EXHIBIT 10.29
[AMERICAN TECHNOLOGY CORPORATION LOGO]
August 28, 2003, as amended (October 20, 2003)
Kalani Jones
Address:
Dear Kalani:
American Technology Corporation ("ATC") is pleased to present you with this
employment offer under the following terms and conditions:
Title: Senior Vice President of Operations
Start Date: September 8, 2003
Annual Base Salary: $140,000.00 (review by the Board of Directors-March
2004)
Bonus: 30% annual performance based bonus: (determined by
Board of Directors)
Stock Options: You will receive 75,000 stock options with an
exercise price of the fair market value on your first
day of employment (9/8/03). The options will vest
quarterly over a 2-year period beginning after 6
months of employment. /s/KJ (INITIAL)
Travel & Entertainment: A budget will be established for T&E per Company
forecasts.
Benefits: Medical and dental insurance, ATC will provide
coverage in terms stated in our Policy Manual.
Premiums for both medical and dental insurance for
employee and dependents are covered at 100% for HMO
levels. If available, the employee can elect to
upgrade the coverage at the cost to the employee.
Benefits commence on first day of the month of
employment. Life insurance coverage is part of the
Dental plan and is covered by ATC.
ATC observes 9 paid holidays per calendar year. Our
Personal Days Off ("PDO") policy is a combination of
vacation and sick days. PDO hours are accrued per pay
period. Your schedule is as follows:
Year one - 3 weeks or 4.62 hours per pay period;
Year five - 4 weeks or 6.15 hours per pay period.
Vacation Accruals (PDO) will max out at 200 hours.
A 401k package is available with multiple investment
options and a company match of 25% of Employees
deferral up to 6%.
Position Description: This position will be responsible for directing
resources in the development, manufacture and
distribution of quality products to a diverse
customer base, while meeting or exceeding corporate
profit and strategic goals.
Policy Manual: Additional terms of your employment may be set forth
in ATC's Policy Manual, as revised from time to time.
Arbitration: You will be required to sign the attached Mutual
Agreement to Arbitrate ("Arbitration Agreement").
(see exhibit)
You are entitled to all the published benefits of the company including, but not
limited to those listed above. You are subject to a review after your completion
of the 90-day probationary period to determine satisfaction of fulfilling job
responsibilities as directed by James Irish, CEO. After successful completion of
the probationary period and review you are eligible for time off accrued during
the probationary period.
Please sign this offer in the space provided below signifying that you have read
and accept the terms herein. Let me say that everyone at ATC is looking forward
to having a person of your caliber join the team and hope you feel welcome.
Sincerely, /s/ KALANI JONES
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Kalani Jones
/s/ RENEE WARDEN
Renee Warden
Director of Human Resources
CEO Reviewed:
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MUTUAL AGREEMENT TO ARBITRATE
This Mutual Arbitration Agreement ("Agreement") is entered into between
American Technology Corporation ("the Company") and the employee named below
("Employee").
AGREEMENT TO ARBITRATE CERTAIN DISPUTES AND CLAIMS
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Except as specified below, we agree to arbitrate before a single
neutral arbitrator any and all disputes or claims arising from or relating to
Employee's recruitment to or employment with the Company, or the termination of
that employment, including claims against any current or former agent or
employee of the Company, whether the disputes or claims arise in tort, contract,
or pursuant to a statute, regulation, or ordinance now in existence or which may
in the future be enacted or recognized, including, but not limited to, the
following claims:
o claims for fraud, promissory estoppel, fraudulent inducement of
contract or breach of contract or contractual obligation, whether such
alleged contract or obligation be oral, written, or express or implied
by fact or law;
o claims for wrongful termination of employment, violation of public
policy and constructive discharge, infliction of emotional distress,
misrepresentation, interference with contract or prospective economic
advantage, defamation, unfair business practices, injury suffered as a
result of Employee's performance or non-performance of his or her
duties, and any other tort or tort-like causes of action relating to or
arising from the employment relationship or the formation or
termination thereof;
o claims of discrimination, harassment, or retaliation under any and all
federal, state and/or municipal statutes, regulations, or ordinances
that prohibit discrimination, harassment, or retaliation in employment,
as well as claims for violation of any other federal, state, or
municipal statute, regulation, or ordinance, except as set forth
herein; and
o claims for non-payment or incorrect payment of wages, commissions,
bonuses, severance, employee fringe benefits, stock options and the
like, whether such claims be pursuant to alleged express or implied
contract or obligation, equity, the California Labor Code, the Fair
Labor Standards Act, the Employee Retirement Income Securities Act, and
any other federal, state, or municipal laws concerning wages,
compensation or employee benefits.
