EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of this
1ST day of May 1999, to become effective at the time set forth in Section 1
hereof, between eSoft, Inc., a Delaware corporation (the "Company"), and XXX
XXXX XXXXXXX, an individual person (the "Executive").
RECITAL
A. The Company desires to employ the Executive as CHIEF ACCOUNTING OFFICER,
and the Executive desires to be employed by the Company in such position upon
the terms and conditions set forth in this Agreement.
B. The Executive acknowledges that during the course of the Executive's
employment the Executive will receive or be exposed to certain confidential
information and trade secrets (collectively referred to as "Confidential
Information") of the Company. The Executive also acknowledges that this
Confidential Information is among the Company's most important assets and that
the value of this Confidential Information would be diminished or extinguished
by disclosure.
AGREEMENT
In consideration of the mutual promises contained herein, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. EMPLOYMENT; POSITION; TERM. The Company hereby employs the Executive and
the Executive hereby accepts employment with the Company in the capacity of
CHIEF ACCOUNTING OFFICER. Subject to Section 4, the term of Executive's
employment under this Agreement (the "Term") shall be for 36 months, beginning
May 1, 1999 and ending April 30, 2002.
2. DUTIES, RESPONSIBILITIES AND AUTHORITY. In the capacity as CHIEF
ACCOUNTING OFFICER for the Company, the Executive shall have primary
responsibility for the establishment and maintenance of the Company's financial
policies and plans, accounting, budgeting, treasury, tax, insurance, investor
relations, financing, and human resources. Responsibilities also include the
Company's relationship with financial institutions, investors, and government
agencies. The Executive shall report to and be subject to the direction and
control of the President of the Company. The Executive shall devote
substantially all of Executive's full professional and managerial time and
effort to the performance of the duties as CHIEF ACCOUNTING OFFICER and shall
not engage in other business activity or activities which, in the reasonable
good-faith judgement of the President of the Company, conflict with the
performance of duties under this Agreement.
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3. COMPENSATION
(a) SALARY. For services rendered under this Agreement, the Company
shall pay the Executive a salary at the rate of $5,833.33 per month.
(b) BONUS. The Executive shall be eligible to receive a performance
bonus based upon mutually agreed company and department performance criteria for
each fiscal quarter of the Company completed during the term of this Agreement.
The target bonus pay at 100% of attainment is $10,000 per quarter. The payment
of the Executive's incentive pay shall be made as soon as practicable but no
later than sixty (60) days following the end of the quarter.
(d) STOCK OPTIONS. The Executive has been granted incentive stock
options pursuant to the Company's Stock Option Plan to purchase up to 35,000
shares of the Company's common stock at an exercise price equal to the fair
market value of the Company's common stock on the day of the grant, subject to
board approval. Shares shall vest over a 36 month period with no vesting until
the beginning of the eighth month at which time seven-thirty-sixths (7/36) of
the options will vest, and then one-thirty-sixth (1/36) will vest after the
beginning of each month thereafter. Vesting shall occur as long as the Executive
remains an employee of the Company. The options, once vested shall have an
expiration date of 4 years from the date of grant of the option. In addition,
the Executive may participate in stock option programs of the Company upon such
terms as the administrators of such programs in their discretion determine.
(e) ANNUAL REVIEW. The Executive's salary, bonus, options and terms
of the severance in Section 7 of this Agreement shall be reviewed annually
beginning January 1, 2000 and may be increased as the Board deems appropriate,
but shall not be decreased during the term without mutual agreement.
(f) BENEFITS AND VACATION. The Executive shall be eligible to
participate in such insurance programs (health, disability or life) or such
other health, dental, retirement or similar employee benefits programs as the
Board may approve, on a basis comparable to that available to other officers and
executive employees of the Company. The Executive shall be entitled to a minimum
of four weeks of paid vacation per year. Vacation time may be accumulated for up
to one year beyond the year for which it is accrued and may be used any time
during such year. Any vacation time not used during such additional year shall
be forfeited. The value of any accrued but unused and unforfeited vacation time
shall be paid in cash to the Executive upon termination of Executive's
employment for any reason.
(g) REIMBURSEMENT OF EXPENSES. The Company shall reimburse the
Executive in a timely manner for all reasonable out-of-pocket expenses incurred
by the Executive in connection with the performance of Executive's duties under
this Agreement; provided that the Executive presents to the Company an itemized
accounting of such expenses including reasonable supporting data and follows the
Company's travel policies.
