EMPLOYMENT AGREEMENT with RAY WILLENBERG, JR.
Exhibit 10.11
with
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EMPLOYMENT
AGREEMENT entered into as of the 20th day of March 2008
between ▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇., (the "Employee") and Rim Semiconductor Company, a
Utah corporation with offices at ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇.,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ (the "Company").
W I T N E S S E T H
WHEREAS, Employee was engaged
as the Company's Executive Vice President under the Employment Agreement dated
as of March 3, 2005 between Employee and the Company (the "Previous Employment
Agreement");
WHEREAS, the term of the
Previous Employment Agreement has expired as provided therein and the Company
and the Employee desire to continue the employment of Employee as the Company's
Executive Vice President upon the terms and conditions contained
herein.
NOW THEREFORE, in
consideration of the premises and mutual agreements hereinafter contained, the
parties hereto agree as follows:
1. Engagement &
Duties
With
effect from the effective date (as defined in Section 2), the Company employs
Employee and Employee accepts employment with the Company as Executive Vice
President. Additionally, the Company shall take such action necessary to appoint
the Employee as president of Company’s wholly owned subsidiary NV Entertainment,
Inc. (“NVE”). Such appointment shall automatically terminate upon expiration or
termination of this Agreement and Employee shall not be entitled to any benefits
or remuneration for such position with NVE.
The
Employee shall perform faithfully and diligently the duties customarily
performed by persons in the position for which Employee is engaged. Employee
shall devote Employee’s full business time and efforts to rendition of such
services and to the performance of such duties customarily associated with
Employee’s position.
1.2
The
Employee shall report directly to the Chief Executive Officer of the
Company.
1.3
The
Employee's services under this Agreement will be performed at La Jolla,
California. The Parties acknowledge and agree, however, that the
nature of the Employee's duties hereunder will also require substantial domestic
travel.
2. Term
2.1
Employee's
employment under this Agreement shall commence on March 20, 2008 (the
"Effective Date") and shall end on the earlier of: (i) the death or disability
(as defined herein ) of the Employee, (ii) termination by either party without
cause upon written notice; (iii) termination of Employee with cause or (iv) one
(1) year from the date of this Agreement.
2.2 For
the purpose of this paragraph 2, "disability" shall mean any physical or mental
illness or injury as a result of which Employee remains absent from work for a
period of six (6) successive months, or an aggregate of six (6) months in any
twelve (12) month period. Disability shall occur at the end of any such
period.
2.3 For
purposes of this Agreement, Employer shall have "Cause" to terminate the
Executive's employment hereunder only upon:
(i)
The failure or neglect by the Executive to substantially perform his assigned
duties to the Employer or any subsidiary (other than any such refusal resulting
from the Executive's disability or incapacity due to physical or mental
illness);
(ii)
The engaging by the Executive in criminal conduct or conduct constituting moral
turpitude or which otherwise brings notoriety to Company or has an adverse
effect on the name or public image of the Company;
(iii)
The willful insubordination of the Executive;
(iv)
The embezzlement, theft or misappropriation by the Executive of any property of
Employer or its affiliates;
(v)
Fraud, acts of dishonesty or misrepresentation, or other acts
(including any breach of the Executive's covenants contained in this Agreement)
that cause harm to Employer or substantial damage to its reputation or that of
its subsidiaries (other than as a consequence of good faith decisions made by
the Executive in the normal performance of the Executive's duties
hereunder);
(vi)
A conviction for or plea of nolo contendere to a felony which carries a minimum
prison sentence upon conviction of one (1) year or longer;
(vii)
Executive commits a material breach of this Agreement or any written policies of
Employer;
(viii)
breach of Executive's fiduciary obligations to the Employer or any of its
subsidiaries; and/or
(ix)
any chemical dependence which materially affects the performance of Executive's
duties and responsibilities to the Employer or any of its
subsidiaries;
PROVIDED,
that in the case of the misconduct set forth in clauses (i) and (ix)
above, such misconduct shall continue for a period of thirty (30) days following
written notice thereof by Employer to Employee.
