Attached files
| file | filename |
|---|---|
| 10-K - FRANKLIN WIRELESS CORP FORM 10-K - FRANKLIN WIRELESS CORP | franklin_10k-063009.htm |
| EX-32 - CERTIFICATION - FRANKLIN WIRELESS CORP | franklin_10k-ex32.htm |
| EX-10.4 - CHANGE OF CONTROL AGREEMENT - NELSON - FRANKLIN WIRELESS CORP | franklin_10k-ex1004.htm |
| EX-10.5 - CHANGE OF CONTROL AGREEMENT - KIM - FRANKLIN WIRELESS CORP | franklin_10k-ex1005.htm |
| EX-31 - CERTIFICATION - FRANKLIN WIRELESS CORP | franklin_10k-ex3101.htm |
| EX-3.2 - AMENDED AND RESTATED BYLAWS - FRANKLIN WIRELESS CORP | franklin_10k-ex0302.htm |
EXHIBIT
10.3
5440
Morehouse Dr. Suite 1000, San Diego, CA 92121
November
7, 2008
Employment
Contract for Mr. OC Kim
Dear Mr.
OC Kim,
FRANKLIN WIRELESS CORP., a California
corporation ("Franklin"), is pleased to offer you a position of employment on
the following terms.
Position. You will serve as
President of Franklin and report to the Board of Franklin Wireless
Corp.
You will
be responsible for
|
|
-
|
Overall
Management
|
|
|
-
|
Overall
Operations
|
|
|
-
|
Sales
and Marketing
|
|
|
-
|
Spearheading
new investment sources and funding
opportunities
|
|
|
-
|
Company
strategy
|
|
|
-
|
Product
management
|
You will
work primarily out of our principal office located in San Diego, California. You
will be expected to travel as reasonably required by your duties. However,
Franklin will only reimburse you for your reasonable travel, entertainment,
business and other expenses that have been pre-approval by Franklin Board. Of
course, Franklin may change your position, duties and work location from time to
time, as it deems necessary.
Salary and Benefits. Your
compensation will be $12,500 per month, equivalent to $150,000 per year, less
payroll deductions and all required withholdings by Franklin. You will be paid
semi monthly and you will be eligible for standard benefits, such as medical
insurance, vacation, sick leave and holidays, according to standard Franklin
policy as may be adopted by Franklin from time to time. Franklin may modify
compensation and benefits from time to time, as it deems necessary. $700.00 per
month is allowed as car allowance during your stay in Franklin.
Bonus and Terms of Compensation.
The Company will use its reasonable efforts to implement a bonus
incentive program. You will be eligible to participate in this discretionary,
performance-based bonus program. This incentive will be tied to your specific
responsibilities and Franklin's performance and will be determined in the sole
discretion of the Board of Directors (the "Board").
Outside Activities. You are
expected to devote your full time professional attention and expertise to the
business of Franklin, and, as an exempt salaried employee, to work hours in
addition to Franklin's normal working hours as required by the nature of your
work assignments. Except with the prior written consent of the Board, you will
not during your employment with Franklin 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
employment duties
1
Regulations; Proprietary Information
and Inventions Agreement. As a Franklin employee, you will be expected to
abide by Franklin rules and regulations and sign and comply with a Proprietary
Information and Inventions Agreement, attached hereto as Exhibit A, which, among other
things, prohibits unauthorized use or disclosure of Franklin proprietary
information.
Employment Duration. Your
tenure as a President of Franklin shall be for a 2-year period. After a 2
year-period, both parties may decide on renewing the contract.
Integration; Documentation.
The employment terms in this letter, together with your Proprietary
Information and Inventions Agreement, supersede any other agreements or promises
made to you by anyone, whether oral or written. As required by law, this offer
is subject to satisfactory proof of your right to work in USA.
Please
sign and date this letter, and return it to me by September 7, 2008, if you wish
to accept employment at Franklin under the terms described above.
We look
forward to your favorable reply and to a productive and enjoyable work
relationship.
Sincerely,
On behalf
of Franklin Wireless Corp.
/s/ Gary W. Nelson
By: Gary
W. Nelson
Chairman
of the Board of Director
Franklin
Wireless Corp.
Accepted
by:
/s/ OC Kim
OC
Kim
Date
2
EXHIBIT A
EMPLOYEE
PROPRIETARY INFORMATION
AND
INVENTIONS AGREEMENT
EMPLOYEE
PROPRIETARY INFORMATION
AND
INVENTIONS AGREEMENT
In
consideration of my employment or continued employment by FRANKLIN, INC., a California corporation
(the "Company"), and the compensation now and
hereafter paid to me, I hereby agree as follows:
|
1.
|
NONDISCLOSURE
|
1.1 Recognition of Company's Rights;
Nondisclosure. At all times during my employment and thereafter, I will
hold in strictest confidence and will not disclose, use, lecture upon or publish
any of the Company's Proprietary Information (defined below), except as such
disclosure, use or publication may be required in connection with my work for
the Company, or unless an officer of the Company expressly authorizes such in
writing. I will obtain Company's written approval before publishing or
submitting for publication any material (written, verbal, or otherwise) that
relates to my work at Company and/or incorporates any Proprietary Information. I
hereby assign to the Company any rights I may have or acquire in such
Proprietary Information and recognize that all Proprietary Information shall be
the sole property of the Company and its assigns.