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4. TERMINATION.
(a) TERMINATION BY THE COMPANY WITHOUT CAUSE. Notwithstanding
anything to the contrary contained herein but subject to Section 7 hereof, the
Company may, by delivering thirty (30) days' prior written notice to the
Executive, terminate the Executive's employment at any time without Cause (as
hereinafter defined).
(b) TERMINATION BY THE EXECUTIVE WITHOUT CAUSE. Notwithstanding
anything to the contrary contained herein but subject to Section 7 hereof, the
Executive may, by delivering thirty (30) days' prior written notice to the
Company, terminate the Executive's employment hereunder.
(c) TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate
the Executive's employment for Cause immediately upon written notice stating the
basis for such termination. "Cause" for termination of the Executive's
employment shall only be deemed to exist if the Executive has (i) breached this
Agreement and if such breach continues or recurs more than thirty (30) days
after notice from the Company specifying the action which constitutes the breach
and demanding its discontinuance, (ii) exhibited willful disobedience of lawful
directions of the President or of the Board, or (iii) committed gross
malfeasance in performance of Executive's duties hereunder or acts resulting in
an indictment charging the Executive with the commission of a felony; provided
that the commission of acts resulting in such an indictment shall constitute
Cause only if a majority of the directors who are not also subject to any such
indictment determine that the Executive's conduct has substantially adversely
affected the Company or its reputation. A material failure to perform
Executive's duties hereunder that results from the disability of the Executive
shall not be considered Cause for Executive's termination.
(d) TERMINATION BY THE EXECUTIVE FOR CAUSE. The Executive may
terminate employment for Cause immediately upon written notice stating the basis
for such termination. "Cause" for termination of employment by the Executive
shall only be deemed to exist if the Company has breached this Agreement and if
such breach continues or recurs more than thirty (30) days after notice from the
Executive specifying the action which constitutes the breach and demanding its
discontinuance, or if the Company is engaged in unlawful activity or requests
the Executive to engage in unlawful activity.
5. DISABILITY. In the event of disability of the Executive during the term
hereof, the Company shall, during the continuance of Executive's disability but
only for a maximum of 90 days following the determination of disability, pay the
Executive the Executive's then current salary, as provided for in Section 3(a),
and adjusted pursuant to Section 3(b), and continue to provide the Executive all
other benefits provided hereunder. As used herein, the term "disability" shall
mean the complete and total inability of the Executive, due to illness, physical
or comprehensive mental impairment, to substantially perform all of Executive's
duties as described herein for a consecutive period of thirty (30) days or more.
6. DEATH. In the event of the death of the Executive, except with respect
to any benefits which have accrued and have not been paid to the Executive
hereunder, the
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provisions of this Agreement shall terminate immediately. The Executive's estate
shall have the right to receive compensation due to the Executive as of and to
the date of Executive's death and shall have the right to receive an additional
amount equal to one-twelfth (1/12th) of the Executive's annual compensation then
in effect.
7. SEVERANCE. In the event that the Executive's employment is terminated by
the Company other than for Cause or death of the Executive, or in the event
there is either a material change in the responsibilities of the Executive or a
loss of position within six (6) months after a Change of Control (as defined in
Section 12 of this Agreement), or if Executive terminates this Agreement for
Cause, the Executive shall be entitled to receive Executive's then current
salary and benefits, as provided for in Sections 3(a) and 3(e), payable in
semi-monthly installments, for the greater of six (6) months or that number of
months which equals the number of years that have elapsed from the initial date
of this Agreement until the date of the Executive's termination by the Company;
PROVIDED, HOWEVER, that if any of such payments would (i) constitute a
"parachute payment" within the meaning of Section 280G of the Intemal Revenue
Code of 1986 (the "Code") and (ii) but for this provision, be subject to the
excise tax imposed by Section 4999 of the Code (the "Excise Tax"); the amount
payable hereunder shall be reduced to the largest amount which the Executive
determines would not result in any portion of the payments hereunder being
subject to the Excise Tax. If the Executive voluntarily resigns Executive's
employment hereunder or if Executive's employment is terminated for Cause, the
Executive shall not be entitled to any severance pay or other compensation
beyond the date of termination of Executive's employment.
8. COVENANT NOT TO COMPETE.
(a) During the continuance of the Executive's employment hereunder
and for a period of twelve (12) months after termination of the Executive's
employment hereunder, pursuant to section 4.b or 4.c hereof, the Executive shall
not engage in any business which competes with the Company or its affiliates
anywhere in the United States or Canada during the Executive's employment
hereunder or at the time of termination.
(b) The Executive shall not, for a period of twelve (12) months after
termination of the Executive's employment hereunder, pursuant to section 4.b or
4.c hereof, employ, engage or seek to employ or engage for himself or any other
person or entities, any individual who is or was employed or engaged by the
Company or any of its affiliates until the expiration of six (6) months
following the termination of such person's or entity's employment or engagement
with the Company or any of its affiliates.
9. TRADE SECRETS AND CONFIDENTIAL INFORMATION. During Executive's
employment by the Company and for a period of five (5) years thereafter, the
Executive shall not, directly or indirectly, use, disseminate, or disclose for
any purpose other than for the purposes of the Company's business, any
Confidential Information of the Company or its affiliates, unless such
disclosure is compelled in a judicial proceeding. Upon termination of
Executive's employment, all documents, records, notebooks, and similar
repositories of records containing information relating to any Confidential
Information then in the Executive's
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possession or control, whether prepared by him or by others, shall be left with
the Company or, if requested, returned to the Company.
10. SEVERABILITY. It is the desire and intent of the undersigned parties
that the provisions of Sections 8 and 9 shall be enforced to the fullest extent
permissible under the laws in each jurisdiction in which enforcement is sought.
Accordingly, if any particular sentence or portion of either Section 8 or 9
shall be adjudicated to be invalid or unenforceable, the remaining portions of
such section nevertheless shall continue to be valid and enforceable as though
the invalid portions were not a part thereof. In the event that any of the
provisions of Section 8 relating to the geographic areas of restriction or the
provisions of Sections 8 or 9 relating to the duration of such Sections shall be
deemed to exceed the maximum area or period of time which a court of competent
jurisdiction would deem enforceable, the geographic areas and times shall, for
the purposes of this Agreement, be deemed to be the maximum areas or time
periods which a court of competent jurisdiction would deem valid and enforceable
in any state in which such court of competent jurisdiction shall be convened.
11. INJUNCTIVE RELIEF. The Executive agrees that any violation by Executive
of the provisions contained in Sections 8 and 9 are likely to cause irreparable
damage to the Company, and therefore Executive agrees that if there is a breach
or threatened breach by the Executive of the provisions of said sections, the
Company shall be entitled to pursue an injunction restraining the Executive from
such breach, and Executive will make no objection to the form of relief sought.
Nothing herein shall be construed as prohibiting the Company from pursuing any
other available remedies for such breach or threatened breach.
12. MISCELLANEOUS.
(a) NOTICES. Any notice required or permitted to be given under this
Agreement shall be directed to the appropriate party in writing and mailed or
delivered, if to the Company, to eSoft, Inc., to the attention of the President,
at 000 Xxxxxxxxxxx Xxxx, #000, Xxxxxxxxxx, Xxxxxxxx 00000, and if to the
Executive, at 00000 X. X.X. Xxx 000, Xxxxxxx, XX, 00000. Notification addresses
may be changed with written notice.
(b) BINDING EFFECT. This Agreement is a personal service agreement
and may not be assigned by the Company or the Executive, except that the Company
may assign this Agreement to a successor of the Company by merger,
consolidation, sale of substantially all of the Company's assets or other
reorganization (a "Change of Control"). Subject to the foregoing, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors, assigns, and legal representatives.
(c) AMENDMENT. This Agreement may not be amended except by an
instrument in writing executed by each of the undersigned parties.
(d) APPLICABLE LAW. This Agreement is entered into in the State of
Colorado and for all purposes shall be governed by the laws of the State of
Colorado.
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(e) ATTORNEY'S FEES. In the event either party takes legal action to
enforce any of the terms of this Agreement, the unsuccessful party to such
action will pay the successful party's reasonable expenses, including attorney's
fees, incurred in such action.
(f) ENTIRE AGREEMENT. This Agreement supersedes and replaces all prior
agreements between the parties related to the employment of the Executive by the
Company.
SIGNATURES
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
first date mentioned above.
THE COMPANY:
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Chief Executive Officer
THE EXECUTIVE:
By: /s/ Xxx Xxxx Xxxxxxx
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Xxx Xxxx Xxxxxxx
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