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EXHIBIT 10.19
EMPLOYMENT AGREEMENT
This Employment Agreement between Xxxxxx X. Xxxxxx ("you"
or "Employee") and CyberCash, Inc., a Delaware corporation with
offices at 0000 Xxxxxx Xxxxxxx, Xxxxxx, Xxxxxxxx (with its
successors, the "Company") is entered into as of December 15,
1999 and sets forth the terms and conditions of your employment
by CyberCash.
1. SCOPE
a) You will act as Executive Vice President,
International and Strategic Business Alliances, of the
Company, and in that capacity you will report directly
to the Chief Executive Officer. You will be
responsible for managing the Company's international
alliances and strategic development. From time to time
the President may change your title and
responsibilities, but not to a lesser title than
Executive Vice President and responsibilities
concomitant with those of a senior executive who
reports directly to the President of a corporation
similar to the Company.
b) You agree not to engage in any other employment or
activity at any time during your employment with the
Company which materially interferes with the
performance of your duties for the Company.
2. TERM OF EMPLOYMENT
The term of this Employment Agreement shall commence on the date
set forth above and, unless renewed by written agreement, shall
terminate on December 31, 2003, above; provided that, subject to
the Company's compliance with its obligations under Section 3,
below either you or the Company may terminate this Agreement
prior to the expiration of its term.
3. COMPENSATION AND BENEFITS
a) Your compensation will consist of the following:
i) An annual base salary of $190,000, to be paid
bi-monthly in arrears into a bank account designated
by you. You will be responsible for the payment of any
taxes due. Your base salary shall be evaluated
annually by the Compensation Committee of the Board of
Directors with consideration given to a salary
increase.
ii) You have already been granted certain stock
options and will be considered for the grant of
additional options from time to time in recognition of
your achievement.
iii) You will be eligible for bonuses under the
Company's standard bonus plan as in effect from time
to time.
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b) The Company shall provide you the following additional
benefits:
i) Health insurance benefits for you and your family, in
accordance with the Company's standard health
insurance plan for executives.
ii) Twenty-three days per year of paid vacation.
iii) Reimbursement of pre-approved business expenses.
c) If (a) your employment with the Company is terminated
by the Company other than for cause, or (b) there is a
Change of Responsibilities (as defined below):
i) You will be entitled to severance pay equal to your
then current base salary (without benefits, but not
less than $190,000 per annum) for 12 months, paid in
equal monthly installments, plus a bonus equal to the
amount of any annual bonus you were paid for the
calendar year immediately preceding the termination of
your employment. (These payments will be treated as
compensation income for purposes of applicable
federal, state, and local taxes.)
ii) All unvested stock options granted to you by the
Company or its successor shall vest and become
immediately exercisable in full.
iii) The Company will continue for 12 months the same
health (including dental) and disability insurance
benefits you were receiving prior to your termination.
d) For the purposes of this Agreement:
i) Cause for termination shall exist if: (a) you fail or
refuse to perform your duties (not including a failure
to perform due to a disability entitling you to
disability benefits) and your failure or refusal
continues after written notice; (b) you are convicted
for a crime constituting a felony involving moral
turpitude; or (c) you commit a material act of fraud
or dishonesty resulting in substantial harm to the
Company.
ii) There would be a Change of Responsibilities if because
of actions of the Chief Executive Officer or the Board
of Directors of the Company you no longer were
reporting directly to the Chief Executive Officer or
were no longer performing functions normally performed
by an Executive Vice President of a corporation
similar to the Company or were no longer reporting
directly to the Chief Executive Officer of the Company
or its successor.
