Exhibit 10.33
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of the April 9, 1999, is made by and between
Streamline, Inc., a Delaware corporation (the "Employer"), and Xxxxxxx X.
XxXxxxx (the "Employee").
Section 1. FREEDOM TO CONTRACT.
The Employee represents that he is free to enter into this Agreement,
and that he has not made and will not make any agreements in conflict with this
Agreement. The Employee will not, and the Employer will not require the Employee
to, disclose to the Employer, or use for the Employer's benefit, any trade
secrets or confidential information now or hereafter in the Employee's
possession which is the property of any other party.
Section 2. EMPLOYMENT.
The Employer hereby employs the Employee, and the Employee hereby
accepts his employment by the Employer, upon the terms and conditions set forth
herein.
Section 3. EFFECTIVE DATE AND TERM.
This Agreement shall take effect as of April 1, 1999 (the "Effective
Date"), and shall continue in full force and effect until terminated in
accordance with Section 6 herein.
Section 4. TITLE AND DUTIES; EXTENT OF SERVICES.
The Employee shall promote the business and affairs of the Employer as
President and Chief Executive Officer of the Employer, with responsibility for
performing such duties consistent with such position as the Board of Directors
of the Employer or the Compensation Committee thereof (each of the foregoing
being referred to herein as the "Board") may from time to time designate. Except
as otherwise provided in this Agreement and except for vacations and absences
due to temporary illness, the Employee shall devote his full time and efforts to
the business and affairs of the Employer, provided that, with the Employer's
prior written consent the Employee may engage in such other business activities
outside the scope of his employment hereunder as in the reasonable judgment of
the Employer will not materially adversely affect the Employee's ability to
perform his obligations under this Agreement.
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Section 5. COMPENSATION AND FRINGE BENEFITS.
Section 5.1. Base Salary. In consideration of the services rendered by
the Employee under this Agreement, the Employer shall pay the Employee an
initial base salary (the "Base Salary") at an annual rate of Two Hundred
Thousand Dollars ($200,000), payable in arrears bi-weekly (or on such other
payment schedule as the Employer shall have reasonably implemented with respect
to the payment of its other salaried employees), such Base Salary being subject
to increase at the discretion of the Board.
Section 5.2. Bonus. The Employer may pay the Employee such bonus, if
any, with respect to any fiscal year as the Board may determine from time to
time, provided that such bonus not exceed 50% of the Employee's Base Salary for
such year.
Section 5.3. Fringe Benefits. The Employee shall be entitled to such
life insurance, health insurance and other employee fringe benefits as may be
offered or generally made available by the Employer to its executive officers.
Section 5.4. Stock Options. Effective as of the closing of the
Employer's initial public offering of Common Stock (the "IPO"), the Employee
shall be granted stock options, pursuant to the Employer's 1993 Employee
Stock Option Plan, as amended, to purchase 500,000 shares of common stock of
Employer ("Common Stock") at an exercise price per share equal to the price
per share at which the Employer first sells shares of Common Stock to the
underwriters in connection with the IPO, prior to underwriting discounts and
commissions. Such stock options shall vest at the rate of 20% per year on
each of the first five anniversaries of the Effective Date. Promptly
following execution of this Agreement, the parties shall execute a stock
option agreement reflecting the provisions of this Section 5.4, which stock
option agreement shall be substantially in the form generally used by the
Employer in connection with the granting of nonqualified stock options.
Section 6. TERMINATION; CHANGE OF CONTROL.
