KEY EMPLOYEE AGREEMENT
This Employment Agreement ('Agreement') is entered into as of the 1st
day of January, 1998, by and between Horst Bruening ('Executive') and
INVISION TECHNOLOGIES, INC. (the 'Company').
WHEREAS, the Company desires to continue to employ Executive to provide
personal services to the Company, and wishes to provide Executive with
certain compensation and benefits in return for his services; and
WHEREAS, Executive wishes to be employed by the Company and provide
personal services to the Company in return for certain compensation and
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, it is hereby agreed by and between the parties hereto as
1. EMPLOYMENT BY THE COMPANY.
1.1 The effective date of this Agreement shall be January 1, 1998.
1.2 Subject to terms set forth herein, the Company agrees to
continue to employ Executive in the position of Vice President, Engineering
and Executive hereby accepts such employment effective as of December 29,
1997 (the 'Employment Date'). During the term of his employment with the
Company, Executive will devote his best efforts and substantially all of his
business time and attention (except for vacation periods as set forth herein
and reasonable periods of illness or other incapacities permitted by the
Company's general employment policies) to the business of the Company.
1.3 Executive shall serve in an executive capacity and shall
perform such duties as are customarily associated with his then current
title, consistent with the Bylaws of the Company and as required by the
Company's Chief Executive Officer. Executive shall perform his duties at
such place or places as the Company shall reasonably designate.
1.4 The employment relationship between the parties shall also be
governed by the general employment policies and practices of the Company,
including those relating to protection of confidential information and
assignment of inventions, except that when the terms of this Agreement differ
from or are in conflict with the Company's general employment policies or
practices, this Agreement shall control.
2.1 SALARY. Executive shall receive for services to be rendered
hereunder an annualized base salary of $135,000, payable in accordance with the
Company's regular payroll schedule. Such compensation is subject to change in
accordance with the policies of the Company, as determined by its Board of
Directors, in force from time to time.
3. PROPRIETARY INFORMATION OBLIGATIONS.
3.1 AGREEMENT. Executive agrees to execute and abide by the
Proprietary Information and Inventions Agreement attached hereto as Exhibit A as
a condition of employment.
3.2 REMEDIES. Executive's duties under the Proprietary Information
and Inventions Agreement shall survive termination of his employment with the
Company. Executive acknowledges that a remedy at law for any breach or
threatened breach by him of the provisions of the Proprietary Information and
Inventions Agreement would be inadequate, and he therefore agrees that the
Company shall be entitled to injunctive relief in case of any such breach or
4. OUTSIDE ACTIVITIES.
4.1 Except with the prior written consent of the Company's Board of
Directors, Executive will not during the term of this Agreement undertake or
engage in any other employment, occupation or business enterprise, other than
ones in which Executive is a passive investor. Executive may engage in civic
and not-for-profit activities so long as such activities do not materially
interfere with the performance of his duties hereunder.
4.2 Except as permitted by Section 4.3, Executive agrees not to
acquire, assume or participate in, directly or indirectly, any position,
investment or interest known by him to be adverse or antagonistic to the
Company, its business or prospects, financial or otherwise.
4.3 During the term of his employment by the Company, except on
behalf of the Company, Executive will not directly or indirectly, whether as an
officer, director, stockholder, partner, proprietor, associate, representative,
consultant, or in any capacity whatsoever engage in, become financially
interested in, be employed by or have any business connection with any other
person, corporation, firm, partnership or other entity whatsoever which were
known by him to compete directly with the Company, throughout the world, in any
line of business engaged in (or planned to be engaged in) by the Company;
provided, however, that anything above to the contrary notwithstanding, he may
own, as a passive investor, securities of any competitor corporation, so long as
his direct holdings in any one such corporation shall not in the aggregate
constitute more than 1% of the voting stock of such corporation.
4.4 FORMER EMPLOYMENT. Executive represents and warrants that his
employment by the Company will not conflict with and will not be constrained by
any prior employment or consulting agreement or relationship. Executive
represents and warrants that he does not possess confidential information
arising out of prior employment which, in his best judgement, would be utilized
in connection with his employment by the Company, except in accordance with
agreements between his former employer and the Company.
