EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
EMPLOYMENT AGREEMENT (this "Agreement"), is made and entered into as of October
15, 2007, by and between Iventa Corporation, a Delaware corporation (the
"Company"), I-Corp. Acquisition Sub, Inc., California corporation
("Acquisition Sub"), and Xxxxxxx Xxxxxxxx, residing at the address set
forth on the signature page hereto (the "Executive"). This Agreement
shall be effective upon signing.
RECITALS
A.
Executive currently serves as President of the Company.
B.
Commerce Planet, Inc. is acquiring from Executive all of Executive's capital
stock of the Company pursuant to the transactions (the "Transaction") described
in that certain Agreement and Plan of Merger (the "Merger Agreement"), dated
October 12, 2007, by and among Commerce Planet, Inc., I-Corp. Merger Sub,
LLC,
Acquisition Sub, the Company and certain of the Company's stockholders,
including Executive.
C.
The Company desires to employ the Executive on the terms and conditions set
forth in this Agreement and the Executive desires to accept such employment
on
the terms and conditions set forth herein.
D. The
Executive acknowledges that his covenants and the Company’s remedies set forth
in Sections 7 through 12 are reasonable and necessary to protect the Company’s
business interests and goodwill.
NOW,
THEREFORE, in consideration of the premises and the mutual promises made
herein,
the parties agree as follows:
1.
Employment. The Company hereby employs the Executive in the
capacity of President, and the Executive hereby accepts the employment, on
the
terms and conditions hereinafter set forth.
2. Duties.
(a)
Primary Duties. During the Term (as defined below), the
Executive’s principal duties and responsibilities shall be those determined by
the Chief Executive Officer of the Company to be reasonably necessary to
carry
out the functions of the Executive’s office. Executive shall report
to the Chief Executive Officer of the Company. The Executive’s duties
shall be similar to those customarily performed by comparable officers of
companies that conduct the same or similar business as the Company.
(b) Other
Activities. The Executive agrees to perform Executive’s duties
and responsibilities and to devote his full business time, energies, and
commercially reasonable efforts to the performance thereof; provided, however
that Executive shall be entitled to engage in such activities that do not
materially interfere with Executive’s performance of his duties under this
Agreement.
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(c)
Additional Capacities. During the Term, the Executive shall
serve in any additional offices or positions of the Company and/or its
subsidiaries and/or affiliates under common control with the Company (such
subsidiaries and affiliates which are in the same business as the Company
are
referred to herein as the "Company Related Entities"), to which, with
Executive’s consent, he may be elected or appointed by appropriate action of the
Company or any Company Related Entity. The Executive shall serve in
any such additional capacities without separate compensation for so serving,
unless otherwise authorized in writing by the Board.
(d) Location
of Service. During the Term, the Executive shall perform
Executive's duties at the offices of the Company located at Iventa’s now current
Corporate Offices.
(e) Exempt
Status. It is understood that while Executive reports and shall
be responsible to the Chief Executive Officer of the Company, or designee,
Executive has discretion to perform such functions as he deems reasonably
necessary to the successful operation of the Company's business. Accordingly,
the parties understand and agree that Executive is "exempt" on both an executive
and administrative basis under applicable California wage and hour
laws.
3.
Nature of Employment. The Executive’s employment with the
Company is "at will" and is for no specific period of time. As a result,
either
the Executive or the Company may terminate the employment relationship at
any
time for any reason, with or without cause. Termination of employment
will not affect the rights and obligations which this Agreement expressly
contemplates will be performed following such termination. The period
commencing on the date of this Agreement and ending on the date of the
Executive’s termination is the "Term."
4. Salary
and Other Benefits. During the Term, as compensation for the
services to be rendered by the Executive to the Company pursuant to this
Agreement, the Executive shall be paid the following compensation and other
benefits:
(a)
Salary. The Company will pay the Executive a base salary at
the annual rate of $175,000 (the "Base Salary"), payable in accordance with
the
Company’s regular payroll policies. The Base Salary will be reviewed
annually by the Board.
(b) Bonus. The
Executive shall receive a quarterly bonus equal to 3% of the Net Profit (as
defined in the Merger Agreement) of the Iventa business unit as determined
in
accordance with the Merger Agreement on a quarterly basis for each applicable
calendar year during the Term. The bonus for any quarter shall be
paid within five (5) days following determination of Net Profit for such
quarter
in accordance with the Merger Agreement.
(c) Vacation
and Sick Leave. Executive shall be entitled to take up to three
weeks (fifteen (15) working days) paid vacation during each calendar
year. Executive shall be entitled to up to five (5) working days paid
sick leave during each calendar year. Unused sick days will not accrue and
the
Company shall not be obligated to compensate Executive for any unused sick
days
at any time. Unless otherwise stated to the contrary within this section,
vacation and sick leave will be governed in accordance with the terms of
the
applicable policies of Commerce Planet, Inc.
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(d)
Expenses. The Company will pay or reimburse the Executive for
all reasonable business expenses in accordance with the Company’s policy as in
effect from time to time.
(e) Benefits. The
Executive shall be entitled to participate in customary benefit programs
that
the Company or Commerce Planet, Inc. establishes and makes available to its
executive-level employees.
5.
Equity Incentive. Within thirty (30) days of the date hereof
the Company will adopt an equity incentive plan not inconsistent with the
terms
of the Restricted Stock Unit Agreement attached hereto as Exhibit B and
execute and deliver said agreement to Executive. The foregoing
agreement described in this Section 5 is sometimes referred to as the "Equity
Document."
6. Definition
of Confidential Information.
(a)
Definition. For the purposes of this Agreement, "Confidential
Information" means any of the Company’s or any Company Related Entity's
information, whether or not reduced to writing, (i) that is not generally
known
in the Company’s trade or industry, (ii) that the Company and/or any Company
Related Entity treats, or is obligated to treat, as confidential and (iii)
that
the Executive may create or have access to in connection with the Executive’s
employment with the Company; provided, that Confidential Information does
not
include information that becomes publicly and generally known (other than
through any unauthorized act of the Executive).
