EXHIBIT 10.31
EXECUTION COPY
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of April 30, 2001, by and between
Xxxxxxxx Xxxxxx ("Executive") and iAsiaWorks, Inc., a Delaware corporation (the
"Company").
1. Duties and Scope of Employment.
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(a) Position and Duties. For the term of his employment
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under this Agreement, the Company agrees to employ Executive in the position of
Vice President of Global Corporate Development. Executive shall report to the
Company's Chief Executive Officer ("CEO"), and his position will be based in
Burlingame, California, however, it is understood that Executive shall travel as
the Company may from time to time reasonably require. During Executive's
employment, Executive agrees to devote his full business time, energy and skill
to his duties at the Company. Executive will be responsible for those
responsibilities and duties as designated to the Executive by the Chief
Executive Officer, the President, and the Board of Directors or as assigned to
the Executive from time to time.
(b) Obligations to the Company. During the term of his
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employment, Executive shall devote his full business efforts and time to the
Company; provided, however, that this shall not preclude Executive from serving
as a member of the board of directors of up to three other companies to the
extent such other companies do not compete with the Company and to the extent
such service does not materially impact the ability of Executive to fulfill his
obligations to the Company. Executive shall comply with the Company's policies
and rules, as they may be in effect from time to time during the term of his
employment.
(c) No Conflicting Obligations. Executive represents and
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warrants to the Company that he is under no obligations or commitments, whether
contractual or otherwise, that are inconsistent with his obligations under this
Agreement. Executive represents and warrants that he will not use or disclose,
in connection with his employment by the Company, any trade secrets or other
proprietary information or intellectual property in which Executive or any other
person has any right, title or interest and that his employment by the Company
as contemplated by this Agreement will not infringe or violate the rights of any
other person or entity. Executive represents and warrants to the Company that he
has returned all property and confidential information belonging to any prior
employers.
(d) Commencement Date. The employment of executive by the
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Company shall be governed by this agreement as of the date first written above
(the "Effective Date").
(e) Term of Employment.
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(i) Basic Rule. The Company agrees to continue
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Executive's employment, and Executive agrees to remain in employment with the
Company, from the Commencement Date set forth in Section 1(d) until the date
when Executive's employment terminates pursuant to Subsection (ii) below (the
"Employment Period"). Executive's
employment with the Company shall be "at will," which means that either
Executive or the Company may terminate Executive's employment at any time, for
any reason, with or Without Cause. Any contrary representations, which may have
been made to Executive shall be superseded by this Agreement. This Agreement
shall constitute the full and complete agreement between Executive and the
Company of the "at will" nature of Executive's employment, which may only be
changed in an express written agreement signed by Executive and a duly
authorized officer of the Company.
(ii) Termination. The Company or Executive may
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terminate Executive's employment at any time for any reason (or no reason), and
with "Cause" or "Without Cause," by giving the other party fourteen (14) days'
notice in writing. Executive's employment shall terminate automatically in the
event of his death.
2. Cash and Incentive Compensation.
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(a) Salary. The Company shall pay Executive as compensation
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for his services an annual base salary of US$180,000, less applicable deductions
and withholdings, payable in accordance with the Company's standard payroll
schedule. (The compensation specified in this Subsection (a), together with any
increases in such compensation that the Company may grant from time to time, are
referred to in this Agreement as "Base Salary."). Executive is entitled to
participate in any deferred compensation or other employee benefit plans,
including any profit sharing or 401(k) plans; group life, health,
hospitalization and disability insurance plans; and other employee welfare
benefits made available generally to, and under the same terms as, Company's
executives.
(b) Bonus. Starting on the one (1) year period beginning
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March 20, 2001 and ending March 19, 2002, and each one (1) year period
thereafter, Executive will be eligible to earn a year-end cash bonus (the
"Target Bonus") of up to twenty percent (20%) of his Base Salary, based on the
financial and operational performance of the Company and on his achievement of
personal and Company milestones mutually agreed upon by Executive, the Chief
Executive Officer and the Compensation Committee of the Board within the first
sixty (60) days of each one year period. In the event that mutual agreement upon
the milestones cannot be reached within the sixty (60) day period in question,
the decision of the Chief Executive Officer and Compensation Committee
thereafter in establishing such milestones will be final and conclusive. If
Executive's employment terminates due to death or Disability during any such one
(1)-year period, then Executive, or Executive's estate, will be paid the Target
Bonus for such period.
(c) Stock Options. The unvested shares of Executive's stock
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options granted at various times, both prior to and subsequent to the date of
this Agreement (the "Options"), by the Company under the Company's 2000 Stock
Incentive Plan or any successor plan (the "Plan") shall continue to vest
pursuant to the Plan.
