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Exhibit 4
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made this 3rd day of
December, 1999, by and between Nasser Barabi ("Employee") and Oz Technologies,
Inc., a California corporation ("Company"), effective December 6, 1999
("Effective Date").
Company wishes to retain the services of Employee pursuant to this
Employment Agreement, the terms and provisions of which are set forth below.
1. POSITION AND DUTIES.
During the Term (as defined in Section 5) Employee will be employed
by Company as its Director of Engineering and Research and Development and will
perform those duties as from time to time determined by the Board of Directors
of Company ("Board") or Company's CEO in accordance with the policies,
practices, and bylaws of Company.
Employee will serve Company faithfully, loyally, honestly, and to
the best of Employee's ability. Employee will devote Employee's best efforts and
substantially all of the Employee's business time to the performance of
Employee's duties for, and in the business and affairs of, Company.
The Board reserves the right, in its sole discretion, to change or
modify Employee's position, title, and duties during the Term of this Agreement.
2. BASE SALARY.
During the Term of this Agreement, Employee's base salary will be
$175,000, payable in accordance with Company's customary payroll practice.
Employee's base salary will be reviewed annually by the Board in accordance with
Company's compensation review policies and practices, all as determined by
Company in its discretion.
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3. INCENTIVE COMPENSATION.
Employee is eligible to participate in any performance-based
incentive compensation program that the Board establishes for Employee, as well
as any performance-based incentive compensation program established from time to
time for other employees of Company in the same or similar job classification.
4. BENEFIT PLANS.
Employee will be entitled to be eligible to participate in all
employee benefit plans, including, but not limited to, retirement plans, life
insurance plans, and health and dental plans available to other Company
employees, subject to restrictions (including waiting periods) specified in the
applicable Plan.
Employee is entitled to four weeks of paid vacation per calendar
year, with such vacation to be scheduled and taken in accordance with Company's
standard vacation policies.
5. TERM AND TERMINATION.
The "Term" of this Agreement shall begin on the Effective Date and
will expire by its terms on December 6, 2001, unless sooner terminated in
accordance with this Agreement. [NASSER AND IRAJ - 2 YEARS; ALL OTHERS - 1
YEAR].
6. TERMINATION BY COMPANY.
(a) Termination For Cause. Company may terminate this Agreement and
Employee's employment for Cause at any time upon written notice. For purposes of
this Agreement, "Cause" is limited to discharge resulting from a determination
by Company that Employee: (i) is convicted of a felony involving dishonesty,
fraud, theft, or embezzlement; (ii)
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repeatedly fails or refuses to follow reasonable policies or directives
established by Company after written notice from Company, and a reasonable
opportunity by Employee to cure the failures or refusals; (iii) willfully and
persistently fails to attend to the material duties or obligations imposed upon
Employee under this Agreement after written notice from Company and a reasonable
opportunity by Employee to cure the failure; (iv) performs an act or fails to
act, which, if Employee were prosecuted and convicted, would constitute a felony
involving $1,000 or more of money or property of Company; or (v) intentionally
misrepresents or conceals a material fact for purposes of securing employment
with Company or this Agreement.
If this Agreement and Employee's employment are terminated by
Company for Cause, Employee will receive no Severance Benefits.
(b) Termination Without Cause. Company also may terminate this
Agreement and Employee's employment at any time or elect to not renew this
Agreement at the end of any Term without Cause by giving at least 30 days prior
written notice to Employee. In the event Company elects to not renew this
Agreement at the end of any Term, without Cause, Employee is not entitled to
receive Severance Benefits pursuant to Section 9.
7. TERMINATION BY EMPLOYEE.
Employee may terminate this Agreement and his employment with
Company at any time by giving 90 days written notice to Company. If Employee
terminates this Agreement and Employee's employment, Employee is not entitled to
receive Severance Benefits.
8. DEATH OR DISABILITY.
This Agreement will terminate automatically on Employee's death. Any
salary or other amounts due to Employee for services rendered prior to
Employee's death will be
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paid to Employee's surviving spouse, or if Employee does not leave a surviving
spouse, to Employee's estate. No other benefits will be paid to Employee's
estate or heirs under this Agreement, but amounts may be payable pursuant to any
life insurance or other benefit plans maintained in whole or in part by Company
for the benefit of Employee, his estate, or heirs.
