EXHIBIT 10.48
Oryx Technology Corp.
Employment Agreement
Oryx Technology Corp. (the "Company"), a duly incorporated and existing
Delaware corporation, and Phillip J. Micciche ("Micciche" or "Executive"), an
individual residing in the State of California, hereby enter into this
Employment Agreement ("Agreement") on the date set forth below. Together,
Micciche and the Company are the only parties hereto.
Whereas, Company desires to keep Micciche as its President and Chief
Executive Officer ("CEO"); and
Whereas, Micciche desires to continue as the Company's President and
CEO under the terms and conditions set forth below.
NOW THEREFORE, Micciche and Company agree as follows.
ARTICLE 1
DEFINITIONS
1.1 "Base Salary" shall mean regular cash compensation paid on a
periodic basis, exclusive of benefits, bonuses or incentive payments.
1.2 "Board" shall mean the Board of Directors of the Company.
1.3 "Disability" shall mean occurrence of both of the following: (1)
the inability of Micciche to perform the essential functions of his position
under this Agreement, with reasonable accommodation, because of physical or
mental incapacity, as reasonably determined by the Company after consultation
with a qualified physician selected by the Company; and (2) a determination by
Company's disability insurance carrier that Micciche is entitled to long term
disability benefits.
ARTICLE 2
EMPLOYMENT, DUTIES AND TERM
2.1 Employment. Company hereby retains Micciche as the Company's
President and CEO and Micciche hereby confirms his continuation in such
employment positions. Micciche shall work out of the Company's Northern
California offices which are presently located at 1100 Auburn Street in Fremont,
California. Company shall not change the location of Micciche's employment
without Micciche's prior written consent.
2.2 Duties. Micciche shall devote his primary attention and best
efforts to the Company and to fulfilling the duties of his position which shall
include such duties as may from time to time be assigned him by the Board.
Micciche shall comply with the Company's policies
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and procedures to the extent they are not inconsistent with this Agreement, in
which case the provisions of this Agreement shall prevail.
2.3 Term. This Agreement shall be effective for a two (2) year period
commencing on March 1, 1999 and ending on February 28, 2001, unless earlier
terminated pursuant to Article 4 of this Agreement.
ARTICLE 3
COMPENSATION, EXPENSES AND BENEFITS
3.1 Base Salary. For services rendered under this Agreement (a) from
March 1, 1999 through the end of February 2000, the Company shall pay Micciche a
Base Salary of $13,333.33 per month and (b) from March 1, 2000 through the end
of February 2001, the Company shall pay Micciche a Base Salary of $14,666.66 per
month, in each case payable in accordance with Company's normal payroll
practices. All amounts payable to Micciche under this Agreement shall be reduced
by such amounts as are required to be withheld by applicable law.
3.2 Bonus/Additional Option Grants. Bonus or incentive compensation and
additional option grants, if any, shall be paid or granted to Micciche in the
sole discretion of the Board.
3.3 Options. If, at the end of February, 2001, Micciche is still
employed as the Company's President & CEO or serves on the Company's Board of
Directors, then all unvested options which Micciche holds in the Company shall
automatically vest. To the extent Micciche has not exercised all of his options
in the Company by March 1, 2001, Micciche shall have an additional two years
(through March 1, 2003) to exercise said options and the exercise period of all
Micciche's options shall be extended to the longer of (a) March 1, 2003 or (b)
such date as is otherwise prescribed in the applicable option agreement
memorializing the Company's grant of options to Micciche. Notwithstanding the
foregoing, none of the provisions of this Section 3.02 shall apply if Micciche
is fired for cause from his positions as President and CEO as set forth below in
Section 4.2.
3.4 Benefits. During the employment term, the Company shall pay
Micciche's long term health insurance benefits up to a maximum of $90,000. The
Company shall also pay Micciche's other health insurance benefits on the same
terms and conditions as Company pays same for all other employees. Such benefits
may change from time to time or may be eliminated without notice by the Company.
