Exhibit 10.(j)
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT
AGREEMENT (the “ Agreement ”) is made and
entered into as of May 6,2005, by and between Lyris Technologies,
Inc., a Delaware corporation (together with its successors and
assigns permitted hereunder, the “ Company ”),
and Rob Wilson (“ Employee ”).
RECITALS
WHEREAS, Employee
is currently employed by the Company, which develops software and
services for e-mail marketing and publishing, e-mail filtering and
spam prevention (the “ Business ”);
WHEREAS, the
Company is, concurrently with the execution hereof, entering into
(or has previously entered into) a Stock Purchase Agreement with
Commodore Resources, Inc. and the other parties thereto (the
“ Stock Purchase Agreement ”); and
WHEREAS, Employee
and the Company desire to set forth herein the terms of employment
for Employee, which employment shall be effective as of the closing
of the transactions contemplated by the Stock Purchase Agreement
(the “ Effective Date ”).
NOW, THEREFORE, in
consideration of the premises and the mutual covenants and
agreements contained herein, the sufficiency of which is hereby
acknowledged, the parties agree as follows:
AGREEMENTS:
1.
Employment Period . Subject to Section 3 or
mutual written agreement between the Company and Employee, the
Company hereby agrees to employ Employee, and Employee hereby
agrees to be employed by the Company, in accordance with the terms
and provisions of this Agreement, for the period commencing as of
the Effective Date and ending on the Fifth (5 th )
anniversary of the Effective Date (the “ Initial Term
”); provided that, at the expiration of the Initial
Term, and on each anniversary of such expiration thereafter, the
Employment Period shall automatically be extended in one year
increments (the “ Extended Term ”) unless at
least three months prior to the ensuing expiration date (but no
more than 9 months prior to such expiration date), the Company or
Employee shall have given written notice to the other party that it
or he does not wish to extend this Agreement (a “
Non-Renewal Notice ”). The term “ Employment
Period ,” as utilized in this Agreement, shall refer to
the Employment Period as so automatically extended.
2.
Terms of Employment .
(a)
Position and Duties .
(i)
During the Employment Period, Employee shall serve as Vice
President of the Company and, in so doing, shall report to
President and Chief Executive Officer. Employee agrees to perform
whatever duties the Board may assign to Employee from time to time,
consistent with Employee’s position with the Company.
Employee shall have supervision and control over, and
responsibility for, such management and operational functions of
the
Company as are usual
and customary for such position, and shall have such other powers
and duties as may from time to time be prescribed by President and
Chief Executive Officer.
(ii)
During the Employment Period, and excluding any periods of vacation
and sick leave to which Employee is entitled, Employee agrees to
devote all of his business time to the business and affairs of the
Company and, to the extent necessary to discharge the
responsibilities assigned to Employee hereunder. to use
Employee’s reasonable best efforts to perform faithfully,
effectively and efficiently such responsibilities. During the
Employment Period it shall not be a violation of this Agreement for
Employee to (A) serve on corporate, civic or charitable boards or
committees, (B) deliver lectures or fulfill speaking engagements
and (C) manage personal investments, so long as such activities do
not materially interfere with the performance of Employee’s
responsibilities as an employee of the Company in accordance with
this Agreement.
(b)
Compensation .
(i)
Base Salary . During the Employment Period, Employee shall
receive an annual base salary per calendar year of One Hundred
Fifty Five Thousand dollars ($155,000) (“ Annual Base
Salary ”), which shall be paid in accordance with the
customary payroll practices of the Company and shall be prorated
for the year ending December 31, 2005 and for any other partial
year of service. The Company may review and adjust Employee’s
Annual Base Salary. The term Annual Base Salary as utilized in this
Agreement shall refer to Annual Base Salary as so adjusted.
(ii)
Incentive, Savings and Retirement Plans . During the
Employment Period, Employee shall be entitled to participate in all
incentive, savings and retirement plans, practices, policies and
programs of the Company applicable generally to other employees of
the Company (“ Investment Plans ”).