Employee is considered "Disabled" or to be suffering from a
"Disability" for purposes of this Section 8 if, in the reasonable, good faith
judgment of a licensed physician selected by the Board, Employee is unable to
perform the essential functions of Employee position required under this
Agreement for a period of 90 consecutive business days, with or without
reasonable accommodations, because of a physical or mental impairment. Any
dispute relating to the existence of a Disability will be resolved by the
opinion of the licensed physician selected by the Board, provided, however, that
if Employee does not accept the opinion of the licensed physician selected by
Company, the dispute will be resolved by the opinion of a licensed physician
selected by Employee; provided further, however, that if Company does not accept
the opinion of the licensed physician selected by Employee, the dispute will be
finally resolved by the opinion of a licensed physician selected by the
physicians selected by Company and Employee.
9. SEVERANCE BENEFITS.
If this Agreement and Employee's employment with Company are
terminated without Cause pursuant to Section 6(b), Employee will receive the
"Severance Benefits" as provided by this Section. The Severance Benefits will
equal the number of whole months of Employee's base salary remaining from the
date of termination of employment to the expiration of the Term of this
Agreement (as defined in Section 5) and will be payable over that number of
months in accordance with Company's payroll practices. The Employee's right to
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elect to continue coverage under the Company's group health plans pursuant to
Section 601 et seq. of the Employee Retirement Income Security Act of 1974, as
amended, will commence following his termination of employment with Company.
Employee has no duty to mitigate damages in order to receive the
benefits provided by this Section.
No Severance Benefits will be paid in the event of Employee's death
or disability while actively employed by Company.
10. CONFIDENTIALLY AND NON-DISCLOSURE.
During the course of Employee's employment, Employee will become
exposed to a substantial amount of confidential and proprietary information,
including, but not limited to financial information, annual reports, audited and
unaudited financial reports, strategic plans, business plans, marketing
strategies, new business strategies, personnel and compensation information, and
other such reports, documents, or information. If Employee's employment with
Company is terminated by either party for any, reason, Employee will return to
Company and Employee will not take, any copies of such documents, computer
print-outs, computer tapes, floppy disks, CD ROMS, etc., in any form, format, or
manner whatsoever, nor will Employee disclose this information in whole or in
part to any person or entity, in any manner either directly or indirectly.
Excluded from this Agreement is information that is already disclosed to third
parties and is in the public domain or that Company consents to be disclosed in
writing. The provisions of this Section 10 will survive the termination of this
Agreement.
11. EMPLOYEE COVENANTS.
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(a) Interests to be Protected. The parties acknowledge that during
the Term, Employee will perform essential functions for Company, its employees
and shareholders, and for customers of Company. Therefore, Employee will be
given an opportunity to meet, work with, and develop close working relationships
with Company's clients on a first-hand basis and will gain valuable insight as
to the clients' operations, personnel, and need for services. In addition,
Employee will have access to, and be required to work with, a considerable
amount of Company's confidential and proprietary information, including but not
limited to information concerning Company's methods of operation, financial
information, strategic planning, operational budgets and strategies, payroll
data, management systems programs, computer systems, marketing plans and
strategies, merger and acquisition strategies, and customer lists.
The parties acknowledge that this covenant has an extended duration;
however, they agree that this covenant is reasonable and that it is necessary to
protect Company, its shareholders and employees.
For these and other reasons, and the fact that there are many other
employment opportunities available to Employee if Employee should terminate, the
parties are in full and complete agreement that the following covenants are fair
and reasonable and are freely, voluntarily, and knowingly entered into. Further,
each party has been given the opportunity to consult with independent legal
counsel before entering into this Agreement.
(b) Devotion to Employment. Employee will devote substantially all
of Employee's business time and best efforts to the performance of Employee's
duties on behalf of Company. During the term of employment, Employee will not at
any time or place or to any extent whatsoever, either directly or indirectly,
without the express written consent of Company,
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engage in any outside employment, or in any activity competitive with or adverse
to Company's business, practice or affairs, whether alone or as partner,
officer, director, employee, shareholder of any corporation, or as a trustee,
fiduciary, consultant, or other representative. This is not intended to prohibit
Employee from engaging in nonprofessional activities such as personal
investments or conducting to a reasonable extent private business affairs which
may include other boards of directors' activity, as long as they do not conflict
with Company. Participation to a reasonable extent in civic, social, or
community activities is encouraged.
