Employment Agreement - ATG Inc. and VIk Mani
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of the 27/th/ day of
October, 2000, between ATG Inc ("the Company") and Vik Mani ("Prospective
Employee") and collectively as "the Parties". In consideration of the foregoing
and the mutual promises and covenants contained herein and other good and
valuable consideration, the Company hereby employs Prospective Employee as its
Chief Operating Officer, and Prospective Employee hereby accepts such
employment.
1. The term of the employment is for thirty-six (36) months effective the date
of joining of the Company by Prospective Employee. ATG will announce
Prospective Employee as its new Chief Operating Officer of the Company no
later than November 3, 2000. Prospective Employee shall start his
employment, on a date mutually agreed upon between the CEO of the Company
and Prospective employee, which shall be soon after the Company announces
Prospective Employee as its Chief Operating Officer. Prospective Employee
is not employed "at-will", but is employed under the terms and conditions
set forth in this Agreement.
2. Prospective Employee will report at all times to the CEO of the Company.
The following officers and department heads shall report to Prospective
Employee: All operations personnel and business development personnel,
except Fred Feizollahi's engineering department.
3. The Company has paid signing bonus ("Signing Bonus") of $560,000.00, hereby
receipted for by Prospective Employee. The Signing Bonus shall be
irrevocable and non-refundable to the Company and is for the inducement to
the Prospective Employee to execute this Agreement and leave his current
employment, and to assist the Company in obtaining financing from financial
institutions. Upon the execution of this Agreement and giving notice to
his current employer, the said Signing Bonus shall be deemed fully earned
Prospective Employee. Prospective Employee shall be responsible for all
taxes associated with the Signing Bonus, i.e. federal and state withholding
for income taxes, social security, and medicare.
4. In addition to the Signing Bonus described in paragraph three, the Company
shall pay Prospective Employee a salary of $225,000, in the first twelve
(12) months of employment payable in accordance with Company current
payroll practices as other employees are scheduled for their payment of
employment compensation. Further, the Company shall pay Prospective
Employee, a guaranteed cash bonus of $100,000 payable in two equal payments
of $50,000 each at the end of the sixth and twelfth months from
commencement of employment. Total first twelve (12) months' compensation,
including the Cash bonus set forth in this section, but excluding the
Signing Bonus, and stock options as hereinafter set forth, is $325,000
gross.
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5. The Company shall pay to Prospective Employee in the second twelve (12)
month period of employment, a salary of $225,000, plus a guaranteed cash
bonus in the amount of $75,000 payable in two equal payments of $37,500
each at the end of the sixth and the twelfth month from the commencement of
the second twelve (12) month period of employment. Further, Company shall
pay Prospective Employee a performance cash bonus of $50,000.00 based on
predetermined performance goal as set forth below. (The total compensation
is $350,000 in the second twelve (12) month time period if performance goal
is met, excluding stock options as hereinafter set forth). The performance
goal is defined as the Company obtaining a minimum of $15 million ("New
Business Goal") of new DOE business (contracted capacity) from INEEL,
Hanford, Rocky Flat or any other DOE contracts within twenty-four (24)
months from commencement of the employment. Once the $15 million minimum
New Business Goal requirement is met, the performance cash bonus will be
earned based on $10,000 per million dollars of new business up to a maximum
of $50,000. Such performance bonus earned by the Prospective Employee
shall be paid to the Prospective Employee at six month intervals commencing
the date of achievement of the new business goal, but no later than 30 days
after earning the maximum second twelve (12) month employment period
performance bonus as stated above. In the event Prospective Employee is
terminated by the Company, resigns for Good Reason, as hereinafter defined,
or due to Change of Control, as hereinafter defined, or dies or becomes
disabled during the second twelve (12) month period, such performance bonus
will be computed and paid on the same basis as if he were still employed
with the Company for such period.