(b) Duty
to Inquire. If the Executive has some question as to whether
certain information falls within the scope of Confidential Information as
defined herein, the Executive agrees to treat such information as Confidential
Information until informed otherwise in writing by the Company.
7.
Obligations Respecting Confidential Information.
(a)
Non-disclosure and Use. During the term of the Executive’s
employment and thereafter, the Executive agrees (i) not to disclose the
Confidential Information except as required in the course of the Executive’s
employment, (ii) not to copy or use the Confidential Information except as
required for the performance of the Executive’s duties hereunder, and (iii) to
comply with any procedures that the Company may adopt from time to time to
preserve the confidentiality of the Confidential Information.
(b)
Ownership. The Executive acknowledges that the Company owns
all right, title and interest in and to the Confidential Information and
that
the Executive acquires no right, title or interest in any Confidential
Information by virtue of the Executive’s employment by the Company or access to
or creation of Confidential Information.
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(c)
Return. Upon termination of the Executive’s employment with
the Company for any reason, the Executive agrees to deliver to the Company
all copies of any data, records, documents and other materials, including
files stored on electronic or other media, in the Executive’s possession that
contain any Confidential Information. The Executive understands that
he may not retain copies of any Confidential Information and must delete
files
containing any Confidential Information stored on any computer that the
Executive owns. The Executive agrees, if requested by the Company, to
confirm in writing that the Executive has complied with the foregoing
obligations.
8.
Inventions.
(a)
Inventions Defined. For the purposes of this Agreement,
"Inventions" mean any concepts, ideas, processes, designs, specifications,
improvements, trade secrets, discoveries or other developments, whether or
not
reduced to practice or patentable, that the Executive conceives or creates,
in
whole or in part, alone or jointly with others, pursuant to his employment
by
the Company (and its predecessor) which (i) directly relate to the Company’s
business (including without limitation the Company’s present or contemplated
products, services and research) or to tasks assigned to the Executive by
or on
behalf of the Company or (ii) are written or developed using any of the
Company’s equipment, facilities, materials, trade secrets, labor, money, time or
other resources.
(b) Disclosure
and Assignment of Inventions. The Executive agrees that he will
promptly disclose to the Company all Inventions and that all Inventions shall
be
the sole and exclusive property of the Company. The Executive hereby
assigns to the Company all of his right, title and interest in all
Inventions.
(c) Patents. During
the period of his employment and at any time thereafter, the Executive shall,
upon the Company’s request, execute U.S. and foreign copyright registrations and
patent applications and/or any other legal documents reasonably necessary
to
transfer all right, title and interest in and to the Inventions to the Company
and reasonably assist, at the Company’s request and expense, in any reasonable
and proper manner in obtaining and enforcing such copyrights and
patents. In the event that the Company is unable, after reasonable
effort, to secure the Executive’s signature on any such registrations,
application and other legal documents solely for any of the aforesaid purposes,
the Executive hereby irrevocably designates and appoints the Company and
its
duly authorized directors, officers and agents as his agent and
attorney-in-fact, to do all lawfully permitted acts (including but not limited
to the execution, verification and filing of applicable documents) with the
same
legal force and effect as if performed by the Executive.
(d) Preexisting
Inventions. The Executive has identified on Exhibit C to
this Agreement, by title and dates of documents describing them, all inventions
in which the Executive has any right, title or interest and/or which the
Executive conceived or created at any time prior to the start of his employment
by the Company (the "Preexisting Inventions"). All right, title or
interest in any such Preexisting Invention(s) shall be the sole and exclusive
property of Executive or any other entity to which Executive has assigned
the right, title or interest to such Preexisting
Invention.
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9.
Written Materials.
(a)
Ownership. The Executive acknowledges and agrees that all
writings and works of authorship, including without limitation, analyses,
memoranda, proposals, reports, speeches, studies, software, logic diagrams,
flow
charts, decision charts, drawings, procedural diagrams, documentation manuals
of
any kind produced by him in the course of his work for the Company ("Works")
are
works made for hire and the property of the Company, including, without
limitation, any copyrights in those Works. To the extent any such
Works may not, by operation of law or otherwise, be a work made for hire,
the
Executive hereby assigns to the Company the ownership of and all copyrights
in
and to such Works, whether published or unpublished, and the right to secure
renewals of such copyrights. The Executive further agrees upon
request to execute such specific assignments or instruments and take any
action
necessary to enable the Company to secure all copyright rights in such Works
and/or extensions or renewals thereof.
(b) Moral
Rights Waiver. The Executive understands that the term "moral
rights" means any rights of paternity or integrity, including any right to
claim
authorship of a copyrightable work, to object to a modification of such
copyrightable work, and any similar right existing under the judicial or
statutory law of any country in the world or under any treaty, regardless
of
whether or not such right is denominated or generally referred to as a "moral
right," including, without limitation, the rights of attribution and integrity
in works of visual art pursuant to 17 U.S.C. § 106A. The Executive
irrevocably waives and agrees never to assert any moral rights that he may
have
in any Works, even after any termination of his employment with the
Company.
(c) Exclusions. Notwithstanding
anything in this Section 9 to the contrary, "Works" as used herein shall
not include articles authored by the Executive for publication in academic
or
trade journals. No assignments in this Agreement shall extend to
Inventions or Works, the assignment of which Executive proves would be
prohibited by Section 2870 of the California Labor Code (a copy of which
is
attached hereto as Exhibit D).
10.
Incorporation of Preexisting Materials. Unless the Company
otherwise agrees in writing in each instance, the Executive agrees not to
include or otherwise incorporate into any Inventions or Works any preexisting
materials, except for preexisting materials owned by the
Executive. To the extent that any preexisting materials owned by the
Executive are contained or embedded in any Inventions or Works or are reasonably
necessary to the proper operation or use thereof and in the absence of a
written
agreement with the Company to the contrary, the Executive hereby grants to
the
Company an irrevocable, perpetual, worldwide, fully-paid, royalty-free,
nonexclusive license to use such preexisting materials in any manner and
prepare
derivative works thereof in connection with the use, operation, modification,
transfer or disposition of such Invention or Works.
