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EXHIBIT 10.4
EMPLOYMENT AGREEMENT
BY AND BETWEEN
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AND
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TABLE OF CONTENTS
1. Employment................................................................... 1
2. Loyal And Conscientious Performance; Noncompetition.......................... 2
3. Compensation Of Executive.................................................... 2
4. Termination.................................................................. 3
5. Confidential And Proprietary Information; Nonsolicitation.................... 4
6. Assignment And Binding Effect................................................ 4
7. Notices...................................................................... 4
8. Choice of Law................................................................ 5
9. Integration.................................................................. 5
10. Amendment.................................................................... 5
11. Waiver....................................................................... 5
12. Severability................................................................. 5
13. Interpretation; Construction................................................. 6
14. Representations And Warranties............................................... 6
15. Litigation Costs............................................................. 6
16. Counterparts................................................................. 6
17. Arbitration.................................................................. 6
18. Injunctive Relief............................................................ 7
19. Trade Secrets Of Others...................................................... 7
20. Advertising Waiver........................................................... 7
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EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
effective as of May 13, 1999, by and between ▇▇▇.▇▇▇ (the "Company"), and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ("Executive"). The Company and Executive are hereinafter
collectively referred to as the "Parties," and individually referred to as a
"Party."
RECITALS
A. The Company desires assurance of the continued association and
services of Executive in order to retain Executive's experience, skills,
abilities, background and knowledge, and is willing to engage Executive's
services on the terms and conditions set forth in this Agreement.
B. Executive desires to continue in the employ of the Company, and is
willing to continue such employment on the terms and conditions set forth in
this Agreement.
AGREEMENT
In consideration of the foregoing Recitals and the mutual promises and
covenants herein contained, and for other good and valuable consideration, the
Parties, intending to be legally bound, agree as follows:
1. EMPLOYMENT.
1.1 The Company hereby employs Executive, and Executive hereby accepts
employment by the Company, upon the terms and conditions set forth in this
Agreement for the period commencing January 20, 1999 (the "Hire Date") and
ending December 31, 2002. Notwithstanding anything herein to the contrary,
either Party may terminate Executive's employment under this Agreement at any
time, with or without cause, subject to the terms and conditions of Section 4
herein.
1.2 Executive shall have the title of Chief Executive Officer of the
Company and shall serve in such other capacity or capacities as the Company may
from time to time prescribe. Executive shall report to the Board of Directors.
1.3 Executive shall do and perform all services, acts or things
necessary or advisable to manage and conduct the business of the Company and
which are normally associated with the position of Chief Executive Officer,
consistent with the Bylaws of the Company and as required by the Company's Board
of Directors.
1.4 The employment relationship between the Parties shall be governed by
the policies and practices established by the Board of Directors, except that
when the terms of this Agreement differ from or are in conflict with the
Company's policies or practices, this Agreement shall control.
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1.5 Unless the Parties otherwise agree in writing, during the term of
this Agreement, Executive shall perform the services he is required to perform
pursuant to this Agreement at the Company's offices, located in San Diego, or at
any other place at which the Company maintains an office; provided, however,
that the Company may from time to time require Executive to travel temporarily
to other locations in connection with the Company's business.
2. LOYAL AND CONSCIENTIOUS PERFORMANCE; NONCOMPETITION.
2.1 During his employment by the Company, Executive shall devote his
full business energies, interest, abilities and productive time to the proper
and efficient performance of his duties under this Agreement.
2.2 Except with the prior written consent of the Company's Board of
Directors, Executive will not, during his employment by the Company, engage in
competition with the Company, either directly or indirectly, in any manner or
capacity, as adviser, principal, agent, partner, officer, director, employee,
member of any association or otherwise, in any phase of the business of
developing, manufacturing and marketing of products which are in the same field
of use or which otherwise compete with the products or proposed products of the
Company.