6. The Company shall pay to Prospective Employee in the third twelve (12)
month period of employment a salary of $240,000, plus a cash bonus up to
the amount of $110,000 based on the performance goal to be determined by
both Parties. Such goal will not be less than $20 million of DOE New
Business ($20 million of DOE new business contracted capacity) from
Hanford, Rocky Flats, INEEL or any other DOE contracts, however, alternate
sources of "New Business" may be agreed upon between the Company and the
Prospective Employee as the basis for setting the performance goal (New
Business) stated above. Such bonus shall be paid to Prospective Employee
pro-rated at 6 month intervals commencing the date of achievement of the
performance goal, but no later than thirty (30) days after earning the
bonus set forth above. In the event Prospective Employee is terminated by
the Company, resigns for Good Reason, as hereinafter defined, or due to
Change of Control, as hereinafter defined, or dies or becomes disabled
during the third twelve (12) month period, such bonus will be computed and
paid on the same basis as if he were still employed with the Company for
such period. During the third twelve (12) month period of employment only,
the Prospective Employee will be paid salary at the annual salary rate of
$240,000 only after the performance goal as agreed upon between the Company
and the Prospective Employee as stated above is achieved and
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the actual business delivered during the first 24 months of employment is
at least $10 million. During the third twelve (12) month period of
employment only, until such a time when the performance goal is achieved,
the employee will be paid salary at the reduced annual rate of $150,000. In
the event the performance goal for the third twelve (12) month period is
not mutually agreed to, then it shall be as set forth above, which is
defined as the Company obtaining a minimum of $20 million ("New Business
Goal") of new DOE business (contracted capacity) from INEEL, Hanford, Rocky
Flat or any other DOE contracts within 24 months from commencement of the
employment.
7. In addition to the Company's New Business Goals, as the Chief Operating
Officer, Prospective Employee understands that the overall Company
performance such as profitability, cost cutting measures, health and
safety, effective and efficient operation, new market and product
development, will also be within Prospective Employee's executive
responsibility. However, the standard for Performance Bonus eligibility
shall be the New Business Goals. Because of such responsibilities of
Prospective Employee, the Company agrees to provide Prospective Employee
with a sufficient operations budget assistance and support to allow the
accomplishment of the New Business Goals, such as reasonable travel and
entertainment expenses, cell phone, computer, etc and other customary
Business Development expenses, as well as to assist Prospective Employee in
his overall responsibilities. Prospective Employee is authorized to incur
expenses in the performance of his duties. The Company shall reimburse
Prospective Employee for all such expenses ten days after submitting the
expenses or at the next pay period, whichever is sooner.
8. A. In the event the Prospective Employee resigns from the Company due to
no breach by the Company of this agreement, before the expiration of the
thirty-six (36) month term of this Agreement, Prospective Employee's
employment will end, without further obligation to the Company, EXCEPT,
Prospective Employment shall pay to the Company certain penalty amounts due
to such resignation based upon the timing of his resignation from the
Company. In the event Prospective Employee resigns effective within the
first twelve (12) months of the term he shall pay the Company the penalty
sum of $162,500 within ten (10) days after such resignation's
effectiveness. In event Prospective Employee resigns effective between
twelve (12) months and twenty-four (24) months of the term, he shall pay
the Company the penalty sum of $108,000 within ten (10) days after such
resignation's effectiveness. In the event Prospective Employee resigns
effective between twenty-four (24) months and thirty-six (36) months of the
term, he shall pay the Company the penalty sum of $60,000 within ten (10)
days after such resignation's effectiveness. No other payments by the
Prospective Employee other than above are due to the company under any
circumstances of voluntary separation of the Prospective Employee from the
Company that are not due to the Company's breach of this Agreement.
However, in the event the Prospective Employee resigns during the term of
this
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Agreement due to breach of this Agreement by the Company, or the Company
filing Bankruptcy in any form, then the Company shall pay the Prospective
Employee an amount equal to one twelve (12) month period salary for the
twelve (12) month period of such resignation, the guaranteed cash bonus for
the twelve (12) month period during which the resignation occurs, earned
but not paid performance bonuses, the remaining auto loan balance, and the
relocation costs set forth in Paragraph 18 hereof. Further, all the stock
options granted shall be deemed fully earned and vested with the time
period to exercise all stock options extended by 3 months and the Company
shall be responsible for the continuation of medical benefits at Company's
expense for a period of twelve (12) months.
