Exhibit 10.71
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EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made by and between W3 Commerce LLC, a Delaware
limited liability company ("EMPLOYER"), and Colin Lucas-Mudd ("EMPLOYEE") as of
January 12, 2000.
R E C I T A L S:
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WHEREAS, EMPLOYER and EMPLOYEE wish to set forth in this Agreement the
terms and conditions under which EMPLOYEE is to be employed by EMPLOYER.
NOW, THEREFORE, EMPLOYER and EMPLOYEE, in consideration of the mutual
promises set forth herein, agree as follows:
ARTICLE 1
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TERM OF AGREEMENT
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1.1 Term. The term of this Agreement shall commence on the date first
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written above and shall continue until terminated pursuant to Article 6.
ARTICLE 2
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EMPLOYMENT DUTIES
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2.1 Title/Responsibilities. EMPLOYEE shall serve as an employee of
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EMPLOYER and hold the position of President of EMPLOYER, having the powers and
responsibilities consistent with such position and reporting to EMPLOYER's Chief
Executive Officer, all subject to ultimate direction and management of
EMPLOYER's Board of Directors. EMPLOYEE shall also perform all duties which
from time to time are assigned to EMPLOYEE by EMPLOYER's Chief Executive Officer
and/or Board of Directors, and shall provide the
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Chief Executive Officer and/or Board with periodic reports upon request.
EMPLOYEE's job location shall be at the San Diego, California location of
EMPLOYER.
2.2 Full Time Attention. EMPLOYEE shall perform his duties hereunder in a
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diligent and professional manner and devote substantially all of his business
time and attention, best efforts, energy and skills to EMPLOYER during the time
he is employed hereunder as President of EMPLOYER. During the term of this
Agreement EMPLOYEE shall not without the express consent of EMPLOYER's Board of
Directors serve or act as a shareholder (except passive holdings of less than 1%
of the stock), employee, agent, consultant, officer, director, partner,
representative or owner of any other business entity, nor (if it would require
more than an insubstantial amount of business time or attention) of any non-
profit entity.
2.3 Compliance with Rules. EMPLOYEE shall comply with all applicable
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governmental laws, rules and regulations and with all of EMPLOYER's policies,
rules and/or regulations applicable to all employees of EMPLOYER.
ARTICLE 3
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COMPENSATION
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3.1 Base Salary. EMPLOYER shall pay semi-monthly to EMPLOYEE a salary
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of $120,000 per annum until such time or times as it may discretionarily be
raised (but not lowered) upon annual performance/salary review by EMPLOYER's
Chief Executive Officer (upon recommendation of its Compensation Committee).
3.2 Bonus. In addition to the salary provided in Section 3.1, EMPLOYEE
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shall participate in any executive incentive bonus plan which EMPLOYER may in
its discretion establish for 2000 and future years.
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ARTICLE 4
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OTHER BENEFITS
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4.1 Fringe Benefits. EMPLOYEE shall be entitled during the term of his
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employment under this Agreement to all other fringe benefits made available from
time to time by EMPLOYER to its executives generally and/or its employees
generally, including without limitation participation in EMPLOYER's 401(k) plan
and group health insurance plan.
4.2 Expenses. EMPLOYER shall reimburse EMPLOYEE, not less often than
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monthly, for reasonable out-of-pocket business expenses incurred by EMPLOYEE in
the course of his duties, upon submission by EMPLOYEE of appropriate expense
account reports and substantiating receipts.
4.3 Vacation. EMPLOYEE shall be entitled to three weeks paid vacation per
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full year of service, in accordance with and subject to EMPLOYER's vacation
accrual plan and policies. EMPLOYEE acknowledges the "cap" on vacation accruals
set forth in such plan and policies.
ARTICLE 5
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FORMER EMPLOYMENT
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5.1 No Conflict. EMPLOYEE represents and warrants that the execution
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and delivery by him of this Agreement, his employment by EMPLOYER and his
performance of duties under this Agreement will not conflict with and will not
be constrained by any prior employment or consulting agreement or relationship,
or any other contractual obligation.
5.2 No Use of Prior Confidential Information. EMPLOYEE will not
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intentionally disclose to EMPLOYER or use on its behalf any confidential
information belonging to any of his former employers, but during his employment
by EMPLOYER he will use in the performance of
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his duties all information (but only such information) which is generally known
and used by persons with training and experience comparable to his own or is
common knowledge in the industry or otherwise legally in the public domain.
ARTICLE 6
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TERMINATION
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6.1 Term. This Agreement (including EMPLOYEE'S employment) shall
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continue until terminated by either EMPLOYER or EMPLOYEE. Such termination
(including termination of EMPLOYEE's employment) shall be effected by written
notification and may be effected at any time, with or without Cause, for any
reason or no reason.
