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EXHIBIT 10.14
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into by and between
Telocity, Inc. (the "Company") and ▇▇▇ ▇▇▇▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇▇▇▇) on September
14, 1999.
1. Position and Duties: ▇▇. ▇▇▇▇▇▇▇▇▇ shall be employed by the Company
as its Executive Vice President and Chief Marketing Officer, reporting only to
the Company's Chief Executive Officer (the "CEO") beginning no later than
October 1, 1999 (the "Effective Date"). ▇▇. ▇▇▇▇▇▇▇▇▇ agrees to devote his full
business time, energy and skill to his duties at the Company. These duties shall
include all those duties customarily performed by the Chief Marketing Officer,
including but not limited to advertising, public relations, promotional
activities, Internet presence, corporate communications, product marketing and
packaging, market targeting, and market segmentation, as well as those duties
that may be assigned by the CEO from time to time. ▇▇. ▇▇▇▇▇▇▇▇▇ shall be
responsible for retaining and terminating, as necessary, all outside support for
the Company's marketing operations including, but not limited to, advertising,
sales promotion, media buying and public relations agencies, as well as website
design, product packaging design, and market research firms.
2. Term of Employment: ▇▇. ▇▇▇▇▇▇▇▇▇'▇ employment with the Company will
be for no specified term, and may be terminated by ▇▇. ▇▇▇▇▇▇▇▇▇ or the Company
at any time, for any reason, with or without cause, and neither ▇▇. ▇▇▇▇▇▇▇▇▇
nor the Company shall have any further obligation or liability whatsoever under
this Employment Agreement to the other, except as may be specifically set forth
herein,
3. Compensation: ▇▇. ▇▇▇▇▇▇▇▇▇ shall be compensated by the Company for
his services as follows:
A. Base Salary: ▇▇. ▇▇▇▇▇▇▇▇▇ shall be paid a monthly Base Salary
of $22,917 per month ($275,000 on an annualized basis), subject to applicable
withholding, in accordance with the Company's normal payroll procedures. ▇▇.
▇▇▇▇▇▇▇▇▇'▇ salary shall be reviewed on at least an annual basis and may be
increased as appropriate. In the event of such an increase, the new amount shall
become ▇▇. ▇▇▇▇▇▇▇▇▇'▇ Base Salary.
B. Benefits: ▇▇. ▇▇▇▇▇▇▇▇▇ shall have the right, on the same
basis as other members of the Company's senior management, to participate in and
to receive benefits under any of the Company's employee benefit plans, as such
plans may be modified from time to time. By way of description and not
limitation, ▇▇. ▇▇▇▇▇▇▇▇▇ shall be entitled to the benefits afforded to other
members of senior management under the Company's Bonus Program, which shall be
defined within sixty (60) days of the Effective Date, and its vacation, holiday
and business expense reimbursement policies. ▇▇. ▇▇▇▇▇▇▇▇▇ shall also be
entitled to participate in the same option increase evaluation process, if any,
afforded to other members of senior management at such time as such process may
be undertaken.
C. "Gross-Up Payments": In the event that ▇▇. ▇▇▇▇▇▇▇▇▇ becomes
entitled to receive a payment pursuant to this Agreement (a "Payment"), and is
entitled to a Gross-Up for
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such Payment pursuant to a specific provision of this Agreement, then no later
than the fifth day following the date (the "Payment Date") on which ▇▇.
▇▇▇▇▇▇▇▇▇ becomes entitled to receive such Payment, the Company shall pay to ▇▇.
