Exhibit 10.15
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("AGREEMENT"), made and entered into as of this
1st day of July, 2003 by and between Allegis Corporation, a California
corporation ("CORPORATION"), and Xxxxxx Xxxxxx, an individual residing at 0000
XXXX XXX XXX, XXXXXXXX, XX 00000 (the "EXECUTIVE").
RECITALS
WHEREAS, the Corporation desires to employ Executive as Vice President of
Field Operations of the Corporation;
WHEREAS, the Executive desires to be employed by the Corporation at the
salary and benefits provided for herein;
WHEREAS, the Executive acknowledges and understands that during the course
of his employment, the Executive has and will become familiar with certain
confidential information of the Corporation which is exceptionally valuable to
the Corporation and vital to the success of the Corporation's business; and
WHEREAS, the Corporation and the Executive desire to protect such
confidential information from disclosure to third parties or use of such
information to the detriment of the Corporation.
AGREEMENT
NOW THEREFORE, in consideration of the premises and of the mutual covenants
and agreements hereinafter set forth, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT. The Corporation hereby agrees to employ the Executive, and
the Executive hereby accepts such employment, as Vice President of Field
Operations of the Corporation on the terms and conditions set forth herein.
2. TERM. The term of this Agreement shall commence as of July 1st, 2003
and shall continue until June 30, 2004 (the "TERM"), unless earlier terminated
pursuant to Section 11 of this Agreement.
3. DUTIES. The Executive shall have general responsibility for all
professional services of the Corporation, and such other responsibilities as may
be determined by the Chief Executive Officer of the Corporation or the Board of
Directors in accordance with the By-Laws of the Corporation, in effect from time
to time, provided that such duties shall at all times be consistent with the
duties normally performed by a Vice President of Field Operations of companies
engaged in businesses similar to the business of the Corporation with similar
responsibilities. The Executive agrees to devote all of his business time,
attention and energies to the diligent performance of his duties hereunder and
will not, during the Term hereof, engage in, accept employment from, or provide
services to any other person, firm, corporation, governmental
1
agency or other entity that engages in, any activities which, in the opinion of
the Board of Directors, would conflict with or detract from the Executive's
capable performance of such duties.
4. COMPENSATION.
(a) BASE SALARY. During the Term of this Agreement, the Executive shall
receive compensation at the annual rate of $170,000 payable in equal
semi-monthly installments or as otherwise agreed to by the parties. The annual
amount of salary payments to the Executive during the Term of this Agreement
shall be referred to herein as the "ANNUAL SALARY." Employee's salary and any
bonus shall be subject to withholding and other applicable taxes. No additional
compensation shall be payable to Employee by reason of the number of hours
worked or any hours worked on Saturdays, Sundays or holidays, by reason of
special responsibilities assumed, special projects completed or otherwise.
(b) ANNUAL INCENTIVE BONUS. During the Term of this Agreement, the
Executive shall participate in an annual bonus program if and as adopted by the
Corporation as determined by the Human Resources and Compensation Committee of
the Board of Directors in its sole discretion.
(c) STOCK OPTION GRANTS. The Corporation shall grant to the Executive,
options to purchase an aggregate of 25,000 shares of common stock, par value
$0.001 per share ("Common Stock"), of the Corporation, which Options shall be
restricted and non-transferable, as set forth in the Company's Amended and
Restated Stock Option and Stock Award Plan (the "Stock Option Plan") and, to the
extent that Executive is employed by the Corporation on the following vesting
dates, the Options shall vest as follows: 6,250 of the Options shall vest on the
Grant Date as defined in the Stock Option Agreement, 6,250 of the Options shall
vest 12 months following the Grant Date as defined in the Stock Option
Agreement, 6,250 of the Options shall vest 24 months following the Grant Date as
defined in the Stock Option Agreement, and 6,250 of the Options shall vest 36
months following the Grant Date as defined in the Stock Option Agreement. The
term of the Options shall be for a period of ten (10) years following the date
of the grant of the Options hereunder and the Options shall be subject to such
other terms and conditions not inconsistent with the terms of this Agreement as
are set forth in the Stock Option Agreement, in the form attached hereto as
Exhibit A, to be executed by the Company and the Executive, the Stock Option
Plan and as determined by the Board of Directors or any committee thereof. The
Options shall be incentive stock options to the extent permitted by law in each
year and, with respect to vested options, shall be exerciseable for a period of
90 days following termination of employment; and the remaining options shall be
non-qualified stock options ("NQSOs") which shall be exerciseable for a period
of one year following termination of employment. The Executive shall not be
entitled to any rights with respect to the shares of Common Stock underlying the
Options, including the right to vote or receive dividends or distributions with
respect to any of the shares of Common Stock underlying the Options.
(d) SIGNING BONUS. The Executive shall be paid a one-time,
non-recoverable, signing bonus in the amount of $42,500.00 ("Signing Bonus").
The Signing Bonus will be paid on the Effective Date of this Agreement. The
Signing Bonus is in addition to and not a replacement of a retention bonus that
will be paid as agreed to by the parties.
2
5. BENEFITS. During the Term of this Agreement, the Corporation agrees to
provide to the Executive such benefits as are provided generally to other senior
executives of the Corporation from time to time, including, without limitation,
any health, disability, dental, severance benefits, insurance, defined
contribution plan, deferred compensation, profit-sharing, pension, or other
employee benefit policies, programs (including child day-care) or plans which
the Corporation offers generally to senior executives (collectively, the
"EMPLOYEE BENEFITS"). Executive shall be entitled to three (3) weeks of vacation
during each twelve (12) month period hereunder. Executive may not accrue and
maintain more than four (4) weeks ("VACATION CAP") of vacation time at any given
time. If Executive's accrued, but unused, vacation time reaches the Vacation Cap
(i.e., 4 weeks), he will cease accruing vacation; Executive will resume accruing
vacation only after he has used vacation time and dropped below the Vacation
Cap. Executive shall be entitled to participate in other compensation programs
that the Corporation may make available from time to time. Compliance with the
provisions on this Section 5 shall in no way create or be deemed to create any
obligations, express or implied, on the part of the Corporation or any of its
affiliates with respect to the continuation of any particular benefit or other
plan or arrangement maintained by them or their subsidiaries as of or prior to
the date hereof or the creation and maintenance of any particular benefit or
other plan or arrangement at any time after the date hereof.
6. EXPENSES. During the Term of this Agreement, the Executive shall be
reimbursed by the Corporation for all reasonable, ordinary and necessary
out-of-pocket expenses for travel, lodging, meals, entertainment expenses, or
any other similar expenses incurred by the Executive in performing services for
the Corporation to the extent that such expenditures meet the requirements of
the Internal Revenue Code of 1986, as amended (the "CODE"), for total or partial
deductibility by the Corporation for federal income tax purposes and are
substantiated and documented by the Executive as required by the Code.
7. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
(a) The Executive will not during, and at any time after termination of,
this Agreement, in any form or manner, directly or indirectly, divulge, disclose
or communicate to any person, entity, firm, corporation or any other third
party, or utilize for the Executive's personal benefit or for the benefit of any
competitor of the Corporation, any Confidential Information (as hereinafter
defined).
(b) For the purposes of this Agreement, the term "CONFIDENTIAL
INFORMATION" shall mean, but shall not be limited to, any technical or
non-technical data, formulae, patterns, compilations, programs, devices,
methods, techniques, drawings, designs, processes, procedures, improvements,
models or manuals of the Corporation or which are licensed by the Corporation,
any financial data or lists of actual or potential customers, and the identity
of such customers, or suppliers of the Corporation, and any information
regarding the Corporation's marketing, sales or dealer network, which is not
generally known to the public through legitimate origins. The Corporation and
the Executive acknowledge and agree that such Confidential Information is
extremely valuable to the Corporation and shall be deemed to be a "TRADE
SECRET." In the event that any part of the Confidential Information becomes
generally known to the public through legitimate origins (other than by the
breach of this Agreement by the Executive or by misappropriation), that part of
the Confidential Information shall no longer be deemed
3
Confidential Information for the purposes of this Agreement, but the Executive
shall continue to be bound by the terms of this Agreement as to all other
Confidential Information.
(c) Upon termination of this Agreement for any reason, the Executive will
promptly deliver to the Corporation all correspondence, drawings, blueprints,
manuals, letters, notes, notebooks, reports, programs, plans, proposals,
financial documents, or any other documents, including all copies in any form or
media, concerning the Corporation's customers, dealer network, marketing
strategies, products or processes and/or which contains Confidential
Information.
8. ADDITIONAL COVENANTS.
(a) COVENANT NOT TO SOLICIT EMPLOYEES. During Executive's employment by
the Corporation and for a period of two (2) years following termination or
cessation of Executive's employment pursuant to this Agreement, Executive agrees
and covenants that he will not, for any reason, directly or indirectly, employ,
solicit or endeavor to entice away from the Corporation or any of its affiliates
(whether for his own benefit or on behalf of another person or entity), or
facilitate the solicitation, employment or enticement of, any employees of the
Corporation to work for Executive, any affiliate of Executive or any competitor
of the Corporation, nor will Executive otherwise attempt to interfere (to the
Corporation's detriment) in the relationship between the Corporation or any of
its affiliates and any such employees.
(b) COVENANT NOT TO UTILIZE CUSTOMER IDENTITIES. During Executive's
employment pursuant to this Agreement and for a period of twelve (12) months
following termination or cessation of Executive's employment, Executive
acknowledges and agrees that the identity of the Corporation's Customers (as
defined below) is Confidential Information and covenants that he will not, in
any form or manner, directly or indirectly, divulge, disclose or communicate to
any person, entity, firm, corporation or any other third party, or utilize for
the Executive's personal benefit or for the purpose of competing with the
Business of the Corporation. For purposes of this Agreement, a "Customer" of the
Corporation shall mean and refer to (i) each person that has received services
or purchased products from the Corporation or any of its affiliates during the
period of Executive's employment hereunder and (ii) each person or entity
formally solicited by the Corporation to provide services or purchase products
during the period of Executive's employment hereunder.
9. EQUITABLE REMEDIES. In the event that the Executive breaches any of the
terms contained in Sections 7 or 8 of this Agreement, the Executive stipulates
that said breach will result in immediate and irreparable harm to the business
and goodwill of the Corporation and that damages, if any, and remedies at law
for such breach would be inadequate. The Corporation shall therefore be entitled
to apply for and receive from any court of competent jurisdiction an injunction
to restrain any violation of this Agreement and for such further relief as the
court may deem just and proper, and the Executive shall, in addition, pay to the
Corporation, following judgment or other final determination by such court, the
Corporation's costs and expenses in enforcing such terms (including court costs
and reasonable attorneys' fees).
10. CONTINUING OBLIGATION. The obligations, duties and liabilities of the
Executive pursuant to Sections 7 and 8 of this Agreement are continuing,
absolute and unconditional and
4
shall remain in full force and effect as provided therein despite any
termination of this Agreement for any reason whatsoever, including, without
limitation, the expiration of the Term of this Agreement.
11. TERMINATION OF EMPLOYMENT.
(a) TERMINATION BY CORPORATION OF EXECUTIVE FOR CAUSE. The Corporation
shall have the right to terminate the Executive's employment at any time for
"cause." For purposes hereof, "CAUSE" shall mean that the Executive has:
(i) been convicted of, or plead nolo contendere to, a felony or
crime involving moral turpitude; or
(ii) committed an act of personal dishonesty or fraud involving
personal profit in connection with the Executive's employment by the
Corporation; or
(iii) committed a breach of any material covenant, provision,
term, condition, understanding or undertaking set forth in this Agreement,
including, without limitation, the provisions contained in Sections 7 and 8
hereof; or
(iv) committed an act which the Board of Directors of the
Corporation has found to have involved willful misconduct or gross
negligence on the part of the Executive; or
provided, however, that no termination under clause (iii) of this Section 11(a)
shall be effective unless the Executive shall have first received written notice
describing in reasonable detail the basis for the termination and within 15 days
following delivery of such notice the Executive shall have failed to cure such
alleged behavior constituting "cause"; provided, further, that this notice
requirement prior to termination shall be applicable only if such behavior or
breach is capable of being cured. If the Corporation shall terminate the
Executive's employment pursuant to this Section 11(a), the Executive shall
forfeit all rights with respect to the Options (whether or not vested) granted
to the Executive pursuant to Section 4(c). In addition, the Corporation shall be
obligated to pay to the Executive the Annual Salary then in effect and the
Employee Benefits payable to the Executive pursuant to this Agreement, accrued
up to and including the date on which the Executive's employment is so
terminated. Thereafter, the Corporation shall have no further obligation
whatsoever to the Executive.
(b) TERMINATION BY CORPORATION OF EXECUTIVE BECAUSE OF EXECUTIVE'S
DISABILITY, INJURY OR ILLNESS. The Corporation shall have the right to terminate
the Executive's employment if the Executive is unable to perform the duties
assigned to him by the Corporation because of the Executive's disability, injury
or illness (as such terms may be defined under the applicable disability plan
covering the Executive); provided, however, that in the event of such
disability, injury or illness, the Executive's inability to perform such duties
must have existed for (x) the period for eligibility for coverage set forth in
the long-term disability policy maintained by the Corporation, or (y) a total of
six (6) months in any consecutive twelve (12) month period if there is no such
policy in existence, before such termination can be made effective. If the
Corporation shall terminate the Executive's employment pursuant to this Section
11(b), the Corporation shall
5
only be obligated (i) to pay to the Executive the Annual Salary then in effect
payable to the Executive pursuant to this Agreement, accrued up to and including
the date on which the Executive's employment is so terminated, and (ii) to
provide Employee Benefits to the Executive to the extent the Executive remains
eligible to continue to participate in such Employee Benefits pursuant to the
terms and conditions of such policies, programs or plans; if the Corporation
shall terminate the Executive's employment pursuant to this Section 11(b), the
Executive shall be entitled to retain all stock options vested as of the date of
termination. Notwithstanding anything to the contrary in this Agreement, the
Corporation's obligations to make payments to the Executive shall be reduced by
any amounts actually paid to the Executive pursuant to any disability insurance
payments received by the Executive pursuant to the Employee Benefits or
otherwise. In the event of a termination of the Executive's employment pursuant
to this Section 11(b), the Executive shall be entitled to retain all Options
vested pursuant to Section 4(c) hereof as of the date of termination.
(c) TERMINATION BY CORPORATION AS A RESULT OF EXECUTIVE'S DEATH. The
obligations of the Corporation to the Executive under this Agreement (except as
provided in this Section 11(c)) shall automatically terminate upon the
Executive's death and the Corporation shall then only be obligated to pay to the
Executive's estate the Annual Salary then in effect and the Employee Benefits
payable to the Executive pursuant to this Agreement, accrued up to and including
the date on which the Corporation's obligation to the Executive is so
terminated. Thereafter, the Corporation shall have no further obligation
whatsoever to the Executive. In the event of a termination of the Executive's
employment pursuant to this Section 11(c), the Executive shall be entitled to
retain all Options vested pursuant to Section 4(c) hereof as of the date of
termination. In the event of the Executive's death, any payments due to the
Executive shall be paid to the Executive's estate.
(d) TERMINATION OF EXECUTIVE FOR ANY OTHER REASON. The Corporation shall
have the right to terminate the Executive's employment for any other reason upon
prior written notice to the Executive. In the event of a termination of the
Executive's employment for any reason other than the reasons set forth in
Sections 11(a), 11(b) or 11(c) hereof, (i) the Corporation shall only be
obligated to provide base salary for the balance of this Agreement or the then
current severance package for Vice President's as authorized by the Human
Resources & Compensation Committee, whichever is greater ("Severance Amount"),
in equal semi-weekly installments or otherwise as agreed to by the parties, (ii)
to provide to the Executive the Employee Benefits, at the Corporation's expense,
if and to the extent the Executive remains eligible to participate in such
Employee Benefits pursuant to the terms and conditions of such policies,
programs or plans, for the remaining period of the Term, or if Executive is not
eligible, then the Corporation shall reimburse Executive for payments for health
care coverage provided pursuant to the Comprehensive Omnibus Budget
Reconciliation Act for the remaining period of the Term, and (iii) the Executive
shall be entitled to retain all stock options vested as of the date of
termination. Thereafter, the Corporation shall have no further obligation
whatsoever to the Executive.
(e) TERMINATION BY THE EXECUTIVE. The Executive may resign and terminate
his employment by the Corporation for any reason whatsoever upon thirty (30)
days prior written notice to the Corporation. Thereafter, the Corporation shall
have no obligation to the Executive, except for those obligations provided as a
matter of federal or state law. In the event of a termination of the Executive's
employment pursuant to this Section 11(e), the Executive shall be
6
entitled to retain all Options vested pursuant to Section 4(c) hereof as of the
date of termination.
(i) GOOD REASON. If, during the Term of this Agreement, the Executive
resigns for Good Reason (as defined below), (i) the Corporation shall be
obligated to pay to the Executive the Severance Amount, (ii) the
Corporation shall be obligated to provide the Employee Benefits, at its
expense, if any and to the extent the Executive remains eligible to
participate in such Employee Benefits pursuant to the terms and conditions
of such policies, programs or plans, for the remaining period of the Term,
or if Executive is not eligible, then the Corporation shall reimburse
Executive for payments for health care coverage provided pursuant to the
Comprehensive Omnibus Budget Reconciliation Act for the remaining period of
the Term, and (iii) the Executive shall be entitled to retain all stock
options vested as of the date of termination. Thereafter, the Corporation
shall have no further obligation whatsoever to the Executive. For purposes
of this Agreement, "GOOD REASON" shall mean (a) a requirement by the
Corporation that the Executive report for the performance of his services
hereunder on a regular or permanent basis at any location or office more
than fifty (50) miles from San Francisco, California or (b) a decrease in
the Executive's Annual Salary.
12. CAPACITY. The Executive hereby represents and warrants that, in
entering into this Agreement, he is not in violation of any contract or
agreement, whether written or oral, with any other person, firm, partnership,
corporation or other entity to which he is a party or by which he is bound and
will not violate or interfere with the rights of any other person, firm,
partnership, corporation or other entity. In the event that such a violation or
interference does occur, or is alleged to occur, notwithstanding the
representation and warranty made hereunder, the Executive shall indemnify the
Corporation from and against any and all manner of expenses and liabilities
incurred by the Corporation or any affiliated company of the Corporation in
connection with such violation or interference or alleged violation or
interference.
13. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties and shall not be modified except in writing by the parties hereto.
Furthermore, the parties hereto specifically acknowledge and agree that this
agreement supersedes all prior agreements between the Executive, the Corporation
and its officers, directors, and agents, if any and in whatever capacity so
entered into, whether written or oral, and all such prior agreements, whether
written or oral, shall be of no further force or effect from and after the date
hereof specifically including the Agreement and Plan of Merger dated March 21,
2003 by and between Allegis Corporation and Click Commerce, Inc.
14. SEVERABILITY. If any phrase, clause or provision of this Agreement is
declared invalid or unenforceable by a court of competent jurisdiction, such
phrase, clause or provision shall be deemed severed from this Agreement, but
will not affect any other provisions of this Agreement, which shall otherwise
remain in full force and effect. If any restriction or limitation in this
Agreement is deemed to be unreasonable, onerous and unduly restrictive by a
court of competent jurisdiction, it shall not be stricken in its entirety and
held totally void and unenforceable, but shall remain effective to the maximum
extent permissible within reasonable bounds.
15. NOTICES. Any notice, request or other communication required to be
given pursuant to the provisions hereof shall be in writing and shall be deemed
to have been given when
7
delivered in person, on the next business day after being delivered to a
nationally-recognized overnight courier service (for such next-day delivery) or
five (5) days after being deposited in the United States mail, certified or
registered, postage prepaid, return receipt requested and addressed to the other
party at its or his last known address. The address of any party may be changed
by notice in writing to the other party duly served in accordance herewith.
16. WAIVER. The waiver by the Corporation or the Executive of any breach of
any term or condition of this Agreement shall not be deemed to constitute the
waiver of any other breach of the same or any other term or condition hereof.
17. GOVERNING LAW. THE VALIDITY, INTERPRETATION, ENFORCEABILITY, AND
PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF CALIFORNIA.
18. ASSIGNMENT OF INVENTIONS. The Executive shall disclose promptly in
writing to a designated representative of the Corporation all material of a
proprietary nature, including, but not limited to, ideas, inventions,
discoveries, improvements, developments, designs, methods, systems, computer
programs, trade secrets or any other intellectual property whether or not
patentable or copyrightable, specifically including, but not limited to,
copyright and mask works, formulae, compositions, products, processes,
apparatus, and new uses of existing materials or machines (hereafter
collectively called "INVENTIONS") made, conceived or first reduced to practice
by the Executive solely or jointly with others while employed by the
Corporation. The Corporation shall be the owner of all property rights in any
such Inventions, including, but not limited to, rights arising from the
obtaining of letters of patent or copyright in respect thereof, which shall be
vested in the Corporation except to the extent that California Labor Code
Section 2870 lawfully prohibits the assignment of rights in such Inventions.
Executive acknowledges and understands that Section 2870(a) provides:
ANY PROVISION IN AN EMPLOYMENT AGREEMENT WHICH PROVIDES THAT AN EMPLOYEE
SHALL ASSIGN, OR OFFER TO ASSIGN, ANY OF HIS OR HER RIGHTS IN AN INVENTION
TO HIS OR HER EMPLOYER SHALL NOT APPLY TO AN INVENTION THAT THE EMPLOYEE
DEVELOPED ENTIRELY ON HIS OR HER OWN TIME WITHOUT USING THE EMPLOYER'S
EQUIPMENT, SUPPLIES, FACILITIES, OR TRADE SECRET INFORMATION EXCEPT FOR
THOSE INVENTIONS THAT EITHER:
(1) RELATE AT THE TIME OF CONCEPTION OR REDUCTION TO PRACTICE OF
THE INVENTION TO THE EMPLOYER'S BUSINESS, OR ACTUAL OR DEMONSTRABLY
ANTICIPATED RESEARCH OR DEVELOPMENT OF THE EMPLOYER; OR
(2) RESULT FROM ANY WORK PERFORMED BY THE EMPLOYEE FOR THE
EMPLOYER.
8
Executive acknowledges and agrees that all original works of authorship which
are made by Executive (solely or jointly with others) within the scope of his
employment and which are protectable by copyright are "works made for hire," as
defined in the United States Copyright Act (17 USCA, Section 101). The Executive
will at the Corporation's request execute any and all assignment, patent or
copyright forms and the like, deemed reasonably necessary by the Corporation,
and will assist in drafting of any description or specification of the
Inventions as may be required by the Corporation to protect the Corporation's
rights in and to the Inventions, including, but not limited to, application(s)
for letters of patent. The Corporation's rights hereunder shall not be limited
to this country but shall extend to any country in the world and shall attach to
each Invention notwithstanding that it is perfected, improved, reduced to
specific form or used after termination the Executive's employment. The
Executive agrees to lend such assistance as he may be able, at the Corporation's
request without charge in connection with any proceedings relating to such
letters of patent, trade secrets, copyright or application thereof, as may be
determined by the Corporation to be reasonably necessary. In such case the
Corporation will reimburse expenses which the Executive may reasonably incur in
assisting the Corporation to obtain, assert, defend and protect such letters of
patent, trade secrets, copyright or other protection.
19. LITIGATION AND REGULATORY COOPERATION. During and after Employee's
employment, Employee shall cooperate fully with the Corporation and its
subsidiaries and affiliates in the defense or prosecution of any claims or
actions now in existence or which may be brought in the future against or on
behalf of the Corporation or its subsidiaries or affiliates that relate to
events or occurrences that transpired while Employee was employed by the
Corporation. Employee's full cooperation in connection with such claims or
actions shall include, but not be limited to, being available to meet with
counsel to prepare for discovery or trial and to act as a witness on behalf of
the Corporation or its subsidiaries or affiliates at mutually convenient times.
During and after Employee's employment, Employee also shall cooperate fully with
the Corporation and its subsidiaries and affiliates in connection with any
investigation or review of any federal, state or local regulatory authority as
any such investigation or review relates to events or occurrences that
transpired while Employee was employed by the Corporation. The Corporation shall
reimburse Employee for any reasonable out-of-pocket expenses, including
reasonable legal fees, incurred in connection with Employee's performance of
obligations pursuant to this Article 11.
20. BUSINESS OPPORTUNITIES. Employee agrees, while he is employed by the
Corporation, to offer or otherwise make known or available to the Corporation
and without additional compensation or consideration, any business prospects,
contracts or other business opportunities that Employee may discover, find,
develop or otherwise have available to Employee in the Business of the
Corporation's or its subsidiaries' or affiliates' general industry and further
agrees that any such prospects, contacts or other business opportunities shall
be the property of the Corporation.
21. SUCCESSORS. This Agreement is personal to the Executive and shall not
be assignable by the Executive otherwise by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by
the Executive's legal representatives. The Corporation will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
9
Corporation to assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Corporation would be required to perform
if no such succession had taken place. All references to the Corporation shall
also refer to the any such successor.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
ALLEGIS CORPORATION EXECUTIVE
/s/ Xxxxxxx X. Xxxxx, Xx. /s/ Xxxxxx Xxxxxx
-------------------------------- ---------------------------------
Xxxxxx Xxxxxx
By: Xxxxxxx Xxxxx
----------------------------
Its: President
----------------------------
10
Exhibit A
CLICK COMMERCE, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT, is made as of July , 2003 (the "Grant
Date") between Click Commerce, Inc., a Delaware corporation (the "Company"), and
Xxxxxx Xxxxxx (the "Optionee").
WITNESSETH:
WHEREAS, the Company desires to provide the Optionee with the
opportunity to purchase shares of its common stock, $.001 par value per share
(the "Common Stock"), in accordance with the terms of the Click Commerce, Inc.
Stock Option Plan (the "Plan"):
NOW THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter contained, the parties hereto mutually
covenant and agree as follows:
1. GRANT OF OPTION. The Company hereby grants to the Optionee an
option (the "Option") to purchase all or any part of an aggregate of 25,000
shares of Common Stock on the terms and conditions hereinafter set forth. The
Option is hereby designated as an "Incentive Stock Option" ("ISO") within the
meaning of Section 422(b) of the Internal Revenue Code ("code"), to the extent
permitted under that section.
2. PURCHASE PRICE. The per share purchase price of the shares of
Common Stock issuable upon exercise of the Option shall be $____.
3. TERM. Except as provided in Section 6, the term of the Option
designated as an ISO shall be for a period of ten (10) years from the Grant
Date. The term of the Option not meeting the requirements of Section 422(b) of
the Code shall be for a period of ten (10) years from the Grant Date.
4. VESTING.
(a) Subject to the forfeiture provisions of Section 6, the Optionee
shall become vested in the Option granted hereunder over the period from the
Grant Date, as follows:
11
PERCENTAGE VESTED VESTING DATE
----------------- ------------
25% On the Grant Date
50% 12 months following the Grant Date
75% 24 months following the Grant Date
100% 36 months following the Grant Date
5. EXERCISE. Subject to the forfeiture provisions of Section 6, the
Optionee shall not be entitled to exercise the Option until it is vested.
Notwithstanding the foregoing, the Option shall not be exercisable after the
expiration date of the Option.
6. TERMINATION OF OPTION ON CERTAIN EVENTS. The Option term and the
Optionee's rights hereunder shall terminate on the date of Optionee's
termination of employment with the Company ("Termination Date"), subject to the
following:
(a) Death or Permanent Disability. If Optionee's termination of
employment by the Company is due to Optionee's death or "permanent disability"
(as hereinafter defined), the Optionee shall forfeit any right to purchase
shares of Common Stock under the Option to the extent not vested as of the date
of termination of employment. The Option, to the extent vested, may thereafter
be exercised by the Optionee or Optionee's executor, administrator or other
personal or legal representative, as applicable for a period of 90 days
following Optionee's termination of employment for ISOs and for one year
following Optionee's termination of employment for Options which do not qualify
as ISOs. "Permanent disability" shall have the meaning set forth in Section
11(c) of that certain
employment agreement between Optionee and the Company
dated as of August 7, 2002 ("
Employment Agreement").
(b) Voluntary Termination or Involuntary Termination Other Than For
Cause. In the event of the Optionee's voluntary termination or involuntary
termination of employment by the Company without "cause" (as defined below), the
Optionee shall forfeit any nonvested right to purchase shares of Common Stock
under the Option as of the date of termination of employment. The Option, to the
extent vested, may thereafter be exercised by the Optionee or, if the Optionee
dies during the remainder of the Option's term, by the Optionee's executor,
administrator or other personal or legal representative, as applicable for a
period of 90 days following Optionee's termination of employment for ISOs and
for one year following Optionee's termination of employment for Options which do
not qualify as ISOs.
(c) Termination for Cause. All of Optionee's rights hereunder shall
terminate upon the Company's written or oral notice to the Optionee that the
Optionee's employment by the Company is being terminated for "cause" (as
hereinafter defined), and all rights to purchase shares of Common Stock under
the Option (whether or not vested according to the schedule of Section 4) shall
be forfeited. The Company shall have "cause" to terminate Optionee's employment
with the Company, as set forth and defined in Section 12(a) of the
Employment
Agreement.
12
7. NONTRANSFERABILITY. The Option shall not be transferable otherwise
than by will or the laws of descent and distribution to the extent provided in
Sections 5 and 6, and the Option may be exercised, during the lifetime of the
Optionee, only by the Optionee. Without limiting the generality of the
foregoing, the Option may not be assigned, transferred (except as provided
above), pledged or hypothecated in any way, shall not be assignable by operation
of law, and shall not be subject to execution, attachment or similar process,
and any attempt to do so shall be void.
8. METHOD OF EXERCISING OPTION.
(a) Subject to the terms and conditions of this Agreement, the Option
may be exercised by written notice by registered or certified mail, return
receipt requested, addressed to the Company at its offices at the address for
notices set forth in Section 10 or to its designated representative by written
notice. Such notice shall state that the Option is being exercised thereby and
the number of shares of Common Stock in respect of which it is being exercised.
It shall be signed by the person or persons so exercising the Option and shall
be accompanied by payment in full of the Option price for such shares of Common
Stock (i) in cash, (ii) in shares of Common Stock held by the Optionee for a
period of six months to be valued at the Fair Market Value (as defined in
Section 6(b) of the Plan) thereof on the date of such exercise, (iii) with a
combination of the foregoing, or (iv) by other means authorized by the
Committee. If the tender of shares of Common Stock as payment of the Option
price would result in the issuance of fractional shares of Common Stock, the
Company shall instead return the balance in cash or by check to the Optionee. If
the Option is exercised by any person or persons other than the Optionee under
Section 6(a), the notice shall be accompanied by appropriate proof of the right
of such person or persons to exercise the Option. The Company shall issue, in
the name of the person or persons exercising the Option, and deliver a
certificate or certificates representing such shares as soon as practicable
after notice and payment shall be received.
(b) The Option may be exercised in accordance with Section 5 and the
terms of the Plan with respect to any whole number of shares included therein,
but in no event may an Option be exercised as to less than one hundred (100)
shares at any one time, or the remaining shares covered by the Option if less
than two hundred (200).
(c) The Optionee shall have no rights of a stockholder with respect
to shares of Common Stock to be acquired by the exercise of the Option until the
date of issuance of a certificate or certificates representing such shares.
Except as otherwise expressly provided in the Plan, no adjustment shall be made
for dividends or other rights for which the record date is prior to the date
such stock certificate is issued. All shares of Common Stock purchased upon the
exercise of the Option as provided herein shall be fully paid and
non-assessable.
(d) If at any time the Company is required to withhold tax on
ordinary income recognized by the Optionee with respect to the shares received
under the Option, the amount required to be withheld shall be provided to the
Company by the Optionee. Such amount shall be paid in due course by the Company
to the applicable taxing authorities as income taxes withheld.
13
9. GENERAL. The Company shall during the term of the Option reserve
and keep available such number of shares of Common Stock as will be sufficient
to satisfy the requirements of this Agreement, shall pay all original issue
taxes, if any, with respect to the issuance of shares of Common Stock hereunder
and all other fees and expenses necessarily incurred by the Company in
connection herewith, and shall, from time to time, use its best efforts to
comply with all laws and regulations which, in the opinion of counsel for the
Company, shall be applicable hereto.
10. NOTICES. Each notice relating to this Agreement shall be in
writing and shall be sufficiently given if sent by registered or certified mail,
or by nationally recognized overnight delivery service, postage or charges
prepaid, to the address as hereinafter provided. Any such notice or
communication given by mail shall be deemed to have been given two business days
after the date so mailed, and such notice or communication given by overnight
delivery service shall be deemed to have been given one business day after the
date so sent. Each notice to the Company shall be addressed to it at its offices
at 000 Xxxx Xxxxxxxx Xxxxxx, 00xx xxxxx, Xxxxxxx, Xxxxxxxx 00000 (Attention:
Xxxxxxx Xxxxxx) or the Company's designee. Each notice to the Optionee or other
person or persons then entitled to exercise the Option shall be addressed to the
Optionee or such other person or persons at the Optionee's last known address.
11. INCORPORATION OF THE PLAN. Notwithstanding the terms and
conditions contained herein, this Agreement shall be subject to and governed by
all the terms and conditions of the Plan. A copy of the Plan has been delivered
to the Optionee and is hereby incorporated by reference. In the event of any
discrepancy or inconsistency between the terms and conditions of this Agreement
and of the Plan, the terms and conditions of the Plan shall control.
12. CONTINUANCE OF INVOLVEMENT WITH THE COMPANY. The granting of the
Option is in consideration of the Optionee continuing as a director, officer,
consultant or employee of the Company or any subsidiary; provided, that nothing
in this Agreement shall confer upon the Optionee the right to continue as a
member of the board, as an officer of the Company, as a consultant to the
Company or in the employ of the Company or any subsidiary or affect the right of
the Company or any subsidiary to terminate the Optionee's membership,
officership, consulting arrangement or employment at any time in the sole
discretion of the Company or any subsidiary, with or without cause.
13. INTERPRETATION. The interpretation and construction of any terms
or conditions of the Plan, or of this Agreement or other matters related to the
Plan by the Committee shall be final and conclusive.
14. ENFORCEABILITY. This Agreement shall be binding upon the Optionee
and such Optionee estate, personal representative and beneficiaries.
14
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officer thereunto duly authorized, and the Optionee has
executed this Agreement all as of the day and year first above written.
CLICK COMMERCE, INC.
By:
-------------------------
Its:
-------------------------
OPTIONEE:
------------------------
Xxxxxx Xxxxxx
15