(iii)
Welfare Benefit Plans . During the Employment Period,
Employee and/or Employee’s family or dependents, as the case
may be, shall be eligible for participation in the welfare benefit
plans, practices, policies and programs (“ Welfare
Plans ”) provided by the Company (including, without
limitation, medical, prescription, dental, vision, short-term
disability, long-term disability, salary continuance, employee
life, group life, accidental death and travel accident insurance
plans and programs) to the extent applicable generally to other
employees of the Company.
(iv)
Expenses . During the Employment Period, Employee shall be
entitled to receive prompt reimbursement for all reasonable travel,
entertainment and other business-related expenses incurred by
Employee in accordance with the policies, practices and procedures
of the Company or the Business, as applicable.
(v)
Vacation and Holidays . During the Employment Period,
Employee shall be entitled to vacation and holidays in accordance
with the policies of the Company.
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3.
Termination of Employment .
(a)
Death or Disability . Employee’s employment shall
terminate automatically upon Employee’s death during the
Employment Period. If the Disability of Employee has occurred
during the Employment Period (pursuant to the definition of
Disability set forth below), the Company may give to Employee
written notice i n accordance with Section 11(b) of its
intention to terminate Employee’s employment. In such event,
Employee’s employment with the Company shall terminate
effective on the 30th day after receipt of such notice by Employee
(the “ Disability Effective Date ”),
provided that, within 30 days after such receipt, Employee
shall not have returned to full-time performance of
Employee’s duties. For purposes of this Agreement, “
Disability ” shall mean Employee’s inability to
perform his duties and obligations hereunder for a period of 180
consecutive days due to mental or physical incapacity as determined
by a physician selected by the Company or its insurers and
acceptable to Employee or Employee’s legal representative
(such agreement as to acceptability not to be withheld
unreasonably).
(b)
Termination by the Company for Cause . The Company may
terminate the Employee’s employment during the Employment
Period for Cause. For purposes of this Agreement,
“Cause” shall mean: (i) the failure of Employee to
perform his obligations and duties hereunder to the satisfaction of
the Company, which failure is not remedied within 15 days after
receipt of written notice from the Company; (ii) commission by
Employee of an act of fraud upon, or willful misconduct toward, the
Company or any of its affiliates; (iii) a material. breach by
Employee of Section 6 , Section 7 or Section 9
, which in either case is not remedied within 15 days after receipt
of written notice from the Board or the Company; (iv) the
conviction of Employee of any felony (or a plea of nolo
contendere thereto) or any crime involving moral turpitude;
or (v) the failure of Employee to carry out, or comply with, in any
material respect any directive of the Board consistent with the
terms of this Agreement, which is not remedied within 15 days after
receipt of written notice from the Board or the Company. Any
written notice from the Board or the Company pursuant to this
Section 3(b) shall specifically identify the failure that it
deems to constitute Cause.
(c)
Termination by Company Without Cause . The Company may
terminate Employee’s employment during the Employment Period
without Cause beginning on the date that is sixty (60) days after
the Effective Date. For purposes of this Agreement, “without
Cause” shall mean a termination by the Company of
Employee’s employment during the Employment Period for any
other reason other than a termination based upon Cause, death or
Disability.
(d)
Termination by the Employee . Employee’s employment
may be terminated during the Employment Period by Employee for Good
Reason or without Good Reason; provided , however ,
that Employee agrees not to terminate his employment for Good
Reason unless (i) Employee has given the Company at least 30
days’ prior written notice of his intent to terminate his
employment for Good Reason, which notice shall specify the facts
and circumstances constituting Good Reason, and (ii) such facts and
circumstances constituting Good Reason have not been remedied
within such 30 day period. For purposes of this Agreement,
“Good Reason” shall mean any material breach by the
Company of any provision of this Agreement.
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(e)
Date of Termination . “ Date of Termination
” means (i) if Employee’s employment is terminated for
any reason other than Employee’s death, the termination date
set forth in the written notice to the effect given by Employee to
the Company or by the Company to Employee, as the case may be
(taking into account any notice or cure period required hereunder),
and (ii) if Employee’s employment is terminated by reason of
death or Disability, the date of death of Employee or the
Disability Effective Date, as the case may be.