6.2 Severance. If this Agreement and/or EMPLOYEE's employment is
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terminated as a result of Cause, EMPLOYEE shall be entitled to no severance pay.
If this Agreement and/or EMPLOYEE's employment is terminated other than for
Cause, EMPLOYEE shall be entitled to severance pay as follows: six months'
salary at EMPLOYEE's then base salary rate.
Furthermore, if EMPLOYEE is terminated (other than for Cause) in
connection with an acquisition of EMPLOYER, EMPLOYEE shall be entitled to
additional severance pay of six months' salary at EMPLOYEE's then base salary
rate (as well as the severance pay described in the previous paragraph).
"Cause" shall be defined to mean:
(a) Death;
(b) Voluntary resignation (other than because of a material breach by
EMPLOYER of its obligations under this Agreement);
(c) EMPLOYEE's repudiation of this Agreement;
(d) permanent disability (defined as EMPLOYEE's inability to perform,
with or without reasonable accommodation, the essential functions of his
position for any 50 business
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days - exclusive of vacation days taken - within any continuous period of 200
days by reason of physical or mental illness or incapacity);
(e) EMPLOYEE being formally charged with the commission of a felony,
or being convicted of a misdemeanor involving moral turpitude;
(f) EMPLOYEE's demonstrable fraud or dishonesty;
(g) EMPLOYEE's use of alcohol, drugs or any illegal substance in such
a manner as to interfere with the performance of his duties under this
Agreement;
(h) EMPLOYEE's intentional, reckless or grossly negligent action
materially detrimental to the best interest of the EMPLOYER, including any
misappropriation or unauthorized use of EMPLOYER's property or improper use or
disclosure of confidential information (but excluding any good faith exercise of
business judgment);
(i) EMPLOYEE's intentional failure to perform material duties under
this Agreement if such failure has continued for 15 days after EMPLOYEE has been
notified in writing by EMPLOYER of the nature of EMPLOYEE's failure to perform;
(j) EMPLOYEE's chronic absence from work for reasons other than
illness or permitted vacation; or
(k) EMPLOYEE's violation of policies in EMPLOYER's official Employee
Handbook, as it may be amended from time to time.
Termination for Cause shall be without prejudice to any other right or
remedy to which EMPLOYER may be entitled at law, in equity, or under this
Agreement.
ARTICLE 7
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ARBITRATION
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7.1 Final and Binding Arbitration. Any controversy, claim or dispute
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between (a) a party to this Agreement, on the one hand, and (b) the other party
to this Agreement and/or such second party's parents, subsidiaries or affiliates
and/or any of their directors, officers, employees, agents, successors, assigns,
heirs, executors, administrators, or legal representatives, on the other hand,
arising out of, in connection with, or in relation to (t) the interpretation,
validity, performance or breach of this Agreement, (u) EMPLOYEE's equity
ownership, (w) any termination of such employment, (x) any actions during or
with respect to EMPLOYEE's work for EMPLOYER, (y) any claims for breach of
contract, tort, or breach of the covenant of good faith and fair dealing, or (z)
any claims of discrimination or other claims under any federal, state or local
law or regulation now in existence or hereinafter enacted and as amended from
time to time concerning in any way the subject of EMPLOYEE's employment with
EMPLOYER or its termination, shall, at the request of either party, be resolved
to the exclusion of a court of law by binding arbitration in San Diego,
California, in accordance with Exhibit A hereto. Each of EMPLOYEE and EMPLOYER
understands and agrees that the arbitration shall be instead of any civil
litigation and that the arbitrator's decision shall be final and binding to the
fullest extent permitted by law and enforceable by any court having jurisdiction
thereof. The only claims not covered by this Section 7.1 are claims for
benefits under the workers' compensation laws, claims for unemployment insurance
benefits, and matters within the jurisdiction of the California Labor
Commissioner, which will be resolved pursuant to those laws.
ARTICLE 8
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GENERAL PROVISIONS
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8.1 Governing Law. This Agreement and the rights of the parties thereunder
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shall be governed by and interpreted under California law.
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8.2 Assignment. EMPLOYEE may not delegate, assign, pledge or encumber his
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rights or obligations under this Agreement or any part thereof.
