EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") effective as of the 15th day of March
2000, between ▇▇▇▇▇▇▇▇▇.▇▇▇ , a Nevada corporation having its principal place of
business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Employer"), and ▇▇▇▇▇ ▇▇▇▇▇▇ ("Employee").
WITNESSETH:
WHEREAS, Employer desires to employ Employee upon the terms and subject to the
conditions hereinafter set forth, and Employee desires to accept such
employment:
NOW, THEREFORE, for and in consideration of the premises, the mutual promises,
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows.
1. EMPLOYMENT. Subject to the terms and conditions of this Agreement,
Employer shall employ Employee and Employee hereby accepts such
employment.
2. TERM. The term of this Agreement shall be for the period from March
15, 2000 through March 15, 2001(the "Initial Term").
3. POSITION AND DUTIES.
a. POSITION. Employee shall serve as CTO and shall perform the
duties and exercise the powers in connection with such position
and which may from time to time be reasonably assigned to or
vested in him or her by the CEO and/or the Board of Directors or
similar governing body of Employer (the "Board") or the duly
authorized committee or designee thereof.
b. FULL TIME EFFORTS. Employee shall perform and discharge
faithfully, diligently and to the best of his or her ability such
duties and responsibilities and shall devote his or her full-time
efforts to the business and affairs of Employer.
c. NO INTERFERENCE WITH DUTIES. Employee shall not devote time to
other activities such as would inhibit or otherwise interfere
with the proper performance of his or her duties.
4. WORK STANDARD. Employee hereby agrees that he or she will at all times
comply with abide by all terms and conditions set forth in this
Agreement, and all applicable work policies, procedures and rules as
may be issued by Employer.
5. COMPENSATION.
a. BASE SALARY. Subject to the terms and conditions set forth in
this Agreement, Employer shall pay Employee, and Employee shall
accept, a salary ("Base Salary") at the annual rate of $115,000
for all services rendered during the term of this Agreement. Base
Salary shall be reviewed no less frequently than annually. The
Base Salary is not to be considered in any way to limit
Employee's opportunity to receive appropriate increases in Base
Salary during the term of this Agreement. The Base Salary shall
be paid in accordance with Employer's normal payroll procedures.
b. EMPLOYMENT OPTIONS. Employee shall continue vesting options
granted under a 1998 Option Agreement.
c. WITHHOLDING. All compensation payable to Employee pursuant to
this Agreement shall be subject to, and Employer will deduct and
withhold, all applicable federal, state and local withholding,
employment, social security, and other similar taxes.
6. FRINGE BENEFITS. During the term of Employee's employment under this
Agreement, Employee shall receive the fringe benefits described below:
a. MEDICAL, DENTAL, VISION, LIFE AND DISABILITY INSURANCE. Employer
shall provide Employee and eligible dependents ("spouse and
children under 21 years of age") with medical, dental and vision
insurance coverage. Life and disability insurance coverage will
be provided by Employer to Employee.
b. VACATION. Employee is eligible for four (4) weeks of vacation per
calendar year.
c. OUT OF POCKET EXPENSES. Employer will reimburse Employee for out
of pocket expenses ("out of pocket expenses") as incurred by the
Employee in the normal course of business, including, but not
limited to corporate entertainment, non-capital purchases and
corporate travel.
7. LAWS, REGULATIONS, AND PUBLIC ORDINANCES. Employee shall comply with
all federal, state, and local statutes, regulations and public
ordinances governing the work.
8. CONFIDENTIAL INFORMATION; INVENTIONS; CONFLICTING EMPLOYMENT;
RETURNING COMPANY DOCUMENTS; SOLICITATION OF EMPLOYEES; NON-COMPETE.
a. COMPANY INFORMATION: Employee agrees at all times during the term
of employment and thereafter, to hold in strictest confidence,
and not use, except for the benefit of the Employer, or to
disclose to any person, firm or corporation without written
authorization of the board of Directors of the Company, any
Confidential Information of the Company. Employee understands
that 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 called or
with whom Employee became acquainted during the term of
employment), markets, software, developments, inventions,
processes, formulas, technology, designs, drawings, engineering,
hardware configuration information, marketing, finances, or other
business information disclosed to me by the company either
directly or indirectly in writing, orally or by drawings or
inspection of parts or equipment. Employee further understands
that 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.