3.5 Disability. If Micciche shall become disabled while serving as
President and CEO during the term of this Agreement, the Company shall continue
to pay Micciche's full salary during the term.
3.6 Car Allowance. The Company shall lease or purchase an automobile
for Micciche's use which shall not exceed a purchase price of $50,000 At the end
of February 2001,
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Micciche shall have the right to purchase said automobile at 80% of its average
Blue Book value at the time of such purchase.
3.7 Business Expenses. The Company shall, in accordance with, and to
the extent of, its policies in effect from time to time, reimburse all ordinary
and necessary business expenses reasonably incurred by Micciche in performing
his duties as an employee of the Company, including, without limitation, the use
of a cell phone, provided that Micciche accounts promptly for such expenses to
the Company in the manner prescribed from time to time by the Company.
3.8 Vacation, Sick Leave. Micciche shall be entitled to vacation and
sick leave according to the Company's standard policies and procedures.
3.9 Change of Control. During the term hereof, upon the Company's
acquisition by a third party or the sale of all or substantially all of the
Company's assets to a third party, all of Micciche's unvested options shall
automatically vest. For purposes hereof, an acquisition by a third party shall
be deemed to occur when the Company is merged with or into a third party in a
merger or other form of business combination or reorganization such that the
Company's stockholders before such event do not control the resulting business
entity after such event.
ARTICLE 4
EARLY TERMINATION
4.1 Early Termination. This Article 4 governs termination of this
Agreement at any time during the term of this Agreement.
4.2 Termination for Cause. The Company may terminate this Agreement and
Micciche's employment only for "Cause" as that term is defined herein, upon
written notice to Micciche.
4.2.1 "Cause" means any one of the following: (a) fraud,
(b) misrepresentation, (c) theft or embezzlement of
the Company's assets, (d) intentional violations of
law involving moral turpitude, (e) the continued
failure by Micciche to satisfactorily perform his
duties as reasonably assigned to Micciche pursuant to
Section 2.2 of this Agreement for a period of thirty
(30) days after a written demand for such
satisfactory performance which specifically and with
reasonable detail identifies the manner in which it
is alleged Micciche has not satisfactorily performed
such duties, and (f) any material breach of this
Agreement.
4.2.2 In the event of termination for "Cause" pursuant to
this Section 4.2, Micciche shall be paid his Base
Salary and any vacation and sick pay due through the
date of termination specified in any notice of
termination. Micciche shall not be entitled to any
additional compensation or severance thereafter and
Micciche shall not receive the rights set forth in
Section 3.3, 3.4, 3.5, 3.6, or 3.9 above.
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4.3 Termination Without Cause. This Section 4.3 shall not be applicable
where "Cause" for termination exists or in the event of Micciche's death or
Disability.
4.3.1 Micciche may terminate this Agreement and Micciche's
employment at any time by giving at least 30 days'
written notice to the Company; provided, however,
that the Company shall have the option of making
termination of this Agreement and termination of
Micciche's employment effective immediately upon the
date of such notice, in which case Micciche shall be
paid his Base Salary through such 30 day notice
period. If the notice of termination is given by
Micciche pursuant to this Section 4.3.1, Micciche
shall be entitled to receive his Base Salary through
the date of termination and shall not be entitled to
any additional compensation or severance nor the
benefits set forth in sections 3.3, 3.4, 3.5, and 3.6
above.
4.3.2 The Company may terminate this Agreement and
Micciche's employment at any time without "Cause"
upon giving Micciche at least 30 days' written
notice; provided, however, that in such case,
Micciche shall be entitled to all the benefits for
the remainder of the term of this Agreement to which
he would otherwise be entitled to under Sections 3.1,
3.3, 3.4, 3.5, 3.6, 3.7 and 3.8 as if he were still
employed at the Company as its President and CEO and
ended his employment on March 1, 2001.
