EMPLOYMENT AND COMPENSATION AGREEMENT
This Employment and Compensation Agreement (the "Agreement") is entered
into in Contra Costa County, California, as of the 28th day of December, 1999,
by and between, XxXxx.xxx, Inc., a Delaware corporation (herein "FiNet" or
"Employer") and Xxxx Xxxxxxx ("Employee"), who agree as follows:
This Agreement is made with reference to the following facts:
FiNet, is a provider of both traditional and e-commerce home financing
services.
Employee desires to perform services for Employer and Employer desires to
engage Employee to perform services in accordance with the terms and conditions
set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing and of the covenants,
representations and promises set forth in this Agreement, the parties hereto,
agree as follows:
1. EMPLOYMENT.
a. Employer hereby offers Employee employment with Employer, and
Employee hereby accepts employment, commencing on February 1, 2000 on the terms
and conditions contained in this Agreement.
b. Employee shall serve as President and Chief Executive Officer of
FiNet, reporting directly to FiNet's Board of Directors or its designee. In
that capacity, Employee shall faithfully and diligently carry out such duties
and have such responsibilities as are customary among persons employed in
substantially similar capacities for similar companies, provided that Employee
shall at all times be subject to the direction of the Board of Directors of
FiNet. Employee agrees to the best of his ability and experience to perform
loyally and conscientiously all of the duties and responsibilities required of
him, either expressly or implicitly, by the terms of this Agreement.
c. Location of Employee's employment shall be San Ramon, California.
2. TERM OF EMPLOYMENT. Employee's Term of Employment in accordance with the
terms of this Agreement, shall commence as of February 1st, 2000 and shall
terminate upon the earlier of thirty-six months, or as is otherwise specified in
this Agreement (the "Term of Employment").
3. COMMITMENT. Except as is otherwise provided herein, during the Term of
Employment Employee shall devote one hundred (100%) percent of his entire
productive time, ability, and attention to the business of the Employer. Except
as is otherwise provided herein, Employee shall not render any services of a
commercial or professional nature to any other person or organization, whether
for compensation or otherwise, without the prior written consent of the Board of
FiNet. However, the expenditure of reasonable amounts of time for educational,
charitable, or professional activities shall not be deemed a breach of this
Agreement if those activities do not materially interfere with the services
required under this Agreement and shall
not require the prior written consent of the Board of FiNet. Notwithstanding
the foregoing, this Agreement shall not be interpreted to prohibit Employee from
making passive personal investments or conducting private business affairs if
those activities do not materially interfere with the services required under
this Agreement.
4. COMPETITIVE ACTIVITIES.
a. During the Term of Employment, Employee shall not, directly or
indirectly, own an interest in, operate, join, control, or participate in, or be
connected as an officer, employee, agent, independent contractor, partner,
shareholder or principal of any corporation, partnership, proprietorship, firm,
association, person, or other entity producing, designing, providing, soliciting
orders for, selling, distributing, or marketing products, goods, equipment, or
services that compete directly or indirectly with Employer's products and
services or Employer's business, without first obtaining the written approval of
Employer. Such approval may be rescinded by Employer if and when, in the
opinion of Employer, such activities materially inhibit Employee's performance
under this Agreement or place Employer at risk.
b. For one year following his termination as an Employee of, or
consultant to, Employer, whichever occurs later ("Post-termination Period"),
Employee shall not be prohibited from employment in the mortgage industry
involving activities similar to those engaged in prior to becoming an Employee
of or consultant to Employer, except, however, Employee shall not undertake any
employment or activity competitive with Employer's business in which the loyal
and complete fulfillment of the duties of the competitive employment or activity
would call on Employee to reveal or otherwise to use any confidential business
information or trade secrets of Employer's business to which Employee had access
by reason of his prior engagement by Employer.
c. During the Term of Employment and the Post-termination Period,
Employee shall not, directly or indirectly, either for himself or for any other
person, firm, or corporation, divert or take away or attempt to divert or take
away (and during the Post-termination Period, call on or solicit or attempt to
call on or solicit) any of Employer's customers or patrons, including but not
limited to those on whom Employee called or whom he solicited or to whom he
catered or with whom Employee became acquainted during his engagement by
Employer. Nothing herein shall limit Employee's right during the
Post-termination Period, to call on or solicit or attempt to call on or solicit
any of Employee's customers or patrons on whom Employee called or whom he
solicited or to whom he catered or with whom he became acquainted during the
period prior to Employee's engagement by Employer.
d. During the Term of Employment, Employee shall not undertake
planning for or organization of any business activity competitive with
Employer's business or combine or join with other employees or representatives
of Employer's business for the purpose of organizing any such competitive
business activity.
e. During the Term of Employment and the Post-termination Period,
Employee shall not, directly or indirectly or by action in concert with others,
induce or influence (or seek to induce or influence) any person who is engaged
(as an employee, agent, independent contractor, or otherwise) by Employer to
terminate his or her employment or engagement.