Notwithstanding
the foregoing, Executive shall not be deemed to have been terminated for Cause
unless and until there shall be delivered to him a copy of a duly adopted
resolution of the Employer's Board of Directors finding that the Employer has
"Cause" to terminate Executive as contemplated in this Section
4(a).
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2.4 During
the period following notice of termination until the effective date of
termination by either party for whatever reason, the Employee shall cooperate
with the Company and use his best efforts to assist the integration into the
Company the person or persons who will assume the Employee's
responsibilities.
3. Remuneration. The
Employee shall be paid a base salary at the rate of $20,833.33 per month,
prorated for any partial pay period.
4. Board of Directors. Company
agrees that so long as this Agreement is in effect, Employee will be nominated
to the board as part of management's slate of directors and if so elected will
be appointed as chairman of the Board. Upon the termination of this agreement
for cause, the Employee shall be deemed to have resigned from the Company's
board of directors.
5. Bonus
During the term of this Agreement the
Employee shall be paid an amount equal to 2% of the total annual amount paid to
Company by Top Secret Productions in respect of the film “Step into Liquid”. The
said amount shall be paid within 45 days of the end of each calendar year and
the Company shall provide an explanatory statement to the Employee
with payment.
6. Fringe Benefits
6.1 Vacation & Sick Leave.
Employee shall be entitled to take an aggregate of 20 business days
of vacation, during the term hereof, prorated for any portion of a
year to date of termination. The timing and duration of any vacation shall be as
agreed upon by the parties.
6.2 Other Fringe
Benefits. Employee shall be eligible to participate, on terms
no less favorable than those afforded to other executives of the Company, in any
employee benefit plan, health insurance program, life insurance plan, disability
insurance plan, retirement plan, 401(k) and other compensation plans that may
hereafter be adopted by the Company for its executives and management employees
from time to time. Such participation shall be subject to the terms
of the applicable plan, generally applicable policies of the Company, applicable
law and the discretion of the Board of Directors. Nothing contained
in this Agreement shall be construed to create any obligation on the part of the
Company to establish any such plan or to maintain the effectiveness of any such
plan which may be in effect from time to time. Subject to review at the end of
each year of employment, commencing on the first anniversary of this Agreement,
or at any time at the Board’s discretion, Employee may, at the discretion of the
Board be awarded a bonus based on performance and Employee shall have the option
if such bonus is awarded of receiving the same in cash or shares of common stock
of the Company equal to the amount of the bonus based on the closing price of
the shares on day bonus is awarded.
6.3 Expenses. Employee is
authorized to incur reasonable and proper expenses for promoting the business of
the Company as specified in the Company’s travel and expense policy. The Company
will reimburse Employee promptly for all such expenses upon presentation by
Employee, of receipts or other appropriate evidence of expenses.
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Office. The Company shall
lease an office for Employee’s use in performing his duties under this
Agreement.
Car Allowance. The
Employee is eligible for a $500.00 per month car allowance. Employee
is not eligible for reimbursement for mileage or other auto-related
expenses.
7. Employee
Representations
The Employee represents and warrants to
the Company that the execution and delivery of this Agreement and the
fulfillment of the terms hereof (i) will not constitute a breach of any
agreement or other instrument to which Employee is party, (ii) does not require
the consent of any person, and (iii) shall not utilize during the term of his
employment any proprietary information of any third party, including prior
employers of the Employee.