(c) Notification and Disclosure. Employee will promptly and fully
disclose to Company in writing, whether or not requested by Company, any and all
ideas, improvements, discoveries, inventions, trademarks, proprietary
information, know-how, processes, or other developments or improvements
(collectively, the "Inventions"), whether or not Employee believes them to be
patentable, that relate to the business of Company now or hereafter engaged in,
that Employee conceives or first actually reduces to a plan, practice, or
device, either individually or jointly with others, during the term of
Employee's employment with Company, or within the period ending six moths after
the termination thereof, and that relate to the business of Company now or
hereafter engaged in, resulting from or arising out of Employee's use of
Company's equipment, supplies, facilities, or trade secret information that
result from any work performed by employee in his capacity as an employee of
Company, whether conceived or developed during Company's business hours or
otherwise. Employee will keep current, accurate, and complete records of all
Inventions, which records will belong to Company and at all times be kept and
stored on Company's premises.
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(d) Ownership and Patenting of Inventions. The Inventions will be
the sole and exclusive property of Company. During the term of Employee's
employment by Company and at any time thereafter, Employee, at any time upon the
requests of Company, will execute and deliver an assignment or assignments of
any and all applications, plans, devices, and other uses relating to the
Inventions that Company deems necessary or convenient to apply for, obtain, or
maintain patents of the United States, and any other foreign countries, for the
Inventions and to assign and convey to Company or its nominee the sole and
exclusive right, title, and interest in and to the Inventions. Employee will
provide any and all aid and assistance deemed necessary by Company to protect
Company's interest in the Inventions with respect to any disputes arising out of
any unauthorized use or infringement of the Inventions or any patents issued in
relation thereto.
(e) Judicial Amendment. If the scope of any provision of this
Section 11 is found by a court of competent jurisdiction to be too broad to
permit enforcement to its full extent, the provision will be enforced to the
maximum extent permitted by law. The parties agree that the scope of any
provision of this Agreement may be modified by a judge in any proceeding to
enforce this Agreement, so that such provision can be enforced to the maximum
extent permitted by law. If any provision of this Agreement is found to be
invalid or unenforceable for any reason, it will not affect the validity of the
remaining provisions of this Agreement.
(f) Injunctive Relief Damages and Forfeiture. Due to the nature of
Employee's position with Company, and with full realization that a violation of
this Agreement will cause immediate and irreparable injury and damage, which is
not readily measurable, and to
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protect Company's interests, Employee understands and agrees that in addition to
instituting legal proceedings to recover damages resulting from a breach of this
Agreement, Company may seek to enforce this Agreement with an action for
injunctive relief to cease or prevent any actual or threatened violation of this
Agreement on the part of Employee.
(g) Survival. The provisions of this Section 11, will survive the
termination of this Agreement.
12. AMENDMENTS.
This Agreement constitutes the entire agreement between the parties
as to the subject matter hereof. Accordingly, there are no side agreements or
verbal agreements other than those that are stated in this document. Any
amendment, modification, or change in this Agreement must be done so in writing
and signed by both parties.
13. SEVERABILITY.
If a court or arbitrator declares that any provision of this
Agreement is invalid or unenforceable, it will not affect or invalidate any of
the remaining provisions. Further, the court has the authority to re-write that
portion of the Agreement it deems unenforceable, to make it enforceable.
14. GOVERNING LAW.
The law of the State of California will govern the interpretation
and application of all of the provisions of this Agreement.
15. INDEMNITY.
(a) General. Company will, to the fullest extent authorized by
applicable law, indemnify and hold harmless Employee in any threatened, pending
or completed
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action, suit or proceeding, whether civil, criminal, administrative, or
investigative against expenses, liabilities, and losses (including attorneys'
fees, judgments, fines, excise taxes, or penalties and amounts paid in
settlement) reasonably incurred or suffered by Employee.
(b) Expenses. This right to indemnification includes the right to be
paid by Company the expenses (including attorneys' fees) incurred in defending
any such proceeding in advance of its final disposition; provided, however,
that, if applicable law requires, an advancement of expenses incurred by
Employee will be made only if Employee agrees to repay all amounts so advanced
if it is ultimately determined by final judicial decision from which there is no
further right to appeal that Employee is not entitled to be indemnified for such
expenses. The rights to indemnification and to the advancement of expenses are
contract rights and such rights will continue as to Employee after his
termination of employment and will inure to the benefit of the Indemnitee's
heirs, executors and administrators.
(c) Claims for Indemnification or Expenses. If a claim under either
(a) or (b) above is not paid in full by Company within 60 days after Company
receives a written claim, except in the case of a claim for an advancement of
expenses, in which case the applicable period is 20 days, Employee may at any
time thereafter bring suit against Company to recover the unpaid amount of the
claim. If successful in whole or in part in any such suit, Employee is entitled
to be paid the expense of prosecuting or defending such suit. In any suit
brought by the Employee to enforce a right to indemnification or to an
advancement of expenses hereunder, or brought by Company to recover an
advancement of expenses, the burden of proving that Employee is not entitled to
be indemnified, or to such advancement of expenses, is on Company.
16. DISPUTE RESOLUTION.
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(a) Mediation. Any and all disputes arising under, pertaining to or
touching upon this Agreement (excepting the confidentiality and non-disclosure
provisions of Section 10 hereof, and the provisions of Section 11 hereof), or
the statutory rights or obligations of either party hereto, will, if not settled
by negotiation, be subject to non-binding mediation before an independent
mediator selected by the parties pursuant to Section 16(d) below. Any demand for
mediation must be made in writing party to the dispute, by certified mail,
return receipt requested, at the business address, or at the last known
residence address, of Employee. The demand must set forth with reasonable
specificity the basis of the dispute and the relief sought. The mediation
hearing will occur at a time and place convenient to the parties in Maricopa
County, Arizona, within 30 days of the date of selection or appointment of the
mediator and will be governed by the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association ("AAA").
(b) Arbitration. If the dispute is not settled through mediation,
the parties will proceed to binding arbitration before a single independent
arbitrator selected pursuant to Section 16(d). The mediator shall not serve as
arbitrator. ALL DISPUTES INVOLVING ALLEGED UNLAWFUL EMPLOYMENT DISCRIMINATION
TERMINATION BY ALLEGED BREACH OF CONTRACT OR POLICY, OR ALLEGED EMPLOYMENT TORT
COMMITTED BY COMPANY OR A REPRESENTATIVE OF COMPANY INCLUDING CLAIMS OF
VIOLATIONS OF FEDERAL OR STATE DISCRIMINATION STATUTES OR PUBLIC POLICY, SHALL
BE RESOLVED PURSUANT TO THIS POLICY AND THERE SHALL BE NO RECOURSE TO COURT,
WITH OR WITHOUT A JURY TRIAL. The arbitration hearing will occur at a time and
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place convenient to the parties in Alameda County, California, within 30 days of
selection or appointment of the arbitrator. If Company has adopted a policy that
applies to arbitrations with Employees, the arbitration will be conducted in
accordance with the policy to the extent that the policy is consistent with this
Agreement and the Federal Arbitration Act, 9 U.S.C. Sections 1-16. If no
policy has been adopted, the arbitration will be governed by the National Rules
for the Resolution of Employment Disputes of the AAA. The arbitrator will issue
written findings of fact and conclusions of law, and an award, within 15 days of
the date of the hearing unless the parties otherwise agree.
(c) Damages. In cases of breach of contract or policy, damages will
be limited to contract damages. In cases of intentional discrimination claims
prohibited by statute, the arbitrator may direct payment consistent with 42
U.S.C. Section 1981(a) and the Civil Rights Act of 1991. In cases of employment
tort, the arbitrator may award punitive damages if proved by clear and
convincing evidence. Any award of punitive damages will not exceed two times any
compensatory award and in any event, will not exceed $250,000. The arbitrator
may award fees to the prevailing party and assess costs of the arbitration to
the non-prevailing party. Issues of procedure, arbitrability, or confirmation of
award will be governed by the Federal Arbitration Act, 9 U.S.C. Sections
1-16, except that court review of the arbitrator's award will be that of an
appellate court reviewing a decision of a trial judge sitting without a jury.
(d) Selection of Mediators or Arbitrators. The parties will select
the mediator or arbitrator form a panel list made available by the AAA. If the
parties are unable to agree to a mediator or arbitrator within 10 days of
receipt of a demand for mediation or
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arbitration, the mediator or arbitrator will be chosen by alternatively striking
from a list of five mediators or arbitrators obtained by Company from AAA.
Employee will have the first strike.
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IN WITNESS WHEREOF, Company and Employee have executed this
Agreement effective on the date set forth above.
OZ TECHNOLOGIES, INC.
By:
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Name:
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Its:
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"EMPLOYEE"
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Nasser Barabi