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EXHIBIT 10.10
SPYGLASS, INC.
EMPLOYMENT AND CONFIDENTIALITY AGREEMENT
In consideration of employment by Spyglass, Inc. (the "Company") of the
undersigned employee ("Employee"), it is understood and agreed as follows:
1. EMPLOYMENT. The Company hereby employs the Employee as PRESIDENT and
CHIEF OPERATING OFFICER, and the Employee hereby accepts employment
from the Company upon the terms and conditions set forth in this
Agreement.
2. COMPENSATION. For all services rendered by the Employee under this
agreement, the Company shall pay the Employee the compensation
determined from time to time by the Company's Board of Directors,
payable, net of payroll deductions, in 24 equal installments per year
on the 15th day and the last day of each month during the term of this
agreement. Employee's initial gross salary, until redetermined by the
Company's Board of Directors, shall be Twenty Thousand Dollars
($20,000.00) per month. The employee will also be eligible to earn up
to an additional 50% of salary in performance based cash bonuses
determined each year by the Compensation Committee.
3. FRINGE BENEFITS. In addition to the compensation described in paragraph
2 above, Employee shall be entitled to benefits, such as paid time off,
health and dental insurance, retirement benefits, and other benefits
generally provided employees of the Company from time to time, if any
4. INCENTIVE STOCK OPTIONS/RESTRICTED STOCK. (a) In addition to the
compensation set forth in paragraph 2 above, the Company shall issue to
Employee 150,000 Incentive Stock Options at the standard ISO vesting
schedule with an option price equal to the market price on the date of
the grant (these will be issued within 90 days of employment). In
addition, the company will issue the employee 50,000 shares of
Restricted Stock priced at $.01/SHARE. These have a four year vesting
schedule (25%/yr.), but the vesting rights can be accelerated (to 100%
vesting) if the company achieves $100 MILLION in annual revenues and
$18 MILLION in operating profits in a fiscal year during or before FY
2002.
(i) Voluntary Termination. If Employee voluntarily
terminates, vesting will stop on the date of
termination.
(ii) Termination for Cause. If the Company terminates
Employee for cause, the employee will stop vesting on
the termination date:
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(iii) Termination Without Cause. If the Company terminates
Employee without cause the employee will forward vest
one additional year from the termination date.
(iv) Definition of Cause. For purposes of this Agreement,
any one or more of the following acts or omissions by
Employee shall constitute "cause" for termination: a)
conflict of interest, b) unethical or illegal
activity, c) gross negligence in the performance of
or repeated failure to perform his duties as Chief
Operating Officer of the Company. The Board of
Directors of the Company shall have the sole
authority to determine "cause" hereunder.
5. SEVERANCE PAY. If Employee is terminated without cause, the Company
shall pay Employee, as severance pay, twelve months salary and benefits
(based upon the employee's most recent twelve months salary). The
employee would not be eligible for any cash performance bonuses during
the twelve month period following termination.
6. EMPLOYEE WORK STANDARDS. Employee will (a) serve the Company (and such
of its subsidiary or parent companies as the Company may designate)
faithfully, diligently and to the best of Employee's ability under the
direction of the Board of Directors of the Company, (b) in the course
of employment, devote his best efforts and substantially all of his
time, attention and energy to the performance of his duties to the
Company and (c) not do anything inconsistent with Employee's duties to
the Company.
7. CONFIDENTIAL INFORMATIONS OF OTHERS. Employee agrees that in the course
of employment with the Company he or she will not use, disclose to the
Company, or induce the Company to use, any confidential information or
documents belonging to others.
8. LIST OF PRIOR INVENTIONS. All inventions which Employee has made prior
to employment by the Company are excluded from the scope of this
Agreement. As a matter of record, Employee has set forth on Exhibit A
hereto a complete list of inventions, discoveries, or improvements
which might relate to the Company's business and which have been made
by Employee prior to employment with the Company. Employee represents
that such list is complete.
9. CONFIDENTIAL INFORMATION OF THE COMPANY. As used in this Agreement,
the term "Confidential Information" means any and all confidential,
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proprietary or secret information, including that conceived or
developed by Employee, applicable to or in any way related to (i) the
present or future business of the Company, (ii) the research and
development of the Company, or (iii) the business of any customer or
vendor of the Company. Such Confidential Information of the Company
includes, by way of example and without limitation, trade secrets,
formulas, data, program documentation, algorithms, source codes, object
codes, improvements, inventions, techniques, all plans or strategies
for marketing, development and pricing, and all information concerning
existing or potential customers or vendors. Confidential Information of
the Company also includes all similar information disclosed to the
Company by other persons.
10. PROTECTION OF THE COMPANY'S CONFIDENTIAL INFORMATION. Employee
acknowledges that the Confidential Information of the Company is a
special, valuable, and unique asset of the Company, and Employee agrees
at all times during the period of his or her employment, and for a
period of three (3) years after termination of such employment, not to
disclose for any purpose and to keep in strict confidence and trust all
of such Confidential Information. Employee agrees during and for the
three (3) year period after the period of such employment not to use,
directly or indirectly, any Confidential Information other than in the
course of performing duties as an employee of the Company, nor will
Employee directly or indirectly disclose any Confidential Information
or anything relating to it to any person or entity except, with the
Company's consent, as may be necessary to the performance of Employee's
duties as an employee of the Company. Employee will abide by Company
policies and rules established from time to time by it for the
protection of its Confidential Information.
11. RETURN OF MATERIALS. Upon termination of employment with the Company,
and regardless of the reason for such termination, Employee will leave
with, or promptly return to, the Company all documents, records,
notebooks, magnetic tapes, disks or other materials, including all
copies, in his or her possession or control which contain Confidential
Information of the Company or any other information concerning the
Company, its products, services or customers, whether prepared by the
Employee or others.
12. INVENTIONS AS SOLE PROPERTY OF THE COMPANY. Any inventions,
discoveries, concepts or ideas, or expressions thereof, whether or not
subject to patents, copyrights, trademarks or service xxxx protections,
and whether or not reduced to practice, conceived or developed by
Employee while employed with the Company which relate to or result from
the actual or anticipated business, work, research or investigation of
the Company shall be the sole and exclusive property of the Company.
Employee will do all things reasonably requested by the Company to
assign to and vest in the Company the
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entire right, title and interest to any such inventions, discoveries,
concepts, ideas or expressions thereof.
Notwithstanding the foregoing, the provisions of this
agreement do not apply to an invention for which no equipment,
supplies, facility, or Confidential Information of the Company
was used and which was developed entirely on the Employee's
own time, unless (a) the invention relates (I) to the business
of the Company, or (ii) to the Company's actual or
demonstrably anticipated research or development, or (b) the
invention results from any work performed by the Employee for
the Company.
13. OUTSIDE EMPLOYMENT. Employee agrees that during the period of his or
her employment, Employee will not, without the Company's prior written
approval, directly or indirectly engage in any outside employment
activity relating to any line of business in which the Company is
engaged, or which would otherwise conflict with or adversely affect in
any way Employee's performance of his or her employment obligation to
the Company.
14. COVENANT NOT TO COMPETE FOR TWO YEARS. Employee agrees that at all
times during the period of his or her employment and for a period of
two years following termination of employment, Employee will not,
without the Company's prior written approval, directly or indirectly
engage in any business activities individually, or as a partner,
stockholder, or employee, which are competitive with the business
activities of the Company or those of its subsidiary or parent
companies. In addition, Employee will not solicit, call on, or induce
others to solicit or call on, directly or indirectly, any customers or
prospective customers of the Company for the purpose of inducing them
to purchase or lease a product or service which may compete with any
product or service of the Company.
15. IDENTIFICATION OF SUBSEQUENT EMPLOYMENT. Employee agrees that for a
period of two years following termination of employment, Employee, upon
request of the Company, will identify in writing within seven days of
the request, the nature of Employee's actual or planned business
activities, including the name and address of any intended or actual
employer.
16. WAIVER OF COVENANT NOT TO COMPETE. The Company agrees that upon
receipt of written notice from Employee pursuant to Paragraph 13 above
it will, in good faith, consider a waiver of the covenant not to
compete set forth in Paragraph 12 above. A condition of a waiver of the
covenant not to compete shall be that the Company obtains complete and
continuing assurance, satisfactory to it, that the company's
Confidential Information will in all respects be fully protected.
Notwithstanding any waiver that may be granted by the Company, the
Company reserves all rights under this Agreement for the protection of
its Confidential
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Information. This includes the right to enforce the covenant not to
compete if the Company has reason to believe that Employee has
breached, or will breach, the obligations under this Agreement not to
use or disclose the Company's Confidential Information.
17. NON-SOLICITATION OF COMPANY'S EMPLOYEES. Employee agrees that during
his or her employment with Company, and for a period of two years
following termination of such employment, with or without cause,
Employee will not, directly or indirectly, hire any current or future
employee of the Company, or hsolicit or induce, or attempt to solicit
or induce, any current or future employee of the Company to leave the
Company for any reason.
18. INJUNCTION. Employee acknowledges that irreparable harm will be
suffered by the Company in the event of the breach by Employee of any
of his or her obligations under this Agreement, and that the Company
will be entitled, in addition to its other rights, to enforce such
obligations by an injunction or decree of specific performance from a
court having proper jurisdiction.
Any claims asserted by Employee against the Company shall not
constitute a defense in any injunction action brought by the Company to
obtain specific enforcement of this Agreement.
19. LAWS; OTHER AGREEMENTS. Employee represents that Employee's employment
by the Company will not violate any law or duty by which he or she is
bound, and will not conflict with or violate any agreement or
instrument to which Employee is a party or by which he or she is bound.
20. AUTHORIZATION TO MODIFY RESTRICTIONS. Employee acknowledges that the
restrictions contained in this Agreement are reasonable, but agrees
that if a court having proper jurisdiction holds a particular
restriction unreasonable, that restriction shall be modified to the
extent necessary in the opinion of such court to make it reasonable,
and that the remaining provisions of this agreement shall nonetheless
remain in full force and effect.
21. NO DURATION OF EMPLOYMENT. The Company and Employee each acknowledge
and agree that Employee's employment with the Company is not for any
duration and that such employment may be terminated by either the
Company or Employee at any time and for any reason, with or without
cause.
22. GENERAL.
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a. If the Company is successful in a suit or proceeding to enforce
this Agreement, Employee will pay the Company's costs of bringing
such suit or proceeding, including reasonable attorneys' fees.
b. Any notice required or permitted to be given under this Agreement
shall be made either
(i) by personal delivery to Employee or, in the case of
the Company, to the Company's principal office
("Principal Office") located at 0000 Xxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
(ii) in writing and sent by registered mail, postage
prepaid, to Employee's residence or, in the case of
the Company, to the Company's Principal Office.
c. This Agreement shall be binding upon Employee and his or her
heirs, executors, assigns, and administrators and shall inure to
the benefit of the Company, its successors and assigns and any
subsidiary or parent of the Company.
d. This Agreement shall be governed by and construed in accordance
with the laws of the State of Illinois.
e. This Agreement represents the entire agreement between Employee
and the Company and supersedes any and all previous oral or
written communications, representations or agreements. This
Agreement may be modified only by a duly authorized and executed
writing.
EMPLOYEE: OFFICER:
By:/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Printed Name Xxxxxx X. Xxxxx Printed Name: Xxxxxxx X. Xxxxxxx
Title: President and COO Title: Chief Executive Officer
Date: 8-24-99 Date: 8-17-99
CAUTION TO EMPLOYEE: This Agreement affects important rights. DO
NOT sign it unless you have read it carefully and are satisfied
that you understand it completely.
