Employment Agreement - Liquidmetal Technologies and David G. Binnie
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
effective as of [October 1, 2001] (the "Effective Date"), by and between
LIQUIDMETAL TECHNOLOGIES, a California corporation (the "Company"), and David
G. Binnie (the "Employee").
RECITALS
WHEREAS, the Employee desires to be employed, by the Company upon the
terms and conditions set forth in this Agreement; and
WHEREAS, the Company desires to assure itself of the Employee's
continued employment in the capacities set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and for
other good and valuable consideration, the parties hereto covenant and agree as
follows:
1. EMPLOYMENT. The Company hereby employs Employee, and the
Employee hereby accepts such employment, upon the terms and conditions set forth
in this Agreement.
2. TERM. Subject to the terms and conditions of this Agreement,
including, but not limited to, the provisions for termination set forth in
Section 5 hereof, the employment of the Employee under this Agreement shall
commence on the Effective Date and shall continue through the close of business
on the Fifth Anniversary of the Effective Date (the "Initial Term"). Upon the
expiration of the Initial Term, the Employee's employment with the Company will
continue on an "at-will" basis and may be terminated by Employee or the Company
for any reason and at any time, provided that the terminating party shall
provide at least thirty (30) days prior written notice of the termination to the
other party (unless the termination is pursuant to clause (2), (3), or (4) of
Section 5(d), in which case the Employee's employment may be terminated
immediately).
3. DUTIES. Employee will initially serve as Senior Vice President
for Human Resources of the Company. The Employee will devote Employee's entire
business time, attention, skill, and energy exclusively to the business of the
Company, will use the Employee's best efforts to promote the success of the
Company's business, and will cooperate fully with the Board of Directors in the
advancement of the best interests of the Company. Furthermore, the Employee
shall assume and competently perform such reasonable responsibilities and duties
as may be assigned to the Employee from time to time by the Board of Directors,
Chairman of the Board, President, or Chief Executive Officer of the Company. To
the extent that the Company shall have any parent company, subsidiaries,
affiliated corporations, partnerships, or joint ventures (collectively "Related
Entities"), the Employee shall perform such duties to promote these entities and
their respective interests to the same extent as the interests of the Company
without additional compensation. At all times, the Employee agrees that the
Employee has read and will abide by, and prospectively will read and abide by,
any employee handbook, policy, or practice that the Company or Related Entities
has or hereafter adopts with, respect to its employees generally.
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4. COMPENSATION.
(a) Annual Base Salary. As compensation for Employee's
services and in consideration for the Employee's covenants contained in this
Agreement, the Company shall pay the Employee an annual base salary of One
Hundred Fifty Thousand Dollars ($150,000). Such annual base salary shall be
payable in equal installments in accordance with the policy then prevailing for
the Company's salaried employees generally, and the annual base salary shall be
subject to any tax and other withholdings or deductions required by applicable
laws and regulations. The Employee's annual base salary will be reviewed by the
Board of Directors or Chief Executive Officer of the Company not less frequently
than annually, and the annual base salary may be adjusted upward or downward in
the sole discretion of the Board of Directors or Chief Executive Officer. For
purposes of this Agreement, the term "Salary Year" means the 365-day period
that begins on the Effective Date and each successive 365-day period thereafter.
(b) Bonuses. In addition to the Employee's annual base
salary, during the term of the Employee's employment hereunder, the Employee
shall be entitled to only such, bonuses as may be granted to the Employee by the
Board of Directors or Chief Executive Officer of the Company, in their sole
discretion.
(c) Other Benefits. During the term of the Employee's
employment hereunder, the Employee shall be eligible to participate in such
pension, life insurance, health insurance, disability insurance and other
benefits plans, if any, which the Company may from time to time make available
to similar-level employees.
(d) Vacation. The Employee shall be entitled to 3 weeks
paid vacation during each Salary Year during the term of the Employee's
employment hereunder. Unused vacation from a particular Salary Year will not
carry over to succeeding Salary Years, and the Employee will not be paid for any
unused vacation.
(e) Reimbursement of Expenses. The Employee shall be
reimbursed for all reasonable and customary travel and other business expenses
incurred by Employee in the performance of Employee's duties hereunder, provided
that such reimbursement shall be subject to, and in accordance with, any expense
reimbursement policies and/or expense documentation requirements of the Company
that may be in effect from time to time.