5. TERMINATION OF EMPLOYMENT.
5.1 TERMINATION WITHOUT CAUSE.
(a) The Company and Executive shall have the right to terminate
Executive's employment with the Company at any time without cause.
(b) In the event Executive's employment is terminated without
cause, the Company shall continue to pay Executive his base salary, less
standard deductions and withholdings, from the date of termination for six (6)
months, or until he obtains other employment, whichever occurs earlier.
5.2 TERMINATION FOR CAUSE.
(a) In the event Executive's employment is terminated at any
time with cause, he will not be entitled to severance pay, pay in lieu of notice
or any other such compensation.
(b) 'Cause' for termination shall mean: (a) indictment or
conviction of any felony or of any crime involving dishonesty; (b) participation
in any fraud against the Company; (c) breach of Executive's duties to the
Company, including persistent unsatisfactory performance of job duties;
(d) intentional damage to any property of the Company; or (e) conduct by
Executive which in the good faith and reasonable determination of the Board
demonstrates gross unfitness to serve.
5.3 VOLUNTARY OR MUTUAL TERMINATION.
(a) Executive may voluntarily terminate his employment with the
Company upon sixty (60) days' notice, after which no further compensation will
be paid to Executive.
(b) In the event Executive voluntarily terminates his
employment, he will not be entitled to severance pay, pay in lieu of notice or
any other such compensation.
While employed by the Company, and for two (2) years immediately
following the Termination Date, Executive agrees not to interfere with the
business of the Company by:
(a) soliciting, attempting to solicit, inducing, or otherwise causing
any employee of the Company to terminate his or her employment in order to
become an employee, consultant or independent contractor to or for any
competitor of the Company; or
(b) directly or indirectly soliciting the business of any customer of
the Company which at the time of termination or one year immediately prior
thereto was listed on the Company's customer list.
7. GENERAL PROVISIONS.
7.1 NOTICES. Any notices provided hereunder must be in writing and
shall be deemed effective upon the earlier of personal delivery (including
personal delivery by telex) or
the third day after mailing by first class mail, to the Company at its
primary office location and to Executive at his address as listed on the
7.2 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.
7.3 WAIVER. If either party should waive any breach of any
provisions of this Agreement, he or it shall not thereby be deemed to have
waived any preceding or succeeding breach of the same or any other provision of
7.4 COMPLETE AGREEMENT. This Agreement and its Exhibit, together
with the Executive Compensation Plan, the Stock Option Agreement and the Equity
Incentive Plan constitute the entire agreement between Executive and the Company
and it is the complete, final, and exclusive embodiment of their agreement with
regard to this subject matter. It is entered into without reliance on any
promise or representation other than those expressly contained herein, and it
cannot be modified or amended except in a writing signed by the President of the
7.5 ASSIGNMENT. Neither this Agreement nor any rights or obligations
hereunder may be assigned by the Company or by you.
7.6 COUNTERPARTS. This Agreement may be executed in separate
counterparts, any one of which need not contain signatures of more than one
party, but all of which taken together will constitute one and the same
7.7 HEADINGS. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
7.8 SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive and the Company, and
their respective successors, assigns, heirs, executors and administrators,
except that Executive may not assign any of his duties hereunder and he may not
assign any of his rights hereunder without the written consent of the Company,
which shall not be withheld unreasonably.
7.9 ATTORNEYS' FEES. If either party hereto brings any action to
enforce his or its rights hereunder, the prevailing party in any such action
shall be entitled to recover his or its reasonable attorneys' fees and costs
incurred in connection with such action.
7.10 CHOICE OF LAW. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the law of the
State of California.
7.11 FORUM. Any legal action, suit or proceeding arising from or
relating to this Agreement shall be brought and maintained in the United States
District Court for the Northern District of California and the parties hereby
submit to the jurisdiction thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
INVISION TECHNOLOGIES, INC.
By: /s/ SERGIO MAGISTRI Date: March 16, 1998
Chief Executive Officer
Accepted and agreed this 18th day of March, 1998:
/s/ HORST BRUENING