EXHIBIT 10.1
EMPLOYMENT
AGREEMENT
This Employment
Agreement (this “Agreement”) is entered into as of
September 29, 2007 (the “Effective Date”)
between InFocus Corporation, an Oregon company, with its principal
executive offices at 27500 SW Parkway Avenue, Wilsonville, Oregon
97070-8238 (the “Company”), and Robert O’Malley
(“Executive”).
WHEREAS, the
Company desires to employ and retain Executive as its President and
Chief Executive Officer and to enter into an agreement embodying
the terms of such employment; and
WHEREAS, Executive
desires to accept such employment and enter into such an
agreement.
NOW, THEREFORE, in
consideration of the mutual covenants and promises contained
herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Company and
Executive (the “Parties”), the Parties hereby agree as
follows:
1.
Term of Employment . The Company hereby agrees to
employ Executive, and Executive hereby accepts such continued
employment with the Company, on an at-will basis upon the terms and
subject to the conditions set forth in this Agreement, commencing
on September 29, 2007 (the “Commencement
Date”).
2.
Title; Duties . During the Employment Term, Executive
shall serve as President and Chief Executive Officer of the Company
reporting directly to the Company’s Board of Directors (the
“Board”). Executive shall be appointed to the
Company’s Board of Directors upon the commencement of his
employment hereunder, and the Board of Directors will nominate
Executive for election to the Board at the Company’s annual
meeting of shareholders so long as Executive continues to serve as
the Company’s Chief Executive Officer hereunder.
Executive shall not receive any additional compensation for his
service as a director during the term of his employment under this
Agreement.
3.
No Conflicting Commitments . During the Employment
Term, Executive shall devote substantially all of Executive’s
business time and efforts to the performance of Executive’s
duties hereunder. Executive may continue to serve on any
outside boards on which Executive currently serves. Executive
will not enter into any employment or consulting agreement which,
in the opinion of the Board, conflicts with the Company’s
interests or which might impair the performance of
Executive’s duties as an employee of the Company consistent
with the terms herein.
4.
Compensation and Benefits .
4.1
Base Salary . During the Employment Term, the Company
shall pay Executive for Executive’s services hereunder a base
salary at the annual rate of $395,000, payable in regular
installments in accordance with the Company’s usual payroll
practices.
4.2
Signing Bonus . A one-time signing bonus in the amount
of $85,000 shall be paid upon commencement of
employment.
4.3
Six Month Bonus . A one-time bonus of $98,750 is
payable after the completion of six months of continuous
employment.
4.4
2008 Performance Bonus . Executive shall be eligible
to receive a bonus based on achievement of measures to be
determined by the Company’s Compensation Committee for the
period of April 1, 2008 through December 31, 2008. The target bonus
shall be 50% of Executive’s base salary.
4.5
Annual Bonus . Commencing in calendar year 2009,
Executive shall be eligible to receive an annual bonus if measures
defined by the Company’s Compensation Committee are
achieved.
4.6
Compensation Review . Executive’s compensation
shall be reviewed by the Compensation Committee upon the completion
of one year of continuous employment.
4.7
Restricted Stock . Upon commencement of his
employment, Executive shall be granted 300,000 shares of restricted
common stock. These shares will vest 25% after one year of
employment and 1/48 per month thereafter. If, during the
vesting period, the Company is acquired in a transaction in which
the Company’s shareholders receive the equivalent of
$4.00/share or greater, these shares shall fully vest immediately
prior to completion of the acquisition transaction.
4.8
Options . Upon commencement of his employment,
Executive shall be granted an option to purchase 500,000 shares of
common stock at a price per share equal to the closing price of the
Company’s stock on Executive’s first day of
employment. These options will vest 25% after one year of
employment and 1/48 per month thereafter. These options will
expire after seven years.