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5. COMPENSATION. As compensation for the services to be rendered by
Employee hereunder during the Term of Employment, Employer shall pay Employee a
Base Salary and additional compensation based upon the performance of Employee,
as is more specifically set forth in Addendum A to this Agreement ("Adjusted
Base Salary"). In addition, Employee shall be granted those equity incentives
as are more specifically set forth in Addendum A to this Agreement.
6. BENEFITS. In addition to the compensation described herein above, during
the Term of Employment, Employee shall be eligible to receive the following
benefits:
a. Such health insurance and other benefits that Employer may, from
time to time, make available to Employer's employees.
b. Vacation time, sick leave, holidays and personal time in
accordance with Employer's vacation and absence policies, which Employer may,
from time to time, maintain for employees at Employee's level of employment.
c. Reimbursement of allowed business expenses, upon submission of
documentation in accordance with Employer's regular expense reimbursement
policies, for reasonable business expenses incurred on behalf of Employer by
Employee.
d. Participation in any savings plan, 401(k) plan, profit sharing
plan or pension plan, which Employer may, from time to time, maintain for
employees at Employee's level of employment, subject to plan eligibility.
7. CONFIDENTIAL INFORMATION.
a. Employee recognizes that, during the course of his employment with
Employer, he will be exposed to certain nonpublic, confidential information, the
disclosure of which to third parties would cause competitive injury to Employer.
Such confidential information includes but is not limited to Employer's
investment plans or strategies, trade secrets, sources of supply, customer
lists, lists of potential customers, customer or consultant contracts and the
details thereof, pricing policies, operational methods, marketing and
merchandising plans or strategies, business acquisition plans, personnel
acquisition plans, unannounced products and services, research and development
activities, processes, formulas, methods, techniques, technical data, know-how,
inventions, designs, financial or accounting data, inventory reports, production
schedules, cost and sales data, strategies, forecasts, and all other information
that is not publicly available pertaining to the business of Employer or any of
its affiliates. Such confidential information is hereinafter referred to as
"Confidential Information".
b. Confidential Information shall not include (i) any information
which is or becomes publicly available other than through breach of this
Agreement, or (ii) any information which is or becomes known or available to
Employee on a non-confidential basis and not in contravention of applicable law
from a source which is entitled to disclose such information to Employee.
c. Employee agrees that he will not, while employed by Employer,
divulge Confidential Information to any person, directly or indirectly, except
to Employer or its officers
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and agents, or as reasonably required in connection with Employee's duties on
behalf of the Employer, except as is required by law or court order. Employee
further agrees not to use, except on behalf of the Employer, any Confidential
Information acquired by Employee during the Term of Employment. Employee agrees
that he will not at any time after his employment with Employer has ended,
divulge to any person, directly or indirectly, any Confidential Information,
except as is required by law or court order. Employee further agrees that, if
his relationship with the Employer is terminated for any reason, Employee shall
not take with him but will leave with Employer all records, papers, and computer
software and data, and any copies thereof relating to the Confidential
Information (or if such papers, records, computer software and data, or copies
are not on the premises of Employer, Employee agrees to return such papers,
records, and computer software and data immediately upon his termination).
Employee acknowledges that all such papers, records, computer software and data,
or copies thereof are and remain the property of Employer.
8. VOICE MAIL AND ELECTRONIC MAIL. All voice mail and electronic mail on
Employer's telephone or computer systems are the property of Employer and shall
be non-personal, non-private and non-privileged to Employee, and Employee shall
disclose to Employer all codes or passwords necessary for Employer to access
such voice mail or electronic mail.
9. COOPERATION. As a condition of his employment with Employer, Employee
agrees that he will not disrupt, damage, impair, or interfere with the business
of the Employer, such as by interfering with the duties of the Employer's
employees, disrupting relationships with Employer's customers, agents,
representatives, or vendors, or otherwise.
