Exhibit 10(t)


 


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 Jason Han (“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 (5th)
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 Director of Sales Operations of the Company and, in so doing, shall
report to the 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 the
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 Seventy Thousand dollars ($70,000) (“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)                                  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. Employee is also eligible for sales commissions as set forth in
Schedule I.


 


(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-tem 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.


 


(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 Period, Employee shall be entitled to vacation and holidays in
accordance with the policies of the Company


 


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 way
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: (1) 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 of Good Reason unless (i) Employee has
given the Company at lease 30 day’s prior written notice of his intent to
terminate his employment for Good Reason, which notice shall specify the facts
and circumstances constituting Good


 


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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.


 


(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.                                      Obligation
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 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
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;


 


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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 accured
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 employement 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 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 employement 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
(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 information, processes and compilations of information,
records, specifications and information concerning assets, and information
regarding methods of doing business. As defined herein, Confidential
Information shall not include (i) information that is publicly and generally
known to other persons or entities who can obtain economic value from its
disclosure or use; provided that, such information has not been made
publicly and generally known by Employee in violation of this Agreement or, to
the knowledge of Employee, by others in violation of comparable agreements, and
(ii) information required to be disclosed by Employee pursuant to a subpoena or
court order, or pursuant to a requirement of a governmental agency or law of
the United States of America or a state thereof or any governmental or
political subdivision thereof; provided, however, that Employee shall
take all reasonable steps to prohibit disclosure pursuant to clause (ii)
above.


 


(b)                                 During
and following Employee’s employment by the Company, Employee agrees (i) to hold
such Confidential Information in confidence and (ii) not to release such
information to any person (other than Company employees and other persons to
whom the Company has authorized Employee to disclose such information and then
only to the extent that such Company employees and other persons authorized by
the Company have a need for such knowledge). Employee agrees to use reasonable
efforts to give the Company notice of any and all attempts to compel disclosure
of any Confidential Information, in such a manner so as to provide the Company
with written notice at least five days before disclosure or within one business
day after Employee is informed that such disclosure is being or shall be
compelled, whichever is earlier. Such written notice shall include a
description of the information to be disclosed, the court, government agency,
or other forum through which the disclosure is sought, and the date by which
the information is to be disclosed, and shall contain a copy of the subpoena,
order or other process used to compel disclosure.


 


(c)                                  Employee
further agrees not to use any Confidential Information for the benefit of any
person or entity other than the Company.


 


7.                                      Intellectual
Property Rights; Surrender of Materials Upon Termination.


 


(a)                                  In
consideration of the Company’s agreement to employ Employee and the receipt by
Employee of the Confidential Information, Employee hereby assigns to the
Company all his right, title and interest in all Intellectual Property (as
defined below) that Employee makes or conceives, whether as a sole inventor or
author or as a joint inventor or author whether made within or outside working
hours or upon the premises of the Company or elsewhere, as work for hire or
otherwise, at any time during his employment with the Company or its affiliates
(including prior to the Effective Date). “Intellectual Property” means
any information of a technical and or business nature such as ideas,
discoveries, inventions, trade secrets, know-how, and writings and other works
of authorship that relate in any manner to the actual or anticipated business
or research and development of the Company and its affiliates.


 


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During and subsequent to Employee’s employment, upon the request and at
the expense of the Company or its nominee and for no additional personal
remuneration, Employee agrees to execute any instrument that the Company
considers necessary to secure or maintain for the benefit of the Company
adequate patent, copyright, trademark and other property rights in the United
States and all foreign countries with respect to any Intellectual Property.
Employee also agrees to assist the Company as required to draft said
instruments and to obtain and enforce such rights. Employee agrees to promptly
disclose to the Company and Intellectual Property when conceived or made by
Employee, in whole or in part, and to make and maintain adequate and current
records thereof.


