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Exhibit 10.40
[LETTERHEAD OF TRINTECH APPEARS HERE]
EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") between Xxxx Xxxxx (the
"Executive") and Trintech Inc., a California corporation (the "Company") is
entered into as of 15/th /July, 1999 (the "Effective Date").
BACKGROUND
WHEREAS, the Company has agreed to employ the Executive, and the Executive
has agreed to accept employment with the Company, on the terms and conditions
set forth below;
NOW, THEREFORE, in consideration of the foregoing recital and the
respective covenants and agreements of the parties contained in this document,
the Company and the Executive agree as follows:
1. Employment and Duties. The Executive shall be employed as the Executive
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Vice President for Sales and Marketing of the Company effective as of the date
hereof reporting to the Chief Executive Officer of the Company (the "CEO"), and
assuming and discharging such responsibilities as are mutually agreed upon by
the Executive and the CEO commensurate with such office and position. The
Executive shall perform faithfully the executive duties assigned to him or which
otherwise may be customarily incident to such position to the best of his
ability and shall devote his full business time and effort to the performance of
his duties hereunder. The Executive will be required to provide the Company with
acceptable documentary evidence of his identity and eligibility for employment
in the United States.
2. Base Salary. In consideration of the Executive's services rendered, the
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Executive shall be paid a minimum base salary at the rate of $200,000 per year
during the period of employment (the "Base Salary"), to be paid in installments
in accordance with the Company's standard payroll practices. This Base Salary
shall be inclusive of all applicable income, social security and other taxes and
charges which are required by law to be withheld by the Company, and which shall
be withheld and paid in accordance with the Company's standard payroll
practices. This Base Salary shall be reviewed for increases at least annually by
the Board on the same basis as the Board shall review the compensation of other
executive officers of the Company.
3. Bonus. In addition to base salary, the Executive shall receive a bonus
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in an amount up to $100,000 based on criteria to be determined by the Company in
its sole discretion. This will be based on the achievement of performance
targets, which will be budgeted and agreed upon commencement of employment. This
bonus will be paid quarterly in arrears.
Sign-on Bonus. In addition, the Executive will receive a once off
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sign-on bonus payment of $25,000 that will be paid on commencement of employment
provided employment commences prior to the 30/th /July, 1999.
4. At-Will Employment. The Company and the Executive acknowledge that the
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Executive's employment is and shall continue to be at-will, as defined under
applicable law. If the Executive's employment terminates for any reason, the
Executive shall not be entitled to any payments, benefits, damages, awards or
compensation other than as provided by this Agreement (including as set forth in
Section 10(a) hereof), or as may otherwise be available in accordance with the
Company's established employee plans and policies or other written agreements
with the Executive at the time of termination. No provision in this Agreement
shall be construed as conferring upon Executive a right to continue as an
employee of the Company.
5. Benefits; Expenses. The Executive, together with his spouse and
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dependent children, shall be permitted, to the extent eligible, to participate
in any group medical, dental, life insurance and disability insurance plans, or
similar benefit plans of the Company in each case pursuant to the terms and
conditions of each such plan or program (See attached list of Company Benefits).
The Company reserves the right to cancel or change the benefit plans and
programs it offers to its employees at any time. The Executive shall also be
entitled to three weeks' annual vacation. Without limiting the generality of the
foregoing, the Company shall reimburse the Executive for all reasonable business
and travel expenses actually incurred or paid by the Executive in the
performance of services on behalf of the Company, in accordance with the
Company's expense reimbursement policy as in effect from time to time.
6. Stock Options. As of the Effective Date which is the next scheduled
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Board Meeting following commencement of employment, the Executive shall be
granted a stock option to purchase up to a total of 225,000 shares of the
Company's Common Stock at an exercise price equal to the fair market value of
the shares on the grant date of grant (the "Option"). The Option shall be
subject to the terms, definitions and provisions of the Trintech Share Option
Plan (the "Option Plan") and the stock option agreement by and between Employee
and the Company (the "Option Agreement"). Vesting of the Option shall be
accelerated as provided in Section 10(a) hereof.
7. Rules and Regulations. Executive acknowledges that he or she is
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expected to abide by the Company's rules and regulations.
8. Covenant Not To Solicit.
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In the event that the Executive terminates his employment with the
Company voluntarily or the Company terminates the Executive's employment for
Cause, beginning with the effective date of such resignation or termination and
for a period of one (1) one year thereafter, the Executive agrees that he will
not:
(i) solicit, encourage, or take any other action which is
intended to induce any other employee of the Company to terminate his employment
with the Company, or
(ii) interfere in any manner with the contractual or employment
relationship between the Company and any such employee of the Company.