2.3 Except as permitted herein, Executive agrees not to acquire, assume
or participate in, directly or indirectly, any position, investment or interest
known by him to be adverse or antagonistic to the Company, its business or
prospects, financial or otherwise. Ownership by Executive, as a passive
investment, of less than one percent (1%) of the outstanding shares of capital
stock of any corporation with one or more classes of its capital stock listed on
a national securities exchange or publicly traded in the over-the-counter market
shall not constitute a breach of this paragraph.
3. COMPENSATION OF EXECUTIVE.
3.1 The Company shall pay Executive a base salary of $150,000 per year
(the "Base Salary"), payable in semi-monthly payments in accordance with Company
policy. Such salary shall be prorated for any partial year of employment on the
basis of a 365-day fiscal year.
3.2 Executive's compensation may be changed from time to time by mutual
agreement of Executive and the Company.
3.3 Executive shall be eligible for an annual performance bonus of up to
$50,000 payable at the sole discretion of the Company's Board of Directors.
3.4 All of Executive's compensation shall be subject to customary
withholding taxes and any other employment taxes as are commonly required to be
collected or withheld by the Company.
3.5 Executive shall, in accordance with Company policy and the terms of
the applicable plan documents, be eligible to participate in benefits under any
Company benefit plan
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or arrangement which may be in effect from time to time and made available to
its executive or key management employees.
4. TERMINATION.
4.1 TERMINATION. Executive's employment with the Company may be
terminated under the following conditions:
4.1.1 DEATH OR DISABILITY. Executive's employment with the
Company shall terminate effective upon the date of Executive's death or
"Complete Disability."
4.1.1.1 COMPLETE DISABILITY. "Complete Disability" shall
mean the inability of Executive to perform Executive's duties under this
Agreement because Executive has become permanently disabled within the meaning
of any policy of disability income insurance covering employees of the Company
then in force. In the event the Company has no policy of disability income
insurance covering employees of the Company in force when Executive becomes
disabled, the term "Complete Disability" shall mean the inability of Executive
to perform Executive's duties under this Agreement by reason of any incapacity,
physical or mental, which the Board, based upon medical advice or an opinion
provided by a licensed physician acceptable to the Board, determines to have
incapacitated Executive from satisfactorily performing all of Executive's usual
services for the Company during the foreseeable future. Based upon such medical
advice or opinion, the determination of the Board shall be final and binding and
the date such determination is made shall be the date of such complete
disability for purposes of this Agreement.
4.1.2 TERMINATION BY THE COMPANY. The Company may terminate
Executive's employment under this Agreement at any time and for any reason by
delivery of written notice of such termination to the Executive. Any notice of
termination given pursuant to this Section 4.1.2 shall effect termination as of
the date specified in such notice or, in the event no such date is specified, on
the last day of the month in which such notice is delivered or deemed delivered
as provided in Section 7 below.
4.1.3 TERMINATION BY EXECUTIVE. Executive may terminate his
employment under this Agreement upon twelve (12) months notice to the Company
for any reason by delivery of a written notice of such termination to the
Company. Any notice of termination given pursuant to this Section 4.1.3 shall
effect termination as of the date specified in such notice or, in the event no
date is specified, on the last day of the month in which such notice is
delivered or deemed delivered as provided in Section 7 below.
4.2 TERMINATION BY MUTUAL AGREEMENT OF THE PARTIES. Executive's
employment pursuant to this Agreement may be terminated at any time upon the
mutual agreement in writing of the parties. Any such termination of employment
shall have the consequences specified in such agreement.
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5. CONFIDENTIAL AND PROPRIETARY INFORMATION; NONSOLICITATION.
5.1 Executive agrees to continue to abide by the Proprietary Information
and Inventions Agreement that he executed upon commencement of employment with
the Company, a copy of which is attached hereto as Exhibit A.
