EXHIBIT 10.34
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FUNCTIONAL MANAGEMENT TEAM EMPLOYMENT AGREEMENT
THIS AGREEMENT is made between EXTENDED SYSTEMS OF IDAHO, INCORPORATED (ESI) and
____________David Willis________ (EMPLOYEE) for the employment of EMPLOYEE by
ESI.
IT IS AGREED BETWEEN THE PARTIES:
1. EMPLOYMENT: ESI hereby hires EMPLOYEE and EMPLOYEE accepts employment with
ESI as ____VP of North America Sales_____________.
2. TERMS OF EMPLOYMENT: This Agreement shall commence the _____27th__ day of
__October_, ___2003 and shall continue until terminated by either party
pursuant to paragraph five.
3. COMPENSATION: The EMPLOYEE shall receive as compensation for his/her
services the amount of __$10,834_ per __month based on full-time
employment (which amount may be increased from time to time, "Base
Salary") plus all employee benefits as set forth in the current issue of
the Extended Systems Employee Handbook.
4. DUTIES OF EMPLOYEE: EMPLOYEE shall have the duties and authority as set
forth in the job description.
5. VACATION: EMPLOYEE shall accumulate paid vacation as set forth in Extended
Systems Time-Off Policy.
6. TRAVEL EXPENSES: EMPLOYEE shall be reimbursed for all authorized travel
and lodging expenses.
7. FRINGE BENEFITS: Fringe benefits shall be provided by ESI as set forth in
the Extended Systems Employee Handbook, which is located on the HR
Intranet. I understand that I am responsible for familiarizing myself with
the contents of the handbook. I understand that the contents in the
Employee Handbook are subject to change at Extended Systems' discretion
and do not create any contractual commitments by the Company. __dw__
(Employee Initials)
8. DRUG AND ALCOHOL POLICY: EMPLOYEE agrees to abide by the terms of the
Extended Systems Drug and Alcohol Policy. Receipt of Drug and Alcohol
Policy is hereby acknowledged. dw (Employee Initials).
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9. NON-DISCLOSURE AGREEMENT: EMPLOYEE agrees to abide by the terms of the
Extended Systems Non-Disclosure Agreement.
10. INSIDER TRADING POLICY: EMPLOYEE agrees to abide by the terms of Extended
Systems' Insider Trading Policy.
11. NOTICE OF TERMINATION: With or without good cause either party may
terminate this agreement by giving fourteen (14) days written notice to
the other party. Termination of this Agreement shall not terminate the
NONDISCLOSURE AGREEMENT between the parties.
12. SEVERANCE. (a) Termination Without Cause; Constructive Termination. Except
as provided in Section 12(b), in the event EMPLOYEE is terminated without
cause, or in the event any of the following events occur without
EMPLOYEE'S consent: (i) EMPLOYEE is relocated; (ii) EMPLOYEE'S overall
compensation package (including but not limited to salary, bonus,
commission structure, fringe benefits, perquisites, and vacation time) is
detrimentally changed or modified other than in connection with a general
change in compensation for all ESI employees or for all ESI employees in
any group or classification that includes EMPLOYEE (provided that any
reduction in compensation is made as a result of a decline in ESI's
economic conditions, is temporary, and is no greater than twenty percent
(20%) of Base Salary); or (iii) EMPLOYEE'S position within ESI (including
EMPLOYEE'S officer status with ESI or its parent), or any of the duties,
responsibilities or requirements of EMPLOYEE'S position, are substantially
changed or modified, THEN EMPLOYEE shall be entitled to receive the
following: (A) an amount equal to six (6) months of Base Salary at
EMPLOYEE'S then current Base Salary; (B) $3,000.00 in lieu of fringe
benefits; (C) all salary, vacation time and other benefits earned and
accrued to the date of termination; and (D) a pro rata bonus for the year
in which termination occurs assuming the EMPLOYEE would have received a
bonus. In order to receive the severance payment under this Section 12(a),
EMPLOYEE must execute a mutually agreeable form of "Release of All
Employment Claims." Participation in all stock option plans, stock
purchase plans, and other company personnel benefits shall cease on the
EMPLOYEE'S date of termination, subject to the specific provisions of
option agreements or plans that may extend EMPLOYEE'S rights beyond the
date of termination.