4.9
Accelerated Vesting . Except for the accelerated
vesting of the restricted stock grant upon acquisition of the
Company at $4.00 per share or greater, as provided in paragraph 4.7
above, the restricted stock and stock option grants awarded in
accordance with paragraphs 4.7 and 4.8 above will be subject to
“double trigger” acceleration of vesting in the event
Executive’s employment is involuntarily terminated or
Executive resigns for Good Reason within one year after a Change of
Control. The definitions of Change of Control and Good Reason will
be the same as those used for grants previously made to other
Company executive officers. If the “double trigger”
conditions are met, Executive’s restricted stock grant will
fully vest and Executive’s stock option grant will vest as to
25% of the total shares if the conditions are met during
Executive’s first year of employment, as to 66% of the total
shares if the conditions are met during Executive’s second
year of employment, and as to 100% of the total shares if the
conditions are met during or after Executive’s third year of
employment
4.10
Executive Benefits . During the Employment Term and
subject to any contributions therefor generally required of senior
executives of the Company, Executive shall be entitled to receive
such employee benefits (including fringe benefits, 401(k) plan
participation, and life, health, dental, accident and short- and
long-term disability insurance) which the Company may, in its sole
and absolute discretion, make available generally to its senior
executives or personnel similarly situated; provided, however, that
it is hereby acknowledged and agreed that any such employee benefit
plans may be altered, modified or terminated by the Company at any
time in its sole discretion without recourse by
Executive.
4.11
Business Expenses and Perquisites . Upon delivery of
adequate documentation of expenses incurred in accordance with the
policies and practices of the Company, Executive shall be entitled
to reimbursement by the Company during the Employment Term for
reasonable travel, entertainment and other business expenses in
accordance with such policies as the Company may from time to time
have in effect.
4.12
Relocation Costs . Moving and relocation
expenses related to Executive’s relocation to Portland,
Oregon, including temporary living expenses in Portland and travel
costs to and from Florida, will be reimbursed up to a total of
$150,000. The commission paid on the sale of
Executive’s home in Florida will be an eligible expense but
any loss realized on the sale of the home will not be eligible for
reimbursement. Should Executive resign from the Company
during Executive’s first year of employment, Executive will
reimburse the Company for all moving expenses that were previously
paid to Executive.
4.13
Taxes . All of Executive’s compensation,
including, but not limited to the Base Salary, shall be subject to
withholding for all federal, state and local employment-related
taxes, including income, social security, and similar
taxes.
4.14
Severance. Executive shall be eligible for one-year
of salary continuation and other severance benefits in accordance
with the Company’s Executive Severance Plan.
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5.
Termination .
5.1.
Termination by the Company . The Board may terminate
Executive’s employment hereunder at any time with or without
cause to be effective immediately upon delivery of notice
thereof. The effective date of Executive’s termination
shall be referred to herein as the “Termination
Date.” If Executive’s employment is terminated by
the Company pursuant to this Section 5.1, the Company shall pay
Executive all amounts owed to Executive for work performed and PTO
earned in accordance with the Company’s policies prior to the
Termination Date.
5.2
Termination by Executive . Executive’s
employment hereunder may be terminated by Executive at any time
upon not less than ninety (90) days’ prior written notice
from Executive to the Company. Executive agrees that such
notice period is reasonable and necessary in light of the duties
assumed by Executive pursuant to this Agreement and fair in light
of the consideration Executive is receiving pursuant to this
Agreement. If Executive terminates Executive’s
employment with the Company pursuant to this Section 5.2, the
Company shall pay Executive only all amounts owed to Executive for
work performed prior to the Termination Date. In the event of
such notice by Executive, the Company may limit Executive’s
activities during the notice period or impose any other
restrictions it deems necessary and reasonable, including relieving
Executive of all duties during the notice period.
6.
Confidentiality . Executive understands that the
Company continually obtains and develops valuable proprietary and
confidential information concerning its business, business
relationships and financial affairs and contemporaneously herewith
he has entered into a Business Protection Agreement in the form
attached hereto as Exhibit A .
7.
Notices . Any notice hereunder by either Party to the
other shall be given in writing by personal delivery, facsimile,
overnight courier or certified mail, return receipt requested,
addressed, if to the Company, to the attention of the Board with a
copy to the General Counsel at the Company’s executive
offices or to such other address as the Company may designate in
writing at any time or from time to time to Executive, and if to
Executive, to Executive’s most recent address on file with
the Company. Notice shall be deemed given, if by personal
delivery or by overnight courier, on the date of such delivery or,
if by facsimile, on the business day following receipt of delivery
confirmation or, if by certified mail, on the date shown on the
applicable return receipt.