11. Post
Employment Restrictions.
(a)
Covenant Not-to-Solicit Customers. During the Executive’s
employment with the Company and for a period of one (1) year after the Date
of
Termination (as defined in Section 14(b)(2)), the Executive shall not solicit
directly or indirectly, individually or on behalf of any other person or
entity,
whether as principal, agent, stockholder, employee, consultant, representative
or in any other capacity, contact any person or entity, which:
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(1)
is a customer or client of the Company and/or any Company Related Entity
on the
Date of Termination,
(2) the
Company can evidence in writing has been a customer or client of the Company
and/or any Company Related Entity at any time within the one (1) year period
prior to the Date of Termination, or
(3) the
Company can evidence in writing is a prospective customer or client that
the
Company and/or any Company Related Entity is actively soliciting as of the
Date
of Termination, for the purpose of selling products or services similar to
any
of the products and services offered for sale to such customers or prospective
customers by the Company and/or any Company Related Entity as of the Date
of
Termination.
(b)
Covenant Not-to-Solicit Executives or Consultants. During the
Executive’s employment with the Company and for a period of one (1) year after
the Date of Termination, the Executive shall not directly or indirectly,
individually or on behalf of any other person or entity, whether as principal,
agent, stockholder, employee, consultant, representative or in any other
capacity recruit or solicit any person to leave the employ of the Company
and/or
any Company Related Entity; provided, however that the following activities
shall not constitute a violation of this Section 11(b): (i) general
employment related advertising, or (ii) participation in employment fairs
or
similar events.
(c) Non-Competition. The
Executive recognizes and acknowledges the competitive and proprietary nature
of
the business operations of the Company and the Company Related Entities.
In
consideration of the consideration received by the Executive pursuant to
the
Transaction, during the Executive’s employment with the Company and for a period
of two (2) years after the Date of Termination, the Executive shall not,
without
the prior written consent of the Company, for himself or on behalf of any
other
person or entity, directly or indirectly, whether as principal, agent,
stockholder, employee, consultant, representative or in any other capacity,
own,
manage, operate or control or have a financial interest in any entity which
is
engaged primarily in the business of (1) creating, developing, licensing
e-commerce website or web-software or selling computer software to businesses,
in each case for the management of e-commerce websites, webstores and/or
order
processing for such businesses; or (2) providing product fulfillment services;
provided, however that nothing contained herein shall preclude the Executive
from purchasing or owning stock in any such competitive business if such
stock
is publicly traded, and provided that his holdings do not exceed one percent
(1%) of the issued and outstanding capital stock of such business.
(d) Severability
of Restrictions. In the event that any of the provisions of this
Section 11 shall be held to be invalid or unenforceable, the remaining
provisions thereof shall nevertheless continue to be valid and enforceable
as
though the invalid or unenforceable parts had not been included
therein. In the event that any provision of this Section 11 relating
to the time period and/or the areas of restriction and/or related aspects
shall
be declared by a court of competent jurisdiction to exceed the maximum
restrictiveness such court deems reasonable and enforceable, the time period
and/or areas of restriction and/or related aspects deemed reasonable and
enforceable by the court shall become and thereafter be the maximum restriction
in such regard, and the restriction shall remain enforceable to the fullest
extent deemed reasonable by such court.
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12.
Remedies. The Executive understands and agrees that the
Company and the Company Related Entities will suffer irreparable harm in
the
event that the Executive fails to comply with the Executive’s obligations under
Sections 7, 8, 9, 10 and 11 of this Agreement
and that monetary damages will be inadequate to compensate the Company for
such
breach. The Executive agrees that the Company and the Company Related
Entities shall, in addition to any other remedies available to them, be entitled
to seek preliminary and permanent injunctive relief against any breach by
the
Executive of the covenants and agreements contained in Sections 7,
8, 9, 10 and 11 hereof without having to post
bond. The parties submit to the exclusive jurisdiction of the state
or federal courts located in Los Angeles, California in connection with any
dispute, controversy or claim between the parties arising out of or related
to
any term or condition of Sections 7, 8, 9, 10 and
11. In addition to Executive's other
remedies at law or under
this Agreement (including enforcement of the Severance Payments), if the
Company
shall fail to timely make any payments due Executive hereunder, the provisions
of Section 11 shall immediately cease to apply.
13. No
Prior Employment Restrictions. The Executive represents and
warrants that the Executive is not restricted by any restrictive covenant
or
confidentiality agreement of any type or nature from any prior employment
from
performing any of the duties required by this Agreement. The
Executive agrees that he will not improperly use or disclose confidential
information or trade secrets of any prior employer or third person or knowingly
bring onto the Company’s premises any confidential information or trade secrets
belonging to any prior employer or third person unless the Executive has
received the prior written consent of such prior employer or third
party.
14. Term
and Termination.
(a)
Events of Termination. The initial term (the "Term") of
Executive's employment shall be for a period of two (2) years from the Effective
Date unless terminated earlier pursuant to the terms
hereof. Employment of the Executive under this Agreement may be
terminated:
(1)
by the Executive’s death.
(2) as
a result of the Executive’s Total Disability. For the purposes of
this Agreement, "Total Disability" means that the Executive (i) has been
declared legally incompetent (the date of such declaration being deemed to
be
the date on which the disability occurred), or (ii) is unable to substantially
perform the Executive’s duties for 180 days in any twelve-month period as a
result of a physical or mental illness or injury, as determined in good faith
by
the Board, or (iii) has been found to be disabled pursuant to a Disability
Determination (as defined herein).
(3) By
mutual written agreement of the Executive and the Company.
