EXHIBIT 10.8
May 20, 1999
Xx. Xxxxxxx Xxxxxx
Millennium
0000 XxxxxXxxx Xxxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Re: Employment with IMX
Dear Xxxxxxx:
I am pleased to offer you a position with IMX, Inc. (the "Company"). This
letter sets forth what will be the terms and conditions of our employment
relationship, as well as our understanding with respect to any termination of
that employment relationship, if you decide to join us.
1. POSITION AND DUTIES: You will be employed by the Company as its
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President and Chief Executive Officer, commencing on May 1, 1999 (the
"Commencement Date"). You accept employment with the Company on the terms and
conditions set forth in this Agreement, and you agree to devote your full
business time, energy and skills to your duties at the Company except for the
time required to attend to your personal investments and the time required to
attend to the matters set forth on Exhibit A attached hereto, provided that
neither such activity materially interferes with your duties as President and
Chief Executive Officer of the Company. These duties shall include, but not be
limited to, any duties consistent with your position, as well as any other
duties that may be assigned to you from time to time by the Company's Board of
Directors (the "Board"). Subject to the foregoing, you may, with the approval
of the Board, engage in activities on behalf of nonprofit corporations, serve on
the boards of directors of other companies and engage in other reasonable
activities that are not in competition with the Company. The Company will use
its best efforts to have you elected to the Board during the term of your
employment, and you agree that upon the termination of your employment for any
reason you shall promptly resign from the Board.
2. TERM OF EMPLOYMENT: Your employment with the Company is for an
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initial term of one (1) year from the Commencement Date, and shall continue
thereafter until terminated by you or the Company, which either party may do at
any time, with or without cause. Upon the termination of your employment,
neither you nor the Company shall have any further obligation or liability to
the other, except as set forth in Paragraphs 4 and 5 below.
3. COMPENSATION: You will be compensated by the Company for your
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services as follows:
(a) Salary: You will be paid a monthly salary of $33,333.33
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($400,000.00 on an annualized basis), less applicable withholding, in accordance
with the Company's normal
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May 20, 1999
Page Two
payroll procedures. Your salary will be reviewed by the Board on an annual
basis, and may be subject to adjustment upward, but not downward (except in
proportion to any across-the-board salary reduction taken by all of the
Company's executive officers), based upon various factors including, but not
limited to, your performance and the Company's profitability. Subject to the
foregoing, any adjustment to your salary shall be in the sole discretion of the
Board.
(b) Bonus: In the event the Company closes its initial public
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offering within 12 months of the commencement of your employment, you will
receive a bonus of $50,000, less applicable withholding.
(c) Benefits: You will have the right, on the same basis as other
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executive employees of the Company, to participate in and to receive benefits
under the Company's medical, dental, disability or other group insurance plans,
as well as under any and all of the Company's present of future benefit plans
made available to executive employees, including, without limitation, the
Company's vacation and business expense reimbursement policies.
(d) Relocation Expenses: You will be reimbursed for your reasonable
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expenses (as described in Exhibit B attached hereto) in relocating from Texas to
northern California up to $75,000 upon the presentation of appropriate
supporting documentation. You will be required to reimburse the Company for all
relocation/moving expenses paid on your behalf if you voluntarily terminate your
employment with the Company or are terminated for cause within one year of the
date of this Agreement. You shall not be required to reimburse the Company in
the event that your notice of voluntary termination occurs at a time when the
Company is in material breach of its obligations hereunder.
(e) Stock Options: Subject to the approval of the Company's Board of
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Directors:
(i) you will be granted one or more option(s) to purchase
1,294,279 shares of Common Stock of the Company (the "First Option(s)"). The
shares subject to the First Option(s) shall vest over a four-year period as
follows: twenty-five percent (25%) of the total shares upon the first
anniversary of the Commencement Date and 1/48th of the total shares per full
month of employment thereafter; and
(ii) you will be eligible to receive additional grants for one or
more option(s) to purchase up to 647,139 additional shares of Common Stock of
the Company (the "Second Option(s)") upon the attainment by you and the Company
of certain milestones during your employment to be reasonably agreed to by you
and the Board within 30 days of the Commencement Date. The shares subject to the
Second Option(s) shall vest with respect to 1/8 of the total shares upon the six
month anniversary of the Commencement Date and 1/48th of the total shares per
full month of employment thereafter.