8.
Assignment . This Agreement may not be assigned by
either Party without the prior written consent of the other Party,
provided however that the Company may assign this Agreement without
Executive’s consent in the event of a Change in Control, as
such term is defined in the Company’s Executive Severance
Plan.
9.
Entire Agreement . This Agreement, and the
Company’s Policies and Procedures in effect and as amended
from time to time, constitute the entire agreement between the
Parties with respect to the subject matter hereof and there have
been no oral or other agreements of any kind whatsoever as a
condition precedent or inducement to the signing of this Agreement
or otherwise concerning this Agreement or the subject matter
hereof. To the extent there is any conflict between this
Agreement and the Company Policies and Procedures, this Agreement
shall prevail.
10.
Expenses . The Parties shall each pay their own
respective expenses incident to the enforcement or interpretation
of, or dispute resolution with respect to, this Agreement,
including all fees and expenses of their counsel for all activities
of such counsel undertaken pursuant to this Agreement.
11.
Governing Law . This Agreement (including any claim or
controversy arising out of or relating to this Agreement) shall be
governed by and construed in accordance with the laws of the State
of Oregon, without regard to conflict of law principles that would
result in the application of any law other than the laws of the
State of Oregon.
12.
Submission to Jurisdiction; Waiver . Each party
irrevocably agrees that any legal action or proceeding arising out
of or relating to this Agreement or for recognition and enforcement
of any judgment in respect hereof or thereof brought by another
party hereto or its successors or assigns may be brought and
determined in the courts of the State of Oregon and each party
hereby irrevocably submits with regard to any action or proceeding
for itself and in respect to its property, generally and
unconditionally, to the exclusive jurisdiction of the aforesaid
courts.
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13.
Waivers and Further Agreements . Any waiver of any
terms or conditions of this Agreement shall not operate as a waiver
of any other breach of such terms or conditions or any other term
or condition, nor shall any failure to enforce any provision hereof
operate as a waiver of such provision or of any other provision
hereof. Each of the Parties agrees to execute all such
further instruments and documents and to take all such further
action as the other Party may reasonably require in order to
effectuate the terms and purposes of this Agreement.
14.
Amendments . This Agreement may not be amended, nor
shall any waiver, change, modification, consent or discharge be
effected except by an instrument in writing executed by both
Parties.
15.
Severability . If any provision of this Agreement
shall be held or deemed to be, or shall in fact be, invalid,
inoperative or unenforceable as applied to any particular case in
any jurisdiction or jurisdictions, or in all jurisdictions or in
all cases, because of the conflict of any provision with any
constitution or statute or rule of public policy or for any other
reason, such circumstance shall not have the effect of rendering
the provision or provisions in question invalid, inoperative or
unenforceable in any other jurisdiction or in any other case or
circumstance or of rendering any other provision or provisions
herein contained invalid, inoperative or unenforceable to the
extent that such other provisions are not themselves actually in
conflict with such constitution, statute or rule of public policy,
but this Agreement shall be reformed and construed in any such
jurisdiction or case as if such invalid, inoperative or
unenforceable provision had never been contained herein and such
provision reformed so that it would be valid, operative and
enforceable to the maximum extent permitted in such jurisdiction or
in such case.
16.
Counterparts . This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
17.
Section Headings . The headings contained in this
Agreement are for reference purposes only and shall not in any way
affect the meaning or interpretation of this Agreement.
IN WITNESS
WHEREOF, the Parties have executed or caused to be executed this
Agreement as of the Effective Date.
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EXECUTIVE
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COMPANY
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InFocus
Corporation
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By
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/s/ Robert
O’Malley
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By
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/s/ Mark
Perry
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Robert
O’Malley
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Print Name:
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/s/ Mark
Perry
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Its:
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Interim Chief Financial
Officer
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