▇▇▇▇▇▇▇▇▇ additional amounts (the "Gross-Up Payments") such that the net amount
retained by ▇▇. ▇▇▇▇▇▇▇▇▇, after deduction of any Excise Tax (within the meaning
of Section 4999 of the Internal Revenue Code, the "Code"), or federal, state or
local income tax on the aggregate Payments received (or that ▇▇. ▇▇▇▇▇▇▇▇▇ has
become entitled to receive) as of the Payment Date plus any federal, state or
local income tax and any Excise Tax upon the Gross-Up Payments (after taking
into account all Gross-Up Payments previously made), shall be equal to the
amount ▇▇. ▇▇▇▇▇▇▇▇▇ is entitled to receive under the definition of such
Payment. For the purposes of determining whether any Payment will be subject to
Excise Tax and the amount of such Excise Tax, (i) all amounts received or to be
received by ▇▇. ▇▇▇▇▇▇▇▇▇ in connection with a Change of Control (as defined in
Section 9A(i), below) shall be treated as "parachute payments" within the
meaning of Section 28OG(b)(2) of the Code, and all excess "parachute payments"
within the meaning of Section 28OG(b)(1) of the Code shall be treated as subject
to the Excise Tax, except to the extent that in the written opinion of
independent tax counsel selected by the Company's independent auditors (the "Tax
Counsel") which opinion shall be obtained at the Company's expense, any such
payments or benefits (in whole or in part) do not constitute parachute payments
or excess parachute payments (in whole or in part), or represent reasonable
compensation for personal services to be rendered or actually rendered before
the Change of Control in excess of the base amount, within the meaning of
Section 280(b)(4)(B) of the Code; and (ii) the value of any non-cash benefit or
any deferred cash payment included in the Payments shall be determined by the
Company's independent auditors in accordance with the principles of Section
28OG(d)(3) and (4) of the Code. For purposes of determining the amount of each
Gross-Up Payment, ▇▇. ▇▇▇▇▇▇▇▇▇ shall be deemed to pay federal income taxes at
the highest marginal rate of federal income taxation in effect during the
calendar year in which the Gross-Up Payment is to be made and state and local
income taxes at the highest marginal rate of taxation in effect in the state and
locality of ▇▇. ▇▇▇▇▇▇▇▇▇'▇ residence on the date of payment, net of the maximum
reduction in federal income taxes that could be obtained from deduction of such
state and local taxes, but assuming that ▇▇. ▇▇▇▇▇▇▇▇▇ has no other deductions
or credits available to reduce such taxes.
D. Bonuses: In addition to the Company's Bonus Program, ▇▇.
▇▇▇▇▇▇▇▇▇ shall be entitled to the following additional bonuses:
i. Signing Bonus: Within thirty (30) days of the Effective Date,
the Company will pay ▇▇. ▇▇▇▇▇▇▇▇▇ a signing bonus in the total
amount of $150,000, less applicable withholding. In the event
that ▇▇. ▇▇▇▇▇▇▇▇▇ voluntarily resigns from his employment other
than for Good Reason during the first year following the
Effective Date, ▇▇. ▇▇▇▇▇▇▇▇▇ agrees that he shall repay a
pro-rata share of the signing bonus based on the time remaining
in the first year of service.
ii. January 1, 2000 Conditional Bonus: On January 1, 2000,
provided that certain agreed to objectives have been met and ▇▇.
▇▇▇▇▇▇▇▇▇ shall have been continuously employed full time with
the Company since the Effective Date, he shall be entitled to a
bonus in the total amount of $150,000, less applicable
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withholding. Within sixty (60) days of the Effective Date, ▇▇.
▇▇▇▇▇▇▇▇▇ shall prepare and present to the CEO, for review, a
performance bonus plan specifically for the bonus described in
this subsection. The CEO and ▇▇. ▇▇▇▇▇▇▇▇▇ shall then set forth
in writing a description of the mutually agreed upon objectives
for the bonus.
iii. Conditional Bonus at Initial Public Offering or Acquisition:
Provided that ▇▇. ▇▇▇▇▇▇▇▇▇ shall have been continuously employed
full time with the Company since the Effective Date and that
certain agreed to objectives have been met, upon an initial
public offering of the Company's securities, or an acquisition of
the Company as set forth in Section 9A(i) of the Agreement, ▇▇.
▇▇▇▇▇▇▇▇▇ shall be entitled a bonus in the total amount of
$150,000, less applicable withholding. Within sixty (60) days of
the Effective Date, ▇▇. ▇▇▇▇▇▇▇▇▇ shall prepare and present to
the CEO, for review, a performance bonus plan specifically for
the bonus described in this subsection. The CEO and ▇▇. ▇▇▇▇▇▇▇▇▇
shall then set forth in writing a description of the mutually
agreed upon objectives for the bonus.
