EXHIBIT 10.32
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of , 2001(the
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"Effective Date"), by and between Xxxxx Xxxxx ("Executive") and Viador, Inc., a
California corporation (together with any successor by merger or otherwise, the
"Company"). In consideration of the mutual covenants and agreements hereinafter
set forth, the parties agree as follows:
1. Duties and Scope of Employment.
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(a) Position and Duties. For the term of her employment under the
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Agreement, the Company agrees to employ Executive as its Chief Financial
Officer, reporting directly to the Chief Executive Officer. Executive shall have
such duties and authority as are commensurate with one employed in the position
of Chief Financial Officer, as may be customarily associated with such position,
and as may be assigned to Executive from time to time. Executive shall
diligently, to the best of her ability, and with the highest degree of good
faith and loyalty, perform all such duties incident to her position and use her
best efforts to promote the interests of the Company.
(b) Obligations to the Company. During the Employment Term, Executive shall
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devote her full time and energy to the business of the Company and shall not be
engaged in any competitive business activity without the express written consent
of the Chairman of the Board. Executive shall comply with the Company's policies
and rules, as they may be in effect from time to time during the term of her
employment.
(c) No Conflicting Obligations. Executive represents and warrants to the
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Company that she is under no obligations or commitments, whether contractual or
otherwise, that are inconsistent with her obligations under this Agreement.
Executive represents and warrants that she will not use or disclose, in
connection with her employment by the Company, any trade secrets or other
proprietary information or intellectual property in which Executive or any other
person has any right, title or interest and that her employment by the Company
as contemplated by this Agreement will not infringe or violate the rights of any
other person or entity. Executive represents and warrants to the Company that
she has returned all property and confidential information belonging to any
prior employers.
2. Term of Employment.
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(a) Basic Rule. The Company agrees to continue Executive's employment, and
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Executive agrees to remain in employment with the Company, from the Effective
Date until the date when Executive's employment terminates pursuant to
Subsection 2(b) below (the "Employment Period"). Executive's employment with the
Company shall be "at will," which means that either Executive or the Company may
terminate Executive's employment at any time, for any reason, with "Cause" or
"Without Cause." Any contrary representations, which may have been made to
Executive shall be superseded by this Agreement. This Agreement shall constitute
the full and complete agreement between Executive and the
Company regarding the "at will" nature of Executive's employment, which may
only be changed in an express written agreement signed by Executive and the
Chairman of the Board.
(b) Termination. The Company or Executive may terminate Executive's
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employment at any time for any reason (or no reason), and with "Cause" or
"Without Cause," by giving the other party fourteen (14) days' notice in
writing. Executive's employment shall terminate automatically in the event of
her death.
3. Cash and Incentive Compensation.
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(a) Base Salary. The Company shall pay Executive as compensation for her
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services an annualized base salary of One Hundred Fifty Thousand Dollars
($150,000.00), less applicable deductions and withholdings, payable in
accordance with the Company's standard payroll schedule. The compensation
specified in this Subsection (a), together with any change in such compensation
that the Company may grant from time to time, are referred to in this Agreement
as "Base Salary." The Base Salary will be reviewed at least annually and shall
be subject to change from time-to-time at the sole discretion of the
Compensation Committee of the Board.
(b) Bonus. Executive may be eligible to earn an annualized bonus (the
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"Target Bonus") for each calendar year. The Target Bonus shall be based upon
performance criteria to be established by the Board of Directors in consultation
with Executive. If any part of the Target Bonus is earned for a given year, it
will be paid on or before February 28 of the following year.
(c) Vacation and Executive Benefits. During the term of her employment,
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Executive shall be eligible for vacation each year, in accordance with the
Company's standard policy, as it may be amended from time to time. Executive
shall be eligible during her employment term to participate in any employee
benefit plans generally available to the other senior executives of the Company,
subject in each case to the generally applicable terms and conditions of the
plan in question and to the determinations of any person or committee
administering such plan. The Company reserves the right to amend, modify or
terminate any employee benefits at any time for any reason.
(d) Business Expenses. During the term of her employment, Executive shall
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be authorized to incur necessary and reasonable travel and other business
expenses in connection with her duties hereunder. The Company shall reimburse
Executive for such expenses upon presentation of an itemized account and
appropriate supporting documentation, all in accordance with the Company's
expense reimbursement policies as may be established and modified from
time-to-time.
