EXHIBIT 10.9
EMPLOYMENT AGREEMENT
--------------------
This Agreement, dated as of August 4, 1998, is between XOOM, Inc. ("XOOM"), and
Xxxx Xxxxxxxxx ("Xx. Xxxxxxxxx"). XOOM and Xx. Xxxxxxxxx agree to the following
terms and conditions of employment.
1. Position and Responsibilities. Xx. Xxxxxxxxx is employed by XOOM as Vice
President-Finance and Chief Financial Officer and agrees to perform all services
appropriate to that position, as well as such other services as may be assigned
by XOOM. Xx. Xxxxxxxxx shall devote his best efforts and full-time attention to
the performance of his duties and shall not accept any other employment or
engage in any other business, commercial, or professional activity that is or
may be competitive with XOOM, that might create a conflict of interest with
XOOM, or that otherwise might interfere with the business of XOOM or any
affiliate. Xx. Xxxxxxxxx may serve as a director or as a member of the advisory
board of any company provided that he complies with the restrictions set forth
in Section 1 and Section 4.
2. Compensation and Benefits. XOOM shall pay Xx. Xxxxxxxxx a base salary at the
rate of One hundred forty four thousand dollars ($144,000) per year and a
discretionary bonus of up to Ten Thousand Dollars ($10,000) per quarter to be
paid upon achievement of personal and company targets to be defined. Xx.
Xxxxxxxxx will be eligible for an annual review of this agreement no later than
one year from the date of this agreement.
Xx. Xxxxxxxxx shall receive benefits from all present and future benefit plans
set forth in XOOM's policies and generally made available to similarly situated
employees (as these policies may be amended). XOOM may, in its sole discretion,
adjust Xx. Xxxxxxxxx'x compensation and benefits provided under this Agreement.
3. Termination of Employment.
(a) By Employer Not For Cause. Except as modified in section 3(c), below, at
any time, XOOM may terminate Xx. Xxxxxxxxx'x employment for any reason,
with or without Cause, by providing one hundred eighty (180) days' advance
written notice, and shall have the option, in its discretion, to terminate
Xx. Xxxxxxxxx'x employment at any time prior to the end of such notice
period, provided XOOM pays Xx. Xxxxxxxxx an amount equal to the base
compensation Xx. Xxxxxxxxx would have earned through the balance of the
above notice period plus benefits, thereafter all of XOOM's obligations
under this Agreement shall cease. In the event that XOOM exercises its
right to terminate Xx. Xxxxxxxxx'x employment upon notice under the terms
of this subsection, Xx. Xxxxxxxxx shall be immediately entitled to
exercise one hundred percent (100%) of any stock options granted by XOOM
that had not previously vested. If the stock of XOOM or any parent company
is publicly traded, Xx. Xxxxxxxxx'x exercise of stock options subject to
vesting under this subsection must be made within four (4) months of the
date upon which Xx. Xxxxxxxxx was informed of XOOM's intent to terminate
his employment.
1
In the event XOOM's stock is not publicly traded, Xx. Xxxxxxxxx'x exercise of
stock options must be made within twelve (12) months of the date upon which Xx.
Xxxxxxxxx was informed of XOOM's intent to terminate his employment.
XOOM may dismiss Xx. Xxxxxxxxx with or without cause notwithstanding anything to
the contrary contained in or arising from any statements, policies, or practices
of XOOM relating to employment, discipline, or termination.
(b) By Employer For Cause. Except as modified in section 3(c), below, at any
time, XOOM may terminate Xx. Xxxxxxxxx for Cause (as defined below). XOOM
shall pay Xx. Xxxxxxxxx all compensation then due; thereafter, all of
XOOM's obligations under this Agreement shall cease. "Cause" shall
include:
1. unsatisfactory performance, misconduct, failure to follow
policies or procedures, material breach of this Agreement, and
excessive absenteeism. XOOM shall provide at least one
appropriate written warning of specific deficiencies and provide
a reasonable period not to exceed thirty days for Xx. Xxxxxxxxx
to cure any such deficiencies.
2. to the extent permitted by law, unavailability for work due to
disability for more than ninety (90) days in any one (1) year
period.
3. Committing a felony, an act of fraud against or the willful
misappropriation of property belonging to XOOM.
4. Conviction in a court of competent jurisdiction of a felony or
misdemeanor which adversely and materially affects the ability of
the executive to perform his duties, obligations and
responsibilities herein or the good name, goodwill or reputation
of XOOM.
(c) By Employer Following Change in Control or Corporate Transaction.
Notwithstanding the foregoing, in the event that Xx. Xxxxxxxxx'x
employment is involuntarily terminated by XOOM, or any successor or assign
of XOOM, for any reason, with or without cause (as defined above),
following a Change in Control or Corporate Transaction or the execution of
a letter of intent that, by its terms, ultimately results in a Change in
Control or Corporate Transaction, as those terms are defined in the XOOM,
Inc. 1998 Stock Incentive Plan, which is incorporated by reference herein,
Xx. Xxxxxxxxx shall be entitled to payment of an amount equal to six
months (6) month's base compensation plus benefits; thereafter, all
obligations of XOOM, or any successor or assign of XOOM, under this
Agreement shall cease. In the event that Xx. Xxxxxxxxx'x employment is
terminated under the terms of this subsection, Xx. Xxxxxxxxx shall be
immediately entitled to exercise any and all stock options granted by XOOM
that had not previously vested. In the event the company effecting the
change in control or XOOM is publicly traded, any exercise of Xx.
Xxxxxxxxx'x stock options subject to vesting under this subsection must be
made within four (4) months of the date upon which Xx. Xxxxxxxxx was
informed by XOOM, or any successor or assign of XOOM, of its intent to
terminate his employment, whether such termination is with or without
notice. If the company effecting the change in control or XOOM is not
publicly traded, Xx. Xxxxxxxxx may have up to twelve (12) months from the
date upon which Xx. Xxxxxxxxx was informed by XOOM, or any successor or
assign of XOOM, of its intent to terminate his employment, to exercise his
options subject to vesting under this subsection.
2
(d) By Employee. At any time, Xx. Xxxxxxxxx may terminate his employment for
any reason, with or without cause, by providing XOOM thirty (30) days'
advance written notice. XOOM shall have the option, in its complete
discretion, to make Xx. Xxxxxxxxx'x termination effective at any time
prior to the end of such notice period, provided XOOM pays Xx. Xxxxxxxxx
all compensation due and owing through the last day actually worked, plus
an amount equal to the base salary Xx. Xxxxxxxxx would have earned through
the balance of the above notice period, not to exceed thirty (30) days;
thereafter, all of XOOM's obligations under this Agreement shall cease.
(e) Termination Obligations. Xx. Xxxxxxxxx agrees that all property, including
tangible Proprietary Information (as defined below), documents, records,
notes, contracts, and computergenerated materials furnished to or prepared
by Xx. Xxxxxxxxx related to his employment, belongs to XOOM and shall be
returned promptly to XOOM upon termination. Xx. Xxxxxxxxx'x obligations
under this subsection shall survive the termination of his employment and
the expiration of this Agreement.
4. Proprietary Information. "Proprietary Information" is all information and
any idea pertaining in any manner to the business of XOOM (or any affiliate),
its employees, clients, consultants, or business associates, which was produced
by any employee of XOOM in the course of his or her employment or otherwise
produced or acquired by or on behalf of XOOM. Proprietary Information shall
include, without limitation, trade secrets, product ideas, inventions,
processes, formulas, data, know-how, software and other computer programs,
copyrightable material, marketing plans, strategies, sales, financial reports,
forecasts, and customer lists. All Proprietary Information not generally known
outside of XOOM's organization, and all Proprietary Information so known only
through improper means, shall be deemed "Confidential Information." During his
employment, Xx. Xxxxxxxxx shall use Proprietary Information, and shall disclose
Confidential Information, only for the benefit of XOOM and as is necessary to
perform his job responsibilities under this Agreement. Following termination,
Xx. Xxxxxxxxx shall not use any Proprietary Information and shall not disclose
any Confidential Information, except with the express written consent of XOOM.
By way of illustration and not in limitation of the foregoing, following
termination, Xx. Xxxxxxxxx shall not use any Confidential Information to compete
against XOOM or employ any of its employees. Xx. Xxxxxxxxx further agrees that
for one (1) year following termination, he shall not solicit any customer or
employee of XOOM. Xx. Xxxxxxxxx'x obligations under this Section shall survive
the termination of his employment and the expiration of this Agreement.
5. Integration and Amendment. This Agreement is intended to be the final,
complete, and exclusive statement of the terms of Xx. Xxxxxxxxx'x employment.
This Agreement supersedes all other prior and contemporaneous agreements and
statements, whether written or oral, express or implied, pertaining in any
manner to the employment of Xx. Xxxxxxxxx, and it may not be contradicted by
evidence of any prior or contemporaneous statements or agreements. To the extent
that the practices, policies, or procedures of XOOM, now or in the future, apply
to Xx. Xxxxxxxxx and are inconsistent with the terms of this Agreement, the
provisions of this Agreement shall control.
3
This Agreement may not be amended except by a written agreement signed by each
of the parties. Failure to exercise any right under this Agreement shall not
constitute a waiver of such right.
6. Interpretation. This Agreement shall be governed by and construed in
accordance with the law of the State of California. This Agreement shall be
construed as a whole, according to its fair meaning, and not in favor of or
against any party. By way of example and not in limitation, this Agreement shall
not be construed in favor of the party receiving a benefit nor against the party
responsible for any particular language in this Agreement. If a court or
arbitrator holds any provision of this Agreement to be invalid, unenforceable,
or void, the remainder of this Agreement shall remain in full force and effect.
Captions are used for reference purposes only and should be ignored in the
interpretation of the Agreement.
7. Acknowledgment. Xx. Xxxxxxxxx acknowledges that he has had the opportunity
to consult legal counsel in regard to this Agreement, that he has read and
understands this Agreement, that he is fully aware of its legal effect, and that
he has entered into it freely and voluntarily and based on his own judgment and
not on any representations or promises other than those contained in this
Agreement.
The parties have duly executed this Agreement as of the date first written
above.
/s/ Xxxx Xxxxxxxxx /s/ Xxxxx Xxxxx
------------------- ---------------------
By: Xxxx Xxxxxxxxx By: Xxxxx Xxxxx
Its: Chief Financial Officer Its: Chairman
4