Xx. Xxxxxxx Xxxxxx
May 20, 1999
Page Three
The First and Second Option shares shall be treated as incentive stock options
to the maximum extent permitted under section 422 of the Internal Revenue Code,
applicable securities and other laws and relevant Company documents applicable
to the issuance of its stock, including but not limited to the Company's 1996
Stock Option Plan. The exercise price of the First and Second Option(s) shall be
the fair market value at the time of the grant of the Option(s) as determined by
the Company's Board of Directors, which fair market value is currently estimated
as $0.35 per share. The foregoing Option(s) is (are) further subject to: i) the
terms of the Company's standard Stock Option Agreement; and, ii) the Company's
ability to obtain necessary waivers, amendments, shareholder approvals or board
approvals required under applicable Company documents, for issuance of the
Option(s) and/or avoidance of preferred shareholder anti-dilution or first
refusal rights, including but not limited to: Section 3 of the Third Amended and
Restated Certificate of Incorporation and Sections 7 and 9 of the Third Amended
and Restated Investor Rights Agreement.
4. BENEFITS UPON VOLUNTARY TERMINATION: In the event that you
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voluntarily resign from your employment with the Company, or in the event that
your employment terminates as a result of your death or disability (including
your inability to return to work after exhausting available leave time for your
own serious health condition under the federal Family and Medical Leave Act ),
you shall be entitled to no compensation or benefits from the Company other than
those earned under Paragraph 3 through the date of your termination. You agree
that in the event you voluntarily terminate your employment with the Company for
any reason, you shall provide the Company with at least one months' written
notice of your termination. The Company may elect to waive all or any part of
such notice period and accept your voluntary termination at an earlier date.
5. BENEFITS UPON OTHER TERMINATION: In the event your employment is
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terminated by the Company for the reasons set forth below, you shall be entitled
to the following:
(a) Termination for Cause: If your employment is terminated by the
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Company for cause as defined below, you shall be entitled to no compensation or
benefits from the Company other than those earned under Paragraph 3 through the
date of your termination.
For purposes of this Agreement, any of the following events shall
constitute "cause": (i) theft, dishonesty, or falsification of any employment or
company records; (ii) improper disclosure of the Company's confidential or
proprietary information in a manner constituting a material breach of the
Confidentiality Agreement referred to in Paragraph 7 below; (iii) any willful
action by you (other than in accordance with the instructions of the Board of
Directors of the Company), or any act of gross negligence by you, which has a
material detrimental effect on the Company's reputation or business; (iv) your
failure or inability to perform any reasonable assigned duties that
Xx. Xxxxxxx Xxxxxx
May 20, 1999
Page Four
are within the scope of your position, after notice from the Company of, and a
reasonable opportunity to cure, such failure or inability; (v) any material
breach of this Agreement, which breach is not cured within ten (10) days
following written notice of such breach; or (vi) your conviction for any
criminal act which impairs your ability to perform your duties under this
Agreement.
(b) Termination for Other than Cause: If your employment is
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terminated by the Company for any reason other than cause within one year of the
Commencement Date, you will be entitled to a lump-sum severance payment equal to
the greater of 6 months' salary or salary which would be due and owing for the
remainder of the initial term of this Agreement, payable within 30 days after
the date of termination and subject to applicable withholding. In addition, if
your employment is terminated by the Company for any reason other than cause
within six months of the Commencement Date, vesting in the First Option(s)
referenced in Paragraph 3(e) shall be accelerated such that you will be
immediately vested in 1/48th of the total shares subject to the Option(s) for
each full month of employment. In addition to any severance payments and
accelerated vesting to which you are entitled under this subsection, you shall
also be entitled to receive any compensation and benefits which you earn under
Paragraph 3 through the date of your termination.
6. EXCLUSIVE REMEDY: We agree that the compensation described in
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Paragraph 5 shall be your sole and exclusive remedy in the event that the
Company terminates your employment, and you shall be entitled to no other
compensation for any damage or injury arising out of the termination of your
employment by the Company. The provisions of this Paragraph 6 shall not affect
any obligation of the Company to indemnify you against certain liabilities,
costs or expenses arising from your position as an officer or director of the
Company, whether arising under the Certificate of Incorporation, bylaws or
otherwise.
