EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT dated as of February 26, 2008, by and between IntraLinks, Inc., a
Delaware corporation with its principal place of business at 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, XX 00000 (hereinafter referred to as “IntraLinks”), and J. Xxxxxx
Xxxxxx, residing at _____________________________________________ (hereinafter
referred to as “Executive”).
WHEREAS,
IntraLinks desires to employ Executive as President and Chief Executive Officer
(the “CEO”), subject to the terms and conditions of this agreement (the
“Agreement”).
NOW,
THEREFORE, in consideration of the promises and covenants herein, the parties
agree as follows:
1. Employment
Executive
is and will be an employee at will, which means that either the Executive or
IntraLinks may terminate the employment relationship at any time, with or
without “Cause”, as defined below, or notice, subject to the provisions of
Sections 5 and 6 of this Agreement.
2. Duties
2.1 Executive
shall, during the term of his employment with IntraLinks, perform the duties of
President and CEO as provided in the bylaws of IntraLinks and shall perform such
other duties as shall be specified and designated from time to time by the Board
of Directors. Executive shall devote his full business time and
effort to the performance of his duties hereunder.
2.2 Executive’s
employment hereunder shall be subject to the rules and regulations of IntraLinks
involving the general conduct of business of IntraLinks in force from time to
time and applicable to senior executives of IntraLinks.
3. Board
Seat
As long
as Executive is IntraLinks’ CEO, Executive shall be entitled to a seat on
IntraLinks’ Board of Directors. Executive shall not be entitled to
any additional compensation in his capacity as a director of
IntraLinks.
4. Compensation
4.1 Salary. IntraLinks
shall pay Executive an annualized salary of $325,000.00 (the “Annual Salary”),
in accordance with the customary payroll practices of IntraLinks applicable to
senior executives. Executive’s Annual Salary shall be reviewed
annually in accordance with IntraLinks’ policy and may be adjusted in the sole
discretion of IntraLinks.
4.2 Bonus. Executive
shall be eligible to receive an annual bonus (with a target “at plan” amount for
the year 2008 equal to 50% of the amount of Annual Salary actually paid or
accrued during the calendar year), the criteria for, exact amount and award of
said bonus to be determined in the discretion of the Board of
Directors. Any and all bonus compensation shall be deemed earned at
the time of the award and payment thereof. Executive shall be
eligible to receive any such bonus only if Executive is actively employed by
IntraLinks on the date such bonuses, if any, are paid and Executive has not
given notice of resignation or been given notice of termination by IntraLinks
for “Cause”, as defined in this Agreement, on or prior to that
date.
4.3 Benefits. Executive
shall be eligible to participate in IntraLinks’ employee benefits plans, subject
to the terms and conditions of the applicable plan documents, and subject to
IntraLinks’ right to amend, terminate, increase costs and/or take other similar
action with respect to any or ail of its benefit plans, as with all other plans
and programs of IntraLinks.
4.4 Expenses. IntraLinks
shall pay or reimburse Executive for all reasonable out-of-pocket expenses
actually incurred by Executive in the performance of Executive’s services under
this Agreement, in accordance with IntraLinks’ expense reimbursement policies in
effect from time to time (including timely submission of proof of such expenses
(including, in the case of reimbursements, proof of payment) in such form as
IntraLinks may require).
4.5 Vacation. Executive
shall be entitled to paid time off including sick days and personal days as
provided under IntraLinks policy in effect from time to time.
4.6 Delivery of
Compensation. In the event of Executive’s death, any accrued
but unpaid payments by IntraLinks hereunder shall be made to the executors or
administrators of Executive’s estate against the delivery of such tax waivers,
proper letters testamentary and other documents as IntraLinks may reasonably
request.
5. Termination upon Death or
Disability
This
Agreement shall terminate upon Executive’s death. If Executive
becomes disabled, IntraLinks may terminate Executive’s employment by written
notice to Executive. For purposes hereof, “disability” shall be
defined to mean Executive’s inability, due to physical or mental incapacity, to
substantially perform his duties and responsibilities under this Agreement for a
period of forty-five (45) days from the date of such disability as determined by
an approved medical doctor selected by the mutual agreement of the parties
hereto. In the event that the parties hereto cannot agree on an
approved medical doctor, each party shall select a medical doctor and the two
doctors shall select a third medical doctor who shall serve as the approved
medical doctor hereunder. Upon death or termination of employment by
virtue of disability, Executive (or Executive’s estate or beneficiaries in the
case of the death of Executive) shall have no right to receive any compensation
or benefit hereunder on and after the effective date of the termination of
employment other than (i) Annual Salary earned and accrued under this Agreement
prior to the effective date of termination; (ii) earned, accrued and vested
benefits and paid time off, subject to the terms of the plans applicable
thereto; and (iii) reimbursement under this Agreement for expenses incurred
prior to the effective date of termination. This Agreement shall
otherwise terminate upon the effective date of the termination of employment and
Executive shall have no further rights hereunder.