 


(b)                                 Employee
agrees that all Confidential Information and other files, documents, materials,
records, customer lists, business proposals, contracts, agreements and other
repositories containing information concerting the Company or the business of
the Company, in whatever form, tangible or intangible (including all copies
thereof), that Employee shall prepare, or use, or be provided with as a result
of his employment with the Company, shall be and remain the sole property of
the Company. Upon termination of Employee’s employment hereunder, Employee
agrees that all Confidential Information and other files, documents, materials,
records, customer lists, business proposals, contracts, agreements and other
repositories containing information concerning the Company or the business of
the Company (including all copies thereof) in Employee’s possession, custody or
control, whether prepared by Employee or others, shall remain with or be
returned to the Company promptly (within 24 hours) after the Date of
Termination. The materials required to be returned pursuant to this Section
7 shall not include personal correspondence that does not relate to the
Company or the business of the Company.


 


8.                                      Successors.


 


(a)                                  This
Agreement is personal to Employee and without the prior written consent of the
Company shall not be assignable by Employee otherwise than by will or the laws
of descent and distribution. This Agreement shall inure to the benefit of and
be enforceable by Employee’s legal representatives.


 


(b)                                 This
Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns. Employee agrees that the Company may assign this
Agreement to any directly or indirectly owned subsidiary or affiliate of the
Company, in which event “Company” as used in this Agreement shall
thereafter mean such subsidiary or affiliate (except where reference is made to
benefit plans that are maintained by the Company, in which event the Company shall
remain obligated with respect thereto under this Agreement), and in connection
with such assignment, such subsidiary shall expressly assume this Agreement and
the Company shall be released therefrom except to the extent referenced above.


 


(c)                                  The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. As used in this
Agreement, “Company” shall mean the Company as


 


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hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.


 


9.                                      Non-Competition;
Non-Solicitation.


 


(a)                                  During
his employment by the Company, including the Employment Period, Employee shall
have access to and become acquainted with Confidential Information of the
Company as described in Section 6. Employee acknowledges and agrees that
his use of Confidential Information in the conduct of business on behalf of a
competitor of the Company would constitute unfair competition with the Company
and would adversely affect the business goodwill of the Company. Accordingly,
as a material inducement to the Company to enter into this Agreement; to
protect the Company’s Confidential Information that may be disclosed or
entrusted to Employee (the disclosure of which by Employee in violation of this
Agreement would adversely affect the business goodwill of the Company), the
business goodwill of the Company that may be developed in Employee and the
business opportunities that may be disclosed or entrusted to Employee by the
Company; in consideration for the compensation and other benefits payable
hereunder to Employee, for the benefits to Employee of having access to
Confidential Information during the Employment Period (the disclosure of which
by Employee in violation of this Agreement would adversely affect the business
goodwill of the Company); and for other good and valuable consideration,
Employee hereby covenants and agrees that, during the Term of Non-Competition,
Employee shall not, directly or indirectly, individually or as an officer,
director, manager, employee, shareholder, consultant, contractor, partner,
member, joint venturer, agent, equity owner or in any capacity whatsoever.


 


(i)                                     own,
engage in, manage, operate, join, control, be employed by, provide Competing
Services to, or participate in the ownership, management, operation or control
of or provision of Competing Services to, a Competing Business operating in the
Geographic Area;


 


(ii)                                  recruit,
hire, assist in hiring, attempt to hire, or contact or solicit with respect to
hiring any person who, at any time during the 12 month period ending on the
Date of Termination, was an employee of the Company or its affiliates;


 


(iii)                               induce
or attempt to induce any employee of the Company or its affiliates to
terminate, or in any way interfere with, the relationship between such parties
and any employee thereof; or


 


(iv)                              induce
or attempt to induce any customer, client, supplier, service provider, or other
business relation of the Company or its affiliates in the Geographic Area to
cease doing business with such parties, or in any way interfere with the
relationship between such parties and any such person.


 


Notwithstanding the foregoing, the Company agrees that Employee may own
less than five percent of the outstanding voting securities of any publicly
traded company that is a Competing Business so long as Employee does not
otherwise participate in such competing business in any way prohibited by this Section
9.


