EXH 10
EXH 10.2
Employment Agreement (the "Agreement"), effective as of July 1, 2000
(the "Effective Date"), between eB2B Commerce, Inc., a Delaware corporation with
principal offices at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (the
"Company") and Xxxx Xxxxxxxx, residing at 00 Xxxxxxxxx Xxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000 ("Xxxxxxxx"). The Company and Xxxxxxxx may be referred to
herein collectively as the "Parties" or individually as a "Party."
WHEREAS, the Company is engaged in the sales and service of building,
owning and operating electronic commerce networks; and
WHEREAS, the Company desires Xxxxxxxx to serve as Executive Chairman of
the Board of Directors of the Company and Xxxxxxxx desires to accept the
position of Executive Chairman of the Board of Directors and serve the Company
as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein set forth, the Parties do hereby agree as follows:
1 Employment. The Company hereby employs Xxxxxxxx and Xxxxxxxx accepts
this employment and agrees to render services to the Company on the
terms and conditions set forth in this Agreement. During the term of
this Agreement, Xxxxxxxx shall serve as Executive Chairman of the Board
of Directors of the Company (the "Board"), and as an employee of the
Company, and (i) preside over all meetings of the shareholders of the
Company and the Board of Directors; (ii) provide advice and counsel to
the Company in relation to strategic corporate decisions, personnel,
and other decisions relating to any mergers, acquisitions or other
transaction involving the Company; (iii) be an ex officio member of all
Board committees (except the Audit, and other committees which permit
only outside directors pursuant to applicable securities or stock
exchange rules or regulations, whose meetings he shall attend in a
consultatory capacity except when such committees meet in executive
session); (iv) perform such other duties as the Board reasonably
requests; and (v) see that all orders and resolutions of the Board are
carried into effect. Xxxxxxxx shall be a member of the Board as of the
Effective Date and may, at his option, be a member of the Board of
Directors of any of the Company's subsidiaries during the term of this
Agreement. Xxxxxxxx shall use his best efforts to meet the business
requirements and goals set by the Board. In furtherance thereof,
Xxxxxxxx will devote his best efforts, including his full-time
attention, during reasonable business hours, to the affairs and
business of the Company. Xxxxxxxx agrees not to serve on any corporate,
industry, civic, or charitable boards or committees that would
interfere or create a conflict of interest with respect to his duties
hereunder without the prior consent of the Board. Xxxxxxxx further
agrees to observe and comply with the rules and regulations of the
Company as adopted by the Board with respect to performance of his
duties, and to carry out and perform all reasonable orders, directions,
and policies enacted by the Board. Notwithstanding the foregoing, the
Company recognizes that Xxxxxxxx currently serves as a member of the
board of directors of OneNetPlus, and such position may have ongoing
obligations. The Company
hereby agrees that Andreini's service on the board of directors of
OneNetPlus shall not be a breach of the provisions of this Section 1;
provided that such service on the board does not interfere with, nor
create a conflict of interest with respect to, Andreini's performance
of his duties hereunder. Xxxxxxxx agrees to use reasonable business
efforts to coordinate his respective commitments so as to fulfill his
obligations to the Company hereunder.
2 Term. The term of this Employment Agreement shall be the period from
the Effective Date and terminating on June 30, 2002 (the "Initial
Employment Term"). The Agreement shall thereafter automatically renew
for successive one (1) year terms, until terminated by either Party in
accordance with this Agreement (the "Succeeding Employment Term"),
unless either Party provides written notice of termination to the other
party at least ninety (90) days prior to the expiration of the Initial
Employment Term or any Succeeding Employment Term.
3 Compensation.
3.1 Base Salary. The Company will compensate and pay Xxxxxxxx for his
services during the term of this Agreement at a base salary of
not less than $225,000 per year (the "Base Salary"). The Base
Salary shall be payable to Xxxxxxxx in accordance with the
Company's standard payroll policy for similarly situated
employees of the Company.
3.2 Stock Options. Without limiting the foregoing, during the term of
this Agreement, Xxxxxxxx shall be entitled to participate, as
determined by the Board of Directors, in the Company's incentive
stock option plan to the same extent as other employees of the
Company. In addition, Xxxxxxxx shall be entitled to receive
options to purchase 1,500,000 shares of the Common Stock of the
Company ("Options") pursuant to the terms of the Company's 2000
Stock Option Plan (the "Option Plan"), subject to the following
terms: (a) the Options will vest on the date established by the
Board of Directors; (b) the exercise price of the Options shall
be $3.25 per share (the closing price on June 21, 2000), as
appropriately adjusted for stock splits, stock dividends, and the
like; and (c) the other terms and conditions of the Options will
be in accordance with the provisions of the Option Plan and the
Stock Option Agreement evidencing the issuance of the Options.