8. Confidentiality, Non-Compete;
Poaching; Development Rights
The
Company values the protection of its confidential information and proprietary
materials essential to the survival of the Company. Therefore, as a
mandatory condition of Employee’s employment, Employee agrees to comply with the
following provisions.
a. Confidentiality
(i) The
term "Information" as used in this section means any and all confidential and
proprietary information including but not limited to any and all specifications,
formulae, prototypes, software design plans, computer programs, and any and all
records, data, methods, techniques, processes and projections, plans, marketing
information, materials, financial statements, memoranda, analyses, notes, and
other data and information (in whatever form), as well as improvements and
know-how related thereto, relating to the Company or its
products. Information shall not include information that (a) was
already known to or independently developed by the Employee prior to its
disclosure as demonstrated by reasonable and tangible evidence satisfactory to
the Company; (b) shall have appeared in any printed publication or patent or
shall have become part of the public knowledge except as a result of breach of
this Agreement by the Employee or similar agreements by other Company employees
(c) shall have been received by the Employee from another person or entity
having no obligation of confidentiality to the Company or (d) is approved in
writing by the Company for release by the Employee.
(ii) Subject
to the provisions of Section (iii) below, the Employee agrees to hold in trust
and confidence all Information disclosed to Employee and further agrees not to
exploit or disclose the Information to any other person or entity or use the
Information directly or indirectly for any purpose other than for Employee’s
work with the Company, unless otherwise consented to in writing by the
Company.
(iii) The
Employee agrees to disclose the Information only to persons necessary in
connection with Employee’s work with the Company or who have undertaken the same
confidentiality obligations set forth herein in favor of the
Company. The Employee agrees to assume full responsibility for the
confidentiality of the Information disclosed to Employee and to prevent its
unauthorized disclosure, and shall take appropriate measures to ensure that such
persons acting on his behalf are bound by a like covenant of
secrecy.
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(iv) The
Employee acknowledges and agrees that the Information furnished hereunder is and
shall remain proprietary to the Company. Unless otherwise required by
statute or government rule or regulation, all copies of the Information, shall
be returned to the Company immediately upon request without retaining copies
thereof.
b. Non-Compete; Poaching; Development
Rights
(i) Unless
otherwise expressly consented to in writing by the Company, during the term of
the Employee's employment hereunder, and for a period of twelve (12) months
following the date on which Employee's termination of employment with the
Company becomes effective, Employee will not, directly or indirectly, for his
own account or as an employee, officer, director, consultant, joint venture,
shareholder, investor, or otherwise (except as an investor in a corporation
whose stock is publicly traded and in which the Employee holds less than 5% of
the outstanding shares) interest him/herself or engage, directly or indirectly,
in the design, development, production, sale or distribution of any product or
component that directly or indirectly competes with a product or component (i)
being designed, produced, sold or distributed by the Company or any of its
affiliates (ii) or to which the Company or any of its affiliates shall then have
proprietary rights.
(ii) Hiring of Company Employees.
During the term of the Employee's employment hereunder, and for a period of
twelve (12) months following the date on which Employee's termination of
employment with the Company becomes effective, the Employee shall not, except in
the course of the performance of his duties hereunder or with the prior approval
of the Board, in any way directly or indirectly, with respect to any person who
to the Employee's knowledge was employed by the Company or its affiliates
("Company Employee") at any time during the period commencing
12 months prior to the date of the hiring of such Company Employee,
hire or cause to be hired any Company Employee, or contract the services of any
closely held private corporation or other entity in which such Company Employee
is an officer or director or holds a 25% or greater equity ownership
interest.
(iii) Employee's
undertakings herein under this Section 6(b) shall be binding upon Employee’s
successors, heirs or assigns, and shall continue until the later of (i) the
expiration of one year from the date of execution of this Agreement or (ii) the
expiration of one year from the date the Employee last represented him/herself
as an employee, agent or representative of the Company or any of its affiliates,
subsidiaries or successors.
(iv) Employee
acknowledges that the restricted period of time specified under this Section
9(b) are reasonable, in view of the nature of the business in which the Company
is engaged and Employee's knowledge of the Company's business and
products. If such a period of time or geographical location should be
determined to be unreasonable in any judicial proceeding, then the period of
time and area of restriction shall be reduced so that this Agreement may be
enforced in such an area and during such a period of time as shall be determined
to be reasonable by such judicial proceeding.
