EXHIBIT 10.10
NETWORK MANAGEMENT SERVICES, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") dated as of April 12,
1999, is made and entered into between Network Management Services, Inc., a
Minnesota corporation, ("the Company") and Xxxx Xxxxx, an individual resident of
the State of Minnesota, ("the Employee").
WHEREAS, the Company wishes to employ the Employee to render services for
the Company on the terms and conditions set forth in this Agreement, and the
Employee wishes to be retained and employed by the Company on such terms and
conditions.
NOW, THEREFORE, in consideration of the premises and the respective
undertakings of the Company and the Employee set forth below, the Company and
the Employee agree as follows:
Article 1.0 Definition. Capitalized terms in this Agreement shall have
their defined meaning throughout the Agreement. The following terms shall have
the meaning set forth below, unless the context clearly requires otherwise.
1.01 Board. "Board" shall mean the Board of Directors of the Company.
1.02 Cause. "Cause" shall mean termination by the Company of the
Employee's employment based upon: (i) the Employee's willful misconduct,
dishonesty, or other material violation of law or Company policies; or (ii)
actions (or failures to act) by the Employee in bad faith and to the
detriment of the Company.
1.03 Change in Control. A "Change in Control" of the Company shall be
deemed to have occurred if:
(a) Any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) who did not own shares of the capital stock of
the Company on the date of grant of the Option shall, together
with his, her or its "Affiliates" and "Associates" (as such terms
are defined in Rule 12b-2 promulgated under the Exchange Act),
become the "Beneficial Owner" (as such term is defined in Rule
13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Company representing fifty
percent 50% or more of the combined voting power of the Company's
then outstanding securities (any such person being hereinafter
referred to as an "Acquiring Person");
(b) The "Continuing Directors" (as hereinafter defined) shall
cease to constitute a majority of the Board;
(c) There should occur (i) any consolidation or merger involving
the Company and the Company shall not be the continuing or
surviving corporation or the shares of the Company's capital
stock shall be converted into cash, securities or other property;
provided, however, that this subclause (i) shall not apply to a
merger or consolidation in which (A) the Company is the surviving
corporation and (B) the shareholders of the Company immediately
prior to the transaction have the same proportionate ownership of
the capital stock of the surviving corporation immediately after
the transaction; (ii) any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of all
or substantially all of the assets of the Company; or (iii) any
liquidation or dissolution of the Company; or
(d) The number of directors on the Board exceeds nine (9).
In the case of a Change of Control as described in Subsections (c)(i) or
(ii), the Options will be assumed by the surviving or acquiring
corporation, as the case may be.
1.04 Confidential Information. "Confidential Information" shall mean
information that is proprietary to the Company, or to others and is
entrusted to the Company, whether or not trade secrets. Confidential
Information includes, but is not limited to, information relating to
designs, software (in source and object code), technology strategies,
business plans as to the business as conducted or anticipated to be
conducted by the Company, and to past or current or anticipated products or
services of the Company. Confidential Information also includes, without
limitation, information concerning the Company's research, development,
purchasing, accounting, marketing, selling, and services. All information
that the Employee has a reasonable basis to consider confidential is
Confidential Information, whether or not originated by the Employee and
without regard to the manner in which the Employee obtains access to it.
1.05 Continuing Director. "Continuing Director" shall mean any person
who is a member of the Board, while such person is a member of the Board,
who is not an Acquiring Person, an Affiliate or Associate of an Acquiring
Person or a representative of an Acquiring Person or of any such Affiliate
or Associate and who (i) was a member of the Board on the date of grant of
the Option or (ii) subsequently became a member of the Board, upon the
nomination or recommendation, or with the approval of, a majority of the
Continuing Directors.
1.06 Disability. "Disability" shall mean the Employee's inability to
perform the essential functions of the Employee's position, with or without
reasonable accommodation, provided the Employee has exhausted the
Employee's entitlement to any applicable leave, if the Employee desires to
take and satisfies all eligibility requirements for such leave.
1.07 Effective Date. "Effective Date" shall mean the date on page one
hereof.
1.08 Good Reason. "Good Reason" shall mean the occurrence of any of
the following events, except for the occurrence of such an event in
connection with the termination of the Employee's employment by the Company
for Cause, for Disability, or for death: (a) a material reduction in the
Employee's duties and/or responsibilities; (b) a material reduction in the
Employee's compensation, including the Employee's salary, bonus target
percentage, and stock option grants and vesting; (c) a requirement that the
Employee relocate the Employee's place of work more than twenty-five (25)
miles from the Company's current location in St. Louis Park, Minnesota.
1.09 Inventions. "Inventions" shall mean ideas, improvements, and
discoveries, whether or not such are patentable or copyrightable, and
whether or not in writing or reduced to practice.
1.10 Works of Authorship. "Works of Authorship" shall mean any
writings, drawings, diagrams, charts, tables, databases, software (in
object or source code and recorded on any medium), and any other works of
authorship, whether or not such are copyrightable.
Article 2.0 Employment.
2.01 Service With The Company. Under the terms and conditions set
forth herein and his appointment by the Board, the Company hereby employs
the Employee, and the Employee accepts such employment, as Chief Executive
Officer and member of the Board, commencing on or about April 12, 1999, at
the Company's principal place of business in St. Louis Park, Minnesota.
2.02 Performance of Duties. The Employee agrees to serve the Company
faithfully and to the best of the Employee's ability and to devote the
Employee's full-time, attention, and efforts to the business and affairs of
the Company during the term of the Employee's employment. The Employee
hereby confirms that is under no contractual commitments inconsistent with
the Employee's obligation set forth in this Agreement and that, during the
term of this Agreement, the Employee will not render or perform any
services for compensation for any other corporation, firm, entity, or
person.
Article 3.0 Compensation and Benefits.
3.01 Base Salary. As base compensation for all services to be rendered
by the Employee under this Agreement during the term of this Agreement, the
Company shall pay to the Employee an annualized salary of one hundred and
seventy-five thousand dollars ($175,000). The Employee's salary shall be
paid in accordance with the Company's normal payroll procedures and
policies, as such procedures and policies may be modified from time to time
and the Employee shall be eligible for annual salary increases consistent
with such policies and procedures.
3.02 Incentive Compensation. The Company shall make the Employee
eligible for an annual bonus payment. Payment of an annual bonus to the
Employee will be subject to the Employee's achieving certain objectives set
annually by the Board. Subject to the foregoing, the Employee's target
bonus for each year of this Agreement will be thirty-five percent (35%) of
the Employee's base salary, with an opportunity for the Employee to receive
as much as fifty percent (50%) of his base salary if the Employee greatly
surpasses the objectives for a given year. The Employee's bonus amount for
calendar year 1999 will be calculated as if the Employee had worked for the
Company for the entire calendar year of 1999.
3.03 Equity Participation. The Company shall make the Employee
eligible to receive options to purchase the Company's common stock, subject
to the terms and conditions of the Company's stock option plan ("the
Plan"). The Company shall offer the Employee an option to purchase 198,436
shares of common stock at a price of $2.25 per share. 49,609 shares of such
option shall vest when the Employee commences employment with the Company.
29,766 shares of such option shall vest after the Employee has been
employed by the Company for a period of twelve (12) months; an additional
29,766 shares shall vest after the Employee has been employed by the
Company for a period of twenty-four (24) months; an additional 29,765
shares shall vest after the Employee has been employed by the Company for a
period of thirty-six (36) months; an additional 29,765 shares shall vest
after the Employee has been employed by the Company for a period of forty-
eight (48) months; and the remaining 29,765 shares shall vest after the
Employee has been employed by the Company for a period of sixty (60)
months. Any vested option shares that have not been exercised by the
Employee will be canceled if not exercised by the Employee within the time
set forth in the Plan. If at any time during the sixty (60) month period a
Change in Control occurs, fifty percent (50%) of any unvested option shares
will immediately vest, and the vesting period for the balance of the
unvested option shares will be reduced by half.
3.04 Participation in Benefits. During the term of the Employee's
employment with the Company, the Employee shall be entitled to participate
in the employee benefits offered generally by the Company to its employees,
to the extent that the Employee's position, tenure, salary, health, and
other qualifications make the Employee eligible to participate. The
Employee's participation in such benefits shall be subject to the terms of
the applicable plans, as the same may be amended from time to time. The
Company does not guarantee the adoption or continuance of any particular
employee benefit plan during the Employee's employment, and nothing in this
Agreement is intended to, or shall in any way restrict the right of the
Company, to amend, modify, or terminate any of its benefits during the term
of the Employee's employment.
Article 4.0 Term; Termination.
4.01 Term. The Term of this Agreement shall be five (5) years from the
Effective Date. The Employee's employment under this Agreement shall
commence upon the Effective Date and shall be terminable during the term of
this Agreement by either party for any reason or no reason upon a notice of
thirty (30) days.
4.02 Termination by the Company for Cause. Notwithstanding Section
4.01 above, the Company may terminate this Agreement without notice for
Cause.
4.03 Termination by the Employee for Good Reason. Notwithstanding
Section 4.01 above, the Employee may terminate this Agreement without
notice for Good Reason.
4.04 Termination in the Event of the Employee's Death or Disability.
Notwithstanding Section 4.01 above, the Employee's employment under this
Agreement shall terminate in the event of the Employee's death or
Disability.
4.05 Termination by Mutual Agreement. Notwithstanding Section 4.01
above, the parties may terminate this Agreement at any time and upon any
other terms or conditions by mutual written agreement.
4.06 Compensation Upon Termination. As the Employee's sole and
exclusive compensation the termination of the Employee's employment by
either party during the term of this Agreement, the Company shall pay the
Employee as follows:
(a) If due to termination by the Company for Cause or by the
Employee without Good Reason, within ten (10) days after the
termination date, the Company shall pay the Employee any amounts
due to him for base salary through the termination date together
with
any other unpaid and pro rata amounts of accrued vacation pay,
sick leave, and/or business expenses reimbursements that may be
due under the Company's policies, and all unvested option shares
will be canceled immediately.
(b) If due to termination by the Company other than for Cause,
the Company shall pay the Employee his base salary in effect at
the termination date for a period of one (1) year and fifty
percent (50%) of the Employee's unvested option shares will
immediately vest. If such termination by the Company other than
for Cause occurs within two (2) years after a Change of Control,
the Company shall pay the Employee his base salary in effect at
the termination date for a period of one (1) year and one hundred
percent (100%) of the Employee's unvested option shares will
immediately vest.
(c) If due to termination by the Employee for Good Reason, the
Company shall pay the Employee his base salary in effect at the
termination date for a period of two (2) years and fifty percent
(50%) of the Employee's unvested option shares will immediately
vest. If such termination by the Employee for Good Reason occurs
within one (1) year after a Change in Control, the Company shall
pay the Employee his base salary in effect at the termination
date for a period of one (1) year and one hundred percent (100%)
of the Employee's unvested options shares will vest immediately.
(d) The Company shall have no duty or obligation to employ the
Employee following any such termination by the Company or the
Employee.
4.07 Survival. The provisions of Article 4.0 (relating to termination
rights and the provision of compensation and benefits beyond the
termination of this Agreement) shall survive termination of this Agreement
for any reason. The provisions of Article 5.0 (relating to confidential
information and intellectual property rights of the Company), the
provisions of Article 6.0 (relating to non-competition, no raiding, and
non-solicitation), the provisions of Article 7.0 (relating to dispute
resolution) and the provisions of Article 8.0 (relating to miscellaneous
terms and conditions) shall survive the expiration of the term of this
Agreement and the termination of this Agreement for any reason.