4 Benefits.
4.1 Health Insurance; Vacation. The Company shall provide Xxxxxxxx
with health insurance coverage, personal time and other benefits
during the term of this Agreement as agreed upon by the Board,
but in no event will such benefits be less than those offered to
other senior executives of the Company. Xxxxxxxx shall be
entitled to four (4) weeks paid vacation during each year of this
Agreement and an additional week for each additional year of
service thereafter, up to a maximum of six (6) weeks.
4.2 Car Service Allowance. The Company will reimburse or pay
directly, as appropriate, all reasonable costs associated with
Andreini's use of a car or limousine service during the term of
this Agreement.
4.3 Country Club Membership. The Company shall reimburse Xxxxxxxx for
any membership fees, dues and expenses incurred by Xxxxxxxx
during the term of this Agreement for memberships in up to three
(3) country clubs chosen by Xxxxxxxx and approved by the Company.
4.4 Miscellaneous. Xxxxxxxx shall be entitled to participate in all
other retirement, welfare and other benefit plans, and to receive
all fringe benefits, that are provided by the Company to its most
senior executives from time to time, to the extent Xxxxxxxx meets
the eligibility requirements for any such plan or benefit.
5 Expenses. The Company shall reimburse Xxxxxxxx or otherwise provide for
or pay for all reasonable expenses incurred by Xxxxxxxx in furtherance
of or in connection with the business of the Company, including, but
not by way of limitation, (i) all reasonable expenses incurred by
Xxxxxxxx in accordance with the Company's travel policy, as established
by the Board; and (ii) all reasonable expenses in connection with
Andreini's attendance at trade, professional and industry related
conferences which are in furtherance of the business of the Company.
Xxxxxxxx agrees that he will furnish the Company with adequate records
and other documents for the substantiation of each such business
expense.
6 Employment Termination.
6.1 Resignation of Xxxxxxxx Without Good Reason. The Parties agree
that Xxxxxxxx has the right to voluntarily terminate his
employment with the Company by providing the Company with a
minimum of sixty (60) days' prior written notice. Upon the
termination date specified in the notice, Xxxxxxxx will cease to
have any of the powers associated with the offices he held with
the Company. In such event, all of the Company's obligations
under this Agreement will terminate immediately upon the date of
such termination of employment.
6.2 Resignation of Xxxxxxxx for Good Reason. The Parties agree that
Xxxxxxxx has the right to voluntarily terminate his employment
with the Company for "Good Reason" upon providing sixty (60) days
prior written notice to the Board. For purposes of this
Agreement, "Good Reason" shall mean the occurrence of any of the
following events or conditions:
6.2.1 a change in Andreini's status, title, position or
responsibilities which represents an adverse change from
his status, title, position or responsibilities as in
effect immediately prior thereto; the assignment to
Xxxxxxxx of any duties or responsibilities which are
inconsistent with his status, title or position; or any
removal of Xxxxxxxx from or failure to reappoint or
reelect him to any of such offices or positions, except
in connection with the termination of his employment for
"Disability" (as defined below), for "Cause"
(as defined below), as a result of his death, or by
Xxxxxxxx other than for Good Reason;
6.2.2 a reduction in the Base Salary;
6.2.3 the relocation of the offices of the Company at which
Xxxxxxxx is principally employed to a location more than
fifty (50) miles from the location of such offices
immediately prior to the relocation, except for required
travel on the on the business of the Company to an extent
substantially consistent with Andreini's customary
business travel obligation and duties; or
6.2.4 the failure by the Company or its affiliates to pay to
Xxxxxxxx any portion of Andreini's current compensation
within twenty (20) days of the date such compensation is
due.
6.3 Termination by the Company for Convenience. The Parties agree
that the Board has the right to terminate Andreini's employment
for convenience during the term of this Agreement upon notice to
Xxxxxxxx. The date of termination will be the date specified in a
notice from the Board and will be at least thirty (30) days
following such notice. Xxxxxxxx will cease to have any power of
his office as of such date.
6.4 Termination by the Company for Cause. The Parties agree that the
Board has the right to terminate Andreini's employment during the
term of this Agreement for "Cause." For the purposes of this
Agreement, the term "Cause" will mean:
6.4.1 Conduct on Andreini's part that is willfully intended to
and likely to injure to the Company's business or
reputation;
6.4.2 Actions by Xxxxxxxx intentionally furnishing materially
false, misleading or omissive information to the Board
which results in damage to the Company;
6.4.3 Xxxxxxxx is convicted of any felony or other serious
offense;
6.4.4 Abusive use of drugs or alcohol by Xxxxxxxx;
6.4.5 Any fraud, embezzlement or misappropriation by Xxxxxxxx
of the "assets" of the Company. For the purposes of this
provision, the Parties acknowledge that "asset" includes,
but is not limited to the "Confidential Information" (as
defined in Section 8 of this Agreement); or
6.4.6 The willful and significant failure by Xxxxxxxx to
perform reasonably assigned duties and obligations as set
forth in this Agreement, resulting in substantial damage
to the Company, but not encompassing illness, physical or
mental incapacity.
For purposes of this provision, no act or failure to act on the part of
Xxxxxxxx shall be considered "willful" unless it is done, or omitted to be done,
by Xxxxxxxx in bad faith or without reasonable belief that his action or
omission was in the best interests of the Company. Any act, or failure to act,
based upon authority given pursuant to a resolution
duly adopted by the Board or based upon the advice of counsel for the Company
shall be conclusively presumed to be done, or omitted to be done, by Xxxxxxxx in
good faith and in the best interests of the Company and its affiliates.
Andreini's employment hereunder shall not be deemed to be terminated for Cause
until a Notice of Termination is provided to him, and within seven (7) days
after the Notice of Termination is given to Xxxxxxxx, he, together with counsel,
is heard before the Board (a "Board Hearing") during which Board Hearing, the
Board in good faith resolves that Xxxxxxxx is guilty of the conduct described in
Section 6.4 hereof. In the event that Andreini's employment is terminated by the
Company for Cause, the date of employment termination will be as specified in
the Notice of Termination to Xxxxxxxx from the Company, and Xxxxxxxx will cease
to have any authority to act on behalf of the Company as of such date. The
Company will pay Xxxxxxxx the Base Salary due him as of such date, and all
benefits provided by the Company to Xxxxxxxx will cease as of such date except
as otherwise required by law.
6.5 Termination by the Company for Death or Disability. The Parties
agree that Andreini's employment will terminate upon Andreini's
death or Disability. The term "Disability" shall be defined as
Andreini's inability, through physical or mental illness to
perform the majority of his usual duties for a period of at least
three (3) continuous months.
6.6 Notice of Termination. Any termination by the Company for Cause,
or by Xxxxxxxx for Good Reason shall be communicated by Notice of
Termination to the other Party hereto given in accordance with
Section 18 hereof. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the
specific termination provision in this Agreement relied upon,
(ii) sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Andreini's
employment under the provision so indicated and (iii) if the
termination date is other than the date of receipt of such
notice, specifies the termination date of this Agreement which
date shall be in accordance with the specific termination
provision of this Agreement relied upon.
6.7 Obligations of the Company Upon Certain Terminations.
6.7.1 Options. In the event that Andreini's employment with the
Company is terminated pursuant to Sections 6.2, 6.3 or
6.5 of this Agreement, all Options granted to Xxxxxxxx by
the Company shall immediately vest upon such termination
and remain exercisable until the scheduled expiration
date of each such Option. The Options shall be subject to
the provisions of the Option Plan and the specific Stock
Option Agreement in effect with regard to each Option
grant, provided that, to the extent the provisions of the
Stock Option Agreements are inconsistent with this
Section 6.7.1, this Section shall control.
6.8 Termination Payments. If Andreini's employment with the Company
terminates for whatever reason, the Company will pay Xxxxxxxx (i)
any accrued and unpaid Base Salary as of the date of termination
and (ii) an amount to reimburse Xxxxxxxx for any and all monies
advanced or
expenses incurred on or prior to the date of termination but not
paid to Xxxxxxxx. In addition, if Andreini's employment with the
Company terminates pursuant to Sections 6.2 or 6.3 hereof the
Company will (i) pay, in twelve equal monthly installments, to
Xxxxxxxx an amount equal to the sum of his Base Salary at the
rate then in effect plus an amount equal to the cash bonus, if
any, paid or payable in respect of the year preceding the year in
which the termination of employment occurs or, if greater, the
cash bonus, if any, payable in respect of the year in which the
termination occurs assuming for this purpose that all applicable
performance goals were achieved at 100%, and (ii) continue to
provide Xxxxxxxx and his beneficiaries for one (1) year following
such termination, health and welfare benefits substantially
similar in the aggregate to those provided to the other most
senior executives of the Company; provided, however, that the
Company's obligation with respect to the foregoing benefits shall
be reduced to the extent Xxxxxxxx or his beneficiaries obtains
any such benefits pursuant to a subsequent employer's benefit
plans. Andreini's entitlement to other benefits shall be
delivered in accordance with the Company's benefit plans then in
effect.