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4. CONFIDENTIAL INFORMATION.
a) In the course of your employment, the Company will
disclose to you confidential information
concerning, among other things, the Company's
existing and prospective clients, existing and
contemplated products and services, inventions,
software, and other matters and information
received from the Company clients, any affiliated
entities of the Company, and other third parties,
which information constitutes valuable assets of
the Company ("Confidential Information"). The term
"Confidential Information" shall include all
information that is not known by, or generally
available to the public at large and that concerns
the business or affairs of the Company and its
affiliated entities, including, but not limited to,
technology, methods of operation, and information
regarding clients of a party hereto. The Company
shall have no obligation to specifically identify
any information as constituting Confidential
Information in order for it to be entitled to
protection as such.
b) You will not, at any time during or after your
employment, without the prior written consent of
the Company, use any portion of the Confidential
Information for any purpose other than as
contemplated herein, and you agree that:
i) You will hold all Confidential Information in
the strictest confidence, and will exercise at
least the same care with respect thereto as
you exercise with respect to your own
proprietary and confidential information, and
will not, without the Company's prior written
consent, copy or disclose any portion thereof
to any third party except as contemplated
herein; and
ii) You will not remove or permit to be removed
from any Confidential Information any notice
placed thereon by the Company indicating the
confidential nature of, or the proprietary
right of the Company in such items.
c) The foregoing shall not prohibit or limit your use of
information (including, but not limited to, ideas,
concepts, know-how, techniques, and methodologies)
which: (i) are already known to you; (ii) are
independently developed by you; (iii) were received by
you on a non-confidential basis, prior to receipt from
the Company, from a third party lawfully possessing
and lawfully entitled to disclose such information; or
(iv) becomes part of the public domain through
circumstances unrelated to any breach by you of this
Agreement.
d) In the event you become aware that any person or
entity is taking or threatens to take any action which
would violate any of the foregoing provisions were
that person or entity a party to this Agreement, you
shall promptly and fully advise the Company (with
written confirmation as soon as practicable
thereafter) of all facts known to you concerning such
action or threatened action. You shall not in any
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way aid, abet or encourage any such action or threatened
action. You agree to cooperate in all reasonable ways
to prevent such action or threatened action, and you
agree to do all reasonable things and cooperate in all
reasonable ways as may be requested by the Company to
protect the trade secrets, and proprietary rights of
the Company in and to the Confidential Information.
5. OWNERSHIP OF WORK.
a) The Company shall own and you hereby assign to the
Company all right, title and interest in any
invention, technique, process, device, discovery,
improvement or know-how, patentable or not, including
all trade secrets and copyrights, in and to the
following works created by you during the term of your
employment on the Company's premises or at any other
location: (i) works that relate to or are derived
from the actual or anticipated business of the
Company, and (ii) works that result from or are
derived from any services performed by you or, if not
actually performed, services requested by the Company
to be so performed (collectively the "Contract
Work"). The Company shall own such Contract Work even
if you create such Contract Work outside normal
working hours and regardless of the ownership of the
equipment used to create such Contract Work. Such
Contract Work shall include program codes and
documentation.
b) To the extent that any such Contract Work does not
qualify as works made for hire under U.S. copyright
law, you hereby assign to the Company and agree to
assign to the Company, irrevocably and in perpetuity,
any and all right, title and interest that you may
have in and to the Contract Work. Promptly upon the
Company's request, you agree that you will execute any
appropriate assignment document.
c) If you alone or jointly with others make or conceive
of any invention, technique, process, or other
know-how, whether patentable or not, in the course of your
employment, which relates in any manner to the actual
or anticipated business of the Company (collectively,
"Inventions"), you hereby assign to the Company your
entire right, title and interest in such Inventions.
You will disclose any such Inventions to an officer of
the Company and will, upon request, promptly sign a
specific assignment of title to the Company, and do
anything else reasonably necessary to enable the
Company to secure patent, trade secret or any other
proprietary rights in the United States or foreign
countries.
d) You hereby agree, at the Company's request, to assist
the Company and its nominees to secure, maintain, and
defend for the Company's own benefit all copyrights
and patents, and other proprietary rights in the
Contract Work in any and all countries. Your
obligations to assist the Company in obtaining and
enforcing its proprietary rights in the Contract Work
shall continue beyond the termination or expiration of
this Agreement, but the Company shall compensate you
for any assistance rendered after such expiration or
termination at a reasonable rate for time actually
spent by you at the Company's request.
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e) You understand that you may continue to work on, and
retain rights to, projects of your own interest
outside of the Company which do not in any way compete
or conflict with the current or planned business of
the Company provided that (i) they do not fall under
the paragraphs titled "Ownership of Works" above; and
(ii) they do not interfere in any way with your time
at work or duties for the Company. You understand
that you are not permitted to engage in any outside
business activities while employed by the Company
which compete with or conflict with the current or
planned business of the Company.