4. Stock Options: ▇▇. ▇▇▇▇▇▇▇▇▇ shall be granted the option to purchase
400,000 shares of the Company's Common Stock (the "Stock Options"), at an
exercise price per share equal to the fair market value of the Company's Common
Stock on the date of grant as determined by the Board in its sole discretion.
Such grant and determination shall be made no later than five (5) days after the
date on which ▇▇. ▇▇▇▇▇▇▇▇▇'▇ employment with the Company commences. To the
extent possible, such option will be an incentive stock option. The Stock
Options shall vest monthly at the rate of 1/48 per month; however, there shall
be a twelve (12) month cliff, upon which the first 1/4 of the Stock Options
shall vest. Upon the termination of ▇▇. ▇▇▇▇▇▇▇▇▇'▇ employment in accordance
with the provisions of Section 10, below, the Stock Options shall vest as
described in such provisions. Except as provided in Section 10, below, the Stock
Options shall be subject to the terms of the Company's Stock Option Plan and the
Company's standard incentive and non-statutory stock option agreements (the
"Standard Agreements"), provided pursuant to the Company's Stock Option Plan.
▇▇. ▇▇▇▇▇▇▇▇▇ will be permitted to exercise the Stock Options in full prior to
vesting in the underlying shares, subject to the Company's right to repurchase
any unvested shares at ▇▇. ▇▇▇▇▇▇▇▇▇'▇ original cost upon his termination of
employment, as provided in the Standard Agreements. In addition, the Company
shall permit ▇▇. ▇▇▇▇▇▇▇▇▇ to pay the option exercise price with a full recourse
loan (secured by the shares acquired with the loan) at the lowest interest rate
available to avoid the imposition of imputed income under the tax laws to assist
▇▇. ▇▇▇▇▇▇▇▇▇ to exercise the Stock Options. Such loan shall be repayable upon
the earliest of: (i) the fifth year anniversary of the Effective Date; (ii) the
termination of ▇▇. ▇▇▇▇▇▇▇▇▇'▇ employment for any reason; or (iii) the date
twelve (12) months after ▇▇. ▇▇▇▇▇▇▇▇▇ is first eligible to sell shares of the
Company's stock that he holds following an initial public offering of the
Company's shares; provided, however, that in the event of ▇▇. ▇▇▇▇▇▇▇▇▇'▇
termination without Cause or resignation for Good Reason or termination by
reason of death or Disability (as defined below), such loan shall be repayable
upon the earlier of the events stated in clauses (i) or (iii) immediately
preceding.
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A. For purposes of the resale of the underlying shares under the
Stock Options, the Company covenants to use its good faith efforts to make
available Rule 701 under the Securities Act of 1933, as amended (the "Securities
Act"), or to register the shares on Form S-1 or S-3 under the Securities Act (in
the case where the Company registers shares for its own account or for others
holding registration rights) or on Form S-8 under the Securities Act.
B. In the event that (i) any other employee of Telocity who has
been granted stock options is thereafter granted additional stock options; and
(ii) such employee is an officer or executive of the Company; and (iii) such
employee's employment contract is comparable to ▇▇. ▇▇▇▇▇▇▇▇▇'▇; then (iv) an
additional grant of stock options will be made to ▇▇. ▇▇▇▇▇▇▇▇▇ to accomplish an
equal relative increase in ▇▇. ▇▇▇▇▇▇▇▇▇'▇ stock options.
5. Moving Expenses: The Company shall reimburse ▇▇. ▇▇▇▇▇▇▇▇▇ for all
actual reasonable moving costs associated with relocating to California from New
York, including real estate closing costs, legal fees incurred for the sale of
▇▇. ▇▇▇▇▇▇▇▇▇'▇ home, accounting expenses incurred for the sale of ▇▇.
▇▇▇▇▇▇▇▇▇'▇ home, and physically moving ▇▇. ▇▇▇▇▇▇▇▇▇'▇ family's personal
possessions (the "Moving Expenses"). ▇▇. ▇▇▇▇▇▇▇▇▇ shall be entitled to Gross-Up
Payments for the Moving Expenses. In addition, Company shall provide ▇▇.
▇▇▇▇▇▇▇▇▇ at Company's expense temporary lodging at a mid-priced hotel or
apartment for up to ninety (90) days, if necessary for ▇▇. ▇▇▇▇▇▇▇▇▇ and his
spouse, during which ▇▇. ▇▇▇▇▇▇▇▇▇ will conduct his search for permanent
lodging. Company will also provide at its expense, round trip coach airfare and
temporary mid-priced lodging in New York for ▇▇. ▇▇▇▇▇▇▇▇▇ and his spouse, as
may be reasonably necessary to facilitate ▇▇. ▇▇▇▇▇▇▇▇▇'▇ sale of his residence
in New York and other matters relating to the relocation.
6. Housing Loan: Beginning on October 1, 1999 and continuing for
twenty-four (24) months, provided that ▇▇. ▇▇▇▇▇▇▇▇▇ is continuously employed as
an Officer of the Company, the Company shall make a loan each month to ▇▇.
▇▇▇▇▇▇▇▇▇ in the principal amount of Twenty Thousand Dollars ($20,000) at no
interest (the foregoing, the "Housing Loan"). On October 1, 2001, the following
actions shall be taken:
A. If on October 1, 2001, shares of the Company's Common Stock
are publicly tradable and the stock issuable to ▇▇. ▇▇▇▇▇▇▇▇▇ by exercise of the
Stock Options has a fair market value of at least Forty Dollars ($40) per share
(allowing for splits, conversions and like events), then ▇▇. ▇▇▇▇▇▇▇▇▇ shall
repay the Housing Loan no more than ninety (90) days thereafter.
B. Alternatively, if on October 1, 2001, shares of the Company's
common stock are not publicly tradable, or if such stock is publicly tradable
but the stock issuable to ▇▇. ▇▇▇▇▇▇▇▇▇ by exercise of the Stock Options has a
fair market value of less than Forty Dollars ($40), then the Housing Loan shall
be forgiven by the Company. Such forgiveness shall be considered a Payment and
the Company shall make Gross Up Payments to ▇▇. ▇▇▇▇▇▇▇▇▇ with respect to the
same.
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7. Other Loans from the Company to ▇▇. ▇▇▇▇▇▇▇▇▇: The Company shall
provide to ▇▇. ▇▇▇▇▇▇▇▇▇ no later than November 1, 1999, a full recourse loan,
in the principal amount of Nine Hundred Thousand Dollars ($900,000) at the
lowest interest rate available to avoid the imposition of imputed income under
the tax laws (the "1999 Loan"). Starting on November 1, 1999, the Company shall
forgive the entire amount of the principal and interest of the 1999 Loan over a
thirty-six (36) month period, with one thirty-sixth (1/36) of the aggregate
principal of the 1999 Loan to be forgiven by the Company at the conclusion of
each full month continuously worked by ▇▇. ▇▇▇▇▇▇▇▇▇ as an officer of the
Company since the Effective Date, along with the interest due on the 1999 Loan
for such month. The Company shall provide to ▇▇. ▇▇▇▇▇▇▇▇▇ no later than January
1, 2000, a full recourse loan, in the principal amount of One Million One
Hundred Thousand Dollars ($1,100,000) at the lowest interest rate available to
avoid the imposition of imputed income under the tax laws (the "2000 Loan").
Starting on January 1, 2000, the Company shall forgive the entire amount of the
principal and interest of the 2000 Loan over a thirty-six (36) month period,
with one thirty-sixth (1/36) of the aggregate principal of the 2000 Loan to be
forgiven by the Company at the conclusion of each full month continuously worked
by ▇▇. ▇▇▇▇▇▇▇▇▇ as an officer of the Company since the Effective Date, along
with the interest due on the 2000 Loan for such month (the 1999 Loan and the
2000 Loan sometimes referred to herein, collectively, as the "Loans").
8. Attorneys' Fees In Negotiating Agreement: The Company shall reimburse
▇▇. ▇▇▇▇▇▇▇▇▇ for all reasonable attorneys' fees he incurs in the review and
negotiation of this Employment Agreement up to a maximum of $5,000.
9. Definitions:
A. A "Change of Control" is defined as and shall be deemed to
have occurred if:
i. Any of the following transactions occurs with respect to the
Company, provided that with respect to the transactions described
in clauses (a), (b) and (c) below the shareholders of the Company
immediately before the transaction do not retain immediately
after the transaction, in substantially the same proportions as
their ownership of shares of the Company's voting stock
immediately before the transaction, direct or indirect beneficial
ownership of more than fifty percent (50%) of the total combined
voting power of the outstanding stock of the Company or its
successor, or, in the case of a transaction described in clause
(c) below, of the corporation or corporations to which the assets
of the Company were transferred: (a) the direct or indirect sale
or exchange in a single or series of related transactions by the
shareholders of the Company of more than fifty percent (50%) of
the voting stock of the Company; (b) a merger or consolidation in
which the Company is a party; (c) the sale, exchange, or transfer
of all or substantially all of the assets of the Company; or (d)
a liquidation or dissolution of the Company; or
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ii. Within eighteen (18) months of the Effective Date: (a) the
Company terminates ▇▇▇▇▇ ▇▇▇▇'▇ employment as CEO of the Company;
or (b) ▇▇▇▇▇ ▇▇▇▇ resigns as CEO of the Company "involuntarily",
which shall be defined as a resignation for any of the reasons
cited below in Section 9B(i), substituting the words "▇▇▇▇▇ ▇▇▇▇"
for "▇▇. ▇▇▇▇▇▇▇▇▇" in subsections (a) through (c) and the word
"her" for the word "this" in subsection (d) and (e).
For the purposes of Section A(i)(a), above, the Board shall have the
right to determine whether multiple sales or exchanges of the voting stock of
the Company are related, and its determination shall be final, binding and
conclusive.
B. "Good Reason" is defined as and shall be deemed to exist if
any of the following conditions occur:
i. Within one (1) year following a Change in Control, provided
that such conditions persist for fifteen (15) business days after
written notice to the Board from ▇▇. ▇▇▇▇▇▇▇▇▇ and failure of the
Company to cure within that period: (a) the Company, its
successor or assign decreases ▇▇. ▇▇▇▇▇▇▇▇▇'▇ Base Salary; (b)
the Company its successor or assign makes a material, adverse
change in ▇▇. ▇▇▇▇▇▇▇▇▇'▇ title, authority, responsibilities or
duties, as measured against ▇▇. ▇▇▇▇▇▇▇▇▇'▇ title, authority,
responsibilities or duties immediately prior to such change; (c)
the Company, its successor or assign requires the relocation of
▇▇. ▇▇▇▇▇▇▇▇▇'▇ work place to a location outside the San
Francisco Bay Area (i.e., outside Marin County, Contra Costa
County, Alameda County, San Francisco County, San Mateo County or
Santa ▇▇▇▇▇ County); (d) the Company, its successor or assign
materially breaches any provision of this Employment Agreement;
or (e) the Company fails to obtain the assumption of this
Employment Agreement by any successor or assign of the Company;
or
ii. Within one (1) year following a Change in Control described
in Section 9A(i) and within eighteen (18) months of the Effective
Date, provided that such conditions persist for fifteen (15)
business days after written notice to the Board from ▇▇.
▇▇▇▇▇▇▇▇▇ and failure of the Company to cure within that period:
(a) the Company terminates the employment of ▇▇▇▇▇ ▇▇▇▇ as CEO of
the Company; or (b) ▇▇▇▇▇ ▇▇▇▇ resigns as CEO of the Company
"involuntarily", defined as a resignation for any of the reasons
described in Section 9B(i), substituting the words "▇▇▇▇▇ ▇▇▇▇"
for "▇▇. ▇▇▇▇▇▇▇▇▇" in subsections (a) through (c) and the word
"her" for the word "this" in subsection (d) and (e).