Article 5.0 Confidential Information; Intellectual Property.
5.01 Prohibitions Against Unauthorized Use. The Employee shall not use
or disclose, other than in connection with the Employee's employment with
the Company, any Confidential Information to any person not employed by the
Company or not authorized by the Company to receive such Confidential
Information, without the prior written consent of the Company during the
term of this Agreement or at any time thereafter. The Employee shall use
reasonable and prudent care to safeguard and prevent the unauthorized use
and disclosure of Confidential Information.
5.02 Exclusions. The obligations under Section 5.01 above shall not
apply to any information that: (a) is now or becomes generally available to
the public through no fault of the Employee; (b) was already known to the
Employee, as shown by his books and records, prior to disclosure of same by
the Company; (c) is or was independently developed or acquired by the
Employee without any use of or reliance on Confidential Information; (d) is
or was provided to the Employee by a third party not under any obligation
of confidentiality to the Company; or (e) is required to be disclosed by
law, provided, however, the Employee shall render reasonable cooperation,
at the Company's expense, to lawfully prevent or minimize any such public
disclosure of Confidential Information through protective orders or other
similar matters.
5.03 Ownership and Return of Company Property. All Confidential
Information or other Company property in the Employee's possession,
custody, or control, including, without limitation, all documents, reports,
manuals, business plans, minutes, memoranda, computer software, computer
databases, computer print-outs, member or customer lists, credit cards,
keys, identification, products, access cards, and all other tangible or
intangible property relating in any way to the business of the Company are
the exclusive property of the Company, even if the Employee authored,
created, or assisted in authoring or creating such property. The Employee
shall return to the Company all such Confidential Information or other
property immediately upon termination of employment for any reason
whatsoever or at such earlier time as the Company reasonably requests.
5.04 Disclosure and Assignment of Inventions and Other Works. The
Employee shall promptly disclose to the Company in writing all Inventions
and Works of Authorship, which are conceived, made, discovered, written, or
created by the Employee alone or jointly with another person, group, or
entity, whether during the normal hours of his employment at the Company or
on the Employee's own time, during the term of this Agreement and for one
(1) year following the termination of the Employee's employment with the
Company for any reason whatsoever. The Employee hereby assigns all rights
to such Inventions and Works of Authorship to the Company. The Employee
shall give the Company all the assistance it reasonably requires for the
Company to perfect, protect, and use its rights to such Inventions and
Works of Authorship. The Employee shall sign all documents, take all
actions, and supply all information that the Company considers necessary or
desirable to transfer or record the transfer of the Employee's entire
right, title, and interest in such Inventions and Works of Authorship and
to enable
the Company to obtain exclusive patent, copyright, or other legal
protection for Inventions and Works of Authorship anywhere in the world,
provided, that the Company shall bear all reasonable expenses of the
Employee in rendering such cooperation.
5.05 Exclusions. Notwithstanding Section 5.04 above, the following
shall not be deemed Inventions or Works of Authorship assigned to the
Company by the Employee hereunder: any Invention or Work of Authorship for
which no equipment, supplies, facility, or Confidential Information of the
Company was used and which was developed entirely on the Employee's own
time, and which (a) does not relate (i) directly to the business of the
Company or (ii) to the Company's actual or demonstrably anticipated
research or development, or (b) does not result from any work performed by
the Employee for the Company.
Article 6.0 Non-Competition, No Raid, and Non-Solicitation Covenants.
6.01 Non-Competition Covenant. Subject to Section 6.02 below, during
the term of this Agreement and for a period of two (2) years following the
termination of the Employee's employment with the Company for any reason
whatsoever, the Employee shall not, directly or indirectly, engage in any
business activity on his own behalf or as a partner, shareholder, director,
trustee, principle, agent, officer, employee, consultant, or otherwise of
any person or entity the business of which is the same as, similar to, or
competitive with any business of the Company, or which is engaged in the
development or production of products intended to compete with the Company,
or assist, solicit, entice, or induce any other person to engage in any
such activity. For purposes hereof, "shareholder" shall not include
beneficial ownership of less than five percent (5%) of the combined voting
power of all issued and outstanding voting securities of a publicly-held
corporation whose stock is traded on a major stock exchange or quoted on
NASDAQ.