4. Payments, Benefits and Acceleration Following Termination.
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(a) Termination Following Change of Control. If, within one year following
a "Change of Control," Executive resigns for "Good Reason" or the Company
terminates Executive's employment "Without Cause," then Executive shall receive:
(i) A lump sum severance payment equal to 25% of the Executive's Base
Salary, less applicable deductions and withholdings;
(ii) The amount of her Target Bonus earned, if any, less applicable
deductions and withholdings;
(iii) Immediate vesting of that certain option grant dated April 30,
2001 to purchase 50,000 shares at .39 per share
(b) Termination Outside Change of Control. Subject to Section 4(e) of this
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Agreement, if the Company terminates Executive's employment "Without Cause" when
no Change of Control has occurred in the prior year, then Executive shall
receive the same items as under 4 (a), (i) - (iii) above.
(c) Resignation or Termination for "Cause." In the event that (i)
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Executive's employment is terminated by the Company at any time for "Cause;"
(ii) Executive resigns her employment for any reason when no Change of Control
has taken place within the prior twelve (12) months; or (iii) Executive resigns
her employment without "Good Reason" within twelve (12) months following a
Change of Control; then upon the termination of Executive's employment,
Executive will be paid her Base Salary and for all unused vacation earned
through the date of termination, but nothing else, and all stock vesting and
benefits will cease on Executive's date of termination.
(d) Release Required. As a prior condition to Executive receiving any
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payment, benefit or stock acceleration under Sections 4(a) and/or 4(b) of this
Agreement, Executive shall execute a full release of known and unknown claims
against the Company, its successors, affiliates, employees, agents, advisors and
representatives, in a form designated by the Company.
(e) Termination Due to Death or Disability. If Executive's employment is
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terminated due to death or Disability, then Executive, or Executive's estate,
will receive: (i) payment for all Base Salary and accrued but unused vacation
earned through the date of termination; and (ii) a lump-sum payment equal to any
outstanding Target Bonus due, if any.
(f) Definitions.
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(i) "Change of Control." For all purposes under this Agreement,
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"Change of Control" shall mean (1) a merger or consolidation in which securities
possessing at least fifty percent (50%) of the total combined voting power of
the Corporation's outstanding securities are transferred to a person or persons
different from the persons holding those securities immediately prior to such
transaction, or (2) the sale, transfer or other disposition of all or
substantially all of the Corporation's assets in complete liquidation or
dissolution of the Corporation.
(ii) "Good Reason." For all purposes under this Agreement, "Good
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Reason" for Executive's resignation will exist if she resigns within sixty (60)
days of any of the following events: (1) any reduction in her Base Salary; (2) a
change in her position with the Company or a successor company which reduces
substantially her duties or level of
responsibility; (3) any requirement that she relocate her place of employment by
more than fifty (50) miles from her then current office, provided such
reduction, change or relocation is effected by the Company without her written
consent. A resignation by Executive under any other circumstance or for any
other reason will be a resignation without "Good Reason."
(iii) Termination for "Cause." For all purposes under this Agreement,
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a termination for "Cause" shall mean a termination of Executive's employment for
any of the following reasons: (1) misappropriation of the assets of the Company;
(2) conviction of, or a plea of "guilty" or "no contest" to a felony under
the laws of the United States or any state thereof; (3) committing an act of
fraud against, or the misappropriation of property belonging to, the Company;
(4) a material breach of any confidentiality or proprietary information
agreement between Executive and the Company; or (5) continued unsatisfactory
performance after being given a written warning and, if curable, at least ninety
(90) days to improve performance. A termination of Executive's employment in any
other circumstance or for any other reason will be a termination "Without
Cause."
(iv) "Disability." For all purposes under this Agreement, "Disability"
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means Executive's inability to carry out her material duties under this
Agreement for more than six (6) months in any twelve (12) consecutive month
period as a result of incapacity due to mental or physical illness or injury.
(v) "Competitive Activity." For the purposes of this Agreement, a
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"Competitive Activity" means any activity in which Executive directly or
indirectly provides services of any kind or nature (whether or not Executive is
compensated for such services), including, but not limited to, Executive working
in an employment, advisory or consulting capacity, for any Competitor of the
Company.
(vi) "Competitor." For purposes of this Agreement, "Competitor" is
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defined as any company involved in the Enterprise Information Portal market.
5. Non-Disclosure.
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(a) Non-Disclosure. As a condition of employment, Executive will
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execute the Company's standard Proprietary Information
Agreement as required.
6. Successors.
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(a) Company's Successors. This Agreement shall be binding upon any
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successor (whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially all of the
Company's business and/or assets. For all purposes under this Agreement, the
term "Company" shall include any successor to the Company's business and/or
assets which becomes bound by this Agreement.
(b) Executive's Successors. This Agreement and all rights of Executive
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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.
7. Arbitration. Executive and the Company agree to arbitrate before a
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neutral arbitrator any and all disputes or claims arising from or relating to
Executive's employment with the Company, or the termination of that employment,
including disputes or claims against any current or former agent or employee of
the Company.