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(4)
By the Company for Cause. For purposes of this Agreement "Cause"
shall mean only the following:
(i)
a conviction of or a plea of guilty or nolo contendre by the Executive to
any
felony, or a misdemeanor involving fraud, embezzlement or theft or other
criminal conduct against the Company;
(ii) any
intentional, reckless, or grossly negligent act or omission by the Executive
which causes material harm to the Company;
(iii)
habitual alcohol or substance abuse;
(iv) the
willful failure of the Executive to comply with the reasonable, customary
and
proper directives of the Company and/or any Company Related Entity that have
continued or have not been cured within thirty (30) days of written notice
thereof to the Executive, provided, however, that the Executive's failure
to
achieve any level of performance, standards, objectives or milestones (provided
Executive has exerted commercially reasonable efforts to achieve such) shall
not
constitute "Cause" hereunder.
(v)
the failure of the Executive to comply with the policies of the Company and/or
any Company Related Entity generally applicable to executives of the Company
with respect to state or federal law relating to the workplace environment
(including, without limitation, laws relating to sexual harassment or age,
sex
or other prohibited discrimination);
(vi)
Executive's intentional and unlawful misappropriation of assets,
properties, or funds of the Company; or
(vii)
the Executive materially breaches any of the material covenants, agreements
or
obligations of this Agreement or any of the Equity Documents.
(5)
By the Executive for Good Reason. For purposes of this Agreement
"Good Reason" shall mean only the following:
(i)
a material reduction of the nature and scope of the authorities or duties
attached to Executive's position that has not been cured within fifteen (15)
days after written notice thereof from the Employee to the Company,
(ii)
a reduction by the Company of Executive’s then current Base Salary, other than a
reduction commensurate with concurrent base salary reductions of all other
executives of the Company;
(iii)
a material breach by the Company of (i) this Agreement, (ii) the Equity Document
or (iii) the Merger Agreement, in each case that has not been cured within
thirty (30) days after written notice thereof from the Employee to the Company;
or
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(iv)
a relocation of the Executive’s principal place of employment to a location that
is more than fifty (50) miles from the Company’s current place of business in
North Hollywood, California.
(6)
By the Company without Cause upon written notice to the Executive.
(7) By
the Executive upon written notice to the Company.
(8) Upon
expiration of the Term, unless otherwise extended pursuant to a written
agreement executed by the Company and the Executive.
(b)
Definitions.
(1)
Disability Determination. For the purposes of this Agreement,
a "Disability Determination" shall mean a good faith finding by the Board
that
the Executive, because of a medically determinable disease, injury, or other
mental or physical disability, is unable to perform substantially all of
his
regular duties to the Company and that such disability is determined or
reasonably expected to last at least twelve (12) months.
(2) Date
of Termination. For the purposes of this Agreement, "Date of
Termination" shall mean the effective date of the Executive’s termination
pursuant to Section 14(a).
(c)
Effect of Termination. Notwithstanding the Term of this
Agreement, in the event of the termination of the Executive’s employment for any
reason, all obligations of the Executive pursuant to Section 2 hereof and
of the Company pursuant to Section 4 hereof shall terminate, except (i)
for the payment of any earned but unpaid Base Salary and any unreimbursed
expenses and other unpaid benefits owed as of the date of termination and
(ii)
as set forth in Section 15. For purposes of clarification,
notwithstanding anything to the contrary contained in this Agreement, the
provisions of Sections7, 8, 9, 10, 11,
12, 14, 15,
16,
17
and, as necessary to
construe and enforce the foregoing provisions, 18 shall survive such
termination. The Executive agrees to reasonably cooperate with the
Company in order to ensure an orderly transition of the Executive’s duties and
responsibilities upon termination of employment.
15.
Severance. Notwithstanding the Term of this Agreement, in the
event that the Executive’s employment is terminated prior to the second
anniversary of the date of this Agreement by the Company without Cause or
by the
Executive for Good Reason, the Company shall pay to the Executive continued
payments (the "Severance Payments") of 100% of the
Executive’s then current monthly Base Salary for a length of time equal to six
(6) months (the "Severance Period") from the Date of Termination. The
Company's obligation to make any applicable Severance Payments under this
Section 15 is conditioned upon Executive entering into a general release of
the Company and its officers, directors, employees, agents, affiliates,
representatives, successors, assigns and shareholders in form attached hereto
as
Exhibit E (a "Release") provided, however that such release shall exclude
accrued and unpaid salary, accrued and unpaid other benefits, un-reimbursed
expenses, severance payments and severance benefits, each as set forth in
this
Agreement and rights of indemnification under the Company's Certificate of
Incorporation, Bylaws, this Agreement or any other written agreement between
the
Company and Executive (other than with respect to matters relating to
Executive's termination of employment). Such Severance Payments shall
be made in accordance with the Company’s payroll practices and procedures in
effect on the Date of Termination.
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16.
Arbitration.
(a)
Agreement to Arbitrate. Any controversy or claim arising out
of or relating to the Agreement, or the breach hereof, and claims referenced
in
subsection (b) below, shall be settled by arbitration administered by the
American Arbitration Association under its National Rules for the Resolution
of
Employment Disputes, and judgment upon the award rendered by the arbitrator(s)
may be entered by any court having jurisdiction thereof. The
Executive understands that his assent to mandatory arbitration is a condition
of
employment and continued employment and that claims covered by this Agreement,
will be settled by arbitration in Los Angeles, California. The
arbitration shall be conducted by one neutral arbitrator selected by the
parties. The arbitrator shall apply the substantive and procedural
laws of the State of California to all such arbitrations. The Company
will pay all expenses unique to arbitration. The arbitrator shall
have the authority to order such discovery, by way of deposition, interrogatory,
document production, or otherwise, as the arbitrator considers necessary
to a
full and fair exploration of the issues in dispute, consistent with the
expedited nature of arbitration. The arbitrator is authorized to
award any remedy or relief that the arbitrator deems just and equitable,
including any remedy or relief that would have been available to the parties
had
the matter been heard in court. The arbitrator shall have the
authority to provide for the award of attorney's fees and costs in accordance
with applicable law. The arbitrator may award to the prevailing party in
any
dispute reasonable and actual attorney's fees consistent with applicable
law. The Executive and Company agree that this Agreement to arbitrate
is subject to and enforceable under the provisions of the Federal Arbitration
Act (the "FAA"), 9 U.S.C. §§ 1, et seq., and to the extent it does not
interfere with the enforceability of this Agreement, the California Arbitration
Act (the "CAA"), Cal. Code Civ. Proc. ("C.C.P.") §§ 1280, et
seq. The decision of the arbitrator shall be in writing and shall
provide the reasons for the award unless the parties agree
otherwise. Proceedings to enforce, confirm, modify, set aside or
vacate an award or decision rendered by the arbitrator will be controlled
by and
conducted in conformity with the Federal Arbitration Act, 9 U.S.C. Sec 1
et.