B. In the event Prospective Employee is terminated by the Company for any
reason whatsoever, including disability, and other than for Cause ("Cause"
as defined below) prior to the end of the thirty-six (36) month term,
Prospective Employee shall not be obligated to pay the Company any penalty
monies. Additionally, the Company shall pay the Prospective Employee a
severance amount equal to one twelve (12) month period of salary for the
twelve (12) month period such termination occurs, the guaranteed cash bonus
for the twelve (12) month period during which the termination occurs, all
the performance cash bonuses earned but not paid to Prospective Employee
until then, the remaining auto loan balance, and the relocation costs as
set forth in Paragraph 18 hereof. Further, all stock options granted will
be deemed fully earned and vested with the time period to exercise the
stock options extended by 3 months. Additionally, the Company shall be
responsible for continuation of medical benefits for a period of twelve
(12) months at Company's expense. Notwithstanding the foregoing, if the
Prospective Employee is terminated by the Company between the twenty-fifth
(25th) and thirty-sixth (36th) months of employment, the Company shall pay
the Prospective Employee a severance salary equal to only the salary rate
at which the Prospective Employee is then being paid months 25 through 36
of this Agreement.
"For Cause" or "Cause" as used in this Agreement shall mean that at the
option of the Company, Prospective Employee's employment hereunder shall be
terminated immediately upon any of the following actions or occurrences if
Company in good faith and not in an arbitrary manner believes that such
action or occurrence impairs Prospective Company's willingness to place
trust in Prospective Employee as an employee or impairs Prospective
Employee's ability to perform the services required of Prospective Employee
hereunder:
(i) Prospective Employee's personal dishonesty, commission and
conviction of any felony affecting his reputation and the
business of the Company;
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(ii) Prospective Employee's gross negligence or gross negligent
misconduct which materially affects the business of the
Company;
(iii) Prospective Employee's willful misconduct;
C. Death or disability shall not be deemed a resignation and Prospective
Employee or his successors or assignees shall have no obligation of any
payments to the Company due to Prospective Employee's death or disability.
Prospective Employee is deemed to be under a disability if he is unable to
perform his duties on account of illness or other incapacity and such
illness or other incapacity continues for a period of more than three (3)
consecutive months during any twelve (12) month period. After such three
(3) month period, the Company shall have the right to terminate Prospective
Employee. The termination becomes effective after providing thirty (30)
days written notice. If Prospective Employee is deemed disabled, by a
physician of his choosing, then the time deadline to exercise any stock
option shall be extended twelve (12)months and waived entirely if
Prospective Employee is deceased. Prospective Employee's estate, legal
representatives, or heirs, as appropriate, shall succeed to and acquire all
rights and benefits of Prospective Employee herein.
D. Prospective Employee or his successors or assignees shall have no
obligation for any payment to the Company if Prospective Employee resigns
for Good Reason. "Good Reason" shall mean any one of the following: (i)
the Company breached this Agreement; (ii) Changes Of Control as defined in
Paragraph number 13; (iii) appointment of new CEO; (iv) the Company files
for Bankruptcy in any form.
E. Termination or resignation is effective thirty days after providing
written notice to the other party in the manner described in Paragraph 22.
9. Prospective Employee shall be granted an option to purchase 75,000 shares
of the Company's common stock at the market price at the beginning of the
employment term, deemed vested in accordance with the Company's policies
i.e. vested proratedly over thirty-six (36) months. However, in the event
of Prospective Employee's death, disability, termination by the Company, or
resignation by Prospective Employee during the term for Good Reason or
Change of Control, all such stock options granted shall be deemed earned
and vested.
10. In the event the New Business Goal ($20 million of contracted capacity) is
met by the Company on or before December 31, 2001, a stock option for
60,000 shares of the Company's common stock, at the stock price as of
December 31, 2001 shall be granted to the Prospective Employee. In the
event the New
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Business Goal is exceeded by $10 million ($30 million total of contracted
capacity), a stock option of an additional 30,000 shares (for a total of
90,000 shares) of Company's common stock, at the same price as set forth
above, shall be granted to Prospective Employee. Such options shall vest in
accordance with the Company policy as set forth above in Paragraph 9,
subject to the same exceptions as set forth in paragraph 9 for death,
disability, termination by the Company, or resignation by the Prospective
Employee for Good Reason or Change of Control.
