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EXHIBIT 10.14
Form of
Employment Agreement
With Xxxxxx X. Fine
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT entered into this __th day of___, 1999 (the
"Effective Date"), between ARIS Corporation (the "Company"), and Xxxxxx X. Fine
(the "Executive").
WHEREAS, the Company desires to employ Executive and to ensure the
continued availability to the Company of the Executive's services, and the
Executive is willing to accept such employment and render such services, all
upon and subject to the terms and conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth in this Agreement, and intending to be legally bound, the
Company and the Executive agree as follows:
1. Term of Employment.
(a) Term. The Company hereby employs the Executive, and the
Executive hereby accepts employment with the Company, for a period
commencing on the Effective Date and ending on the eve of the second
anniversary of the Effective Date.
(b) Continuing Effect. Notwithstanding any termination of this
Agreement except for termination under Section 5(c), at the end of the
Term or otherwise, the provisions of Sections 6 and 7 shall remain in
full force and effect and the provisions of Section 7 shall be binding
upon the legal representatives, successors and assigns of the Executive.
2. Duties.
(a) General Duties. The Executive shall serve as Director of
Business Development, Interactive Servicesfor the Company, with duties
and responsibilities that are customary for such position. This position
is not deemed to be an "affiliate" for purposes of reporting
requirements for public companies. The Executive will use his best
efforts to perform his duties and discharge his responsibilities
pursuant to this Agreement competently, carefully and faithfully. In
determining whether or not the Executive has used his best efforts
hereunder, the Executive's and the Company's delegation of authority and
all surrounding circumstances shall be taken into account and the best
efforts of the Executive shall not be judged solely on the Company's
earnings or other results of the Executive's performance.
(b) Devotion of Time. Subject to the last sentence of this
Section 2(b), the Executive shall devote all of his time, attention and
energies during normal business hours (exclusive of periods of sickness
and disability and of such normal holiday and vacation periods as have
been established by the Company) to the affairs of the Company. The
Executive shall not enter the employ of or serve as a consultant to, or
in any way perform any services with or without compensation to, any
other persons, business or organization without the prior consent of the
President and Chief Executive Officer of the Company; provided, that the
Executive shall be permitted to devote a limited amount of his time,
without compensation, to professional, charitable or similar
organizations.
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3. Compensation and Expenses.
(a) Signing Bonus. Executive shall be entitled to a $100,000
signing bonus as of the Effective Date of this Agreement
(b) Salary. For the services of the Executive to be rendered
under this Agreement, the Company shall pay the Executive an annual
salary of $150,000.
(c) Expenses. In addition to any compensation received pursuant
to Section 3, the Company will reimburse or advance funds to the
Executive for all reasonable travel, entertainment and miscellaneous
expenses incurred in connection with the performance of his duties under
this Agreement, provided that the Executive properly accounts for such
expenses to the Company in accordance with the Company's practices. Such
reimbursement or advances will be made in accordance with policies and
procedures of the Company in effect from time to time relating to
reimbursement of or advances to executive officers.
(d) Stay Bonus. As an incentive for Executive to remain in the
employment of the Company, Executive shall be entitled to a stay bonus
of up to $125,000, payable as follows:
(i) Seven (7) quarterly payments of $11,904.76, payable on
the first business day of each calendar quarter, the first such payment
being due and payable January 3, 2000, and the last such payment being
due and payable on September 3, 2001, provided in each instance that
Executive has remained in the continuous employment of Company from the
date hereof through the date that each such payment becomes due and
payable; and
(ii) $41,666.67 shall be due and payable on January 2,
2002, provided that Executive has remained in the continuous employment
of the Company from the date hereof through January 2, 2002.
4. Benefits.
(a) Vacation; Sick Leave. For each 12-month period during the
Term, the Executive will be entitled to three weeks of vacation without
loss of compensation or other benefits to which he is entitled under
this Agreement, to be taken at such times as the Executive may select
and the affairs of the Company may permit. Executive shall be entitled
to sick leave in accordance with Company policy.
(b) Employee Benefit Programs. The Executive is entitled to
participate in any pension, 401(k), insurance or other employee benefit
plan that is maintained by the Company for its employees.
