Exhibit 10.7
MANAGEMENT AGREEMENT
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THIS SENIOR MANAGEMENT AGREEMENT (this "Agreement") is made as of
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September __, 1999, between E2Enet, Inc., a Delaware corporation (the
"Company"), and Xxxxx Xxxxx ("Executive").
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The parties hereto agree as follows:
1. Employment. The Company agrees to employ Executive and Executive
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accepts such employment for the period beginning as of an effective date of
October 4, 1999 and ending on the second anniversary of the date hereof or upon
Executive's earlier separation pursuant to Section 1(d) hereof (the "Employment
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Period"). The Company and the Executive agree to meet and discuss this
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employment agreement at least 60 days prior to the Expiration of the Employment
Period and determine the Company's desire to terminate, renew, or renegotiate
this Agreement for an additional period.
(a) Position and Duties. During the Employment Period, Executive
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shall serve as the Senior Vice President and Chief Technology Officer of the
Company, and shall have the normal duties, responsibilities and authority of
such positions, subject to the power of the Company's Chief Executive Officer or
the Company's Board of Directors (the "Board") to reasonably expand or limit
such duties, responsibilities and authority and to override actions of the
Senior Vice President and Chief Technology Officer. Executive shall report to
the Chief Executive Officer of the Company and shall devote his best efforts and
his full business time and attention to the business and affairs of the Company
and its Subsidiaries. Executive's principal place of employment shall be in the
Washington, D.C. metropolitan area, subject to such reasonable travel as the
rendering of the services hereunder may require except as otherwise set forth
herein. Notwithstanding the foregoing provisions of this Section 1(a) and
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subject to the limitations contained in Section 3(a) of this Agreement, the
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Executive may participate in charitable, civic, political, social, trade, or
other non-profit organizations to the extent such participation does not
materially interfere with the performance of his duties hereunder.
(b) Salary, Bonus and Benefits. Commencing on October 4, 1999, the
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Company will pay Executive a base salary of $215,000 per annum, payable on a bi-
weekly basis or in accordance with the Company's normal payroll practices (the
"Annual Base Salary"), subject to any annual increase during the Employment
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Period as determined by the Board based upon the Company's achievements of
budgetary and other objectives to be set by the Board and communicated to the
Executive within ninety (90) days of the date hereof. Upon his relocation to
the Washington DC metropolitan area, Executive shall receive a monthly
automobile allowance of seven hundred and fifty dollars ($750.00). In addition,
Executive shall be eligible to receive an annual bonus (commencing with the
Company's fiscal year ending December 31, 1999) of up to fifty percent (50%) of
the Annual Base Salary based upon the Company's achievement of budgetary and
other objectives set by the
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Board. Executive will receive a signing bonus of $200,000 payable on the
consummation of the initial public offering. Provided that it shall not have any
adverse impact on the Company, at the Executive's option the signing bonus can
be held by E2E for up to 18 months and paid directly to an agent or company for
the purchase of a residence, or to Executive directly at the date of choosing if
a residence is not purchased. The Company will also reimburse reasonable moving
expenses, which shall include: broker/agent costs in selling and closing on
existing residence in Charlotte, moving expenses and temporary storage of
belongings (not to go beyond June 30, 2000), hotel stay for transit and
transactions costs associated with purchasing a residence in the Washington DC
area. In the event Executive does not relocate his primary residence prior to
the commencement of employment with the Company, the Company will cover
commuting expenses for a period not to go beyond June 30, 2000. Commuting
expenses will include living accommodations (furnished apartment),
transportation expenses (airfare, rental car, taxi) and incidentals. All such
travel reimbursements will be in keeping with the Company travel policy for
Senior Executives. Executive's Annual Base Salary and bonus for any partial year
will be prorated based upon the number of days elapsed in such year. In
addition, during the Employment Period, Executive will be entitled to such other
benefits approved by the Board and made available to the Company's senior
executives, including four (4) weeks vacation time per annum, contributory and
non-contributory Company welfare and benefit plans, medical, death benefit,
disability and life insurance plans and reimbursement of reasonable business
expenses.
