ex101.htm


    

     

    
 

     

    Executive
      Services
      Agreement

     

    December
      26, 2007

     

    Mr.
      Tom
      Paulsen, Non-Executive Chairman eMagin Corporation

    10500
      NE
      8th
Street,
      Suite
      1400

    Bellevue,
      WA 98004

     

    Dear
      Tom:

     

    Tatum,
      LLC (“Tatum,” “we,” or “us”) is pleased that eMagin Corporation (the “Company,”
“you” or “your”) desires to employ Mike Fowler, a member of Tatum (the
“Employee”), to serve as the interim Chief Financial Officer of the Company.
      This letter along with the terms and conditions attached as Exhibit A and any
      other exhibits or schedules attached hereto (collectively, the “Agreement”)
      confirms our mutual understanding of the terms and conditions upon which we
      will
      make available to you the Employee and Tatum’s intellectual capital to the
      Employee for use in connection with the Employee’s employment relationship with
      you.

     

    Effective
      as of December 27, 2007, the Employee will become your employee serving in
      the
      capacity set forth above and, if applicable, a duly elected or appointed officer
      of the Company. The Employee will work on a full-time basis and be subject
      to
      the supervision, direction and control of and report directly to the Company’s
      management. While the Employee will remain a member of Tatum and have access
      to
      Tatum’s intellectual capital to be used in connection with the Employee’s
      employment relationship with you, we will have no supervision, direction or
      control over the Employee with respect to the services provided by the Employee
      to you.

     

    You
      will
      pay directly to the Employee a salary of $24,500 a month (“Salary”). In
      addition, you will reimburse the Employee for out-of-pocket expenses incurred
      by
      the Employee to the same extent that you reimburse other senior managers for
      such expenses. Such reimbursable expenses will include, but not be limited
      to,
      mileage reimbursement at the IRS published rate in effect at the time of travel
      between Portland, Oregon and Bellevue, Washington, reasonable lodging while
      working outside of the greater Portland, Oregon area, and a per diem of $40
      while working outside of the greater Portland, Oregon area. In addition, you
      will pay directly to Tatum a fee of $10,500 a month (“Fees”). The parties
      acknowledge and agree that the Salary and Fees set forth above are based upon
      this Agreement having a minimum term of three months (the “Minimum Term”). In
      the event you terminate this Agreement prior to the expiration of the Minimum
      Term other than for the Employee’s material failure to perform the obligations
      of his or her position with the Company, provided the Employee fails to cure
      such breach within 10 days after receipt of written notice of such breach,
      you
      agree that the Salary shall be retroactively increased to $1,750 a day and
      the
      Fees shall be retroactively increased to $750 a day. You agree to pay upon
      the
      termination of this Agreement a lump sum amount (i) to the Employee equal to
      the
      difference between the Salary actually paid and the Salary that should have
      been
      paid taking into account the retroactive adjustment, and (ii) to Tatum equal
      to
      the difference between the Fees actually paid and the Fees that should have
      been
      paid taking into account the retroactive adjustment.

     

    Payments
      to the Employee shall be made in accordance with the Company’s standard payroll
      and expense reimbursement policies. Payments to Tatum should be made in
      accordance with the instructions set forth on Exhibit A at the same time
      payments are made to the Employee.

     

     

    
      
        
        

      

      
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    Except
      as
      specifically provided for herein, you will have no obligation to provide the
      Employee with any health insurance benefits or equity or cash bonuses. In lieu
      of the Employee participating in the Company-sponsored employee health insurance
      plans, the Employee will remain on his or her current health insurance
      plans.

     

    As
      an
      employee, the Employee will be eligible for any Company employee retirement
      and/or 401(k) plan and for vacation and holidays consistent with the Company’s
      policy as it applies to senior management. The Employee will be exempt from
      any
      delay periods otherwise required for vacation and holiday
      eligibility.

     

    You
      will
      have the opportunity to make the Employee a permanent, full-time member of
      Company management at any time during the term of this Agreement by entering
      into another form of Tatum agreement, the terms of which will be negotiated
      at
      such time.

     

    As
      a
      condition to providing the services hereunder, we require a security deposit
      in
      an amount equal to $35,000 (the “Deposit”), which will only be used by us under
      the limited circumstances described on Exhibit A. The Deposit is due upon the
      execution of this Agreement.