o claims for infliction of emotional distress, misrepresentation,
interference with contract or prospective economic advantage, violation
of public policy, defamation, unfair business practices, invasion of
privacy, and any other tort or tort-like causes of action relating to
or arising from the employment relationship or the formation or
termination thereof.
o claims arising out of or relating to the grant, exercise, vesting
and/or issuance of equity in the Company or options to purchase equity
in the Company.
We understand and agree that arbitration of the disputes and claims covered by
this Agreement shall be the sole and exclusive mechanism for resolving any and
all existing and future disputes or claims arising out of Employee's recruitment
to or employment with the Company or the termination thereof, except as
specified below.
CLAIMS NOT SUBJECT TO ARBITRATION
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We further understand and agree that the following disputes and claims are not
covered by this Agreement and shall therefore be resolved as required by the law
then in effect:
o Employee's claims for workers' compensation benefits, unemployment
insurance, or state or federal disability insurance.
o Either party's claims concerning the validity, infringement,
enforceability, disclosure or misappropriation of any trade secret,
patent right, copyright, trademark, or any other intellectual or
confidential property held or sought by Employee or the Company.
o Either party's request for temporary injunctive relief prior to
resolution of the dispute on its merits in an arbitration proceeding.
o Any other dispute or claim that has been expressly excluded from
arbitration by statute or binding legal precedent.
o Any claims which, as a matter of law then in effect, cannot be the
subject of a mandatory arbitration agreement.
Nothing in this Agreement should be interpreted as restricting or prohibiting
the Employee from filing a charge or complaint with a federal, state, or local
administrative agency charged with investigating and/or prosecuting complaints
under any applicable federal, state or municipal law or regulation. Any dispute
or claim that is not resolved through the federal, state, or local agency must
be submitted to arbitration in accordance with this Agreement.
FINAL AND BINDING ARBITRATION; WAIVER OF TRIAL BEFORE COURT, JURY OR GOVERNMENT
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AGENCY
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We understand and agree that the arbitration of disputes and claims under this
Agreement shall be instead of a trial before a court or jury or a hearing before
a government agency. We understand and agree that, by signing this Agreement, we
are expressly waiving any and all rights to a trial before a court or jury or
before a government agency regarding any disputes and claims which we now have
or which we may in the future have that are subject to arbitration under this
Agreement, except as provided in the preceding section.
ARBITRATION PROCEDURES
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Any arbitration held under this Agreement shall be conducted before a single
neutral arbitrator and shall be administered by JAMS, unless the parties
otherwise stipulated. The party initiating arbitration must provide written
notice of the request to arbitrate to the other party and to JAMS within the
applicable statute(s) of limitations. Written notice to the Company is to be
directed to the Company's Human Resources Department. The arbitration shall be
conducted in accordance with the JAMS Employment Arbitration Rules and
Procedures (the "JAMS Rules") in effect at the time of the arbitration;
provided, however, that the arbitrator shall allow the discovery authorized by
California Code of Civil Procedure section 1283.05 or any other discovery
required by California law. The parties shall attempt to jointly select the
single neutral arbitrator. If they are unable to reach agreement, the procedures
contained in the JAMS Rules shall apply, or JAMS shall appoint the single
arbitrator. To the extent that any of the JAMS Rules or anything in this
Agreement conflicts with any arbitration procedures required by California law,
the arbitration procedures required by California law shall govern.