4.4 Termination in the Event of Death. This Agreement and Micciche's
employment shall terminate immediately in the event of Micciche's death. In the
event of termination due to Micciche's death, the Company shall pay an amount
equal to the sum of six months Base Salary as a lump sum to Micciche's estate as
soon as practicable following the Company's receipt of notice of Micciche's
death. No further payments shall be made by the Company to Micciche or his
estate.
4.5 Termination in the Event of Disability. The Company shall be
entitled to terminate this Agreement and Micciche's employment upon Micciche's
Disability. In the event of termination due to Micciche's Disability, Micciche's
Base Salary shall be paid for the earlier to occur of six months or the last day
of February 2001.
ARTICLE 5
PROPRIETARY INFORMATION/CONFLICT
OF INTEREST/NON-SOLICITATION
5.1 Proprietary Information. Micciche shall keep confidential, except
as the Company may otherwise consent in writing, and not disclose or make any
use of except for the benefit of the Company, at any time either during or
subsequent to his employment by the Company, any Proprietary Information which
he may produce, obtain or otherwise acquire
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during the course of his employment. As used herein, "Proprietary Information"
shall include any trade secrets, confidential information, knowledge, data, or
other information of the Company relating to customer lists, business plans,
marketing plans and strategies, and pricing strategies, or other subject matter
pertaining to any business of the Company for any of its clients, customers,
consultants, licensees or affiliates, which information is not in the public
domain. In the event of the termination of Micciche's employment for any reason
whatsoever, Micciche shall promptly return all records, materials, equipment,
drawings, software and the like pertaining to any Proprietary Information.
5.2 Non-Solicitation of Company's Customers and Employees. Micciche
agrees that the Company has invested substantial time and effort in assembling
its staff and personnel. Accordingly, Micciche agrees that for a period of one
(1) year after termination of Micciche's employment for any reason, Micciche
shall not directly or indirectly induce or solicit any of the Company's
employees to leave their employment or to become employed by any other entity
nor shall Micciche refer any of the Company's employees to any other entity or
person for purposes of inducing or soliciting such employees to leave the
Company's employment or to become employed by any other person or entity.
5.3 Assignment of Inventions. All of Micciche's right, title and
interest to any Covered Invention, as that term is defined below, that Micciche
makes or conceives while employed by the Company, belongs to the Company. This
Agreement operates as a prospective assignment of all of those rights to the
Company. Micciche agrees to execute such documents and provide such reasonable
assistance as may be necessary to perfect this assignment.
"Invention" means any idea, improvement, design, discovery or authored
work (whether software or other form), whether or not patentable or
copyrightable, as well as other newly discovered or newly applied information or
concepts. An Invention is a "Covered Invention" if it relates to the Company's
actual or anticipated business; or was developed in any part using the Company's
resources (time, supplies, equipment, facilities, or data); or if it results
from or is suggested by a task assigned to, or work performed for the Company
by, Micciche; provided, however, if any term of this Section 5.3 shall be deemed
unenforceable under Cal. Labor Code ss. 2870, a copy of which is attached in
Exhibit A, such term shall be ineffective only to the extent of such
unenforceability without invalidating the remainder of any provision or the
remaining provisions of this Section 5.3.
5.4 Consent to Injunction. Micciche agrees that the Company will or
would suffer an irreparable injury if Micciche were to violate or threaten to
violate Section 5.1, Section 5.2, or Section 5.3 hereof and that the Company
would, by reason of such breach or threat of breach, be entitled to injunctive
relief in a court of appropriate jurisdiction and upon proof thereof, Micciche
hereby stipulates to the entering of such injunctive relief.
5.5 Other Obligations. Micciche acknowledges that the Company from time
to time may have agreements with other persons or with the U.S. Government, or
agencies thereof, which impose obligations or restrictions on the Company
regarding inventions made during the course of work thereunder or regarding the
confidential nature of such work. Micciche agrees to
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be bound by all such obligations and restrictions and to take all action
necessary to discharge the obligations of the Company thereunder.