C. For "Cause" is defined as a termination of ▇▇. ▇▇▇▇▇▇▇▇▇ based
upon: (i) theft, dishonesty, or falsification of any employment or Company
records; (ii) conviction of a felony or any act involving moral turpitude; (iii)
▇▇. ▇▇▇▇▇▇▇▇▇'▇ refusal to perform any reasonable, assigned duties after written
notice from the Company of, and a reasonable opportunity to correct, such
refusal; (iv) improper disclosure of the Company's confidential or proprietary
information; (v) any act by ▇▇. ▇▇▇▇▇▇▇▇▇ undertaken by ▇▇. ▇▇▇▇▇▇▇▇▇ with the
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intent to materially harm the Company's reputation or business; or (vi) any
material breach of this Employment Agreement, which breach, if curable, is not
cured within thirty (30) days following written notice of such breach from the
Company.
10. Benefits Upon Termination. ▇▇. ▇▇▇▇▇▇▇▇▇ agrees that his employment
may be terminated by the Company at any time, for any reason, with or without
cause. In the event of the termination of ▇▇. ▇▇▇▇▇▇▇▇▇'▇ employment by the
Company for any of the reasons set forth below, he shall be entitled as his sole
remedy and compensation for such event, to the following:
A. Termination for Cause: If ▇▇. ▇▇▇▇▇▇▇▇▇'▇ employment is
terminated by the Company for Cause, ▇▇. ▇▇▇▇▇▇▇▇▇ shall be entitled to no
compensation or benefits from the Company other than those under Section 3
earned up to such termination and, in the case of stock options (or underlying
shares), vested through the date of termination. The Loans shall be due and
payable within ninety (90) days after such termination.
B. Voluntary Resignation: In the event of ▇▇. ▇▇▇▇▇▇▇▇▇'▇
voluntary resignation from employment with the Company, other than for Good
Reason, ▇▇. ▇▇▇▇▇▇▇▇▇ shall be entitled to no compensation or benefits from the
Company other than those earned under Section 3 above through the date of his
resignation, or in the case of stock options (or underlying shares), vested
through the date of resignation. The Loans shall be due and payable within
ninety (90) days after such resignation.
C. Death or Disability In the event that ▇▇. ▇▇▇▇▇▇▇▇▇'▇
employment terminates as a result of his death or continued disability for
ninety (90) days ("disability" being defined as the inability to perform the
essential functions of ▇▇. ▇▇▇▇▇▇▇▇▇'▇ position), ▇▇. ▇▇▇▇▇▇▇▇▇ shall be
entitled to the following as of the date of death or disability:
i. All accrued salary, benefits and vesting earned through such
date;
ii. All accrued bonuses earned through such date. If the date of
death or disability is prior to January 1, 2000, the bonus set
forth in Section 3D(ii) shall be paid pro rata based on time
employed with the Company prior to January 1, 2000. If the date
of death or disability is prior to July 1, 2000, the bonus set
forth in Section 3D(iii) shall be paid pro rata based on time
employed with the Company prior to July 1, 2000. If the date of
death or disability occurs prior to the date of any other bonus
for which ▇▇. ▇▇▇▇▇▇▇▇▇ may become eligible, then such bonus
shall be payable pro rata based on the amount of the applicable
bonus period worked by ▇▇. ▇▇▇▇▇▇▇▇▇ prior to the date of death
or disability.
iii. Termination of any obligation ▇▇. ▇▇▇▇▇▇▇▇▇ shall have to
repay any portion of the Loans; and
iv. Removal of any "cliff date" in calculating the number of
Stock Options (or underlying shares) vested upon the date of
death or disability.
