EXHIBIT 10.35
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of October 12, 2001, by and between
Xxxxxxxx Xxxxxx ("Executive") and iAsiaWorks, Inc., a Delaware corporation (the
"Company").
1. Duties and Scope of Employment.
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(a) Position and Duties. For the term of his employment under this
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Agreement, the Company agrees to employ Executive in the position of Chief
Executive Officer. Executive shall report to the Company's Board of Directors,
and his position will be based in San Mateo, California, however, it is
understood that Executive shall, during the first three months of employment
spend at least fifty percent of his time in Asia, then afterwards travel as the
Company may from time to time reasonably require. During Executive's employment,
Executive agrees to devote his full business time, energy and skill to his
duties at the Company. Executive will be responsible for those responsibilities
and duties as designated to the Executive by the Board of Directors or as
assigned to the Executive by the Board of Directors from time to time.
(b) Obligations to the Company. During the term of his employment,
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Executive shall devote his full business efforts and time to the Company;
provided, however, that this shall not preclude Executive from serving as a
member of the board of directors of up to three other companies to the extent
such other companies do not compete with the Company and to the extent such
service does not materially impact the ability of Executive to fulfill his
obligations to the Company. Executive shall comply with the Company's policies
and rules, as they may be in effect from time to time during the term of his
employment.
(c) No Conflicting Obligations. Executive represents and warrants to
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the Company that he is under no obligations or commitments, whether contractual
or otherwise, that are inconsistent with his obligations under this Agreement.
Executive represents and warrants that he will not use or disclose, in
connection with his employment by the Company, any trade secrets or other
proprietary information or intellectual property in which Executive or any other
person has any right, title or interest and that his employment by the Company
as contemplated by this Agreement will not infringe or violate the rights of any
other person or entity. Executive represents and warrants to the Company that he
has returned all property and confidential information belonging to any prior
employers.
(d) Commencement Date. The employment of Executive by the Company
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shall be governed by this agreement as of the date first written above (the
"Effective Date").
(e) Term of Employment.
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(i) Basic Rule. The Company agrees to continue Executive's
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employment, and Executive agrees to remain in employment with the Company, from
the Commencement Date set forth in Section 1(d) until the date when Executive's
employment
terminates pursuant to Subsection (ii) below (the "Employment Period").
Executive's employment with the Company shall be "at will," which means that
either Executive or the Company may terminate Executive's employment at any
time, for any reason, with or Without Cause. Any contrary representations, which
may have been made to Executive shall be superseded by this Agreement. This
Agreement shall constitute the full and complete agreement between Executive and
the Company of the "at will" nature of Executive's employment, which may only be
changed in an express written agreement signed by Executive and a duly
authorized officer of the Company.
(ii) Termination. The Company or Executive may terminate
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Executive's employment at any time for any reason (or no reason), and with
"Cause" or "Without Cause," by giving the other party five (5) days' notice in
writing. Executive's employment shall terminate automatically in the event of
his death.
2. Cash and Incentive Compensation.
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(a) Salary. The Company shall pay Executive as compensation for his
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services an annual base salary of US $225,000, less applicable deductions and
withholdings, payable in accordance with the Company's standard payroll
schedule. (The compensation specified in this Subsection (a), together with any
increases in such compensation that the Company may grant from time to time, are
referred to in this Agreement as "Base Salary.") Executive is entitled to
participate in any deferred compensation or other employee benefit plans,
including any profit sharing or 401(k) plans; group life, health,
hospitalization and disability insurance plans; and other employee welfare
benefits made available generally to, and under the same terms as, Company's
other executives.
(b) Bonus. Executive shall be entitled to receive a Bonus, in
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addition to his Base Salary, based on the financial and operational performance
of the Company and on his achievement of personal and Company milestones
mutually agreed upon by Executive and the Board of Directors within the first
sixty (60) days of each one year period. In the event that mutual agreement upon
the milestones cannot be reached within the sixty (60) day period in question,
the decision of the Board of Directors thereafter in establishing such
milestones will be final and conclusive. If Executive's employment terminates
due to death or Disability during any such one (1)-year period, then Executive,
or Executive's estate, will be paid the Bonus for such period.
(c) Stock Options. The unvested shares of Executive's stock options
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granted at various times, both prior to and subsequent to the date of this
Agreement (the "Options"), by the Company under the Company's 2000 Stock
Incentive Plan or any successor plan (the "Plan") shall continue to vest
pursuant to the Plan. In addition to the Options granted to date, Executive is
entitled as of January 1, 2002, subject to approval by the Board of Directors,
to receive an additional stock option grant at the lowest price available under
the terms of the Plan.
