Exhibit 10.14
EMPLOYMENT AGREEMENT
(Xxxxxx Xxxx)
This Employment Agreement (this "Agreement") is entered into
effective as of the 29th day of February, 2000 (the "Effective Date"),
by and between RateXchange, Inc., a Delaware corporation (the
"Companv"), and Xxxxxx Xxxx ("Employee"). The Company and Employee agree
as follows:
1. Employment. The Company hereby employs Employee, and Employee
accepts such employment, upon the terms and conditions set forth in this
Agreement.
2. Position and Duties. During Employee's employment hereunder,
he shall serve as the Company's Chief Financial Officer, and shall
perform such employment duties as the Company shall assign to him from
time to time. Employee agrees to serve the Company faithfully and to the
best of his ability and to devote his fill time, attention, and efforts
to the business and affairs of the Company during the term of his
employment. Employee hereby confirms that he is under no contractual
commitments inconsistent with his obligations set forth in this
Agreement. Employee agrees that, during the term of this Agreement, he
will not render or perform any services for any corporation, firm,
entity, or person, other than the Company, without the prior written
consent of the Company, except that Employee shall be entitled without
prior written consent to hold positions on the Board of Directors of
entities that do not compete with the Company. Employee has, as of the
date of this Agreement, disclosed to the Board of Directors of the
Company the positions Employee currently holds on other Boards of
Directors, and the Company has consented to such positions.
3. Term. Unless terminated at an earlier date in accordance with
Section 5 of this Agreement, the term of this Agreement (the `Term")
shall be three years commencing on the Effective Date.
4. Compensation. As compensation for all services to be rendered
by Employee under this Agreement, the Company shall provide to Employee
the following:
4.01 Base Salary. The Company shall pay to Employee an
annual base salary of Two Hundred Thousand Dollars ($200,000), less
legally required deductions and authorized withholdings, payable in
periodic installments in accordance with the standard payroll practices
of the Company in effect from time to time. Employee shall be eligible
for annual salary increases which shall be determined by the Company in
its sole discretion.
4.02 Incentive Bonus. Employee shall be eligible for an
annual incentive bonus (a "Bonus") of up to 50% of his annual base
salary, less legally required or legally authorized deductions and
withholdings. The amount of any Bonus paid to Employee shall be based
upon criteria upon which the Employee and the Company shall mutually
agree. The amount of any Bonus payable to Employee for the remaining
years of the Term shall be determined by the Company in its sole
discretion, based upon the eligibility criteria upon which the Company
and Employee have agreed.
4.03. Stock Options. Employee shall be entitled to
receive a grant of options to acquire Two Hundred Fifty Thousand
(250,000) shares of Company stock pursuant to the terms and subject to
the conditions of the stock plan in which the Company employee's
participate.
5. Termination.
5.01 Termination Due to Employee's Death or Disability.
Employee's employment pursuant to this Agreement shall terminate
automatically prior to the expiration of the Term in the event of
Employee's death or Disability, as defined herein. "Disability" shall
mean a physical or mental impairment of Employee which results in
Employee's inability to perform one or more of the essential functions of
Employee's position, with or without reasonable accommodation, provided
Employee has exhausted Employee's entitlement to any applicable leave, if
Employee desires to take such leave and satisfies all eligibility
requirements for such leave.
5.02 Termination by the Company for Cause. Company may
terminate Employee's employment pursuant to this Agreement prior to the
expiration of the Term in the event that there is "Cause" to terminate
Employee's employment, which shall be defined as any of the following:
(a) Employee's material breach of any obligation
to the Company under the terms of this Agreement;
(b) Employee's conviction, or the entry of a plea
of guilty or nolo contendere by Employee of any felony or any crime
involving moral turpitude; or
(c) Any acts of Employee constituting gross
negligence or misconduct in connection with his employment with the
Company, or Employee's breach of any fiduciary duty to the Company or
Employee's failure to carry out any reasonable directive of the Company,
any conduct by Employee which is detrimental to the Company, or any
failure by Employee to comply with any of the policies or performance
standards of the Company.
The Company's determination that there is Cause to terminate Employee's
employment shall be subject to the dispute resolution procedures pursuant
to Section 16 of this Agreement.
5.03 Termination by the Company without Cause. The
Company may terminate Employee's employment at any time prior to the
expiration of the Term, without prior notice and for any reason
including, but not limited to, a sale, merger, or change of control in
the ownership of the Company, provided the Company pays to Employee the
severance pay described in Section 5.05(d).
5.04 Termination by Employee. Employee may terminate his
employment at any time during the term of this Agreement by giving sixty
(60) days' prior written notice thereof to the Company/s Board of
Directors. In the event of termination by Employee under this Section,
the Company may at its option elect to have Employee cease to provide
services immediately, provided that during such 60-day notice period
Employee shall be entitled to continue to receive his base salary.
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5.05 Effect of Termination.
(a) Survival of Provisions. Notwithstanding any
termination or expiration of this Agreement, or any termination of
Employee's employment with the Company pursuant to Section 5, Employee,
in consideration of Employee's employment hereunder to the date of such
termination or expiration, shall remain bound by the provisions of this
Agreement which specifically relate to periods, activities, or
obligations upon or subsequent to the termination of Employee's
employment, including, but not limited to, the provisions of Sections 6,
7, and 8.
(b) Termination due to Death or Disability. In the
event Employee's employment terminates prior to the expiration of the
Term due to his death or Disability, Employee shall not be entitled to
any further compensation under the provisions of this Agreement, except
for his base salary earned through the date of termination, and the
portion of any annual Bonus under Section 4.02 of this Agreement which
previously had been approved by the Company but was unpaid as of
Employee's death or Disability. Employee (or, in the event of death,
Employee's estate) shall be entitled to such unpaid portion of any
approved Bonus only if Employee (or the authorized representative of
Employee's estate) signs a comprehensive general release of claims in a
form acceptable to Company. Payments of such approved but unpaid annual
Bonus shall not commence until after Employee (or the authorized
representative of his estate) signs such a release, and after any
revocation period referenced in such release has expired. If Employee (or
the authorized representative of his Estate) does not sign such a general
release of claims, Employee (or his estate) shall not be entitled to
receive any compensation under the provisions of this Agreement except
for Employee's base salary earned through the date of death or
Disability. In the case of Disability, if Employee violates any of the
provisions of Sections 7 or 8 of this Agreement, the Company's
obligations to pay the unpaid portion of any approved Bonus to Employee
shall cease on the date of such violation.
(c) Termination for Cause. In the event of a
termination for Cause under Section 5.02, Employee shall not be entitled
to receive any further compensation under the provisions of this
Agreement, except for his base salary earned through the date of
termination.
(d) Termination without Cause. In the event of
termination without Cause under Section 5.03, Employee shall be entitled
to severance pay consisting of the following: (1) base salary
continuation for 12 months following the date of termination, at the rate
in effect at the time of termination, which shall be paid on the
Company's regular paydays; and (2) a lump sum payment of $100,000.
Employee shall only be entitled to the foregoing severance pay if
Employee signs a comprehensive general release of claims in a form
acceptable to the Company. Employee's severance pay shall not commence
until the first payday after Employee signs such a release, and after any
revocation period referenced in such release has expired. If Employee
does not sign such a general release of claims, Employee shall not be
entitled to receive any compensation under the provisions of this
Agreement except for his base salary earned through the date of
termination. If Employee violates any of the provisions of Sections 7 or
8 of this Agreement, the Company's obligations to pay severance pay to
Employee shall cease on the date of such violation.
(e) Termination Occasioned by Employee. In the
event Employee terminates his employment under Section 5.04, Employee
shall not be entitled to receive any further
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compensation under the provisions of this Agreement, except for his base
salary earned through the date of termination.
6. Return of Proprietary Property. Employee agrees that all
property in Employee's possession that he obtains or is assigned in the
course of his employment with the Company, including, without limitation,
all documents, reports, manuals, memoranda, customer lists, credit cards,
keys, access cards, and all other property relating in any way to the
business of the Company, is the exclusive property of the Company, even
if Employee authored, created, or assisted in authoring or creating such
property. Employee shall return to the Company all such property
immediately upon termination of employment or at such earlier time as the
Company may request.
7. Confidential Information. Except as permitted or directed by
the Company's Board of Directors, during the time Employee is employed by
the Company or at any time thereafter, Employee shall not divulge,
furnish, or make accessible to anyone or use in any way (other than in
the ordinary course of the business of the Company) any confidential or
secret information or knowledge of the Company, whether developed by
himself or by others. Such confidential and/or secret information
encompassed by this Section 7 includes, but is not limited to, the
Company's customer and supplier lists, business plans, and financial,
marketing, and personnel information. Employee agrees to refrain from any
acts or omissions that would reduce the value of any confidential or
secret knowledge or information to the Company, both during his
employment hereunder and at any time after the termination of his
employment. Employee's obligations of confidentiality under this Section
7 shall not apply to any knowledge or information that is now published
publicly or that subsequently becomes generally publicly known, other
than as a direct or indirect result of a breach of this Agreement by
Employee.
8. Patent and Related Matters.
8.01 Disclosure and Assignment. Employee agrees to
promptly disclose in writing to the Company complete information
concerning each and every invention, discovery, improvement, device,
design, process, or product made, developed, perfected, devised,
conceived, or first reduced to practice by Employee, either solely or in
collaboration with others, during Employee's term of employment by the
Company, or within six months thereafter, relating to the business,
products, practices, or techniques of the Company (hereinafter referred
to as "Developments"). Employee, to the extent that Employee has the
legal right to do so, hereby acknowledges that any and all of said
Developments are the property of the Company and hereby assigns and
agrees to assign to the Company any and all of Employee's right, title,
and interest in and to any and all of such Developments.
8.02 Limitation. The provisions of this Section 8 shall
not apply to any Development meeting the following conditions:
(a) such Development was developed entirely on
Employee's own time; and
(b) such Development was made without the use of
any Company equipment, supplies, facilities, or trade secret information;
and such Development does not relate at
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the time of conception or reduction to practice to (i) to the business of
the Company, or (ii) to the Company's actual or demonstrably anticipated
research or development; and
(c) such Development does not result from any
work performed by Employee for the Company.
8.03 Assistance of Employee. Upon request and without
further compensation tberefor, but at no expense to Employee, and whether
during the tam of Employee's employment by the Company or thereafter,
Employee will do all lawful acts, including, but not limited to, the
execution of papers and the giving of testimony, that in the opinion of
the Company, its successors, or assigns, may be necessary or desirable in
obtaining, sustaining, reissuing, extending, or enforcing Letters Patent,
and for perfecting, affirming, and recording the Company's complete
ownership and title thereto, and to cooperate otherwise in all
proceedings and matters relating thereto.
9. Confidentiality of this Areement. Employee agrees to keep
the terms of this Agreement confidential, and not to disclose such terms
to any other RateXchange, Inc., employee, other than authorized members
of the Board of Directors of the Company.
10. Assignment. The rights and obligations of the Company under
this Agreement shall inure to the benefit of and shall be binding upon
the successors and assigns of the Company. Employee may not assign this
Agreement or any rights hereunder. Any purported or attempted assignment
or transfer by Employee of this Agreement or any of Employee's duties,
responsibilities, or obligations hereunder shall be void.
11. Governing Law, Construction, and Severability. This Agreement
is made under and shall be governed by and construed in accordance with
the laws of the State of California. In the event any provision of this
Agreement (or portion thereof) shall be held illegal or invalid for any
reason, such illegality or invalidity will not in any way affect the
legality or validity of any other provision (or portion thereof) of this
Agreement.
12. Company Remedies. Employee acknowledges that the remedy at
law for any breach of any of the provisions of Sections 6 or 7 will be
inadequate, and that the Company shall be entitled, in addition to any
remedy at law or in equity, to preliminary and permanent injunctive
relief and specific performance.
13. Entire Agreement. This Agreement contains the entire
agreement between the Company and Employee with respect to his employment
by the Company and there are no undertakings, covenants, or commitments
other than as set forth herein. This Agreement may not be altered or
amended, except by a writing executed by the party against whom such
alteration or amendment is to be enforced. This Agreement supersedes,
terminates, replaces, and supplants any and all prior understandings or
agreements between the parties relating in any way to the hiring or
employment of Employee by the Company.
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14. Counterparts. This Agreement may be simultaneously executed
in any number of counterparts, and such counterparts executed and
delivered, each as an original, shall constitute but one and the same
instrument.