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(v) Development
Rights. The Employee agrees and declares that all proprietary
information including but not limited to trade secrets, know-how, patents and
other rights in connection therewith developed by or with the contribution of
Employee's efforts during his employment with the Company shall be the sole
property of the Company. Employee shall keep and maintain adequate and current
records (in the form of notes, sketches, drawings and in any other form that may
be required by the Company) of all such proprietary information developed by
Employee. Employee shall at Company's request do all things and execute all
documents as Company may reasonably require to vest in Company the rights and
protection herein referred to. It is hereby acknowledged and agreed that the
Salary payable under this Agreement also constitutes sufficient consideration
for the Employee's obligation hereunder
9. Right of First
Refusal
9.1
Notice of Outside
Offer. If at any time the Company (i) receives a bona fide written offer (the
“Outside Offer”) from an arm’s length person (the “Outside Purchaser”) to
purchase any of the Company’s membership interest in Top Secret Productions LLC,
a Delaware limited liability company (the “Assets”) which the Company
wishes to accept, or (ii) if at any time the Company determines to sell the
Assets for a determined price (the “Offer Price”) then the Company must give an
irrevocable notice in writing (the “Sale Notice”) to the Employee (i) within 5
Business Days of receipt of the Outside Offer or (ii) of the Offer
Price. The Sale Notice must set out the terms, conditions, price and
any other information relating to the Outside Offer or Offer Price that would be
reasonably relevant to the Employee.
9.2 Employee’s Right to
Purchase. The Employee has the right, to be exercised by a
notice in writing (the “Employee Notice”) given to the Company within 5 business
days of receipt of the Sale Notice to purchase all of the Assets on the terms
and conditions set out in the Outside Offer or the Offer Price.
9.3 Closing Date. The
transaction of purchase and sale contemplated by section 10.2 must be completed
within 30 business days of receipt of the Sale Notice (“Employee Closing
Date”).
9.4 Sale to Outside Purchaser.
If the Employee does not give an Employee Notice within the
time limited or if the Assets remain unsold after the Employee Closing Date, the
Company will be entitled to complete the transaction contemplated by (i) the
Outside Offer with the Outside Purchaser in accordance with the terms and
conditions set out in the Outside Offer or (ii) on terms at least as favourable
to Company as contained in the Offer Price.
Notwithstanding
the above Employee’s rights in this Section 10 are subject to the rights of
other members of Top Secret Productions LLC, including the rights of first
refusal, all as described in the Operating Agreement of Top Secret Productions
LLC dated May 2, 2000, as amended from time to time.
10. Miscellaneous
10.1 Benefit &
Assignment This Agreement shall inure to the benefit of and be
binding upon the Company, its successors and assigns. The rights and
obligations of the Employee under this Agreement may not be assigned by the
Employee.
10.2 Entire
Agreement This Agreement constitutes the entire
understanding and agreement between the parties, and supersedes any
and all prior discussions and agreements and correspondence, and may not be
amended or modified in any respect except by a subsequent writing
executed by both parties.
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10.3 Notices All
notices or other communications hereunder shall be in writing and shall be sent
to either party by hand or by Registered or Certified mail, postage prepaid,
return receipt requested, or sent by telegram or facsimile to the address set
forth in the Preamble to this Agreement or to such other address as the
recipient may designate by notice in accordance with the provisions of this
section.
10.4 Applicable
Law. This Agreement shall be interpreted, governed,
construed and enforced according to the laws of the State
of California.
10.5 Counsel. Each Party to this
Agreement has had the opportunity to obtain independent legal advice in
connection with this Agreement
IN WITNESS WHEREOF, the
parties have caused this Agreement to be duly signed as of the date stated
above.
Rim
Semiconductor Company
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