1.2 Proprietary Information.
The term "Proprietary
Information" shall mean any and all confidential and/or proprietary
knowledge, data or information of the Company. By way of illustration but not
limitation, "Proprietary
Information" includes (a) trade secrets, inventions, mask works, ideas,
processes, formulas, source and object codes, data, programs, other works of
authorship, know-how, improvements, discoveries, developments, designs and
techniques (hereinafter collectively referred to as "Inventions");
and (b) information regarding plans for research, development, new
products, marketing and selling, business plans, budgets and unpublished
financial statements, licenses, prices and costs, suppliers and customers; and
(c) information regarding the skills and compensation of other employees of the
Company. Notwithstanding the foregoing, it is understood that, at all such
times, I am free to use information which is generally known in the trade or
industry, which is not gained as result of a breach of this Agreement, and my
own skill, knowledge, know-how and experience to whatever extent and in
whichever way I wish.
1.3 Third Party Information. I understand, in addition, that the
Company has received and in the future will receive from third parties
confidential or proprietary information ("Third Party Information") subject to a duty on the Company's
part to maintain the confidentiality of such information and to use it only for
certain limited purposes. During the term of my employment and thereafter, I
will hold Third Party Information in the strictest confidence and will not
disclose to anyone (other than Company personnel who need to know such
information in connection with their work for the Company) or use, except in
connection with my work for the Company, Third Party Information unless
expressly authorized by an officer of the Company in writing.
1.4 No Improper Use of Information of
Prior Employers and Others. During my employment by the Company I will
not improperly use or disclose any confidential information or trade secrets, if
any, of any former employer or any other person to whom I have an obligation of
confidentiality, and I will not bring onto the premises of the Company any
unpublished documents or any property belonging to any former employer or any
other person to whom I have an obligation of confidentiality unless consented to
in writing by that former employer or person. I will use in the performance of
my duties only information which is generally known and used by persons with
training and experience comparable to my own, which is common knowledge in the
industry or otherwise legally in the public domain, or which is otherwise
provided or developed by the Company.
|
2.
|
ASSIGNMENT
OF INVENTIONS.
|
2.1 Proprietary Rights. The
term "Proprietary Rights"
shall mean all trade secret, patent, copyright, mask work and other
intellectual property rights throughout the world.
1
2.2 Prior Inventions. Inventions,
if any, patented or unpatented, which I made prior to the commencement of my
employment with the Company are excluded from the scope of this Agreement. To
preclude any possible uncertainty, I have set forth on Exhibit B
(Previous Inventions) attached hereto a complete list of all Inventions
that I have, alone or jointly with others, conceived, developed or reduced to
practice or caused to be conceived, developed or reduced to practice prior to
the commencement of my employment with the Company, that I consider to be my
property or the property of third parties and that I wish to have excluded from
the scope of this Agreement (collectively referred to as "Prior Inventions"). If
disclosure of any such Prior Invention would cause me to violate any prior
confidentiality agreement, I understand that I am not to list such Prior
Inventions in Exhibit B
but am only to disclose a cursory name for each such invention, a listing
of the party(ies) to whom it belongs and the fact that full disclosure as to
such inventions has not been made for that reason. A space is provided on Exhibit B
for such purpose. If no such disclosure is attached, I represent that
there are no Prior Inventions. If, in the course of my employment with the
Company, I incorporate a Prior Invention into a Company product, process or
machine, the Company is hereby granted and shall have a nonexclusive,
royalty-free, irrevocable, perpetual, worldwide license (with rights to
sublicense through multiple tiers of sublicensees) to make, have made, modify,
use and sell such Prior Invention. Notwithstanding the foregoing, I agree that I
will not incorporate, or permit to be incorporated, Prior Inventions in any
Company Inventions without the Company's prior written consent.
2.3 Assignment of Inventions.
Subject to Sections 2.4, and 2.6, I hereby assign and agree to assign in
the future (when any such Inventions or Proprietary Rights are first reduced to
practice or first fixed in a tangible medium, as applicable) to the Company all
my right, title and interest in and to any and all Inventions (and all
Proprietary Rights with respect thereto) whether or not patentable or
registrable under copyright or similar statutes, made or conceived or reduced to
practice or learned by me, either alone or jointly with others, during the
period of my employment with the Company. Inventions assigned to the Company, or
to a third party as directed by the Company pursuant to this Section 2, are
hereinafter referred to as "Company
Inventions."