6.02 Company's Option to Revise. At its sole option, the Company may,
by written notice to the Employee, after the termination of the Employee's
employment, waive or limit the line of business, time period, and/or
geographic area in which the Employee is prohibited from engaging in
competitive activity under Section 6.01 above.
6.03 Covenant Not to Recruit. The Employee hereby acknowledges that
the Company's employees, consultants, and other contractors constitute
vital and valuable aspects of its business and missions on a world-wide
basis. In recognition of that fact, for a period of two (2) years following
the termination of the Employee's employment with the Company for any
reason whatsoever, the Employee shall not solicit, or assist anyone else in
the solicitation of, any of the Company's then current employees,
consultants, or other contractors to terminate
their respective relationships with the Company and to become employees,
consultants, or contractors of any enterprise with which the Employee may
then be associated, affiliated, or connected.
6.04 Covenant Not to Solicit. The Employee hereby acknowledges that
the Company's customers constitute vital and valuable aspects of its
business on a world-wide basis. In recognition of that fact, for a period
of two (2) years following the termination of the Employee's employment
with the Company for any reason whatsoever, the Employee shall not solicit,
or assist anyone else in the solicitation of, any of the Company's then
current customers to terminate their respective relationships with the
Company and to become customers of any enterprise with which the Employee
may then be associated, affiliated, or connected.
Article 7.0 Dispute Resolution.
7.01 Procedure for Arbitration. Except as provided in Section 7.02
below, any dispute arising out of or relating to this Agreement or the
alleged breach of it, or the making of this Agreement, including claims of
fraud in the inducement, or any dispute arising from or related in any way
to the Employee's employment, including any statutory or tort claims, which
has not been settled through negotiation within a period of thirty (30)
days after the date on which either party shall first have notified the
other party in writing of the existence of a dispute, shall be settled by
final and binding arbitration pursuant to the provisions of this Agreement
and under the then applicable arbitration rules of the American Arbitration
Association ("AAA"), unless such rules are inconsistent with the provisions
of this Agreement. Any such arbitration shall be conducted by: (a) neutral
arbitrator appointed by mutual agreement of the parties; or (b) failing
such agreement, in accordance with said rules. The arbitrator shall be an
experienced attorney with a background in employment law. An arbitral award
may be enforced in any court of competent jurisdiction. Each party shall be
permitted reasonable discovery, including the production of relevant
documents by the other party, the exchange of witness lists, and a limited
number of depositions, including depositions of any expert who will testify
at the arbitration. The summary judgment procedure applicable in Hennepin
County, Minnesota, District Court, shall be available and apply to any
arbitration conducted pursuant to this Agreement. The arbitrator shall have
the authority to award to the prevailing party any remedy or relief that a
court of the State of Minnesota could order or grant, including costs and
attorneys' fees. Unless otherwise agreed by the parties, the place of any
arbitration proceeding shall be Minneapolis, Minnesota.
7.02 Litigation Rights Reserved. If any dispute arises with regard to
the unauthorized use or infringement of Confidential Information by the
Employee or with regard to the Employee's breach or a threatened breach of
the covenants in
Article 6.0 hereof, the Company may seek any available remedy at law or in
equity from a court of competent jurisdiction.
Article 8.0 General Provisions.
8.01 Governing Law. This Agreement is made under and shall be governed
by and construed in accordance with the laws of the State of Minnesota
without regard to conflicts of laws principles thereof.