11. In the event during the term of this Agreement, the Company's common stock
sells publicly at a price of $20 or more per share for a period of three
(3) consecutive months, (in the event of stock splits, adjustments shall be
made accordingly for such effective computation), the Company shall grant
Prospective Employee an additional 100,000 shares of the Company's common
stock, deemed vested equally over the three twelve (12) month periods of
the term. The option price shall be as set forth above. Such options
shall vest in accordance with the Company policy as set forth above in
Paragraph 9, subject to the same exceptions as set forth in Paragraph 9 for
death, disability, termination by the Company, or resignation by the
Prospective Employee for Good Reason or Change of Control.
12. All stock options vested to Prospective Employee must be exercised in
accordance with the Company's standard policies for officer stock options.
13. In the event the Prospective Employee resigns due to a Change of Control,
("Change of Control" means any one of the following: Change Of Ownership
including acquisition of the Company; acquisition of equal to or greater
than 50% of the issued and outstanding common stock by a single individual
or entity other than the current principal stock holders; a significant
merger or consolidation; change in executive direction of the Company
including the appointment of a new CEO; a change in the majority of the
Board of Directors caused by the merger or consolidation; Liquidation or
Dissolution of the Company including direct or indirect sale or other
disposition of all or substantially all of the assets of the Company; a
significant change in the business lines of the Company), the Stock Options
already granted prior to the date of the resignation are deemed fully
earned and vested (the time period to exercise all stock options shall be
extended by three months) and the Prospective Employee's resignation will
not cause any of the penalty monies specified in 8 A. to be payable and due
to the Company. In addition, the Company shall pay the Prospective
Employee a severance amount equal to the 12 month salary amount for the 12
month period in which the resignation shall occur, the remaining auto loan
balance, the guaranteed cash bonus for the year in which the resignation
occurs, and the relocation costs set forth in Section 18, and the Company
shall provide for the continuation of medical benefits at the Company's
expense for a period of twelve (12) months after the effective date of
resignation.
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14. The Company's corporate house in Richland, WA, fully furnished, shall be
provided, as primary residence, exclusively to Prospective Employee and
paid for and maintained by the Company. All utilities and maintenance
expenses will be Company's responsibility. The Prospective Employee will
be responsible for all personal long distance telephone charges.
Prospective Employee's principal place of work is deemed to be Richland,
WA.
15. Company shall provide to Prospective Employee one or more automobiles.
Prospective Employee may purchase any such automobiles, after his
resignation from his present employer. The Company will be responsible for
the auto loan up to $30,000.00 and make payments directly to the Lending
company. The car will be titled in Prospective Employee's name for his
unrestricted use. The car will belong to the Prospective Employee and the
Prospective Employee shall bear the operating expenses for maintenance and
personal use.
16. The Company shall provide Prospective Employee with the Company's standard
benefits to all employees, including but not limited to medical, dental,
vision and life insurance benefits, as well as participation in the
Company's 401K or other retirement plan(s), sick days and personal days.
Prospective Employee shall be provided the option to add, at his expense
such participation of family members in such plans.
17. Prospective Employee shall be entitled to receive 4 weeks paid vacation
during each twelve (12) month period of the agreement. Prospective Employee
agrees to reasonably work with the Company as to timing and length of time
increments when such vacation is used.
18. The Company will pay relocation costs for the Prospective Employee and
spouse to move to Richland, Washington including coach air fare or over the
road expenses. The Prospective Employee will maintain his current
household in Denver at his own expense and will not move furniture to
Richland, Washington. The Company will pay for movement of personal effects
and shipment of one automobile. In the event of termination of the
Prospective Employee by the Company, voluntary termination by the
Prospective Employee due to Good Reason or Change of Control conditions,
stated in Paragraph 13, all relocation costs, on the same basis as above,
shall be paid to the Employee for relocation back to Denver, Colorado or
another city within the continental USA within the same distance.