The foregoing shall not prohibit the Executive or any entity with
which the Executive may be affiliated from hiring a former employee of the
Company, provided that such hiring results from such employee's affirmative
response to a general recruitment effort carried out through a public
solicitation or a general solicitation.
9. Covenants Not to Compete. Executive has agreed to be bound by the
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provisions contained in this Section 9.
(a) For purposes of this Agreement, the term "Non-Compete Period"
shall mean a period beginning on the Commencement Date and ending on the date
the Executive voluntarily resigns from his employment with the Company or the
Company terminates the Executive's employment for Cause, one year from the
effective date of such resignation or termination. For the purposes of this
Agreement, the term "Restricted Business" shall mean any business or enterprise
in which the Company or any of its affiliates engage at any time during the Non-
Compete Period. During the Non-Compete Period, the Executive covenants and
agrees that the Executive will not, directly or indirectly, own, manage,
operate, join, control, advise or participate in, as a shareholder (other than
as a shareholders with less than 1% of the outstanding stock of a company),
officer, manager, executive, partner, consultant or technical or business
advisor (or any foreign equivalents of the foregoing) any company that derives
more than 10% of its revenues from the Restricted Business, or any company or
entity controlling, controlled by or under common control with any company that
derives more than 10% of its revenues from such Restricted Business (any of the
foregoing, a "Restricted Company").
(b) In the event that the Executive intends to associate with any
Restricted Company during the Non-Compete Period, the Executive must provide
information in writing to the CEO relating to the business engaged in or
proposed to be engaged in by such Restricted Company. All such current
associations are set out in Exhibit A hereto. In the event that the CEO
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authorizes the Executive to engage in such activity in writing, any activity by
the Executive described in the written information furnished to the CEO and so
authorized shall be conclusively deemed not to be a violation of Section 9(a)
hereof.
(c) If the Executive commits or, in the reasonable belief of the
Company, threatens to commit a breach of any of the provisions of this Section
9, the Company and each of its subsidiaries and affiliates shall have the right
and remedy, in addition to any other remedy that may be available at law or in
equity, to have the provisions of this Section 9 specifically enforced by any
court having equity jurisdiction together with an accounting for any benefit or
gain by the Executive in connection with any such breach, it being acknowledged
and agreed that any such breach or threatened breach will cause irreparable
injury to the Company and its subsidiaries and that money damages will not
provide an adequate remedy therefor. Such injunction shall be available without
the posting of any bond or other security, and the Executive hereby consents to
the issuance of such injunction. If any court determines that any of the
provisions contained in this Section 9 are
unenforceable, such court shall have the power to modify such provision and, in
its modified form, such provision will then be enforceable.
10. Termination.
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(a) Severance. If, within 90 days of Change of Control, the
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Executive's employment with the Company is involuntarily terminated by the
Company, other than for Cause (as those terms are defined in paragraph (c)
below) (an "Event"), (i) the Company shall, in addition to paying the Executive
all unpaid Base Salary and benefits accrued on or prior to the date of such
Event, make a lump sum payment to the Executive equal to one years base salary
at the then current rate, and (ii) all unvested shares subject to the Option
shall immediately vest.
(b) Termination and Voluntary Resignation. Except as provided in
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Section 10(a), in the event that (i) the Company terminates the Executive's
employment for any reason or (ii) the Executive terminates his employment with
the Company voluntarily, then the Company's obligation to the Executive will be
limited solely to the payment of accrued and unpaid Base Salary and benefits
through the date of such termination. The Executive's rights under the Company's
benefit plans upon such a termination shall be determined under the provisions
of those plans.
(c) Definitions. (1) For purposes of this Agreement, the term
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"Involuntary Termination" shall mean (i) without the Executive's express written
consent, the assignment to the Executive of any duties, or the removal from or
reduction or limitation of the Executive's duties or responsibilities, which in
either case is a significant change in the Executive's position, title,
organization level, duties, responsibilities and status with the Company; (ii)
without the Executive's express written consent, a substantial reduction of the
facilities and perquisites (including office space and location) available to
the Executive immediately prior to such reduction; (iii) without the Executive's
express written consent, a material reduction by the Company in the base salary
of the Executive as in effect immediately prior to such reduction; (iv) without
the Executive's express written consent, a material reduction by the Company in
the kind or level of employee benefits to which the Executive is entitled
immediately prior to such reduction with the result that the Executive's overall
benefits package is significantly reduced unless such reduction affects all
employees of the Company generally; (v) without the Executive's express written
consent, the relocation of the Executive to a facility or a location more than
ninety (90) miles from the Executive's then-present work location; (vi) any
purported termination of the Executive by the Company other than for Cause, or
by reason of the Executive's death or Absenteeism; (vii) the failure of the
Company to obtain the assumption of this Agreement by any successor as required
by Section 13 below; or (viii) any material breach by the Company of any term of
this Agreement.