(c) Issuance of Stock and Stock Options. Executive shall receive
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options (which options shall be incentive stock options to the extent possible
under applicable law) for the purchase of 275,000 shares of the Common Stock
upon implementation of the Company's employee stock option plan at a price of
$10 per share. The options will vest as follows: the first 100,000 options will
vest upon the completion of the Company's Initial Public Offering. The
remaining options shall vest at the rate of 1/42 per month thereafter. All
options granted in accordance with the foregoing provisions of this Agreement
shall be fully vested no later than the fourth anniversary of the date
Executive's employment commences. Executive will be eligible for grants of
additional options during the Employment Period approved by the Board based on
Executive's and the Company's performance. All shares and options issued to
Executive shall be made through stock purchase agreements or options agreements,
as appropriate, based on the Company's standard form for its executives
(d) Separation.
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(i) Executive's employment by the Company during the
Employment Period will continue until Executive's resignation at any time
or until Executive's disability or death or until the Board terminates
Executive's employment at any time during the Employment Period, as
follows:
(A) Effective Date of Separation. If the Employment
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Period is terminated by the Executive without Good Reason, then the
termination will be effective sixty (60) days after the date of
delivery of written notice of termination. If the Employment Period
is terminated by the Company without Cause or by the
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Executive with Good Reason, then the termination will be effective
thirty (30) days after the date of delivery of written notice of
termination. If the Employment Period is terminated by the Company
with Cause, termination will be effective as of the date of notice of
termination.
(B) Separation With Cause or Not For Good Reason. If the
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Employment Period is terminated by the Company with Cause or by the
Executive without Good Reason, then the Executive shall be entitled to
only receive his Annual Base Salary, bonuses and his fringe benefits
pro rated through the effective date of termination. In addition, in
the event the Employment Period is terminated by the Company with
Cause or by the Executive without Good Reason, Executive hereby agrees
to repay in full the $200,000 signing bonus (in the event the signing
bonus has been paid).
(C) Separation Without Cause or For Good Reason or Non-
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renewal of Executive Contract by the Company. If the Employment
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Period is terminated by the Company without Cause or by the Executive
with Good Reason or the Company does not renew the Executive contract,
then (1) all options granted to the Executive as of the date thereof
shall vest immediately and (2) the Executive shall be entitled to
receive on such effective date of termination (x) a pro rata bonus
payment through the date of termination equal to the pro rated portion
of the greater of (i) the prior year's annual bonus received by the
Executive or (ii) $100,000, provided, however, that for the period
commencing on the date hereof and ending on December 31, 1999, the
Executive shall be entitled to a pro rata share of an annual bonus of
one hundred thousand dollars ($100,000), (y) his Annual Base Salary
then in effect for a period equal to the longer of the unexpired
Employment Period (not including any renewals thereof) or twelve (12)
months and in accordance with normal payroll practices and (z) his
life, medical and disability insurance benefits, if any, for one year
from the effective date of such termination, and with respect to
subclauses (2)(x), (y) and (z) hereof, with no duty to mitigate.
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Subject to the requirement of applicable law, in the event of a
separation without Cause or for Good Reason, the Executive shall have
a period of one year in which to exercise options acquired hereunder.
(D) Separation Due to Death. If the Employment Period is
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terminated due to death of the Executive, then all options to acquire
shares issued to the Executive as of the date hereof shall vest
immediately and the Executive's heirs, executors, administrators,
conservators or personal representatives (in such capacity) of
Executive (the "Executive's Estate") shall be entitled to receive (1)
the Annual Base Salary through the next full calendar month following
the month in which the Executive died, (2) medical insurance and
disability insurance benefits, if any, and (3) a pro rata bonus
payment through the date of death if more than six months of the
current fiscal year have passed. Subject to the requirement of
applicable law, in the event of a separation due to death, the
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Executive's Estate shall have a period of six (6) months in which to
exercise options acquired hereunder.