(f) Option Grant. In addition to the foregoing, in
consideration of the execution of this Agreement by the Employee, the Company
shall, on the date hereof, grant to the Employee an option to purchase up to
100,000 shares of the common stock of the Company, subject to approval of the
board of directors at the next scheduled meeting and at an exercise price equal
to the Fair Market Value of the Shares at the time of the offering. Such option
shall be evidenced by a stock option agreement in the form set forth as Exhibit
A hereto.
5. TERMINATION.
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(a) Death. The Employee's employment under this Agreement
shall terminate immediately upon Employee's death. In the event of a termination
pursuant to this Section 5(a), the Employee's estate shall be entitled to
receive any unpaid base salary owing to Employee up through and including the
date of the Employee's death.
(b) Disability. If, during the term of the Employee's
employment hereunder, the Employee becomes physically or mentally disabled in
accordance with the terms and conditions of any disability policy covering the
Employee or, if due to any physical or mental condition, the Employee becomes
unable for a period of more than sixty (60) days during any six-month period to
perform Employee's duties hereunder on substantially a full-time basis as
determined by the Company in its sole discretion, the Company may, at its
option, terminate the Employee's employment upon not less than thirty (30) days
written notice. In the event of a termination pursuant to this Section 5(b), the
Employee shall be entitled to receive any unpaid base salary owing to Employee
up through and including the effective date of Termination,
(c) Termination By Company Without Cause. In addition to
the other termination provisions of this Agreement, the Company may terminate
the Employee's employment at any time without cause (a "Termination Without
Cause"). In the event of a Termination Without Cause, the Employee shall
continue to receive the Employee's base salary (as then in effect) during the
12-month period immediately following the effective date of the Termination
Without Cause (the "Severance Period"). In addition to the severance pay
described in the preceding sentence, the Employee shall continue to receive,
during the Severance Period, all employee health and welfare benefits that
Employee would have received during the Severance Period in the absence of such
termination. Employee agrees and acknowledges, however, that Employee will
forfeit the right to receive base salary and benefits during the Severance
Period immediately upon the Employee's breach of any covenant set forth in
Section 6 of this Agreement. Notwithstanding the foregoing, the termination of
the Employee's employment pursuant to the second sentence of Section 2(b) of
this Agreement shall not constitute a Termination Without Cause and shall not
give rise to any severance payment or other benefits pursuant to this Section
5(c).
(d) Termination By Company With Cause. The Company may
terminate the Employee's employment at any time with Cause. As used in this
Agreement, "Cause" shall include the following: (1) the Employee's failure or
inability to perform Employee's duties under this Agreement; (2) dishonesty,
misconduct, or unlawful acts that adversely affect the Company; (3) a material
violation of the Company's policies or practices which reasonably justifies
immediate termination; (4) pleading guilty or no contest to, or conviction of, a
felony or any crime involving moral turpitude, fraud, dishonesty, or
misrepresentation; (5) the commission by the Employee of any act which could
reasonably be expected to materially injure the reputation, business, or
business relationships of the Company or Related Entities; (6) the Employee's
inability to perform an essential function of Employee's position; or (7) any
material breach by Employee of this Agreement. The Company may terminate this
Agreement for Cause, as defined in clauses (1), (5), (6) and (7) above, upon
thirty days prior written notice (the "Cause Notification Period") to Employee,
but such termination shall only become effective in the event of Employee's
failure to cure the applicable breach or violation, to the reasonable
satisfaction of Company, prior to the end of the Cause Notification Period. The
Company may terminate this
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Agreement for Cause, as defined in clauses (2), (3), and (4) above, at any time
with no notice. In the event of a termination for Cause, the Company shall be
relieved of all its obligations to the Employee provided for by this Agreement
as of the effective date of termination, and all payments to the Employee
hereunder shall immediately cease and terminate as of such date, except that
Employee shall be entitled to the annual base salary hereunder up to and
including the effective date of termination.
6. NONCOMPETITION, NONSOLICITATION, AND NONDISCLOSURE COVENANTS.
(a) Rationale for Restrictions. Employee acknowledges
that Employee's services hereunder are of a special, unique, and extraordinary
character, and Employee's position with the Company places Employee in a
position of confidence and trust with customers, suppliers, and other persons
and entities with whom the Company and its Related Entities have a business
relationship. The Employee further acknowledges that the rendering of services
under this Agreement will likely require the disclosure to Employee of
Confidential Information (as defined below) relating to the Company and/or
Related Entities. As a consequence, the Employee agrees that it is reasonable
and necessary for the protection of the goodwill and legitimate business
interests of the Company and Related Entities that the Employee make the
covenants contained in this Section 6, that such covenants are a material
inducement for the Company to employ the Employee and to enter into this
Agreement, and that the covenants are given as an integral part of and incident
to this Agreement.
(b) Noncompetition and Nonsolicitation Covenants. As used
herein, the term "Restrictive Period" means the time period commencing on the
Effective Date of this Agreement and ending on the second (2nd) anniversary of
the date on which the Employee's employment by the Company (or any Related
Entity) expires or is terminated. The Employee agrees that, during the
Restrictive Period, the Employee will not utilize his or her knowledge of the
business of the Company or his or her relationships with investors, suppliers,
customers, clients, or financial institutions to compete with the Company or any
of the Related Entities in any business which is the same as, or similar to, any
business conducted, by the Company or any of the Related Entities at any time
during the Restrictive Period (a "Covered Business"). Additionally, the Employee
agrees that the Employee will not engage in any of the following acts anywhere
in the world during the Restrictive Period:
(i) directly or indirectly engage or invest in; own,
manage, operate, finance, control, or participate in
the ownership, management, operation, financing, or
control of; be employed by, associated with, or in
any manner connected with; lend the Employee's name
or any similar name to; lend Employee's credit to; or
render services or advice to, any business which
competes with, is engaged in, or carries on any
aspect of a Covered Business;
(ii) directly or indirectly assist, promote or encourage
any existing or potential employees, customers,
clients, or vendors of the Company or any Related
Entity, as well as any other parties which have a
business relationship with the Company or a Related
Entity, to terminate, discontinue, or reduce the
extent of their relationship with the Company or a
Related Entity;
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(iii) directly or indirectly solicit business of the same
or similar type as a Covered Business, from any
person or entity known by the Employee to be a
customer or client of the Company, whether or not the
Employee had contact with such person or entity
during the Employee's employment with the Company;
(iv) disparage the Company, any Related, Entities, and/or
any shareholder, director, officer, employee, or
agent of the Company or any Related Entity; and/or
(v) engage in any practice the purpose of which is to
evade the provisions of this Section 6 or commit any
act which adversely affects the Company, any Related
Entity, or their respective businesses.
The Employee acknowledges and agrees that, in light of the unique nature of the
Company's business, the Company will market its products on a worldwide basis
and will compete with various companies and businesses across and world.
Accordingly, the Employee agrees that the geographic scope of the above
covenants is a reasonable means of protecting the Company's (and the Related
Entities') legitimate business interests. Notwithstanding the foregoing
covenants, nothing set forth in this Agreement shall prohibit the Employee from
owning the securities of (i) corporations which are listed on a national
securities exchange or traded in the national over-the-counter market in an
amount which shall not exceed 5% of the outstanding shares of any such
corporation or (ii) any corporation, partnership, firm or other form of business
organization which does not compete with, is not engaged in, and does not carry
on any aspect of, either directly or indirectly through a subsidiary or
otherwise, any Covered Business.
(c) Disclosure of Confidential Information. The Employee
acknowledges that the inventions, innovations, software, trade secrets, business
plans, financial strategies, finances, and all other confidential or proprietary
information with respect to the business and operations of the Company and
Related Entities are valuable, special, and unique assets of the Company.
Accordingly, the Employee agrees not to, at any time whatsoever either during or
after the Employee's term of employment with the Company, disclose, directly or
indirectly, to any person or entity, or use or authorize any person or entity
to use, any confidential or proprietary information with respect to the Company
or Related Entities without the prior written consent of the Company, including,
without limitation, information as to the financial condition, results of
operations, identities of clients or prospective clients, products under
development, acquisition strategies or acquisitions under consideration, pricing
or cost information, marketing strategies or any other information relating to
the Company or any of the Related Entities which could be reasonably regarded as
confidential (collectively referred to as "Confidential Information"). However,
the term "Confidential Information" does not include any information which is or
shall become generally available to the public other than as a result of
disclosure by the Employee or by any person or entity which the Employee knows
(or which the Employee reasonably should know) has a duty of confidentiality to
the Company or a Related Entity with respect to such information. In addition to
the foregoing, Company will be fully entitled to all of the protections and
benefits afforded by the Florida Uniform Trade Secrets Act and other applicable
law.
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(d) Prevention of Premature Disclosure of Information.
The Employee agrees and acknowledges that, because the success of the Company is
heavily dependent upon maintaining the secrecy of the Company's Confidential
Information and preventing the premature public disclosure of the Company's
proprietary information and technology, the Employee agrees to use the
Employee's best efforts and his or her highest degree of care, diligence, and
prudence to ensure that no Confidential Information prematurely leaks or
otherwise prematurely makes its way into the public domain or any public forum,
including, without limitation, into any trade publications, internet chat rooms,
or other similar forums. In the event that the Employee becomes aware of any
premature leak of Confidential Information or becomes aware of any circumstances
creating a risk of such a leak, the Employee shall immediately inform the Board
of Directors, the Chief Executive Officer, or the Employee's supervisor of such
leak or of such circumstances.
(e) Removal and Return of Proprietary Items. The Employee
will not remove from the Company's premises (except to the extent such removal
is for purposes of the performance of the Employee's duties at home or while
traveling, or except as otherwise specifically authorized by the Company) any
document, record, notebook, plan, model, component, device, or computer software
or code, whether embodied in a disk or in any other form (collectively, the
"Proprietary Items"). The Employee recognizes that, as between the Company and
the Employee, all of the Proprietary Items, whether or not developed by the
Employee, are the exclusive property of the Company, Upon termination of
Employee's employment with the Company by either party (regardless of the reason
for termination), or upon the request of the Company during the term of
employment, the Employee will return to the Company all of the Proprietary Items
in the Employee's possession or subject to the Employee's control, and the
Employee shall not retain any copies, abstracts, sketches, or other physical
embodiment of any of the Proprietary Items.
(f) Enforcement and Remedies. In the event of any breach
of any of the covenants set forth in this Section 6, the Employee recognizes
that the remedies at law will be inadequate and that in addition to any relief
at law which may be available to the Company for such violation or breach and
regardless of any other provision contained in this Agreement, the Company shall
be entitled to equitable remedies (including an injunction) and such other
relief as a court may grant after considering the intent of this Section 6.
Additionally, the period of time applicable to any covenant set forth in this
Section 6 will be extended by the duration of any violation by Employee of such
covenant. In the event a court of competent jurisdiction determines that any of
the covenants set forth in this Section 6 are excessively broad as to duration,
geographic scope, prohibited activities or otherwise, the parties agree that
this covenant shall be reduced or curtailed to the extent, but only to the
extent, necessary to render it enforceable.
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7. EMPLOYEE INVENTIONS.
(a) Definition. For purposes of this Agreement, "Employee
Invention" means any idea, invention, technique, modification, process, or
improvement (whether patentable or not), any industrial design (whether
registerable or not), any mask work, however fixed or encoded, that is suitable
to be fixed, embedded or programmed in a semiconductor product (whether
recordable or not), and any work of authorship (whether or not copyright
protection may be obtained for it) created, conceived, or developed by the
Employee, either solely or in conjunction with others, during the Employee's
employment with the Company or during the twenty four (24) month period
following such employment, that relates in any way to, or is useful in any
manner in, the businesses then being conducted or proposed to be conducted by
the Company or any Related, Entity.
(b) Ownership of Employee Inventions. Employee agrees and
acknowledges that all Employee Inventions will belong exclusively to the Company
and that all Employee Inventions are works made for hire and the property of the
Company, including any copyrights, patents, semiconductor mask protection, or
other intellectual property rights pertaining thereto. If it is determined that
any such works are not works made for hire, the Employee hereby assigns to the
Company all of the Company's right, title, and interest, including all rights of
copyright, patent, semiconductor mask protection, and other intellectual
property rights, to or in such Employee Inventions. The Employee covenants that
the Employee will promptly:
(i) disclose to the Company in writing any Employee
Invention;
(ii) assign to the Company or to a party designated by the
Company, at the Company's request and without
additional compensation, all of the Employee's right
to the Employee Invention for the United States and
all foreign jurisdictions;
(iii) execute and deliver to the Company such applications,
assignments, and other documents as the Company may
request in order to apply for and obtain patents or
other registrations with respect to any Employee
Invention in the United States and any foreign
jurisdictions;
(iv) sign all other papers necessary to carry out the
above obligations; and
(v) give testimony and render any other assistance in
support of the Company's rights to any Employee
Invention.