6.9 Survival of Agreement Upon Termination. In the event that
Andreini's employment is terminated pursuant to any provision set
forth in this Section 6, the rights and obligations of the
Parties which are set forth in Sections 7 through 16 of this
Agreement shall survive the employment termination for a period
from the date of such employment termination through the third
(3rd) anniversary of such date.
7 Confidential Information. Xxxxxxxx hereby agrees and acknowledges that
the following information and materials, whether in written, oral,
magnetic, photographic, optical or other form and whether now existing
or developed or created during the period of Andreini's employment or
engagement with the Company, excepting information obtained by Xxxxxxxx
from general or public sources, are proprietary to the Company and are
highly confidential in nature (the "Confidential Information"):
7.1 Business Records, Marketing Plans and Customer Information. All
books, records, documents, memoranda and materials, and the
information contained therein directly relating to the business
and finances of the Company including, but not limited to: (i)
marketing and development plans, forecasts, forecast assumptions,
forecast volumes, future plans and potential strategies of the
Company; (ii) cost objectives, pricing policies and procedures,
quoting policies and procedures, and unpublished price lists;
(iii) licensing policies, strategies and techniques; (iv)
customer lists, names of past, present and prospective customers
and their representatives; (v) data and other business
information about or provided by past, present and prospective
customers; (vi) names of past, present and prospective vendors
and their representatives, data and other Information about or
provided by past, present and prospective vendors; (vii)
purchasing information, orders, invoices, xxxxxxxx, and payment
of xxxxxxxx;
(viii) past, present and prospective licenses and licensees, the
terms and conditions of any licenses or prospective licenses,
contracts or prospective contracts; (ix) types of products,
supplies, materials and services purchased, leased, licensed
and/or sold by the Company; (x) past, present and future research
and development arrangements; (xi) customer service information;
(xii) joint ventures, mergers and/or acquisitions; (xiii) the
Company personnel policies and procedures, the Company personnel
files, and the compensation of officers, directors and employees
of the Company; and (xiv) all other confidential business records
and trade secrets of the Company.
7.2 Technology and Manufacturing Procedures. All books, records,
documents, memoranda and materials, and the information contained
therein, relating to the technology of the Company (whether or
not patentable, whether or not protected by copyright, whether
developed by or for the Company) including, but not limited to:
(i) ideas and concepts for existing and new products, processes
and services; (ii) specifications for products, equipment and
processes, whether technical or financial; (iii) manufacturing
and performance specifications and procedures; (iv) engineering
drawings, flow charts, and graphs; (v) technical, research and
engineering data; (vi) formulations, materials, and material
specifications; (vii) laboratory studies and benchmark tests;
(viii) laboratory notebooks; (ix) plant layout and equipment; (x)
manuals, including service manuals and operation manuals; (xi)
quality assurance policies, procedures and specifications; (xii)
validation studies; and (xiii) all other know-how, methodology,
procedures, techniques and trade secrets related to the research,
engineering and development affairs of the Company.
7.3 Third Party Information. Any and all other information and
materials in the Company's possession or under its control from
any other person or entity which the Company is obligated to
treat as confidential or proprietary ("Third Party Information").
7.4 Not Generally Known. Any and all Confidential Information not
generally known to the public or within the industries or trades
in which the Company competes.
8 General Skills and Knowledge. The general skills and experience gained
by Xxxxxxxx during Andreini's employment with the Company, and
information publicly available or generally known within the industries
or trades in which the Company competes, is not considered Confidential
Information.
9 Andreini's Obligations as to Confidential Information and Materials.
During Andreini's employment by the Company, Xxxxxxxx will have access
to Confidential Information and will occupy a position of trust and
confidence with respect to the Company's affairs and business. Xxxxxxxx
agrees to take the following steps to preserve the confidential and
proprietary nature of the Confidential Information:
9.1 Non-Disclosure. During and for a period of three (3) years after
Andreini's employment with the Company, Xxxxxxxx will not use,
disclose or otherwise permit any person or entity access to any
of the Confidential Information other than as required in the
performance of Andreini's duties with the Company by order of a
court of competent jurisdiction, by a governmental agency or
otherwise by applicable law.