(E) Separation Due to Disability. If the Employment Period
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is terminated due to Disability, then the Annual Base Salary, prorated
annual bonus, medical insurance and disability insurance will be
continued until the last day of the six-month period following the
termination date due to a Disability; provided, however, that such
Annual Base Salary shall be reduced by the amount of any disability
income payments made to the Executive during such six-month period
from any insurance or other policies provided by the Company; and,
provided, further, however, that option vesting as provided in Section
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1(c) above shall continue during the six-month period following the
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termination date due to a Disability, and subject to applicable law,
in the event of a separation due to Disability, the Executive shall
have a period of three (3) months following the end of such additional
six-month vesting period (i.e., a total of nine (9) months following
the termination date due to a Disability) in which to exercise options
acquired hereunder.
2. Confidential Information.
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(a) Executive acknowledges that the Company is engaged in the business
of investing in, creating, managing and providing management services to its
Subsidiaries or other Internet, Internet-related, interactive media business and
technology companies and/or businesses (collectively, the "Business").
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Executive further acknowledges that the Business and its continued success
depend upon the use and protection of a large body of confidential and
proprietary information, and that he holds a position of trust and confidence by
virtue of which he necessarily possesses, has access to and, as a consequence of
his signing this Agreement, will continue to possess and have access to, highly
valuable, confidential and proprietary information of the Company and its
Subsidiaries not known to the public in general, and that it would be improper
for him to make use of this information for the benefit of himself and others.
All of such confidential and proprietary information now existing or to be
developed in the future will be referred to in this Agreement as "Confidential
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Information." This includes, without specific limitation, information relating
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to the nature and operation of the Business or any other business conducted by
the Company's Subsidiaries and affiliates (the "Subsidiary Business"), the
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persons, firms and corporations which are customers or active prospects of the
Company or the Subsidiary Business during Executive's employment by the Company,
the Company's and the Subsidiary Business' development, transition and
transformation plans, methodology and methods of doing business, strategic,
acquisition, marketing and expansion plans, including plans regarding planned
and potential acquisitions and sales, financial and business plans, employee
lists, numbers and location of sales representatives, new and existing programs
and services (and those under development), prices and terms, customer service,
integration processes requirements, costs of providing service, support and
equipment and equipment maintenance costs. Confidential Information shall not
include any information that has become generally known to and available for use
by the public other than as a result of Executive's improper acts or omissions.
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(b) Disclosure of any Confidential Information of the Company shall
not be prohibited if such disclosure is directly pursuant to a valid and
existing order of a court or other governmental body or agency within the United
States; provided, however, that (i) Executive shall have made reasonable
attempts to first have given prompt notice to the Company of any such possible
or prospective order (or proceeding pursuant to which any such order may result)
and (ii) Executive shall afford the Company a reasonable opportunity to prevent
or limit any such disclosure (if same is reasonably possible under the
circumstances).
(c) During the Employment Period and for a period of two (2) years
thereafter, Executive will preserve and protect as confidential all of the
Confidential Information known to Executive or at any time in Executive's
possession. In addition, during the Employment Period and at all times
thereafter, Executive will not disclose to any unauthorized person or use for
his own account any of such Confidential Information without the Board's written
consent. Executive agrees to deliver to the Company at a separation for any
reason, or at any other time the Company may request in writing, all memoranda,
notes, plans, records, reports and other documents (and copies thereof)
containing or otherwise relating to any of the Confidential Information
(including, without limitation, all acquisition prospects, lists and contact
information) which he may then possess or have under his control. Executive
acknowledges that all such memoranda, notes, plans, records, reports and other
documents are and at all times will be and remain the property of the Company.
(d) Executive will fully comply with any agreement reasonably required
by any of the Company's Subsidiaries, business partners, suppliers or
contractors with respect to the protection of the confidential and proprietary
information of such entities, all to the extent not inconsistent with
Executive's obligations under this Agreement.
3. Noncompetition and Nonsolicitation. Executive acknowledges that in
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the course of his employment with the Company he will become familiar with the
Confidential Information concerning the Company and such Subsidiaries and that
his services will be of special, unique and extraordinary value to the Company.
Executive agrees that the Company has a protectable interest in the Confidential
Information acquired by Executive during the course of his employment with the
Company. Therefore, Executive agrees that:
(a) Noncompetition. Subject to paragraph (d) below, so long as
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Executive is employed or affiliated with the Company or any Subsidiary and for
an additional one (1) year thereafter (the "Noncompete Period"), he shall not,
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anywhere in the United States, directly or indirectly own, manage, control,
participate in, consult with, render services for, or in any manner engage in
the Business; provided, however, that notwithstanding the foregoing, Executive
may (i) be the owner, directly or indirectly, of less than five percent (5%) of
the outstanding capital stock of any publicly traded corporation engaged in the
Business, (ii) participate in or own interests in mutual funds that invest in
Internet-related and interactive-media businesses, and (iii) serve as an
independent director of a public company following notice to and approval by the
Board (which shall not be unreasonably withheld).
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(b) Nonsolicitation. During the Noncompete Period, Executive shall
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not directly or indirectly through another entity (i) knowingly induce or
attempt to induce any employee of the Company or any of its Subsidiaries to
leave the employ of the Company or such Subsidiary, or in any way interfere in a
deleterious manner with the relationship between the Company or any of its
Subsidiaries and any employee thereof, (ii) knowingly hire any person who was an
employee of the Company or any of its Subsidiaries within 180 days prior to the
time such employee was hired by the Executive, (iii) knowingly induce or
attempt to induce any owner of a site location, customer, supplier, licensee or
other business relation of the Company or any of its Subsidiaries to cease doing
business with the Company or such Subsidiary or in any way interfere with the
relationship between any such site location, customer, supplier, licensee or
business relation and the Company or any of its Subsidiaries or (iv) knowingly
directly or indirectly acquire or attempt to acquire an interest in any business
entity relating to the business of the Company or any of its Subsidiaries and
with which, to Executive's knowledge, the Company or any of its Subsidiaries has
entertained discussions or has requested and received information relating to
the acquisition of such business by the Company or any of its Subsidiaries in
the one-year period immediately preceding a separation.
(c) Enforcement. If, at the time of enforcement of Section 2 or
Section 3 of this Agreement, a court holds that the restrictions stated herein
are unreasonable under circumstances then existing, the parties hereto agree
that the maximum duration, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area and that
the court shall be allowed to revise the restrictions contained herein to cover
the maximum duration, scope and area permitted by law. Because Executive's
services are unique and because Executive has access to Confidential
Information, the parties hereto agree that money damages would be an inadequate
remedy for any breach of this Agreement. Therefore, in the event of a breach or
threatened breach of Section 2 or Section 3 of this Agreement, the Company or
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any of its successors or assigns shall, in addition to other rights and remedies
existing in its favor, be entitled to specific performance and/or injunctive or
other relief in order to enforce, or prevent any violations of, the provisions
of Section 2 or Section 3 from any court of competent jurisdiction.
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(e) Additional Acknowledgments. Executive acknowledges that the
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provisions of this Section are in consideration of: (i) employment with the
Company and (ii) additional good and valuable consideration as set forth in this
Agreement. Executive expressly agrees and acknowledges that the restrictions
contained in Sections 2 and Section 3 do not preclude Executive from earning a
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livelihood, nor does it unreasonably impose limitations on Executive's ability
to earn a living. In addition, Executive agrees and acknowledges that the
potential harm to the Company of its non-enforcement outweighs any harm to the
Executive of its enforcement by injunction or otherwise. Executive acknowledges
that he has carefully read this Agreement and has given careful consideration to
the restraints imposed upon the Executive by this Agreement, and is in full
accord as to their necessity for the reasonable and proper protection of the
Confidential Information. Executive expressly acknowledges and agrees that each
and every restraint imposed by this Agreement is reasonable with respect to
subject matter, time period and geographical area.