5.2 Executive recognizes that his employment with the Company will
involve contact with information of substantial value to the Company, which is
not old and generally known in the trade, and which gives the Company an
advantage over its competitors who do not know or use it, including but not
limited to, techniques, designs, drawings, processes, inventions, developments,
equipment, prototypes, sales and customer information, and business and
financial information relating to the business, products, practices and
techniques of the Company, (hereinafter referred to as "Confidential and
Proprietary Information"). Executive will at all times regard and preserve as
confidential such Confidential and Proprietary Information obtained by Executive
from whatever source and will not, either during his employment with the Company
or thereafter, publish or disclose any part of such Confidential and Proprietary
Information in any manner at any time, or use the same except on behalf of the
Company, without the prior written consent of the Company.
5.3 While employed by the Company and for one (1) year thereafter, the
Executive agrees that in order to protect the Company's Confidential and
Proprietary Information from unauthorized use, that Executive will not, either
directly or through others, solicit or attempt to solicit any employee,
consultant or independent contractor of the Company to terminate his or her
relationship with the Company in order to become an employee, consultant or
independent contractor to or for any other person or business entity; or the
business of any customer, vendor or distributor of the Company which, at the
time of termination or one (1) year immediately prior thereto, was doing
business with the Company or listed on Company's customer, vendor or distributor
list.
6. ASSIGNMENT AND BINDING EFFECT.
6.1 This Agreement shall be binding upon and inure to the benefit of
Executive and Executive's heirs, executors, personal representatives, assigns,
administrators and legal representatives. Because of the unique and personal
nature of Executive's duties under this Agreement, neither this Agreement nor
any rights or obligations under this Agreement shall be assignable by Executive.
This Agreement shall be binding upon and inure to the benefit of the Company and
its successors, assigns and legal representatives.
7. NOTICES.
7.1 All notices or demands of any kind required or permitted to be given
by the Company or Executive under this Agreement shall be given in writing and
shall be personally delivered (and receipted for) or mailed by certified mail,
return receipt requested, postage prepaid, addressed as follows:
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7.1.1 If to the Company:
Attn: Chairman of the Board of Directors
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7.1.2 If to Executive:
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Any such written notice shall be deemed received when personally delivered or
three (3) days after its deposit in the United States mail as specified above.
Either Party may change its address for notices by giving notice to the other
Party in the manner specified in this section.
8. CHOICE OF LAW.
8.1 This Agreement is made in San Diego, California. This Agreement
shall be construed and interpreted in accordance with the laws of the State of
California.
9. INTEGRATION.
9.1 This Agreement contains the complete, final and exclusive agreement
of the Parties relating to the terms and conditions of Executive's employment.
This Agreement supersedes and terminates all prior oral and written employment
agreements or arrangements between the Parties, including the Offer Letter dated
January 20, 1999 and the Stock Restriction Agreement dated January 21, 1999.
This Agreement does not supersede or alter in any way the terms and conditions
of the Founder Stock Agreement dated March 18, 1998.
10. AMENDMENT.
10.1 This Agreement cannot be amended or modified except by a written
agreement signed by Executive and the Company.
11. WAIVER.
11.1 No term, covenant or condition of this Agreement or any breach
thereof shall be deemed waived, except with the written consent of the Party
against whom the wavier in claimed, and any waiver or any such term, covenant,
condition or breach shall not be deemed to be a waiver of any preceding or
succeeding breach of the same or any other term, covenant, condition or breach.
12. SEVERABILITY.
12.1 The finding by a court of competent jurisdiction of the
unenforceability, invalidity or illegality of any provision of this Agreement
shall not render any other provision of this
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Agreement unenforceable, invalid or illegal. Such court shall have the authority
to modify or replace the invalid or unenforceable term or provision with a valid
and enforceable term or provision which most accurately represents the parties'
intention with respect to the invalid or unenforceable term or provision.
13. INTERPRETATION; CONSTRUCTION.
13.1 The headings set forth in this Agreement are for convenience of
reference only and shall not be used in interpreting this Agreement. This
Agreement has been drafted by legal counsel representing the Company, but
Executive has been encouraged, and has consulted with, his own independent
counsel and tax advisors with respect to the terms of this Agreement. The
Parties acknowledge that each Party and its counsel has reviewed and revised, or
had an opportunity to review and revise, this Agreement, and the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement.