 


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(b)                                 Employee
acknowledges that the geographic boundaries, scope of prohibited activities,
and time duration of the preceding paragraphs in this Section 9
(including the defined terms for “Competing Business,” “Competing
Services,” “Geographic Area,” and “Term of Non-Competition”
set forth in Section 9(c)) are reasonable in nature and are no broader
than are necessary to maintain the goodwill of the Company and the
confidentiality of its Confidential Information and to protect the goodwill and
other legitimate business interests of the Company, and also that the
enforcement of such covenants would not cause Employee any undue hardship or
unreasonably interfere with Employee’s ability to earn a livelihood. If
Employee violates the covenants and restrictions in this Section 9 and
the Company brings legal action for injunctive or other equitable relief,
Employee agrees that the Company shall not be deprived of the benefit of the
full period of the restrictive covenant, as a result of the time involved in
obtaining such relief. Accordingly, Employee agrees that the provisions in this
Section 9 shall have a duration determined pursuant to Section 9(a),
computed from the date the legal or equitable relief is granted.


 


(c)                                  As
used in this Agreement:


 


(i)                                     “Competing
Business” means any service or product of any person or organization other
than the Company or its affiliates in existence or then under development, that
competes or could potentially compete, directly or indirectly, with any service
or product of the Company or its affiliates. Competing Business includes, but
is not limited to, any enterprise engaged in the development or marketing of
software and services for e-mail marketing and publishing, e-mail filtering and
spam prevention.


 


(ii)                                  “Competing
Services” means services that, if provided to a business other than a
Competing Business, would constitute the conduct of a Competing Business.


 


(iii)                               “Geographic
Area” means the United States.


 


(iv)                              “Term
of Non-Competition” means the period of time beginning on the date hereof
and continuing until (A) if his Agreement is terminated during the Employment
Period by either the Company for Cause or Employee without Good Reason, two
years after the Date of Termination, (B) if this Agreement is terminated during
the Employment Period by either the Company without Cause or Employee for Good
Reason, one year after the Date of Termination, or (C) if the Employment Period
expires by reason of a Non-Renewal Notice, one year after the last day of the
Employment period.


 


(d)                                 If
any court or arbitrator determines that any portion of this Section 9 is
invalid or unenforceable, the remainder of this Section 9 shall not
thereby be affected and shall be given full effect without regard to the
invalid or unenforceable provisions. If any court or arbitrator construes any
of the provisions of this Section 9 to be invalid or unenforceable
because of the duration or scope of such provision, such court or arbitrator
shall be required to reduce the duration or scope of such provision, to the
minimum extent necessary so as to be enforceable, and to enforce such
provisions as so reduced.


 


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10.                               Non-Disparagement.
Employee agrees to refrain from engaging in any conduct, or making any
comments or statements, during the Employment Period and thereafter, that have
the purpose or effect of harming the reputation or goodwill of the Company or
its affiliates.


 


11.                               Miscellaneous.


 


(a)                                  Construction.
This Agreement shall be governed by and construed in accordance with the laws
of the State of Delaware without reference to principles of conflict of laws.
The captions of this Agreement are not part of the provisions hereof and shall
have no force or effect. Whenever the terms “hereof”, “hereby”, “herein”, or
words of similar import are used in this Agreement they shall be construed as
referring to this Agreement in its entirety rather than to a particular section
or provision, unless the context specifically indicates to the contrary. Any
reference to a particular “Section” or “paragraph” shall be construed as
referring to the indicated section or paragraph of this Agreement unless the
context indicates to the contrary. The use of the term “including” herein shall
be construed as meaning “including without limitation.” This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.


 


(b)                                 Notices.
All notices and other communications hereunder shall be in writing and shall be
given by band delivery to the other party or by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:


 


	
  If to Employee:

  	
  Jasen Han

  	
   

  
	
   

  	
  42 Homeylen Lane

  	
   

  
	
   

  	
  Oakland, CA 94611

  	
   

  
	
   

  	
   

  
	
  If to the Company:

  	
  Lyris Technologies, Inc.