6. EQUITABLE RELIEF.
a) Because any breach by you of the promises set forth in
Sections 4 and 5 herein would cause irreparable harm
and significant injury which dollar amount would be
difficult to ascertain and which in fact would not be
compensable by money damages alone, you agree that the
Company shall have the right to enforce this Agreement
and any of such provisions by injunction, specific
performance or other equitable relief without
prejudice to any other rights and remedies that the
Company may have for breach of this Agreement.
b) You hereby consent to the personal jurisdiction of the
U.S. federal courts in the Commonwealth of Virginia
over you in connection with all disputes regarding
this Agreement and agree that all disputes regarding
this Agreement shall be exclusively settled in those
courts.
7. RESTRICTIVE COVENANTS.
a) You further agree that, unless the Company has
materially failed to meet its obligations under
this Agreement, during your employment by the
Company and for a period of 12 months (or, if you
were employed by the Company for less than 12
months and you are not receiving the above
described severance pay, for a shorter period
equal to the duration of your employment by the
Company) commencing on the date of termination of
your employment with the Company (the
"Termination Date"), you shall not:
i) solicit business or perform work for any of
the Company's clients, or for any of the
Company's prospective clients to whom the
Company has made written proposals within
six months prior to the Termination Date,
either directly or indirectly, for the
benefit of anyone other than the Company or
participate or assist in any way in the
solicitation of business from or performance
of work for any such clients as an
independent contractor or consultant to any
other entity unless the business being
solicited or the work being performed is not
directly competitive with the services and
products provided by the Company to such
clients (the business of the Company is
international in scope, therefore, the
restrictions of this paragraph shall apply
worldwide);
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ii) hire any employee of the Company, or
knowingly attempt to induce any employee of
the Company to leave the Company's employ;
iii) either directly or indirectly, alone or in
association with others, become an employee,
officer, director, partner or five percent
or greater stockholder of, or consultant to,
any entity which engages in the development,
sale or marketing of software or services to
enable electronic payments, or in any other
business which is directly competitive with
any business conducted by the Company; and
iv) enter the employ of any person, firm or other
entity engaged in any business that directly
competes with the Company Business, as defined
below, or render any services to any person, firm
or other entity for use in directly competing
with the Company Business.
b) You acknowledge that (i) the Company is engaged and in
the future will be engaged in the business of
providing technology and services to enable electronic
payments (the foregoing, together with any other
businesses that the Company engages from the date
hereof to the date of the termination of this
Agreement, being hereinafter referred to as the
"Company Business"); (ii) your services to the Company
have been and will continue to be special and unique
and have immeasurable value to the Company; (iii) your
work for the Company allows you access to trade
secrets of and confidential information concerning the
Company; (iv) the Company Business is national and
international in scope; (v) the Company would not have
entered into this Agreement and employed you but for
the agreements and covenants contained in this
Agreement; and (vi) the agreements and covenants
contained in this Agreement are essential to protect
the business and goodwill of the Company.
8. GOVERNING LAW AND SEVERABILITY.
This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia. If
any provision of this Agreement is for any reason found by a
court of competent jurisdiction to be unenforceable, that
provision will be enforced to the maximum extent permissible,
and the remainder of this Agreement shall continue in full force
and effect.
9. NOTICES.
Any notices required or permitted hereunder shall be given
to the appropriate party at the address specified above or at
such other address as the party shall specify in writing. Such
notice shall be deemed given upon personal delivery to the
appropriate address or three days after being sent by certified
or registered mail or Federal Express.
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10. ENTIRE AGREEMENT AND MODIFICATION.
This Agreement contains the entire agreement between you
and the Company concerning the subject matter hereof and
supersedes all prior agreements and understandings. This
Agreement may be modified only by a writing signed by the
parties hereto. If the terms of this offer of employment are
acceptable to you, please sign and return the enclosed copy of
this letter, confirming your agreement with the foregoing.
Xxxxxx X. Xxxxxx CyberCash, Inc.
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