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EXHIBIT 10.27
WEBVAN GROUP, INC.
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of June
20th, 2000 by and between Webvan Group, Inc. (the "Company"), and XXX XXXXXX
(the "Employee").
RECITALS
WHEREAS, the Company is considering entering an agreement whereby
XxxxXxxxxx.xxx, Inc. ("HomeGrocer") will be merged into Merger Sub, an existing
wholly-owned subsidiary of the Company pursuant to the Merger Agreement (the
transaction effected by the Merger Agreement shall be referred to as the
"Merger");
WHEREAS, Employee is currently employed by HomeGrocer and has been
granted options (the "HomeGrocer Options") to purchase shares of HomeGrocer's
common stock under HomeGrocer's 1997 Stock Incentive Compensation Plan (the
"1997 HomeGrocer Plan") and/or HomeGrocer's 1999 Stock Incentive Compensation
Plan (the "1999 HomeGrocer Plan", and, collectively, the "HomeGrocer Plans")
which such HomeGrocer Options are to be assumed by the Company in connection
with the Merger and pursuant to the Merger Agreement; and
WHEREAS, the Company wishes to retain the services of Employee following
the Merger, and Employee wishes to be employed by the Company following the
Merger, on the terms and subject to the conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the foregoing recital and the
respective undertakings of the Company and Employee set forth below, the Company
and Employee agree as follows:
1. Duties and Scope of Employment. As of the Effective Time, Employee
will continue to serve as SVP SYSTEMS DEVELOPMENT AND TECHNOLOGY of the Company,
reporting to the Company's Chief Executive Officer ("CEO") and assuming and
discharging such responsibilities as are commensurate with Employee's position.
Employee will perform Employee's duties faithfully and to the best of Employee's
ability and Employee will devote Employee's full business efforts and time to
the performance of Employee's duties hereunder.
2. At-Will Employment. The parties agree that Employee's employment with
the Company will be "at-will" employment and may be terminated at any time with
or without cause or with or without notice. Employee understands and agrees that
neither Employee's job performance nor promotions, commendations, bonuses or the
like from the Company give rise to or in any way serve as the basis for
modification, amendment, or extension, by implication or otherwise, of
Employee's employment with the Company.
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3. Compensation.
(a) Base Salary. For all services to be rendered by Employee pursuant
to this Agreement, Employee shall receive an annual salary of $300,000 (the
"Base Salary"), payable in accordance with the Company's normal payroll
practices. Employee's salary shall be reviewed by the Company annually for
possible raises in light of Employee's performance of his or her duties.
(b) Sign On Bonus. The Company shall pay Employee a sign on bonus of
$350,000 (the "Sign-On Bonus") (less all applicable withholding taxes) within
thirty (30) days following the Effective Time or as soon as practical following
the Effective Time. Should Employee voluntarily terminate from the Company or
should the Company terminate the Employee for Cause (as herein defined) within
one year from the Effective Date; then the Employee agrees to reimburse the
Company the entire amount of the aforementioned Sign On Bonus.
(c) Stock Option. At the first meeting of the Board subsequent to the
Effective Time, Employee shall be granted a stock option, which will be, to the
extent possible under the $100,000 rule of Section 422(d) of the Internal
Revenue Code, as amended (the "Code") an "incentive stock option" (as defined in
Section 422 of the Code), to purchase 250,000 shares of the Company's Common
Stock at an exercise price equal to the fair market value on the date of grant
(the " New Option"). Subject to the accelerated vesting provisions set forth
herein, the Option will vest as to 25% of the shares subject to the Option one
year after the date of grant, and as to 1/16th of the shares subject to the
Option each calendar quarter thereafter on the same day of the month as the
grant date, so that the Option will be fully vested and exercisable four (4)
years from the date of grant, subject to Employee's continued employment with
the Company (or any parent or subsidiary of the Company) on the relevant vesting
dates. The Option will be subject to the terms, definitions and provisions of
the Company's 1997 Stock Plan (the "Plan") and standard form of option agreement
by and between Employee and the Company (the "Option Agreement"), both of which
documents are hereby incorporated by reference.
4. Waiver of Acceleration Provisions. Employee hereby waives the
provisions of Section 11.2(c) of the 1997 HomeGrocer Plan and Section _____ of
the 1999 HomeGrocer Plan with respect to the HomeGrocer Options and any other
acceleration of vesting provided for in any stock option agreements between
Employee and HomeGrocer that are to be assumed in connection with and pursuant
to the Merger Agreement. The HomeGrocer Options shall in all other respects be
subject to the terms and conditions of this Agreement, the Merger Agreement, the
HomeGrocer Plan and the option agreement originally executed by Employee and the
HomeGrocer (the "HomeGrocer Option Agreement"), all of which documents are
hereby incorporated by reference. This Section shall not apply to any stock
option granted after the Effective Time nor to any vesting acceleration provided
for in this Agreement.
5. Employee Benefits. Employee shall be entitled to participate in the
employee benefit plans and programs of the Company, if any, on the same terms
and conditions as other similarly-situated employees to the extent that
Employee's position, tenure, salary, age, health and other qualifications make
Employee eligible to participate in such plans or programs, subject to the rules
and regulations applicable thereto. The Company reserves the right to cancel or
change the benefit plans and programs it offers to its employees at any time.
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6. Expenses. The Company will reimburse Employee for reasonable travel,
entertainment or other expenses incurred by Employee in the furtherance of or in
connection with the performance of Employee's duties hereunder, in accordance
with the Company's expense reimbursement policy as in effect from time to time.
7. Severance.
(a) Involuntary Termination. If within eighteen (18) months of the
Effective Time (i) Employee terminates Employee's employment with the Company
(or any parent or subsidiary of the Company) for "Good Reason" (as defined
herein) or (ii) the Company (or any parent or subsidiary of the Company)
terminates Employee's employment for other than "Cause" (as defined herein), and
Employee signs and does not revoke a standard release of claims with the Company
in a form acceptable to the Company, then, subject to Employee's compliance with
the provisions of Section 9, (i) Employee shall receive severance pay (less
applicable withholding taxes) for a period of twelve (12) months from the date
of such termination equal to the pro-rata portion of Employee's Base Salary (as
then in effect) for such period of time, to be paid periodically in accordance
with the Company's normal payroll policies, and (ii) the New Option and
HomeGrocer Options (the New Option and the HomeGrocer Options shall collectively
be referred to as the "Options") shall vest as to an additional 50% of the
shares subject to such Options (that is, in addition to the shares subject to
such Options which have vested and are exercisable as of the date of such
termination), but in no event shall the shares which so vest exceed the total
number of shares subject to such Options.
(b) Voluntary Termination; Termination for Cause. If Employee's
employment with the Company terminates (i) voluntarily by Employee or (ii) for
Cause by the Company, then Employee shall not be entitled to receive severance
or other benefits hereunder.
8. Definitions.
(a) Cause. For purposes of this Agreement, "Cause" is defined as
Employee's dishonesty, fraud, misconduct, unauthorized use or disclosure of
confidential information or trade secrets, or conviction or confession of a
crime punishable by law (except minor violations), in each case as determined by
the Board, which such determinations shall be conclusive and binding on the
parties hereto.
(b) Change of Control.
(i) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) becomes the
"beneficial owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing fifty percent (50%) or
more of the total voting power represented by the Company's then outstanding
voting securities; or
(ii) A change in the composition of the Board occurring
within a two-year period, as a result of which fewer than a majority of the
directors are Incumbent Directors. "Incumbent Directors" shall mean directors
who either (A) are directors of the Company as of the date hereof, or (B) are
elected, or nominated for election, to the Board with the affirmative votes of
at least a majority of the Incumbent Directors at the time of such election or
nomination (but shall
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not include an individual whose election or nomination is in connection with an
actual or threatened proxy contest relating to the election of directors to the
Company); or
(iii) The consummation of a merger or consolidation of the
Company with any other corporation, other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) at least fifty
percent (50%) of the total voting power represented by the voting securities of
the Company or such surviving entity outstanding immediately after such merger
or consolidation; provided, however, any person who acquired securities of the
Company prior to the occurrence of a merger or consolidation in contemplation of
such transaction, and who after such transaction possesses direct or indirect
beneficial ownership of at least ten percent (10%) of the securities of the
Company or the surviving entity immediately following such transaction shall not
be included in the group of shareholders of the Company immediately prior to
such transaction; or
(iv) The consummation of the sale, lease or other
disposition by the Company of all or substantially all the Company's assets.
(c) Good Reason. For purposes of this Agreement, "Good Reason" means
the occurrence of any of the following events or conditions after the Effective
Time and the failure of the Company (or any parent or subsidiary of the Company
which may be employing Employee at such time) to cure such event or condition
within thirty (30) days after the receipt of written notice by Employee:
(i) A change in Employee's status, title, position or
responsibilities that represents a substantial reduction in the status, title,
position or responsibilities as in effect immediately prior thereto; the
assignment of Employee of any duties or responsibilities that are materially
inconsistent with such status, title, position or responsibilities; or any
removal of Employee from or failure to reappoint or reelect Employee to any such
positions, except in connection with the termination of Employee's employment
for Cause, for disability or as the result of Employee's death, or by Employee
for other than Good Reason;
(ii) A reduction in Employee's Base Salary;
(iii) The Company (or any parent or subsidiary of the
Company employing Employee) requiring Employee (without Employee's consent) to
be based at any place outside a thirty-five (35) mile radius of Employee's place
of employment, except for reasonably required travel requirements;
(iv) The Company's failure to (A) continue in effect any
material compensation or benefit plan (or the substantial equivalent thereof) in
which Employee participates (immediately after the Effective Time), or (B)
provide Employee with compensation and benefits substantially equivalent (in
terms of benefit levels and/or reward opportunities) to those provided for under
each material employee benefit plan, program and practice to employees of
similar rank and position in the Company; or
(v) Any material breach by the Company of its obligations to
Employee under this Agreement.
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(d) Merger Agreement. For purposes of this Agreement, "Merger
Agreement" shall mean the Agreement and Plan of Reorganization by and among
Webvan Xxxxx, Inc., Merger Sub and Home Grocer dated June 20, 2000.
9. Conditional Nature of Severance Payments.
(a) Noncompete. Employee acknowledges that the nature of the
Company's business is such that if Employee were to become employed by, or
substantially involved in, the business of a competitor of the Company during
the twelve (12) month period following the termination of Employee's employment
with the Company, it would be very difficult for Employee not to rely on or use
the Company's trade secrets and confidential information. Thus, to avoid the
inevitable disclosure of the Company's trade secrets and confidential
information, Employee agrees and acknowledges that Employee's right to receive
the severance payments set forth in Section 7 (to the extent Employee is
otherwise entitled to such payments) shall be conditioned upon Employee not
directly or indirectly engaging in (whether as an employee, consultant, agent,
proprietor, principal, partner, stockholder, corporate officer, director or
otherwise), nor having any ownership interested in or participating in the
financing, operation, management or control of, any person, firm, corporation or
business that competes with Company or is a customer of the Company. Upon any
breach of this section, all severance payments pursuant to this Agreement shall
immediately cease.
(b) Non-Solicitation. Until the date one (1) year after the
termination of Employee's employment with the Company for any reason, Employee
agrees and acknowledges that Employee's right to receive the severance payments
set forth in Section 7 (to the extent Employee is otherwise entitled to such
payments) shall be conditioned upon Employee not either directly or indirectly
soliciting, inducing, attempting to hire, recruiting, encouraging, taking away,
hiring any employee of the Company or causing an employee to leave his or her
employment either for Employee or for any other entity or person.
(c) Understanding of Covenants. Employee represents that Employee (i)
is familiar with the foregoing covenants not to compete and not to solicit, and
(ii) is fully aware of Employee's obligations hereunder, including, without
limitation, the reasonableness of the length of time, scope and geographic
coverage of these covenants.
10. Confidential Information. If Employee has not previously done so,
Employee agrees to enter into the Employee Confidential Information and
Invention Assignment Agreement (the "Confidential Information Agreement"), which
document is hereby incorporated by reference, as a condition of employment
hereunder.
11. Assignment. This Agreement will be binding upon and inure to the
benefit of (a) the heirs, executors and legal representatives of Employee upon
Employee's death and (b) any successor of the Company. Any such successor of the
Company will be deemed substituted for the Company under the terms of this
Agreement for all purposes. For this purpose, "successor" means any person,
firm, corporation or other business entity which at any time, whether by
purchase, merger or otherwise, directly or indirectly acquires all or
substantially all of the assets or business of the Company. None of the rights
of Employee to receive any form of compensation payable pursuant to this
Agreement may be assigned or transferred except by will or the laws of descent
and distribution.
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Any other attempted assignment, transfer, conveyance or other
disposition of Employee's right to compensation or other benefits will
be null and void.
12. Notices. All notices, requests, demands and other communications
called for hereunder shall be in writing and shall be deemed given (i) on the
date of delivery if delivered personally, (ii) one (1) day after being sent by a
well established commercial overnight service, or (iii) four (4) days after
being mailed by registered or certified mail, return receipt requested, prepaid
and addressed to the parties or their successors at the following addresses, or
at such other addresses as the parties may later designate in writing:
If to the Company:
Webvan Xxxxx, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attn: XXXXX XXXX SVP HR
If to Employee:
at the last residential address known by the Company.
13. Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement will continue in full force and effect without said
provision.
14. Arbitration.
(a) Employee agrees that any dispute or controversy arising out of,
relating to, or in connection with this Agreement, or the interpretation,
validity, construction, performance, breach, or termination thereof, shall be
settled by binding arbitration to be held in [COUNTY, WASHINGTON] in accordance
with the National Rules for the Resolution of Employment Disputes then in effect
of the American Arbitration Association (the "Rules"). The arbitrator may grant
injunctions or other relief in such dispute or controversy. The decision of the
arbitrator will be final, conclusive and binding on the parties to the
arbitration. Judgment may be entered on the arbitrator's decision in any court
having jurisdiction.
(b) The arbitrator(s) will apply Washington law to the merits of any
dispute or claim, without reference to rules of conflicts of law. The
arbitration proceedings will be governed by federal arbitration law and by the
Rules, without reference to state arbitration law. The Employee hereby consents
to the personal jurisdiction of the state and federal courts located in
Washington for any action or proceeding arising from or relating to this
Agreement or relating to any arbitration in which the parties are participants.
(c) EXECUTIVE HAS READ AND UNDERSTANDS THIS SECTION, WHICH DISCUSSES
ARBITRATION. EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EXECUTIVE
AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH
THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE,
BREACH OR
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TERMINATION THEREOF TO BINDING ARBITRATION, AND THAT THIS ARBITRATION
CLAUSE CONSTITUTES A WAIVER OF EXECUTIVE'S RIGHT TO A JURY TRIAL AND
RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE
EMPLOYER/EMPLOYEE RELATIONSHIP, INCLUDING BUT NOT LIMITED TO,
DISCRIMINATION CLAIMS.
15. Integration. This Agreement, together with the Plan, the Option
Agreement, the Merger Agreement, the 1997 HomeGrocer Plan, the 1999 HomeGrocer
Plan, the HomeGrocer Option Agreements and the Confidential Information
Agreement represent the entire agreement and understanding between the parties
as to the subject matter herein and supersede all prior or contemporaneous
agreements whether written or oral. No waiver, alteration, or modification of
any of the provisions of this Agreement will be binding unless in writing and
signed by duly authorized representatives of the parties hereto.
16. Waiver of Breach. The waiver of a breach of any term or provision of
this Agreement, which must be in writing, shall not operate as or be construed
to be a waiver of any other previous or subsequent breach of this Agreement.
17. Headings. All captions and section headings used in this Agreement
are for convenient reference only and do not form a part of this Agreement.
18. Tax Withholding. All payments made pursuant to this Agreement will
be subject to withholding of applicable taxes.
19. Governing Law. This Agreement will be governed by the laws of the
State of Washington (with the exception of its conflict of laws provisions).
20. Acknowledgment. Employee acknowledges that he has had the
opportunity to discuss this matter with and obtain advice from his private
attorney, has had sufficient time to, and has carefully read and fully
understands all the provisions of this Agreement, and is knowingly and
voluntarily entering into this Agreement.
21. Contingency of Agreement upon Merger. This Agreement shall be null
and void and have no effect unless the Merger is consummated.
22. Counterparts. This Agreement may be executed in counterparts, and
each counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by their duly authorized officers, as of the day and
year first above written.
WEBVAN GROUP, INC.
By: /s/ F. Xxxxx Xxxx Date: 6/20/00
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Title: Senior Vice President,
Human Resources
Date: 6/20/00
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/s/ Xxx Xxxxxx
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[XXX XXXXXX EMPLOYEE]
