EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of November 24,
2000 by and between Corillian Corporation, an Oregon corporation, and its
affiliates, divisions and subsidiaries (collectively, "EMPLOYER"), and Xxxxx X.
Xxxxxxx ("EXECUTIVE").
WITNESSETH:
WHEREAS, Employer desires to obtain the benefit of service by
Executive, and Executive desires to render services to Employer;
WHEREAS, the Board of Directors of Employer (the "BOARD") has
determined that because of Executive's substantial experience and business
relationships in connection with the business of Xxxxxxx Associates, Inc., a
California corporation and subsidiary of Employer ("XXXXXXX"), it is in the
Employer's best interest and that of its shareholders to secure the services of
Executive and to provide Executive certain additional benefits;
WHEREAS, in connection with Employer's purchase of all
outstanding capital stock of Xxxxxxx, including shares of capital stock held by
Executive and his affiliates, Employer agreed to enter into this Agreement with
Executive; and
WHEREAS, Employer and Executive desire to set forth in this
Agreement the terms and conditions of Executive's employment with Employer.
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained, the parties agree as follows:
1. EXECUTIVE REPRESENTATION. Executive represents and warrants that he
has the capacity to enter into this Agreement and that this Agreement will not
conflict with or result in a default under any other agreement binding on
Executive.
2. TITLE; DUTIES AND RESPONSIBILITIES. Employer and Executive agree
that, subject to the provisions of this Agreement, Employer will employ
Executive and Executive will serve Employer as Senior Vice President of Employer
and President of Xxxxxxx for the duration of this Agreement. Executive will
report to Employer's Chief Operating Officer. Executive agrees to observe and
comply with the written rules and regulations of Employer respecting the
performance of Executive's duties and agrees to carry out and perform orders,
directions and policies of Employer and its Board as they may be, from time to
time, stated either orally or in writing to Executive. Except as specifically
provided otherwise in this Agreement, Executive shall comply with all of the
policies and procedures adopted by Employer (as the same may be amended from
time to time by Employer) and available or disclosed to Executive. During the
term of this Agreement, Executive shall also serve on Employer's Advisory Board.
3. TERM. Employer agrees to employ Executive and Executive agrees to
serve Employer, in accordance with the terms of this Agreement, commencing on
the date hereof and continuing until the second anniversary of this Agreement
(the "Term"), unless this Agreement is earlier terminated in accordance with the
provisions of this Agreement.
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4. SERVICES AND EXCLUSIVITY OF SERVICES. During the Term, Executive
shall (i) devote his full business time, energy and ability exclusively to the
business, affairs and interests of Employer, and matters related thereto, (ii)
use Executive's best efforts and abilities to promote Employer's interests, and
(iii) perform the services contemplated by this Agreement in accordance with
policies established by Employer and under the direction of Employer's Chief
Operating Officer and Chief Executive Officer and the Board.
Without the prior express written authorization of the Board,
Executive shall not, directly or indirectly, during the term of this Agreement:
(a) render services to any other person or firm for compensation or (b) engage
in any activity competitive with or adverse to Employer's Business (as defined
below), whether alone, as a partner, or as an officer, director, employee or
significant investor of or in any other entity. (An investment of greater than
5% of the outstanding capital or equity securities of an entity shall be deemed
significant for these purposes.) "Business" shall mean the development,
marketing and sale of solutions to enable companies to offer electronic
financial services (including, without limitation, through the Internet, mobile
phones, PDA's or interactive television) and the provision of professional
services to implement, install and customize such solutions.
Executive may serve as a director or in any other capacity of
any business enterprise or any nonprofit or governmental entity or trade
association, whose activities involve or relate to the Business, provided in
each case that such service is expressly approved by the Board or Employer's
Chief Operating Officer and does not interfere with Executive's duties
hereunder.
Executive may make and manage personal business investments of
his choice and serve in any capacity with any civic, educational or charitable
organization without seeking or obtaining approval by the Board or Employer's
Chief Operating Officer, provided that such activities and services do not
substantially interfere or conflict with the performance of duties hereunder or
create any conflict of interest with such duties. An investment that exceeds 5%
of the equity securities or capitalization of a competitor, supplier or customer
of Employer shall be deemed to constitute such a conflict. Executive shall not
serve in any of such capacities for any business enterprise unless such service
is expressly authorized by the Board or Employer's Chief Operating Officer in
advance.
Executive represents to Employer that Executive has no other
outstanding commitments inconsistent with any of the terms of this Agreement or
the services to be rendered hereunder.
5. COMPENSATION.
5.1 BASE COMPENSATION. During the Term, Employer agrees to pay
Executive, in accordance with Employer's applicable payroll policies in effect
from time to time during the Term, a base salary at the rate of $250,000 per
year (the "Base Salary").
5.2 ADDITIONAL BENEFITS. Executive shall also be entitled to
all rights and benefits for which Executive is otherwise eligible under any
bonus plan, incentive, participation or extra compensation plan, pension plan,
profit-sharing plan, life, medical, dental, disability, or
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insurance plan or policy or other plan or benefit, as from time to time in
effect, during the term of this Agreement that Employer may provide for
Executive or (provided Executive is eligible to participate therein) for
other employees of Employer with comparable positions and responsibilities
generally, including other Senior Vice Presidents (collectively, the
"Additional Benefits"). Notwithstanding the foregoing, Employer may, but will
not be obligated to, grant Executive stock options or other equity
compensation at its discretion. Executive will be entitled to participate in
the same bonus plan as other senior managers of Employer, which currently
consists of a targeted bonus of 20% of annual base salary and is dependent on
the achievement of certain corporate and personal objectives. In addition,
during the term of this Agreement, Employer will loan Executive annually the
sum necessary to timely pay the premiums on Executive's existing Split Dollar
Life Insurance Policies (the "Policies") and on which Xxxxxxx previously paid
the premiums, but in no event shall the premiums exceed $50,000 annually.
Executive will pay Employer interest on any amounts loaned pursuant to the
preceding sentence (the "Loans") quarterly in arrears at a per annum interest
rate equal to the Prime rate, as published in the Money Rate section of The
Wall Street Journal. The Loans will mature on the date six months following
Executive's termination of employment with Employer, and Executive will
assign any proceeds received under the insurance policies to Employer as
collateral for the principal and interest due under the Loans. Employer will
first seek to recover any outstanding principal and interest under the Loans
by collecting the cash value of its interest in the Policies and then by
proceeding against Executive personally. Executive agrees to execute such
documentation as Employer may reasonably request to evidence the foregoing
agreements regarding the Loans to Executive. If the Loans (together with
accrued but unpaid interest) shall be repaid to Employer, then Employer shall
promptly release its collateral assignment. If the proceeds of the Policies
become payable by reason of Executive's death, Employer shall have the right
to receive the proceeds of the Policies in an amount equal to the outstanding
principal and interest under the Loans less any amounts borrowed by Employer
under the Policies. The balance, if any, of the proceeds of the Policies
shall be paid directly by the insurer to the beneficiary designated by
Executive.
5.3 PERIODIC REVIEW/ADJUSTMENT. Employer's Chief Operating
Officer, in conjunction with Employer's Chief Financial Officer, shall review
Executive's Base Salary and Additional Benefits then being paid to him not less
frequently than every twelve months in the light of additional or reduced
responsibilities, if any, which may have been assigned or assumed, the results
of operations and prospects of Employer, and current salaries and benefits then
being paid to other persons. Following such review, Employer may increase (but
shall not be required to increase) the salary or any other benefits, but may not
decrease the salary from the then existing level.
5.4 PERQUISITES. Executive shall be entitled to 6 weeks
(inclusive of statutory holidays) of paid vacation each twelve-month period,
which shall accrue on a pro rata basis from the date employment commences under
this Agreement. Vacation may be taken at such time during each year as may be
mutually agreed upon by Executive and Employer. At no time may Executive accrue
more than 8 weeks of vacation.
5.5 OVERALL QUALIFICATION. Subject to the terms of any written
benefit plans, Employer reserves the right to modify, suspend or discontinue any
and all of the above referenced benefit plans, practices, policies and programs
at any time (whether before or after
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termination of employment) without notice to or recourse by Executive so long
as such action is taken generally with respect to other similarly situated
persons and does not single out Executive.
6. TERMINATION. The Base Salary and Additional Benefits provided to
Executive pursuant to this Agreement, and the employment of Executive by
Employer, shall be terminated prior to expiration of the Term only as provided
in this Section 6.
6.1 DISABILITY. If a physical or mental illness renders
Executive unable to perform his normal duties in connection with Employer for a
period of 180 days (whether or not consecutive) out of any consecutive 365 days
and that the Board reasonably determines is reasonably expected to continue to
render Executive unable to perform such duties (a "Disability"), Executive's
employment hereunder may be terminated by written notice of termination from
Employer to Executive. Executive agrees to submit to examinations from time to
time by a duly licensed physician, who shall be selected by Employer's Chief
Executive Officer, in connection with any actual or alleged Disability;
provided, that such physician shall be independent as to Employer and its
affiliates (other than Executive) and shall be a specialist in the area of
Executive's alleged Disability. If Executive's employment is terminated by
Employer because of a Disability, this Agreement will terminate in all respects,
provided that Employer shall pay to Executive or the personal representative of
Executive (the "Beneficiary"), as applicable, any Base Salary through the date
of termination and any accrued Additional Benefits that do not by their terms
end at the Disability of Executive.
6.2 DEATH. If Executive dies during the Term, this Agreement
will terminate in all respects, provided that Employer shall pay to the
Beneficiary any Base Salary through the date of death and any accrued Additional
Benefits that do not by their terms end at the death of Executive.
6.3 FOR CAUSE. Executive's employment hereunder shall be
terminated and all of his rights to receive Base Salary and (subject to the
terms of any plans relating thereto) Additional Benefits hereunder in respect of
any period after such termination, shall terminate upon a determination by the
Board, acting in good faith based upon actual knowledge at such time, that
Executive (i) is or has been grossly negligent, (ii) is engaging or has engaged
in willful misconduct or a breach of fiduciary duty involving personal profit,
(iii) has failed to perform material duties, (iv) has willfully violated any
law, rule or regulation other than traffic violations and minor violations, (v)
has been convicted of any felony, or (vi) has intentionally or materially
breached any of the provisions of this Agreement (each of the above being a
termination for "Cause").
(A) Employer shall effect a termination for Cause by written
notice to Executive specifying in reasonable detail the circumstances
alleged by Employer that constitute a basis for termination for Cause
and the specific provisions of Section 6.3 relied upon in effecting
such termination. The date of such termination shall be the date ten
(10) days after Employer gives such notice of termination to Executive.
If the grounds for such termination are the grounds set forth in
Section 6.3 (excluding, for this purpose, conviction of a felony as set
forth above), then during such ten (10) day period, Executive shall be
afforded an opportunity to discuss the basis for such termination with
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each member of the Board, and Executive shall, at his election
exercised in writing and delivered to Employer's Chief Operating
Officer prior to the expiration of such ten (10) day period, be
entitled to a period of not less than thirty (30) days after the date
of such discussion to attempt to remedy or cure the conduct alleged to
constitute such grounds and the harm caused thereby if in the good
faith and reasonable judgment of the Board, such conduct and harm is
capable of being remedied or cured within said thirty (30) day period.
If, after the expiration of such cure period, the Executive has not in
the good faith and reasonable judgment of the Board, remedied or cured
the conduct alleged to constitute such grounds and the harm caused
thereby (the "Board Decision"), the termination for Cause shall be
effective upon notice to Executive of the Board Decision.
(B) Upon termination of Executive's employment for Cause, the
obligations of Executive and Employer under this Agreement shall
immediately cease. Such termination shall be without prejudice to any
other remedy to which Employer may be entitled either at law, in
equity, or under this Agreement.
6.4 WITHOUT CAUSE.
(A) Notwithstanding any other provision of this Section 6,
Executive shall have the right to terminate Executive's employment with
Employer at any time after the date six months from the date of this
Agreement, but any such termination, other than as expressly provided
in Section 6.4, shall terminate the accrual of Base Salary and
Additional Benefits provided under this Agreement for the remainder of
the Term. Employer shall, within five business days of such
termination, pay to Executive all Base Salary and Additional Benefits
accrued through the date of such termination.
(B) Employer may terminate Executive's employment hereunder at
any time without cause. Upon a termination of Executive's employment by
Employer without cause hereunder, Employer shall pay to Executive any
Additional Benefits accrued through the date of termination and the
lesser of (i) Executive's Base Salary for the remaining term of this
Agreement or (ii) one year's Base Salary.
6.5 NO LIMITATION. Employer's exercise of its right to
terminate shall be without prejudice to any other right or remedy to which it or
any of its affiliates may be entitled at law, in equity or under this Agreement.
6.6 EXCLUSIVE REMEDY. Executive agrees that the payments
expressly provided and contemplated by this Agreement shall constitute the sole
and exclusive obligation of Employer in respect of Executive's employment with
and relationship to Employer and that the payment thereof shall be the sole and
exclusive remedy for any termination of Executive's employment. Executive
covenants not to assert or pursue any other remedies, at law or in equity, with
respect to any termination of employment.
7. BUSINESS EXPENSES. During the Term, Employer shall, in accordance
with Employer's policy in effect from time to time, reimburse Executive promptly
for all reasonable and adequately documented business expenses which Executive
incurs in his reasonable judgment in connection with the services to be rendered
to Employer hereunder, including
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entertainment, travel, and transportation expenses incurred in pursuit and
furtherance of Employer's business and good will. In addition to any amounts
due to Executive upon a termination of this Agreement in accordance with
Sections 6.1, 6.2, 6.3 or 6.4, Employer shall pay Executive any amounts due
under this Section 7 up to the date of termination.
8. NO SOLICITATION OF EMPLOYEES OR CLIENTS. Executive agrees that he
will not, directly or indirectly, for a period of 3 years from the termination
of this Agreement, solicit, entice, persuade, or induce any employee of Employer
or any client under contract with Employer to terminate his or her employment
by, or contract with, Employer or its subsidiaries, if any, or to refrain from
extending or renewing the same (upon the same or new terms) or to become
employed by or to enter into any agency contract with a person or business other
than Employer. Executive or any agent of Executive shall not be prohibited from
placing public employment notices to which employees of Employer respond.
9. DISPUTE RESOLUTION.
9.1 GOVERNING LAW. This Agreement is to be interpreted in
accordance with the laws of the State of California. Executive and Employer
hereby expressly consent to the personal jurisdiction of the state and federal
courts located in Los Angeles, California for any action or proceeding arising
from or relating to this Agreement.
9.2 ATTORNEYS' FEES AND COURT COSTS. If any suit or action
arising out of or related to this Agreement is brought by any party, the
prevailing party shall be entitled to recover the costs and fees (including
without limitation reasonable attorney fees, the fees and costs of experts and
consultants, copying, courier and telecommunication costs, and deposition costs
and all other costs of discovery) incurred by such party in such suit or action,
including without limitation any post-trial or appellate proceeding.
9.3 EQUITABLE RELIEF. Executive acknowledges that Employer may
not have an adequate remedy at law in the event of any breach or threatened
breach by Executive of this Agreement pertaining to confidentiality or
intellectual property, and that Employer or its customers or suppliers may
suffer irreparable injury as a result. In the event of any such breach or
threatened breach, Executive hereby consents to the granting of injunctive
relief without the posting by Employer of any bond or other security.
10. MISCELLANEOUS.
10.1 SUCCESSION; SURVIVAL. This Agreement shall inure to the
benefit of and shall be binding upon Employer, its successors and assigns. The
obligations and duties of Executive hereunder are personal and otherwise not
assignable. Executive's obligations and representations under this Agreement
will survive the termination of Executive's employment, regardless of the manner
of such termination.
10.2 NOTICES. Any notice or other communication provided for
in this Agreement shall be in writing and sent if to Employer to its principal
office at:
Corillian Corporation
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0000 XX Xxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
or at such other address as Employer may from time to time in writing
designate, and if to Executive at such address as Executive may from time to
time in writing designate (or Executive's business address of record in the
absence of such designation). Each such notice or other communication shall
be effective (i) if given by telecommunication, when transmitted to the
applicable number so specified in (or pursuant to) this Section 10.2 and an
appropriate answerback is received, (ii) if given by mail, three days after
such communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid or (iii) if given by any other means, when
actually delivered at such address.
10.3 ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains
the entire agreement of the parties relating to the subject matter hereof and
it supersedes any prior agreements, undertakings, commitments and practices
relating to Executive's employment by Employer or Xxxxxxx. No amendment or
modification of the terms of this Agreement shall be valid unless made in
writing and signed by Executive and, on behalf of Employer, by an officer
expressly so authorized by the Board.
10.4 WAIVER. No failure on the part of any party to
exercise or delay in exercising any right hereunder shall be deemed a waiver
thereof or of any other right, nor shall any single or partial exercise
preclude any further or other exercise of such right or any other right.
10.5 EMPLOYER INFORMATION. Executive agrees that he will
not, during his employment with Employer, improperly use or disclose any
proprietary information or trade secrets of any former or concurrent employer
or other person or entity and that he will not bring onto the premises of
Employer or its affiliates (other than, with respect to information received
by Executive through Xxxxxxx, Xxxxxxx) any unpublished document or
proprietary information belonging to any such employer, person or entity in
violation of any agreement or law, unless consented to in writing by such
employer, person or entity.
10.6 PLACE OF EMPLOYMENT. Employer recognizes that
Executive's residence and principal place for performing his obligations
hereunder shall be Los Angeles, California; provided, however, that Executive
will be expected to engage in travel throughout the United States and the
world as Employer may reasonably request or as may be required for the proper
performance of services hereunder.
10.7 SEVERABILITY. If this Agreement shall for any reason
be or become unenforceable in any material respect by any party, this
Agreement shall thereupon terminate and become unenforceable by the other
party as well. In all other respects, if any provision of this Agreement is
held invalid or unenforceable, the remainder of this Agreement shall
nevertheless remain in full force and effect. If any provision is held
invalid or unenforceable with respect to particular circumstances, it shall
nevertheless remain in full force and effect in all other circumstances to
the fullest extent permitted by law and may be modified by a court to make
the provision consistent with applicable laws.
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10.8 SECTION HEADINGS. Section and other headings contained
in this Agreement are for convenience of reference only and shall not affect
in any way the meaning or interpretation of this Agreement.
10.9 COUNTERPARTS. This Agreement and any amendment hereto may
be executed in one or more counterparts. All of such counterparts shall
constitute one and the same agreement and shall become effective when a copy
signed by each party has been delivered to the other party.
10.10 CONSTRUCTION. The parties hereto acknowledge that each
party to this Agreement is sophisticated and has been represented by counsel in
connection with this Agreement and the transactions contemplated by this
Agreement. Accordingly, no provision of this Agreement shall be construed
against any party on the ground that such party or its counsel drafted the
provision, and the parties hereby waive any statute or rule to the contrary.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
"EMPLOYER"
CORILLIAN CORPORATION
BY:_________________________________
ITS:________________________________
"EXECUTIVE"
XXXXX X. XXXXXXX
____________________________________
Address:____________________________________
____________________________________
____________________________________
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