EMPLOYMENT AGREEMENT
Exhibit
(e)(18)
This Employment Agreement (this
“Agreement”) is entered into
this
day
of
2008, by and between Markus Remark
(“Employee”), an individual, and
Motive, Inc., a Delaware corporation
(“Motive”). In consideration of the
mutual promises expressed herein, Employee and Motive have
agreed to the following terms and conditions.
1. EFFECTIVE DATE AND TERM. This
Agreement will be effective on or around September 1, 2008,
contingent on the successful application and receipt of
Employee’s permit to work in the United States, and will
remain in effect through December 31, 2009, unless earlier
terminated in accordance with Section 4 or Section 5.
Continued employment beyond the term of this Agreement will not
result in automatic renewal of this Agreement. Rather, to renew
this Agreement, Motive and Employee must state their intention
to renew this Agreement in writing signed by both Motive and
Employee.
2. DUTIES. Motive agrees to employ
Employee as its Senior Vice President, Worldwide Services
or in such other capacity as Motive may require. Employee
agrees to continue to work for Motive as its Senior Vice
President, Worldwide Services or in such other capacity as
Motive may require and to perform the duties normally associated
with that position and such other duties as Motive may assign to
Employee. Employee agrees that Employee is an at-will employee,
and Employee’s employment may be terminated at any time,
for any reason by either Employer or Employee. Employee further
agrees to abide by all of Motive’s policies, procedures,
and directives as may be adopted, modified, or issued by Motive
from time to time.
3. COMPENSATION AND BENEFITS. While
Employee is actively employed by Motive pursuant to this
Agreement, Employee will be entitled to the following
compensation and benefits:
(a) Base Salary. Motive will pay Employee
a Base Salary (“Base Salary”) at a rate
of $20,833.33 each month ($250,000.00 if
annualized), less applicable withholdings and deductions,
payable in accordance with Motive’s regular payroll
practices. Employee’s Base Salary shall be subject to
review and potential adjustment, as determined in Motive’s
sole discretion. Base Salary shall not include any payment or
other benefit which is denominated as or is in the nature of a
bonus, incentive payment, profit-sharing payment, retirement or
pension accrual, insurance benefit, other fringe benefit or
expense allowance, whether or not taxable to Employee as income.
The term Base Salary shall include any adjustment therein for
the purposes of this agreement.
(b) Vacation. Employee shall accrue
vacation commensurate with Employee’s position. The accrual
and carry-over (if any) of Employee’s vacation shall be in
accordance with Motive’s regular vacation accrual
practices, as such practices are adopted, modified, or
implemented from time to time, provided however that Employee
will retain and may carry over any vacation accrued and unused
in Germany from January 1, 2008 until the date of
Employee’s relocation to Austin, Texas.
(c) Benefits. Subject to applicable
eligibility requirements, Employee shall be invited to
participate in the same benefit plans or fringe benefit policies
that are generally available to any of its senior level
executive employees.
(d) Bonuses. Employee shall be eligible
to receive an annual Target Bonus of up to $125,000.00,
less applicable withholdings and deductions (the
“Target Bonus”), based on the
achievement of individual and company performance objectives
which shall be established by Motive or its Board of Directors
(the “Board”). Motive shall determine in
its sole discretion whether Employee has achieved the
established performance objectives. Any Target Bonus that
becomes payable with respect to a particular fiscal year shall
be paid to Employee no later than seventy-five days after the
end of the Company’s fiscal year.
(e) Stock Options. Motive may or may not
award stock option or restricted stock grants to employee from
time to time based upon criteria to be set by Motive or its
Board of Directors; provided however, that any stock options or
restricted stock granted to Employee, shall be governed by the
terms of the agreement accompanying the grant, Motive’s
Amended and Restated Equity Incentive Plan, and other applicable
plan documents.