9.2 Prevent Disclosure. Xxxxxxxx will take all reasonable precautions
to prevent disclosure of the Confidential Information in
accordance with the Company's reasonable instructions to
Xxxxxxxx.
9.3 Return all Materials. Upon termination of Andreini's employment
with the Company, for any reason whatsoever, Xxxxxxxx will
deliver to the Company all tangible materials embodying the
Confidential Information, including, without limitation, any
documentation, records, listings, notes, data, sketches,
drawings, memoranda, models, accounts, reference materials,
samples, machine-readable media and equipment which in any way
relate to the Confidential Information.
10 Ideas and Inventions. Xxxxxxxx agrees that all right, title and
interest in or to any and all Inventions are the property of the
Company. For the purposes of this Agreement, "Inventions" shall mean
all ideas, concepts, know-how, techniques, processes, methods,
inventions, discoveries, developments, innovations and improvements (i)
conceived or made by Xxxxxxxx, whether alone or with others, in the
course of Andreini's employment by the Company, or (ii) conceived or
made by Xxxxxxxx, whether alone or with others, in the course of
Andreini's employment, but which reach fruition within the period from
the date of termination of Andreini's employment through the second
(2nd) anniversary of such date, and which either (a) involve or are
reasonably related to the business of the Company or to the Company's
actual or demonstrably anticipated research or development; or (b)
incorporate or are derived from, in whole or in part, any of the
Confidential Information. Xxxxxxxx agrees to promptly disclose all
Inventions to the Company, and to provide all assistance reasonably
requested by the Company in the preservation of its interests in the
Inventions, such as by executing documents, testifying, etc. Xxxxxxxx
agrees to execute, acknowledge and deliver any instruments confirming
the complete ownership by the Company of such Inventions. Such
assistance shall be provided at the Company's expense without any
additional compensation to Xxxxxxxx.
11 Copyrights. Xxxxxxxx agrees that any work prepared for the Company
which is protected under United States Copyright laws or under the
universal Copyright Convention, the Berne Copyright convention and/or
the Buenos Aires Copyright Convention shall be a work made for hire and
ownership of all copyrights (including all renewals and extensions)
therein shall vest in the Company. In the event any such work is deemed
not to be a work made for hire for any reason, Xxxxxxxx hereby grants,
transfers and assigns all right, title and interest in such work and
all copyrights in such work and all renewals and extensions thereof to
the Company, and agrees to provide all assistance reasonably requested
by the Company in the establishment, preservation and enforcement of
its copyright in
such work, such assistance to be provided at the Company's expense but
without any additional compensation to Xxxxxxxx. Xxxxxxxx hereby agrees
to and does hereby waive all moral rights with respect to the work
developed or produced hereunder, including, without limitation any and
all rights of identification of authorship and any and all rights of
approval, restriction, or limitation on use or subsequent
modifications.
12 Conflicting Obligations and Rights. Before (i) performing any
obligations Xxxxxxxx may have to preserve the confidentiality of
another's proprietary information or materials, or (ii) exercising any
rights Xxxxxxxx may claim to any patent or copyrights trade secrets, or
other discoveries, inventions, ideas, know-how, techniques methods,
processes or other proprietary information or materials before
performing that work, Xxxxxxxx shall inform the Company in writing of
any apparent conflict between Andreini's work for the Company and such
other obligations and/or rights. In the absence of such written notice,
the Company may conclude that no such conflict exists and Xxxxxxxx
agrees thereafter to make no such claim against the Company. The
Company shall hold such disclosures by Xxxxxxxx in strict confidence.
13 Restrictive Covenants.
13.1 Acknowledgement. Xxxxxxxx acknowledges that (i) the Company's
business is all aspects of business-to-business electronic
commerce, but not limited to, building, owning and operating
electronic commerce networks; and providing systems integration
and consulting services relating thereto, and (ii) fulfillment of
the obligations hereunder will result in Xxxxxxxx becoming
familiar with the business affairs of the Company and any present
or future parent, subsidiary and/or affiliate.
