Exhibit 10.18
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
as of this 16th day of July, 2001 (the "Effective Date"), by and between Xxxx X.
Xxxxx ("Employee") and Calico Commerce, Inc. ("Employer"). In consideration of
the covenants, representations and agreements set forth below, Employer and
Employee hereby agree as follows:
1. Employment of Employee. Employer hereby hires Employee pursuant to
the Agreement between Regent Pacific Management Corporation dated July 13, 2001
(the "Regent Agreement"), and Employee hereby accepts such employment on the
terms and conditions contained in this Agreement and the Regent Agreement.
2. Term of the Agreement. The initial term of this Agreement (the
"Term") shall commence upon the Effective Date and shall terminate 12 months
thereafter (the "Termination Date"), unless sooner terminated as provided
herein. Employer and Employee may, upon mutual agreement, elect to continue
Employee's employment on an at-will basis (meaning that either Employee or
Employer may terminate the employment relationship at any time with or without
cause or notice), after the initial term of this Agreement. If the term of the
Regent Agreement is extended in the future, the Termination Date of the
Agreement will automatically extend to coincide with the amended term of the
Regent Agreement, unless otherwise mutually agreed between Employer and
Employee.
3. Services to be Provided by Employee.
3.1 Scope, Responsibilities and Duties. Employee agrees to provide
services to Employer, generally in the field of corporate strategy, , so that
Employer may have the benefit of the experience and knowledge possessed by
Employee (the "Services"). It shall be the duty of Employee in rendering the
Services to make such periodic reports to Employer as the directors of Employer
may, from time to time, reasonably request.
3.2. Non-exclusivity. Employee shall not be required to devote full
time to the affairs of Employer. Subject to the provisions of Section 7 below,
Employee may accept other employment and perform services for others.
4. Compensation. Employee shall receive $500.00 per week in addition to
any compensation received from Regent Pacific Management Corporation, for the
Services to be provided hereunder..
5. Expenses. Employer shall reimburse Employee for all reasonable and
necessary business expenses pursuant to the Regent Agreement.
6. Termination. Termination pursuant to this Section shall become
effective immediately upon receipt by Employee of written notice from Employer
of such termination.
6.1 Termination by Incapacity or Disability of Employee. If Employee
shall become unable to fully perform the Services in accordance with the terms
of this Agreement due to incapacity, ill health or disability for a consecutive
period of two months, the Employer may, at its option, terminate this Agreement.
6.2 Death of Employee. Upon the death of Employee, this Agreement
shall terminate without further obligation or liability on the part of Employer
to Employee's estate.
6.3 Termination of Regent Agreement. Employee's employment shall
terminate upon termination of the Regent Agreement unless otherwise mutually
agreed between Employer and Employee.
6.4 Termination for Cause. Company may terminate Employee's
employment for "cause", which shall mean a reasonable belief that Employee has
engaged in any one of the following: (i) financial dishonesty, including,
without limitation, misappropriation of funds or property, or any attempt by
Employee to secure any personal profit related to the business or business
opportunities of the Company without the informed, written approval of the
Company's Board of Directors; (ii) refusal to comply with reasonable directives
of the Company's Board of Directors; (iii) negligence or reckless or willful
misconduct in the performance of Employee's duties; (iv) failure to perform, or
continuing neglect in the performance of, duties assigned to Employee; (v)
misconduct which has a materially adverse effect upon the Company's business or
reputation; (vi) the conviction of, or plea of nolo contendere to, any felony or
a misdemeanor involving dishonesty or fraud; (vii) the material breach of any
provision of this agreement; or (viii) violation of Company policies including,
without limitation, the Company's policies on equal employment opportunity and
prohibition of unlawful harassment.
7. Confidentiality and Trade Secrets. Employee acknowledges and agrees
that during the Term of this Agreement, and during any continuing term of
employment on at at-will basis he will become privy to important proprietary,
confidential business information and trade secrets that are the exclusive
property of Employer. This information includes, without limitation, business
plans, marketing concepts, designs, proposals, product information, financial
information, technology and costs, pricing information, customer lists, and key
accounts, including their credit information and product wants and needs (the
"Confidential Information"). This Confidential Information derives independent
economic value, both actual and potential, from not being generally known to the
public or to other persons who can obtain economic value from its disclosure and
use. As Employer has always held the Confidential Information as proprietary,
confidential trade secret information and has taken steps to insure that the
Confidential Information is not disclosed outside of Calico Commerce, Inc., the
Confidential Information constitutes "trade secrets" under the Uniform Trade
Secrets Act, California Civil Code Section 3426(d)(1). In light of the
foregoing, Employee therefore agrees that: (1) he will not at any time, now or
in the future, share, disseminate, disclose, discuss or use the Confidential
Information in any way; and (2) upon termination of this Agreement, Employee
will return to
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Employer all property, writings and/or documents in his possession or custody
belonging to or relating to the affairs of Employer or any of its subsidiaries
or affiliates, or comprising or relating to the Confidential Information.
8. Ownership of Intellectual Property. Employee hereby acknowledges and
agrees that any and all copyrightable works authored by Employee in connection
with the performance of the Services, alone or with others, during the Term of
this Agreement, and during any continuing term of employment on at at-will
basis, shall be deemed to have been specially ordered or commissioned for use as
either a contribution to a collective work, as a translation, as a supplementary
work, as a compilation, or as an instructional text and, as such, shall be
deemed to be "works for hire" under the United States copyright laws from the
inception of creation of such works. In the event that any such works shall be
deemed by a court of competent jurisdiction not to be a "work made for hire,"
this Agreement shall operate as an irrevocable assignment by Employee to
Employer of all right, title and interest in and to such works, including
without limitation, all worldwide copyright interests therein, in perpetuity.
The fact that such copyrightable works are created by Employee outside of
Employer's facilities or other than during Employee's working hours with
Employer, shall not diminish Employer's rights with respect to such works which
otherwise fall within this subsection. Employee agrees to execute and deliver to
Employer such further instruments or documents as may be requested by Employer
in order to effectuate the purposes of this subsection.
9. Relationship of the Parties. Employee shall not be entitled to any
vacation, retirement or health benefits or participation in any other employee
benefit plan.
10. Appointment as a Director. The Board of Directors of Employer (the
"Board") has resolved to appoint Employee as a Class I Director. In this
capacity, Employee will serve at the pleasure of the Board and pursuant to
Employer's bylaws.
11. Stock Options. Concurrently with the execution of this Agreement as
an inducement to Employee to accept employment with Employer, Employee and
Employer are executing and delivering an Option Certificate attached hereto as
Exhibit A and a Stock Option Agreement (the ("Option Agreement") attached hereto
as Exhibit B and incorporated herein by this reference, which grants to Employee
the option to purchase three million five hundred forty-eight thousand seven
hundred and seventy-seven (3,548,777) shares of the Common Stock of Employer at
an exercise price of $0.18. The remaining shares subject to this Option shall be
earned and vested in twelve equal monthly installments upon each month of
continued service by Employee to the Company after the Date of Grant and shall
become exercisable pursuant to the exercise schedule contained in Exhibit B.
Should Employee's employment be terminated for cause, the Options will terminate
immediately as to all unvested shares.
12. Arbitration.
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12.1 Any dispute regarding any aspect of this Agreement or any act
which would violate any provision in this Agreement (hereafter referred to as
"arbitrable disputes" shall be resolved by an experienced arbitrator licensed to
practice law in the State of California and selected in accordance with the
rules of the American Arbitration Association, as the exclusive remedy for such
dispute. Judgment on any award rendered by such arbitrator may be entered in any
court having proper jurisdiction.
12.2 Should Employee or Employer institute any legal action or
administrative proceeding regarding any dispute or matter covered by this
Section by any method other than said arbitration, the responding party shall be
entitled to recover from the other party all damages, costs, expenses and
attorney's fees incurred as a result of such action.
13. Severability and Governing Law.
13.1 Should any of the provisions in this Agreement be declared or
be determined to be illegal or invalid, all remaining parts, terms or provisions
shall be valid, and the illegal or invalid part, term or provision shall be
deemed not to be a part of this Agreement.
13.2 This Agreement is made and entered into in the State of
California and shall in all respects be interpreted, enforced and governed under
the laws of California.
14. Proper Construction.
14.1 The language of all parts of this Agreement shall in all cases
be construed as a whole according to its fair meaning, and not strictly for or
against any of the parties.
14.2 As used in this Agreement, the term "or" shall be deemed to
include the term "and/or" and the singular or plural number shall be deemed to
include the other whenever the context so indicates or requires.
14.3 The paragraph headings used in this Agreement are intended
solely for convenience of reference and shall not in any manner amplify, limit,
modify or otherwise be used in the interpretation of any of the provisions
hereof.
15. Entire Agreement. This Agreement is the entire agreement between
Employee and Employer and fully supersedes any and all prior agreements or
understandings between the parties pertaining to its subject matter.
16. Notices. All notices, requests, demands and other communications
called for or contemplated under this Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered, on the date of
transmission if sent by facsimile, on the third day after mailing if mailed to
the party to whom notice is to be given, by first class mail, postage prepaid,
and properly addressed as follows:
If to Employer: Calico Commerce, Inc.
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000 Xxx Xxxxxx Xxxxxx -- Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Chief Financial Officer
If to Employee: Xxxx X. Xxxxx
c/o Regent Pacific Management Corporation
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
17. Amendments. This Agreement may not be amended, supplemented,
canceled, or discharged except by written instrument executed by the parties
hereto.
18. Waivers. All waivers hereunder shall be in writing. No waiver by any
party hereto of any breach or anticipated breach of any provision of this
Agreement by any other party shall be deemed a waiver of any other
contemporaneous, preceding, or succeeding breach or anticipated breach, whether
or not similar, on the part of the same or any other party.
IN WITNESS WHEREOF, the parties hereto have hereby executed this
Agreement as of the day and year first written above.
CALICO COMMERCE, INC.
By: ____________________________
Xxxx X. Xxxxx Its:____________________________
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