2.4 Nonassignable Inventions.
This Agreement does not apply to an Invention which qualifies fully as a
nonassignable Invention under Section 2870 of the California Labor
Code (hereinafter "Section
2870"). I have reviewed the
notification on Exhibit A
(Limited Exclusion Notification) and agree that my signature acknowledges
receipt of the notification.
2.5 Obligation to
Keep Company Informed. During the period of my employment and
for six (6) months after termination of my employment with the Company, I will
promptly disclose to the Company fully and in writing all Inventions authored,
conceived or reduced to practice by me, either alone or jointly with others. In
addition, I will promptly disclose to the Company all patent applications filed
by me or on my behalf within a year after termination of employment. At the time
of each such disclosure, I will advise the Company in writing of any Inventions
that I believe fully qualify for protection under Section 2870; and I will at that time provide to the
Company in writing all evidence necessary to substantiate that belief. The
Company will keep in confidence and will not use for any purpose or disclose to
third parties without my consent any confidential information disclosed in
writing to the Company pursuant to this Agreement relating to Inventions that
qualify fully for protection under the provisions of Section 2870. I will preserve the confidentiality of
any Invention that does not fully qualify for protection under Section
2870.
2.6 Government or Third Party. I also agree to assign all my right,
title and interest in and to any particular Company Invention to a third party,
including without limitation the United States, as directed by the
Company.
2.7 Works for Hire. I acknowledge
that all original works of authorship which are made by me (solely or jointly
with others) within the scope of my employment and which are protectable by
copyright are "works made for hire," pursuant to United States Copyright Act
(17 U.S.C., Section
101).
2
2.8 Enforcement of Proprietary
Rights. I will assist the Company in every proper way to obtain, and from
time to time enforce, United States and foreign Proprietary Rights relating to
Company Inventions in any and all countries. To that end I will execute, verify
and deliver such documents and perform such other acts (including appearances as
a witness) as the Company may reasonably request for use in applying for,
obtaining, perfecting, evidencing, sustaining and enforcing such Proprietary
Rights and the assignment thereof. In addition, I will execute, verify and
deliver assignments of such Proprietary Rights to the Company or its designee.
My obligation to assist the Company with respect to Proprietary Rights relating
to such Company Inventions in any and all countries shall continue beyond the
termination of my employment, but the Company shall compensate me at a
reasonable rate after my termination for the time actually spent by me at the
Company's request on such assistance.
In the
event the Company is unable for any reason, after reasonable effort, to secure
my signature on any document needed in connection with the actions specified in
the preceding paragraph, I hereby irrevocably designate and appoint the Company
and its duly authorized officers and agents as my agent and attorney in fact,
which appointment is coupled with an interest, to act for and in my behalf to
execute, verify and file any such documents and to do all other lawfully
permitted acts to further the purposes of the preceding paragraph with the same
legal force and effect as if executed by me. I hereby waive and quitclaim to the
Company any and all claims, of any nature whatsoever, which I now or may
hereafter have for infringement of any Proprietary Rights assigned hereunder to
the Company.
3. RECORDS. I agree to keep and maintain
adequate and current records (in the form of notes, sketches, drawings and in
any other form that may be required by the Company) of all Proprietary
Information developed by me and all Inventions made by me during the period of
my employment at the Company, which records shall be available to and remain the
sole property of the Company at all times.
4. ADDITIONAL
ACTIVITIES. I
agree that during the period of my employment by the Company I will not, without
the Company's express written consent, engage in any employment or business
activity which is competitive with, or would otherwise conflict with, my
employment by the Company. I agree further that for the period of my employment
by the Company and for one (1) year after the date of termination of my
employment by the Company I will not, either directly or through others, solicit
or attempt to solicit any employee, independent contractor or consultant of the
company to terminate his or her relationship with the Company in order to become
an employee, consultant or independent contractor to or for any other person or
entity.
5. NO CONFLICTING
OBLIGATION. I
represent that my performance of all the terms of this Agreement and as
an employee of the Company does not and will not breach any agreement to keep in
confidence information acquired by me in confidence or in trust prior to my
employment by the Company. I have not entered into, and I agree I will not enter
into, any agreement either written or oral in conflict herewith.
6. RETURN OF COMPANY
DOCUMENTS. When I leave the employ of
the Company, I will deliver to the Company any and all drawings, notes,
memoranda, specifications, devices, formulas, and documents, together with all
copies thereof, and any other material containing or disclosing any Company
Inventions, Third Party Information or Proprietary Information of the Company. I
further agree that any property situated on the Company's premises and owned by
the Company, including disks and other storage media, filing cabinets or other
work areas, is subject to inspection by Company personnel at any time with or
without notice. Prior to leaving, I will cooperate with the Company in
completing and signing the Company's termination statement.
