Exhibit 10.13
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of May 5, 2000, by and between Xxxxx
Xxxxx ("Executive") and iAsiaWorks, Inc., a California corporation (the
"Company").
1. Duties and Scope of Employment.
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(a) Position and Duties. For the term of his employment under this
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Agreement, the Company agrees to employ Executive in the position of Vice
President of Internet and Data Center Technology. Executive shall report to the
Company's Chief Executive Officer ("CEO"), and his position will be based at the
Company's corporate headquarters in San Mateo, California. Executive's duties
will include developing and deploying internet data centers throughout Asia
("Data Centers"). Executive and the CEO shall develop a bonus program entitling
Executive to additional grants based on the timely completion of Data Centers
within budget, as discussed in section 3(b)(ii) below.
(b) Obligations to the Company. During the term of his employment,
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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 warrants to
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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. The employment of executive by the Company shall be
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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 Executive's
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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 terminate
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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 a monthly Base
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Salary of $12,500, less applicable withholdings and deductions in accordance
with the Company's payroll policies. (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.")
(b) Stock Option. The unvested shares of Executive's stock
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option granted by the Company under the Stock Option Plan, dated _____1995 (the
"Plan") shall continue to vest pursuant to the Plan.
(c) Bonus. Executive shall be eligible to earn a bonus based
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on the completion of Data Centers throughout Asia within time and budget goals
("Target Bonus"). The Target Bonus amount shall be comprised of a cash and stock
option component, according to the goals set forth as follows. If the first
three (3) Data Centers are completed on time and within budget, Executive will
be entitled to receive an additional stock option grant for 50,000 shares of the
Company's common stock. The option grant will be granted at the prevailing
exercise price. For the purposes of this bonus program, there will be three
tranches of Data Centers. Thus, if all of the Data Centers are completed within
the established time and budget goals, Executive will be eligible for stock
option grants for the purchase of a maximum of 150,000 shares of the Company's
common stock. For each tranche of completed Data Centers, Executive shall also
be entitled to receive a cash bonus for $20,000, with a maximum bonus potential
of $60,000. Any additional stock option grants or cash bonuses shall be
determined at the discretion of the Company's CEO. All option grants will be
adjusted accordingly for stock splits and reverse splits such that Executive
shall retain the same value as set forth above.
(d) Effect of Termination.
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(i) Termination Following Change of Control. If there is a
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change in control and Executive is terminated "Without Cause" as a result
thereof, then Executive shall receive immediate vesting of all unvested shares.
(ii) Termination Outside a Change of Control. If the
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Company terminates Executive's employment "Without Cause" outside a Change of
Control, then
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Executive shall receive a lump sum severance payment equal to six (6) months of
his Base Salary and all unvested options shall vest upon termination.
(iii) Definitions.
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(a) "Change of Control." For all purposes under this
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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 transferred to a person or
persons 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 this
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Agreement, "Good Reason" for Executive's resignation will exist if he resigns
within sixty (60) days of either of the following events: (i) any reduction in
his Base Salary; or (ii) any material reduction in his benefits, provided that
such reduction or change 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 purposes under
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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 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 Executive's employment in any
other circumstance or for any other reason will be a termination "Without
Cause."
3. Vacation and Executive Benefits. During the term of his employment,
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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 shall
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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.
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5. Non-Solicitation and Non-Disclosure.
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(a) Non-Solicitation. During the period commencing on the date
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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 will
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execute the Company's standard Proprietary Information Agreement, a copy of
which is attached.
6. Legal Fees. The Company will pay Executive's reasonable attorneys'
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fees in connection with negotiating and drafting this Agreement.
7. Successors.
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(a) Company's Successors. This Agreement shall be binding upon
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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 of
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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.
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 the
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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
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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 contemplated
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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 Agreement
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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 or
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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.
(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, construction
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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 obligations
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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) Headings. The headings of the paragraphs contained in this
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Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of any provision of this Agreement.
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(i) Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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/ Xxxxx Xxxxx
____________________________________
Xxxxx Xxxxx
iAsiaworks, Inc.
/s/ Xxxxxxxx Xxxxxx
By:_________________________________
CFO, U.S. President
Title:______________________________
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