(f) Other Compensation. Motive will
contribute an amount equal to 3% of Employee’s Base Salary
to Employee’s existing private retirement fund in Germany
for the duration of the Agreement.
(g) Directors’ and Officers’ Insurance
Coverage. Employee shall have the benefit of such
directors’ and officers’ insurance coverage as Motive
shall from time to time obtain, but in no event less than that
provided to any other senior level executive employee of Motive.
(h) Business Expenses. Motive will
reimburse Employee for Employee’s reasonable business
expenses in accordance with Motive’s policies.
(i) Relocation Expenses. In connection
with Employee’s relocation from Germany to Austin, Texas,
Motive shall reimburse Employee for the following:
(i) Moving expenses including packing, shipment and
unpacking of all personal and household items from Germany to
Austin, Texas. Motive reserves the right to select the service
provider for this move from not less than two
(2) competitive quotes.
(ii) Temporary living expenses for three (3) months
from the date Employee relocates to the Austin, Texas, including
housing and car rental, subject to the submission of reasonable
documentation.
(iii) Closing costs on the purchase of a residence in the
Austin, Texas area with twelve (12) months from the date
Employee relocates to Austin, Texas.
In the event the reimbursement of expenses described in (i),
(ii) and (iii) above are deemed taxable to Employee,
then such reimbursement shall be “grossed up” by
Motive so as to have a neutral after tax impact to Employee.
(j) Tax Advice and Preparation. Motive
shall pay reasonable fees incurred in connection with engagement
of a Tax Advisor to assist in the preparation and filing of
Employee’s tax returns in the United States and Germany
during Employee’s initial and final tax years in the United
States.
(k) Work Permits. Motive will support
Employee in obtaining the appropriate visas and work permits for
Employee to be properly and legally employed in the United
States, and for Employee’s dependents to be properly and
legally residing in the United States with Employee. Motive
shall pay all reasonable fees incurred in connection with
obtaining these visas and work permits.
4. TERMINATION. This Agreement and
Employee’s employment may be terminated by either party at
any time and for any reason, subject to the following provisions:
(a) Termination by Employee. Employee
agrees that if Employee intends to terminate this Agreement or
Employee’s employment for any reason, Employee will give
Motive at least thirty (30) days’ advance written
notice of such termination.
(i) If Employee terminates Employee’s employment and
this Agreement for Good Reason and gives Motive the requisite
notice of termination, and subsequently executes (within a
reasonable period of time) a mutually agreeable release, Motive
shall pay Employee severance in accordance with the terms of
Section 4(c) and repatriate Employee in accordance with the
terms of Section 4(d) below. All other rights and benefits
of Employee hereunder shall terminate upon such termination,
except for any right to the continuation of benefits otherwise
provided by law.
(ii) If Employee terminates Employee’s employment and
this Agreement but does not satisfy any or all of the other
conditions of Section 4(a)(i) above for any reason,
Employee shall only be entitled to receive payment for
Employee’s Base Salary (less applicable deductions and
withholdings) through the actual date this Agreement is
terminated and payment for unused vacation (less applicable
deductions and withholdings) that has accrued as of the actual
date this Agreement is terminated. All other rights and benefits
of Employee hereunder shall terminate upon such termination,
except for any right to the continuation of benefits otherwise
provided by law. Employee shall not be entitled to Target Bonus
compensation, whether in whole or in part, provided under
Section 3(d).
(b) Termination by Motive. Motive may
terminate this Agreement and Employee’s employment at any
time, with or without Cause and with or without notice.
(i) If Motive terminates Employee’s employment and
this Agreement without Cause, whether during the term of the
Agreement or upon expiration of the Agreement, and Employee
subsequently executes (within a reasonable period of time) a
mutually agreeable release, Motive shall pay Employee severance
in accordance with the terms of Section 4(c) below and
repatriate Employee in accordance with the terms of
Section 4(d) below. All other rights and benefits of
Employee hereunder shall terminate upon such termination, except
for any right to the continuation of benefits otherwise provided
by law.
(ii) If Motive terminates Employee’s employment and
this Agreement without Cause, but Employee does not execute
(within a reasonable period of time) a mutually agreeable
release for any reason, Employee shall only be entitled to
receive payment for Employee’s Base Salary (less applicable
deductions and withholdings) through the actual date this
Agreement is terminated and payment for unused vacation (less
applicable deductions and withholdings) that has accrued as of
the actual date this Agreement is terminated. All other rights
and benefits of Employee hereunder shall terminate upon such
termination, except for any right to the continuation of
benefits otherwise provided by law. Employee shall not be
entitled to Target Bonus compensation, whether in whole or in
part, provided under Section 3(d).
(iii) Notwithstanding any other provision of this
Agreement, Motive may terminate this Agreement and
Employee’s employment for Cause without advance notice,
payment, or penalty of any kind. In such a case, Employee shall
only be entitled to receive payment for Base Salary (less
applicable deductions and withholdings) through the actual date
this Agreement is terminated. All other rights and benefits of
Employee hereunder shall terminate upon such termination, except
for any right to the continuation of benefits otherwise provided
by law. Employee shall not be entitled to Target Bonus
compensation, whether in whole or in part, provided under
Section 3(d).
(c) Severance. If Motive is required to
pay Employee severance by the express terms of
Section 4(a)(i) or 4(b)(i) above, Motive shall pay to
Employee in a lump sum an amount equal to
(i) Employee’s aggregate Base Salary, less applicable
withholdings and deductions, for a period of six months, or for
a period equal to the number of months remaining in the term of
this Agreement, whichever is greater; plus
(ii) A prorated portion of Employee’s Target Bonus
based upon the number of full calendar quarters that Employee
was actively employed during the year of termination and
assuming for purposes thereof that full achievement of all
performance targets or metrics were met by both Employee and
Motive during such year.
Employee understands and agrees that Motive shall not be
obligated to pay Employee severance of any kind except as
required by Section 4(a)(i) or 4(b)(i) and as described in
this Section 4(c).
(d) Repatriation. If Motive is required
to repatriate Employee by the express terms of
Section 4(a)(i) or 4(b)(i) above, Motive shall reimburse
Employee for the following:
(i) Moving expenses including packing, shipment and
unpacking of all personal and household items from Austin, Texas
to Germany. Motive reserves the right to select the service
provider for this move from not less than two
(2) competitive quotes.
(ii) Closing costs on the sale of Employee’s residence
in the Austin, Texas area.
In the event the reimbursement of expenses described in
(i) and (ii) above are deemed taxable to Employee,
then such reimbursement shall be “grossed up” by
Motive so as to have a neutral after tax impact to Employee.
Employee understands and agrees that Motive shall not be
obligated to repatriate Employee except as required by
Section 4(a)(i) or 4(b)(i) and as described in this
Section 4(d). Employee further understands and agrees that
Motive’s obligation to repatriate Employee under this
Agreement shall expire 180 days after the date this
Agreement is terminated.
(e) Release Required. Employee
understands that, notwithstanding any other provision of this
Agreement, if Employee does not execute a mutually agreeable,
fully enforceable release, Employee shall not be entitled to any
severance payment of any kind following the termination of this
Agreement or Employee’s employment for any reason.
(f) Good Reason. For purposes of this
Agreement, “Good Reason” exists if,
without Employee’s written consent:
(i) Motive (or its successor) makes a material change in
Employee’s primary work location (for purposes of this
provision, the relocation of Employee’s primary work
location by more than fifty (50) miles, such that Employee
is required to relocate Employee’s permanent residence to
continue rendering duties under this Agreement, shall constitute
a material change in Employee’s primary work location);
(ii) Motive (or its successor) materially reduces
Employee’s Base Salary;
(iii) Motive (or its successor) materially diminishes
Employee’s authority, duties or responsibilities;
(iv) Motive (or its successor) materially diminishes the
authority, duties or responsibilities of the supervisor to whom
Employee is required to report;
(v) Motive (or its successor) materially diminishes the
budget over which Employee retains authority; or
(vi) Motive materially breaches this Agreement;
provided, that Employee provides the Board with written
notice of the existence of the condition described above within
a period not to exceed ninety (90) days of the initial
existence of the applicable condition, and Motive fails to cure
such condition within thirty (30) days of the date the
Board receives Employee’s written notice; provided further,
that Employee’s termination of employment for Good Reason
occur not more than two years following the initial existence of
one or more of the conditions set forth in clauses (i)-(vi)
above.
(g) Cause. For purposes of this
Agreement, “Cause” exists if:
(i) Employee is determined by Motive’s Board (or the
Compensation Committee thereof) to have engaged in any act of
misconduct, including but not limited to drunkenness, substance
abuse, dishonesty, repeated absenteeism without good cause, or
unlawful discrimination, during the course and scope of his
employment with Motive which resulted in injury to the business,
reputation or goodwill of Motive;
(ii) Employee is determined by Motive’s Board (or the
Compensation Committee thereof) to have willfully failed to
attend to his duties under this Agreement;
(iii) Employee is determined by Motive’s Board (or the
Compensation Committee thereof) to have breached his fiduciary
duties to Motive or to have committed any act of fraud or
embezzlement against Motive;
(iv) Employee pleads guilty to or is convicted of any crime
involving moral turpitude; or
(v) any breach or breaches of this Agreement by Employee
occurs, which breaches are (1) singularly or in the
aggregate, material, and (2) not cured within fifteen
(15) days of written notice of such breach or breaches to
Employee from Motive.
(h) Cooperation. Upon the termination of
Employee’s employment for any reason, Employee agrees to
cooperate with Motive in transitioning Employee’s
responsibilities and duties as directed by Motive.
(i) Death. In the event Employee dies,
this Agreement shall terminate as of the end of the month during
which his death occurs, with no obligation for payment of any
additional amounts. All other rights and benefits of Employee
and Employee’s dependent(s) hereunder shall terminate upon
such termination, except for any right to the continuation of
benefits otherwise provided by law.
(j) Disability. If Employee becomes
physically or mentally disabled, whether totally or partially,
so that Employee is unable to perform the essential functions of
the job, with or without reasonable accommodation in accordance
with the Americans With Disabilities Act, as determined by the
Board in its good faith judgment, for: (i) a period of one
hundred twenty (120) consecutive days; or (ii) for
shorter periods aggregating one hundred fifty (150) days
during any twelve-month period, the Company, by written notice
to Employee, may terminate Employee’s employment, in which
event this Agreement shall terminate the last day of the
calendar month during which notice of termination due to
disability is given. Upon such termination, the Company shall
pay to Executive all Base Salary that has fully accrued and
vested but not been paid as of the
effective date of such termination. All other rights and
benefits of Employee hereunder shall terminate upon such
termination, except for any right of Employee’s dependents
to continue benefits pursuant to applicable law. Nothing in this
Section shall be deemed to extend the Agreement.
5. CHANGE IN CONTROL.
(a) For purposes of this Agreement, a “Change in
Control’’ shall mean:
(i) The consummation of a merger or consolidation of Motive
with or into another entity or any other corporate
reorganization, if persons who were not stockholders of Motive
immediately prior to such merger, consolidation or other
reorganization beneficially own immediately after such merger,
consolidation or other reorganization 50% or more of the voting
power of the outstanding securities of each of (1) the
continuing or surviving entity and (2) any direct or
indirect parent corporation of such continuing or surviving
entity; or
(ii) The sale, transfer or other disposition of all or
substantially all of Motive assets; or
(iii) A change in the composition of the Board of Motive,
as a result of which fewer than 50% of the incumbent directors
are directors who either (1) had been directors of Motive
on the date 12 months prior to the date of the event that
may constitute a Change in Control (the “original
directors”) or (2) were elected, or nominated
for election, to the Board with the affirmative votes of at
least a majority of the aggregate of the original directors who
were still in office at the time of the election or nomination
and the directors whose election or nomination was previously so
approved; or
(iv) Any transaction as a result of which any person is the
“beneficial owner” (as defined in
Rule 13d-3
under the Exchange Act), directly or indirectly, of securities
of Motive representing at least 50% of the total voting power
represented by Motive’s then outstanding voting securities.
For purposes of this Paragraph (d), the term
“person” shall have the same meaning as when used in
Sections 13(d) and 14(d) of the Exchange Act but shall
exclude (1) a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or of a Parent or
Subsidiary and (2) a corporation owned directly or
indirectly by the stockholders of the Company in substantially
the same proportions as their ownership of the Common Shares of
the Company.
(b) A transaction shall not constitute a Change in Control
if its sole purpose is to change the state of the Company’s
incorporation or to create a holding company that will be owned
in substantially the same proportions by the persons who held
Motive’s securities immediately before such transaction.
(c) If a Change in Control occurs and Employee is
terminated without Cause within twelve (12) months
following such Change in Control, Motive shall pay to Employee
in a lump sum an amount equal to
(i) Employee’s aggregate Base Salary, less applicable
withholdings and deductions, for a period of six months, or for
a period equal to the number of months remaining in the term of
this Agreement, whichever is greater; plus
(ii) A prorated portion of Employee’s Target Bonus
based upon the number of full calendar quarters that Employee
was actively employed during the year of termination and
assuming for purposes thereof that full achievement of all
performance targets or metrics were met by both Employee and
Motive during such year.
All other rights and benefits of Employee hereunder shall
terminate upon such termination, except for any right to the
continuation of benefits otherwise provided by law.
6. EMPLOYEE WARRANTIES AND INDEMNITY.
(a) No Conflict. Employee represents and
warrants that Employee is free to enter into the terms of this
Agreement and that Employee has no obligations to any other
legal entity or otherwise that are inconsistent with any of its
provisions.
(b) No Disclosure, Misuse, or
Removal. Employee further represents and warrants
that Employee:
(i) has not and will not disclose to Motive any
confidential business information or trade secrets belonging to
any other legal entity;
(ii) will not and does not intend to use any confidential
business information or trade secrets belonging to any other
legal entity in connection with Employee’s employment with
Motive; and
(iii) has not removed any books, papers, or records
belonging to any other legal entity, including, without
limitation, any documents containing any confidential business
information, business plans, confidential customer information,
or confidential or proprietary information about any other legal
entity’s products or services.
(c) Indemnification. Employee further
agrees that in the event of a breach of the foregoing
representations and warranties, Employee will indemnify Motive
for any and all liability and losses including, without
limitation, damages payable to third parties, consequential
losses, lost profits, costs and attorneys’ fees, that
Motive may incur as a result of such breach.
7. ARBITRATION. Motive and Employee
expressly agree that any dispute between them arising out of or
relating to this Agreement or its termination or any other
aspect of Employee’s relationship with Motive or the
termination of that relationship (including any contract or tort
claims, or claimed violations of statute) shall be settled by
final and binding arbitration in Austin, Texas administered by
the American Arbitration Association under its National Rules
for the Resolution of Employment Disputes, and judgment upon the
award rendered by the arbitrator(s) may be entered in any court
with jurisdiction.
By agreeing to arbitrate, Employee understands that Employee and
Motive are mutually agreeing to submit all disputes to an
arbitral rather than judicial forum. Employee and Motive agree
that a single arbitrator will be selected from AAA and that AAA
shall schedule any arbitration and appoint the arbitrator, if
the parties cannot agree on the selection of the arbitrator.