5. Termination.
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(a) Termination for Cause. The Company may terminate the
Executive's employment pursuant to the terms of this Agreement at any
time for cause by giving written notice of termination. Such termination
will become effective upon the giving of such notice. Upon any such
termination for cause, the Executive shall have no right to
compensation, bonus or reimbursement under Section 3, or to participate
in any employee benefit programs under Section 4, except as provided by
law, for any period subsequent to the effective date of termination. For
purposes of this Section 5(a), "cause" shall mean: (i) the Executive is
convicted of a felony which is related to the Executive's employment or
the business of the Company; (ii) the Executive, in carrying out his
duties hereunder, has been found in a civil action to have committed
gross negligence or intentional misconduct resulting in either case in
material harm to the Company; (iii) the Executive materially breaches
any provision of this Agreement, is terminated for conduct which
violates any policy where termination of employment is a stated
consequence underto the Company's Employee Handbook as may be amended
from time to time, provided that all progressive discipline procedures
set forth in such Employee Handbook have been complied with; or (iv)
violates any statutory or common law duty of loyalty to the Company.
(b) Termination Without Cause. In the event that the Company
terminates Executive's employment without cause, Executive shall be
entitled to a lump-sum payment equal to: (i) compensation equal to
Executive's then current base salary for one year, or through the
remaining term hereof, whichever is less; and (ii) any payments to
Executive under Section 3(d) hereof during the lesser of one year or the
remaining term hereof shall accelerate and become immediately due and
payable to Executive as of the date of termination.
(c) Termination by Executive for Good Reason. In the event that
Executive terminates employment during the term hereof for good reason,
Executive shall be entitled to a lump-sum payment equal to that set
forth in paragraph 5(b) above. For purposes of this paragraph 5(c),
"good reason" shall mean: (i) there is a material reduction in the
character and scope of Executive's duties, level of responsibility or
working conditions; (ii) Executive's salary set forth in paragraph 4(b)
is reduced; (iii) the Company breaches any material term of this
Agreement and such breach is not cured by the Company within 30 days
after receiving notice of such breach from Executive; or (iv) Executive
is required to be based other than in the Seattle metropolitan area.
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6. Non-Competition Agreement.
(a) Competition with the Company. Until termination of his
employment and for a period of 24 months commencing on the date of
termination, the Executive, directly or indirectly, in association with
or as a stockholder, director, officer, consultant, employee, partner,
joint venturer, member or otherwise of or through any person, firm,
corporation, partnership, association or other entity, will not compete
with the Company or any of its affiliates in the offer, sale or
marketing of products or services that are competitive with the products
or services offered by the Company's subsidiary, ARIS Interactive,
Inc.(the "Prohibited Business"), within any metropolitan area in the
United States or elsewhere in which the Company is then engaged in the
offer and sale of competitive products or services; provided, however,
the foregoing shall not prevent Executive from accepting employment with
an enterprise engaged in two or more lines of business, one of which is
the same as the Prohibited Business if Executive's employment is totally
unrelated to the Prohibited Business; provided, further, the foregoing
shall not prohibit Executive from owning up to 5% of the securities of
any publicly-traded enterprise provided Executive is not an employee,
director, officer, consultant to such enterprise or otherwise reimbursed
for services rendered to such enterprise.
(b) Solicitation of Customers and Employees. During the periods
in which the provisions of Section 6(a) shall be in effect, the
Executive, directly or indirectly, will not solicit or cause others to
solicit or otherwise interfere with the Company's relationship with any
employee of the Company or to solicit or cause others to solicit
business from any Customer (defined below) for the offer, sale or
marketing of products or services that are competitive with the products
or services offered by the Company on behalf of any enterprise or
business other than the Company, refer such business from any Customer
to any enterprise or business other than the Compny or receive
commissions based on sales or otherwise relating to such business from
any Customer, or any enterprise or business other than the Company. For
purposes of this Section 6(b), the term "Customer" means any person,
firm, corporation, partnership, association or other entity to which the
Company or any of its affiliates sold or provided goods or services
during the 24-month period prior to the time at which any determination
is required to be made as to whether any such person, firm, corporation,
partnership, association or other entity is a Customer.
7. Non-Disclosure of Confidential Information.
(a) Confidential Information. Confidential Information includes,
but is not limited to, trade secrets, processes, policies, procedures,
techniques, designs, drawings, know-how, show-how, technical
information, specifications, computer software (including, but not
limited to, computer programs developed, improved or modified by the
Company for or on behalf of the Company for use in the Company's
business, and source code), information and data relating to the
development, research, testing, manufacturing, costs, marketing and uses
of the Products (as defined herein), the Company's budgets and strategic
plans, and the identity and
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special needs of customers for the Products, data-bases, data, all
technology relating to the Company's software, consulting and training
businesses, systems, methods of operation, customer lists, customer
information, solicitation leads, marketing and advertising materials,
methods and manuals and forms, all of which pertain to the activities or
operations of the Company, names, home addresses and all telephone
numbers and e-mail addresses of the Company's employees and former
employees. Confidential Information also includes, without limitation,
Confidential Information received from the Company's subsidiaries and
affiliates. For purposes of this Agreement, the following will not
constitute Confidential Information (i) information which is or
subsequently becomes generally available to the public through no act of
the Employee, (ii) information set forth in the written records of the
Employee prior to disclosure to the Employee by or on behalf of the
Company, and (iii) information which is lawfully obtained by the
Employee in writing from a third party (excluding any affiliates of the
Employee) who did not acquire such confidential information or trade
secret, directly or indirectly, from Employee or the Company. As used
herein, the term "Products" shall include all computer software
researched, developed, tested, manufactured, sold, licensed, leased or
otherwise distributed or put in to use by the Company, its subsidiaries,
and affiliates, together with all services provided by the Company, its
subsidiaries and affiliates during the term of Employee's employment.
(b) Legitimate Business Interests. The Employee recognizes that
the Company has legitimate business interests to protect and as a
consequence, the Employee agrees to the restrictions contained in this
Agreement because they further the Company's legitimate business
interests. These legitimate business interests include, but are not
limited to (i) trade secrets as defined in Section 7(b), (ii) valuable
confidential business or professional information that otherwise does
not qualify as trade secrets including all Confidential Information;
(iii) substantial relationships with specific prospective or existing
customers or clients; (iv) customer or client goodwill associated with
the Company's business; and (v) specialized training relating to the
Company's technology, methods and procedures.
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(c) Confidentiality. For a period of five years, the Confidential
Information shall be held by the Employee in the strictest confidence
and shall not, without the prior written consent of the Company, be
disclosed to any person other than in connection with Employee's
employment by the Company. The Employee further acknowledges that such
Confidential Information as is acquired and used by the Company or its
affiliates is a special, valuable and unique asset. The Employee shall
exercise all due and diligence precautions to protect the integrity of
the Company's Confidential Information and to keep it confidential
whether it is in written form, on electronic media or oral. The Employee
shall not copy any Confidential Information except to the extent
necessary to his employment nor remove any Confidential Information or
copies thereof from the Company's premises except to the extent
necessary to his employment and then only with the authorization of an
officer of the Company. All records, files, materials and other
Confidential Information obtained by the Employee in the course of his
employment with the Company are confidential and proprietary and shall
remain the exclusive property of the Company or its customers, as the
case may be. The Employee shall not, except in connection with and as
required by his performance of his duties under this Agreement, for any
reason use for his own benefit or the benefit of any person or entity
with which he may be associated or disclose any such Confidential
Information to any person, firm, corporation, association or other
entity for any reason or purpose whatsoever without the prior written
consent of an executive officer of the Company (excluding the Employee,
if applicable).
8. Equitable Relief.
(a) The Company and the Executive recognize that the services to
be rendered under this Agreement by the Executive are special, unique
and of extraordinary character, and that in the event of the breach by
the Executive of the terms and conditions of this Agreement or if the
Executive, without the prior consent of the board of directors of the
Company, shall leave his employment for any reason and take any action
in violation of Section 6 or Section 7, the Company will be entitled to
institute and prosecute proceedings in any court of competent
jurisdiction referred to in Section 8(b) below, to enjoin the Executive
from breaching the provisions of Section 6 or Section 7. In such action,
the Company will not be required to plead or prove irreparable harm or
lack of an adequate remedy at law. Nothing contained in this Section 8
shall be construed to prevent the Company from seeking such other remedy
in arbitration in case of any breach of this Agreement by the Executive,
as the Company may elect.
(b) Any proceeding or action must be commenced in Seattle, King
County, Washington, where the Company maintains its principal offices.
The Executive and the Company irrevocably and unconditionally submit to
the exclusive jurisdiction of such courts and agree to take any and all
future action necessary to submit to the jurisdiction of such courts.
The Executive and the Company irrevocably waive any objection that they
now have or hereafter irrevocably waive any objection that they now have
or hereafter may have to the laying of venue of any suit, action or
proceeding brought in any such court and further irrevocably waive any
claim that any such suit, action or proceeding brought in any such court
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has been brought in an inconvenient forum. Final judgment against the
Executive or the Company in any such suit shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment, a certified or
true copy of which shall be conclusive evidence of the fact and the
amount of any liability of the Executive or the Company therein
described, or by appropriate proceedings under any applicable treaty or
otherwise.
9. Assignability. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Company, provided that such successor or assign shall acquire all
or substantially all of the securities or assets and business of the Company.
The Executive's obligations hereunder may not be assigned or alienated and any
attempt to do so by the Executive will be void.
10. Severability.
(a) The Executive expressly agrees that the character, duration
and geographical scope of the provisions set forth in this Agreement are
reasonable in light of the circumstances as they exist on the date
hereof. Should a decision, however, be made at a later date by a court
of competent jurisdiction that the character, duration or geographical
scope of such provisions is unreasonable, then it is the intention and
the agreement of the Executive and the Company that this Agreement shall
be construed by the court in such a manner as to impose only those
restrictions on the Executive's conduct that are reasonable in the light
of the circumstances and as are necessary to assure to the Company the
benefits of this Agreement. If, in any judicial proceeding, a court
shall refuse to enforce all of the separate covenants deemed included
herein because taken together they are more extensive than necessary to
assure to the Company the intended benefits of this Agreement, it is
expressly understood and agreed by the parties hereto that the
provisions of this Agreement that, if eliminated, would permit the
remaining separate provisions to be enforced in such proceeding shall be
deemed eliminated, for the purposes of such proceeding, from this
Agreement.
(b) If any provision of this Agreement otherwise is deemed to be
invalid or unenforceable or is prohibited by the laws of the state or
jurisdiction where it is to be performed, this Agreement shall be
considered divisible as to such provision and such provision shall be
inoperative in such state or jurisdiction and shall not be part of the
consideration moving from either of the parties to the other. The
remaining provisions of this Agreement shall be valid and binding and of
like effect as though such provision were not included.
11. Notices and Addresses. All notices, offers, acceptance and any other
acts under this Agreement (except payment) shall be in writing, and shall be
sufficiently given if delivered to the addressees in person, by Federal Express
or similar receipted delivery, by facsimile delivery or, if mailed, postage
prepaid, by certified mail, return receipt requested, as follows:
To the Company: ARIS Corporation
Attn: President
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0000 000xx Xxxxxx XX
Xxxxxxxx, XX 00000
To the Executive: Xxxxxx X. Fine
00000 000xx Xxxxxx Xxxx
Xxxxxxx, XX 00000
or to such other address as either of them, by notice to the other may designate
from time to time. The transmission confirmation receipt from the sender's
facsimile machine shall be conclusive evidence of successful facsimile delivery.
Time shall be counted to, or from, as the case may be, the delivery in person or
by mailing.
12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
13. Arbitration. Any controversy, dispute or claim arising out of or
relating to this Agreement, or its interpretation, application, implementation,
breach or enforcement which the parties are unable to resolve by mutual
agreement, shall be settled by submission by either party of the controversy,
claim or dispute to binding arbitration in King County, Washington (unless the
parties agree in writing to a different location), before a single arbitrator in
accordance with the rules of the American Arbitration Association then in
effect. In any such arbitration proceeding the parties agree to provide all
discovery deemed necessary by the arbitrator. The decision and award made by the
arbitrator shall be final, binding and conclusive on all parties hereto for all
purposes, and judgment may be entered thereon in any court having jurisdiction
thereof.
14. Attorney's Fees. In the event that there is any controversy or claim
arising out of or relating to this Agreement, or to the interpretation, breach
or enforcement thereof, and any action or proceeding is commenced to enforce the
provisions of this Agreement, the prevailing party shall be entitled to a
reasonable attorney's fee, costs and expenses.
15. Governing Law. This Agreement and any dispute, disagreement, or
issue of construction or interpretation arising hereunder whether relating to
its execution, its validity, the obligations provided therein or performance
shall be governed or interpreted according to the internal laws of the State of
Washington without regard to choice of law considerations.
16. Entire Agreement. This Agreement constitutes the entire Agreement
between the parties and supersedes all prior oral and written agreements between
the parties hereto with respect to the subject matter hereof. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, except by a statement in writing signed by the party or
parties against which enforcement or the change, waiver discharge or termination
is sought.
17. Additional Documents. The parties hereto shall execute such
additional instruments as
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may be reasonably required by their counsel in order to carry out the purpose
and intent of this Agreement and to fulfill the obligations of the parties
hereunder.
18. Section and Paragraph Headings. The section and paragraph headings
in this Agreement are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the date and year first above written.
ARIS CORPORATION
By:______________________________________
Xxxx Song, President and CEO
EXECUTIVE
By:______________________________________
Xxxxxx X. Fine