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D. Termination Without Cause or Resignation for Good Reason:
Except as provided in Section 10E, below, if ▇▇. ▇▇▇▇▇▇▇▇▇'▇ employment is
terminated by the Company without Cause, or if ▇▇. ▇▇▇▇▇▇▇▇▇ resigns as an
employee of the Company for Good Reason, then such termination shall be deemed a
"Termination Without Cause" and ▇▇. ▇▇▇▇▇▇▇▇▇ shall be entitled, on such date,
to all of the following:
i. All accrued salary, benefits and vesting earned through the
date of termination or resignation;
ii. All accrued bonuses earned through such date. If the date of
termination or resignation is prior to January 1, 2000, the bonus
set forth in Section 3D(ii) shall be paid pro rata based on time
employed with the Company prior to January 1, 2000. If the date
of termination or resignation is prior to July 1, 2000, the bonus
set forth in Section 3D(iii) shall be paid pro rata based on time
employed with the Company prior to July 1, 2000. If the date of
termination or resignation occurs prior to the date of any other
bonus for which ▇▇. ▇▇▇▇▇▇▇▇▇ may become eligible, then such
bonus shall be payable pro rata based on the amount of the
applicable bonus period worked by ▇▇. ▇▇▇▇▇▇▇▇▇ prior to the date
of termination or resignation;
iii. Continued payment of ▇▇. ▇▇▇▇▇▇▇▇▇'▇ salary at his Base
Salary rate, less applicable withholding, for one (1) year
following his termination or resignation;
iv. Continued payment of the Housing Loan for one (1) year after
the date of termination or resignation;
v. Termination of any conditional obligation that ▇▇. ▇▇▇▇▇▇▇▇▇
may have to repay any part of the Housing Loan he has received or
will receive based on Section 10D(iv), above, and any related
Gross Up Payments;
vi. Termination of any obligation ▇▇. ▇▇▇▇▇▇▇▇▇ shall have to
repay any portion of the Loans;
vii. Removal of any "cliff date" in calculating the number of
Stock Options or underlying shares vested upon such date; and
viii. An additional six (6) months vesting in the Stock Options
(or underlying shares), or any other options (or underlying
shares) granted to ▇▇. ▇▇▇▇▇▇▇▇▇ by the Board, as if ▇▇.
▇▇▇▇▇▇▇▇▇ continued to vest in the options for an additional six
months.
E. Resignation or Termination following Certain Events: If: (i)
prior to October 1, 2000, any of the events listed in Section 9A(i) occur; and
(ii) within eighteen (18) months following such event, ▇▇. ▇▇▇▇▇▇▇▇▇ resigns for
any of the reasons listed in Sections 9B(i)(a) through 9(B)(i)(e) or ▇▇.
▇▇▇▇▇▇▇▇▇ is terminated by the Company without Cause, he
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shall be entitled to all of the benefits listed in Sections 10D(i) through
10D(vii) and, in lieu of the benefits provided in Section 10D(viii), to the
greater of: (a) the percentage of vesting in the Stock Options (or underlying
shares), or any other options (or underlying shares) granted to him, that would
result from Section 10D(viii); or (b) fifty percent (50%) vesting in such
options (or underlying shares). By way of example, under the foregoing and
assuming the Stock Options are granted on October 1, 1999, if any such
termination or resignation were to occur on November 1, 2000, the Stock Options
and/or underlying shares would be deemed to be fifty percent (50%) vested, and
if any such termination or resignation were to occur on September 1, 2001, the
Stock Options and/or underlying shares would be deemed to be 29/48 vested.
11. Acceleration Upon Non-assumption of Options. In the event of a
Change of Control described in Section 9A(i), the surviving, continuing,
successor, or purchasing corporation or parent corporation thereof, as the case
may be (the "Acquiring Corporation"), shall either assume the Company's rights
and obligations under the Stock Options and any other options granted to ▇▇.
▇▇▇▇▇▇▇▇▇ to the extent such options are then outstanding and unexercised (the
"Outstanding Options") or substitute for the Outstanding Options substantially
equivalent options for the Acquiring Corporation's stock. If the Acquiring
Corporation fails to assume the Company's rights and obligations under the
Outstanding Options or to substitute for the Outstanding Options in connection
with the Change of Control, and provided that ▇▇. ▇▇▇▇▇▇▇▇▇'▇ employment with
the Company has not terminated prior to such Change of Control, then, with
respect to each Outstanding Option which has not been assumed or substituted
for, either (a) ▇▇. ▇▇▇▇▇▇▇▇▇ shall be credited with an additional six (6)
months of employment for vesting purposes under such Outstanding Option or (b)
such Outstanding Option shall be deemed to be fifty percent (50%) vested,
whichever of (a) or (b) provides the greater benefit to ▇▇. ▇▇▇▇▇▇▇▇▇. Any such
acceleration of vesting shall be effective immediately prior to the consummation
of the Change of Control.