10. TERMINATION.
a. Employee may terminate this Agreement for any reason or for no
reason upon providing Employer with sixty (60) days prior written notice of his
intention to terminate.
b. Employer may terminate this Agreement upon written notice to
Employee prior to its expiration date for just cause or due to the Employee's
death or substantial physical impairment which prevents Employee from performing
his duties and responsibilities as set forth herein. For purposes of this
Section, "just cause" is defined as the failure of Employee to perform his
duties and responsibilities as set forth herein to the satisfaction of Employer;
a violation of Section(s) 3, 4, 7, 8, or 9 of this Agreement; fraud;
misappropriation of funds; breach of fiduciary duty; embezzlement; theft;
physical assault or threatened assault on another person; drunkenness on the
job; possession or use of narcotics on Employer's property; willful and material
damage to Employer's property; conviction of a felony; violation of any state or
federal law applicable to Employer's business or premises; or repeated or
material violations of Employer's policies, including but not limited to those
policies prohibiting unlawful employment discrimination and harassment. If
FiNet's Board of Directors determines that Executive has performed his duties
with gross negligence, is guilty of material misconduct in connection with the
performance of his duties or if the Executive is convicted of any serious crime
or offense, or fails or refuses to comply with the oral or written policies or
directives of the Company's Board of Directors (unless such instructions
represent an illegal act), the Company may at any time thereafter (i) by written
notice to the Executive terminate the Executive's right to enter the Company's
premises, and such termination shall be effective as of the date notice is given
hereof;
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and (ii) by 30 days written notice to the Executive terminate the Term of the
Executive's employment hereunder, and the Executive shall have no right to
receive any monetary compensation hereunder in respect of any period after the
term of such notice. Notwithstanding the foregoing, if Employee is terminated
by reason of the failure of Employee to perform his duties and responsibilities
as set forth herein to the satisfaction of the Board of Directors, Employee
shall receive six months of base salary as severance pay.
c. In the event Employee's employment is terminated, whether by
Employer for "just cause", as is defined herein or due to the Employee's death
or substantial physical or mental impairment preventing Employee from performing
the essential functions of his job, or by Employee as provided herein, Employer
shall have no further obligation to pay any compensation to or benefits on
behalf of Employee, however all compensation accrued as of the date of
termination shall be paid to Employee upon termination.
d. Upon termination of his employment, Employee agrees to deliver
promptly to Employer all records, files, drawings, documents, specifications,
blueprints, letters, notes, reports and computer software, and all copies
thereof, and any and all materials relating to Employer's Confidential
Information that is in Employee's possession or control. At the time of
termination, Employee will have an exit interview with Employer wherein Employee
will certify that Employee has returned to Employer all tangible Confidential
Information disclosed to him, and disclose Inventions conceived or developed by
him during the Term of Employment.
e. Sections 4, 7, 10, 11, 12, 13, 14, 15, and 16, hereof, shall
survive termination of this Agreement.
11. ASSIGNMENT. The rights and liabilities of the parties hereto shall bind
and inure to the benefit of their respective successors, executors and
administrators, as the case may be; provided that, as Employer has specifically
contracted for Employee's services, Employee may not assign or delegate his
duties and responsibilities under this Agreement either in whole or part without
the prior written consent of Employer. Employer may assign its rights and
obligations to a successor in interest to Employer, provided such successor
assumes all obligations and liabilities thereunder.
12. SEVERABILITY OF PROVISIONS. In the event any provision of this Agreement
is held to be illegal, invalid, or unenforceable under any present or future
law, (a) such provision will be fully severable, (b) this Agreement will be
construed and enforced as if such illegal, invalid, or unenforceable provision
had never comprised a part hereof, (c) the remaining provisions of this
Agreement will remain in full force and effect and will not be affected by the
illegal, invalid, or unenforceable provision or by its severance herefrom, and
(d) in lieu of such illegal, invalid, or unenforceable provision, there will be
added automatically as a part of this Agreement a legal, valid, and enforceable
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible.
13. MEDIATION AND ARBITRATION. Initially all claims and controversies of any
kind relating to this Agreement shall be submitted to mediation pursuant to the
services of JAMS/Endispute Mediation Service ("JAMS") with the venue of the
mediation being San Francisco, CA. In the event the matter cannot be disposed
of by mediation, all claims and controversies of any kind
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relating to this Agreement shall be finally settled by binding arbitration
before a single JAMS arbitrator in San Francisco, CA, in accordance with the
JAMS/Endispute Rules and Procedures for Mediation/Arbitration of Employment
Disputes. The parties to this Agreement shall be bound by the decisions in any
such arbitration, and judgment upon such arbitration may be entered by any court
of proper jurisdiction. Notwithstanding the applicable rules of JAMS, in
accordance with California Code of Civil Procedure Section 1283.1 (b), the
parties agree that depositions may be taken and discovery obtained in any
arbitration proceeding relating to this Agreement in accordance with California
Code of Civil Procedure Section 1283.05. Attorney's fees and costs shall be
allocated by agreement in mediation or by the arbitrator in arbitration.
14. NOTICES. Any notice provided for in this Agreement must be in writing
and must be either personally delivered, or mailed by certified mail (postage
prepaid and return receipt requested), or sent by reputable overnight courier
service, to the recipient at the address below indicated:
To Employee: Xxxx Xxxxxxx
0000 Xxxxxx Xxxx Xxxxx
Xx Xxxxxx, XX 00000
To Employer: XxXxx.xxx, Inc.
0000 Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or if mailed, five (5) days after deposit in a U.S. Postal facility.
15. ENTIRE AGREEMENT: AMENDMENTS AND WAIVERS. This Agreement contains the
sole, complete, final, exclusive and entire agreement between the parties
pertaining to the employment of Employee by Employer and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties. No amendment, supplement, modification, rescission or
waiver of this Agreement shall be binding unless executed in writing by the
parties. No waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a continuing waiver unless otherwise expressly provided.
The parties expressly acknowledge that they have not relied upon any prior
agreements, understandings, negotiations or discussions, whether oral or
written.
16. CHOICE OF LAW. The rights and duties of the parties will be governed by
the law of the State of California, excluding any choice-of-law rules that would
require the application of laws of any other jurisdiction.
17. INSURANCE. Employee shall cooperate with Employer, at no cost to
Employee, should Employer wish to purchase key-man insurance on Employee's life.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
EMPLOYER EMPLOYEE
By: By:
--------------------------- -------------------------
S. Xxxxx Xxxxx,
Chairman of Compensation
Committee Board of Directors
Date: December 28, 1999 Date: December 28, 1999
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ADDENDUM A
EMPLOYMENT CONTRACT
XXXX XXXXXXX
This Addendum between Xxxx Xxxxxxx (Cossano), and XxXxx.xxx, Inc.
(FiNet), shall define the terms of Compensation.
SALARY - Cossano shall receive a base salary of $375,000.
BONUS - Cossano shall be eligible to receive an annual bonus of up to
$400,000. Said bonus shall be paid quarterly subject to achievement of mutually
agreed upon benchmarks, but shall be no less than $100,000 during the first six
months of the term of this Agreement nor more than $200,000 during any six month
period thereafter.
EQUITY INCENTIVES - Cossano shall be entitled to a total of three
million qualified stock options or warrants. Said options shall be based on
market price of FiNet stock upon execution of this Agreement. Options shall
vest as follows:
500,000 upon execution of agreement.
250,000 on the sixth month anniversary of employment
250,000 on the twelve-month anniversary of employment
1,000,000 on the twenty-fourth month anniversary of employment
1,000,000 on the thirty-sixth month anniversary of employment
CHANGE OF CONTROL. In the event a person or entity gains ownership of
over 35% of the outstanding shares of FiNet ("Change of Control"), all of the
Employee's Options shall fully vest. In conjunction with the Change of Control
or thereafter during the Term of Employment, should Employee's employment by
FiNet be terminated by Employer without "just cause", Employer will continue to
pay Base Salary compensation through the remaining Term of Employment. All of
Employee's vested Options must be exercised within 90 days of the date of
termination.
RELOCATION EXPENSES. Employee shall be reimbursed for actual expenses
incurred in the relocation of his family to Northern California in an amount not
to exceed $40,000 ("Relocation Expenses"). Relocation Expenses shall be limited
to those expenses reasonably incurred by Employee in the moving of his family
and furnishings from his current residence in La Canada, California to a
residence in Northern California. For purposes of this Addendum Relocation
Expenses shall be limited to:
a. Packing and unpacking of furnishings;
b. Transportation costs charged by a household goods carrier for
shipment of household goods from La Canada, California to Northern
California;
Addendum A
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c. Coach airfare and lodging for Employee and his spouse to visit
Northern California to look for a residence; and
d. Payment of industry standard real estate commission on the sale of
Employee's residence in La Canada, California.
If Employee terminates his employment prior to January 31, 2001, Employee
shall be required to repay Employer upon termination the Relocation Expenses
paid in accordance with this provision.
BOARD MEMBERSHIP - Cossano shall serve as a member of the FiNet Board of
Directors
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S. Xxxxx Xxxxx,
Chairman of Compensation Committee
Board of Directors
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Xxxx Xxxxxxx
Addendum A
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