Section 6.1. Termination of Employment. The Employee's employment
hereunder shall terminate upon the Employee's death or Permanent Disability. For
purposes of this Agreement, "Permanent Disability" shall mean the Employee's
inability to perform his duties hereunder for a continuous period of six (6)
months by reason of his physical or mental illness or incapacity. In the event
of any dispute concerning the existence of a Permanent Disability, such question
shall be determined by a licensed physician selected by the Employer and
reasonably acceptable to the Employee, whose determination shall be final and
binding upon the parties. The Employee shall submit to such examinations
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and furnish such information as such physician may reasonably request. The
Employee's employment hereunder may also be terminated:
(a) By the Employee at any time upon at least thirty (30) days
prior written notice to the Employer; or
(b) By the Employer at any time upon at least thirty (30) days
prior written notice to the Employee; or
(c) By the Employee at any time for good reason, including but
not limited to:
(i) failure of the Employer to continue to employ the
Employee as President and Chief Executive Officer of the
Employer; or
(ii) material diminution of the Employee's
responsibilities, duties or authorities as President and Chief
Executive Officer of the Employer, or assignment to the
Employee of any responsibilities or duties inconsistent with
such positions; or
(iii) failure of the Employer to pay and provide to
the Employee the compensation provided for herein; or
(iv) requiring the Employee to be permanently based
anywhere other than the principal executive offices of the
Employer (excluding business-related travel to an extent
reasonably consistent with past practice); or
(d) By the Employer at any time for cause, including but not
limited to:
(i) the Employee's gross negligence or willful
misconduct with respect to the business and affairs of the
Employer; or
(ii) the Employee's material breach of this
Agreement; or
(iii) the commission by the Employee of an act
involving moral turpitude or fraud; or
(iv) the Employee's conviction of any felony.
The provisions of Sections 6.2, 6.3, 7, 8, 9 and 10 shall survive any
termination of the Employee's employment hereunder and shall continue in effect
until such time as all obligations of the parties described therein have been
satisfied.
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Section 6.2. Compensation Following Termination; Severance Pay.
(a) If the Employee terminates his employment pursuant to
Section 6.1(a) hereof, or if such employment is terminated by the death
or Permanent Disability of the Employee, the Employee shall not be
entitled to compensation, severance pay or fringe benefits beyond the
date upon which he ceases to be employed hereunder (the "Employment
Termination Date") except as may be otherwise provided in any then
existing insurance or health benefit programs of the Employer.
(b) If the Employer terminates the employment of the Employee
pursuant to Section 6.1(b) hereof or if the Employee terminates his
employment pursuant to Section 6.1(c) hereof, the Employer shall be
entitled for a period of two years (the "Severance Period") to continue
to receive payment of his Base Salary (as in effect on the Employment
Termination Date) at the same rate and on the same schedule as if the
Employee were still employed by the Employer during such period. During
the Severance Period, the Employer shall also continue to provide the
Employee with such health benefits as were provided to the Employee
immediately prior to the Employment Termination Date (or substantially
comparable benefits if a continuation of benefits is not permitted
under then existing insurance or health benefit programs of the
Employer), such benefits to be provided to the same extent and under
the same terms and conditions as if the Employee were still employed by
the Employer during such period. Except as specifically provided in
this Section 6.2(b), the Employee shall not be entitled to any fringe
benefits following the Employment Termination Date.
(c) If the Employer terminates the employment of the Employee
for cause pursuant to Section 6.1(d) hereof, the Employee shall not be
entitled to compensation, performance bonus or fringe benefits
hereunder beyond the Employment Termination Date.
Section 6.3. Acceleration of Stock Options and Restricted Stock.
(a) Immediately prior to the occurrence of an Acquisition or
Change in Control (each as defined below) or upon the termination of
the Employee's employment pursuant to Section 6.1(b) or 6.1(c) hereof,
each option to acquire shares of capital stock of the Employer and each
share of restricted capital stock of the Employer then held by the
Employee, if any, shall automatically and without further action become
fully vested, and each such option shall remain exercisable until the
expiration of such option or until it sooner terminates in accordance
with its terms.
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(b) For purposes of Section 6.3(a), the term "Acquisition"
shall mean:
(i) a merger, consolidation or similar transaction in
which securities possessing more than 50% of the total
combined voting power of the Employer's outstanding securities
are transferred to a person or persons different from the
persons who held those securities immediately prior to such
transaction, or
(ii) the sale, transfer, or other disposition of all
or substantially all of the Employer's assets to one or more
persons (other than any wholly owned subsidiary of the
Employer) in a single transaction or series of related
transactions.