(2) For purposes of this Agreement, "Cause" shall mean the
occurrence of any of the following: (i) Executive's refusal, failure or
inability to perform his material obligations under this Agreement or the
reasonable directives of the Board of Directors, (ii) any act of fraud,
embezzlement, theft or personal dishonesty taken by the Executive in connection
with his responsibilities as an employee which is intended to cause a material
personal financial benefit for the Executive, (iii) the Executive's conviction
of or plea of nolo contendere to a felony, (iv) use of controlled drugs (other
than in accordance with a physician's prescription) during employment hours,
(v) a willful act by the Executive which constitutes misconduct and is injurious
to the Company, and (vi) continued willful violations by the Executive of the
Executive's obligations to the Company.
(3) For purposes of this Agreement, the term "Change of
Control" shall mean an acquisition, merger or other similar form of
reorganization of the Company, after which the stockholders of the Company
immediately prior to such reorganization hold less than fifty percent (50%) of
the voting interests of the surviving entity.
(d) Death. The Executive's employment shall terminate in the event of
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his death. Except for such obligations for Base Salary or other benefits that
have accrued to Executive prior to the Executive's death, the Company shall have
no obligation to pay or provide any compensation or benefits under this
Agreement to Executive or Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees on account of the Executive's death or otherwise. The Executive's
rights under the Company's benefit plans in the event of the Executive's death
shall be determined under the provisions of those plans.
(e) Absenteeism. Regular attendance at work is an essential element
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of the job for which Executive has been hired. The Company may terminate the
Executive's employment for Absenteeism by giving the Executive thirty (30) days'
advance notice in writing unless otherwise required by law. For all purposes
under this Agreement, "Absenteeism" shall mean that the Executive, at the time
notice is given, has been absent from work and is otherwise unable to perform
the essential functions of his job with or without a reasonable accommodation
for a period of not less than six (6) consecutive months. Except for such
obligations for Base Salary or other benefits that have accrued to Executive
prior to the Executive's termination, no compensation or benefits will be paid
or provided to the Executive under this Agreement on account of such termination
or otherwise. The Executive's rights under the Company's benefit plans shall be
determined under the provisions of those plans.
(f) Settlement and Release Agreement. Notwithstanding anything
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contained herein to the contrary, as a condition to the obligations of the
Company under this Section 10, Executive shall execute and deliver to the
Company that certain Settlement and Release Agreement, substantially in the form
attached hereto as Exhibit B.
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11. Tax Provisions. In the event that the benefits provided for in the
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Agreement, when aggregated with any other payments or benefits received by the
Executive, would (i) constitute "parachute payments" within the meaning of
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and
(ii) would be subject to the excise tax imposed by Section 4999 of the Code
("the Excise Tax"), then the Executive's benefits hereunder shall be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no
portion of such benefits being subject to the Excise Tax,
whichever of the foregoing amounts, taking into account the applicable federal,
state and local income taxes and the Excise Tax, results in the receipt by the
Executive on an after-tax basis, of the greatest amount of benefits,
notwithstanding that all or some portion of such benefits may be taxable under
Section 4999 of the Code. Unless the Company and the Executive otherwise agree
in writing, any determination required under this paragraph shall be made in
writing by the Company's independent public accountants (the "Accountants")
whose determination shall be conclusive and binding upon the Executive and the
Company for all purposes. For purposes of making the calculations required by
this paragraph, the Accountants may make reasonable assumptions and
approximations concerning applicable taxes and may rely on reasonable, good
faith interpretations concerning the application of Sections 280G and 4999 of
the Code. The Company and the Executive shall furnish to the Accountants such
information and documents as the Accountants may reasonably request in order to
make a determination under this paragraph. The Company shall bear all costs the
Accountants may reasonably incur in connection with any calculations
contemplated by this paragraph.
12. Proprietary Information Agreement. In connection with commencement of
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the Executive's employment with the Company, the Executive will sign the
Company's standard confidentiality and invention assignment agreement (the
"Confidentiality Agreement"), provided that its provisions, if any, concerning
non-solicitation and non-competition shall be deleted in favor of the provisions
herein.