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4. Executive's Representations and Warranties. Executive represents and
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warrants that he has full right and authority to enter into this Agreement and
fully perform his obligations hereunder, that he is not subject to any non-
competition agreement that would prevent or restrict him in any way from
rendering the services hereunder anywhere in the world, and that his past,
present and anticipated future activities have not and will not infringe on the
proprietary rights of others. Executive further represents and warrants that he
is not obligated under any contract (including licenses, covenants or
commitments of any nature) or other agreement, or subject to any judgment,
decree or order of any court or administrative agency which would conflict with
his obligation to use his best efforts to promote the interests of the Company
or which would conflict with the Company's business as conducted or proposed to
be conducted. Neither the execution nor delivery of this Agreement, nor the
carrying on of the Company's business as an officer, director or employee by
Executive, will conflict with or result in a breach of the terms, conditions or
provisions of or constitute a default under any contract, covenant or instrument
under which Executive is now obligated.
GENERAL PROVISIONS
5. Definitions.
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"Cause" means (i) the commission of a felony or a crime involving
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moral turpitude or the intentional commission of any other act or omission
involving dishonesty or fraud with respect to the Company or any of its
Subsidiaries or any of their customers or suppliers, (ii) conduct which brings
the Company or any of its Subsidiaries into substantial public disgrace or
disrepute, (iii) substantial and repeated failure to perform duties of the
office held by Executive as reasonably directed by the Board not cured within
ten (10) business days after written notice thereof, (iv) gross negligence or
willful misconduct with respect to the Company or any of its Subsidiaries; (v)
any intentional breach of Section 2 or Section 3 of this Agreement by Executive
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not cured within ten (10) business days after written notice thereof from the
Company or (vi) a material breach of any of the Executive's representations and
warranties contained in Section 4 above not cured within fifteen (15) days after
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receipt of written notice by the Executive. Any election by the Company not to
renew the Employment Period on the second anniversary of the date hereof shall
be deemed to be a termination by the Company without Cause. The failure of the
Company or the Executive to achieve budgetary or other operational objectives
established by the Board of Directors shall not in and of itself constitute
Cause.
"Disability" means any disability as defined under the Company's
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applicable insurance policy, or in the absence of such policy, any physical or
mental disability or incapacity that renders the Executive incapable of
performing the services required of him in accordance with the obligations of
Section 1 of this Agreement for a continuous period of at least four (4) months
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or for such shorter periods that when aggregated exceed six (6) months in any
twelve (12) month period. Any dispute as to the Executive's Disability shall be
referred to and resolved by a licensed physician selected and approved by the
Company and the Executive.
"Good Reason" means (i) Executive's resignation within 30 days after
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his discovery of any material breach of this Agreement by the Company which is
not
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cured within ten (10) business days after written notice thereof from Executive,
(ii) without Executive's written consent, any requirement by the Company to move
Executive's place of business by more than fifty (50) miles from the Washington,
D.C. metropolitan area in order to perform the services required hereunder or
(iii) a material reduction in the Executive's duties, responsibilities or
functions contained herein such that the Executive is no longer an executive
officer of the Company.
"Person" means an individual, a partnership, a limited liability
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company, a corporation, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Subsidiary" means any corporation, limited liability company or
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partnership of which any percentage of the securities (or other equity or
ownership interest) having ordinary voting power in electing the board of
directors (or board of managers or similar governing body) are, at the time as
of which any determination is being made, owned by the Company either directly
or through one or more Subsidiaries. The term Subsidiary shall also include any
joint venture-type business entity between the Company and any other entity.