b. FORMER EMPLOYER INFORMATION. Employee agrees that he will not,
during employment with the company, improperly use or disclose
any proprietary information or trade secrets of any former or
concurrent employer or other person or entity with which Employee
has an agreement or duty to keep in confidence, information
acquired by Employee in confidence, if any, and that he will not
bring onto the premises of the Company any unpublished document
or proprietary information belonging to any such employer, person
or entity unless consented to in writing by such employer, person
or entity.
c. THIRD PARTY INFORMATION. Employee recognizes that the company has
received and in the future will receive from third parties their
confidential or proprietary information subject to a duty on
certain limited purposes. Employee agrees to hold all such
confidential or proprietary information 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 work
for the company consistent with the company's agreement with such
third party.
d. INVENTIONS RETAINED AND LICENSED: Employee has attached hereto as
Exhibit A, a list describing all inventions, original works of
authorship, developments, improvements and trade secrets which
were made by Employee prior to employment with the company
(collectively referred to as Prior inventions), which belong to
Employee, which relate to the company's purposed business,
products or hereunder; or, if not such list is attached, Employee
represents that there are no such prior inventions. If in the
course of his employment wit the company, Employee incorporates
into a company product, process or machine a prior invention
owned by Employee or in which Employee has an interest, the
Company is hereby granted and shall have a non-exclusive,
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.
e. ASSIGNMENT OF INVENTIONS; Employee agrees that he 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 right, title, and interest
in and to any and all inventions, original works of authorship,
developments, concepts, improvements 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, during the period of time he is in the
employee of the company (collectively referred to as
"Inventions"), except as provided in Section i below. Employee
further acknowledges that all original works of authorship which
are made by him (solely or jointly with others) within the scope
of employment and which are protectable by copyright are "works
made for hire," as that term is defined in the United States
Copyright Act.
f. MAINTENANCE OF RECORDS: Employee agrees to keep and maintain
adequate and current written records of all inventions made by
Employee (solely or jointly with others) during the term of
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 REGISTRATION: Employee agrees to 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, mask work rights, or
other intellectual property rights relating thereto. Employee
further agrees that my obligation to execute or cause to be
executed, when it is in my power to do so, any such instrument or
papers shall continue after the termination of this Agreement. If
the company is unable because of mental or physical incapacity or
for any other reason to secure my signature to apply for or to
pursue any application for any United States or foreign patents
or copyrights registrations covering inventions or original works
of authorship assigned to the company as above, then Employee
hereby irrevocably designates and appoints company and its duly
authorized officers and agents as his agent and attorney in fact,
to act for and in his 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. EXCEPTIONS TO ASSIGNMENTS. Employee understands that the
provisions of this Agreement requiring assignment of inventions
to company do not apply to any invention which qualifies fully
under the provisions of California Labor Code Section 2870.
Employee will advise the company promptly in writing of any
inventions that he believes meet the criteria in California Labor
Code Section 2870 and not otherwise disclosed on Exhibit A.
i. RETURNING COMPANY DOCUMENTS. Employee agrees that, at the time of
leaving the employ of the company he will deliver to the company
(and will not keep in his possession or deliver to anyone else)
any and all devices, records, data, notes, reports, proposals,
lists, correspondence, specifications, drawings, blueprints,
sketches, materials, equipment, others documents, or property, or
reproductions of any aforementioned items developed by Employee
pursuant to his employment with the company or otherwise
belonging to the company, its successors or assigns.
j. SOLICITATION OF EMPLOYEES. Employee agrees that, for a period of
one year immediately following the termination of his
relationship with the company for any reason, whether with or
without cause, either directly or indirectly, on his own behalf
or in the service or on behalf of other, solicit, recruit or
attempt to persuade any person to terminate such person's
employment with the company, whether or not such person is a
full-time employee or whether or not such employment is pursuant
to a written agreement or is at-will.
k. NON-COMPETE. Employee agrees that he shall not, for a period of
one year immediately following the termination of my relationship
with the company for any reason, whether with or without cause,
either directly or indirectly engage in any activity that
competes with ▇▇▇▇▇▇▇▇▇.▇▇▇
9. TERMINATION FOR CAUSE. This Agreement may be terminated at any time by
Employer without prior notice thereof to Employee and without any
liability owning to Employee under this Agreement under the following
conditions, each of which shall constitute "Cause";
a. FAILURE TO DISCHARGE DUTIES. Employee willfully neglects or
refuses to discharge his duties hereunder or refuses to comply
with any lawful and reasonable instructions given to him by
Employer without reasonable excuse;
b. BREACH. Employee shall have committed any material breach, or
repeated or continued after written notice of any breach, whether
material or not, of his obligations hereunder;
▇. ▇▇▇▇▇ MISCONDUCT. Employee is guilty of gross misconduct. For the
purposes of this Agreement the following acts shall constitute
gross misconduct:
i) Any act involving fraud or dishonesty or breach of
applicable regulations of competent authorities in relation
to trading or dealing with stocks, securities, investments
and the like;
ii) The carrying out of any activity or the making of any
statement which would prejudice or impair the good name or
standing of Employer or would bring Employer into contempt,
ridicule or would reasonable shock or offend any community
in which Employer is located;
iii) Attendance at work in a state of intoxication or otherwise
being found in possession at his place of work any
prohibited drug or substance, possession of which would
amount to a criminal offense;
iv) Assault or other act of violence against any employee of
Employer or other person during the course of his or her
employment;
v) Harassment of disparagement of others based on their age,
disability, color, national origin, race, religion, sex or
veteran status, including acts of sexual harassment or,
vi) Conviction of any felony or misdemeanor involving moral
turpitude.
10. TERMINATION BY EMPLOYER FOR REASONS OTHER THAN CAUSE. Notwithstanding
anything herein to the contrary, and subject to the survival
provisions of Paragraph 13.G hereof, Employer may terminate this
Agreement at any time with thirty (30) days prior notice thereof to
Employee. In such an event, Employer shall pay to Employee in
accordance with Employer's normal practices; 1) the Base Salary; 2)
vested Stock Options, 3) Medical, Dental, Vision, Life and Disability
Insurance, 5) and any unused Vacation -for a period of one (1) year
after the date of the termination.
11. TERMINATION BASED UPON CHANGE OF CONTROL. In the event Employer enters
into an agreement with another person or entity, the effect of which
is to change the control of the Employer, then and in such event,
Employee shall be exclusively entitled to terminate this Agreement,
and in such event, Employer shall pay to Employee the severance
payments in the amount of one (1) year base salary, and benefits
payable through the end of the term. Additionally, upon such
termination, the vesting of all options to purchase Common Stock of
the Company held by Employee shall be accelerated so that such options
are immediately exercisable. For purposes of this Agreement, the term
"change of control: shall mean: (i) any change of equity such that
more than fifty percent (50%) of the issued and outstanding shares of
the Company are transferred to a third party; (ii) or debt ownership,
including but not limited to conversion rights of debt to equity of
the Employer such that more than fifty percent (50%) of the issued and
outstanding shares are transferred to a third party; or (iii) a sale
of substantially all of Employer's assets. However, a change of
control shall not include a public offering of the securities of the
Company.
12. TERMINATION BY EMPLOYEE.
a. VOLUNTARY TERMINATION. Employee may terminate his employment
under this Agreement at any time with thirty (30) days prior
written notice thereof to Employer. Upon such termination,
Employee shall be entitled to his pro-rata Base Salary and all
stock options that have vested at that time.
b. RESIGNATION FOR GOOD CAUSE. The termination of his employment
under this Agreement by Employee following a substantial
reduction in Employee's position or duties or material breach of
this Agreement by Employer shall be deemed a termination by
employee for reasons other than cause as set forth in paragraph
10 hereof.
c. TERMINATION UPON DEATH. This Agreement shall terminate
immediately upon Employee's death. Employee's estate shall be
entitled to Employee's Base Salary up to twelve (12) months after
the Employee's death and earned Stock Options. Medical, Dental
and Vision Insurance payments shall continue for six (6) months
from date of Employee's death.
13. GENERAL PROVISIONS.
a. AMENDMENT. This Agreement may be amended or modified only by a
writing signed by both of the parties hereto.
b. BINDING AGREEMENT. This Agreement shall inure to the benefit of
and be binding upon Employee, his or her heirs and personal
representatives, and Employer, its successors and assigns.
c. WAIVER. The waiver by either party of a breach of any provision
contained in this Agreement shall not be construed as or operate
as a waiver of any subsequent breach.
d. NOTICES
i) All notices and all other communication provided for herein
shall be in writing and delivered personally to the other
designated party, or mailed by certified or registered mail,
return receipt requested or delivered by a recognized
national overnight courier service, or sent by facsimile as
follows:
If to Employer to: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇
Director
If to Employer to: Mr. ▇▇▇▇ ▇▇▇▇▇▇▇▇
CEO, President, Treasurer
If Employee has provided notice to Employer that he is
represented by counsel, Employer shall copy Employee's counsel at
the address specified. Employee agrees and understands that any
legal fees or expenses incurred by him in connection with this
Agreement are his sole responsibility and Employer shall not
reimburse Employee for any portion of such fees or expenses.
ii) All notices sent under this Paragraph 13 shall be deemed
given twenty four (24) hours after sent by facsimile or
courier and seventy-two (72) hours after sent by certified
or registered mail.
iii) Either party hereto may change the address to which notice
is to be sent hereunder by written notice to the other party
in accordance with the provisions of this Paragraph.
e. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of California, without
regard to principles of conflicts of laws.
f. ENTIRE AGREEMENT. This Agreement contains the full and complete
understanding of the parties hereto with respect to the subject
matter contained herein and this Agreement supersedes and
replaces any prior agreement , either oral or written, which
Employee may have with Employer that relates generally to the
same subject matter.
g. SURVIVAL. Notwithstanding any expiration or termination of this
Agreement, the provisions of this agreement shall survive and
remain in full force and effect, as shall any other provision
hereof that, by its terms or reasonable interpretation thereof,
sets forth obligations that extend beyond the termination of this
Agreement.
h. ASSIGNMENT. This Agreement may not be assigned by Employee
without the prior written consent of Employer, and any attempted
assignment not in accordance herewith shall be null and void and
of no force or effect. Employer can assign this Agreement to any
Affiliate with Employee's written consent. Thereafter, any such
assignee shall be considered to be the Employer for all purposes
under this Agreement; provided however, that references to
previous incentive bonuses shall be deemed to include incentive
bonuses paid by any assignor.
i. SEVERABILITY. If any one or more of the terms, provisions,
covenants or restrictions of this Agreement shall be determined
by a court of competent jurisdiction to be invalid, void or
unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full
force and effect, and to that end the provisions hereof shall be
deemed severable.
j. PARAGRAPH HEADING. The section headings set forth herein are for
convenience of reference only and shall not affect the meaning or
interpretation of this Agreement whatsoever.
k. VOLUNTARY AGREEMENT. Employee and Employer represent and agree
that each has reviewed all aspects of this Agreement, has
carefully read and fully understands all provisions of this
Agreement, and is voluntarily entering into this Agreement. Each
party represents and agrees that such party has had the
opportunity to review any and all aspects of this Agreement with
legal, tax or other advisers(s) of such party's choice before
executing this Agreement.
REMEDIES.
ARBITRATION OF DISAGREEMENTS. Any dispute, controversy or claim
arising out of or relating to the obligations under this Agreement
shall be settled by final and binding arbitration in accordance with
the American Arbitration Association Employment Dispute Resolution
Rules. The arbitrator shall be selected by mutual agreement of the
parties, if possible. If the parties fail to reach agreement upon
appointment of an arbitrator within 30 days following receipt by one
party of the other party's notice of desire to arbitrate, the
arbitrator shall be selected from a panel or panels of persons
submitted by the American Arbitration Association (the "AAA"). The
selection process shall be that which is set forth in the AAA
Employment Dispute Resolution Rules, except that, if the parties fail
to select an arbitrator from one or more panels, AAA shall not have
the power to make an appointment but shall continue to submit
additional panels until an arbitrator has been selected.
All fees and expenses of the arbitration, including a transcript if
requested, will be borne by the Employer. Any action to enforce or
vacate the arbitrator's award shall be governed by the Federal
Arbitration Act, if applicable, and otherwise by California state law.
IN WITNESS WHEREOF, the parties hereto have executed, or caused their duly
authorized representative to execute, this Agreement as of the date first above
written.
EMPLOYER EMPLOYEE
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BY: