Employment Agreement - Liquidmetal Technologies and Tony Chung
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
effective as of November 3, 2004 (the "Effective Date"), by and between
LIQUIDMETAL TECHNOLOGIES, a Delaware corporation (the "Company"), and Tony Chung
(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 November
2, 2007 (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 With Cause as defined in this Agreement, in which case the
Employee's employment may be terminated immediately). Notwithstanding the
expiration of the Initial Term of this Agreement, the provisions of this
Agreement other than those of Sections 1, 4, and 5, Term, Compensation, and
Termination, respectively, shall remain in full force and effect. All other
provisions of this Agreement, including but without limitation, Sections 2, 6,
and 7, entitled Employment, Nonsolicitation and Nondisclosure Covenants, and
Employee Inventions, respectively, shall survive the expiration of the Initial
Term. Notwithstanding the expiration of the this Agreement or the termination of
employment by any means by any party, Sections 2, 6, and 7, entitled Term,
Nonsolicitation and Nondisclosure Covenants, and Employee Inventions,
respectively, shall survive and remain fully enforceable.
3. DUTIES. Employee will initially serve as Vice President of Finance 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, Chief Executive Officer of the Company or
their designee. To the extent that the Company shall have
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any parent company, subsidiaries, affiliated corporations, partnerships, or
joint ventures (collectively "Related Entities"), the Employee shall perform
such duties to promote these entities and to promote and protect 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.
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 $125,000. Such annual
base salary shall be payable in equal or as nearly equal as practicable
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 one year, 365-day
period (or 366 day period for a leap year) that begins on the Effective Date and
each successive one year 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 or additional compensation 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 two weeks paid
vacation during each Salary Year during the term of the Employee's employment
hereunder. Vacation shall be taken at such times and with such notice so as to
not disrupt or interfere with the business of the Company. 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
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option to purchase up to 20,000 shares of the common stock of the Company in
accordance with a stock option agreement in the form set forth as Exhibit A
hereto.
5. TERMINATION.
(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 the
determination of a physician appointed or selected by the Company, 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 a physician
selected by the Company, 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 three-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.
The Employee will also forfeit the right to salary and benefits during the
Severance Period upon accepting employment with another employer with comparable
salary and benefits hereunder shall be forfeited and shall cease upon the
Employee becoming eligible for benefits from the Employee's new employer.
Notwithstanding the foregoing, the termination of the Employee's employment
pursuant to the second sentence of Section 2 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 or other serious
misconduct, (3) the commission of an unlawful act material to Employee's
employment, (4) a material violation of the Company's policies or practices
which reasonably justifies immediate termination; (5) committing, pleading
guilty, nolo contendre or no contest (or their equivalent) to, entering into a
pretrial intervention or diversion program regarding, or conviction of, a felony
or any crime or act involving moral turpitude, fraud,
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dishonesty, or misrepresentation; (6) the commission by the Employee of any act
which could reasonably affect or impact to a material degree the interests of
the Company or Related Entities or in some manner injure the reputation,
business, or business relationships of the Company or Related Entities; (7) the
Employee's inability to perform an essential function of Employee's position; or
(8) any material breach by Employee of this Agreement. The Company may terminate
this Agreement for Cause at any time without 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, provided, however, that the Employee's obligations under Sections 6
and 7 shall survive such a Termination for Cause and any liabilities or
obligations which have accrued and are owed by the Employee to the Company shall
not be extinguished or released thereby.
6. 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) including Trade Secrets of the
Company 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) 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 for
any reason, including both a termination by the Company for Cause and Not for
Cause. In addition, the term "Covered Business" means 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. 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 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;
(ii) 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
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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;
(iii) disparage the Company, any Related Entities, and/or any
shareholder, director, officer, employee, or agent of the
Company or any Related Entity; and/or
(iv) 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.
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) and Trade Secrets (as
defined below) of the Company 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. 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, passwords or codes 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
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"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 California Uniform Trade
Secrets Acts and any other applicable law. Trade Secret shall mean information,
including a formula, pattern, compilation, program, device, method technique, or
process that derives independent economic value, actual or potential, from being
not generally known to, and not being readily ascertainable by proper means by,
other persons who can derive economic value from its disclosure or use,
including but not limited to the patented information and processes as well as
the unpatented information and processes comprising, underlying, arising from,
and associated with Liquidmetal Alloy and Liquidmetal Coatings used by the
Company.
(d) Prevention of Premature Disclosure of Confidential Information
and Trade Secrets. 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 Trade Secrets and preventing the
premature public disclosure of the Company's proprietary information and
technology including its Confidential Information and Trade Secrets, 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 or
Trade Secret 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
Trade Secret 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,
and under such conditions and restrictions as are specifically authorized and/or
required by the Company) or transmit by any means, electronic or otherwise, any
document, record, notebook, plan, model, component, device, computer software or
code, or Confidential Information or Trade Secret whether embodied in a disk or
in any other form, including electronic 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, Confidential Information, Trade Secret or any part thereof.
(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
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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.
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
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(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. The covenants of Sections 6 and 7 shall survive the termination,
extinguishment, or lapse of this Agreement under any circumstances, even if this
Agreement is terminated by either party, whether for Cause or Not for Cause.
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, 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. Employee further
represents and warrants that he fully and completely understands this Agreement
and that he has engaged in negotiations with the Company and has either
consulted with an attorney of his choice or has had ample opportunity to do so
and is fully satisfied with the opportunity he has had.
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,
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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. This Agreement may be assigned by the Company without the
consent of the Employee, provided, however, that the Employee is given notice of
the assignment.
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 California 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 California,
County of Orange, or, if it has or can acquire jurisdiction, in the United
States District Court located in Orange County, California, 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 hereto agree that having venue and jurisdiction solely in California is
reasonable in that the headquarters for the Company is in Lake Forest, Orange
County, California and that site for litigation is the most central for such
matters. THE PARTIES HEREBY WAIVE A JURY TRIAL IN ANY LITIGATION ARISING UNDER
OR RELATING TO THIS AGREEMENT OR THE EMPLOYMENT OF THE EMPLOYEE WITH THE
COMPANY. This Agreement shall not be construed against either party but shall be
construed without regard to the participation of either party in the drafting of
this Agreement or any part thereof.
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.
14. MODIFICATION BY THE COURT. In the event that any provision or Section
of this Agreement violates any law of the state of California or is for some
other reason unenforceable as written in the state of California, the Employee
and the Company agree that the unenforceable provision or Section should not
cause the entire Agreement to become unenforceable unless it is caused to fail
in its essential purpose. In the event that any provision or Section of this
Agreement violates any law of the state of California or is for some other
reason unenforceable as written in the state of California, the Employee agrees
that the provision should be reduced in scope or length or otherwise modified by
the Court, if possible under the law, to cause the provision or Section of the
Agreement to be legal and enforceable but to still provide to the Company the
maximum protection available to it under the law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
LIQUIDMETAL TECHNOLOGIES
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Exhibit 10.14
By: /s/ John Kang
-------------------------------------
John Kang, Chairman and Chief Executive
Officer
Liquidmetal Technologies
25800 Commercentre Drive, Suite 100
Lake Forest, CA 92639
Facsimile Number: 949.206.8008
EMPLOYEE
By: /s/ Tony Chung
--------------------------------------
Printed Name: Tony Chung
Address and Facsimile Number:
__________________________________________
__________________________________________
__________________________________________
__________________________________________
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