seq. or applicable state law. This Agreement shall survive the
termination of Executive's employment with Company and shall apply to any
claim,
dispute, and/or controversy that arises during or after the termination of
Executive's employment. This Agreement shall be mutually binding on
the Executive and Company.
(b)
Covered Claims. Except as otherwise provided in this
Agreement, the Executive and the Company hereby consent to the resolution
by
arbitration of all claims or controversies for which a court otherwise would
be
authorized by law to grant relief, in any way arising out of, relating to,
or
associated with the Executive’s employment with the Company or its termination
("Claims") that the Company may have against the Executive or that the Executive
may have against the Company or against its officers, directors, employees,
or
agents, in their capacity as such or otherwise. The Claims covered by
this Agreement include, but are not limited to: claims for coercion,
for discrimination based on race, sex, religion, national origin, age, marital
status, handicap, disability, or medical condition; claims for benefits,
except
as excluded in the following paragraph, and claims for violation of any federal,
state, or other governmental constitution, statute, ordinance, or regulation
(including but not limited to claims arising under Title VII of the Civil
Rights
Act, the Americans with Disabilities Act, the Age Discrimination in Employment
Act, the Family Medical Leave Act, the Fair Labor Standards Act, and the
Executive Retirement Income Security Act). Additionally, any and all
issues of arbitrability (whether a claim is covered by this Agreement) will
be
decided by the arbitrator(s) and not a court.
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(c)
Claims not Covered. This agreement to arbitrate does not apply
to or cover potential claims that may be brought by either Executive or Company
under the Equity Documents. This agreement to arbitrate also does not
apply to claims that are already subject to an existing arbitration provision
between the parties, or claims that may not be arbitrated under applicable
law.
(d) Waiver. THE
PARTIES HEREBY WAIVE THEIR RIGHT TO HAVE ANY DISPUTE, CLAIM OR CONTROVERSY
DECIDED BY A JUDGE OR JURY IN A COURT.
17.
Withholding of Taxes. The Company may withhold from any
compensation, benefits or other amount payable under this Agreement all federal,
state, city and other taxes as shall be required pursuant to any law or
governmental regulation or ruling.
18. Miscellaneous.
(a)
No Duty to Seek Other Employment; No Offset. The Executive
shall have no duty to seek or accept other employment in the event that his
employment hereunder is terminated, and no amounts owed to Executive hereunder
shall be reduced or offset as a result of any payment or benefit received
from
any other employment that Executive may accept.
(b) Waiver. A
party’s failure to insist on compliance with or enforcement of any provision of
this Agreement, shall not affect the validity or enforceability or constitute
a
waiver of future enforcement of that provision or of any other provision
of this
Agreement by that party or any other party.
(c) Governing
Law. This Agreement shall in all respects be subject to, and
governed by, the laws of the State of California without regard to the
principles of conflict of laws.
(d) Severability. The
invalidity or unenforceability of any provision in this Agreement (including
without limitation any provision regarding arbitration) shall not in any
way
affect the validity or enforceability of any other provision and this Agreement
shall be construed in all respects as if such invalid or unenforceable provision
had never been in the Agreement.
(e) Notice. Notices
provided for herein shall be in writing and shall be deemed to have been
duly
given when delivered personally or by overnight courier with a receipt obtained
therefor or when mailed by United States registered or certified mail, return
receipt requested, postage prepaid, addressed, to the Company to its chief
executive officer at its principal office and to the Executive at the address
set forth above or such other address as he may provide the Company in
accordance with the provision.
11
(f)
Amendments. This Agreement may be amended at any time by
mutual consent of the parties hereto, with any such amendment to be invalid
unless in writing, signed by the Company and the Executive. To the
extent that this Agreement or any part thereof is deemed to be a nonqualified
deferred compensation plan subject to Section 409A of the Code, then (i)
this
Agreement shall be interpreted in a manner to comply in good faith with Code
Section 409A and the guidance promulgated thereunder; and (ii) the parties
agree
to amend this Agreement as soon as practicable, as may be reasonably necessary
(if at all) so as to avoid application of any tax or interest pursuant to
Code
Section 409A as interpreted by proposed regulations issued on September 29,
2005, and such additional guidance as may be issued before December 31, 2005;
and again to make any such further amendment as may be so required on or
before
December 31, 2007, based on such further guidance as may have been issued
(in
each case preserving to the extent feasible the parties' respective economic
interests and legal rights and obligations hereunder).
(g) Burden
and Benefit. This Agreement, together with any amendments hereto,
shall be binding upon and shall inure to the benefit of the parties hereto
and
their respective successors, assigns, heirs and personal representatives,
except
that the rights and benefits of the Executive under this Agreement may not
be
assigned without the prior written consent of the Company.
(h) References
to Gender and Number Terms. In construing this Agreement,
feminine or number pronouns shall be substituted for those masculine in form
and
vice versa, and plural terms shall be substituted for singular and singular
for
plural in any place in which the context so requires.
(i) Headings. The
various headings in this Agreement are inserted for convenience only and
are not
part of the Agreement.