8. ESSENTIAL AND INDEPENDENT COVENANTS. The Employee's covenants
in Sections 6 and 7 of this Agreement are independent covenants, and the
existence of any claim by the Employee against the Company under this Agreement
or otherwise will not excuse the Employee's breach of any covenant in Section 6
or 7.
9. REPRESENTATIONS AND WARRANTIES BY THE EMPLOYEE. The Employee
represents and warrants to the Company that the execution and delivery by the
Employee of this Agreement do not, and the performance by the Employee of the
Employee's obligations hereunder will not,
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with or without the giving of notice or the passage of time, or both: (a)
violate any judgment, writ, injunction, or order of any court, arbitrator, or
governmental agency applicable to the Employee, or (b) conflict with, result in
the breach of any provisions of or the termination of, or constitute a default
under, any agreement to which the Employee is a party or by which the Employee
is or may be bound, including, without limitation, any noncompetition agreement
or similar agreement.
10. NOTICES. For purposes of this Agreement, notices and all
other communications provided for herein shall be in writing and shall be deemed
to have been duly given when hand- delivered, sent by facsimile transmission (as
long as receipt is acknowledged), or mailed by United States certified or
registered mail, return receipt requested, postage prepaid, addressed to the
address or facsimile number for each party set forth on the signature page
hereto, or to such other address or facsimile number as either party may have
furnished to the other in writing in accordance herewith, except that a notice
of change of address shall be effective only upon receipt.
11. MISCELLANEOUS. No provision of this Agreement may be modified
or waived unless such waiver or modification is agreed to in writing signed by
both of the parties hereto. No waiver by any party hereto of any breach by any
other party hereto shall be deemed a waiver of any similar or dissimilar term or
condition at the same or at any prior or subsequent time. This Agreement is the
entire agreement between the parties hereto with respect to the Employee's
employment by the Company, and there are no agreements or representations, oral
or otherwise, expressed or implied, with respect to or related to the employment
of the Employee which are not set forth in this Agreement. This Agreement shall
be binding upon, and inure to the benefit of, the Company, its respective
successors and assigns, and the Employee and Employee's heirs, executors,
administrators and legal representatives. The duties and covenants of the
Employee under this Agreement, being personal, may not be delegated or assigned
by the Employee without the prior written consent of the Company, and any
attempted delegation or assignment without such prior written consent shall be
null and void and without legal effect. The parties agree that if any provision
of this Agreement shall under any circumstances be deemed invalid or
inoperative, the Agreement shall be construed with the invalid or inoperative
provision deleted and the rights and obligations of the parties shall be
construed and enforced accordingly.
12. GOVERNING LAW; RESOLUTION OF DISPUTES. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the laws of the State of Florida without regard to principles of
choice of law or conflicts of law thereunder. Any action or proceeding seeking
to enforce any provision of, or based on any right arising out of, this
Agreement may be brought against either of the parties in the courts of the
State of Florida, County of Hillsborough, or, if it has or can acquire
jurisdiction, in the United States District Court located in Hillsborough
County, Florida, and each of the parties consents to the jurisdiction of such
courts (and of the appropriate appellate courts) in any such action or
proceeding and waives any objection to venue laid therein. Process in any action
or proceeding referred to in the preceding sentence may be served on either
party anywhere in the world. THE PARTIES HEREBY WAIVE A JURY TRIAL IN ANY
LITIGATION ARISING UNDER OR RELATING TO THIS AGREEMENT.
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13. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. This
Agreement may be effective upon the execution and delivery by any party hereto
of facsimile copies of signature pages hereto duly executed by such party;
provided, however, that any party delivering a facsimile signature page
covenants and agrees to deliver promptly after the date hereof two (2) original
copies to the other party hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
LIQUIDMETAL TECHNOLOGIES
By: /s/ John Kang
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John Kang, President and Chief Executive
Officer
Liquidmetal Technologies
25800 Commercentre Drive, Suite 100
Lake Forest, CA 92630
Facsimile Number: 949-206-8008
EMPLOYEE
BY: /s/ David G. Binnie
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Printed Name: David G. Binnie
Address and Facsimile Number:
14041 Shady Shares Drive
Tampa, Florida 33613
FAX (same as home number)
813-900-3571
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