Exhibit 10.33
ONESOFT CORPORATION
0000 Xxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
February 22, 2000
Xxxx X. Xxxxx
Re: Employment Agreement
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Dear Xxxx:
This letter is to confirm our understanding and agreement with respect to (i)
your employment by OneSoft Corporation (the "Company") for the period from and
after Xxxxx 00, 0000, (xx) your agreement to protect and preserve information
and property which is confidential and proprietary to the Company, (iii) your
agreement not to solicit employees, partners or customers of OneSoft, (iv) your
agreement not to disparage the Company, and (v) your agreement not to compete
with the Company (the terms and conditions set forth in this letter shall
hereinafter be referred to as this "Agreement"). In consideration of the mutual
promises and covenants contained in this Agreement and for other good and
valuable consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, the Company and you have agreed as follows:
1. Employment. The Company shall employ you, and you agree to be employed by
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the Company, as President and Chief Operating Officer ("COO"), and you agree to
perform the services and fulfill the responsibilities consistent with such
position, and such other services and responsibilities as may be prescribed by
the Board of Directors or Chief Executive Officer ("CEO") from time to time
which are consistent with such position and the other terms hereof. You agree
to devote substantially all of your business time to the business of the
Company; provided, however, that you may continue your participation on the
Boards of Directors of either the companies or organizations listed on Exhibit A
or, with prior written consent of the CEO of the Company (which shall not be
withheld or delayed unreasonably), any other company or organization as long as
such participation on any such Board does not interfere with the performance of
your duties to the Company or conflict with your obligations under Section 5 of
this Agreement.
2. Term of Employment.
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(a) Term; Termination. Your employment shall be governed by this
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Agreement, commencing as of March 15, 2000 and continuing through
March 14, 2004; provided, however, that this Agreement may be renewed
upon the written
agreement of the parties for additional periods of no more than two
(2) years (the original period and any successive renewal thereof, if
any, being hereinafter referred to as the "Term"). If not renewed
pursuant to this Section, your employment by the Company will
terminate at the end of the Term. Notwithstanding the foregoing, your
employment hereunder may be terminated upon the first to occur of the
following:
(i) immediately upon your death;
(ii) by the Company:
(A) following your failure, due to illness, accident or any
other physical or mental incapacity, to perform the
services provided for hereunder for an aggregate of ninety
(90) days within any period of one hundred and twenty (120)
consecutive days during the term hereof ("Disability");
(B) for Cause or by a Constructive Termination (each as
hereinafter defined); or
(C) subject to Section 3(d) hereof, without Cause; or
(iii) by you, voluntarily, upon ninety (90) days' prior written
notice to the Company.
Subject to Section 3 hereof, the right of the Company to terminate your
employment hereunder, to which you hereby agree, shall be exercisable by
written notice sent to you by the Company and shall be effective as of the
date of such notice. The termination of your employment for any reason
shall not result in the termination of your covenants and obligations under
Section 5 hereof.
(b) Definition of "Cause". Termination of your employment by the Company
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shall constitute a termination for "Cause" if such termination is for
one or more of the following reasons:
(i) any action or omission by you involving willful misconduct or
gross negligence which materially injures or threatens to injure
the Company's business or reputation, monetarily or otherwise;
(ii) your material violation of the Company's written policies
regarding discrimination, harassment or violence;
(iii) your willful and material violation of a material provision of
Section 5 of this Agreement, which violation, if curable, is not
cured within thirty (30)
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days of written notice to you thereof; or
(iv) your conviction of a felony, in connection with the performance
of your duties and responsibilities hereunder or which otherwise
materially and adversely affects your ability to perform such
duties and responsibilities or materially and adversely affects
or threatens to affect the business or reputation of the
Company.
(c) Definition of "Constructive Termination". As used herein, a
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"Constructive Termination" shall mean, in each case followed by the
written notice provided for in the immediately following sentence, (i)
a material and continued diminution by the Company in your authority,
functions, duties or responsibilities with the Company; (ii) a Change
of Control (as defined below); or (iii) a failure by the Company to
obtain an assumption of this Agreement by a successor in accordance
with Section 10(e). After the occurrence or existence of a
Constructive Termination, you may give written notice to the Company
thereof, upon which the Company shall be deemed to have effected such
a Constructive Termination, with the effects provided for in Section
2(e) and Sections 3(d), (h), and (i).