13.2 Covenant Not to Compete. In consideration for the Compensation,
and as a condition to the performance by the Company of all
obligations under this Agreement, Xxxxxxxx agrees that during the
Initial Employment Term or any Succeeding Employment Terms of
this Agreement and for the period from the date of termination of
Andreini's employment pursuant to either Section 6.1 or 6.4
hereof through the first (1st) anniversary of such date (the
"Non-compete Term"), Xxxxxxxx shall not directly or indirectly
through any other person, firm or corporation compete with or be
engaged in the same business or "participate in" any other
business or organization which during such period competes with
or is engaged in the same business as the Company. The term
"participate in" shall mean: "directly or indirectly, for his own
benefit or for, with, or through any other person, firm, or
corporation, own, manage, operate, control, loan money to, or
participate in the ownership, management, operation, or control
of, or be connected as a director, officer, employee, partner,
consultant, agent, independent contractor, or otherwise with, or
acquiesce in the use of his name." In addition, during the
Non-compete Term Xxxxxxxx agrees not to recruit, contract or hire
any employee of the Company, or otherwise induce such employee to
leave the employment of the Company, to become an employee of or
otherwise be associated with him or any
company or business with which he is or may become associated
with. Notwithstanding the foregoing, it shall not be a breach of
the provisions of this Section 13 if, after the term of this
Agreement, Xxxxxxxx is a passive investor in any publicly held
entity and Xxxxxxxx owns three (3%) percent or less of the equity
interests therein.
13.3 Restrictive Covenants Necessary and Reasonable. Xxxxxxxx agrees
that the provisions of this Section 13 are necessary and
reasonable to protect the Company in the conduct of its
business. If any restriction contained in this Section 13 shall
be deemed to be invalid, illegal, or unenforceable by reason of
the extent, duration or geographical scope thereof, or
otherwise, then the court making such determination shall have
the right to reduce such extent, duration, geographical scope,
or other provisions hereof and in its reduced form such
restriction shall then be enforceable in the manner
contemplated hereby.
14 Injunctive Relief. Xxxxxxxx, recognizing that irreparable injury shall
result to the Company in the event of Andreini's breach of the terms
and conditions of this Agreement, agrees that in the event of his
breach or threatened breach, the Company shall be entitled to seek
injunctive relief restraining Xxxxxxxx, and any and all persons or
entities acting for or with him, from such breach or threatened breach.
Nothing herein contained, however, shall be construed as prohibiting
the Company from pursuing any other remedies available to it by reason
of such breach or threatened breach.
15 Indemnification.
15.1 To the full extent allowed by law, the Company shall hold
harmless and indemnify Xxxxxxxx, his executors, administrators or
assigns, against any and all judgments, penalties (including
excise and similar taxes), fines, settlements and reasonable
expenses (including attorneys' fees) actually incurred by
Xxxxxxxx (net of any related insurance proceeds or other amounts
received by Xxxxxxxx or paid by or on behalf of the Company on
Andreini's behalf in compensation of such judgments, penalties,
fines, settlements or expenses) in connection with any
threatened, actual or completed action, suit or proceeding,
whether civil, criminal, arbitral, administrative or
investigative, or any appeal in such action, suit or proceeding,
to which Xxxxxxxx was, is or is threatened to be made a named
defendant or respondent (a "Proceeding"), because Xxxxxxxx is or
was a director or officer of the Company, or was serving at the
request of the Company as a director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary (an
"Affiliate Executive") of another corporation, partnership, joint
venture, sole proprietorship, trust, employee benefit plan or
other enterprise (each, a "Company Affiliate"). Upon
authorization of indemnification of Xxxxxxxx by the Board in
accordance with the applicable provisions of the corporation law
of the Company's domicile, Xxxxxxxx shall be presumed to be
entitled to such indemnification under this Agreement upon
submission of a Claim (as hereinafter defined). Thereafter, the
Company shall have the burden of
proof to overcome the presumption that Xxxxxxxx is so entitled.
Such presumption shall only be overcome by a judgment or other
final adjudication, after all appeals and all time for appeals
have expired ("Final Determination"), adverse to Xxxxxxxx
establishing that such indemnification is not permitted hereunder
or by law. An actual determination by the Company (including its
Board, legal counsel, or its stockholders) that Xxxxxxxx has not
met the applicable standard of conduct for indemnification shall
not be a defense to the action or create a presumption that
Xxxxxxxx has not met the applicable standard of conduct. The
purchase, establishment or maintenance of any Indemnification
Arrangement shall not in any way diminish, restrict, limit or
affect the rights and obligations of the Company or of Xxxxxxxx
under this Agreement except as expressly provided herein, and the
execution and delivery of this Agreement by the Company and
Xxxxxxxx shall not in any way diminish, restrict, limit or affect
Andreini's right to indemnification from the Company or any other
Party or Parties under any other indemnification arrangement, the
Certificate of Incorporation or Bylaws of the Company, or the
DGCL.