     

    The
      Company will provide Tatum or the Employee with written evidence that the
      Company maintains directors’ and officers’ insurance covering the Employee in an
      amount reasonably acceptable to the Employee at no additional cost to the
      Employee, and the Company will maintain such insurance at all times while this
      Agreement remains in effect. Furthermore, the Company will maintain such
      insurance coverage with respect to occurrences arising during the term of this
      Agreement for at least three years following the termination or expiration
      of
      this Agreement or will purchase a directors’ and officers’ extended reporting
      period or “tail” policy to cover the Employee.

     

    We
      appreciate the opportunity to serve you and believe this Agreement accurately
      reflects our mutual understanding. We would be pleased to discuss this Agreement
      with you at your convenience. If the foregoing is in accordance with your
      understanding, please sign a copy of this Agreement and return it to my
      attention.

     

    Sincerely,
      Tatum, LLC

    /s/
      Charles R. Gottschalk

    Charles
      R. Gottschalk Managing Partner, Pacific NW

     

    Accepted
      and agreed: eMagin Corporation

     

     

    
      	By:
              /s/ Thomas Paulson	 	 	 
	 	 	 	 
	Name: Thomas
              Paulson	 	 	 
	 	 	 	 
	Title:
              Non Executive Chairman of The Board	 	 	 


    

                                                                  

                                                                    

     

     

     

     

    
      
        
        

      

      
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    Exhibit
      A

    Terms
      and
      Conditions

    1.  Relationship
      of the Parties.
The parties agree that Tatum will be serving the Company as an
      independent contractor for all purposes and not as an employee, agent, partner
      of, or joint venturer with the Company and that the Employee will be serving
      the
      Company as an employee of the Company for all purposes and not as an independent
      contractor.

     

    2.  Payment
      Terms. Payments to
      Tatum should be made by electronic transfer in accordance with the instructions
      set forth below or such alternative instructions as provided by Tatum from
      time
      to time. Any amounts not paid when due may be subject to a periodic service
      charge equal to the lesser of 1.5% per month and the maximum amount allowed
      under applicable law, until such amounts are paid in full, including assessed
      service charges. In lieu of terminating this Agreement, Tatum may suspend the
      provision of services (including the Employee’s services) if amounts owed are
      not paid in accordance with the terms of this Agreement.

     

    Bank
      Name: Wells Fargo, N.A.

    Branch:
      San Francisco

    Account
      Name: Tatum, LLC

    Account
      Number: 4121546642

    Routing
      Number for ACH Payments: 121000248

    Swift
      Code: WFBIUS6S

    Please
      reference Company name in the body of the payment.

     

    3.  Deposit.
If
      the Company
      breaches this Agreement and fails to cure such breach as provided for herein,
      Tatum will be entitled to apply the Deposit to its or the Employee’s damages
      resulting from such breach. In the event the Deposit falls below the amount
      required, the Company will pay Tatum an additional amount equal to the
      shortfall. Upon the expiration or termination of this Agreement, Tatum will
      return to the Company the balance of the Deposit remaining after application
      of
      any amounts to damages as provided for herein, including, without limitation,
      unfulfilled payment obligations of the Company to Tatum or the
      Employee.

     

    4.  Termination.

     

    (a)  Either
      party may terminate this Agreement by providing the other party a minimum of
      30
      days’ advance written notice and such termination will be effective as of the
      date specified in such notice, provided that such date is no earlier than 30
      days after the date of delivery of the notice. Tatum will continue to provide,
      and the Company will continue to pay for, the services until the termination
      effective date.

     

    (b)  Tatum
      may
      terminate this Agreement immediately upon written notice to the Company if: (i)
      the Company is engaged in or asks Tatum or the Employee to engage in or ignore
      any illegal or unethical activity; (ii) the Employee ceases to be a member
      of
      Tatum for any reason; (iii) the Employee becomes disabled; or (iv) the Company
      fails to pay any amounts due to Tatum or the Employee when due. For purposes
      of
      this Agreement, disability will be defined by the applicable policy of
      disability insurance or, in the absence of such insurance, by Tatum’s management
      acting in good faith. Notwithstanding the foregoing, in lieu of terminating
      this
      Agreement under (ii) and (iii) above, upon the mutual agreement of the parties,
      the Employee may be replaced by another Tatum member.

     

    (c)  In
      the
      event that a party commits a breach of this Agreement, other than for the
      reasons described in the above Section, and fails to cure the same within 10
      days following delivery by the non-breaching party of written notice specifying
      the nature of the breach, the non-breaching party may terminate this Agreement
      effective upon written notice of such termination.

