EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This Agreement made effective as of January 3, 2000 by and between LivePerson,
Inc. (the "Company"), a Delaware corporation, and Xxxxx Xxxxxx, ("Executive").
Whereas the Company wishes to retain the services of the Executive for the
period and upon the terms of this Agreement and the Executive wishes to serve in
the employ of the Company on a full time basis for the period and upon the terms
and conditions provided in this Agreement.
Now therefore, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
SECTION I
EMPLOYMENT
The company agrees to employ the Executive and the Executive agrees to be
employed by the Company, for the Period of Employment as provided in Paragraph
III A below and upon the terms and conditions provided in the Agreement.
SECTION II
POSITION AND RESPONSIBILITIES
During the Period of Employment the Executive agrees to serve as Chief
Technology Officer and to be responsible for the typical management
responsibilities expected of an officer holding such position.
SECTION III
TERMS AND DUTIES
A. PERIOD OF EMPLOYMENT
The period of the Executive's employment under this Agreement will commence as
of the first date and shall continue for 3 years unless terminated as provided
in this agreement.
B. DUTIES
During the Period of Employment and except for illness, incapacity or any
reasonable vacation periods in any calendar year, the Executive shall devote his
business time, attention and skill exclusively to the business and affairs of
the Company.
SECTION IV
A. COMPENSATION
For all services rendered by the Executive in any capacity during the Period of
Employment, the Executive shall be compensated as follows:
i. BASE SALARY
The Company shall pay the Executive a fixed Base Salary at the rate of not less
than $165,000 per year. Base salary shall be payable according to the customary
payroll practices of the Company.
ii. ANNUAL INCENTIVE AWARDS
The Executive will be eligible for discretionary annual incentive compensation
awards. The initial target annual bonus shall be $40,000, half of which will be
paid in advance with Executive's first pay check.
iii. LONG TERM INCENTIVE AWARDS
The Executive will be eligible for discretionary stock option awards as may be
awarded by the Board of Directors.
iv. UP-FRONT PAYMENT
The Company shall pay the Executive an upfront payment of $20,000.
v. REIMBURSEMENT FOR MOVING
The Company will reimburse the Executive for up to $30,000 for documented moving
expenses incurred in his move to the New York area.
B. ADDITIONAL BENEFITS
In addition, the Executive will be entitled to participate in all employee
benefit plans which any salaried employees are eligible to participate in.
Nothing in this Agreement will preclude the Company from amending or terminating
any of the plans applicable to salaried employees as long as such amendment or
termination is applicable to all salaried employees. The Executive will be
entitled to three weeks vacation annually.
SECTION V
BUSINESS EXPENSES
Upon presentation of appropriate documentation, the Company will reimburse the
Executive for all reasonable travel and other expenses incurred by the Executive
in connection with the performance of his duties and obligations under this
Agreement.
SECTION VI
DISABILITY
In the event of disability of the Executive during the Period of Employment the
Company will continue to pay the Executive according to the compensation
provisions of this Agreement during the period of his disability. However, in
the event the Executive is disabled for a continuous period of 90 days or more,
the Company may terminate the employment of the Executive and all unvested stock
options held by the Executive which would have vested during the 12 months
following such termination shall be deemed vested on the date of such
termination and shall remain exercisable until the applicable expiration dates
contained in the applicable stock option agreements pursuant to which such
options were granted. In addition, normal compensation will cease except for
earned but unpaid Base Salary and Incentive Compensation Awards which would be
payable in a pro-rated basis for the year in which the termination occurs. The
Company will also continue the benefits described in this Agreement for 12
months subsequent to such termination.
SECTION VII
DEATH
In the event of death of the Executive during the Period of Employment the
Company's obligation to make payments under this Agreement shall cease as of the
date of death, except for earned but unpaid Base Salary. All unvested options
held by the executive which would have vested during the 12 months following the
death shall be deemed vested on the date of death.
SECTION VIII
EFFECT OF TERMINATION OF EMPLOYMENT
A. If the Executive's employment terminates due to a Without Cause Termination
as defined later in this Agreement, Company will continue to pay the
Executive his Base Salary for a period of four months following such
Termination. The benefits described in this Agreement will continue for four
months. In the event of any such Without Cause Termination, all unvested
stock options held by the Executive which would have vested during the
twelve months following such termination shall continue to vest under their
original vesting schedule and shall remain exercisable until the original
expiration dates contained in the applicable stock option agreements
pursuant to which such options were granted.
B. If the Executive's employment Terminates for Cause, as defined later in this
Agreement, earned but unpaid Base Salary will be paid on a pro-rated basis
for the year in which the termination occurs. Earned but unpaid incentive
awards for any prior years shall be payable in full, but no other payments
will be made or benefits provided by the Company.
C. Upon termination of the Executive's employment other than for reasons due to
death, disability, or pursuant to Paragraph A of this Section and Section
XI, the Period of Employment and the Company's obligation to make payments
under this Agreement will cease as of the date of the termination except as
expressly defined in this Agreement.
D. For this Agreement the following meanings:
i. "Termination for Cause" means termination of the
Executive's employment by the Company upon a good faith
determination by the Company, by written notice to the
Executive specifying the event relied upon for such
termination, due to the Executive's serious, willful
misconduct or gross negligence with respect to his
duties under this Agreement (including but not limited
to conviction for a felony or perpetration of a common
law fraud) which has resulted or is likely to result in
economic damage to the Company and which, in any case,
is not cured (if such is capable of being cured) within
30 days after written notice thereof to the Executive.
ii. "Without Cause Termination" means termination of the
Executive's employment by the Company other than due to
death, disability, expiration of the Period of
Employment or Termination for Cause.
SECTION IX
OTHER DUTIES OF THE EXECUTIVE DURING AND
AFTER THE PERIOD OF EMPLOYMENT
A. The Executive will with reasonable notice during, or after the Period of
Employment furnish information as may be in his possession and cooperate
with the Company as may be reasonably requested in connection with any
claims or legal action in which the Company is or may become a party.
B. The Executive recognizes and acknowledges that all information pertaining to
the software, business, clients, customers or other relationship of the
Company is confidential and is a unique and valuable asset of the Company.
Access to and knowledge of this information are essential to the performance
of the Executive's duties under this Agreement. The Executive will not
during the Period of Employment or after, except to the extent reasonably
necessary in performance of the duties under this Agreement, give to any
person, firm, governmental agency or other entity any information concerning
the affairs, business, clients, or customers of the Company except as
required by law. The Executive will not make use of this type of information
for his own purposes or for the benefit of any person or organization other
than the Company. The Executive will use his best efforts to prevent the
disclosure of this information by others. All records, memoranda, software
or intellectual property whether made by the Executive or otherwise coming
into his possession are confidential and will remain the property of the
Company.
C. During the Period of Employing and for a 12 month period thereafter (the
"Restricted Period") the Executive will not use his status with the Company
to obtain goods or services from another organization on terms that would
not be available to him in the absence of his relationship to the Company.
D. During the Restricted Period, the Executive will not make any statement or
perform any acts intended to or which may have the effect of advancing the
interest of any existing or prospective competitors of the Company or in any
way injuring the interest of the Company.
E. During the Restricted Period, the Executive, without prior express written
approval by the Chief Executive, will not engage in, or directly or
indirectly own or hold proprietary interest in, manage, operate, or control
or join or participate in the ownership, management, operation or control
of, or furnish any capital to or be connected in any manner with, any party
which competes with the business of the Company. For the purposes of this
Agreement, proprietary interest means legal or equitable ownership, whether
through stock holding or otherwise, or an equity interest in a business,
firm or entity or ownership of more than 5% of any class of equity interest
in a publicly-held company and the term "affiliate" shall include all
subsidiaries and licensees of the Company.
F. During the Restricted Period, the Executive, without express written
approval from the Chief Executive, will not solicit any clients of the
Company for any existing business of the Company.
G. During the Restricted Period, the Executive will not solicit or induce any
employee of the Company to terminate their employment with the Company, nor
shall the executive during such period directly or indirectly engage,
employ, compensate or permit any person with which the Executive is
affiliated to engage or employ any employee of the Company.
H. The Company's obligation to make any payments after the Period of Employment
shall cease upon any violation of this Section IX. The company must first
provide written notice to the Executive specifying the act which has
violated this Section IX, and if such violation is not cured within 15 days,
if capable of being cured, than the Company will inform the Executive of its
termination of its post-employment payments.
I. The period of time during which the provisions of this Section IX shall be
in effect shall be extended by the length of time during which the Executive
is in breach of this section.
J. The Executive agrees that the restrictions contained in this section IX are
an essential element of the compensation the Executive is granted hereunder
and but for the Executive's agreement to comply with such restrictions, the
Company would not have entered into this Agreement.
SECTION X
INDEMNIFICATION, LITIGATION
A. The Company will indemnify the Executive to the fullest extent permitted by
the laws of Delaware in effect at that time, or the certificate of
incorporation and by-laws of the company, whichever affords the greater
protection to the Executive.
B. In the event of litigation or other proceeding between the Company and the
Executive with respect to the subject matter of this Agreement, the Company
shall reimburse the Executive for all reasonable costs and expenses related
to the litigation or proceeding, including attorney's fees and expenses,
provided that the litigation or proceeding results in either settlement
requiring the Company to make a payment to the Executive or judgment in
favor of the Executive.
SECTION XI
CHANGE IN CONTROL
In the event there is a Change in Control of the ownership of the Company, and
within 24 months of such Change in Control, the Executive is terminated under a
Without Cause Termination, then the Company shall pay to the Executive a lump
sum amount equal to 66.6% of his Annual Base Salary as in effect at the time of
such termination. In addition, a) any stock options granted to the Executive
prior to termination that would vest in the 24 months following such termination
will be fully vested upon termination and shall remain exercisable until the
applicable expiration dates contained in the applicable stock options agreements
pursuant to which such stock options were granted; and b) the benefits described
in this Agreement will be continued for eight months from the date of
termination.
A "Change in Control" shall be deemed to have occurred if (i) a tender offer
shall be made and consummated for 50.1% or more of the outstanding voting
securities of the Company (ii) the Company shall be merged or consolidated with
another company and as a result less than 50% of the outstanding voting
securities of the surviving corporation shall be owned in the aggregate by the
former shareholder of the Company, (iii) the Company shall sell substantially
all of its assets to another company which is not a subsidiary of the Company,
or (iv) a person, within the meaning of Section 3(a)(9) or of Section 13(d) (3)
of the Securities Act of 1934 shall acquire 51% or more of the outstanding
voting securities of the Company.
SECTION XII
WITHHOLDING TAXES
The company may directly or indirectly withhold from any payments under this
Agreement all federal, state, city or other taxes that shall be required
pursuant to any law or governmental regulation.
SECTION XIII
EFFECTIVE PRIOR AGREEMENTS
This Agreement contains the entire understanding between the Company and the
Executive with respect to the subject matter. Where there are conflicting
provisions between this Agreement and any stock option agreements made between
the Executive and the Company, the terms of this Agreement shall prevail.
SECTION XIV
CONSOLIDATION, MERGER OR SALE OF ASSETS
Nothing in this Agreement shall preclude the Company from consolidating or
merging into or with, or transferring all or substantially all of its assets to,
another corporation which assumes this Agreement and all obligations of the
Company hereunder. Upon such a consolidation, merger or sale of assets the term
"Company" as used will mean the other corporation and this Agreement shall
continue in full force and effect.
SECTION XV
NO OTHER AGREEMENTS
The Executive represents that he is not bound by any other employment agreement
or other covenants that would restrict him from entering into this agreement.
SECTION XVI
MODIFICATION
This Agreement may not be modified or amended except in writing signed by the
parties. No term or condition of this Agreement will be deemed to have been
waived except in writing by the party charged with the waiver. A waiver shall
operate only as to the specific term or condition waived and will not constitute
a waiver for the future or act on anything other than that which is specifically
waived.
SECTION XVII
GOVERNING LAW
This Agreement has been executed and delivered in the State of New York and its
validity, interpretation, performance and enforcement shall be governed by the
laws of that state.
IN WITNESS WHEREOF the undersigned have executed this Agreement as of the date
just above written.
LivePerson, Inc.
/s/ Xxxxxx XxXxxxxx
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Xxxxxx XxXxxxxx, President
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
