Exhibit 10.4
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made as of the 16th
day of April, 2000, by and between Internet Commerce Corporation, a Delaware
corporation (the "Company"), and Xxxxxxx X'Xxxxxx ("Employee").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Employee is employed as Director of Electronic Commerce of
the Company under an employment agreement that expires in July, 2000; and
WHEREAS, the Company wishes to ensure that it will continue to have
the benefits of Employee's services on the terms and conditions hereinafter set
forth; and
WHEREAS, Employee desires to work for the Company on the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the parties hereto hereby agree as follows:
1. Employment; Term. The Company hereby employs Employee, and
Employee hereby accepts employment with the Company, in accordance with and
subject to the terms and conditions set forth herein. The term of this Agreement
shall commence on the date hereof (the "Effective Date") and, unless earlier
terminated in accordance with Paragraph 5 hereof, shall terminate on July 31,
2003 (the "Term").
2. Employment
(a) During the Term, Employee shall serve as Senior Vice
President-EC Network Services of the Company. Employee shall report to the Chief
Executive Officer of the Company.
(b) Employee shall have such authority and responsibility as
may reasonably be assigned by the Chief Executive Officer or the Board of
Directors of the Company in his or its discretion.
(c) During the period Employee is employed by the Company,
Employee shall devote full business time and best efforts to the business and
affairs of the Company, except as otherwise specifically permitted by the
Company.
3. Compensation
(a) The Company shall pay Employee a base salary (the "Base
Salary") of one hundred seventy-five thousand dollars ($175,000) per annum,
payable at least semi-monthly,
in accordance with the Company's payroll practices and subject to all legally
required or customary withholdings.
(b) The Employee may receive such bonus, if any, as may be
determined and awarded by the Board of Directors from time to time in its sole
discretion.
(c) The Employee shall be eligible to receive options to
purchase common stock of the Company under the Company's stock option plans on
such dates and in such amounts as may be determined and awarded by the Board of
Directors (or the appropriate committee thereof) from time to time in its sole
discretion.
4. Benefits
(a) The Company agrees to reimburse Employee for all
reasonable and necessary travel, business entertainment and other business
expenses incurred by Employee in connection with the performance of Employee's
duties under this Agreement. Such reimbursements shall be made by the Company
within a reasonable time after submission by Employee of vouchers in accordance
with the Company's standard procedures.
(b) Employee shall be entitled to participate in any and all
medical insurance, group health, disability insurance, pension and other benefit
plans which are made generally available by the Company to its senior
executives. The Company, in its sole discretion, may at any time amend or
terminate its benefit plans or programs.
(c) Employee shall be entitled to receive four weeks of annual
vacation in accordance with the Company's vacation policy for its senior
executives. Employee shall be entitled to all paid holidays the Company makes
available to its employees.
5. Termination. Employee's employment hereunder may be terminated
prior to the end of the Term under the following circumstances:
(a) Death. Employee's employment hereunder shall
terminate upon Employee's death.
(b) Total Disability. The Company may terminate Employee's
employment hereunder at any time after Employee becomes "Totally Disabled." For
purposes of this Agreement, Employee shall be "Totally Disabled" as of the
earlier of (i) the date Employee becomes entitled to receive disability benefits
under the Company's long-term disability plan, and (ii) Employee's inability to
perform the duties and responsibilities contemplated under this Agreement for a
period of more than 180 consecutive days due to physical or mental incapacity or
impairment. Such termination shall become effective five days after the Company
gives notice of such termination to Employee, or to Employee's spouse or legal
representative, in accordance with Paragraph 8 hereof.