  	
   

  
	
   

  	
  2070 Allston Way, Suite 200

  	
   

  
	
   

  	
  Berkeley, CA 94704

  	
   

  
	
   

  	
   

  
	
  With a copy to:

  	
  Vinson & Elkins L.L.P.

  
	
   

  	
  3700 Trammell Crow Center

  
	
   

  	
  2001 Ross Avenue

  
	
   

  	
  Dallas, Texas 75201

  
	
   

  	
  Attention: Michael D. Wortley

  



 


or to such other address as either party shall have furnished to the
other in writing in accordance herewith. Notice and communications shall be
effective when actually received by the addressee.


 


(c)                                  Severability.
If any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future laws effective during the term of this
Agreement, such provision shall be fully severable; this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a portion of this Agreement; and the remaining provisions
of this Agreement shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its


 


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severance from this Agreement. Furthermore, in lieu of such illegal,
invalid or unenforceable provision there shall be added automatically as part
of this Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.


 


(d)                               Withholding.
The Company may withhold from any amounts payable under this Agreement such
Federal, state or local taxes as shall be required to be withheld pursuant to
any applicable law or regulation.


 


(e)                                  No
Waiver. Employee’s or the Company’s failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right Employee or the Company may have hereunder, including, without
limitation, the right of Employee to terminate employment for Good Reason,
shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.


 


(f)                                    Equitable
and Other Relief. Employee acknowledges that money damages would be both
incalculable and an insufficient remedy for a breach of Section 6, Section
7, Section 9, or Section 10 by Employee and that any such
breach would cause the Company irreparable harm. Accordingly, the Company, in
addition to any other remedies at law or in equity it may have, shall be
entitled, without the requirement of posting of bond or other accurity, to
equitable relief, including injunctive relief and specific performance, in
connection with a breach of Section 6, Section 7, Section 9
or Section 10 by Employee.


 


(g)                                 Entire
Agreement. The provisions of this Agreement constitute the complete
understanding and agreement between the parties with respect to the subject
matter hereof, and supersede all prior and contemporaneous oral and written
agreements, representations and understandings of the parties, which are hereby
terminated. Employee and the Company acknowledge and represent that there are
no other promises, terms, conditions or representations (oral or written)
regarding any matter relevant hereto.


 


(h)                                 Counterparts.
This Agreement may be executed in two or more counterparts.


 


(i)                                     Arbitration.


 


(i)                                     In
the event any dispute or controversy arises under this Agreement and is not
resolved by mutual written agreement between Employee and the Company within 30
days after notice of the dispute is first given, then Employee and the Company
will mutually select an arbitrator and submit such dispute or controversy to
arbitration by such arbitrator; provided, however, if the Company
and Empoyee have not mutually selected an arbitrator within 90 days after
notice of the dispute is first given, or if Employee and the Company decide at
any earlier date not to mutually select an arbitrator, then, upon the written
request of Employee or the Company, such dispute or controversy shall be
submitted to arbitration by an arbitrator to be selected by the American
Arbitration Association (“AAA”). The arbitration will be conducted in
accordance with the Rules for Resolution of Employment Disputes of the AAA.
Judgment may be entered thereon and the results of the arbitration will be
binding and conclusive on the parties hereto. Any arbitrator’s award or finding
or any judgment


 


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or verdict thereon will be
final and unappealable. All parties agree that venue for arbitration will be in
Alameda County, California, or such other place as may be agreed upon in
writing at the time by the parties and that any arbitration commenced in any
other venue will be transferred to Alameda County, California, upon the written
request of any party to this Agreement. All arbitrations will have one
individual acting as arbitrator. Any arbitrator selected will not be
affiliated, associated or related to either Employee of the Company in any
matter whatsoever. The decision of the arbitrator will be binding on all
parties. The prevailing party in the arbitration (as determined by the
arbitrator) shall be reimbursed, by the other party, its reasonable attorneys
fees, costs and other expenses pertaining to any such arbitration and
enforcement.


