits as are or may be available from time to time to senior
executives of the Company. During the Employment Period, the Executive is
entitled to 4 weeks vacation per annum.
(d) The Company will pay or reimburse the Executive during the
Employment Period for all expenses normally reimbursed by the Company and
reasonably incurred by the Executive in furtherance of his duties hereunder and
authorized by the Company, including but not limited to, expenses of
entertainment, travel, meals, hotel accommodations and the like upon the
submission of the Executive of vouchers or an itemized list thereof and as may
be required in order to permit such payments as proper deductions for the
Company under the Internal Revenue Code of 1986 and the rules and regulations
adopted pursuant thereto now or hereafter in effect.
3. Termination of Employment.
(a) The employment of the Executive hereunder shall automatically
terminate if the Executive shall die during the Term of Employment. The
employment of the Executive can be terminated for cause by the Company at its
option only for the following:
(1) The conviction of the Executive under state or federal law of a
felony or other crime, or the equivalent under foreign law; unless in any such
case Executive performed such act in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the Company;
(2) the material breach by Executive of any provision of the Agreement
which has not been cured pursuant to the provisions of Section 4 hereof; or
(3) a determination or request by an appropriate regulatory authority
that the Executive be removed or disqualified from acting as an officer of the
Company.
(b) If the Executive's employment is terminated for other than cause by
the Company, then the Executive is entitled to severance payments equal to four
(4) months of the current base salary payable in a lump sum payment on the last
day of the thirty (30) day notice period;
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(c) The Executive shall have the right as his sole option to terminate
his employment at any time upon ninety (90) days written notice or for such
other notice period to be determined by the President and CEO in his sole
discretion.
(d) If within twelve (12) months of a Change in Control, as that term is
defined herein, Executive's employment is terminated for other than cause or
Executive refused to accept or voluntarily resigns from a position other than a
Qualified Position, as that term is defined herein, Executive shall receive
severance compensation equal to twelve (12) months of his then current base
salary. A "Change in Control" means the acquisition, directly or indirectly of
more than 40% of the outstanding shares of any class of voting securities of the
Company by one person or one entity that is not an existing shareholder as of
the date of this Agreement, or a merger, consolidation or sale of all or
substantially all of the assets of the Company, such that the individuals
constituting the Board of the Company immediately prior to such period shall
cease to constitute a majority of the Board, unless the election of each
director who was not a director prior thereto was approved by vote of at least
two-thirds of the directors then in office who were directors prior to such
period. Notwithstanding the foregoing, an acquisition of the requisite
percentage of voting securities in connection with a public offering of
securities by the Company for the primary purpose of providing capital resources
to the Company shall not be considered a "Change in Control" for purposes of
this Section 3(d). "Qualified Position" is an executive officer position with
the entity surviving the Change in Control with substantially the same
responsibilities as those held by the Executive on the date of the Change in
Control. Also, notwithstanding the foregoing, if the Company determines that the
amounts payable to Executive under this employment agreement, when considered
together within the other amounts payable to Executive as a result of a Change
in Control, cause such payments to be treated as excess parachute payments
within the meaning of Section 280G of the Internal Revenue Code, the Company
shall reduce the amount payable to Executive under this Section 3(d) to an
amount that will not subject Executive to the imposition of tax under Section
4999 of the Internal Revenue Code; provided, however, that this provision shall
apply only to payments to be made under this employment agreement and shall not
cause the reduction of any other payments to be made to Executive by the
Company.
4. Notice of Breach. The Company and the Executive agree that, prior to the
termination of the Employment Period by reason of any breach of any provision of
the Agreement, the injured party will give the party in breach written notice,
specifying such breach and permitting the party in breach to cure such breach
within a period of thirty (30) days after receipt of such notice, except a
breach by Executive of provisions of Section 6 of this Agreement shall not have
a cure period.
5. Indemnification.
(a) If, after the date of the commencement of the Employment Period, the
Executive is made a party or is threatened to be made a party to any action,
suit or proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he is or was a director or officer of
the Company or is or was serving at the request of the Company as a director,
officer, member, employee or agent of another corporation or partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether or not the basis of such Proceeding is an alleged act or
failure to act in an official capacity as a director, officer, member, employee
or agent, he shall be indemnified and held harmless by the Company to the
fullest extent
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authorized by Delaware law, as the same exists or may hereafter be amended,
against all expense, liability and loss (including, without limitation,
attorney's fees, judgments, fines and amounts paid or to be paid in settlement)
reasonably incurred or suffered by the Executive in connection herewith,
including , without limitation, payment of expenses incurred in defending a
Proceeding prior to the final disposition of such Proceeding (subject to receipt
of an undertaking by the Executive to repay such amount if it shall ultimately
be determined that the Executive is not entitled to be indemnified by the
Company under Delaware law), and such indemnification shall continue as to the
Executive even if he has ceased to be a director, officer, member, employee or
agent of the Company or other enterprise and shall inure to the benefit of his
heirs, executors and administrators.