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(d) Effect of Termination.
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(i) Termination Following Change of Control. If, within one
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year following a "Change of Control," Executive resigns for "Good Reason" or the
Company terminates Executive's employment "Without Cause," then Executive shall
receive the immediate vesting of all shares represented by his then unvested
Options. Executive shall have ninety (90) days following such date of
termination in which to exercise all of the accelerated Options.
(ii) Termination Due to Death or Disability. If Executive's
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employment is terminated due to death or Disability, then Executive, or
Executive's estate, will receive: (A) Executive's Base Salary through the date
of termination; (B) payment for unused vacation earned through the date of
termination; and (C) immediate vesting of the unvested shares of the Options.
(iii) Definitions.
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(a) "Change of Control." For all purposes under this
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Agreement, "Change of Control" shall mean (i) a merger or consolidation in which
securities possessing at least fifty percent (50%) of the total combined voting
power of the Corporation's outstanding securities are issued or transferred to a
single person or entity different from the persons holding those securities
immediately prior to such transaction, or (ii) the sale, transfer or other
disposition of all or substantially all of the Corporation's assets in complete
liquidation or dissolution of the Corporation.
(b) "Good Reason." For all purposes under this
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Agreement, "Good Reason" for Executive's resignation will exist if he resigns
within ninety (90) days of either of the following events: (i) any reduction in
his Base Salary; (ii) any material reduction in his benefits; (iii) a change in
his position with the Company or a successor company which materially reduces
his duties or level of responsibility; or (iv) any requirement that he relocate
his place of employment by more than thirty-five (35) miles from his then
current office, provided such reduction, change or relocation is effected by the
Company without his written consent. A resignation by Executive under any other
circumstance or for any other reason will be a resignation without "Good
Reason."
(c) Termination for "Cause." For all purposes under this
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Agreement, a termination for "Cause" shall mean a good faith determination by
the Company's Board of Directors that Executive's employment be terminated for
any of the following reasons: (i) willful misconduct which materially damages
the Company; (ii) willful failure to attempt to substantially perform your
duties with the Company after a written demand for such performance is delivered
to Executive by the Board of Directors or by the CEO, which specifically
identifies the manner in which the Board of Directors or CEO believes Executive
has not substantially performed his duties, and which Executive does not remedy
within a reasonable period of time (not to be less than thirty (30) days) after
receipt of such demand; (iii) misappropriation of the assets of the Company; or
(iv) conviction of, or a plea of "guilty" or "no contest" to a felony under the
laws of the United States or any state thereof. A termination of
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Executive's employment in any other circumstance or for any other reason will be
a termination "Without Cause."
(d) "Disability." For all purposes under this Agreement,
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"Disability" means Executive's inability to carry out his material duties under
this Agreement for more than six (6) months in any twelve (12) consecutive month
period as a result of incapacity due to mental or physical illness or injury.
3. Vacation and Executive Benefits. During the term of his employment,
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Executive shall be eligible for paid vacation, in accordance with the Company's
standard policy for similarly situated employees, as it may be amended from time
to time. During the term of his employment, Executive shall be eligible to
participate in any employee benefit plans maintained by the Company for
similarly situated employees, subject in each case to the generally applicable
terms and conditions of the plan in question and to the determinations of any
person or committee administering such plan.
4. Business Expenses. During the term of his employment, Executive shall be
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authorized to incur necessary and reasonable travel and other business expenses
in connection with his duties hereunder. The Company shall reimburse Executive
for such expenses upon presentation of an itemized account and appropriate
supporting documentation, all in accordance with the Company's generally
applicable policies.
5. Non-Solicitation and Non-Disclosure.
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(a) Non-Solicitation. During the period commencing on the date of
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this Agreement and continuing until the first anniversary of the date when
Executive's employment terminates for any reason, Executive shall not directly
or indirectly, personally or through others, solicit or attempt to solicit (on
Executive's own behalf or on behalf of any other person or entity) for hire any
employee or consultant of the Company or any of the Company's affiliates.
(b) Non-Disclosure. As a condition of employment, Executive
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acknowledges that he has already executed a copy of the Company's standard
Proprietary Information and Inventions Agreement.
6. Legal Fees. Each of the Company and Executive shall be responsible for
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any attorneys' fees incurred in connection with negotiating and drafting this
Agreement.