8.02 Prior Agreements. This Agreement (including other agreements
specifically mentioned in this Agreement) contains the entire agreement of
the parties relating to the employment of the Employee by the Company and
the other matters discussed herein and supercedes all prior promises,
contracts, agreements, and understandings of any kind, whether express or
implied, oral or written, with respect to such subject matter (including,
but not limited to, any promise, contract, or understanding, whether
express or implied, oral or written, by and between the Company and the
Employee) and the parties hereto have made no agreements, representations,
or warranties relating to the subject matter of this Agreement which are
not set forth herein or in the other agreements mentioned herein.
8.03 Withholding Taxes. The Company may take such action as it deems
appropriate to ensure that all applicable federal, state, city, and other
payroll, withholding, income, or other taxes arising from any compensation,
benefits, or any other payments made pursuant to this Agreement, or any
other contract, agreement, or understanding which relates, in whole or in
part, to the Employee's employment with the Company, are withheld or
collected from the Employee. In connection with the foregoing, the Employee
agrees to notify the Company promptly upon entering into any contract,
agreement, or understanding relating to the Employee's employment with the
Company and also to notify the Company promptly of any payments or benefits
paid or otherwise made available pursuant to any such agreements.
8.04 Amendments. No amendment or modification of this Agreement shall
be deemed effective unless made in writing and signed by the Employee and
the Company.
8.05 No Waiver. No term or condition of this Agreement shall be deemed
to have been waived, nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by
the party against whom enforcement of the waiver or estoppel is sought. Any
written waiver shall not be deemed a continuing waiver unless specifically
stated, shall operate only as to the specific term or condition waived, and
shall not constitute a waiver of such term or condition for the future or
as to any act other than as specifically set forth in the waiver.
8.06 Assignment. This Agreement shall not be assignable, in whole or
in part, by any party without the written consent of the other party,
except that the Company may, without the consent of the Employee, assign
its rights and obligations under this Agreement to any corporation, firm,
or other business entity with or into which the Company may merge or
consolidate, or to which the Company may sell or transfer all or
substantially all of its assets, or of which fifty percent (50%) or more of
the equity investment and of the voting control is owned, directly or
indirectly, by, or is under common ownership with, the Company. After any
such assignment by the Company, the Company shall be discharged from all
further liability hereunder and such assignee shall thereafter be deemed to
be the Company for the purposes of all provisions of this Agreement
including this Section 8.06.
8.07 Injunctive Relief. The Employee acknowledges and agrees that the
services to be rendered by the Employee hereunder are of a special, unique,
and extraordinary character, that it would be difficult to replace such
services and that any breach or threatened breach of the covenants in
Article 6.0 hereof would be highly injurious to the Company and that it
would be extremely difficult to compensate the Company fully for damages
for any such violation. Accordingly, the Employee specifically agrees that
the Company shall be entitled to temporary and permanent injunctive relief
to enforce the provisions of the covenants of Article 6.0 hereof, and that
such relief may be granted without the necessity of proving actual damages
and without necessity of posting any bond. This provision with respect to
injunctive relief shall not, however, diminish the right of the Company to
claim and recover damages, or to seek and obtain any other relief available
to it at law or in equity, in addition to injunctive relief.
8.08 Construction. Where ever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of
this Agreement. In furtherance of and not in limitation of the foregoing,
the parties agree that, should the duration of, geographical extent of, or
business activities covered by, any provision of this Agreement be in
excess of that which is valid or enforceable under applicable law in a
given jurisdiction, then such provision, as to such jurisdiction only,
shall be construed to cover only that duration, extent, or activities that
may validly or enforceably be covered. The Employee acknowledges the
uncertainty of the law in this respect and expressly stipulates that this
Agreement shall be construed in a manner that renders its provisions valid
and enforceable to the maximum extent (not exceeding its express terms)
possible under applicable law in each applicable jurisdiction.
8.09 Captions. The various headings or captions in this Agreement are
for convenience only and shall not affect the meaning or interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
set forth in the first paragraph.
NETWORK MANAGEMENT SERVICES, INC.
By /s/ Xxxx Xxxxxxx
-------------------------------------
Its
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
