EMPLOYMENT AGREEMENT
Exhibit 10.11
EMPLOYMENT AGREEMENT
This Employment Agreement (the Agreement) is dated as of June 1, 2006, by and between Don Schlosser (Executive) and Par3 Communications, Inc., a Washington corporation (the Company), and sets forth the terms and conditions with respect to Executives employment with the Company as of and after the date of this Agreement.
1. Duties and Scope of Employment.
(a) Position Responsibilities. Executive is employed as Chief Financial Officer of Company and reports to the Companys Chief Executive Officer. The duties and responsibilities of Executive include the duties and responsibilities for Executives corporate offices and positions as set forth in Companys bylaws from time to time in effect and such other duties and responsibilities as the Chief Executive Officer may from time to time reasonably assign to Executive, in all cases to be consistent with Executives corporate offices and positions.
(b) Obligations to the Company. Executive agrees to the best of his ability and experience that he will at all times faithfully perform all of the duties and obligations required of and from Executive, consistent and commensurate with Executives positions, pursuant to the terms hereof and to the reasonable satisfaction of the Company. During the term of Executives employment relationship with Company, Executive agrees that he will devote his full business time and attention to the business of the Company, that the Company will be entitled to all of the benefits and profits arising from or incident to his work services and advice and that he will not directly or indirectly engage or participate in any business that is competitive in any manner with the business of Company, as a director, officer, advisor or contractor or in any other capacity with respect to any such competitive business, or by making an investment in any such competitive business. Nothing in this Agreement will prevent Executive from accepting speaking or presentation engagements in exchange for honoraria or from serving on boards of charitable organizations, or from owning no more than 1% of the outstanding equity securities of a corporation whose stock is listed on a national stock exchange or the Nasdaq National Market, provided that such activities do not materially interfere with Executives obligations to the Company as described above. Executive agrees that he will comply with and be bound by the Companys operating policies, procedures and practices from time to time in effect during the term of Executives employment relationship with the Company.
(c) No Conflicting Obligations. Executive represents and warrants to the Company that he is under no obligations or commitments, whether contractual or otherwise, that are inconsistent with Executives obligations under this Agreement, nor will Executive enter into any such agreement or commitment, contractual or otherwise, in conflict with his obligations under this Agreement. Executive represents and warrants that he will not use or disclose, in connection with his employment by the Company, any trade secrets or other proprietary information or intellectual property in which any other person has any right, title or interest and that Executives employment by the Company as contemplated by this Agreement will not infringe or violate the rights of any other person or entity.
2. Confidentiality Agreement. Executive has signed, the Companys standard Proprietary Information and Invention Assignment Agreement (the Confidentiality Agreement) in the form attached hereto as Attachment A. Executive hereby represents and warrants to Company that he has complied with all obligations under the Confidentiality Agreement and agrees to continue to abide by the terms of the Confidentiality Agreement and further agrees that the provisions of the Confidentiality Agreement shall survive any termination of this Agreement or of Executives employment relationship with Company.
3. Cash Compensation.
(a) Salary. Executive shall receive a base salary as determined by the Compensation Committee and reviewed from time to time (the Base Salary), subject to standard payroll deductions and withholdings and payable pursuant to the Companys normal payroll practices.
(b) Bonuses. Executives target incentive bonus is $50,000 for 2006. Executives entitlement to incentive bonuses from the Company is discretionary and shall be determined by the Board or its Compensation Committee in good faith based upon the extent to which Executives individual performance objectives and the Companys profitability objectives and other financial and nonfinancial objectives are achieved during the applicable bonus period. In the event of Executives death or disability during the term of this Agreement, the Company shall pay to Executive or Executives estate the bonus Executive would have earned during the entire year in which death or disability occurred.
4. Equity Compensation. Executive has been granted the following options to purchase shares of the Companys common stock: 93,750 shares at an exercise price equal to $0.13 per share on May 24, 2002, 562,500 shares at an exercise price equal to $0.06 per share on October 18, 2002 and 293,750 shares at an exercise price equal to $0.06 per share on December 19, 2003 (collectively, the Options). The Options are subject to the terms of standard Stock Option Agreements, including vesting provisions set forth therein. Executive shall be eligible to participate in any stock option or other incentive programs available to officers or executives of the Company.
5. Benefits.
(a) General Benefits. Executive is eligible to participate in the Companys employee benefit plans of general application to full time employees of the Company in accordance with the rules established for individual participation in any such plan and under applicable law. Executive is eligible for such other benefits as the Company generally provides to its other employees of comparable position.
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(b) Vacation. Executive is entitled to vacation benefits according to the Companys standard policies.
6. Term; At-Will Employment. The employment of Executive under this Agreement is for an unspecified term. The Company and Executive acknowledge and agree that Executives employment is and shall continue to be at-will, as defined under applicable law, and that Executives employment with the Company may be terminated by either party at any time for any or no reason, and with or without notice. If Executives employment terminates for any reason, Executive shall not be entitled to any payments, benefits, damages award or compensation other than as provided in this Agreement.
7. Separation Benefits. Executive is entitled to receive separation benefits upon termination of employment only as set forth in this Section 7; provided, however, that in the event Executive is entitled to any severance pay under a Company-sponsored severance pay plan, any such severance pay to which Executive is entitled under such severance pay plan shall reduce the amount of severance pay to which Executive is entitled pursuant to this Section 7. In all cases, upon termination of employment Executive will receive payment for all salary and unused vacation accrued as of the date of Executives termination of employment, and Executives benefits will be continued under the Companys then existing benefit plans and policies in accordance with such plans and policies in effect on the date of termination and in accordance with applicable law.
(a) Voluntary Resignation. If Executive voluntarily elects to terminate Executives employment with the Company, Executive shall not be entitled to any severance benefits.
(b) Termination for Cause, Disability or Death. If the Company or its successor terminates Executives employment for Cause, as defined below, or if Executives employment is terminated on account of Executives disability or death, then Executive shall not be entitled to receive any separation benefits.
(c) Involuntary Termination. If Executives employment is terminated by the Company or its successor other than for Cause, as defined below, and other than on account of Executives death or disability, or if Executive resigns under circumstances that constitute a Constructive Termination, as defined below, provided Executive signs a general release of claims with respect to the Company or its successor and related parties within 60 days of such employment termination, Executive shall receive the following separation benefits: (i) continued payment of Executives Base Salary for a period of six (6) months following the date of his termination of services, commencing on the payroll period following the effective date of the Executives general release, (ii) if Executive makes a timely and accurate election and is and remains eligible to continue his current group health insurance coverage (including medical and dental) pursuant to the Consolidated Omnibus Budget Reconciliation Act (COBRA), the Company will pay the applicable premiums to provide coverage for Executive and his eligible dependents for up to six (6) months following the date of Executives termination of services, ending at such earlier time as Executive or his dependents cease to be eligible for COBRA
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continuation coverage under the Companys health insurance plan, (iii) a lump sum payment of fifty percent (50%) of Executives annual target incentive bonus based on Executives average bonus actually paid for the two calendar years prior to his termination, and (iv) the period to exercise any vested Options (and any options granted to Executive subsequent to the date hereof) that are held by Executive on the date of termination shall be extended to six (6) months following such date of termination (or such lesser period necessary to avoid any deferred compensation within the meaning of Section 409A(d)(1) of the Internal Revenue Code).
(d) Change of Control. Upon a Change of Control, as defined below, 100% of the unvested shares subject to the Options described in Section 4 above and any subsequent option grants shall be deemed vested one day prior to such Change of Control.
(e) Definitions. The following definitions shall apply:
(i) Cause. For purposes of this Agreement, Cause for Executives termination will exist at any time after the happening of one or more of the following events:
(1) Executives willful failure substantially to perform his duties and responsibilities to the Company or deliberate violation of a Company policy;
(2) Executives commission of any act of fraud, embezzlement, dishonesty or any other willful misconduct that has caused or is reasonably expected to result in material injury to the Company;
(3) Unauthorized use or disclosure by Executive of any proprietary information or trade secrets of the Company or any other party to whom the Executive owes an obligation of nondisclosure as a result of his relationship with the Company; or
(4) Executives willful breach of any of his obligations under any written agreement or covenant with the Company.
(ii) Constructive Termination. For purposes of this Agreement, Constructive Termination shall be deemed to occur if Executive resigns within 30 days following: (A) a material reduction in Executives job responsibilities or change in title; (B) relocation by the Company or successor thereto of Executives work site to a facility or location more than 50 miles from Executives principal work site for the Company immediately prior to the relocation; or (C) a reduction in Executives then-current base salary by at least 15%, provided that an across-the-board reduction in the salary level of all other employees or consultants in positions similar to the Executives by the same percentage amount as part of a general salary level reduction shall not constitute such a salary reduction.
(iii) Change of Control. For purposes of this Agreement, Change of Control shall mean a sale of all or substantially all of the Companys assets, or any merger, consolidation or other transaction of the Company with or into another corporation, entity or person, other than a transaction in which the holders of at least a majority of the voting securities
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of the Company outstanding immediately prior to such transaction continue to hold (either by the voting securities remaining outstanding or by their being converted into voting securities of the surviving entity) at least thirty-three percent (33%) of the total voting power represented by the voting securities of the Company, or such surviving entity, outstanding immediately after such transaction and Executive continues to serve as Chief Financial Officer of the Company or such surviving entity.
8. Successors and Assigns. The rights and obligations under this Agreement shall benefit and be binding on any successor and/or assign of the Company, and the Company shall cause such successor and/or assign to agree expressly to perform the obligations under this Agreement in the same manner and to the same extent as the Company would be required to perform such obligations in the absence of a succession. The terms of this Agreement and all of Executives rights hereunder shall inure to the benefit of, and be enforceable by, Executives personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. Executives obligations under this Agreement may not be assigned.
9. Miscellaneous Provisions.
(a) No Duty to Mitigate. Executive shall not be required to mitigate the amount of any payment contemplated by this Agreement (whether by seeking new employment or in any other manner), nor, except as otherwise provided in this Agreement, shall any such payment be reduced by any earnings that Executive may receive from any other source.
(b) Amendments and Waivers. Any term of this Agreement may be amended or waived only with the written consent of the parties.
(c) Sole Agreement. This Agreement, including any Attachments hereto, constitutes the sole agreement of the parties and supersedes all oral negotiations and prior writings with respect to the subject matter hereof.
(d) Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by a nationally-recognized delivery service (such as Federal Express or UPS), or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, if such notice is addressed to the party to be notified at such partys address as set forth below or as subsequently modified by written notice.
(e) Choice of Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Washington, without giving effect to the principles of conflict of laws.
(f) Dispute Resolution. The parties expressly agree that any dispute regarding the terms of this Agreement or with respect to the employment relationship between Executive and the Company shall be subject to the jurisdiction and venue of the appropriate federal or State court with subject matter jurisdiction of the dispute located in the County of King
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in the State of Washington, or such other federal or State court as the parties may mutually agree. The parties expressly waive their right to jury trial with respect to any claim arising under or in connection with this Agreement or the employment relationship between Executive and the Company.
(g) Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
(h) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
Advice of Counsel. EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
[Signature Page Follows]
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The parties have executed this Agreement the date first written above.
PAR3 COMMUNICATIONS, INC. | ||
By: | /s/ John Malloy | |
Title: | John Malloy, Director | |
Address: | 821 Second Ave., 10th Floor Suite 1000 Seattle, WA 98104 | |
DON SCHLOSSER | ||
Signature: | /s/ Don Schlosser | |
Address: | 821 Second Ave., 10th Floor Suite 1000 Seattle, WA 98104 |
SIGNATURE PAGE TO EMPLOYMENT AGREEMENT BETWEEN
PAR3 COMMUNICATIONS, INC. AND DON SCHLOSSER