6. Notices. Any notice provided for in this Agreement must be in writing
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and must be either personally delivered, mailed by first class mail (postage
prepaid and return receipt requested) or sent by reputable overnight courier
service (charges prepaid) to the recipient at the address below indicated:
If to the Company:
E2Enet, Inc.
000 Xxxxxxxxxxx Xxx., XX
Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Chairman
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: X. Xxxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Executive:
Xxxxx Xxxxx
00000 Xxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
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or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
7. General Provisions.
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(a) Severability. Whenever possible, each provision of this Agreement
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will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(b) Complete Agreement. This Agreement, those documents expressly
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referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
(c) Counterparts; Facsimile Transmission. This Agreement may be
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executed in separate counterparts, each of which is deemed to be an original and
all of which taken together constitute one and the same agreement, and
transmitted to the other party by facsimile transmission as evidence of such
party's intention to be bound hereby, with originals to be exchanged in due
course.
(d) Successors and Assigns. Except as otherwise provided herein, this
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Agreement shall bind and inure to the benefit of and be enforceable by Executive
and the Company and their respective successors and assigns.
(e) Choice of Law. All questions concerning the construction,
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validity and interpretation of this Agreement and the exhibits hereto will be
governed by and construed in accordance with the internal laws of the State of
Delaware, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Delaware or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Delaware.
(f) Remedies. Each of the parties to this Agreement will be entitled
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to enforce its rights under this Agreement specifically, to recover damages and
costs (including attorney's fees) caused by any breach of any provision of this
Agreement and to exercise all other rights existing in its favor. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this Agreement and that any party may in its
sole discretion apply to any court of law or equity of competent jurisdiction
(without posting any bond or deposit) for specific performance and/or other
injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement.
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(g) Amendment and Waiver. The provisions of this Agreement may be
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amended and waived only with the prior written consent of the Company and the
Executive.
(h) Business Days. If any time period for giving notice or taking
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action hereunder expires on a day which is a Saturday, Sunday or holiday in the
state in which the Company's principal place of business is located, the time
period shall be automatically extended to the business day immediately following
such Saturday, Sunday or holiday.
(i) Termination. This Agreement (except for the provisions of
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Sections 1(a), 1(b) and 1(c)) shall survive a separation and shall remain in
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full force and effect after such separation until any terms contained in any
specific provision of this Agreement expires as therein provided.
(j) Dispute Resolution. Any controversy, claim or dispute arising out
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of or relating to this Agreement, the breach thereof, or Executive's employment
by the Company shall be settled by arbitration with three arbitrators. The
arbitration will be administered by the American Arbitration Association in
accordance with its applicable arbitration rules. The arbitration proceeding
shall be confidential, and judgment on the award rendered by the arbitrator may
be entered in any court having jurisdiction. Any such arbitration shall take
place in the Washington, D.C. metropolitan area, or in any other mutually
agreeable location. In the event any judicial action is necessary to enforce
the arbitration provisions of this Agreement, sole jurisdiction shall be in
Washington, D.C. Any request for interim injunctive relief or other provisional
remedies or opposition thereto shall not be deemed to be a waiver of the right
or obligation to arbitrate hereunder. Subject to the terms of this Section
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7(j), the parties waive the right to a jury trial with respect to any
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controversy or claim between the parties hereto, including those arising out of
or relating to this Agreement and any claim based on or arising from an alleged
tort.
(k) Third-Party Beneficiaries. Each party hereto intends that this
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Agreement shall not benefit nor confer any rights or remedies on any Person
other than the parties hereto and their respective heirs, successors and legal
representatives, provided, however, that each of the Company's Subsidiaries and
other affiliates, including E2Enet, are intended beneficiaries of Executive's
applicable covenants and undertakings made hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Senior
Management Agreement on the date first written above.
E2Enet, Inc.
By: /s/ Xxxxxx Xxxxx
__________________________________
Name: Xxxxxx Xxxxx
Its:
/s/ Xxxxx Xxxxx
__________________________________________
Xxxxx Xxxxx
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