12. Employee Inventions and Proprietary Rights Assignment Agreement:
▇▇. ▇▇▇▇▇▇▇▇▇ agrees to abide by the terms and conditions of the Company's
standard Employee Inventions and Proprietary Rights Assignment Agreement.
13. Non-Solicitation: ▇▇. ▇▇▇▇▇▇▇▇▇ agrees that for a period of one year
after the date of the termination of his employment for any reason, he shall
not, either directly or indirectly: (i) solicit the services, or attempt to
solicit the services, of any employee of the Company to any other person or
entity; or (ii) solicit or otherwise encourage any customer, supplier or other
business contact of the Company to withdraw, curtail or cancel their business
with the Company.
14. Indemnification: The Company agrees to make ▇▇. ▇▇▇▇▇▇▇▇▇ a party to
its standard form of indemnification agreement as may be signed by the Company's
other officers and directors from time to time.
15. Dispute Resolution: In the event of any dispute or claim relating to
or arising out of this Employment Agreement (including, but not limited to, any
claims of breach of contract, wrongful termination or age, sex, race or other
discrimination), ▇▇. ▇▇▇▇▇▇▇▇▇ and the Company agree that all such disputes
shall be fully and finally resolved by binding arbitration conducted by
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the American Arbitration Association in Santa ▇▇▇▇▇ County, California in
accordance with its National Employment Dispute Resolution rules, as those rules
are currently in effect (and not as they may be modified in the future). ▇▇.
▇▇▇▇▇▇▇▇▇ ACKNOWLEDGES THAT BY ACCEPTING THIS ARBITRATION PROVISION HE IS
WAIVING ANY RIGHT TO A JURY TRIAL IN THE EVENT OF SUCH DISPUTE. This arbitration
provision shall not apply to any disputes or claims relating to or arising out
of the misuse or misappropriation of trade secrets or proprietary information.
16. Attorneys' Fees: The prevailing party shall be entitled to recover
from the losing party its attorneys' fees and costs incurred in any action
brought to enforce any right arising out of this Employment Agreement.
17.Interpretation: ▇▇. ▇▇▇▇▇▇▇▇▇ and the Company agree that this
Employment Agreement shall be interpreted in accordance with and governed by the
laws of the State of California.
18. Successors and Assigns: This Employment Agreement shall inure to the
benefit of and be binding upon the Company and its successors and assigns. In
view of the personal nature of the services to be performed under this
Employment Agreement by ▇▇. ▇▇▇▇▇▇▇▇▇, he shall not have the right to assign or
transfer any of his rights, obligations or benefits under this Employment
Agreement, except as otherwise noted herein.
19. Entire Agreement: This Employment Agreement constitutes the entire
employment agreement between ▇▇. ▇▇▇▇▇▇▇▇▇ and the Company regarding the terms
and conditions of his employment with the Company, with the exception of the
Stock Option Agreement described in Section 4. To the extent that there is any
inconsistency between this Employment Agreement and any other agreement between
▇▇. ▇▇▇▇▇▇▇▇▇ and the Company, the terms of this Employment Agreement will
govern. This Employment Agreement supersedes all prior negotiations,
representations or agreements between ▇▇. ▇▇▇▇▇▇▇▇▇ and the Company, whether
written or oral, concerning ▇▇. ▇▇▇▇▇▇▇▇▇'▇ employment by the Company.
20. Validity: If any one or more of the provisions (or any part thereof)
of this Employment Agreement shall be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions (or any part thereof) shall not in any way be affected or impaired
thereby.
21. Modification: This Employment Agreement may only be modified or
amended by a supplemental written agreement signed by ▇▇. ▇▇▇▇▇▇▇▇▇ and the
Company.
22. Counterparts: This Employment Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
23. Conflicts: In the event of a conflict between a provision of this
Employment Agreement and a provision of the Standard Agreements, the Option
Plan, or the Employee Inventions and Proprietary Rights Agreement, this
Employment Agreement shall control. The
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parties shall take all actions reasonably necessary to assure the realization of
the rights and the fulfillment of the obligations set forth in this Employment
Agreement.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the date and year written below.
Date: TELOCITY INC.
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By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Its: VP Legal Affairs
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Date: 9/21/99
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/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇▇▇
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