15.2 Subject only to the provisions of this Section 15.2, as long as
Xxxxxxxx shall continue to serve as a director and/or officer of
the Company (or shall continue at the request of the Company to
serve as an Affiliate Executive) and, thereafter, as long as
Xxxxxxxx shall be subject to any possible Proceeding by reason of
the fact that Xxxxxxxx was or is a director and/or officer of the
Company (or served in any of said other capacities), the Company
shall, unless no such policies are available in any market,
purchase and maintain in effect for the benefit of Xxxxxxxx one
or more valid, binding and enforceable policies (the "Insurance
Policies") of directors' and officers' liability insurance ("D&O
Insurance") providing adequate liability coverage for Andreini's
acts as a director and/or officer of the Company or as an
Affiliate Executive. The Company may promptly notify Xxxxxxxx of
any lapse, amendment or failure to renew said policy or policies
or any provision thereof relating to the extent or nature of
coverage provided thereunder. In the event the Company does not
purchase and maintain in effect said policy or policies of D&O
Insurance pursuant to the provisions of this Section 15.2, the
Company shall, to the full extent permitted by law, in addition
to and not in limitation of the other rights granted Xxxxxxxx
under this Agreement, hold harmless and indemnify Xxxxxxxx to the
full extent of coverage which would otherwise have been provided
for the benefit of Xxxxxxxx pursuant to the Insurance Policies.
15.3 Xxxxxxxx shall have the right to receive from the Company on
demand, or at his Option to have the Company pay promptly on his
behalf, in advance of a Final Determination of a Proceeding all
expenses payable by the Company pursuant to the terms of this
Agreement as corresponding amounts are expended or incurred by
Xxxxxxxx in connection with such Proceeding or otherwise expended
or incurred by Xxxxxxxx (such amounts
so expended or incurred being referred to as "Advanced Amounts").
In making any claim for payment by the Company of any expenses,
including any Advanced Amount, pursuant to this Agreement,
Xxxxxxxx shall submit to the Company a written request for
payment (a "Claim"), which includes a schedule setting forth in
reasonable detail the dollar amount expended (or incurred or
expected to be expended or incurred). Each item on such schedule
shall be supported by the xxxx, agreement or other documentation
relating thereto, a copy of which shall be appended to the
schedule as an exhibit. Where Xxxxxxxx is requesting Advanced
Amounts, Xxxxxxxx must also provide (i) written affirmation of
such Andreini's good faith belief that he has met the standard of
conduct required by law for indemnification, and (ii) a written
undertaking to repay such Advanced Amounts if a Final
Determination is made that Xxxxxxxx is not entitled to
indemnification hereunder.
15.4 The Company shall not be liable under this Agreement to make any
payment in connection with any claim made against Xxxxxxxx for an
accounting of profits made from the purchase or sale by Xxxxxxxx
of securities of the Company within the meaning of Section 16(b)
of the Exchange Act or similar provisions of any state statutory
law or common law.
15.5 All agreements and obligations of the Company contained herein
shall continue during the period Xxxxxxxx is a director and/or
officer of the Company (or is serving at the request of the
Company as an Affiliate Executive) and shall continue thereafter
so long as Xxxxxxxx shall be subject to any possible Proceeding
by reason of the fact that Xxxxxxxx was a director or officer of
the Company or was serving as such an Affiliate Executive.
15.6 Promptly after receipt by Xxxxxxxx of notice of the commencement
of any Proceeding, Xxxxxxxx shall, if a claim in respect thereof
is to be made against the Company under this Agreement, notify
the Company of the commencement thereof, but failure to so notify
the Company will not relieve the Company from any liability which
it may have to Xxxxxxxx. With respect to any such Proceeding: (i)
the Company shall be entitled to participate therein at its own
expense; (ii) except with prior written consent of Xxxxxxxx, the
Company shall not be entitled to assume the defense of any
Proceeding; and (iii) the Company shall not settle any Proceeding
in any manner which would impose any penalty or limitation on
Xxxxxxxx without Andreini's prior written consent.