(c) For purposes of Section 6.3(a), the term "Change in
Control" shall mean a change in ownership or control of the Employer
effected through either of the following transactions:
(i) any person or related group of persons (other
than the Employer or a person that directly or indirectly
controls, is controlled by, or is under common control with
the Employer) directly or indirectly acquires beneficial
ownership (determined pursuant to Rule 13d-3 promulgated under
the Securities Xxxxxxxx Xxx 0000, as amended) of securities
possessing more than 50% of the total combined voting power of
the Company's outstanding securities pursuant to a tender or
exchange offer made directly to the Employer's stockholders,
(ii) over a period of 36 consecutive months or less,
there is a change in the composition of the Board such that a
majority of the Board members (rounded up to the next whole
number, if a fraction) ceases, by reason of one or more proxy
contests for the election of Board members, to be composed of
individuals who either (A) have been Board members
continuously since the beginning of such period, or (B) have
been elected or nominated for election as Board members during
such period by at least a majority of the Board members
described in the preceding clause (A) who were still in office
at the time such election or nomination was approved by the
Board, or
Section 7. PROVISIONS OF GENERAL APPLICATION.
Section 7.1. Disputes. In the event of any dispute touching or
concerning this Agreement, the parties will submit to the exclusive jurisdiction
and venue of any court of competent jurisdiction sitting in Suffolk County,
Massachusetts, and the parties agree to comply with all requirements necessary
to give such court
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jurisdiction over the parties and the controversy. EACH PARTY HEREBY WAIVES ANY
RIGHT TO A JURY TRIAL AND TO CLAIM OR RECOVER PUNITIVE DAMAGES.
Section 7.2. Governing Law. This Agreement and the rights and
obligations of the parties hereunder shall be construed, interpreted and
determined in accordance with the internal substantive laws of the Commonwealth
of Massachusetts (excluding choice of law or conflict of law provisions).
Section 7.3. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original and all of which, taken
together, shall constitute one and the same document. In making proof of this
Agreement it shall not be necessary to produce or account for more than one such
counterpart.
Section 7.4. Other Agreements. This Agreement represents the entire
understanding and agreement between the parties as to the subject matter hereof
and supersedes all prior or concurrent oral or written agreements relating
thereto except for the Invention and Non-Disclosure Agreement and the
Non-Competition and Non-Disclosure Agreement between the Employer and the
Employee.
Section 7.5. Amendment. This Agreement may be amended only by a written
document executed in one or more counterparts by each of the parties hereto.
Section 7.6. Waiver. No consent to or waiver of any breach or default
in the performance of any obligation hereunder shall be deemed or construed to
be a consent to or waiver of any other breach or default in the performance of
any of the same or any other obligation hereunder. Failure on the part of either
party to complain of any act or failure to act of the other party or to declare
the other party in default, irrespective of the duration of such failure, shall
not constitute a waiver of rights hereunder and no waiver hereunder shall be
effective unless it is in writing, executed by the party waiving the breach or
default hereunder.
Section 7.7. Assignment. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their successors and assigns. This
Agreement may be assigned by the Employer to any Affiliate (as hereinafter
defined) or to a successor to the portion of its business to which this
Agreement relates (whether by purchase or otherwise). For purposes of this
Agreement, "Affiliate" shall mean any person or entity which, directly or
indirectly, controls or is controlled by or is under common control with the
Employer and, for the purposes of this definition, "control" (including the
terms "controlled by" and "under common control with"), shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of another, whether through the
ownership of voting securities or holding of office
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in another, by contract or otherwise. The Employee may not assign or transfer
any of his rights or obligations under this Agreement.
Section 7.8. Headings. The headings of sections and subsections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement or to affect the meaning of any of its
provisions.
Section 7.9. Severability. If any provision of this Agreement shall, in
whole or in part, prove to be invalid for any reason, such invalidity shall
affect only the portion of such provision which shall be invalid, and in all
other respects this Agreement shall stand as if such invalid provisions, or the
invalid portion thereof, had not been a part hereof.
IN WITNESS WHEREOF, this Agreement has been executed by the Employer,
by its duly authorized officer, and by the Employee, as of the Effective Date.
STREAMLINE, INC.
By: /s/ Xxxx Xxxx
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Xxxx Xxxx, Chairman of
the Compensation Committee
EMPLOYEE
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. XxXxxxx