     

    (d)  The
      expiration or termination of this Agreement will not destroy or diminish the
      binding force and effect of any of the provisions of this Agreement that
      expressly, or by reasonable implication, come into or continue in effect on
      or
      after such expiration or termination, including, without limitation, provisions
      relating to payment of fees and expenses (including witness fees and expenses),
      hiring the Employee, governing law, arbitration, limitation of liability, and
      indemnity.

     

     

    
      
        
        

      

      
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    5.
      Hiring the Employee Outside of a
      Tatum Agreement. During the term of this Agreement and for the 12- month
      period following the termination or expiration of this Agreement, other than
      in
      connection with this Agreement or another Tatum agreement, the Company will
      not
      employ the Employee, or engage the Employee as an

    independent
      contractor. The parties recognize and agree that a breach by the Company of
      this
      provision would result in the loss to Tatum of the Employee’s valuable expertise
      and revenue potential and that such injury will be impossible or very difficult
      to ascertain. Therefore, in the event this provision is breached, Tatum will
      be
      entitled to receive as liquidated damages an amount equal to 45% of the
      Annualized Compensation (as defined below), which amount the parties agree
      is
      reasonably proportionate to the probable loss to Tatum and is not intended
      as a
      penalty. The amount will be due and payable to Tatum upon written demand to
      the
      Company. If a court or arbitrator determines that liquidated damages are not
      appropriate for such breach, Tatum will have the right to seek actual damages
      and/or injunctive relief. “Annualized Compensation” means the equivalent of the
      Employee’s Salary calculated on a full-time annual basis plus the maximum amount
      of any bonus for which the Employee was eligible with respect to the
      then-current bonus year.

     

    6.  Warranties
      and Disclaimers. It
      is understood that Tatum does not have a contractual obligation to the Company
      other than to provide the Employee to the Company and to provide the Employee
      access to Tatum’s intellectual capital to be used in connection with the
      Employee’s employment relationship with the Company. The Company acknowledges
      that any information, including any resources delivered through Tatum’s
      proprietary information and technology system, will be provided by Tatum as
      a
      tool to be used in the discretion of the Company. Tatum will not be responsible
      for any action taken by the Company in following or declining to follow any
      of
      Tatum’s or the Employee’s advice or recommendations. Tatum represents to the
      Company that Tatum has conducted its standard screening and investigation
      procedures with respect to the Employee becoming a member of Tatum, and the
      results of the same were satisfactory to Tatum. Tatum disclaims all other
      warranties, whether express, implied or statutory. Without limiting the
      foregoing, Tatum makes no representation or warranty as to the services provided
      by the Employee, or the accuracy or reliability of reports, projections,
      certifications, opinions, representations, or any other information prepared
      or
      made by Tatum or the Employee (collectively, the “Information”) even if derived
      from Tatum’s intellectual capital, and Tatum will not be liable for any claims
      of reliance on the Information or that the Information does not comply with
      federal, state or local laws or regulations. The services provided by Tatum
      hereunder are for the sole benefit of the Company and not any unnamed third
      parties. The services will not constitute an audit, review, or compilation,
      or
      any other type of financial statement reporting or attestation engagement that
      is subject to the rules of the AICPA or other similar state or national
      professional bodies and will not result in an opinion or any form of assurance
      on internal controls.

     

    7.  Limitation
      of Liability;
      Indemnity.

     

    (a)  The
      liability of Tatum in any and all categories and for any and all causes arising
      out of this Agreement, whether based in contract, tort, negligence, strict
      liability or otherwise will, in the aggregate, not exceed the actual Fees paid
      by the Company to Tatum over the previous two months’ of the Agreement. In no
      event will Tatum be liable for incidental, consequential, punitive, indirect
      or
      special damages, including, without limitation, any interruption or loss of
      business, profit or goodwill. As a condition for recovery of any liability,
      the
      Company must assert any claim against Tatum within three months after discovery
      or 60 days after the termination or expiration of this Agreement, whichever
      is
      earlier.

     

    (b)  The
      Company agrees to indemnify Tatum and the Employee to the full extent permitted
      by law for any losses, costs, damages, and expenses (including reasonable
      attorneys’ fees), as they are incurred, in connection with any cause of action,
      suit, or other proceeding arising in connection with the Employee’s services to
      the Company.