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6. Other Terminations of
Employment
6.1 Termination for
Cause. If Executive (i) is convicted of or enters a plea of
guilty or nolo contendere to a felony, a crime of moral turpitude, dishonesty,
breach of trust or unethical business conduct, or any crime involving the
business of IntraLinks; (ii) in the performance of his duties hereunder or
otherwise to the detriment of IntraLinks, engages in (A) misconduct, (B) willful
or gross neglect, (C) fraud, (D) misappropriation, (E) embezzlement or (F)
theft; (iii) disobeys the lawful directions of the Board of Directors; (iv)
fails to comply with the reasonable policies and practices of IntraLinks; (v)
fails to devote substantially all of his business time and effort to IntraLinks;
or (vi) is adjudicated in any civil suit, or acknowledges in writing in any
agreement or stipulation, to the commission of any theft, embezzlement, fraud,
or other intentional act of dishonesty involving any other person, IntraLinks
may terminate Executive’s employment hereunder. Notwithstanding any
other provision of this Agreement, if IntraLinks terminates Executive’s
employment in accordance with the terms of this Section 6.1 for Cause, Executive
shall have no right to receive any compensation or benefit hereunder on and
after the effective date of the termination of employment other than (x) Annual
Salary earned and accrued under this Agreement prior to the effective date of
termination; (y) earned, accrued and vested benefits and paid time off under
this Agreement prior to the effective date of termination, subject to the terms
of the plans applicable thereto; and (z) reimbursement under this Agreement for
expenses incurred prior to the effective date of termination. This
Agreement shall otherwise terminate upon the effective date of the termination
of employment and Executive shall have no further rights hereunder.
6.2 Termination by
Executive. Notwithstanding any other provision of this
Agreement, if Executive terminates his employment under this Section 6.2,
Executive shall have no right to receive any compensation or benefit hereunder
on and after the effective date of the termination of employment other than (i)
Annual Salary earned and accrued under this Agreement prior to the effective
date of termination; (ii) earned, accrued and vested benefits and paid time off
under this Agreement prior to the effective date of termination, subject to the
terms of the plans applicable thereto; and (iii) reimbursement under this
Agreement for expenses incurred prior to the effective date of
termination. This Agreement shall otherwise terminate upon the
effective date of the termination of employment and Executive shall have no
further rights hereunder. Executive shall endeavor to provide 60
days’ prior written notice to IntraLinks if he terminates his employment under
this Section 6.2.
6.3 Termination Without
Cause. IntraLinks may terminate Executive’s employment at any
time for any reason. If Executive’s employment with IntraLinks is
terminated pursuant to this Section 6.3, Executive shall have no right to
receive any compensation or benefit hereunder on and after the effective date of
the termination of employment other than:
(a) Annual
Salary earned and accrued under this Agreement prior to the effective date of
termination;
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(b) an
additional six (6) months of Annual Salary at the rate in effect at termination
payable in a lump sum, subject to applicable withholding taxes, on or about the
fifteenth business day following Executive’s execution of his release agreement;
and
(c) payment
of the premiums for Executive’s group health insurance coverage pursuant to
COBRA, if eligible and elected, for a period of six (6) months, or until such
sooner date that Executive accepts employment with another
employer;
provided
that after expiration of the relevant COBRA payment period above, IntraLinks
will allow Executive to continue such coverage at his own expense for the
remainder of any COBRA continuation period pursuant to applicable law and
Executive shall notify IntraLinks immediately upon acceptance of employment with
another employer;
(d) earned,
accrued and vested benefits and paid time off under this Agreement prior to the
effective date of termination, subject to the terms of the plans applicable
thereto; and
(e) reimbursement
under this Agreement for expenses incurred prior to the effective date of
termination.
No
payment or other consideration under this Section 6.3 shall be paid or given
unless Executive executes and does not revoke a customary and reasonable
agreement releasing all claims against IntraLinks as required by IntraLinks at
the time of Executive’s termination.
This
Agreement shall otherwise terminate upon the effective date of the termination
of employment and Executive shall have no further rights hereunder.
7. Covenants of
Executive.
7.1 Non-Competition;
Non-Solicitation. As a material inducement to IntraLinks to
enter into this Agreement, Executive hereby expressly agrees to be bound by the
following covenants, terms and conditions. Executive hereby agrees
that he has had and/or will have access to trade secrets, proprietary and
confidential information relating to IntraLinks and its affiliates and their
respective clients, including but not limited to, marketing data, financial
information, client and prospect lists (including without limitation, computer-
and web-based compilations (including but not limited to xxxxxxxxxx.xxx or other
CRM system data) maintained by IntraLinks or its affiliates or Executive), and
details of programs and methods, potential and actual acquisitions, divestitures
and joint ventures, pricing policies, strategies, terms of service, business and
product plans, cost information and software, in each case of IntraLinks, its
affiliates and/or their respective clients. Accordingly, Executive
voluntarily enters into the following covenants to provide IntraLinks with
reasonable protection of those interests:
(a) Executive
agrees that during the term of his employment with IntraLinks and for a period
of two (2) years thereafter, Executive shall not, alone or as an employee,
officer, director, agent, shareholder (other than an owner of 1% or less of the
outstanding shares of any publicly-traded company), consultant, partner, member,
owner or in any other capacity, directly or indirectly:
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(i) engage
in any Competitive Activity, as defined below, within or with respect to any
location in the United States or abroad in which Executive performed or directed
his services (including but not limited to sales and customer support calls,
whether conducted in person, by telephone or online) at any time during the
twelve month period immediately preceding the termination of Executive’s
employment for any reason (the “Territories”), or assist any other person or
organization in engaging in, or preparing to engage in, any Competitive Activity
in such Territories;
(ii) solicit
or provide services to any Clients, as defined below, of IntraLinks and/or any
of its affiliates, on his own behalf or on behalf of any third party, in
furtherance of any Competitive Activity. For purposes of this Section
7, “Client” shall mean any current or former customer of IntraLinks or user of
IntraLinks’ services or software at any time during the term of Executive’s
employment with IntraLinks;
(iii) encourage,
participate in or solicit any employee or consultant of IntraLinks and/or any
affiliate to engage in Competitive Activity or to accept employment with any
third party whether or not engaged in Competitive Activity. This
subsection (iii) shall be limited to employees and consultants who: (A) are
current employees or consultants; or (B) left the employment of IntraLinks or
whose provision of services to IntraLinks terminated within the twelve (12)
month period prior to Executive’s termination of employment with IntraLinks for
any reason; and
(iv) for
purposes of this Agreement, “Competitive Activity” shall mean any offering,
sale, licensing or provision by any entity of any software, application service
or system, in direct competition with IntraLinks’ offerings and including
electronic or digital document repositories for facilitating transactional due
diligence, mergers, acquisitions, divestitures, financings, investments,
investor relations, research and development, clinical trials or other business
processes for which IntraLinks’ products or services are or have been used
during the twelve (12) month period preceding termination of Executive’s
employment for any reason.
(b) Executive
agrees that the foregoing restrictions are reasonable and justified in light of:
(i) the nature of IntraLinks’ business and customers; (ii) the confidential and
proprietary information to which Executive has had and will have exposure and
access during the course of his employment with IntraLinks; and (iii) the need
for the adequate protection of the business and the goodwill of
IntraLinks. In the event any restriction in this Section 7 is deemed
to be invalid or unenforceable by any court of competent jurisdiction, Executive
agrees to the reduction of said restriction to such period or scope that such
court deems reasonable and enforceable.
(c) Executive
acknowledges and agrees that any breach of this Section 7 shall cause IntraLinks
immediate, substantial and irreparable harm and therefore, in the event of any
such breach, Executive agrees that he or she shall immediately forfeit all
compensation paid or payable pursuant to 6.3(b), without prejudice to any other
remedies which may be available to IntraLinks, and IntraLinks shall have the
right to seek specific performance and injunctive relief, without the need to
post a bond or other security.