(b) Change in Control. Notwithstanding the foregoing, if within 12 months
following a Change in Control, EMPLOYEE is terminated for any reason other
than for cause or any of the following events occur without EMPLOYEE'S
consent: (i) EMPLOYEE is relocated; (ii) any component of EMPLOYEE'S
compensation package (including but not limited to salary, bonus,
commission structure, fringe benefits, perquisites, and vacation time) is
detrimentally changed or modified; or (iii) EMPLOYEE'S position within the
surviving entity, or any of the duties, responsibilities or requirements
of EMPLOYEE'S position, are changed or modified in relation to EMPLOYEE'S
position within ESI (including EMPLOYEE'S officer status with ESI or its
parent), THEN EMPLOYEE shall be entitled to receive the following: (A) an
amount equal to twelve (12) months of Base Salary at EMPLOYEE'S then
current Base Salary; (B) $6,000 in lieu of fringe benefits; (C) all
salary, vacation time and other benefits earned and accrued to the date of
termination; and (D) a pro rata bonus for the year in which termination
occurs assuming the EMPLOYEE would have received a bonus. In order to
receive the severance payment under this Section 12(b), EMPLOYEE must
execute a mutually agreeable form of "Release of All Employment Claims."
Furthermore, all unvested ESI stock options held by EMPLOYEE shall
automatically vest upon termination (or the occurrence of an event
described in Sections 12(b)(i)-(iii)) and, on or before the ninetieth
(90th) day following termination (or the triggering event, as the case may
be), EMPLOYEE shall have the option, exercisable by delivery of written
notice of exercise to ESI or its successor, of converting any incentive
stock options into nonqualified stock options with an exercise period
extending until the earliest of twenty-four (24) months following such
date, or the expiration date of such option.
For purposes of this Agreement, a "Change In Control" shall mean the
occurrence of any of the following events:
A third "person," including a "group," but excluding an
existing stockholder of ESI who is the "beneficial
owner" (as these terms are defined in or for the
purposes of Section 13(d) of the Securities Exchange Act
of 1934, as amended, and as in effect on the date
hereof) of more than 20% of the total number of votes
that may be cast for the election of directors of ESI,
(A) becomes the beneficial owner of shares of ESI having
more than 50% of the total number of votes that may be
cast for the election of directors of ESI, or (B)
otherwise is able to appoint, designate or control, by
proxy, agreement or otherwise, a majority of the
directors of ESI;
The merger or consolidation of ESI with or into any
other corporation or entity or the merger or
consolidation of any other corporation or entity into or
with ESI, in which case those persons who are
stockholders of ESI immediately prior to such merger or
consolidation do not receive, as a result of such merger
or consolidation, more than 50% in voting power of the
outstanding capital stock of the surviving corporation;
or
Any sale or transfer in a single transaction or series
of related transactions of more than 50% of fair market
value of ESI's assets.
Notwithstanding the above, ESI and EMPLOYEE acknowledge that this Section
12(b) shall be triggered and EMPLOYEE shall be entitled to severance
thereunder if after execution of a definitive agreement but prior to the
actual closing of a Change in Control, EMPLOYEE is terminated in relation
to the Change in Control.
Payments. Severance payments may be paid in one lump sum or in
installments at the option of EMPLOYEE.
Excess Parachute Payments. If any portion of the payments or benefits
under this Agreement or any other agreement or benefit plan of the Company
(including stock options) would be characterized as an "excess parachute
payment" to the Employee under Section 280G of the Internal Revenue Code
of 1986, as amended (the "Code"), the Employee shall be paid any excise
tax that the Employee owes under Section 4999 of the Code as a result of
such characterization, such excise tax to be paid to the Employee at least
ten (10) days prior to the date that he or she is obligated to make the
excise tax payment. The determination of whether and to what extent any
payments or benefits would be "excess parachute payments" and the date by
which any excise tax shall be due, shall be determined by recognized tax
counsel selected by ESI and reasonably acceptable to the Employee.
Except as specifically set forth herein, the Agreement shall remain in
full force and effect. This Amendment shall be governed in all respects by
the internal laws of the state of Idaho (without regard to its conflicts
of laws principles). This Amendment may be executed in counterparts, each
of which shall be an original and all of which together shall constitute
the same document. This Amendment shall be binding upon, and inure to the
benefit of, the parties and their respective permitted successors and
assigns.
Extended Systems of Idaho, Incorporated
By: /s/ Charles W. Jepson
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Its: President and CEO
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Accepted and Approved By:
/s/ David L. Willis
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Employee
11/4/03
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Dated: