EXHIBIT 99.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") made as of this 1st day of November,
2007 by and between Sysview Technology, Inc., a Delaware corporation, having an
office at 1772 Technology Drive, (hereinafter referred to as "Employer") and
Carolyn Ellis, an individual residing at [____________________________________]
(hereinafter referred to as "Employee");
W I T N E S S E T H:
WHEREAS, Employer employs directly or through a co-employment agreement
with a Professional Employer Organization (PEO) licensed in the State of
California, and desires to employ, Employee as Chief Financial Officer of
Employer; and
WHEREAS, Employee is willing to be employed as the Chief Financial
Officer of Employer in the manner provided for herein, and to perform the duties
of the Chief Financial Officer of Employer upon the terms and conditions herein
set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein set forth it is agreed as follows:
1. EMPLOYMENT OF CHIEF FINANCIAL OFFICER OF EMPLOYER. Employer hereby
employs Employee as Chief Financial Officer of Employer.
2. TERM.
a. Subject to Section 9 and Section 10 below, the term of this
Agreement shall be for a period of twelve (12) months commencing on November 1,
2007 (the Term). The Term of this Agreement shall be automatically extended for
additional one (1) year periods, unless either party notifies the other in
writing at least ninety (90) days prior to the expiration of the then existing
Term of its intention not to extend the Term. During the Term, Employee shall
devote substantially all of her business time and efforts to Employer and its
subsidiaries and affiliates.
3. DUTIES. The Employee shall perform those functions generally
performed by persons of such title and position, shall attend all meetings of
the stockholders and the Board (if invited to attend), shall perform any and all
related duties and shall have any and all powers as may be prescribed by
resolution of the Board, and shall be available to confer and consult with and
advise the officers and directors of Employer at such times that may be required
by Employer. Employee shall report directly and solely to the Board.
4. COMPENSATION.
a. (i) Employee shall be paid a base pay of $135,000 per year during
the Term of this Agreement. Employee shall be paid periodically in accordance
with the policies of the Employer during the term of this Agreement, but not
less than monthly.
(ii) Employee is eligible for an annual bonus, if any, which will
be determined and paid in accordance with policies set from time to time by the
compensation committee of the Board.
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b. Employer shall grant Employee 150,000 options ("Options") to
purchase shares of the Company's common stock at an exercise price of $0.60 per
share for a period of seven (7) years, upon execution of this Agreement. The
Options shall vest and become exercisable on the date that is 12 months from the
issuance date of the Options.
c. Employer shall include Employee in its health insurance program,
payment of premiums in accordance with company policy.
d. Employee shall have the right to participate in any other
employee benefit plans established by Employer and PEO.
e. (i) In the event of a "Change of Control" whereby:
(A) A person (other than a person who is an officer or a Director of
Employer on the effective date hereof), including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934, after execution of this
Agreement becomes, or obtains the right to become, the beneficial owner of
Employer securities having 30% or more of the combined voting power of then
outstanding securities of the Employer that may be cast for the election of
directors of the Employer;
(B) At any time, a majority of the Board-nominated slate of candidates
for the Board is not elected;
(C) Employer consummates a merger in which it is not the surviving
entity;
(D) Substantially all Employer's assets are sold; or
(E) Employer's stockholders approve the dissolution or liquidation of
Employer; then
(ii) All stock options and warrants ("Rights") granted by
Employer to Employee under any plan or otherwise prior to the effective date of
the Change of Control, shall become vested, accelerate and become immediately
exercisable; any time within twelve months after the effective date of the
change of control, adjusted for any stock splits and capital reorganizations
having a similar effect, subsequent to the effective date hereof. In the event
Employee owns or is entitled to receive any unregistered securities of Employer,
then Employer shall use its best efforts to effect the registration of all such
securities as soon as practicable, but no later than 120 days after the Change
of Control; provided, however, that such period may be extended or delayed by
Employer for one period of up to 60 days if, upon the advice of counsel at the
time such registration is required to be filed, or at the time Employer is
required to exercise its best efforts to cause such registration statement to
become effective, such delay is advisable and in the best interests of Employer
because of the existence of non-public material information, or to allow
Employer to complete any pending audit of its financial statements.