13. Successors. The Company shall require any successor or assignee, in
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connection with any sale, transfer or other disposition of all or substantially
all of the assets or business of the Company, whether by purchase, merger,
consolidation or otherwise, expressly to assume and agree to perform the
Company's obligations under this Agreement in the same manner and to the same
extent that the Company would be required to perform if no such succession or
assignment had taken place. In such event, the term the Company as used in this
Agreement, shall mean the Company as defined above and any successor or assignee
to the business and assets which by reason hereof becomes bound by the terms and
provisions of this Agreement. Without the written consent of the Company,
Executive shall not assign or transfer this Agreement or any right or obligation
under this Agreement to any other person or entity. Notwithstanding the
foregoing, the terms of this Agreement and all rights of Executive hereunder
shall inure to the benefit of, and be enforceable by, Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
14. Confidentiality. Except as required by applicable laws, neither party
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shall disclose the contents of this Agreement without first obtaining the prior
written consent of the other party, provided, however, that (i) the Executive
may disclose this Agreement to his attorney, financial planner and tax advisor
if such persons agree to keep the terms hereof confidential and (ii) the Company
may disclose this Agreement if its counsel advises that it is required to do so
under applicable law.
15. Right to Advice of Counsel. Executive acknowledges that he has had the
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right to consult with counsel and is fully aware of his rights and obligations
under this Agreement.
16. Arbitration.
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(a) Except as provided in Section 16(c) below, the Company and
Executive agree that any dispute or controversy arising out of, relating to, or
in connection with this Agreement, or the interpretation, validity,
construction, performance, breach, or termination thereof, shall be settled by
binding arbitration unless otherwise required by law, to be held in San
Francisco County, California in accordance with the National Rules for the
Resolution of Employment Disputes then in effect of the American Arbitration
(the "Rules"). The arbitrator may grant injunctions or other relief in such
dispute or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction.
(b) The arbitrator(s) shall apply California law to the merits of any
dispute or claim, without reference to rules of conflicts of law. Executive
hereby consents to the personal jurisdiction of the state and federal courts
located in California for any action or proceeding arising from or relating to
this Agreement or relating to any arbitration in which the parties are
participants.
(c) The parties may apply to any court of competent jurisdiction for
a temporary restraining order, preliminary injunction, or other interim or
conservatory relief, as necessary, without breach of this arbitration agreement
and without abridgement of the powers of the arbitrator.
(d) Executive understands that nothing in Section 16 modifies his at-
will status. Either the Company or Executive can terminate the employment
relationship at any time, with or without cause.
(e) EXECUTIVE HAS READ AND UNDERSTANDS THIS SECTION 16, WHICH
DISCUSSES ARBITRATION. EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT,
EXECUTIVE AGREES, EXCEPT AS PROVIDED IN SECTION 16(d), TO SUBMIT ANY CLAIMS
ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE
INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION
THEREOF TO BINDING ARBITRATION, UNLESS OTHERWISE REQUIRED BY LAW, AND THAT THIS
ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EXECUTIVE'S RIGHT TO A JURY TRIAL AND
RELATES TO THE RESOLUTION OF ALL. DISPUTES RELATING TO ALL. ASPECTS OF
EXECUTIVE'S RELATIONSHIP WITH THE COMPANY.
17. Governing Law. This Agreement shall be governed by and construed and
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enforced in accordance with the internal substantive laws of the State of
California, without regard to conflict of laws principles.
18. Integration. This Agreement, together with the Option Agreement, the
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Invention Assignment Agreement and any written agreements or other documents
evidencing matters referred to herein and any written Company existing plans
that are referenced herein represent the entire agreement and understanding
between the parties as to the subject matter hereof and thereof and supersede
all prior or contemporaneous agreements as to the subject matter hereof and
thereof,
whether written or oral. No waiver, alteration, or modification, if any, of the
provisions of this Agreement shall be binding unless in writing and signed by
duly authorized representatives of the parties hereto.
19. Notices. Notices and all other communications contemplated by this
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Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail, return
receipt requested and postage prepaid. In the case of the Executive, mailed
notices shall be addressed to him at the home address that he most recently
communicated to the Company in writing. In the case of the Company, mailed
notices shall be addressed to its corporate headquarters, and all notices shall
be directed to the attention of its Secretary.
20. Waiver. If either party should waive any breach of any provisions of
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this Agreement, he or it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
21. Counterparts and Facsimiles. This Agreement may be executed, including
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execution by facsimile signature, in counterparts, which together will
constitute one instrument.
22. Severability. Whenever possible, each provision of this Agreement will
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be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
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EXECUTIVE TRINTECH INC
/s/ Xxxx Xxxxx By: /s/ Xxxx XxXxxxx
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Xxxx Xxxxx Name
Title
Consent of Spouse: I hereby consent to this Agreement for purposes of any
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community property interest I may have in the foregoing arrangements. I have had
the opportunity to seek independent counsel with regard to this consent and
knowingly and voluntarily waive the right to such counsel.
/s/ Xxxxxx X. Xxxxx
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Signature of Spouse
Xxxxxx X. Xxxxx
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Printed Name of Spouse
25/th/ August 1999
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Date Signed
