Exhibit 10(L)
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 Luis
Rivera (“ Employee ”).
RECITALS
WHEREAS, Employee is currently
employed by the Company, which develops software and services for
e-mail marketing, e-mail filtering and spam prevention (as the
Company currently conducts and does so during the term of this
Agreement, the “ Business ”);
WHEREAS, the Company is,
concurrently with the execution hereof, entering into a stock
purchase agreement with the Commodore Resources, Inc. a
Delaware corporation (“Commodore”), 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 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 President and Chief Executive Officer of
the Company and, in so doing, shall report to the Board of
Directors of the Company (the “ Board ”).
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 the Board.
(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 a minimum annual base salary per
calendar year of two hundred thousand dollars ($200,000) (“
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 upward 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)
Annual Bonus
. Employee shall be eligible
to receive an annual bonus (“ Annual Bonus ”) at
the end of each calendar year during the Employment Period in
accordance with the terms set forth on Schedule I
hereto.
(iii)
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 ”).
(iv)
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. The Company will pay any required
co-pay for health insurance for Employee and his family under the
Company’s health plan.
(v)
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.
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(vi)
Vacation and Holidays
. During the Employment
Period, Employee shall be entitled to a minimum of four weeks
vacation.
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 in 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
materially perform his obligations and duties hereunder to the
satisfaction of the Company, which failure is not remedied within
45 days after receipt of written notice from the Company;
(ii) commission by Employee of an act of fraud upon, or
willful gross 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 business 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 30 business 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,
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“Good Reason” shall mean any
material breach by the Company of any provision of this Agreement
and shall also include Company (or its successors and assigns)
substantially altering the position, geographic location, or
responsibilities of Employee during the Employment
Period.
(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 that
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 theretofore
paid;
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(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; 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 1.5 times the
Employee’s then current Annual Base 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 ,
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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.
6.
Confidential
Information .
(a)
Employee acknowledges that the
Company and its affiliates have trade, business and financial
secrets and other confidential and proprietary information
(collectively, the “ Confidential Information ”)
and that during the course of Employee’s employment with the
Company he has received, shall receive or shall contribute to the
Confidential Information. Confidential Information includes
technical