Employee understands that the cost of the arbitrator will be
borne equally by Employee and Motive, although upon
demonstration of financial burden by Employee, the arbitrator
may shift the arbitration fees to be borne by Motive with
Employee paying a minimum of $250. Employee also understands
that the decision of the arbitrator shall be final and binding.
In the event that either party to this Agreement brings or
pursues a dispute in a court of law, which dispute is subject to
final and binding arbitration in accordance with this Agreement
and should have been brought or submitted to arbitration, that
party shall pay all reasonable attorneys’ fees and court
costs incurred by the other party in filing any motion to compel
arbitration, motion to dismiss or other pleading with said court
to enforce arbitration under those procedures.
The terms of this Section 7 survive the termination of this
Agreement by either party for any reason.
8. MISCELLANEOUS.
(a) Entire Agreement. This Agreement
embodies the entire agreement between the parties with respect
to the subject matter hereof and supersedes all prior agreements
and understandings, if any, between the parties regarding the
subject matter hereof. To the extent there is any conflict
between the provisions of this Agreement and any of
Motive’s personnel
and/or
payroll policies, the terms of this Agreement shall control.
(b) Modification. Both parties agree that
neither has the authority to modify or amend this Agreement
unless the modification or amendment is in writing and signed by
both of them.
(c) Notice To Employee. Notice to
Employee shall have occurred and be effective when:
(i) Employee receives actual notice, whether in writing or
otherwise;
and/or
(ii) when a written notice is mailed via certified mail to
Employee’s then-current address as reflected in
Motive’s records.
(d) Notice To Motive. Notice to Motive
shall have occurred and be effective when: (i) the Board
receives written notice;
and/or
(ii) when a written notice is delivered via certified mail
to Motive’s then current address.
(e) Severability. If any provision of
this Agreement is declared or found to be illegal, unenforceable
or void, the remainder of this Agreement shall remain valid and
enforceable to the extent feasible.
(f) No Waiver. Any waiver of any term of
this Agreement by Motive shall not operate as a waiver of any
other term of this Agreement, nor shall any failure to enforce
any provision of this Agreement operate as a waiver of
Motive’s right to enforce any other provision of this
Agreement.
(g) Successors. Employee’s
obligations under the Agreement will be binding upon
Employee’s heirs, executors, assigns, and administrators
and will insure to the benefit of Motive, its subsidiaries,
successors, and assigns.
(h) Survival. Employee’s obligations
under this Agreement will be binding upon Employee’s heirs,
executors, assigns, and administrators and will inure to the
benefit of Motive, its subsidiaries, successors, and assigns.
(i) Proper Construction. The language of
all parts of this Agreement shall in all cases be construed as a
whole according to its fair meaning, and not strictly for or
against any of the parties. Moreover, the paragraph headings
used in this Agreement are intended solely for convenience of
reference and shall not in any manner amplify, limit, modify or
otherwise be used in the interpretation of any of the provisions
hereof.
9. CHOICE OF LAW AND VENUE. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS. BOTH PARTIES
EXPRESSLY CONSENT TO THE JURISDICTION OF THE STATE AND FEDERAL
COURTS LOCATED IN TEXAS. THE PARTIES FURTHER AGREE THAT THE
EXCLUSIVE VENUE FOR THE RESOLUTION OF ANY DISPUTE RELATING TO
THE SUBJECT MATTER OF THIS AGREEMENT SHALL BE IN THE STATE AND
FEDERAL COURTS LOCATED IN XXXXXX COUNTY, TEXAS.
IN WITNESS WHEREOF, Employee and Motive have executed this
Agreement:
| MOTIVE: | EMPLOYEE: | |
|
By:
|
By: | |
|
Printed Name: Xxxxxx X. Xxxxxxx
|
Printed Name: Markus Remark
|
|
|
Title: Chairman & CEO
|
Title: Senior Vice President, Worldwide Services
|
|
|
Date:
|
Date: |