(j) Entire
Agreement. This Agreement and the Equity Documents contain the
entire agreement and understanding by and between the Executive and the Company
with respect to the employment of the Executive, supersedes any prior agreements
and no representations, promises, agreement, or understanding, written or
oral,
relating to the employment of the Executive by the Company not contained
herein
or therein shall be of any force or effect.
Remainder
of Page Intentionally Left Blank
12
IN
WITNESS
WHEREOF, the parties hereto have duly executed this Agreement as of the day
and
year first hereinabove written.
| EXECUTIVE | |||
| Name: Xxxxxxx Xxxxxxxx | |||
| Address: | |||
|
THE
COMPANY
IVENTA
CORPORATION
|
|||
| By: | |||
| Name: | |||
| Title: | |||
| I-CORP. ACQUISITION SUB, INC. | |||
| By: | |||
| Name: | |||
|
Title:
|
|||
EXHIBIT
B
RESTRICTED
STOCK UNIT AGREEMENT
This
RESTRICTED STOCK UNIT AGREEMENT (this "Agreement"), is
made as of October [__], 2007, by and between Commerce Planet, Inc., a Utah
corporation (the "Company") and Xxxxxxx Xxxxxxxx (the
"Participant").
19.
AWARD. The Company hereby awards to the Participant, on the date
hereof, 1,712,3281 Time-Vested
Restricted Stock Units ("Units"). The Units
are being granted pursuant to the [COMMERCE PLANET PLAN], as the same may
be
amended, modified or supplemented from time to time (the
“Plan”). Capitalized terms used but not
defined herein shall have the meanings assigned to them in the
Plan.
20. TERMS
AND CONDITIONS. The award evidenced by this Agreement is subject to
the following terms and conditions:
(i)
The Participant shall not possess any incidents of ownership (including,
without
limitation, dividend, interest and voting rights) in shares of Common Stock
(as
defined below) in respect of the Units until such Units shall have vested
and
been distributed to the Participant in the form of shares of Common Stock
in
accordance with Sections 3 and 4 hereof. Subject to the
terms and conditions of this Agreement, Units create no fiduciary duty of
the
Company to the Participant and only represent an unfunded and unsecured
contractual obligation of the Company. The Units shall not be treated
as property or as a trust fund of any kind.
(ii) Except
as provided in this Section 2(b), the Units and any interest of the
Participant therein may not be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of. Any attempt to transfer Units
in contravention of this Section 2(b) is void ab
initio. Units shall not be subject to execution, attachment or
other process. Notwithstanding the foregoing, with the written
consent of the Company, the Participant shall be permitted to transfer such
Units to members of his immediate family (i.e., children, grandchildren
or spouse), trusts for the benefit of such family members, and partnerships
whose only partners are such family members; provided, however,
that no consideration can be paid for the transfer of the Units and the
transferee of the Units shall be subject to all conditions applicable to
the
Units (including all of the terms and conditions of this Agreement) prior
to
transfer.
(iii)
Each reference contained in this Agreement to:
“Board”
means the Board of Directors of the Company.
"Change
in Control" means any of the following events: (a) a person or
entity or group of persons or entities, acting in concert, becomes the direct
or
indirect beneficial owner (within the meaning of Rule 13d-3 of the Securities
Exchange Act of 1934, as amended) of securities of the Company or Iventa
representing 50.1% or more of the combined voting power of the issued and
outstanding shares of capital stock of the Company or Iventa; (b) the Board
approves any merger, consolidation or like business combination or
reorganization of the Company or Iventa, the consummation of which would
result
in the occurrence of the event described in clause (a) above, and such
transaction shall have been consummated; or (c) the Company or Iventa sells,
transfers or otherwise disposes of all or substantially all of their respective
assets in one transaction or a series of transactions.
1
Based on a price of $0.73 per share.
1
"Common
Stock" means common stock, par value $0.001 per share, of the
Company.
“Iventa”
means I-Corp Merger Sub, LLC, a California limited liability company
and
wholly-owned subsidiary of the Company (and successor-in-interest to
Iventa
Corporation, a California corporation), and its successors and
assigns.
21.
VESTING AND CONVERSION OF UNITS. The Units granted to the Participant
pursuant to Section 1 hereof shall vest (a) 142,694 Units on November __,
2007, and (b) the remainder of the Units on a pro rata basis in
twenty-two (22) equal installments of 71,347 Units on the [__] day of
each calendar month beginning on the December [__], 2007. Subject to
Section 4 hereof, the aggregate number of vested Units on each of the
following dates (“Settlement Dates”) shall be
converted into an equivalent number of shares of Common Stock that will
be
immediately distributed to the Participant:
Settlement
Dates
| Date | Units Converted |
| October [__], 2008 | 100% of the Units vested as of such date. |
| [__] day of each month thereafter | 100% of the Units vested as of each such date. |
Upon
the
distribution of the shares of Common Stock in respect of the Units, the
Company
shall issue to the Participant or the Participant’s personal representative a
stock certificate representing such shares of Common Stock, free of any
restrictions except as may arise under applicable law.
22.
TERMINATION OF EMPLOYMENT; CHANGE IN CONTROL.
(i)
For purposes of this Section 4, the terms Cause, Good Reason and Total
Disability shall have the meanings ascribed to such terms in the Participant’s
employment agreement with the Company, dated as of the date hereof, as
amended
or restated from time to time (the “Employment
Agreement”).
(ii)
If the Participant’s employment with the Company is terminated by the Company
for Cause or by the Participant without Good Reason, or in the event
of the
death or Total Disability of the Participant, the Participant shall forfeit
all
Units granted to the Participant pursuant to Section 1 hereof that have
not vested as of the date of such termination of employment
(iii)
(i) If the Participant’s employment with the Company is terminated (A) by the
Company without Cause or (b) by the Participant for Good Reason, or (ii)
effective concurrently with a Change of Control, all Units granted to
the
Participant pursuant to Section 1 hereof that have not vested as of such
date shall immediately vest in full.
2
23.
409A COMPLIANCE; DEFERRAL. This Award will be administered and
interpreted to comply with Section 409A of the Internal Revenue Code, as
amended
(“Section 409A”). Notwithstanding anything
to the contrary in this Agreement, if, upon Participant’s "separation from
service" (as defined in Section 409A), Participant is then a Company “specified
employee” (as defined in Section 409A), then to the extent necessary to comply
with Section 409A, the Company shall defer payment of certain of the amounts
owed to Participant under this Agreement until the earlier of (i) five (5)
days
after the Company receives notification of Participant’s death or (ii) the first
business day of the seventh (7th) month
following
Participant’s separation from service. Any such delayed payments
shall be made to Participant (or his beneficiaries) without
interest. With the prior written consent of the Company, and on such
terms as the Company may prescribe (which terms shall be in compliance with
Section 409A of the Internal Revenue Code of 1986, as amended), the Participant
may elect to defer the receipt of Common Stock upon the vesting of the Units
granted to the Participant pursuant to Section 1 hereof and for the
Company to continue to maintain such Units on its books of account.
24. EQUITABLE
ADJUSTMENT. If there shall be any change in the Common Stock, through
merger, consolidation, reorganization, recapitalization, stock dividend,
stock
split, reverse stock split, split up, spinoff, combination of shares, exchange
of shares, dividend in kind or other change in capital structure or distribution
(other than normal cash dividends) to stockholders of the Company, in order
to
prevent dilution or enlargement of the Participant’s rights under this Agreement
and the Plan, the Board may, in an equitable manner, adjust the number and
kind
of shares that may be issued under this Agreement and make any other appropriate
adjustments in the terms of the Units and this Agreement to reflect such
changes
or distributions.
25. TAXES. In
connection with any distribution of shares of Common Stock to the Participant
pursuant to this Agreement, the Participant shall remit to the Company an
amount
sufficient to satisfy any tax withholding requirements within five (5) business
days following the delivery of any certificates for such Common
Stock. The Board may, in its discretion and subject to such rules as
it may adopt (including any as may be required to satisfy applicable tax
and/or
non-tax regulatory requirements), permit the Participant to pay all or a
portion
of the federal, state and local withholding taxes arising in connection with
the
Units granted hereunder and any distribution of shares of Common Stock in
respect thereof by electing to have the Company withhold shares of Common
Stock
having a fair market value, as determined by the Board in good faith, equal
to
the amount of tax to be withheld, such tax calculated at rates prescribed
by
statute or regulation.
26. REGULATORY
COMPLIANCE AND LISTING. The issuance or delivery of any stock
certificates representing shares of Common Stock issuable pursuant to this
Agreement may be postponed by the Board for such period as may be required
to
comply with any applicable requirements under the federal or state securities
laws, any applicable listing requirements of any national securities exchange
or
the Over-the-Counter Bulletin Board trading system (the
“OTCBB”), and any applicable requirements under any
other law, rule or regulation applicable to the issuance or delivery of such
shares, and the Company shall not be obligated to deliver any such shares
of
Common Stock to the Participant if either delivery thereof would constitute
a
violation of any provision of any law or of any regulation of any governmental
authority, any national securities exchange or the OTCBB, or the Participant
shall not yet have complied fully with the provisions of Section 7
hereof.
3
27.
INVESTMENT REPRESENTATIONS AND RELATED MATTERS. The Participant
hereby represents that the Common Stock issuable pursuant to this Agreement
is
being acquired for investment and not for sale or with a view to distribution
thereof. The Participant acknowledges and agrees that any sale or
distribution of shares of Common Stock issued pursuant to this Agreement
may be
made only pursuant to either (a) a registration statement on an appropriate
form
under the Securities Act of 1933, as amended (the "Securities
Act"), which registration statement has become effective and is
current with regard to the shares being sold, or (b) a specific exemption
from
the registration requirements of the Securities Act that is confirmed in
a
favorable written opinion of counsel, in form and substance satisfactory
to
counsel for the Company, prior to any such sale or distribution. The
Participant hereby consents to such action as the Board or the Company deems
necessary or appropriate from time to time to prevent a violation of, or
to
perfect an exemption from, the registration requirements of the Securities
Act
or to implement the provisions of this Agreement, including but not limited
to
placing restrictive legends on certificates evidencing shares of Common Stock
issued pursuant to this Agreement and delivering stop transfer instructions
to
the Company’s stock transfer agent.
28. NO
RIGHT TO CONTINUED EMPLOYMENT. This Agreement does not confer upon
the Participant any right to continued employment by the Company or any of
its
subsidiaries or affiliated companies, nor shall it interfere in any way with
the
right of the Participant’s employer to terminate the Participant’s employment at
any time for any reason or no reason.
29. CONSTRUCTION. This
Agreement will be construed by and administered under the supervision of
the
Board, or a designated committee thereof, and in accordance with the Plan,
and
all determinations of the Board or such committee will be final and binding
on
the Participant.
30. NOTICES. Any
notice required or permitted under this Agreement shall be deemed given when
delivered personally, or when deposited in a United States Post Office, postage
prepaid, addressed, as appropriate, (i) to the Participant at the last address
specified in Participant’s employment records, or such other address as the
Participant may designate in writing to the Company, or (ii) to the Company,
Commerce Planet, Inc., 00 Xxxxx Xx Xxxxxx Xxxx, Xxxxx #0, Xxxxxx, XX 00000,
Attention: Corporate Secretary, or such other address as the Company may
designate in writing to the Participant.
31. FAILURE
TO ENFORCE NOT A WAIVER. The failure of either party hereto to
enforce at any time any provision of this Agreement shall in no way be construed
to be a waiver of such provision or of any other provision hereof.
32. GOVERNING
LAW. This Agreement shall be governed by and construed according to
the laws of the State of California, without regard to the conflicts of laws
provisions thereof.
4
33.
INCORPORATION OF PLAN. The Plan is hereby incorporated by reference
and made a part of this Agreement, and this Agreement shall be subject to
the
terms of the Plan.