 


(ii)                                  THE
ARBITRATOR SHALL HAVE NO AUTHORITY TO AWARD PUNITIVE DAMAGES UNDER ANY
CIRCUMSTANCES (WHETHER IT BE EXEMPLARY DAMAGES, TREBLE DAMAGES, OR ANY OTHER
PENALTY OR PUNITIVE TYPE OF DAMAGES). REGARDLESS OF WHETHER SUCH DAMAGES MAY BE
AVAILABLE UNDER DELAWARE LAW, EMPLOYEE AND THE COMPANY EACH HEREBY WAIVE THE
RIGHT, IF ANY, TO RECOVER PUNITIVE DAMAGES IN CONNECTION WITH ANY CLAIMS.
EMPLOYEE AND THE COMPANY ACKNOWLEDGE THAT BY SIGNING THIS AGREEMENT EMPLOYEE
AND THE COMPANY ARE WAIVING ANY RIGHT THAT EMPLOYEE OR THE COMPANY MAY HAVE TO
A JURY TRIAL.


 


(j)                                     Survival,
Sections 4, 5, 6, 7, 8, 9, and 10
of this Agreement shall survive the termination of Employee’s employment.


 


(k)                                  Amendments.
This Agreement may not be amended or modified at any time except by a written
instrument executed by the Company and Employee.


 


(l)                                     Effectiveness.
If the Effective Date has not occured by                   ,
2005, this Agreement shall be null and void and of no force or effect.


 


(m)                               Employee
Acknowledgment. Employee acknowledges that he has read and understands this
Agreement, is fully aware of its legal effect, has not acted in reliance upon
any representations or promises made by the Company other than those contained
in writing herein, and has entered into this Agreement freely based on his own
judgment.


 


[SIGNATURE PAGE FOLLOWS]


 


12

















 


SCHEDULE 1


 


Annual Bonus


 


1. Profit Sharing Bonus


 


Company shall pay to Employee a bonus based on the profitability of the
Company as set forth below:


 


•                  Bonus will be
paid quarterly within 30 days after the end fiscal quarter for the Company


 


•                  Bonus will be
based on Company accomplishing its “Profit Target” for such quarter.


 


Profit Target for the quarter ended June 30, 2005 shall be
$1,250,000.00,


 


Profit Target for the quarter ended September 30, 2005 shall be
$1,500,000.00,


 


Profit Target for the quarter ended December 31, 2005 shall be
$1,500,000.00,


 


Profit Target for the quarter ended March 31, 2006 shall be
$1,750,000.00,


 


If Company accomplished its Profit Target for a quarter, Employees
shall be entitled to a bonus equal to $2,635 for the June 30, 2005 quarter,
bonus equal to $ 2,625 for the September 30, 2005 quarter, bonus equal to
$2,625 for the December 31, 2005 quarter and bonus equal to and bonus equal to
$2,625 for the March 31, 2006.


 


If the Company does not accomplish its Profit Target in a quarter but
exceeds its Profit Target in a subsequent quarter, the Profit Sharing Bonus can
be increased pro rata by an amount sufficient to make up for a shortfall in a
prior quarter. For the four quarters ended March 31, 2006, if the Profit Target
equals $6,000,000 the full Profit Sharing Bonus of $10,500 will be paid.


 


2. Incentive Bonus


 


Once each quarter, Employee shall be eligible to receive a merit bonus
based on mutually areed goals between the Employee and President and Chief
Executive Officer.


 


3. Sales Commissions


 


Employee shall be eligible to receive sales commissions based on
mutually agreed terms between the Employee and President and Chief Executive
Officer.


 

















 


IN WITNESS WHEREOF, Employee has hereunto set Employee’s hand and the
Company has caused this Agreement to be executed in its name on its behalf, all
as of the day and year first above written.


 


 


	
   

  	
  EMPLOYEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Jason Han

  
	
   

  	
  Jason Han

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  LYRIS TECHNOLOGIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Luis Rivera

  
	
   

  	
  Name:

  	
  Luis Rivera

  
	
   

  	
  Title:

  	
  President

  



 


 


[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT]