EXHIBIT 10.4
EMPLOYMENT AGREEMENT
Employment Agreement (the "Agreement"), effective as of May 4, 2001
(the "Effective Date"), between eB2B Commerce, Inc., a New Jersey corporation
with principal offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Company"), and Xxxxxxx Xxxxx, residing at 00 Xxxxxxxxx Xxxxx, Xxxxx Xxxxx, XX
00000 ("Executive"). The Company and Executive may be referred to herein
collectively as the "Parties" or individually as a "Party."
WHEREAS, the Company develops, owns and operates business to business
e-commerce solutions for transaction processing between buyers an suppliers; and
WHEREAS, the Company desires Executive to serve as President and Chief
Operating Officer of the Company, and Executive desires to accept such position
and serve the Company as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein set forth, the Parties do hereby agree as follows:
1. Employment. The Company hereby agrees to employ Executive and
Executive accepts this employment and agrees to render services to the Company
on the terms and conditions set forth in this Agreement. This Agreement,
describing the terms and conditions of Executive's employment with the Company,
supersedes and replaces any terms and conditions in any Company forms or other
documents, including the Company's standard employment application, whether
signed by Executive or not, where such terms and conditions are different or
inconsistent from the corresponding terms and conditions of this Agreement.
During the term of this Agreement, Executive shall serve as President and Chief
Operating Officer of the Company, and shall perform services for the Company
normally associated with such positions and such other duties as the Executive
Committee of the Board of Directors of the Company (or, in the absence of such a
Committee, the Board of Directors of the Company) shall reasonably request.
Executive shall use his best efforts to meet the business requirements and goals
set by the Executive Committee (or Board of Directors). In furtherance thereof,
Executive will devote his best efforts to the affairs and business of the
Company. Executive agrees not to serve on any corporate, industry, civic or
charitable boards or committees that would interfere or create a conflict of
interest with respect to his duties hereunder without the prior consent of the
Executive Committee (or Board of Directors), which consent will not be
unreasonably withheld. Executive further agrees to observe and comply with the
rules and regulations of the Company as adopted by the Executive Committee or
the Board of Directors with respect to the performance of his duties; provided,
however, that such rules and regulations do not interfere with Executive's
ability to perform his duties.
2. Term. The term of this Agreement shall be the period from the
Effective Date and terminating on May 3, 2004 (the "Initial Employment Term").
The Agreement shall thereafter automatically renew for successive one (1) year
terms, until terminated by either Party in accordance with this Agreement (the
"Succeeding Employment Term"), unless either Party
provides a written Notice of Termination (as defined in Section 6 hereof) to the
other party at least ninety (90) days prior to the expiration of the Initial
Employment Term or any Succeeding Employment Term.
3. Compensation.
3.1 Base Salary. The Company will compensate and pay Executive
for his services during the term of this Agreement, initially starting at a base
salary of $175,000 per year (the "Base Salary"). The Base Salary shall be
payable to Executive in accordance with the Company's standard payroll policy
for similarly situated Executives of the Company. The Base Salary shall be
increased at the end of each one year period during the term of this Agreement,
at a minimum, in accordance with the percentage increase in the Consumer Price
Index for the trailing 12 month period. For purposes of this Agreement, each
time the Base Salary is increased, such increased salary shall be the actual
"Base Salary" for purposes of this Agreement.
3.2 Bonus. Executive may receive, from time to time, bonus
compensation from the Company, as directed by the Executive Committee or the
Board of Directors (the "Bonus Compensation") as follows:
3.2.1 Executive shall be entitled to receive a bonus
of up to $175,000 per annum, or greater at the discretion of the Executive
Committee or the Board of Directors, during the term of this Agreement, subject
to the provisions of this Agreement. The parameters to be achieved to earn such
bonus shall be determined by mutual agreement of the Executive Committee and
Executive within 30 days after the Effective Date and shall be reviewed and, if
mutually agreed, revised each year within 30 days after the anniversary of the
Effective Date. As set forth in Section 3.2.2 below, $50,000 per annum of such
bonus shall be guaranteed.
3.2.2 The Company shall pay Executive a guaranteed
bonus of $12,500 per quarter during the term of this Agreement, subject to
his continued employment. Each such bonus is payable within 30 days of the
end of the quarter to which the bonus relates.