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(d) Executive
acknowledges and agrees that the provisions of this Section 7 are in addition
to, and not in lieu of, any non-solicitation, non-competition, confidentiality,
nonraid and/or similar obligations which Executive may have with respect to
IntraLinks and/or its affiliates, whether by agreement, fiduciary obligation or
otherwise. Without in any way limiting the provisions of this Section
7, Executive further acknowledges and agrees that the provisions of this Section
7 shall remain applicable in accordance with their terms after the date of
termination of Executive’s employment, regardless of whether Executive’s
termination or cessation of employment is voluntary or involuntary.
7.2 Confidential and Proprietary
Information. During and after the term of Executive’s
employment with IntraLinks, Executive covenants and agrees that he will not
disclose to anyone without IntraLinks’ prior written consent, any confidential
materials, documents, records or other non-public information of any type
whatsoever concerning or relating to the business and affairs of IntraLinks
which Executive may have acquired in the course of his employment hereunder,
including but not limited to: (i) trade secrets of IntraLinks; (ii) lists of
and/or information concerning current, former, and/or prospective customers or
clients of IntraLinks; (iii) information relating to methods of doing business
(including information concerning operations, technology and systems) in use or
contemplated use by IntraLinks and not generally known among IntraLinks’
competitors, except to the extent such disclosure is required by law, regulation
or legal process.
7.3 Rights and Remedies upon
Breach. Executive acknowledges and agrees that his breach of
any provision of this Section 7 (the “Restrictive Covenants”) would result in
irreparable injury and damage for which money damages do not provide an adequate
remedy. Therefore, if Executive breaches or threatens to commit a
breach of any Restrictive Covenant, IntraLinks shall have the following rights
and remedies (in accordance with applicable law and upon compliance with any
necessary prerequisites imposed by law upon the availability of such remedies),
each of which rights an remedies shall be independent of the other and severally
enforceable, and all of which right and remedies shall be in addition to, and
not in lieu of, any other rights and remedies available to IntraLinks under law
or in equity (including, without limitation, the recovery of
damages):
(a) To
have the Restrictive Covenants specifically enforced (without posting bond and
without the need to prove damages) by any court having jurisdiction, including,
without limitation, the right to seek an entry against Executive of restraining
orders and injunctions (preliminary, mandatory, temporary and permanent) against
violations, threatened or actual, and whether or not then continuing, of such
covenants;
(b) To
require Executive to forfeit his right to receive the balance of any
compensation due him which is not yet earned and accrued under this Agreement
(whether it be in the form of Annual Salary, expenses or paid time off);
and
(c) To
require Executive to account for and pay over to IntraLinks all compensation,
profits, monies, accruals, increments or other benefits (collectively,
“Profits”) derived or received by him as the result of any transactions
constituting a breach of the Restrictive Covenants, and Executive shall account
for and pay over the Profits to IntraLinks.
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7.4 Definition of
IntraLinks. For this Section 7, “IntraLinks” shall include all
of IntraLinks’ parents, subsidiaries, and affiliates and their respective
successors and assigns, and “affiliate” shall mean any entity that, directly of
indirectly, through one or more intermediaries, controls or is controlled by or
is under common control with IntraLinks. As used in this Section 7.4,
“control” shall mean the possession, directly or indirectly, of the powers to
direct or cause the direction of the management and policies of such entity,
whether though the ownership of voting securities, by contract or
otherwise.
8. Term
This
Agreement shall have an initial term of twelve (12) months (the “Initial Term”)
and renew automatically for successive twelve month terms (each, a “Renewal
Term”). Either party may terminate this Agreement as of the end of
the Initial Term or of any Renewal Term by giving the other party at least 60
days’ written notice of non-renewal and termination. Nothing in this
Section 8 shall alter or affect the “at will” nature of Executive’s employment
by IntraLinks.
9. Other
Provisions
9.1 Severability. Executive
acknowledges and agrees that (i) she has had an opportunity to seek advice of
counsel in connection with this Agreement; and (ii) the Restrictive Covenants
are reasonable in geographical and temporal scope and in all other
respects. If it is determined by a court of competent jurisdiction
that any provision of this Agreement, including, without limitation, any
Restrictive Covenant, or any part thereof, is invalid or unenforceable, the
remainder of the Agreement shall not thereby be affected and shall be given full
effect, without regard to the invalid provisions. The parties hereto
will substitute for the invalid or unenforceable provision a new, mutually
acceptable, valid and enforceable provision of like economic
effect.
9.2 Blue
Penciling. If any court determines that any covenant in this
Agreement, including, without limitation, any Restrictive Covenant or any part
thereof, is unenforceable because of the duration or geographical scope of such
provision, the duration or scope of such provision, as the case may be, shall be
reduced so that such provision becomes enforceable and, in its reduced form,
such provision shall then be enforceable and shall be enforced.
9.3 Executive
shall be entitled to indemnification as provided in IntraLinks’ certificate of
incorporation, bylaws and any pre-existing agreement between IntraLinks and
Executive, to the fullest extent permitted under Delaware law.
9.4 Notices. Any
notice or other communication required or permitted hereunder shall be in
writing and shall be delivered in person, by facsimile or by certified or
registered mail, postage prepaid. Any such notice given by certified
or registered mail shall be deemed given five days after the date of deposit in
the United States mails as follows:
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|
(i)
|
If
to IntraLinks:
IntraLinks,
Inc.
000
Xxxx 00xx
Xx.
Xxx
Xxxx, XX 00000
Attention: General
Counsel
|
|
| (ii) |
If to Executive,
to:
Xxxxxx Xxxxxx
_________________
|
Any such
person may by notice given in accordance with this Section to the other party
designate another address or person for receipt by such person of notices
hereunder.
9.5 Prior Existing
Agreements. NOTHING HEREIN SHALL AFFECT THE VALIDITY,
ENFORCEABILITY, OR RIGHTS OR OBLIGATIONS OF EITHER PARTY UNDER ANY WRITTEN
AGREEMENT PREVIOUSLY EXECUTED BY EXECUTIVE AND INTRALINKS IN EFFECT AS OF THE
DATE HEREOF. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE
PARTIES AGREE THAT THE RESTRICTIVE COVENANTS SET FORTH HEREIN ARE SUPPLEMENTAL
TO AND DO NOT SUPERSEDE OR REPLACE RESTRICTIVE COVENANTS UNDER ANY PREVIOUSLY
EXECUTED AGREEMENT WITH INTRALINKS, IT BEING UNDERSTOOD THAT THE RESTRICTIVE
PERIODS UNDER ANY SUCH AGREEMENT(S) SHALL RUN CONCURRENTLY WITH THE RESTRICTIVE
PERIODS SET FORTH IN THIS AGREEMENT.
9.6 Waivers and
Amendments. This Agreement may be amended, superseded or
canceled, and the terms hereof may be waived, only by a written instrument
singed by the parties or, in the case of a waiver, by the party waiving
compliance. No delay by ally party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any such right, power or privilege nor any single or
partial exercise as any such right, power or privilege, preclude any other or
further exercise thereof or the exercise of any other such right, power or
privilege.
9.7 GOVERNING
LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
9.8 Assignment. This
Agreement, and Executive’s rights and obligations hereunder, may not be assigned
by Executive without the prior written consent of IntraLinks; any purported
assignment by Executive in violation hereof shall be null and
void. In the event of any sale, transfer or other disposition of all
or substantially all of IntraLinks’ assets or business, whether by merger,
consolidation or otherwise, IntraLinks may assign this Agreement and its rights
hereunder.
9.9 Withholding. IntraLinks
shall be entitled to withhold from any payments or deemed payments any amount of
withholding required by applicable law.
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9.10 Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors, permitted assigns,
heirs, executors and legal representatives.
9.11 Survival. Anything
in this Agreement to the contrary notwithstanding, to the extent applicable,
Sections 1, 7 and 9 shall survive the termination of this Agreement for any
reason.
9.12 Headings. The
headings in this Agreement are for reference only and shall not affect the
interpretation of this Agreement.
9.13 Counterparts. This
Agreement may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original but all such
counterparts together shall constitute one and the same
instrument. Each counterpart may consist of two copies hereof each
signed by one of the parties hereto.
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IN
WITNESS WHEREOF, the parties hereto have signed their names as of the day and
year first above written.
| EXECUTIVE: | INTRALINKS, INC. | |||
|
/s/
J. Xxxxxx Xxxxxx
|
BY:
|
/s/ Xxxx Xxxxxx | ||
| J. Xxxxxx Xxxxxx | Name | Xxxx Xxxxx | ||
| Date: | Title | SVP, Secretary | ||
| Date | ||||
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