16 Dispute Resolution. The Company and Xxxxxxxx agree that any dispute or
controversy arising between any of the Parties to this Agreement, or
any person or entity in privity therewith, out of the transactions
effected and relationships created in connection herewith, including
any dispute or controversy involving the formation, terms or
construction of this Agreement, regardless of kind or character, will
be resolved through binding arbitration held in New York, NY. The only
disputes not subject to mandatory, binding arbitration are requests for
injunctive relief. With respect to the arbitration of any dispute or
controversy, each Party understands that: (i) arbitration is final and
binding on the Parties; (ii) each Party is waiving its right to seek
certain remedies in court, including to right to a jury trial; (iii)
discovery in arbitration is different and more limited than discovery
in litigation; and (iv) an arbitrators' award need not include factual
findings or legal reasoning, and any Party's right to appeal or to seek
modification of a ruling by the arbitrator is strictly limited.
16.1 Each Party to this Agreement will submit any dispute or
controversy to arbitration before the American Arbitration
Association ("AAA") within five (5) days after receiving a
written request to do so from the other Party. If any Party fails
to submit a dispute or controversy to arbitration as requested,
then the requesting Party may commence the arbitration
proceeding. The Federal Arbitration Act will govern the
proceeding and all issues raised by this Agreement to be
arbitrated. Each Party to this Agreement will be bound by the
determination of an arbitration panel of three members empanelled
by the AAA to adjudicate the dispute. Judgment on any arbitration
award may be entered in any court of competent jurisdiction.
16.2 Any Party to this Agreement may bring an action including a
summary or expedited proceeding of any such dispute or
controversy in a court of competent jurisdiction and, further,
may seek provision or ancillary remedies, including temporary or
injunctive relief in connection with such dispute or controversy
in a court of competent jurisdiction, provided that the dispute
or controversy is ultimately resolved through binding arbitration
conducted in accordance with the terms and conditions of Section
16. If any Party institutes legal proceedings in an effort to
resist arbitration and is unsuccessful in doing so, the
prevailing Party is entitled to recover, from the losing Party,
its legal fees and out-of-pocket expenses incurred in connection
with the defense of such legal proceedings.
17 Miscellaneous.
17.1 Notices. Any and all notices, demands, requests or other
communication required or permitted by this Agreement or by law
to be served on, given to, or delivered to any Party hereto by
any other Party to this Agreement shall be in writing and shall
be deemed duly served, given, or delivered when personally
delivered to the Party to be notified, or in lieu of such
personal delivery, when deposited in the United States mail,
registered or certified mail, return receipt requested, or when
confirmed as received if delivered by overnight courier,
addressed to the to the Party to be notified, at the address of
the Company at its principal office, as first set forth above, or
to Xxxxxxxx at the address as first set forth above. The Company
or Xxxxxxxx may change the address in the manner required by law
for purposes of this paragraph by giving notice of the change, in
the manner required by this paragraph, to the respective Parties.
17.2 Amendment. This Agreement may not be modified, changed, amended,
or altered except in writing signed by Xxxxxxxx or his duly
authorized representative, and by a member of the Board.
17.3 Governing Law. This Agreement shall be interpreted in accordance
with the laws of the State of New York. It shall inure to the
benefit of and be binding upon the Company, and its successors
and assigns.
17.4 Attorney's Fees. Should Xxxxxxxx substantially prevail any
litigation or arbitration commenced between the Parties to this
Agreement concerning any provision of this Agreement, the expense
of all attorneys' fees and other costs incurred by Xxxxxxxx in
connection therewith shall be paid by the Company.
17.5 Severability. Should any provision or portion of this Agreement
be held unenforceable or invalid for any reason, the remaining
provisions and portions of this Agreement shall be unaffected by
such holding.
17.6 Entire Agreement. This Agreement constitutes the sole and only
agreement of the Parties hereto respecting the subject matter
hereof. Any prior agreements, promises, negotiations, or
representations concerning its subject matter not expressly set
forth in this Agreement, are of no force and effect.
17.7 Counterparts. This Agreement and any certificates made pursuant
hereto, may be executed in any number of counterparts and when so
executed all of such counterparts shall constitute a single
instrument binding upon all Parties hereto notwithstanding the
fact that all Parties are not signatory to the original or to the
same counterpart.
17.8 Section Headings. The Article and Section headings used in this
Agreement are for reference purposes only, and should not be used
in construing this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
day and year set forth below.
eB2B Commerce, Inc.
By:______________________ By:______________________
Xxxxx X. Xxxxxxxx Xxxx Xxxxxxxx
Chief Executive Officer Date:_____________________
Date:_____________________