8.3 Notice. Any notice required or permitted to be given under this
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Agreement shall be sufficient if it is in writing and is sent by registered or
certified mail, postage prepaid, or personally delivered, to the following
addresses, or to such other addresses as either party shall specify by giving
notice under this section:
TO EMPLOYER: _______________________
610 Hymettus Avenue
Encinitas, CA 92024
Copy to: Hayden J. Trubitt
Brobeck, Phleger & Harrison LLP
550 West C Street, Suite 1300
San Diego, CA 92101
TO EMPLOYEE: _______________________
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8.4 Amendment. This Agreement may be waived, amended or supplemented only
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by an express writing signed by Synbiotics Corporation, a California corporation
("Synbiotics"), a third party beneficiary to this Agreement. To be valid, such a
writing must be signed by a person specially authorized by Synbiotics' Board of
Directors to sign such particular document.
8.5 Waiver. No waiver of any provision of this Agreement shall be binding
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unless and until set forth expressly in writing and signed by the waiving party.
To be valid, EMPLOYER's signature must be by a person specially authorized by
EMPLOYER's Board of Directors to sign such particular document. The waiver by
either party of a breach of any provision of this Agreement shall not operate or
be construed as a waiver of any preceding or succeeding breach of the same or
any other term or provision, or a waiver of any contemporaneous breach of any
other term or provision, or a continuing waiver of the same or
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any other term or provision. No failure or delay by a party in exercising any
right, power, or privilege hereunder or other conduct by a party shall operate
as a waiver thereof, in the particular case or in any past or future case, and
no single or partial exercise thereof shall preclude the full exercise or
further exercise of any right, power, or privilege. No action taken pursuant to
this Agreement shall be deemed to constitute a waiver by the party taking such
action of compliance with any representations, warranties, covenants or
agreements contained herein.
8.6 Severability. All provisions contained herein are severable and in the
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event that any of them shall be held to be to any extent invalid or otherwise
unenforceable by any court of competent jurisdiction, such provision shall be
construed as if it were written so as to effectuate to the greatest possible
extent the parties' expressed intent; and in every case the remainder of this
Agreement shall not be affected thereby and shall remain valid and enforceable,
as if such affected provision were not contained herein.
8.7 Headings. Article and section headings are inserted herein for
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convenience of reference only and in no way are to be construed to define, limit
or affect the construction or interpretation of the terms of this Agreement.
8.8 Drafting Party. The provisions of this Agreement have been prepared,
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examined, negotiated and revised by each party hereto, and no implication shall
be drawn and no provision shall be construed against either party by virtue of
the purported identity of the drafter of this Agreement, or any portion thereof.
8.9 No Outside Representations. No representation, warranty, condition,
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promise, understanding or agreement of any kind with respect to the subject
matter hereof has been made by either party, nor shall any such be relied upon
by either party, except those contained herein.
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There were no inducements to enter into this Agreement, except for what is
expressly set forth in this Agreement.
8.10 Entire Agreement. This Agreement, together with EMPLOYER's standard
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Proprietary Information and Inventions Agreement, constitutes the entire
agreement between the parties pertaining to the subject matter hereof and
completely supersedes all prior or contemporaneous agreements, understandings,
arrangements, commitments, negotiations and discussions of the parties, whether
oral or written (all of which shall have no substantive significance or
evidentiary effect). Each party acknowledges, represents and warrants that he
or it has not relied on any representation, agreement, understanding,
arrangement or commitment which has not been expressly set forth in this
Agreement. Each party acknowledges, represents and warrants that this Agreement
is fully integrated and not in need of parol evidence in order to reflect the
intentions of the parties. The parties specifically intend that the literal
words of this Agreement shall, alone, conclusively determine all questions
concerning the parties' intent.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Employment Agreement in San Diego, California as of the date first written
above.
W3 COMMERCE LLC
By: /s/ Edward Brunel-Cohen
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Edward Brunel-Cohen
/s/ Colin Lucas-Mudd
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Colin Lucas-Mudd
We guarantee the obligations of W3 Commerce LLC under the foregoing Agreement.
SYNBIOTICS CORPORATION
/s/ Kenneth M. Cohen
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Kenneth M. Cohen, President and CEO
Attachment: Exhibit A (Arbitration Procedures)
[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT]
EXHIBIT A
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ARBITRATION PROCEDURES
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1. Agreement to Arbitrate
In the event that there is any dispute relating to, regarding or arising
in connection with EMPLOYEE's employment with EMPLOYER which cannot be resolved
through direct discussion or mediation, regardless of the kind or type of
dispute (excluding claims for workers' compensation, unemployment insurance or
any matters within the jurisdiction of the California Labor Commissioner), all
such disputes shall be submitted exclusively to final and binding arbitration
pursuant to the provisions of the Federal Arbitration Act or, if inapplicable,
the Uniform Arbitration Act (California Code of Civil Procedure (S) 1280 et
seq.), upon request submitted in writing to the President within one year from
the date the dispute first arose, or within one year of the date of termination
of employment, whichever occurs first. This procedure shall be the exclusive
method for resolving all claims relating to the termination of EMPLOYEE's
employment, including but not limited to any alleged violations of federal,
state and/or local statutes; all claims based upon any purported breach of duty
arising in contract or tort, including but not limited to breach of contract,
breach of the covenant of good faith and fair dealing, or violation of public
policy; and any other alleged violation of an employee's statutory, contractual
or common law rights.