(c) Termination by the Company for Cause. The Company may
terminate Employee's employment hereunder for Cause at any time after providing
written notice to Employee. For purposes of this Agreement, the term "Cause"
shall mean any of the following: (i) perpetration by Employee of an intentional
and knowing fraud against or affecting
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the Company or any customer of the Company or any of its affiliates; (ii) any
willful or intentional act by Employee that could reasonably be expected to
injure the reputation, business or business relationships of the Company or any
of its affiliates; (iii) conviction (including conviction on a nolo contendere
plea) of a felony or any crime involving, in the good faith judgment of the
Company, fraud, dishonesty or moral turpitude; (iv) the neglect or failure or
refusal of Employee to perform Employee's duties hereunder (other than as a
result of total or partial incapacity due to physical or mental illness); (v)
the breach of a covenant set forth in Paragraph 7 hereof; or (vi) any other
material breach of this Agreement; provided, however, that in the circumstances
described in clauses (iv) or (vi) of this Paragraph 5(c) Employee has failed to
cure such neglect, failure, refusal or breach within ten (10) days after notice
thereof.
6. Compensation Following Termination Prior to the End of the Term.
In the event that Employee's employment hereunder is terminated prior to the end
of the Term, Employee shall be entitled only to the following compensation and
benefits upon such termination:
(a) Termination by Reason of Death or Total Disability or by
the Company for Cause. In the event that Employee's employment is terminated
prior to the expiration of the Term by reason of Employee's death or Total
Disability or for Cause pursuant to Paragraph 5(a), 5(b) or 5(c) hereof,
respectively, the Company shall pay the following amounts to Employee (or
Employee's spouse or estate, as the case may be):
i. any accrued but unpaid Base Salary (as determined pursuant to
Paragraph 3(a) hereof) for services rendered to the date of
termination; and
ii. any accrued but unpaid expenses required to be reimbursed
pursuant to Paragraph 4(a) hereof.
The benefits to which Employee and/or Employee's family may be entitled upon
such termination pursuant to the plans, programs and arrangements referred to in
Paragraphs 4(b) and (c) hereof shall be determined and paid in accordance with
the terms of such plans, programs and arrangements.
(b) Termination by the Company Without Cause. In the
event that Employee's employment is terminated by the Company without Cause,
the Company shall pay the following amounts to Employee:
i. any accrued but unpaid Base Salary (as determined pursuant to
Paragraph 3(a) hereof) for services rendered to the date of
termination;
ii. any accrued but unpaid expenses required to be reimbursed
pursuant to Paragraph 4(a) hereof; and
iii. continued payment of the Base Salary (as determined under Paragraph
3(a) hereof) until the earlier of (x)one year after such
termination, and (y) the end of the Term. Such payments shall be
made in accordance with the Company's standard payroll practices
then in effect.
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The benefits to which Employee and/or Employee's family may be entitled upon
such termination pursuant to the plans, programs and arrangements referred to in
Paragraphs 4(b) and (c) hereof shall be determined and paid in accordance with
the terms of such plans, programs and arrangements.
(c) Termination by Employee. If Employee terminates employment
for any reason at any time before the expiration of the Term, the Company shall
pay the following amounts to Employee:
i. any accrued but unpaid Base Salary (as determined pursuant to
Paragraph 3(a) hereof) for services rendered to the date of
termination; and
ii. any accrued but unpaid expenses required to be reimbursed
pursuant to Paragraph 4(a) hereof.
The benefits to which Employee and/or his family may be entitled upon such
termination pursuant to the plans, programs and arrangements referred to in
Paragraphs 4(b) and (c) hereof shall be determined and paid in accordance with
the terms of such plans, programs and arrangements.
(d) No Other Benefits or Compensation. Except as may be
specifically provided under this Agreement or under the terms of any incentive
compensation, employee benefit or fringe benefit plan applicable to Employee at
the time of the termination of Employee's employment prior to the end of the
Term, Employee shall have no right to receive any other compensation, or to
participate in any other plan, arrangement or benefit, with respect to any
future period after such termination.
7. Noncompetition and Nonsolicitation; Nondisclosure of
Proprietary Information; Surrender of Records
(a) Noncompetition; Nonsolicitation.
