Key Employee Agreement - InVision Technologies Inc. and Curtis P. DiSibio
INVISION TECHNOLOGIES, INC.
KEY EMPLOYEE AGREEMENT
CURTIS P. DISIBIO
AGREEMENT made this 21st day of April, 1994, by and between INVISION
TECHNOLOGIES, INC. (hereinafter the 'Company') and you Curtis P. DiSibio
(hereinafter also referred to as the 'Employee').
WHEREAS, the Employee is currently serving as Chief Financial Officer of
the Company, and has served since April 1, 1991; and
WHEREAS, the Company desires to retain Employee's services, to formalize
its employment agreement with him, and to demonstrate its appreciation for his
WHEREAS, the Company and the Employee wish to clarify their respective
rights concerning the Employee's employment relationship with the Company;
NOW, THEREFORE, in consideration for the mutual promises contained
herein, and for such other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. POSITION AND RESPONSIBILITIES
1.1 The Company will continue to employ you and you shall serve in
a management capacity (without commitment for a title) and perform the duties
customarily associated with such capacity from time to time and at such place
or places as the Company shall reasonably designate or as shall be reasonably
appropriate and necessary in connection with such employment.
1.2 To the best of your ability, you will devote your full time and
best efforts to the performance of your duties hereunder and to the business
and affairs of the Company. You agree to serve as an employee of the Company
and to perform such duties as may be assigned to you by the Company's Chief
Executive Officer from time to time.
1.3 You will duly, punctually and faithfully perform and observe
any and all rules and regulations which the Company may now or shall hereafter
establish governing the conduct of its business.
2. COMPENSATION. The Company currently pays you for the services
rendered hereunder a basic salary of $ 109,000.00 per year effective April 1,
1996. 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, and payable
in installments in accordance with Company policy. You shall also be entitled
to all rights and benefits for which you shall be eligible under bonus,
vacation, sick days, pension, group insurance, disability, life insurance,
profit-sharing or other Company benefits which may be in force from time to
time and provided to you or for the Company's employees generally.
3. OTHER ACTIVITIES DURING EMPLOYMENT
3.1 Except with the prior written consent of the Company, you will
not during the term of this Agreement undertake or engage in any other
employment, occupation or business enterprise, other than ones in which you
are a passive investor. You may engage in civic and not-for-profit activities
so long as such activities do not materially interfere with the performance of
your duties hereunder.
3.2 Except as permitted by Section 3.3, you will not acquire,
assume or participate in, directly or indirectly, any position, investment or
interest known by you to be adverse or antagonistic to the Company, its
business or prospects, financial or otherwise.
3.3 During the term of your employment by the Company, you will not
directly or indirectly, except on behalf of the Company, 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 are known by you to directly compete with the Company, throughout the
world, in any of the business engaged in (or planned to be engaged in) by the
Company; provided, however, that anything above to the contrary
notwithstanding, you may own, as a passive investor, securities of any
competitor corporation, so long as your direct holdings in any one such
corporation shall not in the aggregate constitute more than 1% of the voting
stock of such corporation.
4. FORMER EMPLOYMENT. You represent and warrant that your employment
by the Company will not conflict with and will not be constrained by any prior
employment or consulting agreement or relationship. You represent and warrant
that you do not possess confidential information arising out of prior
employment which, in your best judgment, would be utilized in connection with
your employment by the Company, except in accordance with agreements between
your former employer and the Company.
5. PROPRIETARY INFORMATION AND INVENTIONS. You agree that you are
bound by the provisions of the Proprietary Information Agreement between you
and the Company, a form of which is attached hereto as Exhibit 1.
6. TERM OF EMPLOYMENT; TERMINATION
6.1 Your employment will be terminable at the will of either party,
at any time, with or without cause or prior notice.
6.2 If terminated for cause, or if Employee resigns voluntarily,
Employee shall receive no severance pay or other benefits. Termination for
cause shall be effected by a decision of the Company's Chief Executive Officer
or by resolution of the Company's Board of Directors only for the following
(a) The Employee's breach of his duty of undivided loyalty in
the execution of his fiduciary duties to the Company, including, but not
limited to, the use of his position of trust to further his private interests,
or depriving the Company of any opportunity to which it is entitled;
(b) Dishonesty of the Employee with respect to the Company or
any of its subsidiaries;
(c) Willful misfeasance or nonfeasance of duty intended to
injure or having the effect of injuring the reputation, business, or business
relationship of the Company or of any of its subsidiaries or any of their
respective officers, directors or employees;
(d) Conviction of the Employee upon a charge of any crime
which involves moral turpitude or which could reflect unfavorably upon the
Company or any of its subsidiaries;
(e) Willful or prolonged absence from work by the Employee
(other than by reason of disability due to physical or mental illness) or
failure, neglect or refusal by the Employee to perform his duties and
responsibilities without the same being corrected upon ten days prior written
(f) Material breach by the Employee of any of the covenants
contained on this Agreement.
6.3 If terminated without cause, Employee shall continue to receive
his then-current salary for a period of six (6) months or until new employment
begins, whichever occurs first. Employee agrees to notify the Company upon
acceptance of new employment.
6.4 In the event Employee desires to resign, Employee shall give
the Company not less than thirty (30) days written notice.
7. REMEDIES. Your duties under the Proprietary Information Agreement
shall survive termination of your employment with the Company. You acknowledge
that a remedy at law for any breach or threatened breach by you of the
provisions of the Proprietary Information Agreement would be inadequate and
you therefore agree that the Company shall be entitled to injunctive relief in
case of any such breach or threatened breach.
8. ASSIGNMENT. Neither this Agreement nor any rights or obligations
hereunder may be assigned by the Company or by you.
9. SEVERABILITY. In case any one or more of the provisions contained
in this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect the other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein. If moreover, any one or more of the provisions
contained in this Agreement shall for any reason be held to be excessively
broad as to duration, scope, activity or subject, it shall be construed by
limiting and reducing it, so as to be enforceable to the extent compatible
with the applicable law as it shall then appear.
10. NOTICES. Any notice which the Company is required or may desire to
give you shall be given by personal delivery or registered or certified mail,
return receipt requested, addressed to you at the address of record with the
Company, or at such other place as you may from time to time designate in
writing. Any notice which you are required or may desire to give to the
Company hereunder shall be given by personal delivery or by registered or
certified mail, return receipt requested, addressed to the Company at its
principal office, or at such other office as the Company may from time to time
designate in writing. The date of personal delivery or the date of mailing any
such notice shall be deemed to be the date of delivery thereof.
11. 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 this
12. COMPLETE AGREEMENT; AMENDMENTS. This Agreement, together with
Exhibit I sets forth the entire agreement and understandings between the
parties hereto and constitutes the complete, final and exclusive embodiment of
their agreement with respect to the subject matter hereof. This Agreement
merges. all previous discussions and negotiations between the parties and
supersedes and replaces any and every other agreement which may have existed
between the parties with respect to the subject matter hereof. It may not be
amended, supplemented, canceled or discharged except by written instrument
executed by both parties hereto.
13. 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.
14. LAW GOVERNING AGREEMENT. The validity of this Agreement and the
rights, obligations, and relations of the parties hereunder shall be construed
and determined under and in accordance with the substantive laws of the State
of California without regard to its principles of conflicts of law.
15. 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.
16. ATTORNEY FEES. If either party brings any action to enforce its
rights hereunder, the prevailing party in any such action shall be entitled to
recover his or its reasonable attorneys' fees and costs in connection with
INVISION TECHNOLOGIES, INC.
Accepted and agreed this
day of , 1994.
Curtis P. DiSibio