EMPLOYMENT AGREEMENT
This Employment Agreement is entered into by and between Xxx xxXxxx
("EMPLOYEE") and CAW Products, Inc. (the "COMPANY") effective as of January 4,
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 CAW
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. Subject to the provisions of
Section 5 below, 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 term of this Agreement shall be automatically extended by
one (1) year in the event that the Company's gross sale revenues for the years
ending September 30, 2000 and September 30, 2001 each exceed the similar figure
for the year ending September 30, 1999 and Employee has complied with the
provisions of this Agreement in all material respects prior to such extension;
PROVIDED, HOWEVER, that if the foregoing gross sale revenue figures are not
obtained for any reason whatsoever, the Company shall have the right, but 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 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. Notwithstanding the
foregoing sentence, Employee shall be permitted to attend classes for his
Masters in Business Administration program on the days set forth on SCHEDULE 2
attached hereto without the need to use vacation time granted to him by the
Company. 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 $138,000
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 60,000 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 at the close of the business day of the next Parent Board
of Directors or Compensation Committee meeting following the Effective Date.
(c) BONUSES. Employee will be eligible to receive quarterly
bonuses as determined pursuant to the Bonus Program attached hereto as EXHIBIT
A. In addition, Employee shall be paid a quarterly bonus of $5,000.00 for each
of the first eight (8) quarters during the term of this Agreement, which shall
be completely unrelated to and separate from the Bonus Program attached hereto
as EXHIBIT A.
(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 $5,000.00, 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.
5. SALARY CONTINUATION.
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(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") and the pro
rata portion of any bonuses earned by or owed to Employee pursuant to Section
4(c) above, through and including the date employment is terminated. 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.
(iv) FOR GOOD REASON. Employee shall have the right
to terminate his employment hereunder for Good Reason. For purposes of this
Agreement "Good Reason" means:
(a) A material breach by the Company of its
obligations hereunder;
(b) A substantial alteration of the
Employee's responsibilities hereunder;
(c) Employee incurs a reduction in his base
salary from the level specified in Section 4(a) above; or
(d) Subsequent to relocating to Reno,
Nevada, Employee is notified by the Company that his principal place of work
will be relocated by a distance of twenty- five (25) miles or more from 0000
Xxxxxxx Xxxxx, Xxxx, Xxxxxx.
If Employee's employment terminates for Good Reason,
Employee will be entitled to salary continuation as set forth in Section
5(a)(ii) above.
b. OTHER EMPLOYMENT. In the event Employee commences new
employment with a company whose business or proposed business in any way
involves products or services which would be competitive with the services or
proposed products or services of the Company, then any salary continuation
pursuant to this Section 5 shall cease.
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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.
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.
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.
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(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.
(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.
CAW PRODUCTS, INC. EMPLOYEE
By: /S/ XXXX XXXXXXX By: /S/ XXX XXXXXX
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Xxxx Xxxxxxx Xxx xxXxxx
Chief Financial Officer
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