(i) Employee acknowledges and recognizes the highly
competitive nature of the Company's business and that Employee's position with
the Company and access to and use of the Company's confidential records and
proprietary information renders Employee special and unique. In consideration of
the payment by the Company to Employee of amounts that may hereafter be paid to
Employee pursuant to this Agreement (including pursuant to Paragraph 3 hereof),
Employee agrees that (x) during the Term Employee will not, directly or
indirectly (as defined below), compete with any business the Company is then
conducting or which is then covered in a written proposal or business plan in
any place in which the Company does business at the time Employee seeks to
engage in such business, and (y) during the Covered Time (as defined below),
Employee will not, directly or indirectly, compete with any business the Company
is conducting at the end of the Term or which is covered at the end of the Term
in a written proposal or business plan in any place in which the Company does
business at the time Employee seeks to engage in such business; provided,
however, that the provisions of clause (y) of this Paragraph 7(a)(i) shall not
apply if the Employee's employment is terminated by the Company without Cause.
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(ii) In further consideration of the payment by the
Company to Employee of amounts that may hereafter be paid to Employee pursuant
to this Agreement (including pursuant to Paragraph 3 hereof), Employee agrees
that during the Term and during the Covered Time Employee shall not (a) directly
or indirectly solicit or attempt to solicit or participate in the solicitation
of or otherwise advise or encourage any employee, agent, consultant or
representative of, or vendor or supplier to, the Company or any such affiliate
to terminate his, her or its relationship with the Company or any such
affiliate; or (b) directly or indirectly solicit or attempt to solicit or
participate in the solicitation of or otherwise advise or encourage any
employee, agent, consultant or representative of the Company to become an
employee, agent, representative or consultant of or to any other individual or
entity.
(iii) During the Term and during the Covered Time,
Employee agrees that upon the earlier of Employee's (x) negotiating with any
Competitor (as defined below) concerning the possible employment of Employee by
the Competitor, (y) receiving an offer of employment from a Competitor, or (z)
becoming employed by a Competitor, Employee will immediately provide notice to
the Company of such circumstances and provide copies of this Paragraph 7 to the
Competitor. Employee further agrees that the Company may provide notice to a
Competitor of Employee's obligations under this Agreement, including, without
limitation, Employee's obligations pursuant to this Paragraph 7. For purposes of
this Agreement, "Competitor" shall mean (x) during the Term, any entity (other
than the Company or any of its affiliates) that then engages, directly or
indirectly, in any business which the Company is then conducting or which is
then covered in a written proposal or business plan in any place in which the
Company does business at the time Employee seeks to engage in such business, and
(y) during the Covered Period, any entity (other than the Company or any of its
affiliates) that then engages, directly or indirectly, in any business which the
Company is conducting at the end of the Term or which is covered at the end of
the Term in a written proposal or business plan in any place in which the
Company does business at the time Employee seeks to engage in such business.
(iv) Employee understands that the provisions of
this Paragraph 7(a) may limit Employee's ability to earn a livelihood in a
business similar to the business of the Company but nevertheless agrees and
hereby acknowledges that the consideration provided under this
Agreement(including pursuant to Paragraph 3 hereof) are sufficient to justify
the restrictions contained in such provisions. In consideration thereof and in
light of Employee's education, skills and abilities, Employee agrees that
Employee will not assert in any forum that such provisions prevent Employee from
earning a living or otherwise are void or unenforceable or should be held void
or unenforceable; provided, however, that no provision of this Paragraph 7(a)
shall prohibit Employee from merely owning up to five (5%) of the outstanding
capital stock of any corporation that is actively traded in any national
securities market.
(v) For purposes of any provision of Paragraph 7
hereof, (x) "Covered Time" shall mean the greater of (i) twelve (12) months
following the termination or expiration of this Agreement, and (ii) the period
during which the Company is obligated to pay severance under Paragraph 6(b)(iii)
hereof, and (y) "directly or indirectly" means in Employee's individual capacity
for his own benefit or as a shareholder, partner, member or other principal,
officer, director, employee, agent or consultant of or to any individual,
corporation, partnership, limited liability company, business trust, association
or any other business entity whatsoever.
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(b) Proprietary Information. Employee acknowledges that during
the course of Employee's employment with the Company Employee will necessarily
have access to and make use of proprietary information and confidential records
(as those terms are defined below) of the Company and its affiliates. Employee
covenants that Employee shall not during the Term or at any time thereafter,
directly or indirectly, use for Employee's own purpose or for the benefit of any
individual or entity other than the Company and its affiliates, nor otherwise
disclose to any individual or entity, any proprietary information of which
Employee has knowledge, unless such disclosure has been authorized in writing by
the Company or such affiliates or is required by law. Employee acknowledges and
understands that the term "proprietary information" includes, but is not limited
to: (a) all ideas, inventions, know-how, technology, formulas, designs,
software, programs, algorithms, products, systems, applications, processes,
procedures, methods and improvements and enhancements, and all related
documentation, whether or not patentable, copyrightable or entitled to other
forms of protection, utilized by the Company or its affiliates or which are,
directly or indirectly, related to the business, products or services, or
proposed business, products or services, of the Company or its affiliates; (b)
the name and/or address of any customer or vendor of the Company or its
affiliates or any information concerning the transactions or relations of any
customer or vendor of the Company or its affiliates with the Company or any of
its stockholders, principals, directors, officers, employees or agents; (c) any
financial information relating to the Company and its business, including,
without limitation, information relating to pricing or marketing methods, sales
margins, cost or source of materials, supplies or goods, capital structure,
operating results or borrowing arrangements; (d) any information which is
generally regarded as confidential or proprietary in any line of business
engaged in by the Company or its affiliates; (e) any business plans, budgets,
advertising or marketing plans; (f) any information contained in any of the
written or oral policies and procedures or manuals of the Company or its
affiliates; (g) any information belonging to customers, vendors or affiliates of
the Company or its affiliates or any other individual or entity which the
Company or its affiliates has agreed to hold in confidence; and (h) all written,
graphic and other material (in any medium whether in writing, on magnetic tape
or in electronic or other form) relating to any of the foregoing. Employee
acknowledges and understands that information that is not novel or is not
copyrighted, trademarked or patented, or eligible for such or any other
protection, may nonetheless be proprietary information. The term "proprietary
information" shall not include information generally available to and known by
the public or information that is or becomes available to Employee on a
non-confidential basis from a source other than the Company (or any of its
affiliates) or the Company's stockholders, directors, officers, employees or
agents (other than as a result of a breach of any obligation of
confidentiality).
(c) Confidentiality and Surrender of Records. Employee shall
not during the Term or at any time thereafter (irrespective of the circumstances
under which Employee's employment by the Company terminates), except as required
by law or as is necessary for the performance of Employee's duties under this
Agreement, directly or indirectly, publish, make known or in any manner disclose
any confidential records to, or permit any inspection or copying of confidential
records by, any individual or entity. Employee shall not retain, and will
deliver promptly to the Company, all copies of any of the same following
termination of Employee's employment hereunder for any reason or upon request by
the Company. For purposes of this Paragraph 7, "confidential records" means,
without limitation, all correspondence, memoranda, files, manuals, books, lists,
financial, operating or marketing
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records and customer and vendor records relating to or containing any
proprietary information (in any medium whether in writing, on magnetic tape or
in electronic or other form) or equipment of any kind which may be in Employee's
possession or under Employee's control or accessible to Employee. All
confidential records shall be and remain the sole and exclusive property of the
Company during the Term and thereafter.
(d) No Other Obligations. Employee represents that Employee is
not precluded or limited in Employee's ability to undertake or perform the
duties described herein by any contract, agreement or restrictive covenant.
Employee covenants that Employee shall not employ the trade secrets or
proprietary information of any other individual or entity in connection with
Employee's employment by the Company.
(e) Confidentiality. Other than disclosing this Paragraph 7 to
a Competitor under Paragraph 7(a)(iii), Employee agrees to keep confidential the
terms of this Agreement. This provision does not prohibit Employee from
providing this information on a confidential and privileged basis to Employee's
attorneys or accountants for purposes of obtaining legal or tax advice or as
otherwise required by law. The Company shall not disclose the terms of this
Agreement except as necessary in the ordinary course of its business or as
required by law.
(f) Developments the Property of the Company. All discoveries,
inventions, ideas, technology, formulas, designs, software, programs,
algorithms, products, systems, applications, processes, procedures, methods and
improvements and enhancements conceived, developed or otherwise made or created
or otherwise produced by Employee at any time, alone or with others, and in any
way relating to the present or proposed business, products or services of the
Company or its affiliates, whether or not subject to patent, copyright or other
protection and whether or not reduced to tangible form, during the period of
Employee's employment with the Company ("Developments"), shall be the sole and
exclusive property of the Company. Employee agrees to, and hereby does, assign
to the Company, without any further consideration, all Employee's right, title
and interest throughout the world in and to all Developments. Employee agrees
that all such Developments that are copyrightable may constitute works made for
hire under the copyright laws of the United States and, as such, acknowledges
that the Company is the author of such Developments and owns all of the rights
comprised in the copyright of such Developments and Employee hereby assigns to
the Company without any further consideration all of the rights comprised in the
copyright and other proprietary rights Employee may have in any such Development
to the extent that it might not be considered a work made for hire. There shall
be excluded from this paragraph 7(f) any Development produced by Employee (a)
which is developed by Employee without the use of the Company's property or
facilities, (b) which does not make use of any proprietary information or
confidential records of the Company or any of its affiliates, and (c) which does
not relate to the present or proposed business, products or services of the
Company or its affiliates or to the ongoing or planned product development
efforts of the Company or its affiliates. Employee shall make and maintain
adequate and current written records of all Developments and shall disclose all
Developments promptly, fully and in writing to the Company promptly after
development of the same, and at any time upon request; provided, however, that
Developments excluded under the preceding sentence shall be received by the
Company in confidence.
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(g) Enforcement. Employee acknowledges and agrees that, by
virtue of Employee's position with the Company, the services to be rendered by
Employee to the Company under this Agreement and Employee's access to and use of
confidential records and proprietary information, any violation by Employee of
any of the undertakings contained in this Paragraph 7 would cause the Company or
its affiliates immediate, substantial and irreparable injury for which it has no
adequate remedy at law. Accordingly, Employee agrees that in the event of a
breach or threatened breach by Employee of any said undertakings, the Company
will be entitled to temporary and permanent injunctive relief in any court of
competent jurisdiction (without the need to post bond and without proving that
damages would be inadequate). The rights and remedies provided for in this
Paragraph 7 are cumulative and shall be in addition to rights and remedies
otherwise available to the parties hereunder or under any other agreement or
applicable law.
8. Notices. Any notice, consent, request or other communication made
or given in accordance with this Agreement shall be in writing and shall be
deemed to have been duly given when actually received or, if mailed, three days
after mailing by registered or certified mail, return receipt requested, to
those person's listed below at their following respective addresses or at such
other address or person's attention as each may specify by notice to the others:
To the Company:
Internet Commerce Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
To Employee:
Xxxxxxx X'Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
9. Assignability; Binding Effect. This Agreement is a personal
contract calling for the provision of unique services by Employee, and
Employee's rights and obligations hereunder may not be sold, transferred,
assigned, pledged or hypothecated. In the event of any attempted assignment or
transfer of rights hereunder by Employee contrary to the provisions hereof
(other than as may be required by law), the Company will have no further
liability for payments hereunder. The rights and obligations of the Company
hereunder will be binding upon and run in favor of the successors and assigns of
the Company. This Agreement does not create, and shall not be interpreted or
construed to create, any rights enforceable by any person not a party to this
Agreement, except as specifically provided in Paragraph 6 hereof.