(d) Effect of Termination.
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(i) Termination Following Change of Control. If,
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within one year following a "Change of Control," Executive resigns for "Good
Reason" or the Company
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terminates Executive's employment "Without Cause," then Executive shall receive:
(i) a lump sum severance payment equal to four (4) months of his Base Salary;
and (ii) the immediate vesting of all shares represented by his then unvested
Options. Executive shall have ninety (90) days following such date of
termination in which to exercise all of the accelerated Options.
(ii) Termination Outside a Change of Control. If,
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outside a Change of Control, the Company terminates Executive's employment
"Without Cause" or Executive resigns for "Good Reason", then Executive shall
receive a lump sum severance payment equal to four (4) months of his Base
Salary.
(iii) Termination Due to Death or Disability. If
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Executive's employment is terminated due to death or Disability, then Executive,
or Executive's estate, will receive: (A) Executive's Base Salary through the
date of termination; (B) payment for unused vacation earned through the date of
termination; and (C) immediate vesting of the unvested shares of the Options.
(iv) Definitions.
(a) "Change of Control." For all purposes
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under this Agreement, "Change of Control" shall mean (i) a merger or
consolidation in which securities possessing at least fifty percent (50%) of the
total combined voting power of the Corporation's outstanding securities are
issued or transferred to a single person or entity different from the persons
holding those securities immediately prior to such transaction, or (ii) the
sale, transfer or other disposition of all or substantially all of the
Corporation's assets in complete liquidation or dissolution of the Corporation.
(b) "Good Reason." For all purposes under
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this Agreement, "Good Reason" for Executive's resignation will exist if he
resigns within ninety (90) days of either of the following events: (i) any
reduction in his Base Salary; (ii) any material reduction in his benefits; (iii)
a change in his position with the Company or a successor company which
materially reduces his duties or level of responsibility; or (iv) any
requirement that he relocate his place of employment by more than thirty-five
(35) miles from his then current office, provided such reduction, change or
relocation is effected by the Company without his written consent. A resignation
by Executive under any other circumstance or for any other reason will be a
resignation without "Good Reason."
(c) Termination for "Cause." For all
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purposes under this Agreement, a termination for "Cause" shall mean a good faith
determination by the Company's Board of Directors that Executive's employment be
terminated for any of the following reasons: (i) willful misconduct which
materially damages the Company; (ii) willful failure to attempt to substantially
perform your duties with the Company after a written demand for such performance
is delivered to Executive by the Board of Directors or by the CEO, which
specifically identifies the manner in which the Board of Directors or CEO
believes Executive has not substantially performed his duties, and which
Executive does not remedy within a reasonable period of time (not to be less
than thirty (30) days) after receipt of such demand; (iii) misappropriation of
the assets of the Company; or (iv) conviction of, or a plea of "guilty" or "no
contest" to a felony under the laws of the United States or any state thereof. A
termination of
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Executive's employment in any other circumstance or for any other reason will be
a termination "Without Cause."
(d) "Disability." For all purposes under
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this Agreement, "Disability" means Executive's inability to carry out his
material duties under this Agreement for more than six (6) months in any twelve
(12) consecutive month period as a result of incapacity due to mental or
physical illness or injury.
3. Vacation and Executive Benefits. During the term of his
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employment, Executive shall be eligible for paid vacation, in accordance with
the Company's standard policy for similarly situated employees, as it may be
amended from time to time. During the term of his employment, Executive shall be
eligible to participate in any employee benefit plans maintained by the Company
for similarly situated employees, subject in each case to the generally
applicable terms and conditions of the plan in question and to the
determinations of any person or committee administering such plan.
4. Business Expenses. During the term of his employment, Executive
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shall be authorized to incur necessary and reasonable travel and other business
expenses in connection with his duties hereunder. The Company shall reimburse
Executive for such expenses upon presentation of an itemized account and
appropriate supporting documentation, all in accordance with the Company's
generally applicable policies.
5. Non-Solicitation and Non-Disclosure.
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(a) Non-Solicitation. During the period commencing on the
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date of this Agreement and continuing until the first anniversary of the date
when Executive's employment terminates for any reason, Executive shall not
directly or indirectly, personally or through others, solicit or attempt to
solicit (on Executive's own behalf or on behalf of any other person or entity)
for hire any employee or consultant of the Company or any of the Company's
affiliates.
(b) Non-Disclosure. As a condition of employment, Executive
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acknowledges that he has already executed a copy of the Company's standard
Proprietary Information and Inventions Agreement.
6. Legal Fees. Each of the Company and Executive shall be
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responsible for any attorneys' fees incurred in connection with negotiating and
drafting this Agreement.