7. LEGAL AND EQUITABLE
REMEDIES. Because my services are
personal and unique and because I may have access to and become acquainted with
the Proprietary Information of the Company, the Company shall have the right to
enforce this Agreement and any of its provisions by injunction, specific
performance or other equitable relief, without bond and without prejudice to any
other rights and remedies that the Company may have for a breach of this
Agreement.
8. NOTICES. Any notices required or
permitted hereunder shall be given to the appropriate party at the address
specified below or at such other address as the. party
shall specify in writing. Such notice shall be deemed given upon personal
delivery
3
EXHIBIT
A
LIMITED
EXCLUSION NOTIFICATION
THIS IS TO NOTIFY you in
accordance with Section 2872 of the California Labor Code that the foregoing
Agreement between you and the Company does not require you to assign or offer to
assign to the Company any invention that you developed entirely on your own time
without using the Company's equipment, supplies, facilities or trade secret
information except for those inventions that either:
1. Relate
at the time of conception or reduction to practice of the invention to the
Company's business, or actual or demonstrably anticipated research or
development of the Company; or
2. Result
from any work performed by you for the Company.
To the
extent a provision in the foregoing Agreement purports to require you to assign
an invention otherwise excluded from the preceding paragraph, the provision is
against the public policy of this state and is unenforceable.
This
limited exclusion does not apply to any patent or invention covered by a
contract between the Company and the United States or any of its agencies
requiring full title to such patent or invention to be in the United
States.
I
ACKNOWLEDGE RECEIPT of a copy of this notification.
|
By:
|
/s/ OC Kim
(Signature)
|
||
|
By:
|
OC
Kim
(Printed
Name of Employee)
|
||
| Date: |
|
WITNESSED
BY:
|
By:
|
/s/ Gary W. Nelson
(Signature)
|
|
| Name: |
Gary W. Nelson
(Printed
Name of Representative)
|
|
A-1
to the
appropriate address or if sent by certified or registered mail, three (3) days
after the date of mailing.
9.
NOTIFICATION OF NEW
EMPLOYER. In
the event that I leave the employ of the Company, I hereby consent to the
notification of my new employer of my rights and obligations under this
Agreement.
10. GENERAL
PROVISIONS.
10.1 Governing Law; Consent to
Personal Jurisdiction. This Agreement will be governed by and construed
according to the laws of the State of California, as such laws are applied to
agreements entered into and to be performed entirely within California between
California residents. I hereby expressly consent to the personal jurisdiction of
the state and federal courts located in San Diego County, California for any
lawsuit filed there against me by Company arising from or related to this
Agreement.
10.2 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, geographical 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.
10.3 Successors and Assigns.
This Agreement will be binding upon my heirs, executors, administrators
and other legal representatives and will be for the benefit of the Company, its
successors, and its assigns.
10.4 Survival. The provisions
of this Agreement shall survive the termination of my employment and the
assignment of this Agreement by the Company to any successor in interest or
other assignee.
10.5 Employment. I agree and
understand that nothing in this Agreement shall confer any right with respect to
continuation of employment by the Company, nor shall it interfere in any way
with my right or the Company's right to terminate my employment at any time,
with or without cause.
10.6 Waiver. No waiver by the
Company of any breach of this Agreement shall be a waiver of any preceding or
succeeding breach. No waiver by the Company of any right under this Agreement
shall be construed as a waiver of any other right. The Company shall not be
required to give notice to enforce strict adherence to all terms of this
Agreement.
10.7 Entire Agreement. The
obligations pursuant to Sections 1 and 2 of this Agreement shall apply to any
time during which I was previously employed, or am in the future employed, by
the Company as a consultant if no other agreement governs nondisclosure and
assignment of inventions during such period. This Agreement is the final,
complete and exclusive agreement of the parties with respect to the subject
matter hereof and supersedes and merges all prior discussions between us. No
modification of or amendment to this Agreement, nor any waiver of any rights
under this Agreement, will be effective unless in writing and signed by the
party to be charged. Any subsequent change or changes in my duties, salary or
compensation will not affect the validity or scope of this
Agreement.
This Agreement shall be effective as of the first day of my employment with the
Company, namely: Sept
, 2001.
I
HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE COMPLETELY
FILLED OUT EXHIBIT B TO THIS AGREEMENT.
Dated:
| /s/ OC Kim
(Signature)
|
||
| OC
Kim
(Printed
Name)
|
ACCEPTED
AND AGREED TO:
|
FRANKLIN
WIRELESS CORP.
|
||
|
By:
|
/s/ Gary W. Nelson
|
|
| Name: |
Gary W. Nelson
|
|
| Title: | Chairman of Board | |
5440 Morehouse Drive. #1000
San
Diego, CA 92121
Dated:
4