15. Waivers. No failure on the part of either party to exercise,
and no delay in exercising, any right or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any
right or remedy hereunder preclude any other or further exercise thereof,
or the exercise of any other right or remedy granted hereby or by any
related document or by law. No single or partial waiver of rights or
remedies hereunder, nor any course of conduct of the parties, shall be
construed as a waiver of rights or remedies by either party (other than
as expressly and specifically waived).
16. Dispute Resolution. Any Controversy, claim, or dispute of
whatever nature arising out of or relating to this Agreement or
Employee's employment, including but not limited to discrimination
claims, whether such controversy, claim, or dispute is based on statute,
contract, tort, common law, or otherwise, and whether such controversy,
claim, or dispute existed prior to or arises after the date of this
Agreement (any such controversy, claim or dispute being a "Dispute"),
shall be resolved in accordance with the procedures set forth in this
Section 16 which procedures shall be the sole and exclusive procedures
for the resolution of any Disputes (except as otherwise provided in
Section 12). All Disputes shall be resolved by arbitration in San
Francisco, California, in accordance with the then current
Non-Administered International Arbitration Rules & Commentary of the CPR
Institute by a sole arbitrator who has had both training and experience
as an arbitrator of general corporate, commercial, and employment matters
and who is and for at least ten years has been a partner, shareholder, or
member in a law firm. If the Company and Employee cannot agree on an
arbitrator, then the arbitrator shall be selected by the President of the
CPR Institute in accordance with the criteria set forth in the preceding
sentence. The arbitrator may decide any issue as to whether, or as to the
extent to which, any Dispute is subject to the arbitration and other
Dispute resolution provisions in this Agreement. The arbitrator must: (i)
base and render his or her award on the provisions of this Agreement or
applicable law and (ii) render his or her award in writing including an
explanation of the reasons for such award and the provisions of this
Agreement supporting such award. Judgment upon the award rendered by the
arbitrator may be entered by any court having jurisdiction thereof. The
statute of limitations applicable to the commencement of a lawsuit shall
apply to the commencement of an arbitration under this subsection. The
Employee acknowledges and agrees that the Employee has been given the
opportunity to negotiate this provision. No exercise of any rights under
this Section 16 shall limit the right of the Company or the Employee
pursuant to this Agreement to commence any judicial proceeding to obtain
injunctive relief. Reasonable attorney's fees and expenses of arbitration
incurred in any Dispute relating to the interpretation or enforcement of
this Agreement shall be paid by the prevailing party in such Dispute.
17. Notices. All notices, requests, demands, consents, or other
communications required or permitted under this Agreement shall be in
writing and shall be deemed to have been duly given if delivered by
overnight courier or express mail service or by postage prepaid
registered or certified mail, return receipt requested (the return
receipt constituting prima facie evidence the giving of such notice
request, demand or other communication), by personal delivery, or by fax
with confirmation of receipt and a copy mailed with postage prepaid, to
the following address or such
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other address of which a party may subsequently give notice to the other party
in accord with the provisions of this Section. Notice is effective immediately
if by personal delivery or by fax with confirmation received and a copy mailed
the same day. Notice sent by overnight courier or by registered or certified
mail is effective the earlier of actual receipt or the fifth date after the date
mailed as evidenced by the sender's certified or registered receipt.
To the Company: RateXchange, Inc.
000 Xxxxx Xx., Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxxx Xxxxxx
To Employee: Xx. Xxxxxx Xxxx
X.X. Xxx 000
Xxxx, XX 00000
18. Attorneys Fees. Should any party hereto retain counsel for the
purpose of enforcing, or preventing the breach of, any provision hereof
including, but not limited to, the institution of any action or proceeding,
whether by arbitration, judicial or quasi-judicial action, or otherwise, to
enforce any provision hereof, or for damages for any alleged breach of any
provision hereof, or for a declaration of such party's rights or obligations
hereunder, then whether the matter is settled by negotiation, or by arbitration
or judicial determination, the prevailing party shall be entitled to be
reimbursed by the losing party for all costs and expenses incurred thereby,
including, but not limited to, reasonable attorney's fees for the services
rendered to such prevailing party.
IN WITNESS WHEREOF, the parties, intending to be legally bound thereby,
have signed this Agreement.
RATEXCHANGE: EMPLOYEE
RateXchange, Inc.
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxx Xxxx
------------------------------------ ---------------------------
Xxxx X. Xxxxxxxx, Executive Vice
President and Chief Operating Officer
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