Any failure to request arbitration in accordance with the foregoing
provisions shall constitute a waiver of all rights to raise or present any
claims in any form, in any forum, arising out of any dispute that was subject to
arbitration.
2. Selection of Arbitrator
All disputes subject to arbitration will be resolved by a single
arbitrator selected from a list provided by the California Mediation and
Conciliation Service from its Employment Arbitration Panel. The parties shall
select the arbitrator by alternately striking names from the list, and the last
name remaining on the list shall be the arbitrator selected to resolve the
dispute. The arbitrator must be selected within thirty (30) days of receipt of
the written request for arbitration. The arbitration hearing shall be held in
San Diego, California, at a neutral location selected by the parties or, in the
event the parties are unable to agree, at a location designated by the
arbitrator.
3. Authority of Arbitrator
The arbitrator shall only be authorized to exercise the powers
specifically enumerated by this procedure and to decide the dispute in
accordance with governing principles of law and equity. The arbitrator shall
have no authority to modify the powers granted by the terms of this procedure or
to modify the terms of the employee handbook, except as required by law. The
arbitrator shall have the authority to rule on motions by the parties, to issue
protective orders upon motion of any party or third party, and to determine only
the disputes submitted by the parties based upon the grounds presented. Any
dispute or argument not presented by the parties is outside the scope of the
arbitrator's jurisdiction and any award invoking such disputes
or arguments is subject to a motion to vacate; provided, however, the arbitrator
shall have exclusive authority to resolve any dispute relating to the validity,
interpretation and enforcement of these arbitration procedures.
4. Discovery
The arbitrator shall have the power, in addition to determining the
merits of the dispute submitted, to permit discovery regarding the subject
matter of arbitration and to enforce the rights, remedies, procedures, duties,
liabilities and obligations of discovery by the imposition of the same terms,
conditions, consequences, liabilities, sanctions and penalties as may be imposed
in like circumstances by a Superior Court under the California Code of Civil
Procedure. All discovery must be completed thirty (30) days prior to the date
set for the arbitration hearing.
5. Hearing Procedure
The issue(s) submitted to the arbitrator must be set forth in the
request for arbitration. The arbitrator shall have no authority to frame the
statement of the issue(s). Unless otherwise agreed by the parties, the
arbitration hearing shall be governed by the formal rules of evidence contained
in the California Evidence Code. The parties shall mutually agree on the number
of days required for hearing. The hearing shall be recorded and transcribed
verbatim by a certified shorthand reporter. Each party shall bear its own costs
with respect to a copy of the transcript of the hearing; however, the parties
shall each be responsible for one-half the cost of the court reporter's fee and
the arbitrator's copy of the hearing transcript.
6. Post-Hearing Procedure
Each party shall have the right to present closing argument at the
conclusion of all sworn testimony and, in addition to or in lieu of closing
argument, either party shall have the right to submit post-hearing briefs. The
due date and procedure for exchanging post-hearing briefs shall be mutually
agreed upon by the parties or as directed by the arbitrator.
7. Opinion and Award
The arbitrator shall issue a written opinion and award within sixty (60)
days of closing arguments or the receipt of post-hearing briefs, whichever is
later. The arbitration award and opinion shall be signed and dated by the
arbitrator and shall decide all issues submitted and set forth the legal
principles supporting each aspect of the opinion and award. The arbitrator shall
only be permitted to award those remedies in law or equity which are requested
by the parties and which are supported by the credible, relevant evidence. The
arbitrator shall have no authority to award punitive or exemplary damages under
any circumstances or for any reason.
8. Fees and Costs
Each party shall be responsible for its own attorney's fees, except as
provided by law, and for all costs associated with discovery unless otherwise
ordered by the arbitrator. Each party shall also be responsible for one-half of
the arbitrator's fee and one-half of any costs associated with the facilities
for the arbitration hearing.
9. Severability
In the event that any provision of this procedure is determined by the
arbitrator or by a court of competent jurisdiction to be illegal, invalid, or
unenforceable to any extent, such term or provision shall be enforced to the
extent permissible under law and all remaining terms and provisions hereof shall
continue in full force and effect.