PLACE OF ARBITRATION
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The arbitration shall take place in San Diego County, California, or, at the
Employee's option, in the county in which the Employee works, or last worked,
for the Company. The parties may agree to hold the arbitration at any other
place mutually agreeable to both of them.
DISCOVERY
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The arbitrator shall allow the discovery authorized by California Code of Civil
Procedure section 1283.05 or any other discovery required by California law.
WRITTEN ARBITRATION AWARD
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The Arbitrator shall issue a written Award that sets forth the essential
findings and conclusions on which the Award is based. The Arbitrator shall have
the authority to award any relief authorized by law in connection with the
asserted claims or disputes. The Arbitrator's Award shall be final and binding
on both the Company and Employee and it shall provide the exclusive remedy(ies)
for resolving any and all disputes and claims subject to arbitration under this
Agreement. The Arbitrator's Award shall be subject to correction, confirmation,
or vacation, as provided by California Code of Civil Procedure Section 1285.8 ET
SEQ and any applicable California case law setting forth the standard of
judicial review of arbitration Awards.
GOVERNING LAW
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We understand and agree that this Agreement and its validity, construction and
performance shall be governed by the laws of the State of California, without
reference to rules relating to conflicts of law. We further understand and agree
that any dispute(s) and claim(s) to be arbitrated under this Agreement shall be
governed by the laws of the State of California, without reference to rules
relating to conflicts of law.
COSTS OF ARBITRATION
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We agree that the Company will bear the arbitrator's fee and any other type of
expense or cost that the employee would not be required to bear if he or she
were free to bring the dispute(s) or claim(s) in court as well as any other
expense or cost that is unique to arbitration. If the Employee is the party
initiating arbitration, he or she will be required to contribute to the
administrative costs of the arbitration the same amount which he or she would
have paid as a filing fee in order to commence the action in a civil court of
law. The Company and Employee shall each bear their own attorneys' fees incurred
in connection with the arbitration, and the arbitrator will not have authority
to award attorneys' fees unless a statute or contract at issue in the dispute
specifically authorizes the award of attorneys' fees to the prevailing party, in
which case the arbitrator shall have the authority to make an award of
attorneys' fees as required or permitted by applicable law. If there is a
dispute as to whether the Company or Employee is the prevailing party in the
arbitration, the Arbitrator will decide this issue.
SEVERABILITY
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We understand and agree that if any term or portion of this Agreement shall, for
any reason, be held to be invalid or unenforceable or to be contrary to public
policy or any law, then the remainder of this Agreement shall not be affected by
such invalidity or unenforceability but shall remain in full force and effect,
as if the invalid or unenforceable term or portion thereof had not existed
within this Agreement.
COMPLETE AGREEMENT
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We understand and agree that this Agreement contains the complete agreement
between the Company and Employee regarding the subjects covered in it; that it
supersedes any and all prior representations and agreements between us, if any;
and that it may be modified only in a writing, expressly referencing this
Agreement and Employee by full name, and signed by the Chief Executive Officer
of the Company. Any such written modification must also state the intention of
the parties to modify this Arbitration Agreement.
KNOWING AND VOLUNTARY AGREEMENT
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We have been advised to consult with attorneys of our own choosing before
signing this Agreement, and we have had an opportunity to do so. We agree that
we have read this Agreement carefully and understand that by signing it, we are
waiving all rights to a trial or hearing before a court or jury or government
agency of any and all disputes and claims regarding Employee's employment with
the Company or the recruitment to or termination thereof (except as otherwise
stated herein).
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CONSIDERATION
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The parties' mutual agreement to arbitrate the claims identified herein, and the
Company's agreement to pay most of the costs associated with the arbitration,
provide good and sufficient consideration for the mutual promises to arbitrate.
Date: 9/2/2003 /s/ KALANI JONES
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Kalani Jones
AMERICAN TECHNOLOGY CORPORATION
Date: 9/2/2003 /s/ RENEE WARDEN
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By: Renee Warden
Chief Accounting Officer, Secretary and
Director of Human Resources