7. Successors.
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(a) Company's Successors. This Agreement shall be binding
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upon any successor (whether direct or indirect and whether by purchase, lease,
merger, consolidation, liquidation or otherwise) to all or substantially all of
the Company's business and/or assets. For all purposes under this Agreement, the
term "Company" shall include any successor to the Company's business and/or
assets which becomes bound by this Agreement.
(b) Executive's Successors. This Agreement and all rights
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of Executive hereunder shall inure to the benefit of, and be enforceable by,
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
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8. Indemnity. The Company will indemnify and provide a defense to
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Executive to the full extent permitted by law and its bylaws with respect to any
claims arising out of the performance of his duties as an employee, director or
officer of the Company. To the same extent, the Company will pay, and subject to
any legal limitations, advance all expenses, including reasonable attorney fees
and costs of court-approved settlements, actually and necessarily incurred by
Executive in connection with the defense of any action, suit or proceeding and
in connection with any appeal, which has been brought against Executive by
reason of his service as an officer, director or agent of the Company, or his
acceptance of this Agreement or the performance of his duties thereunder. The
Company shall use its best efforts to obtain coverage for Executive under a
liability insurance policy or policies that cover the actions of officers and
directors of the Company.
9. Arbitration. Any controversy between the parties hereto involving
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the construction or application of any terms, covenants or conditions of this
Agreement, or any claims arising out of or relating to this Agreement or the
breach thereof or with your employment with the Company or any termination of
that employment, will be submitted to and settled by final and binding
arbitration in Palo Alto, California, in accordance with the Model Employment
Dispute Resolution Rules of the American Arbitration Association (the "Rules"),
or any other applicable rules of the AAA then in effect. Any arbitrator shall be
selected pursuant to such Rules and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.
10. Miscellaneous Provisions.
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(a) Notice. Notices and all other communications
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contemplated by this Agreement shall be in writing and shall be deemed to have
been duly given when personally delivered or when mailed by overnight courier,
U.S. registered or certified mail, return receipt requested and postage prepaid.
Mailed notices shall be addressed to Executive at the home address which he most
recently communicated to the Company in writing. In the case of the Company,
mailed notices shall be addressed to its corporate headquarters, and all notices
shall be directed to the attention of its Secretary.
(b) Modifications and Waivers. No provision of this
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Agreement shall be modified, waived or discharged unless the modification,
waiver or discharge is agreed to in writing and signed by Executive and by an
authorized officer of the Company (other than Executive). No waiver by either
party of any breach of, or of compliance with, any condition or provision of
this Agreement by the other party shall be considered a waiver of any other
condition or provision or of the same condition or provision at another time.
(c) Whole Agreement. No other agreements, representations
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or understandings (whether oral or written) which are not expressly set forth in
this Agreement have been made or entered into by either party with respect to
the subject matter of this Agreement. This Agreement, the Proprietary
Information Agreement, and applicable stock option agreements and stock plans,
contain the entire understanding of the parties with respect to the subject
matter hereof.
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(d) Taxes. All payments made under this Agreement shall be
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subject to reduction to reflect taxes or other charges required to be withheld
by law.
(e) Choice of Law. The validity, interpretation,
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construction and performance of this Agreement shall be governed by the laws of
the State of California (except provisions governing the choice of law).
(f) Severability. The invalidity or unenforceability of any
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provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
(g) No Assignment. This Agreement and all rights and
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obligations of Executive hereunder are personal to Executive and may not be
transferred or assigned by Executive at any time. The Company may assign its
rights under this Agreement to any entity that assumes the Company's obligations
hereunder in connection with any sale or transfer of all or a substantial
portion of the Company's assets to such entity.
(h) Insurance. The Company shall, to the extent permitted
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by law and to extent necessary to protect Executive, include Executive during
the term of this Agreement under any directors and officers liability insurance
policy maintained for its directors and officers. The coverage shall be at least
as favorable to Executive in amount and each other material respect as the
coverage of other directors and officers covered thereby. This obligation to
provide insurance for Executive shall survive expiration or termination of this
Agreement with respect to proceedings or threatened proceedings based on acts or
omissions of Executive occurring during Executive's employment with the Company
or with any affiliated company.
(i) Headings. The headings of the paragraphs contained in
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this Agreement are for reference purposes only and shall not in any way affect
the meaning or interpretation of any provision of this Agreement.
(j) Counterparts. This Agreement may be executed in two or
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more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized officer, as of the day and year first
above written.
EXECUTIVE
/s/ Xxxxxxxx Xxxxxx
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Xxxxxxxx Xxxxxx
iAsiaWorks, Inc.
By: /s/ Xxxxxxxx Xxxxxx
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Title: Chief Executive Officer
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