7. Successors.
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(a) Company's Successors. This Agreement shall be binding upon any
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successor (whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially all of the
Company's business and/or assets. For all purposes under this Agreement, the
term "Company" shall include any successor to the Company's business and/or
assets which becomes bound by this Agreement.
(b) Executive's Successors. This Agreement and all rights of
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Executive hereunder shall inure to the benefit of, and be enforceable by,
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
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8. Indemnity. The Company will indemnify and provide a defense to
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Executive to the full extent permitted by law and its bylaws with respect to any
claims arising out of the performance of his duties as an employee, director or
officer of the Company. To the same extent, the Company will pay, and subject to
any legal limitations, advance all expenses, including reasonable attorney fees
and costs of court-approved settlements, actually and necessarily incurred by
Executive in connection with the defense of any action, suit or proceeding and
in connection with any appeal, which has been brought against Executive by
reason of his service as an officer, director or agent of the Company, or his
acceptance of this Agreement or the performance of his duties thereunder. The
Company shall use its best efforts to obtain coverage for Executive under a
liability insurance policy or policies that cover the actions of officers and
directors of the Company.
9. Arbitration. Any controversy between the parties hereto involving
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the construction or application of any terms, covenants or conditions of this
Agreement, or any claims arising out of or relating to this Agreement or the
breach thereof or with your employment with the Company or any termination of
that employment, will be submitted to and settled by final and binding
arbitration in Palo Alto, California, in accordance with the Model Employment
Dispute Resolution Rules of the American Arbitration Association (the "Rules"),
or any other applicable rules of the AAA then in effect. Any arbitrator shall be
selected pursuant to such Rules and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.
10. Miscellaneous Provisions.
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(a) Notice. Notices and all other communications contemplated
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by this Agreement shall be in writing and shall be deemed to have been duly
given when personally delivered or when mailed by overnight courier, U.S.
registered or certified mail, return receipt requested and postage prepaid.
Mailed notices shall be addressed to Executive at the home address which he most
recently communicated to the Company in writing. In the case of the Company,
mailed notices shall be addressed to its corporate headquarters, and all notices
shall be directed to the attention of its Secretary.
(b) Modifications and Waivers. No provision of this Agreement
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shall be modified, waived or discharged unless the modification, waiver or
discharge is agreed to in writing and signed by Executive and by an authorized
officer of the Company (other than Executive). No waiver by either party of any
breach of, or of compliance with, any condition or provision of this Agreement
by the other party shall be considered a waiver of any other condition or
provision or of the same condition or provision at another time.
(c) Whole Agreement. No other agreements, representations or
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understandings (whether oral or written) which are not expressly set forth in
this Agreement have been made or entered into by either party with respect to
the subject matter of this Agreement. This Agreement, the Proprietary
Information Agreement, and applicable stock option agreements and stock plans,
contain the entire understanding of the parties with respect to the subject
matter hereof.
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(d) Taxes. All payments made under this Agreement shall be subject
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to reduction to reflect taxes or other charges required to be withheld by law.
(e) Choice of Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by the laws of the State of
California (except provisions governing the choice of law).
(f) Severability. The invalidity or unenforceability of any
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provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
(g) No Assignment. This Agreement and all rights and obligations of
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Executive hereunder are personal to Executive and may not be transferred or
assigned by Executive at any time. The Company may assign its rights under this
Agreement to any entity that assumes the Company's obligations hereunder in
connection with any sale or transfer of all or a substantial portion of the
Company's assets to such entity.
(h) Insurance. The Company shall, to the extent permitted by law
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and to extent necessary to protect Executive, include Executive during the term
of this Agreement under any directors and officers liability insurance policy
maintained for its directors and officers. The coverage shall be at least as
favorable to Executive in amount and each other material respect as the coverage
of other directors and officers covered thereby. This obligation to provide
insurance for Executive shall survive expiration or termination of this
Agreement with respect to proceedings or threatened proceedings based on acts or
omissions of Executive occurring during Executive's employment with the Company
or with any affiliated company.
(i) Headings. The headings of the paragraphs contained in this
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Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of any provision of this Agreement.
(j) Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized officer, as of the day and year first
above written.
EXECUTIVE
/s/ Xxxxxxxx Xxxxxx
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Xxxxxxxx Xxxxxx
iAsiaWorks, Inc.
By: /s/ Xxxxxxx Xxxxxx
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Title: General Counsel and Secretary
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