10. Complete Understanding; Amendment; Waiver. This Agreement
constitutes the complete understanding between the parties with respect to the
employment of Employee and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof, and no statement, representation,
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warranty or covenant has been made by either party with respect thereto except
as expressly set forth herein. All prior employment, consulting or other
agreements between the Company and Employee (or any of Employee's controlled
affiliates) with respect to the performance of any services by Employee (or such
controlled affiliates) to the Company or any of its affiliates or the payment of
any royalties, license fees or other similar fees to Employee, are hereby
terminated. This Agreement shall not be altered, modified, amended or terminated
except by a written instrument signed by each of the parties hereto. Any waiver
of any term or provision hereof, or of the application of any such term or
provision to any circumstances, shall be in writing signed by the party charged
with giving such waiver. Waiver by either party hereto of any breach hereunder
by the other party shall not operate as a waiver of any other breach, whether
similar to or different from the breach waived. No delay on the part of the
Company or Employee in the exercise of any of their respective rights or
remedies shall operate as a waiver thereof, and no single or partial exercise by
the Company or Employee of any such right or remedy shall preclude other or
further exercise thereof.
11. Severability. If any provision of this Agreement or the
application of any such provision to any party or circumstances shall be
determined by any court of competent jurisdiction to be invalid or unenforceable
to any extent, the remainder of this Agreement, or the application of such
provision to such person or circumstances other than those to which it is so
determined to be invalid or unenforceable, shall not be affected thereby, and
each provision hereof shall be enforced to the fullest extent permitted by law.
To the extent that a court of competent jurisdiction determines that Employee
breached any undertaking in Paragraph 7 hereof, the Company's obligations to
make payments hereunder shall immediately cease, provided that the Company shall
be liable for such payments in the event that the determination of such court is
overturned or reversed by any higher court. If the final judgment of a court of
competent jurisdiction declares that any provision of this Agreement, including,
without limitation, any provision of Paragraph 7 hereof, is invalid or
unenforceable, the parties hereto agree that the court making the determination
of invalidity or unenforceability shall have the power, and is hereby directed,
to reduce the scope, duration or area of the provision, to delete specific words
or phrases and to replace any invalid or unenforceable provision with a
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable provision, and this Agreement shall be
enforceable as so modified.
12. Survivability. The provisions of this Agreement which by
their terms call for performance subsequent to termination of Employee's
employment hereunder, or of this Agreement, shall so survive such termination.
13. Governing Law; Consent to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be wholly performed within that State,
without regard to its conflict of laws provisions. Any action to enforce this
Agreement must be brought in a court situated in the City of New York and the
parties hereby consent to the jurisdiction of courts situated in New York
County. Each party hereby waives the right to claim that any such court is an
inconvenient forum for the resolution of any such action.
14. Counterparts. This Agreement may be executed in two
counterparts, and by different parties hereto in separate counterparts, each
of which when executed shall be
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deemed to be an original but all of which taken together shall constitute one
and the same agreement.
15. Titles and Captions. All paragraph titles or captions in
this Agreement are for convenience only and in no way define, limit, extend
or describe the scope or intent of any provision hereof.
16. Jury Trial Waiver. The parties expressly and knowingly
waive any right to a jury trial in the event any action arising under or in
connection with this Agreement or Employee's employment with the Company is
litigated or heard in any court.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, each of the parties hereto has duly executed
this Agreement as of the date first above written.
INTERNET COMMERCE CORPORATION
By: /s/ X.X. Xxxxxx
---------------------------------
Name: X.X. Xxxxxx
Title: Chairman of the Board
EMPLOYEE
/s/ Xxxxxxx X'Xxxxxx
-----------------------------------
Xxxxxxx X'Xxxxxx
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