(d) Definition of "Change of Control". As used herein, a "Change of
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Control" shall be deemed to have occurred upon the occurrence of any
of the following:
(i) any sale, lease, exchange or other transfer (in one transaction
or a series of transactions) of all or substantially all of the
assets of the Company; or
(ii) any consolidation or merger of the Company (including, without
limitation, a triangular merger) where the existing shareholders
of the Company immediately prior to the consolidation or merger,
would not, immediately after the consolidation or merger,
beneficially own, directly or indirectly, shares representing in
the aggregate more than fifty percent (50%) of the combined
voting power of all the outstanding securities of the
corporation issuing cash or securities in the consolidation or
merger.
(e) Actions Upon Termination. Upon termination of your employment with
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the Company for any reason, you shall cease holding yourself out as an
employee of the Company and shall thereafter refrain from taking any
action purportedly on behalf of the Company.
3. Compensation.
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(a) Annual Compensation. In consideration for your services under this
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Agreement, you shall be paid a salary at the annual rate of three
hundred thousand dollars ($300,000.00) (your "Base Salary"), payable
in such installments as the Company generally pays salary to its
employees, less any amounts required to be withheld
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under applicable law. Your Base Salary shall be reviewed by the Board
of Directors or the Compensation Committee thereof annually, within
ninety (90) days after calendar year-end, and shall be increased (but
not decreased) as the Board or such committee may determine in their
sole discretion, effective as of January 1 of each year during the
Term (including any renewals thereof).
(b) Annual Incentive Bonus. In addition to the foregoing, you shall be
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eligible to receive an annual incentive bonus of up to two hundred
thousand dollars ($200,000.00), such bonus to be paid in quarterly
installments in the first year of the Term and annually thereafter in
such amounts as the Board of Directors or Compensation Committee or
their designee may determine in its sole discretion in recognition of
your performance and that of the Company in obtaining such performance
goals as the Board of Directors or Compensation Committee or their
designee may establish (any such annual incentive bonus is hereinafter
referred to as your "Annual Incentive Bonus"). Upon any termination
of your employment by the Company without Cause or by a Constructive
Termination, you shall receive a prorated portion of the maximum
Annual Incentive Bonus based on the proportion of the calendar year
through the termination date and your partial percentage
accomplishment or complete accomplishment of the performance goals set
for you, and such Bonus will be paid at such time as the Bonus is
determined and paid to the Company's senior executives. At all times,
the amount of the Annual Incentive Bonus and the criteria on which the
Annual Incentive Bonus is based are at the sole discretion of the
Board of Directors or Compensation Committee or their designee.
(c) Stock Option Eligibility. The Company will grant you an option to
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purchase four hundred thousand (400,000) shares of the Company's
common stock, the terms of which shall be set forth in a stock option
agreement approved by the Board of Directors ("Stock Option
Agreement") and executed simultaneously herewith. Such options will
vest according to the terms of the Stock Option Agreement and shall be
"non-qualified stock options".
(d) Termination Without Cause or by a Constructive Termination. In the
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event your employment shall be terminated during the Term by the
Company without Cause or by a Constructive Termination, you shall be
entitled to receive payment of an amount equal to twelve (12) months
of your annual Base Salary in effect immediately prior to such
termination plus a pro-rated portion of your maximum Annual Incentive
Bonus for such fiscal year in accordance with Section 3(b). Such
payments shall be made by the Company in accordance with its then
established payroll practices (but no later than thirty (30) days
after such termination) and such payments shall be less any applicable
federal, state, local or other employment-related deductions.
Notwithstanding any termination of your employment, you shall continue
to be bound by the provisions of this Agreement. The Company shall
have no obligation to make or continue any payment pursuant to this
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Section unless you are in material compliance with your obligations
under Section 5 and have signed the Release as set forth in Section
3(i).
(e) Termination with Cause or by You during Term. In the event your
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employment shall be terminated during the Term by the Company for
Cause or by you voluntarily (which shall not include any Constructive
Termination), no further compensation or benefits of any kind shall be
payable or provided to you hereunder, except for any amounts and
benefits then accrued but unpaid and health insurance benefits
required by applicable law; provided, however, that you shall continue
to be bound by the terms and conditions of this Agreement.
(f) Terminations Due to Death or Disability. In the event your employment
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shall be terminated during the Term by the Company due to your death
or Disability, you or your estate, as the case may be, shall be
entitled to receive any salary and benefits accrued but unpaid as of
the date of termination. The Company shall have no other obligations
to you under such circumstances except as set forth in the preceding
sentence.
(g) Expiration Occasioned by Company. If the Company determines under
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Section 2(a) above that the Term shall not be extended despite your
desire to extend such Term, and, subject to any earlier termination of
this Agreement in accordance with its terms, in which case this
Section 3(g) shall not apply, you shall be entitled to receive payment
of an amount equal to twelve (12) months of your annual Base Salary
then in effect immediately prior to such termination plus a pro-rated
portion of your maximum Annual Incentive Bonus for such fiscal year.
Such payments shall be made by the Company in accordance with its then
established payroll practices (but no later than thirty (30) days
after such termination) and shall be less any applicable federal,
state, local or other employment-related deductions. Furthermore, if
the Company decides not to extend the Term, then you shall be entitled
to the continuation of benefits set forth in Section 3(h). The Company
shall have no obligation to make or continue any payment pursuant to
this Section unless you are in material compliance with your
obligations under Section 5 and have signed the Release as set forth
in Section 3(i).
(h) Continuation of Benefits. In the event your employment hereunder is
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terminated by the Company for Cause or by you voluntarily (which shall
not include any Constructive Termination), then you may continue your
medical and dental benefits pursuant to the Consolidated Omnibus
Budget Reconciliation Act of 1985 ("COBRA") at your own cost. If your
employment hereunder is terminated during the Term by the Company
without Cause or pursuant to Section 3(g) or by a Constructive
Termination, and you choose to continue your benefits pursuant to
COBRA, the Company will reimburse you for the cost of the medical and
dental premiums for a period of eighteen (18) months, after which you
may continue the benefits at your own cost for the period of time
required by COBRA. The
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Company shall have no obligation to reimburse you for the cost of the
medical and dental premiums, unless you are in material compliance
with your obligations under Section 5 and have signed the Release as
set forth in Section 3(i).
(i) Waiver and Release of Claims. The Company's obligation to make any
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payments pursuant to Sections 3(d), (g) or (h) of this Agreement shall
be conditioned upon your agreement to sign a Release substantially in
the form attached hereto as Exhibit B on or within ten (10) days of
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your receipt of the Company's written request to do so. In the event
that you fail to or choose not to sign such Release within the time
period set forth in the previous sentence, the Company shall have no
obligation to make such payments or to accelerate your options if such
acceleration otherwise would be required by the terms of the Stock
Option Agreement relating to terminations by the Company without Cause
or by a Constructive Termination.
4. Benefits and Reimbursement of Expenses.
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(a) Vacation. You shall be entitled to four (4) weeks of paid vacation
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leave per year. Upon termination of employment, the Company shall pay
you only for earned but unused vacation time up to a maximum of four
(4) weeks. You shall not be entitled to any compensation for unused
vacation time except as described in this Section 4(a).
(b) Benefits. In connection with your employment hereunder, you shall be
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entitled to participate in any employee benefit plans which the
Company provides or may establish generally for the benefit of its
senior executive employees of comparable status (including, without
limitation, any group life, health, dental and other insurance plans).
The Company shall provide you with group life insurance in an amount
equal to two (2) times your annual Base Salary on the date of issuance
of the policy and disability insurance as provided by the Company
generally for the benefit of its senior executive employees.
(c) Home Business Equipment. If requested, the Company will supply you
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with ordinary and reasonable home business equipment for your use
during the Term of this Agreement. Upon the termination of this
Agreement or at the request of the CEO, you agree to return such
equipment to the Company within ten (10) days of the termination or
request, whichever is applicable. In the event the equipment is
broken or displays signs other than ordinary wear and tear or if you
fail to return such equipment, the Company reserves the right to
deduct the replacement cost of such equipment from your paycheck and
you hereby authorize the Company to withhold any amount due from your
paycheck.
(d) Reimbursement of Expenses. You shall be entitled to reimbursement for
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ordinary and reasonable out-of-pocket business expenses, including but
not
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limited to air travel (which shall be coach class but may be upgraded
to business class for any flights greater than three hours in
duration) and hotel accommodations, which are reasonably incurred by
you in furtherance of the Company's business, and otherwise in
accordance with reasonable policies adopted from time to time by the
Company.
5. Noncompetition, Nonsolicitation, Nondisclosure, Assignment of Work
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Product, and Nondisparagement.
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(a) Acknowledgments. You acknowledge that: (i) the Company currently is
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in the business of assisting other companies to conduct electronic
commerce over the Internet ("E-Commerce"). In particular, the Company
currently develops and distributes computer software that enables
companies to conduct E-Commerce, provides consulting services to
companies concerning the market for E-Commerce and methods to improve
one's business by conducting E-Commerce, assists companies in building
their E-Commerce web sites by implementing the Company's software or
software created by third parties, and creates, hosts and manages web
sites and other E-Commerce applications created by the Company or
third parties. The Company and you recognize that the Company may
engage in additional or different lines of business during the Term,
and therefore agree that this Agreement shall apply to these
additional or different lines of business; (ii) the Company has
developed a significant reputation and goodwill in its industry
throughout the United States and abroad; (iii) the success of the
Company's business depends upon the continued confidentiality of its
proprietary information and trade secrets; (iv) you are or will be
employed by the Company in a position of trust and confidence and in a
capacity in which you have or will become familiar with the Company's
confidential information and trade secrets; and (v) in the course of
your employment or through the use of Company facilities or resources,
you may have or may in the future have contributed to the development
of Company trade secrets and confidential business information.
(b) Noncompetition.
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(i) During the period of employment, and for a period of one (1) year
after termination of such employment (for any reason, whether
voluntary or involuntary), you will not perform the same or
similar services for a Direct Competitor, Customer or Partner of
the Company that you performed for the Company.
(A) A Direct Competitor of the Company is a person or entity
that is compared to OneSoft as materially competitive or
compared to any direct competitor (except IBM or Microsoft)
as materially competitive, by any of the investment, banking
and analyst organizations listed on Exhibit C hereto. A
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non-exclusive list
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of such entities is attached hereto at Exhibit D.
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(B) A Customer of the Company is a person or entity that the
Company has billed for services within the twelve (12)
months preceding your termination of employment with the
Company, provided that this definition shall include only
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those Customers with which you were substantially involved
in the solicitation of, negotiations with, or performance of
services for such Customer.
(C) A Partner of the Company is a person or entity that has
entered into, or is in negotiations with the Company to
enter into, a written agreement with the Company to provide
internet or e-commerce solutions or other services to
customers of OneSoft and/or the Partner or their licensees,
provided that this definition shall include only those
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Partners with which you were substantially involved in the
negotiations.
(ii) The restriction in this Agreement precluding you from performing
services for a Direct Competitor, Customer or Partner does not
preclude you from working in the high technology industry, the
software industry, the Internet industry, the E-Commerce
industry, or otherwise in a completely different capacity or
other than on behalf of a Direct Competitor, Customer or Partner
of the Company. Notwithstanding anything else to the contrary in
this Section 5(b), you shall be permitted to accept such
employment with either a Customer or a Partner upon termination
of your employment with the Company if (A) such Customer or
Partner is not a Direct Competitor of the Company listed on
Exhibit D, (B) you demonstrate to the Company that such
employment would not be materially detrimental to the business of
the Company solely by reason of your employment by such Customer
or Partner, and (C) you obtain the Company's written
authorization to accept such employment, which shall be based
upon your demonstration that such employment would not be
materially detrimental to the business of the Company and which
shall not be unreasonably withheld or delayed.
(c) Nonsolicitation.
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(i) Customers, Partners & Business. During your employment with the
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Company and for a period of one (1) year after termination of
such employment (for any reason, whether by you or by the
Company, with or without Cause, by Constructive Termination or
non-renewal of the term of this Agreement), you will not directly
or indirectly, either for yourself or for any other person,
business, partnership, association, firm, company or corporation,
call upon, solicit, divert, take away or attempt to solicit,
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divert or take away, (A) any of the Customers (as that term has
been defined in Section 5(b)), (B) any of the prospective
customers being solicited actively by the Company at the time of
your termination for which you have had substantial involvement
in the solicitation during the twelve (12) months prior to your
termination, (C) any of the Partners (as that term has been
defined in Section 5(b)), and (D) any of the prospective partners
with whom the Company is actively negotiating at the time of your
termination for which you have had substantial involvement in the
negotiations during the twelve (12) months prior to your
termination.
(ii) Employees. During your employment with the Company and for a
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period of one (1) year thereafter, you will not solicit, recruit,
attempt to recruit, hire, or attempt to hire any employee(s) of
the Company at the time of termination on behalf of any business,
firm, company, partnership, association, corporation or any other
entity other than the Company.
(d) Nondisclosure.
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(i) During your employment with the Company and for a period of five
(5) years after termination of such employment, you will not at
any time, for any reason whatsoever (other than as necessary and
proper to promote and advance the business of the Company),
reveal to any person, association or company any confidential
information concerning the organization, including, but not
limited to, information about employees; sales and marketing
operations; corporate reorganization, merger, consolidation;
sales or marketing plans and strategies; pricing policies;
vendor, customer or client lists and accounts; the business,
finances or financial information, technology, formulae,
research, development, models, computer programs, designs,
descriptions, blueprints, data, information, or the existence or
betterment of possible new uses or applications for any product
or service, of the Company or of any of its customers, clients,
supplies, consultants, licensees, or others with which the
Company does business ("Business Partners") so far as you may
have come or may come to know of them through your performance of
your duties to the Company, except (i) as may be required in the
ordinary course of performing your duties as an employee,
officer, or director of the Company, or (ii) as may be disclosed
generally in the public domain through no fault of yours, or
(iii) as required by law. You agree that you shall keep secret
all such matters entrusted to you and shall not use or attempt to
use any such information in any manner for your private purposes
or in any manner which may injure or cause loss to the Company,
whether directly or indirectly.
(ii) During your employment and at anytime thereafter, you will not at
any time, for any reason whatsoever (other than as necessary and
proper to
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promote and advance the business of the Company), reveal to any
person, association or company any Trade Secrets/1// of the
Company, including but not limited to Trade Secrets regarding
Company software, customer lists, plans, documents, technology,
formulae, research, development, models, computer programs,
designs, descriptions, blueprints, data, or financial or other
business information, except (i) as may be required in the
ordinary course of performing your duties as an employee,
officer, or director of the Company, or (ii) as may be disclosed
generally in the public domain through no fault of yours, or
(iii) as required by law. You agree that you shall keep secret
all such matters entrusted to you and shall not use or attempt to
use any such information in any manner for your private purposes
or in any manner which may injure or cause loss to the Company,
whether directly or indirectly.
(e) Assignment of Work Product.
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(i) Any and all right of interest that you may develop in any
designs, inventions, original works of authorship, innovations,
improvements, developments, modifications, know-how, technology,
process, management reports, internal reports and memoranda,
customer lists, marketing plans or pricing policies, whether or
not patentable ("Employee Work Product"), that you conceived,
reduced to practice, devised, developed, or incorporated in
Company products or services, either alone or jointly, or to
which you otherwise contributed during the term of your
employment, insofar as it may directly or indirectly relate to or
arise out of employment with the Company or the use of Company
resources ("Company Work Product") are the sole, absolute and
exclusive property of the Company, and you will promptly make a
complete disclosure of all Company Work Product to the Company.
You hereby assign to the Company all rights in all Company Work
Product.
(ii) You expressly acknowledge and agree that you have disclosed to
the Company in writing prior to signing this agreement any and
all designs, inventions, original works of authorship,
innovations, improvements, developments, modifications, know-how,
technology, process,
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/1// For the purposes of Section 5, the term "trade secrets" shall be given
its broadest interpretation under Virginia law and shall include, but not be
limited to, information, including a formula, pattern, compilation, program,
device, method, technique or process, that: (i) derives independent economic
value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain economic
value from its disclosure or use, and (ii) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
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management reports, internal reports and memoranda, customer
lists, marketing plans or pricing policies (collectively
"Intellectual Property").
(A) You agree that you will not incorporate into any work
performed for the Company any such Intellectual Property
without the express written permission of OneSoft, and, with
respect to any Intellectual Property that is incorporated
into any work performed for the Company with the Company's
express written permission, you hereby grant to the Company
a royalty-free, irrevocable license throughout the world to
use, disclose, publish, translate, reproduce, deliver,
perform, dispose of, and to authorize others so to do, all
such Intellectual Property.
(B) With respect to any Intellectual Property which you have not
disclosed to the Company pursuant to this Section 5(e)(ii)
but which is incorporated into Company products or services
or brought to the Company for use in the Company products or
services or which you have disclosed to the Company but
incorporated into work performed for the Company without the
Company's express written permission, you hereby assign to
the Company all rights in all such Intellectual Property in
accordance with Section 5(e)(i).
(iii) At the request and expense of the Company but without charge to
the Company, you will do all acts and things as may be necessary
to confirm and vest the entire right, title and interest in the
Company Work Product in the Company and to secure to the Company
full protection of the same, including without limitation, the
execution and delivery of assignments, patent applications and
other documents or papers, whether during your employment with
the Company or any time after termination of employment. In
order to confirm the Company's rights, you also will assign to
the Company any and all copyrights and reproduction rights to any
written material prepared by you in connection with your
employment.
(iv) Except as specified in Section 5(e)(ii) and/or materials in the
public domain, all Employee Work Product furnished by you to the
Company will be Company Work Product and will not to the best of
your knowledge or belief violate or infringe upon any right,
patent, copyright, trademark or right of privacy, or constitute
libel or slander against or violate any other rights of any
person, firm or corporation.
(f) Works Made For Hire. All original works of authorship and other such
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Work Product which are made by you (solely or jointly with others)
within the scope of
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your employment and which are protectable by copyright are "works made
for hire," pursuant to United States Copyright Act (17 U.S.C. Section
101).
(g) Nondisparagement. During your employment with the Company and for a
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period of three (3) years after termination of such employment, you
will not make any statements that are professionally or personally
disparaging about, or adverse to, the interests of the Company
(including its officers, directors and management employees)
including, but not limited to, any statements that disparage any
person, product, service, finances, financial condition, capability or
any other aspect of the business of the Company, and you will not
engage in any conduct which is intended to harm professionally or
personally the reputation of the Company (including its officers,
directors and management employees), provided, however, that, this
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Section shall not prohibit you from exercising any legal rights or
obligations you may have to file complaints with or participate in any
investigations by, any government agency.
(h) Reasonableness of Restrictions. You recognize and acknowledge that
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(i) the types of employment which are prohibited by this Section 5 are
narrow and reasonable in relation to the skills which represent your
principal basis of employability with the Company and with other
prospective employers, and (ii) the temporal and specific but broad
geographic scope of the provisions of this Section 5 are reasonable,
legitimate and fair to you, and necessary to protect the legitimate
interests of the Company.
(i) Survival of Acknowledgments and Agreements. Your acknowledgments and
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agreements set forth in this Section 5 shall survive, in accordance
with their respective terms, the expiration or termination of this
Agreement and the termination of your employment with the Company for
any reason.
6. Disclosure to Future Employers. You agree that during the term of your
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employment by the Company and for five years thereafter you will provide,
and the Company may similarly provide in its discretion, a copy of the
covenants contained in Section 5 of this Agreement to any enterprise which
you may, directly or indirectly, own, manage, operate, finance, join,
control or in which you participate in the ownership (other than ownership
of less than five percent (5%) of a publicly traded company), management,
operation, financing, or control, or with which you may be involved as an
officer, director, employee, partner, principal, agent, representative,
consultant or otherwise.
7. Records. Upon termination of your relationship with the Company, you shall
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deliver to the Company any property of the Company which may be in your
possession, including products, materials, computer disks, memoranda,
notes, records, reports, and other documents, including but not limited to
all copies of the same.
8. No Conflicting Agreements. You hereby represent and warrant that you have
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no
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commitments or obligations inconsistent with this Agreement and you hereby
agree to indemnify and hold the Company harmless from and against loss,
damage, liability or expense arising from any claim based upon
circumstances alleged to be inconsistent with such representation and
warranty.
9. Indemnification. During the period of your employment hereunder and
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thereafter, the Company will indemnify you in your capacity as an officer
and employee of the Company or any Affiliate thereof to the maximum extent
permitted under applicable state law and the Company's Charter and By-laws.
In addition, in the event that you are elected as a director of the Company
or any Affiliate thereof, the Company will indemnify you in your capacity as
a director of the Company or such Affiliate to the maximum extent permitted
under applicable state law and the Company's Charter and Bylaws. Without
limiting the foregoing, the Company will pay all expenses incurred by you in
accordance with Section 145(e) of the Delaware General Corporation Law.
10. General.
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(a) Notices. All notices, requests, consents and other communications
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hereunder shall be in writing, shall be addressed to the receiving
party's address set forth below or to such other address as a party
may designate by notice hereunder, and shall be either (i) delivered
by hand, (ii) sent by nationally recognized overnight courier service,
(iii) made by facsimile transmission, or (iv) sent by registered or
certified mail, return receipt requested, postage prepaid:
If to the Company: OneSoft Corporation
0000 Xxxx Xxxxxx Xxxxx
XxXxxx, XX 00000
Attn: Xxxxx X. XxxXxxxxx XX
with a copy to: Mintz, Levin, Cohn, Ferris, Glovsky &
Popeo, PC
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esquire
If to you: Xxxx X. Xxxxx
All notices, requests, consents and other communications hereunder
shall be deemed to have been given either (i) if by hand, at the time
of the delivery thereof to the receiving party at the address of such
party set forth above, (ii) if sent by overnight courier, on the next
business day following the day such notice is delivered to the courier
service, (iii) if made by facsimile transmission, at the time that
receipt thereof has been acknowledged by electronic confirmation or
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otherwise, or (iv) if sent by registered mail, on the fifth business
day following the day such mailing is made.
(b) Entire Agreement. This Agreement embodies the entire agreement and
----------------
understanding between the parties hereto with respect to the subject
matter hereof and supersedes all prior or contemporaneous oral or
written agreements and understandings relating to the subject matter
hereof. No statement, representation, warranty, covenant or agreement
of any kind not expressly set forth in this Agreement shall affect, or
be used to interpret, change or restrict, the express terms and
provisions of this Agreement.
(c) Modifications and Amendments. The terms and provisions of this
----------------------------
Agreement may be modified or amended only by written agreement
executed by the parties hereto.
(d) Waivers and Consents. The terms and provisions of this Agreement may
--------------------
be waived, or consent for the departure therefrom granted, only by
written document executed by the party entitled to the benefits of
such terms or provisions. No such waiver or consent shall be deemed
to be or shall constitute a waiver or consent with respect to any
other terms or provisions of this Agreement, whether or not similar.
Each such waiver or consent shall be effective only in the specific
instance and for the purpose for which it was given, and shall not
constitute a continuing waiver or consent.
(e) Parties. This Agreement is personal and shall in no way be subject to
-------
assignment by you except as contemplated hereby. This Agreement shall
be binding upon and shall inure to the benefit of the Company and its
successors and assigns either by merger, operation of law,
consolidation, assignment, purchase or other acquisition of a
controlling interest in the business of the Company, and shall be
binding upon and shall inure to your benefit and that of your heirs,
executors, administrators, personal and legal representatives,
distributees, devisees, legatees, successors and permitted assigns.
If you should die while any amounts would still be payable to you
hereunder (other than amounts to which you would be entitled by reason
of continued employment), all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement
to your devisees, legatees or other designee or, if there be no such
designee, to your estate. The Company agrees that a successor in
interest by merger, operation of law, consolidation, assignment,
purchase or other acquisition of a controlling interest in the
business of the Company will be informed prior to such event of the
existence of this Agreement.
(f) Governing Law. This Agreement and the rights and obligations of the
-------------
parties hereunder shall be construed in accordance with and governed
by the law of the Commonwealth of Virginia, without giving effect to
the conflict of law principles thereof.
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(g) Dispute Resolution. Any dispute arising with respect to this
------------------
Agreement shall be submitted to arbitration in the greater Washington,
D.C. metropolitan area under the rules of the American Arbitration
Association (the "AAA") before a single arbitrator jointly selected by
the parties or, if they shall not have agreed on an arbitrator within
(10) days after receipt by one of them of written notice from the
other of the existence of a dispute, a single arbitrator selected by
the AAA in accordance with its rules. The decision of the arbitrator
shall be final and binding on the parties and the arbitrator may award
costs and expenses to and among the parties in accordance with the
arbitrator's determination of the extent to which the parties shall
have prevailed in the arbitration.
(h) Severability. In the event that any arbitrator or court of competent
------------
jurisdiction shall determine that any provision, or any portion
thereof, contained in this Agreement shall be invalid or unenforceable
in any respect, then such provision shall be deemed limited to the
extent that such arbitrator or court deems it valid and enforceable,
and as so limited shall remain in full force and effect. In the event
that such arbitrator or court shall deem any such provision, or
portion thereof, wholly invalid or unenforceable, the remaining
provisions, or portions of such provision, of this Agreement shall
nevertheless remain in full force and effect.
(i) Injunctive Relief. You hereby expressly acknowledge that,
-----------------
notwithstanding any other provision hereof, including but not limited
to Section 10(g), any breach or threatened breach of any of the terms
and/or conditions set forth in Section 5 of this Agreement will result
in immediate, substantial, continuing and irreparable injury to the
Company. Therefore, you hereby agree that, in addition to any other
remedy that may be available to the Company, the Company shall be
entitled to injunctive or other equitable relief by a court of
competent jurisdiction in the event of any breach or threatened breach
of the terms of Section 5 of this Agreement.
(j) No Waiver of Rights, Powers and Remedies. No failure or delay by a
----------------------------------------
party hereto in exercising any right, power or remedy under this
Agreement, and no course of dealing between the parties hereto, shall
operate as a waiver of any such right, power or remedy of the party.
No single or partial exercise of any right, power or remedy under this
Agreement by a party hereto, nor any abandonment or discontinuance of
steps to enforce any such right, power or remedy, shall preclude such
party from any other or further exercise thereof or the exercise of
any other right, power or remedy hereunder. The election of any
remedy by a party hereto shall not constitute a waiver of the right of
such party to pursue other available remedies. No notice to or demand
on a party not expressly required under this Agreement shall entitle
the party receiving such notice or demand to any other or further
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notice or demand in similar or other circumstances or constitute a
waiver of the rights of the party giving such notice or demand to any
other or further action in any circumstances without such notice or
demand.
(k) Interpretation. The parties hereto acknowledge and agree that: (i)
--------------
each party and its or his counsel reviewed and negotiated the terms
and provisions of this Agreement and have contributed to its revision;
(ii) the rule of construction to the effect that any ambiguities are
resolved against the drafting party shall not be employed in the
interpretation of this Agreement; and (iii) the terms and provisions
of this Agreement shall be construed fairly as to all parties hereto
and not in favor of or against any party, regardless of which party
was generally responsible for the preparation of this Agreement.
(l) Counterparts. This Agreement may be executed in one or more
------------
counterparts, and by different parties hereto on separate
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(m) Effective Date. This Agreement is conditioned on and shall not take
--------------
effect without the approval of the Board of Directors of the Company.
The Effective Date of this Agreement shall be the date that such
approval is obtained.
If the foregoing accurately sets forth our agreement, please so indicate by
signing and returning to us the enclosed copy of this letter, whereupon this
letter shall become a binding agreement between us as of the date signed by the
Secretary of the Board of Directors. This offer will expire on February 25,
2000.
Very truly yours,
ONESOFT CORPORATION
By: /s/ Xxxxx X. XxxXxxxxx, XX
------------------------------------
ACCEPTED AND AGREED TO:
/s/ Xxxx X. Xxxxx
--------------------------
Xxxx X. Xxxxx
Approved:
/s/ Xxxx X. Xxxxxxxx
------------------------------------
Secretary of the Board of Directors
Date: 2-24-00
----------------------
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EXHIBIT A
---------
1. .COM Group
2. Public Interest Breakthroughs
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EXHIBIT B
---------
RELEASE
In consideration of the payments ("Severance Pay") to be made by OneSoft
Corporation (the "Company") pursuant to Section 3 of my Employment Agreement
which I entered into with the Company on February __, 2000, I, Xxxx X. Xxxxx,
hereby agree and acknowledge as follows:
I hereby waive my right to assert any form of legal claim against the Company/2/
whatsoever for any alleged action, inaction or circumstance existing or arising
from the beginning of time through ________________ (the "Separation Date") with
respect to my employment relationship with the Company or the termination
thereof. My waiver and release herein is intended to bar any form of legal
claim, charge, complaint or any other form of action (jointly referred to as
"Claims") against the Company seeking any form of relief including, without
limitation, equitable relief (whether declaratory, injunctive or otherwise), the
recovery of any damages or any other form of monetary recovery whatsoever
(including, without limitation, back pay, front pay, compensatory damages,
emotional distress damages, punitive damages, attorneys fees and any other
costs) against the Company, for any alleged action, inaction or circumstance
existing or arising through the "Separation Date" with respect to my employment
relationship with the Company or the termination thereof.
Without limiting the foregoing general waiver and release, I specifically
release the Company from and waive my right to bring any Claim arising from or
related to my employment relationship with the Company or the termination
thereof, including, without limitation:
** Claims under any state or federal discrimination, fair employment
practices or other employment related statute, regulation or executive
order (as they may have been amended through the Change in Status
Date) prohibiting discrimination or harassment based upon any
protected status including, without limitation, race, national origin,
age, gender, marital status, disability, veteran status or sexual
orientation. Without limitation, specifically included in this
paragraph are any Claims arising under the federal Age Discrimination
in Employment Act, the Older Workers Benefit Protection Act, the Civil
Rights Acts of 1866 and 1871, Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the Equal Pay Act, the Americans
With Disabilities Act and any similar Virginia or other state statute.
** Claims under any other state or federal employment related statute,
regulation or
-----------------
/2/ For the purposes of this Release, the parties agree that the term
"Company" shall include OneSoft Corporation, its divisions, affiliates, parents
and subsidiaries, and its and their respective officers, directors, employees,
agents and assigns.
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executive order (as they may have been amended through the Separation
Date) relating to wages, hours or any other terms and conditions of
employment. Without limitation, specifically included in this
paragraph are any Claims arising under the Fair Labor Standards Act,
the Family and Medical Leave Act of 1993, the National Labor Relations
Act, the Employee Retirement Income Security Act of 1974, the
Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) and any
similar Virginia or other state statute.
** Claims under any state or federal common law theory based on wrongful
discharge, breach of express or implied contract, promissory estoppel,
unjust enrichment, breach of a covenant of good faith and fair
dealing, violation of public policy, interference with contractual
relations, intentional or negligent infliction of emotional distress,
invasion of privacy, or negligence.
Signed this __ day of ___________, 20__
___________________________________
Xxxx X. Xxxxx
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EXHIBIT C
---------
1. DB Xxxx Xxxxx
2. Forrester
3. Meta
4. Gartner
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EXHIBIT D
---------
1. Broadvision
2. Interworld
3. Vignette
4. Art Technology Group
5. International Business Machines
6. Microsoft Corporation
7. Open Market
8. Blue Martini
9. Space Works, Inc.
10. Xxxxxxx
11. Intershop
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