5.6 Executive's Representations. Micciche represents and warrants that
his employment by the Company does not and will not breach any agreement to keep
in confidence proprietary information, knowledge, or data acquired by Micciche
in confidence or in trust prior to his employment with the Company, nor does it
breach any restrictive covenant or non-competition agreement. Micciche will not
disclose to the Company, or induce the Company to use, any confidential or
proprietary information or material belonging to any previous employer or
others. Micciche agrees not to enter into any written or oral agreement in
conflict herewith.
5.7 Conflict of Interest. During Micciche's employment with the
Company, Micciche will engage in no activity or employment which will conflict
with the interests of the Company and will comply with the Company's policies
and guidelines pertaining to business conduct and ethics.
5.8 Survival of Obligations. The provisions of this Article 5 shall
survive termination of this Agreement and shall survive termination of
Micciche's employment.
ARTICLE 6
GENERAL PROVISIONS
6.1 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of the Company and each
subsidiary, whether by way of merger, consolidation, operation of law,
assignment, purchase or other acquisition of substantially all of the assets or
business of the Company, and any such successor or assign shall absolutely and
unconditionally assume all of the Company's obligations hereunder. This
Agreement shall be binding upon and inure to the benefit of Micciche, his
administrators, executors, legatees, and heirs. In that this Agreement is a
personal services contract, it shall not be assigned by Micciche.
6.2 Notices. All notices, requests and demands made pursuant hereto
shall, except as otherwise specified herein, be in writing and delivered or
mailed to any such party at, if to Micciche, his address as set forth in the
Company's personnel records, and, if to Company, at its headquarters. Either
party may change its address, by notice to the other party given in the manner
set forth in this Section 6.2. Any notice, if mailed properly addressed, postage
prepaid, registered or certified mail, shall be deemed dispatched on the
registered date or that date stamped on the certified mail receipt, and shall be
deemed received on the third business day thereafter or when it is actually
received, whichever is sooner.
6.3 Caption. The various headings or captions in this Agreement are for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
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6.4 Governing Law/Forum. The validity, construction and performance of
this Agreement shall be governed by the laws of the State of California. The
exclusive forum for the litigation or arbitration of any dispute arising under
this Agreement shall be the appropriate state or federal court located in
Fremont, California.
6.5 Arbitration. Any dispute concerning the interpretation,
construction, breach or enforcement of this Agreement or arising in any way from
Micciche's employment with the Company or termination of such employment shall
be submitted to final and binding arbitration, which shall be specifically
enforceable. Such arbitration is to be conducted before a single arbitrator in
Palo Alto, California. The arbitration shall be conducted pursuant to the
American Arbitration Association ("AAA") Commercial Dispute Resolution Rules.
Micciche and the Company agree that, except as provided in Section 5.2 herein,
the procedures outlined in this Section 6.5 are the exclusive method of dispute
resolution regarding this Agreement and Micciche's employment with the Company
or the termination thereof. No discovery shall be permitted in any arbitration
except an exchange of documents as may be ordered by the arbitrator.
6.6 Attorney Fees. If any action at law, in equity or by arbitration is
taken to enforce or interpret the provisions of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled, including fees and expenses on appeal.
6.7 Construction. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
6.8 Waivers. No failure on the part of either party to exercise, and no
delay in exercising, any right or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right or remedy granted hereby or by any related document or by law.
6.9 Modification. This Agreement may not be and shall not be modified
or amended except by written instrument signed by the parties hereto.
6.10 Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the parties as to its subject matter. This Agreement
supersedes, merges, and voids all prior agreements or understandings of the
parties with respect to the subject matter hereof, whether oral or written.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
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Oryx Technology Corp.
/s/ Phillip J. Micciche By:/s/Mitchel Underseth
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Phillip J. Micciche Mitchel Underseth
Chief Financial officer
Exhibit A Labor Code ss.2870
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