14. REPRESENTATIONS AND WARRANTIES.
14.1 Executive represents and warrants that he is not restricted or
prohibited, contractually or otherwise, from entering into and performing each
of the terms and covenants contained in this Agreement, and that his execution
and performance of this Agreement will not violate or breach any other
agreements between Executive and any other person or entity.
15. LITIGATION COSTS.
15.1 Should any litigation, arbitration, or administrative action be
commenced between the parties or their personal representatives concerning any
provision of this Agreement or the rights and duties of any person in relation
to this agreement, the party or parties prevailing in such action shall be
entitled, in addition to such other relief as may be granted to a reasonable sum
as and for that party's attorney's fees in such litigation which shall be
determined by the court, arbitrator, or administrative agency, in such action or
in a separate action brought for that purpose.
16. COUNTERPARTS.
16.1 This Agreement may be executed in two counterparts, each of which
shall be deemed an original, all of which together shall contribute one and the
same instrument.
17. ARBITRATION.
17.1 To ensure rapid and economical resolution of any disputes which may
arise under this Agreement, Executive and the Company agree that any and all
disputes or controversies of any nature whatsoever, arising from or regarding
the interpretation, performance, enforcement or breach of this Agreement shall
be resolved by confidential, final and binding arbitration (rather than trial by
jury or court or resolution in some other forum) to the fullest extent permitted
by law. Any arbitration proceeding pursuant to this Agreement shall be conducted
by the American
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Arbitration Association ("AAA") in San Diego under the then existing AAA
arbitration rules. If for any reason all or part of this arbitration provision
is held to be invalid, illegal, or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not effect any other portion of this arbitration provision
or any other jurisdiction, but this provision will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable part
or parts of this provision had never been contained herein, consistent with the
general intent of the parties insofar as possible.
18. INJUNCTIVE RELIEF.
18.1 Executive is obligated under this Agreement to render services and
comply with covenants of a special, unique, unusual and extraordinary character,
thereby giving this Agreement peculiar value, so that the loss of such service
or violation by Executive of this Agreement, including, but not limited to, the
Proprietary Information and Inventions Agreement, could not reasonably or
adequately be compensated in damages in an action at law. Therefore,
notwithstanding Section 17 herein, in addition to any other remedies or
sanctions provided by law, whether criminal or civil, and without limiting the
right of the Company and successors or assigns to pursue all other legal and
equitable rights available to them, the Company shall have the right during
Executive's employment hereunder (or thereafter with respect to obligations
continuing after the termination of this Agreement) to compel specific
performance hereof by Executive or to obtain temporary and permanent injunctive
relief against violations hereof by Executive, including, but not limited to
violations of the Proprietary Information and Inventions Agreement, and, in
furtherance thereof, to apply to any court with jurisdiction over the Parties to
enforce the provisions hereof.
19. TRADE SECRETS OF OTHERS.
19.1 It is the understanding of both the Company and Executive that
Executive shall not divulge to the Company and/or its subsidiaries any
confidential information or trade secrets belonging to others, including
Executive's former employers, nor shall the Company and/or its affiliates seek
to elicit from Executive any such information. Consistent with the foregoing,
Executive shall not provide to the Company and/or its affiliates, and the
Company and/or its affiliates shall not request, any documents or copies of
documents containing such information.
20. ADVERTISING WAIVER.
20.1 Executive agrees to permit the Company and/or its affiliates, and
persons or other organizations authorized by the Company and/or its affiliates,
to use, publish and distribute advertising or sales promotional literature
concerning the products of the Company and/or its affiliates, or the machinery
and equipment used in the manufacture thereof, in which Executive's name and/or
pictures of Executive taken in the course of Executive's provision of services
to the Company and/or its affiliates, appear. Executive hereby waives and
releases any claim or right Executive may otherwise have arising out of such
use, publication or distribution.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
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By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Its: CFO
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Dated: May 13, 1999
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EXECUTIVE:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Dated: May 13, 1999
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EXHIBIT A
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT