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EXHIBIT 10.11
WP HOLDING, INC.
EMPLOYMENT AGREEMENT
WP Holding Inc., referred to as EMPLOYER or Company, and Xxxxxxx
Xxxxxxxxx, referred to as EMPLOYEE, do this 17th day of April, 1999, for and in
consideration of the mutual covenants contained herein, the adequacy and
sufficiency of which is hereby acknowledged, agree as follows:
1. Title. EMPLOYEE is engaged to act as Vice President of Sales for WP
Holding, Inc. (Company) beginning May 3, 1999. EMPLOYEE shall report to
EMPLOYER'S Chief Executive Officer.
2. Compensation. EMPLOYEE's compensation will be comprised of three (3)
parts:
a. BASE SALARY. As compensation for EMPLOYEE's services herein,
EMPLOYEE shall receive an annual base salary at the rate of
$150,000 per annum. Said salaried rate shall be paid
semi-monthly or in consistent compliance with the WP Holding,
Inc. salary compensation policy.
b. INCENTIVE BONUS. As additional compensation, EMPLOYEE shall be
paid an incentive bonus, based upon achieving Company quarterly
sales revenue goals. The incentive bonus program shall include
the elements outlined in Exhibit A to this Agreement, with full
details and documentation of the plan to be developed jointly by
EMPLOYEE and the Company's CEO. The annual target amount paid
under the Incentive Bonus for achieving various internal sales
goals shall be a maximum of $150,000 as described in Exhibit A.
c. EQUITY. EMPLOYER will grant EMPLOYEE Stock Options to purchase
approximately 650,000 shares of common stock, at fair market
value on the date of the grant (which shall be the earlier of
the date of hire or the date of plan established; fair market
value shall be subject to approval by the Company's Board of
Directors). These options shall represent approximately 1.42% of
the fully diluted capital structure of the Company after
completion of its proposed $8.0 million financing. The options
shall be issued pursuant to the employee stock option plan which
shall be documented in a formal grant letter or option agreement
under such plan, so long as the other conditions pursuant to
such stock option plan are met by EMPLOYEE. EMPLOYER represents
that Stock Option plan will have a vesting schedule of 4 years
(with semi-annual vesting) and a strike price of no greater than
$0.66 per share.
d. BENEFITS. As additional compensation, EMPLOYEE shall be
permitted to participate in the various group benefit plans as
EMPLOYER may from time to time adopt to the same extent other
employees of EMPLOYER of similar position within the Company may
participate. Such benefit plans include health insurance,
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dental insurance, 401K plan, which may be modified from time to
time. All plans are subject to income limitations and
restrictions, and any other limitations or restrictions based
upon EMPLOYEE's particular circumstances, imposed by state,
federal or local statute or regulation for participation in such
plans. Vacation of three (3) weeks per year shall be permitted,
with caryover of up to one week permitted with prior approval of
CEO.
4. Severance. If EMPLOYEE is terminated "Without Cause", EMPLOYEE shall
receive as severance, paid in accordance with Company's payroll
schedule, six months Base Salary and continued participation in the
Company's insurance plans. EMPLOYEE shall be eligible to participate
in insurance plans under COBRA or other similar program which may be
applicable at that time. "Without Cause" shall be interpreted as any
reason, including general performance, but shall not include willful
misconduct, fraud, gross negligence, or unlawful conduct in the
course of carrying out business responsibilities.
5. Confidentiality. EMPLOYER may from time to time during the course of
EMPLOYEES service reveal certain confidential/trade secret or
proprietary information to EMPLOYEE. EMPLOYEE shall not, in any case,
reveal any confidential/trade secret or proprietary information to
any other parties either during his employment or for a period of one
year following termination.
6. Full Time Employment. EMPLOYEE agrees that the duties herein shall be
full time. EMPLOYEE shall not engage in other business ventures,
activities, or investments in direct competitors which may be
determined by EMPLOYER to materially affect EMPLOYEE'S ability to
complete his responsibilities, without the prior approval of
EMPLOYER. This provision shall not preclude EMPLOYEE from making
personal investments in stocks, bonds, and other instruments which
are not competitive with the Company's line of business.
7. Intellectual Property of Employer. EMPLOYEE agrees to promptly
disclose to EMPLOYER any inventions or processes discovered by the
EMPLOYEE which are made at the behest or in connection with the
duties of EMPLOYEE, or which are reasonably related to the business
of EMPLOYER during the term of employment, and hereby assigns any and
all rights in said inventions or processes to EMPLOYER.
8. Execution of Documents. EMPLOYEE shall execute any documents
reasonably requested by EMPLOYER for patents or other legal steps
which EMPLOYER may desire to take to perfect its rights in any
inventions.
9. At-Will Employee. This agreement clarifies certain rights and duties
of EMPLOYER and EMPLOYEE. This agreement may be terminated at any
time by EMPLOYER, in EMPLOYER's sole discretion. EMPLOYEE recognizes
he is employed as an "at-will" employee and that this agreement may
be terminated at any time and at EMPLOYEE's sole discretion.
Notwithstanding EMPLOYEE'S at-will status, EMPLOYER will pay
severance as herein defined upon termination.
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10. Non-Competition Provision. EMPLOYEE agrees to refrain from accepting
employment, for a period of one year, after termination of this
agreement, from any employer which is deemed to be in competition with
the Company.
11. Corporate Opportunities. EMPLOYEE agrees that any and all corporate
opportunities developed EMPLOYEE during his employment by EMPLOYER are
deemed confidential information and are the property of EMPLOYER, and
shall be relinquished to employer immediately upon termination.
12. Return of Employer Property. Upon termination of employment or
otherwise as requested by EMPLOYER, EMPLOYEE shall immediately return
all materials belonging to EMPLOYER.
13. Arbitration. Any disputes under this agreement, including those
relating to non-competition shall be submitted to arbitration with a
single arbitrator under the rules of the American Arbitration
Association. Any ruling made by the arbitrators shall be final and may
be entered as a judgment in any court of competent jurisdiction.
14. Non-Solicitation of Customers. During employment and for a period of
one year after termination, EMPLOYEE shall not solicit any customer of
EMPLOYER, including any past customers of the EMPLOYER who have done
business with the EMPLOYER during the prior one year, to purchase any
product or service which could be supplied by the EMPLOYER.
15. Non-Solicitation of Employees. EMPLOYEE shall not solicit any employees
of the EMPLOYER for hire to any other employer, to perform any act in
contravention of this Agreement, or to terminate their employment with
the EMPLOYER for a period of one year following termination.
16. Non-Interference. EMPLOYEE shall not take any action to harm the
EMPLOYER or its products and shall not take any action, at any time,
which is designed to hamper the productivity of the EMPLOYER.
17. Injunctive Relief for Employer. In the event of a breach or threatened
breach of this Agreement by EMPLOYEE, the EMPLOYER shall be entitled, in
addition to any other relief provided at law or equity, an injunction
restraining EMPLOYEE from disclosing confidential information, or
soliciting customers or employees.
Agreed to and accepted on this the 17th day of April, 1999.
/s/ XXXXX X. XXXXXX /s/ XXXXXXX XXXXXXXXX
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WP Holding, Inc. Xxxxxxx Xxxxxxxxx
Xxxxx X. Xxxxxx, CEO
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EXHIBIT A
OUTLINE OF TERMS FOR INCENTIVE BONUS PLAN
As agreed in the Employment Agreement, Xxxxxxx Xxxxxxxxx and Xxxxx Xxxxxx, CEO,
will jointly develop the detailed plan and budget which shall comprise
EMPLOYEE'S Incentive Bonus Plan. EMPLOYEE and EMPLOYER agree that the Plan shall
include, but not be limited to, the following elements:
- EMPLOYEE shall receive Incentive Bonus for meeting quarterly sales
revenue budgets. These budgets shall be set to be 25% greater than the
Company's financial plan reported to analysts and investors.
- EMPLOYEE may be eligible for an additional bonus if Sales Force Targets
are substantially exceeded, as may be determined and approved by
EMPLOYER'S Board of Directors in its sole discretion.
- Incentive Bonus earned shall be determined on a sliding scale which
shall be mutually agreeable to EMPLOYEE and EMPLOYER. Unless otherwise
agreed to, the scales shall be as follows:
% of Sales Budget Achieved % of Quarterly Bonus Earned
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100%- 100%
90-99% 80%
85-89% 65%
80-84% 50%
70-79% 20%
60-69% 10%
- Incentive Bonus shall be earned quarterly (with each Quarter weighed
equally as one-fourth of the Annual Incentive Bonus) and paid at the
conclusion of each of the Company's fiscal quarters and final quarterly
internal accounting for quarterly sales revenues.
- Sales revenue targets may be adjusted by EMPLOYER to reasonably account
for revenues associated with acquisitions made by the Company and for
mix of sales by product type which reflect the Company's strategic
emphasis. (For example, a minimum mix of permission email sales revenues
as a percentage of total sales shall be established, consistent with the
Company's financial plan).
- EMPLOYEE understands that his responsibility as Vice President Sales
includes
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using all reasonable efforts to achieve EMPLOYER'S objectives. Although
the Incentive Bonus Plan is tied to meeting sales revenue targets,
EMPLOYER'S expectations for EMPLOYEE also include the following:
operating within approved budget guidelines; building effective sales
management, personnel and sales systems for inside and field sales; and
working to achieve a positive morale within the sales team and with
other executives and employees of the Company.