34. COUNTERPARTS. This
Agreement may be executed in two or more counterparts, each of which shall
be an
original but all of which together shall represent one and the same
agreement.
35. MISCELLANEOUS. This
Agreement cannot be modified or terminated orally. This Agreement,
the Employment Agreement and the Plan contain the entire agreement between
the
parties relating to the subject matter hereof. The section headings
herein are intended for reference only and shall not affect the interpretation
hereof.
(signature
page follows)
5
IN
WITNESS
WHEREOF, the undersigned have executed this Agreement as of the date first
written above.
6
EXHIBIT
C
TO
EXECUTIVE
EMPLOYMENT AGREEMENT
OF
XXXXXXX
XXXXXXXX
The
following is a list of Inventions and inventions conceived or created by
the
Executive prior to the start of employment. If there are no
Inventions or inventions conceived or created by the Executive prior to the
start of employment, insert "None" and sign below.
Concepts
developed
|
1.
|
Bar/restaurant
locating website with social networking components,
1999
|
|
|
2.
|
Event
locating website with social networking components,
1999
|
|
|
3.
|
Stock
market website with social networking components, 1999
|
|
|
4.
|
Advertising
manager service for entertainers/entertainment companies,
2003
|
|
|
5.
|
Television
show regarding internet startups, 2006
|
|
|
6.
|
Virtual
record label for developing/distributing artists and music,
2004
|
|
|
7.
|
User-driven,
contributory search engine, 2006
|
|
|
8.
|
User-driven,
contributory video production company, 2007
|
|
|
9.
|
User-driven,
contributory gambling/gaming website, 2005
|
|
|
10.
|
User-driven,
contributory paid content website w/ revenue sharing,
2006
|
|
|
11.
|
Social
networking / dating search engine, 2006
|
|
|
12.
|
"Matching"
system for companies seeking biz dev opportunities,
2007
|
|
|
13.
|
iPod
song identification and download system, 2007
|
|
|
14.
|
Consumer
website for independent film and music,
1999
|
Domain
names owned:
|
1.
|
0000xxxxx.xxx
|
|
|
2.
|
xxxxxxxxxxxxxx.xxx
|
|
|
3.
|
xxxxxxxxxxxx.xxx
|
|
|
4.
|
xxxxxxxxxxxxxxx.xxx
|
|
|
5.
|
xxxxxxxx.xxx
|
|
|
6.
|
xxxxxxxx.xxx
|
|
|
7.
|
xxxxxxx.xxx
|
|
|
8.
|
xxxxxxxx.xxx
|
|
|
9.
|
xxxxxxxxxxxxxxxx.xxx
|
|
|
10.
|
xxxxxxxxx.xxx
|
|
|
11.
|
xxxxxxxxxxxxx.xxx
|
|
|
12.
|
xxxxxxxxxxxxx.xxx
|
|
|
13.
|
xxxxxxx.xxx
|
1
|
14.
|
xxxxxxxxxxxxx.xxx
|
|
|
15.
|
xxxxxxxxx.xxx
|
|
|
16.
|
xxxxxxxxxxxxxxxx.xxx
|
|
|
17.
|
xxxxxxxxxxxxxx.xxx
|
|
|
18.
|
xxxxxxxxxxxxxxxxxxx.xxx
|
|
|
19.
|
xxxxxxxxxxxxxxxx.xxx
|
|
|
20.
|
xxxxxxx.xxx
|
|
|
21.
|
xxxxx.xxx
|
|
|
22.
|
xxxxx.xxx
|
|
|
23.
|
xxxxxxxxxx.xxx
|
|
|
24.
|
xxxxxxxxxx.xxx
|
|
|
25.
|
xxxxx.xxx
|
|
|
26.
|
xxxxxx.xxx
|
|
|
27.
|
xxxxxxxxxxxxx-xxxxxxxxxxx.xxx
|
|
|
28.
|
xxxxxxxxxxxxxxxxxxxxxx.xxx
|
|
|
29.
|
xxxxxxxxxxxxxx.xxx
|
|
|
30.
|
xxxxxxxxxxxxxxxx.xxx
|
|
|
31.
|
xxxxxxxxxx.xxx
|
|
|
32.
|
xxxxxxxxx.xxx
|
|
|
33.
|
xxxxxxxxxxx.xxx
|
|
|
34.
|
xxxxxxxxx-xxxxxxxxxxx.xxx
|
|
|
35.
|
xxxxxxxxxxxxx.xxx
|
|
|
36.
|
xxxxxxxxxxx.xxx
|
|
|
37.
|
xxxxxxxxx.xxx
|
|
|
38.
|
xxxxxxxxxxx.xxx
|
|
|
39.
|
xxxxxxxxx.xxx
|
|
|
40.
|
xxxxxxxxxxxxxx.xxx
|
|
|
41.
|
xxxxxxxxxxx.xxx
|
|
|
42.
|
xxxxxxxxxxx.xxx
|
|
|
43.
|
xxxxx-xxxxxxxxxxx.xxx
|
|
|
44.
|
xxxxxxxxxxxx.xxx
|
|
|
45.
|
xxxxxxxxxxxxxx.xxx
|
|
|
46.
|
xxxxxxxxx.xxx
|
|
|
47.
|
xxxxxxxxxx.xx
|
|
|
48.
|
xxxxxx-xxxxxx-xxxx.xxx
|
|
|
49.
|
xxxxxxxxxxxx.xxx
|
|
|
50.
|
xxxxxx.xxx
|
|
|
51.
|
xxxxxxx.xxx
|
|
|
52.
|
xxxxxxxxxxxxx.xxx
|
|
|
53.
|
xxxxxxxxxxxx.xxx
|
|
|
54.
|
xxxxxxxxxxx.xxx
|
|
|
55.
|
xxxxxxxxxxx.xxx
|
|
|
56.
|
xxxxxxxxxxxx.xxx
|
[Signature
page to follow]
2
|
Signature
of Executive
|
Date
|
||
| Date | |||
| Acknowledgment of the Company | |||
3