3.3 Stock Options. Executive shall, on the Effective Date, be
granted options to purchase 2,000,000 shares of Common Stock of the Company
("Options") pursuant to the terms of the Company's Amended 2000 Stock Option
Plan (the "Option Plan") and a separate Stock Option Agreement (or Agreements)
between Executive and the Company. The Options shall be "incentive stock
options" to the maximum extent permitted by applicable regulation. A description
of the principal terms of the Options are as follows: (a) the vesting schedule
of the Options is: (i) subject to continued employment, one-third of the Options
shall vest on the date one year following the Effective Date, an additional
one-third of the Options shall vest on the date two years following the
Effective Date and an additional one-third of the Options shall vest on the date
three years following the Effective Date; (b) the exercise price of the Options
shall be $0.53 per share (the fair market value per share of Common Stock on the
Effective Date); and (c) the right to exercise all of the Options granted in
connection with this Agreement shall accelerate and be fully exercisable
immediately upon a "change of control" event involving the Company (as such term
is defined in
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the Stock Option Agreement, but which shall not include a change
in control resulting from a public or private financing by the Company) and the
exercise period shall be extended to two years from the date of termination of
employment in the event that Executive ceases to be employed with the Company
within one year after the change in control date (except the option shall not be
exercisable beyond 10 years from the grant date). In the event that any
"incentive" stock options cease to qualify as such, they shall be deemed to have
become non-qualified options.
4. Benefits.
4.1 Insurance; Paid Time Off. The Company shall provide
Executive with health (family plan), disability, life and, if applicable, D&O
liability insurance coverage and other benefits during the term of this
Agreement as agreed upon by the Executive Committee, but in no event will such
benefits be less than those offered to other senior executives of the Company.
Executive shall be entitled to such number of days of "paid time off" (as such
term is defined in the Company's Executive Handbook) as is commensurate with his
position, in accordance with the normal "paid time off" policies of the Company.
Executive shall be entitled to participate in all other retirement, welfare and
benefit plans provided by the Company to its most senior executives from time to
time, to the extent Executive meets the eligibility requirements for any such
plan or benefit.
4.2 Life Insurance. The Company shall have the right, at its
own expense and for its own benefit, to purchase insurance on Executive's life,
and Executive shall cooperate by providing necessary information, submitting to
required medical examinations, and otherwise complying with the insurance
carrier's requirements.
5. Expenses. The Company shall reimburse Executive or otherwise provide
for or pay for all reasonable expenses incurred by Executive in furtherance of
or in connection with the business of the Company, including, but not by way of
limitation, (i) all reasonable expenses incurred by Executive in accordance with
the Company's Travel and Entertainment Policy; and (ii) all reasonable expenses
in connection with Executive's attendance at trade, professional and industry
related conferences which are in furtherance of the business of the Company.
Executive agrees that he will furnish the Company with adequate records and
other documents for the substantiation of each such business expense.
6. Employment Termination.
6.1 Resignation of Executive. The Parties agree that Executive
has the right to voluntarily terminate his employment with the Company by
providing the Company with a minimum of thirty (30) days' prior written notice.
Upon the receipt of such notice by the Company, Executive will cease to have any
authority to act on behalf of the Company as of the date of such notice. In such
event, all of the Company's obligations under this Agreement will terminate
immediately upon the termination date specified in the notice.
6.2 Termination by the Company for Convenience. The Parties
agree that the Board has the right to terminate Executive's employment for
convenience during the term of this
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Agreement upon notice to Executive. The date of termination will be the date
specified in a notice from the Executive Committee or the Board of Directors,
but in no event less than thirty (30) days notice. Executive will cease to have
any authority to act on the Company's behalf as of the date of receipt of such
notice by Executive.
6.3 Termination by the Company for Cause. The Parties agree
that the Board has the right to terminate Executive's employment during the term
of this Agreement for "Cause." For the purposes of this Agreement, the term
"Cause" will mean:
6.3.1 Conduct intentionally taken on Executive's part
that materially injures the Company's business or reputation;
6.3.2 Actions by Executive intentionally and
knowingly furnishing materially false, misleading or omissive information to the
Board;
6.3.3 Executive is convicted of any felony;
6.3.4 Illegal use of prescription drugs, or use of
illegal drugs by Executive;
6.3.5 Any fraud, embezzlement or misappropriation by
Executive of the assets of the Company; or
6.3.6 The willful and significant failure by
Executive to perform reasonably assigned duties and obligations as set forth in
this Agreement, resulting in damage to the Company, but not encompassing
illness, physical or mental incapacity and of which the Company notifies
Executive in writing detailing the failure and recommending a cure for such
failures, and such failure is not remedied or persists for a period of at least
thirty (30) days following receipt of such notice by Executive
In the event that Executive's employment is terminated by the Company for Cause,
the date of employment termination will be as specified in the notice of
termination to Executive from the Company, and Executive will cease to have any
authority to act on behalf of the Company as of such date. The Company will pay
Executive the Base Salary and Bonus Compensation due him as of such date, and
all other compensation and benefits provided by the Company to Executive will
cease as of such date except as otherwise required by law.
6.4 Termination by the Company for Death or Disability. The
Parties agree that Executive's employment will terminate upon Executive's death
or Disability. The term "Disability" shall be defined as Executive's inability,
through physical or mental illness, to perform the majority of his usual duties
for a period of at least three continuous months or for an aggregate period of
at least six months during any 12 month period.
6.5 Notice of Termination. Any termination by the Company for
Cause shall be communicated by a Notice of Termination to Executive given in
accordance with Section 11 hereof.
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For purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of Executive's employment under the provision
so indicated and (iii) if the termination date is other than the date of receipt
of such notice, specifies the effective termination date of this Agreement which
date shall be in accordance with the specific termination provision of this
Agreement relied upon.
6.6 Resignation of Executive for Good Reason. The Parties
agree that Executive has the right to voluntarily terminate his employment with
the Company for "Good Reason" upon ten (10) days prior written notice to the
Board of Directors. For purposes of this Agreement, "Good Reason" shall mean the
occurrence of any of the following events or conditions: a change in Executive's
status, title, position or responsibilities which represents an adverse change
from his status, title, position or responsibilities as in effect immediately
prior thereto and which causes Executive embarrassment or creates the appearance
of being demeaned by the Company; a change in the Company's executive offices
(other than within the same greater metropolitan area); the assignment of
Executive of any duties or responsibilities which are inconsistent with his
status, title or position and which causes Executive embarrassment or creates
the appearance of being demeaned by the Company; or any removal of Executive
from or failure to reappoint or reelect him to any of such offices or positions
and which causes Executive embarrassment or creates the appearance of being
demeaned by the Company; except in connection with the termination of his
employment for "Disability", for "cause" (as defined above), as a result of his
death, or by Executive for other than "Good Reason".
6.7 Obligations of the Company Upon Certain Terminations.
6.7.1 Options. In the event that Executive's
employment with the Company is terminated pursuant to Section 6.2 of this
Agreement, those Options granted to Executive that would have vested within 60
after the date of such termination shall accelerate and immediately vest and
remain exercisable until the earlier of two years from the date of termination
or 10 years from the date of grant of the Options. In the event that Executive's
employment with the Company is terminated pursuant to Sections 6.4 or 6.6 of
this Agreement, those Options granted to Executive that would have vested within
one year after the date of such termination shall accelerate and immediately
vest and remain exercisable until the earlier of two years from the date of
termination or 10 years from the date of grant of the Options. The Options shall
be subject to the provisions of the Option Plan and the specific Stock Option
Agreement in effect with regard to each Option grant, provided that, to the
extent the provisions of the Stock Option Agreement are inconsistent with this
Section 6.7.1, this Section shall control.
6.7.2 Termination Payments. If Executive's employment
with the Company is terminated pursuant to Sections 6.2, 6.4 or 6.6 of this
Agreement, the Company will pay Executive (or, if applicable, Executive's
estate) an amount equal to his Base Salary and any Bonus Compensation to which
he may be entitled for a period of six months following the date of termination
of employment (together with any unreimbursed business expenses) in a manner
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consistent with the Company's then applicable payroll practices, and,
notwithstanding anything in this Agreement to the contrary, the Company shall
have no further obligations to Executive.
7. Survival of Agreement Upon Termination. In the event that
Executive's employment is terminated, the rights and obligations of the Parties
which are set forth in Sections 7 through 11 of this Agreement shall survive the
employment termination for a period from the date of such employment termination
through the first anniversary of such date (unless otherwise stated in the
applicable provision).
8. Restrictive Covenants.
8.1 Acknowledgment. Executive acknowledges that (i) the
Company's business is all aspects of business-to-business electronic commerce
including, but not limited to, building, owning and operating business to
business e-commerce solutions for transaction processing between buyers and
suppliers, and providing systems integration and consulting services relating
thereto, and (ii) fulfillment of the obligations hereunder will result in
Executive becoming familiar with the business affairs of the Company and any
present or future parent, subsidiary and/or affiliate.
8.2 Covenant Not to Compete. In consideration for the
compensation provided for in this Agreement, and as a condition to the
performance by the Company of all obligations under this Agreement, Executive
agrees that during the Initial Employment Term or any Succeeding Employment
Terms of this Agreement and for the period from the date of termination of
Executive's employment through the first anniversary of such date (the
"Non-compete Term"), Executive shall not directly or indirectly through any
other entity, firm or corporation compete with or be engaged in the same
business or "participate in" any other business or organization which during
such period competes with or is engaged in the same business as the Company. The
term "participate in" shall mean: "directly or indirectly, for his own benefit
or for, with, or through any other entity, firm, or corporation, own, manage,
operate, control, loan money to, or participate in the ownership, management,
operation, or control of, or be connected as a director, officer, Executive,
partner, consultant, agent, or independent contractor." Notwithstanding the
foregoing, nothing in this provision is intended to restrict or limit the
ability of Executive to work as a "consultant or independent contractor" for a
business which is in the same business as the Company following the termination
of Executive's employment, provided any such role is limited in duration and
scope so as not to appear to circumvent the purpose and spirit of this
provision. The Non-compete Term, for purposes of this Section 8.2 but not
Section 8.3, shall be reduced from one year to 6 months from termination of
employment in the event of termination pursuant to Section 6.2 of this
Agreement. Notwithstanding the foregoing, it shall not be a breach of the
provisions of this Section 8.2 if, during or after the Non-compete Term of this
Agreement, Executive is a passive investor in any publicly held entity and
Executive owns two (2%) percent or less of the equity interests therein. It
shall not be a breach of the foregoing non-competition covenant, if Executive
performs services for any publicly traded firm or enterprise in which the
competing portions of such entities' business represents less than 10% of that
entity's net revenues and Executive does not provide services or perform
functions for that portion of said entity's business or operations.
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8.3 No Solicitation of Executives. In addition, during the
Non-compete Term Executive agrees not to recruit, contract or hire any
Executive, agent, consultant or advisor of the Company, or otherwise induce such
Executive, agent, consultant or advisor to leave or terminate his or her
employment or engagement with the Company, to become an Executive of or
otherwise be associated with him or any company or business with which he,
directly or indirectly, is or may become associated with, or competes with the
business of the Company.
8.4 Restrictive Covenants Necessary and Reasonable. Executive
agrees that the provisions of this Section 8 are necessary and reasonable to
protect the Company in the conduct of its business. If any restriction contained
in this Section 8 shall be deemed to be invalid, illegal, or unenforceable by
reason of the extent, duration or geographical scope thereof, or otherwise, then
the court making such determination shall have the right to reduce such extent,
duration, geographical scope, or other provisions hereof and in its reduced form
such restriction shall then be enforceable in the manner contemplated hereby.
9. Injunctive Relief. Executive, recognizing that irreparable injury
shall result to the Company in the event of Executive's breach of the terms and
conditions of this Agreement, agrees that in the event of his breach or
threatened breach, the Company shall be entitled to seek injunctive relief
restraining Executive, and any and all persons or entities acting for or with
him, from such breach or threatened breach. Nothing herein contained, however,
shall be construed as prohibiting the Company from pursuing any other remedies
available to it by reason of such breach or threatened breach.
10. Indemnification.
10.1 To the full extent allowed by law, the Company shall hold
harmless and indemnify Executive, his executors, administrators or assigns,
against any and all judgments, penalties (including excise and similar taxes),
fines, settlements and reasonable expenses (including attorneys' fees) actually
incurred by Executive (net of any related insurance proceeds or other amounts
received by Executive or paid by or on behalf of the Company on Executive's
behalf in compensation of such judgments, penalties, fines, settlements or
expenses) in connection with any threatened, actual or completed action, suit or
proceeding, whether civil, criminal, arbitral, administrative or investigative,
or any appeal in such action, suit or proceeding, to which Executive was, is or
is threatened to be made a named defendant or respondent (a "Proceeding"),
because Executive is or was a director or officer or senior executive of the
Company, or was serving at the request of the Company as a director, officer,
partner, venturer, proprietor, trustee, Executive, agent or similar functionary
(an "Affiliate Executive") of another corporation, partnership, joint venture,
sole proprietorship, trust, Executive benefit plan or other enterprise (each, a
"Company Affiliate"). Upon authorization of indemnification of Executive by the
Board in accordance with the applicable provisions of the corporation law of the
Company's domicile, Executive shall be presumed to be entitled to such
indemnification under this Agreement upon submission of a Claim (as hereinafter
defined). Thereafter, the Company shall have the burden of proof to overcome the
presumption that Executive is so entitled. Such presumption shall only be
overcome by a judgment or other final
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adjudication, after all appeals and all time for appeals have expired ("Final
Determination"), adverse to Executive establishing that such indemnification is
not permitted hereunder or by law. An actual determination by the Company
(including its Board, legal counsel, or its stockholders) that Executive has not
met the applicable standard of conduct for indemnification shall not be a
defense to the action or create a presumption that Executive has not met the
applicable standard of conduct. The purchase, establishment or maintenance of
any Indemnification Arrangement shall not in any way diminish, restrict, limit
or affect the rights and obligations of the Company or of Executive under this
Agreement except as expressly provided herein, and the execution and delivery of
this Agreement by the Company and Executive shall not in any way diminish,
restrict, limit or affect Executive's right to indemnification from the Company
or any other Party or Parties under any other indemnification arrangement, the
Certificate of Incorporation or Bylaws of the Company, or applicable state
corporate law.
10.2 Subject only to the provisions of this Section 10.2, as
long as Executive shall continue to serve as a director and/or officer of the
Company (or shall continue at the request of the Company to serve as an
Affiliate Executive) and, thereafter, as long as Executive shall be subject to
any possible Proceeding by reason of the fact that Executive was or is a
director and/or officer of the Company (or served in any of said other
capacities), the Company shall, unless no such policies are available in any
market, purchase and maintain in effect for the benefit of Executive one or more
valid, binding and enforceable policies (the "Insurance Policies") of directors'
and officers' liability insurance ("D&O Insurance") providing adequate liability
coverage for Executive's acts as a director and/or officer of the Company or as
an Affiliate Executive. The Company may promptly notify Executive of any lapse,
amendment or failure to renew said policy or policies or any provision thereof
relating to the extent or nature of coverage provided thereunder. In the event
the Company does not purchase and maintain in effect said policy or policies of
D&O Insurance pursuant to the provisions of this Section 10.2, the Company
shall, to the full extent permitted by law, in addition to and not in limitation
of the other rights granted Executive under this Agreement, hold harmless and
indemnify Executive to the full extent of coverage which would otherwise have
been provided for the benefit of Executive pursuant to the Insurance Policies.
10.3 Executive shall have the right to receive from the
Company on demand, or at his option to have the Company pay promptly on his
behalf, in advance of a Final Determination of a Proceeding all expenses payable
by the Company pursuant to the terms of this Agreement as corresponding amounts
are expended or incurred by Executive in connection with such Proceeding or
otherwise expended or incurred by Executive (such amounts so expended or
incurred being referred to as "Advanced Amounts"). In making any claim for
payment by the Company of any expenses, including any Advanced Amount, pursuant
to this Agreement, Executive shall submit to the Company a written request for
payment (a "Claim"), which includes a schedule setting forth in reasonable
detail the dollar amount expended (or incurred or expected to be expended or
incurred). Each item on such schedule shall be supported by the xxxx, agreement
or other documentation relating thereto, a copy of which shall be appended to
the schedule as an exhibit. Where Executive is requesting Advanced Amounts,
Executive must also provide (i) written affirmation of such Executive's good
faith belief that he has met the standard of conduct required by law for
indemnification, and (ii) a written undertaking to repay such Advanced Amounts
if a Final
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Determination is made that Executive is not entitled to indemnification
hereunder.
10.4 The Company shall not be liable under this Agreement to
make any payment in connection with any claim made against Executive for an
accounting of profits made from the purchase or sale by Executive of securities
of the Company within the meaning of Section 16(b) of the Exchange Act or
similar provisions of any state statutory law or common law.
10.5 All agreements and obligations of the Company contained
herein shall continue during the period Executive is a director and/or officer
of the Company (or is serving at the request of the Company as an Affiliate
Executive) and shall continue thereafter so long as Executive shall be subject
to any possible Proceeding by reason of the fact that Executive was a director
or officer of the Company or was serving as such an Affiliate Executive.
10.6 Promptly after receipt by Executive of notice of the
commencement of any Proceeding, Executive shall, if a claim in respect thereof
is to be made against the Company under this Agreement, notify the Company of
the commencement thereof, but failure to so notify the Company will not relieve
the Company, to the extent the Company was not prejudiced thereby, from any
liability which it may have to Executive. With respect to any such Proceeding:
(i) the Company shall be entitled to participate therein at its own expense;
(ii) except with prior written consent of Executive, the Company shall not be
entitled to assume the defense of any Proceeding; and (iii) the Company shall
not settle any Proceeding in any manner which would impose any penalty or
limitation on Executive without Executive's prior written consent.
11. Miscellaneous.
11.1 Notices. Any and all notices, demands, requests or other
communication required or permitted by this Agreement or by law to be served on,
given to, or delivered to any Party hereto by any other Party to this Agreement
shall be in writing and shall be deemed duly served, given, or delivered when
personally delivered to the Party to be notified, or in lieu of such personal
delivery, when deposited in the United States mail, registered or certified
mail, return receipt requested, or when confirmed as received if delivered by
overnight courier, addressed to the to the Party to be notified, at the address
of the Company at its principal office, as first set forth above, or to
Executive at the address as first set forth above. The Company or Executive may
change the address in the manner required by law for purposes of this paragraph
by giving notice of the change, in the manner required by this paragraph, to the
respective Parties.
11.2 Amendment. This Agreement may not be modified, changed,
amended, or altered except in writing signed by Executive or his duly authorized
representative, and by a member of the Board of Directors of the Company (who
has been duly authorized by the Board).
11.3 Governing Law. This Agreement shall be interpreted in
accordance with the laws of the State of New York. It shall inure to the benefit
of and be binding upon the Company, and its successors and assigns.
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11.4 Arbitration. Except for the provisions of Section 9
above, in the event of any dispute under this Agreement, each party agrees the
same shall be submitted to the American Arbitration Association ("AAA") in the
City of New York, for its determination and decision in accordance with its
rules and regulations then in effect. Each of the parties agrees that the
decision and/or award made by the AAA may be entered as a judgement of the
Courts of the State of New York and shall be enforceable as such.
11.5 Severability. Should any provision or portion of this
Agreement be held unenforceable or invalid for any reason, the remaining
provisions and portions of this Agreement shall be unaffected by such holding.
11.6 Entire Agreement. This Agreement constitutes the sole and
only agreement of the Parties hereto respecting the subject matter hereof. Any
prior agreements, promises, negotiations, or representations concerning its
subject matter not expressly set forth in this Agreement, are of no force and
effect.
11.7 Counterparts. This Agreement and any certificates made
pursuant hereto may be executed in any number of counterparts and when so
executed all of such counterparts shall constitute a single instrument binding
upon all Parties hereto notwithstanding the fact that all Parties are not
signatory to the original or to the same counterpart.
11.8 Section Headings. The Article and Section headings used
in this Agreement are for reference purposes only, and should not be used in
construing this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
day and year set forth below.
eB2B Commerce, Inc
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxx
----------------------------- -----------------------
Xxxx X. Xxxxxx Xxxxxxx Xxxxx
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