19. DELETED
20. The Company will reimburse Prospective Employee's family (either the
Prospective Employee or the spouse) for round-trip coach class airfare and
expenses to Denver, Colorado not to exceed ten trips during each twelve
(12)
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month period of employment. In additional to the ten trips, the Company
will reimburse Prospective Employee and the spouse for additional two trips
the cost of round-trip coach class airfare and expenses to Denver, Colorado
during the Holiday seasons i.e. November 22 through December 31.
21. All information disclosed and discussed in writing or verbally by any party
(or its representative) in connection with the transaction contemplated by
this Agreement to any other party (or its representative) shall be kept
confidential by such other party and its representative.
22. Any notice or other communication hereunder must be given in writing and
(a) delivered in person, (b) transmitted by telex, telefax or other
telecommunications mechanism or (c) mailed by certified or registered mail,
postage prepaid, receipt requested, as follows:
If to Company addressed to:
ATG Inc.
47375 Fremont Boulevard
Fremont, CA 94538
Attention: Doreen Chiu, President and CEO
If to Prospective Employee, addressed to:
Vik Mani
7902 Glenridge Drive
Castle Rock, Colorado 80104
or to such other address or to such other person as either party shall have
last designated by such notice to the other party. Each such notice or
other communication shall be effective (i) if given by telecommunication,
when transmitted to the applicable number so specified in (or pursuant to)
this Paragraph 22 and an appropriate answer back is received, (ii) if given
by mail, three days after such communication is deposited in the mails with
first class postage prepaid, addressed as aforesaid or (iii) if given by
any other means, when actually received at such address.
23. This Agreement supersedes any and all prior written or oral agreements
between the Company and Perspective Employee and constitutes the entire
agreement between the parties with respect to the subject matter herein and
no modification, amendment, or waiver of any of the provisions of this
Agreement shall be effective unless in writing and signed by both parties.
24. Prospective Employee and the Company agree that any dispute or controversy
relating or in connection with this Agreement, or the interpretation,
validity, construction, performance, breach, or termination shall be
settled by binding arbitration. The decision of the Arbitrator may enter
as a judgment in any court
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with competent jurisdiction. The prevailing party shall be awarded cost,
expenses, and attorney fees.
25. This Agreement is binding upon and benefits the heirs, executors, and legal
representatives of Prospective Employee and any successors of the Company.
Any such successor of the Company will be deemed substituted for the
Company under the terms of this Agreement for all purposes. Successor
shall mean any firm, corporation, or other business entity which at any
time whether by purchase, merger, or otherwise, directly or indirectly
acquires all or substantially all of the assets or business of the Company.
26. The Prospective Employee is not required to Mitigate the amount of any
payment or benefit received pursuant to this Agreement due to cessation of
employment Further, the Company cannot reduce any benefits or payments
because of any earnings or benefits that Prospective Employee may receive
from any other source known to the Company. Notwithstanding the foregoing,
the Prospective Employee is not required to inform the Company of any
retirement benefits received from present or previous employers, and such
retirement benefits shall not reduce the liability of the Company
hereunder.
27. This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one and
the same agreement. Facsimile signatures are deemed to be originals for
the purposes of this Agreement.
28. All agreements and covenants contained herein are severable, and, in the
event any one of them, with the exception of those contained in reference
to the duties to be performed by the Prospective Employee and his
compensation, shall be held to be invalid by any competent court, this
Agreement shall be interpreted as if such invalid agreements or covenants
were not contained herein.
29. Any ambiguity in this Agreement will be not be construed in favor of either
party.
30. The Company hereby represents that this Agreement has been approved by its
Board of Directors and agrees to hold harmless Prospective Employee if the
Board of Directors has not approved this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed by its duly authorized officer or individually as of the day and year
first above written.
Company Prospective Employee
ATG, Inc.
By /s/ Doreen M. Chiu /s/ Vik Mani
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ATG, Inc. President & CEO Vik Mani
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