7. CONFIDENTIAL AND PROPRIETARY INFORMATION: As a condition of your
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employment with the Company, you will be required to execute a Confidentiality
Agreement concerning your obligations to protect the Company's confidential and
proprietary information.
8. DISPUTE RESOLUTION: In the event of any dispute or claim relating to
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or arising out of our employment relationship or this Agreement (including, but
not limited to, any claims of breach of contract, wrongful termination
discrimination or harassment under any state or federal statute or common law),
we each waive our respective rights to have any such claims or disputes tried by
a judge or jury and agree that all such disputes shall be exclusively and
finally resolved by binding arbitration conducted by the American Arbitration
Association ("AAA") in California, unless otherwise agreed to in writing by the
parties. We specifically agree that an arbitrator may be appointed under an
expedited process and shall have full authority to order
Xx. Xxxxxxx Xxxxxx
May 20, 1999
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injunctive relief in the event of a claim relating to the misappropriation or
misuse of intellectual property.
9. ATTORNEYS' FEES: The prevailing party shall be entitled to recover
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from the losing party its attorneys' fees and costs incurred in any action
brought to enforce any right arising out of this Agreement. If neither party is
the "prevailing" party in such action, attorneys' fees and costs shall be paid
as provided by the Arbitrator(s).
10. INTERPRETATION: This Agreement shall be interpreted in accordance
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with and governed by the laws of the State of California.
11. ASSIGNMENT: In view of the personal nature of the services to be
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performed under this Agreement by you, you shall not have the right to assign or
transfer any of your rights, obligations or benefits under this Agreement.
12. ENTIRE AGREEMENT: This letter constitutes the entire Agreement
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between you and the Company regarding the terms and conditions of your
employment, and it supersedes all prior negotiations, representations or
agreements between you and the Company regarding your employment, whether
written or oral.
Xx. Xxxxxxx Xxxxxx
May 20, 1999
Page Six
13. MODIFICATION: This Agreement may only be modified or amended by a
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supplemental written agreement signed by you and a member of the Board.
Xxxxxxx, we are truly looking forward to working with you at IMX. Please
sign this letter on the space provided below to acknowledge your acceptance of
the terms of this Agreement.
Sincerely,
IMX, INC.
Xxxx Xxxxxx
Chairman, Board of Directors
I agree to and accept employment with IMX, Inc. on the terms and conditions
set forth in this Agreement.
Date: _______________
_______________________________________
Xxxxxxx Xxxxxx
Xx. Xxxxxxx Xxxxxx
May 20, 1999
Page Seven
EXHIBIT A
GMI Group Millennium, L.P. Co-managing partner and more than 10% equity
holder. GMI is a third-party provider of
mortgage-related products and services.
M2R, LLC Owner (99%). M2R owns four rental properties
in Houston
Home Partnership I Managing Partner and more than 10% owner HPI
owns two rental properties in Houston.
Finet Holdings, Inc. Director and less-than-1% shareholder Finet
is a publicly-traded business-to-consumer e-
commerce mortgage originator.
Casa Confia Holdings, LLC Director and 10% shareholder. Casa Confia is
a company formed to market homes in Mexico
to U.S. residents of Mexican origin.
Auction Marketing Services Owner. This dba auction model home furniture
and accessories for homebuilders. Xxxxxx has
no active involvement in the company and
expects to convey 90% of his interest to the
manager of the business in 1999
Xxxx 0000, Xxxxx Xxxxx, Xxxxxxx Owner. This is a rental property.
Xx. Xxxxxxx Xxxxxx
May 20, 1999
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EXHIBIT B
For purposes of this Agreement, "relocation expenses" include the
following expenses incurred by you:
1. Expenses incurred in connection with the sale of your residence located
at 000 Xxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxx, including real estate
commissions and customary expenses of sale and closing costs;
2. Customary closing costs incurred by you in the purchase of a new home in
California;
3. Packing, unpacking, moving, storage and travel costs incurred by you and
your family in connection with your move to California.
4. Vehicle and air transportation costs incurred by you in connection with
your move to California;
5. Mortgage payments incurred by you on your Houston residence after the
date of this Agreement until the sale of your house at 000 Xxxx Xxxx
Xxxxxx, Xxxxxxx, Xxxxx; and
6. Miscellaneous costs not to exceed $2,500.00.