4.
Obligations of the Company Upon Termination .
(a)
Termination Because of Death or Disability . If
Employee’s employment is terminated by reason of
Employee’s death or Disability during the Employment Period,
the Company shall pay to Employee or his legal representatives
within 20 days after the Date of Termination (except as otherwise
noted with respect to paragraphs (v) and (vi) below) (and the
Company shall have no further obligations hereunder with respect to
Employee):
(i)
Employee’s Annual Base Salary through the Date of Termination
to the extent not theretofore paid;
(ii)
Any Annual Bonus awarded to Employee prior to the Date of
Termination but not yet paid;
(iii)
Any compensation previously deferred by Employee (together with any
accrued interest and earnings thereon);
(iv)
Any unreimbursed business expenses;
(v)
Any amount arising from Employee’s participation in, or
benefits under, any Investment Plans (“ Accrued
Investments ”), which amounts shall be payable in
accordance with the terms and conditions of such Investment Plans;
and
(vi)
Any amounts to which Employee is entitled from Employee’s
participation in, or benefits under, any Welfare Plan (“
Accrued Welfare Benefits ”), which amounts shall be
payable in accordance with the terms and conditions of such Welfare
Plans, and any amounts owed as a result of accrued vacation, which
amounts shall be payable in accordance with the policies of the
Company.
(b)
Termination for Cause: Other than for Good Reason . If
Employee’s employment shall be terminated by the Company for
Cause or by Employee without Good Reason, the Company shall pay to
Employee within 20 days after the Date of Termination (except as
otherwise noted with respect to paragraphs (v) and (vi) below) (and
the Company shall have no further obligations hereunder with
respect to Employee):
(i)
Employee’s Annual Base Salary through the Date of Termination
to the extent not therefore paid;
(ii)
Any Annual Bonus awarded to Employee prior to the Date of
Termination but not yet paid;
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(iii)
Any compensation previously deferred by Employee (together with any
accrued interest and earnings thereon);
(iv)
Any unreimbursed business expenses;
(v)
Any Accrued Investments, which amounts shall be payable in
accordance with the terms and conditions of such Investment Plans;
and
(vi)
Any Accrued Welfare Benefits, which amounts shall be payable in
accordance with the terms and conditions of such Welfare Plans, and
any amounts owed as a result of accrued vacation, which amounts
shall be payable in accordance with the policies of the
Company.
(c)
Termination for Good Reason: Without Cause . If the Company
shall terminate Employee’s employment without Cause or
Employee shall terminate his employment for Good Reason, the
Company shall pay to Employee within 20 days of the Date of
Termination (except as otherwise noted with respect to paragraphs
(v) and (vi) below) (and the Company shall have no further
obligations hereunder with respect to Employee):
(i)
Employee’s Annual Base Salary through the Date of Termination
to the extent not theretofore paid;
(ii)
Any Annual Bonus awarded to Employee prior to the Date of
Termination but not yet paid;
(iii)
Any compensation previously deferred by Employee (together with any
accrued interest and earnings thereon);
(iv)
Any unreimbursed business expenses;
(v)
Any Accrued Investments, which amounts shall be payable in
accordance with the terms and conditions of such Investment
Plans;
(vi)
Any Accrued Welfare Benefits, which amounts shall be payable in
accordance with the terms and conditions of such Welfare Plans, and
any amounts owed as a result of accrued vacation, which amounts
shall be payable in accordance with the policies of the Company;
and
(vii)
An amount equal to one year of the employee’s salary.
5.
Full Settlement . Neither Employee nor the Company
shall be liable to the other party for any damages in addition to
the amounts payable under Section 4 arising out of the
termination of Employee’s employment prior to the end of the
Employment Period; provided , however , that the
Company shall be entitled to seek damages for any breach of
Section 6 , Section 7 , or Section 9 or for
Employee’s criminal misconduct.
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6.
Confidential Information .
(a)
Employee acknowledges that the Company and its affiliates have
trade, business and financial secrets and other confidential and
proprietary information (collective