(b) The right of indemnification and the payment of expenses incurred in
defending a Proceeding in advance of its final disposition conferring in this
Section 6 shall not be exclusive of any other right that the Executive may have
or hereafter may acquire under any statute, provision of the Certificate of
Incorporation or Bylaws of the Company, agreement, vote of shareholders or
disinterested directors or otherwise.
6. Trade Secrets of the Company, Patents and Inventions.
(a) Except as required by the performance of the Executive's services to
the Company under the terms of this Agreement, neither the Executive or any of
his agents or representatives, shall, during his employment and for so long
afterwards as the pertinent information or data remain Confidential Information,
directly or indirectly, make use of, permit others to use, divulge, disseminate,
copy or otherwise disclose the Company's Confidential Information and/or
Inventions as defined by subparagraphs (i) and (ii), respectively.
(i) "Confidential Information" means all information and material which
is proprietary to the Company, whether or not marked as "confidential" or
"proprietary" and which is disclosed to or obtained from the Company by the
Executive, which relates to the Company' past, present or future research,
development or business activities. Confidential Information is all information
or materials prepared by or for the Company and includes, without limitation,
all of the following: designs, drawings, specifications, techniques, models,
data, source code, object code, documentation, diagrams, flow charts, research,
development, processes, systems, methods, machinery, procedures, "know-how", new
product or new technology information, formulas, patents, patent applications,
product prototypes, product copies, cost of production, manufacturing,
developing or marketing techniques and materials, cost of production,
development or marketing time tables, customer lists, strategies related to
customers, suppliers or personnel, contract forms, pricing policies and
financial information, volumes of sales, and other information of similar
nature, whether or not reduced to writing or other tangible form, and any other
Trade Secrets, as defined by subparagraph (iii), or non-public business
information. Confidential Information does not include any information which (1)
was in the lawful and unrestricted possession of the Executive prior to its
disclosure by the Company, (2) is or becomes generally available to the public
by acts other than those of the Executive after receiving it, or (3) has been
received lawfully and in good faith by the Executive from a third party who did
not derive it from the Company.
(ii) "Inventions" means and all discoveries, concepts and ideas, whether
patentable or not, including but not limited to, processes, methods, formulas,
compositions, techniques, articles and machines, as well as improvements thereof
or "know-how" related thereto, relating at the time of
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conception or reduction to practice to the business engaged in by the Company,
or any actual or anticipated research or development by the Company.
(iii) "Trade Secrets" shall mean any scientific or technical data,
information, design, process, procedure, formula or improvement that is
commercially available to the Company and is not generally known in the
industry.
Materials involving Confidential Information and Inventions are the exclusive
property of the Company and shall not be removed under any circumstances from
the premises of the Company where the work is being carried on without prior
written consent of the Company except when consistent with the Company's normal
business practices.
(b) The Executive agrees that any inventions made, conceived or
completed by him during the term of his employment, solely or jointly with
others, which are made with the Company's equipment, supplies, facilities or
Confidential Information, or which relate at the time of conception or reduction
to purpose of the invention to the business of the Company or the Company's
actual or demonstrably anticipated research and development, or which result
from any work performed by the Executive for the Company, shall be the sole and
exclusive property of the Company. The Executive promises to assign such
inventions to the Company. The Executive also agrees that the Company shall have
the right to keep such inventions as trade secrets, if the Company chooses. The
Executive agrees to assign to the Company the Executive's rights in any other
inventions where the Company is required to grant those rights to the United
States government or any agency thereof. In order to permit the Company to claim
rights to which it may be entitled, the Executive agrees to disclose to the
Company in confidence all inventions which the Executive makes arising out of
the Executive's employment and all patent applications filed by the Executive
within one year after the termination of his employment.
(c) The Executive shall assist the Company in obtaining patents on all
inventions, designs, improvements and discoveries patentable by the Company in
the United States and in all foreign countries, and shall execute all documents
and do all things necessary to obtain letters patent, to vest the Company with
full and extensive title thereto, and to protect the same against infringement
by others.
7. Severability In the event that any provisions or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason, in whole or
in part, the remaining provisions of this Agreement shall be unaffected thereby
and shall remain in full force and effect to the fullest extent permitted by
law.
8. Assignment. The rights of the Company (but not its obligations) under this
Agreement may, without the consent of the Executive, be assigned by the Company
to any parent, subsidiary, or a successor of the Company; provided that such
parent, subsidiary or successor acknowledges in writing that it is also bound by
the terms and obligations of this Agreement. Except as provided in the preceding
sentence, the Company may not assign all or any of its rights, duties or
obligations hereunder without the prior written consent of the Executive. Except
as provided for in Section 10 hereunder, the Executive may not assign all or any
of his rights, duties or obligations hereunder without the prior written consent
of the Company.
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9. Survival of Certain Provisions. The covenants and agreements set forth in
Paragraph 6 of this Agreement shall survive termination of the Executive's
employment and/or this Agreement, and shall remain in full force and effect
regardless of the cause of such termination.
10. Beneficiaries; References. The Executive shall be entitled to select (and
change) a beneficiary or beneficiaries to receive any compensation or benefit
payable following the Executive's death, and may change such election, in either
case, by giving the Company written notice thereof. In the event of the
Executive's death or a judicial determination of his incompetence, reference in
this Agreement shall be deemed, where appropriate, to refer to the Executive's
beneficiary, estate, committee, conservator or other legal representative.
11. Notices. All notices, requests, demands and other communications shall be in
writing and shall be defined to have been duly given if delivered or if mailed
by registered mail, postage prepaid;
(a) If to the Executive, addressed to him at the following address as
may be changed in writing from time to time:
Xxxxxx X. Xxxxxxxx
00000 Xxxxx Xxxx
Xxx Xxxxx, XX 00000
(b) If to the Company, addressed to:
Patriot Scientific Corporation
00000 Xxx Xxxxxxxx
Xxx Xxxxx, XX 00000
or to such other address as any party may request by notice given as aforesaid
to the other parties hereto.
12. Titles and Headings. Titles and heading to paragraphs hereof are for the
purposes of references only and shall in no way limit, define or otherwise
effect the provisions hereof.
13. Governing Law. This Agreement is being executed and delivered and is
intended to be performed in the State of California, and shall be governed by
and construed in accordance with the laws of the State of California.
14. Arbitration/Sole Remedy for Breach of Agreement. In the event of any dispute
between the Company and the Executive concerning any aspect of the employment
relationship, including any disputes upon termination, all such disputes shall
be resolved by binding arbitration before a single neutral arbitrator. The
arbitrator shall be selected from the "American Arbitration Association." The
arbitration shall be held in San Diego, California. The arbitrator is bound to
rule only on whether or not there has been a violation of the terms of this
employment agreement and to render an award, if any, that is consistent with the
terms of this employment agreement. Neither party to this employment agreement
is entitled to any legal recourse or rights or remedies other than those
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provided within this employment agreement. The Executive's sole remedies, are
those set forth in this employment agreement. The arbitrator shall determine a
"prevailing party" and shall award such prevailing party (i) attorney's fees and
costs and (ii) the prevailing party's portion of the costs of arbitration.
In the event of any dispute between the Company and the Executive concerning any
ownership, use or disclosure of the Company's Confidential Information or other
intellectual property, the requirement of arbitration may be waived, at the
Company's sole election, and any such dispute may be brought before a court
having jurisdiction of the matter.
15. Counterparts. This Agreement shall be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. It shall not be necessary
in making proof of this Agreement to produce or account for more than one
original counterpart.
16. Entire Agreement. This Agreement contains the entire agreement of the
parties hereto and may be modified or amended only by a written instrument
executed by the parties hereto. Effective on the first day of the Employment
Period, any prior employment agreements between the Company and the Executive
shall terminate.
17. Good Faith. Each of the parties hereto agrees that he or it shall act in
good faith in all actions taken under this Agreement.
18. Waiver. No waiver of any of the provisions of this Agreement shall be deemed
to be or shall constitute a waiver of any other provision of the Agreement,
whether or not similar, nor shall any waiver constitute a continuing waiver. No
waiver of any provision of this Agreement shall be binding upon the parties
hereto unless it is executed in writing by the party making the waiver.
IN WITNESS WHEREOF, the parties hereto have executed the Agreement as of the day
and year first above written.
Patriot Scientific Corporation
By:
/S/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
President and CEO
/S/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx
Executive
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