     

    8.Governing
      Law, Arbitration, and
      Witness Fees.

     

    (a)  This
      Agreement will be governed by and construed in accordance with the laws of
      the
      State of Georgia, without regard to conflicts of laws provisions.

     

     

    
      
        
        

      

      
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    (b)  If
      the
      parties are unable to resolve any dispute arising out of or in connection with
      this Agreement, the parties agree and stipulate that any such disputes will
      be
      settled by binding arbitration in accordance with the Commercial Arbitration
      Rules of the American Arbitration Association (“AAA”). The arbitration will be
      conducted in the Atlanta, Georgia office of the AAA by a single arbitrator
      selected by the parties according to the rules of the AAA, and the decision
      of
      the arbitrator will be final and binding on both parties. In the event that
      the
      parties fail to agree on the selection of the arbitrator within 30 days after
      either party’s request for arbitration under this Section, the arbitrator will
      be chosen by the AAA. The arbitrator may in his or her discretion order
      documentary discovery but will not allow depositions without a showing of
      compelling need. The arbitrator will render his or her decision within 90 days
      after the call for arbitration. Judgment on the award of the arbitrator may
      be
      entered in and enforced

    by
      any
      court of competent jurisdiction. The arbitrator will have no authority to award
      damages in excess or in contravention of this Agreement and may not amend or
      disregard any provision of this Agreement, including this Section.
      Notwithstanding the foregoing, either party may seek appropriate injunctive
      relief from any court of competent jurisdiction, and Tatum may pursue payment
      of
      undisputed amounts through any court of competent jurisdiction.

     

    (c)
      In
      the event any member or employee of Tatum (including, without limitation, the
      Employee to the extent not otherwise entitled in his or her capacity as an
      employee of the Company) is requested or authorized by the Company or is
      required by government regulation, subpoena, or other legal process to produce
      documents or appear as witnesses in connection with any action, suit or other
      proceeding initiated by a third party against the Company or by the Company
      against a third party, the Company will, so long as Tatum is not a party to
      the
      proceeding in which the information is sought, reimburse Tatum for its member’s
      or employee’s professional time (based on customary rates) and expenses, as well
      as the fees and expenses of its counsel (including the allocable cost of
      in-house counsel), incurred in responding to such requests.

     

    9.        
      Miscellaneous.

     

     

    (a)  This
      Agreement constitutes the entire agreement between the parties with regard
      to
      the subject matter hereof and supersede any and all agreements, whether oral
      or
      written, between the parties with respect to its subject matter. No amendment
      or
      modification to this Agreement will be valid unless in writing and signed by
      both parties.

     

    (b)  If
      any
      portion of this Agreement is found to be invalid or unenforceable, such
      provision will be deemed severable from the remainder of this Agreement and
      will
      not cause the invalidity or unenforceability of the remainder of this Agreement,
      except to the extent that the severed provision deprives either party of a
      substantial portion of its bargain.

     

    (c)  Neither
      the Company nor Tatum will be deemed to have waived any rights or remedies
      accruing under this Agreement unless such waiver is in writing and signed by
      the
      party electing to waive the right or remedy. The waiver by any party of a breach
      or violation of any provision of this Agreement will not operate or be construed
      as a waiver of any subsequent breach of such provision or any other provision
      of
      this Agreement.

     

    (d)  Neither
      party will be liable for any delay or failure to perform under this Agreement
      (other than with respect to payment obligations) to the extent such delay or
      failure is a result of an act of God, war, earthquake, civil disobedience,
      court
      order, labor dispute, or other cause beyond such party’s reasonable
      control.

     

    (e)  The
      Company may not assign its rights or obligations under this Agreement without
      the express written consent of Tatum. Nothing in this Agreement will confer
      any
      rights upon any person or entity other than the parties hereto and their
      respective successors and permitted assigns and the Employee.

     

    (f)  The
      Company agrees to reimburse Tatum for all costs and expenses incurred by Tatum
      in enforcing collection of any monies due under this Agreement, including,
      without limitation, reasonable attorneys’ fees.

     

    (g)
      The
      Company agrees to allow Tatum to use the Company’s logo and name on Tatum’s
      website and other marketing materials for the sole purpose of identifying the
      Company as a client of Tatum. Tatum will not use the Company’s logo or name in
      any press release or general circulation advertisement without the Company’s
      prior written consent.

     

     

     

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