5. EXPENSES. Employee shall be reimbursed for all of her actual
out-of-pocket expenses incurred in the performance of her duties hereunder,
provided such expenses are acceptable to Employer, which approval shall not be
unreasonably withheld, for business related travel and entertainment expenses,
and that Employee shall submit to Employer detailed receipts, according to IRS
guidelines, with respect thereto.
6. RESERVED.
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7. SECRECY. At no time shall Employee disclose to anyone any
confidential or secret information (not already constituting information
available to the public) concerning (a) internal affairs or proprietary business
operations of Employer or (b) any trade secrets, new product developments,
patents, programs or programming, especially unique processes or methods.
8. COVENANT NOT TO COMPETE.
(a) Subject to, and limited by, Section 10(b), Employee will not, at
any time, during the term of this Agreement, and for one (1) year thereafter,
either directly or indirectly, engage in, with or for any enterprise,
institution, whether or not for profit, business, or company, competitive with
the business (as identified herein) of Employer as such business may be
conducted on the date thereof, as a creditor, guarantor, or financial backer,
stockholder, director, officer, consultant, advisor, employee, member, inventor,
producer, director, or otherwise of or through any corporation, partnership,
association, sole proprietorship or other entity; provided, that an investment
by Employee, her spouse or her children is permitted if such investment is not
more than four percent (4%) of the total debt or equity capital of any such
competitive enterprise or business and further provided that said competitive
enterprise or business is a publicly held entity whose stock is listed and
traded on a national stock exchange or through the NASDAQ Stock Market. As used
in this Agreement, the business of Employer shall be deemed to include the
manufacturing and marketing of imaging systems.
(b) For a period one year from the date of termination of this
agreement Employee shall not contact or solicit any of the Companies customers,
employees or suppliers.
(c) During the entire time of employment, any outside consulting
(paid or unpaid), employment, business venture or compensated activities must
receive the written approval of the employee compensation committee, established
by the board of directors, or any other committee of the board of directors
serving such function.
9. TERMINATION.
a. TERMINATION BY EMPLOYER
(i) Employer may terminate this Agreement upon written notice for
Cause. For purposes hereof, "Cause" shall mean (A) Employee's misconduct as
could reasonably be expected to have a material adverse effect on the business
and affairs of Employer, (B) the Employee's disregard of lawful instructions of
Employers Board of Directors consistent with Employee's position relating to the
business of Employer or neglect of duties or failure to act, which, in each
case, could reasonably be expected to have a material adverse effect on the
business and affairs of Employer,(C) engaging by the Employee in conduct that
constitutes activity in competition with Employer, including any unapproved
activities identified in section 8(c) of this agreement; (D) the conviction of
Employee for the commission of a felony; and/or (E) the habitual abuse of
alcohol or controlled substances. Notwithstanding anything to the contrary in
this Section 9(a)(i), Employer may not terminate Employee's employment under
this Agreement for Cause unless Employee shall have first received notice from
the Board advising Employee of the specific acts or omissions alleged to
constitute Cause, and such acts or omissions continue after Employee shall have
had a reasonable opportunity (at least 10 days from the date Employee receives
the notice from the Board) to correct the acts or omissions so complained of. In
no event shall alleged incompetence of Employee in the performance of Employee's
duties be deemed grounds for termination for Cause.
(ii) This agreement automatically shall terminate upon the death
of Employee, except that Employee's estate shall be entitled to receive any
amount accrued under Section 4(a).
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b. TERMINATION BY EMPLOYEE
(i) Employee shall have the right to terminate her employment
under this Agreement upon 30 days' notice to Employer given within 90 days
following the occurrence of any of the following events (A) through (F) or
within three years following the occurrence of event (G):
(A) Employee is not appointed or retained as Chief Financial
Officer (or a substantially similar position).
(B) Employer acts to materially reduce Employee's duties and
responsibilities hereunder. Employee's duties and responsibilities shall not be
deemed materially reduced for purposes hereof solely by virtue of the fact that
Employer is (or substantially all of its assets are) sold to, or is combined
with, another entity, provided that Employee shall continue to have the same
duties and responsibilities with respect to Employer's business, and Employee
shall report directly to the board of directors of the entity (or individual)
that acquires Employer or its assets.
(C) Employer acts to change the geographic location of the
performance of Employee's duties from the San Jose area. For purposes of this
Agreement, the San Jose area shall be deemed to be the area within 60 miles of
San Jose, California.
(D) A Material Reduction (as hereinafter defined) in
Employee's rate of base compensation, or Employee's other benefits. "Material
Reduction" shall mean a ten percent (10%) differential;
(E) A failure by Employer to obtain the assumption of this
Agreement by any successor;
(F) A material breach of this Agreement by Employer, which is
not cured within thirty (30) days of written notice of such breach by Employer;
(G) A Change of Control.
(ii) Anything herein to the contrary notwithstanding, Employee
may terminate this Agreement upon thirty (30) days written notice to Employer.
(iii) If Employee shall terminate this Agreement under Section
9(b)(i), Employee shall be entitled to receive the lesser of: (a) the remaining
salary due to Employee under this Agreement, or (b) three (3) months salary, at
her then current yearly salary rate, (the SEVERANCE PAYMENT), and Employer shall
pay 100% of the C.O.B.R.A. premiums for three (3) months after such termination.
Other than the Severance Payment and the payment of C.O.B.R.A. premiums
described in this section 9(b)(iii), Employer shall have no further obligation
to compensate Employee pursuant to Section 4 above. If Employee shall terminate
this Agreement pursuant to Section 9(b)(ii), Employee shall not be entitled to
the Severance Payment or any additional compensation as provided in Section 4.
c. TERMINATION BY BOARD OF DIRECTORS ACTIONS DUE TO ECONOMIC HARDSHIP
OF THE EMPLOYER.
(i) In the event the Employer, under direction from its board of
directors due to financial distress, is required to take actions that may effect
any or all of the Section 9(b)(i) events (A) through (F), the employee will
waive any right to claim Severance Payments under the provisions of Section(s) 4
or 9(b).
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(ii) Within thirty (30) days of such board action, Employee may
voluntarily terminate this Agreement with written notice to Employer.
(iii) If Employee shall terminate this Agreement under Section
9(c)(ii), Employee shall be entitled to receive: (a) three (3) months salary, at
the annual salary rate set forth in section 4(a), (the SEVERANCE PAYMENT), and
Employer shall pay 100% of the C.O.B.R.A. premiums for three (3) months after
such termination. Other than the Severance Payment and the payment of C.O.B.R.A.
premiums described in this section 9(c)(iii), Employer shall have no further
obligation to compensate Employee pursuant to Section(s) 4 or 9(b)above. If
Employee shall terminate this Agreement pursuant to Section 9(c)(iii), Employee
shall not be entitled to the Severance Payment or any additional compensation as
provided in Section 4 or 9(b)above.
10. CONSEQUENCES OF BREACH BY EMPLOYER; EMPLOYMENT TERMINATION
a. If the Employer shall terminate Employee's employment under this
Agreement in any way that is a breach of this Agreement by Employer, the
following shall apply:
(i) Employee shall be entitled to receive the Severance Payment,
and Employer shall pay 100% of the C.O.B.R.A. premiums for twelve (12) months
after such termination. Other than the Severance Payment and the payment of
C.O.B.R.A. premiums described, Employer shall have no further obligation to
compensate Employee pursuant to Section(s) 4 or 9 above; and
(ii) Employee shall be entitled to payment of any previously
declared bonus as provided in Section 4(a) above.
b. In the event of termination of Employee's employment pursuant to
Section 9(b)(i) of this Agreement, Sections 8(a) and 8(b) shall apply to
Employee for the number of months remaining under this Agreement at the time of
termination plus a period of six (6) months thereafter.
11. REMEDIES
Employer recognizes that because of Employee's special talents,
stature and opportunities in the imaging industry, and because of the special
creative nature of and compensation practices of said industry and the material
impact that individual projects can have on the Company's results of operations,
in the event of termination by Employer hereunder (except under Section 9(a)(i)
or (iii), or in the event of termination by Employee under Section 9(b)(i)
before the end of the agreed term, the Employer acknowledges and agrees that the
provisions of this Agreement regarding further payments of base salary, bonuses
and the exercisability of Rights constitute fair and reasonable provisions for
the consequences of such termination, do not constitute a penalty, and such
payments and benefits shall not be limited or reduced by amounts' Employee might
earn or be able to earn from any other employment or ventures during the
remainder of the agreed term of this Agreement.
12. EXCISE TAX. In the event that any payment or benefit received or to
be received by Employee in connection with a termination of her employment with
Employer would constitute a "parachute payment" within the meaning of Code
Section 280G or any similar or successor provision to 280G and/or would be
subject to any excise tax imposed by Code Section 4999 or any similar or
successor provision then Employer shall assume all liability for the payment of
any such tax and Employer shall immediately reimburse Employee on a "grossed-up"
basis for any income taxes attributable to Employee by reason of such Employer
payment and reimbursements.
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13. ATTORNEYS' FEES AND COSTS. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which he may be entitled.
14. ENTIRE AGREEMENT; SURVIVAL. This Agreement contains the entire
agreement between the parties with respect to the transactions contemplated
herein and supersedes, effective as of the date hereof any prior agreement or
understanding between Employer and Employee with respect to Employee's
employment by Employer. The unenforceability of any provision of this Agreement
shall not effect the enforceability of any other provision. This Agreement may
not be amended except by an agreement in writing signed by the Employee and the
Employer, or any waiver, change, discharge or modification as sought. Waiver of
or failure to exercise any rights provided by this Agreement and in any respect
shall not be deemed a waiver of any further or future rights.
b. The provisions of Sections 4, 7, 8, 9(a)(ii), 9(b)(iii), 10, 11,
12, 14, 16, 17 and 18 shall survive the termination of this Agreement.
15. ASSIGNMENT. This Agreement shall not be assigned to other parties.
16. GOVERNING LAW. This Agreement and all the amendments hereof, and
waivers and consents with respect thereto shall be governed by the laws of the
State of California, without regard to the conflicts of laws principles thereof.
17. NOTICES. All notices, responses, demands or other communications
under this Agreement shall be in writing and shall be deemed to have been given
when
a. delivered by hand;
b. sent be telex or telefax, (with receipt confirmed), provided that
a copy is mailed by registered or certified mail, return receipt requested; or
c. received by the addressee as sent be express delivery service
(receipt requested) in each case to the appropriate addresses, telex numbers and
telefax numbers as the party may designate to itself by notice to the other
parties:
(i) if to the Employer: Sysview Technology, Inc. 1772 Technology
Drive San Jose, CA 95110 Telefax:(408)-490-2801 Telephone:(408)-436-9888
(ii) if to the Employee:
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18. SEVERABILITY OF AGREEMENT. Should any part of this Agreement for
any reason be declared invalid by a court of competent jurisdiction, such
decision shall not affect the validity of any remaining portion, which remaining
provisions shall remain in full force and effect as if this Agreement had been
executed with the invalid portion thereof eliminated, and it is hereby declared
the intention of the parties that they would have executed the remaining
portions of this Agreement without including any such part, parts or portions
which may, for any reason, be hereafter declared invalid.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed this agreement
as of the day and year first above written.
EMPLOYEE
Signature: /s/ Carolyn Ellis
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Printed Name: Carolyn Ellis
Date: November 1, 2007
SYSVIEW TECHNOLOGY, INC.
By: /s/ Darwin Hu
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Name: Darwin Hu
Title: Chief Executive Officer
Date: November 1, 2007
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