(a) Arbitrable Claims. Arbitrable disputes or claims include those
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which arise in tort, contract, or pursuant to a statute, regulation, or
ordinance now in existence or which may in the future be enacted or recognized,
including, but not limited to, the following claims:
(i) claims for fraud, promissory estoppel, fraudulent inducement
of contract or breach of contract or contractual obligation, whether such
alleged contract or obligation be oral, written, or express or implied by fact
or law;
(ii) claims for wrongful termination of employment, violation of
public policy and constructive discharge, infliction of emotional distress,
misrepresentation, interference with contract or prospective economic advantage,
defamation, unfair business practices, and any other tort or tort-like causes of
action relating to or arising from the employment relationship or the formation
or termination thereof;
(iii) claims of discrimination, harassment, or retaliation under
any and all federal, state, or municipal statutes, regulations, or ordinances
that prohibit discrimination, harassment, or retaliation in employment, as well
as claims for violation of any other federal, state, or municipal statute,
regulation, or ordinance, except as set forth herein; and
(iv) claims for non-payment or incorrect payment of wages,
commissions, bonuses, severance, employee fringe benefits, stock options and the
like, whether such claims be pursuant to alleged express or implied contract or
obligation, equity, the California Labor Code, the Fair Labor Standards Act, the
Employee Retirement Income Securities Act, and any other federal, state, or
municipal laws concerning wages, compensation or employee benefits.
(b) Non-Arbitrable Claims. Executive and the Company further
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understand and agree that the following disputes and claims are not covered by
the arbitration agreement contained in this Section 8 and shall therefore be
resolved as required by the law then in effect:
(i) claims for workers' compensation benefits, unemployment
insurance, or state or federal disability insurance;
(ii) claims concerning the validity, infringement,
enforceability, or misappropriation of any trade secret, patent right,
copyright, trademark, or any other intellectual or confidential property held or
sought by Employee or the Company; and
(iii) any other dispute or claim that has been expressly excluded
from arbitration by statute.
(c) Relief and Review. The Arbitrator shall have the authority to
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award any relief authorized by law in connection with the asserted claims or
disputes and shall issue a written Award that sets forth the essential findings
and conclusions on which the Award is based. The Arbitrator's Award shall be
final and binding on both the Company and Employee and it shall provide the
exclusive remedy(ies) for resolving any and all disputes and claims subject to
arbitration under their Agreement. The Arbitrator's Award shall be subject to
correction, confirmation, or vacation, as provided by California Code of Civil
Procedure Section 1285.8 et seq and any applicable California case law setting
forth the standard of judicial review of arbitration Awards.
(d) Location and Rules. The arbitration shall be conducted in Santa
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Xxxxx County, California, or such location as is mutually agreeable to the
parties, in accordance with the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association; provided, however, that the
Arbitrator shall allow the discovery authorized by California Code of Civil
Procedure Section 1283.05 or any other discovery required by California law.
Also, to the extent that any of the National Rules for the Resolution of
Employment Disputes or anything in their Agreement conflicts with any
arbitration procedures required by California law, the arbitration procedures
required by California law shall govern.
(e) Costs and Attorneys' Fees. The Company will bear the arbitrator's
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fee and any other type of expense or cost that Executive would not be required
to bear if he were free to bring the dispute(s) or claim(s) in court as well as
any other expense or cost that is unique to arbitration. Executive and the
Company shall each bear their own attorneys' fees incurred in connection with
the arbitration, and the arbitrator will not have authority to award attorneys'
fees unless a statute or contract at issue in the dispute authorizes the award
of attorneys' fees to the prevailing party, in which case the arbitrator shall
have the authority to make an award of attorneys' fees as required or permitted
by applicable law. If there is a dispute as to whether the Company or Executive
is the prevailing party in the arbitration, the Arbitrator will decide this
issue.
(f) WAIVER OF RIGHT TO JURY. EXECUTIVE AND THE COMPANY UNDERSTAND AND
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AGREE THAT THE ARBITRATION OF Disputes and claims under ther Agreement shall be
instead of a trial before a court or jury or a hearing before a government
agency.
8. Miscellaneous Provisions.
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(a) Notice. 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 overnight courier, U.S. registered or
certified mail, return receipt requested and postage prepaid. Mailed notices
shall be addressed to Executive at the home address which 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.
(b) Modifications and Waivers. No provision of this Agreement shall be
modified, waived or discharged unless the modification, waiver or discharge is
agreed to in
writing and signed by Executive and by an authorized officer of the Company
(other than Executive). No waiver by either party of any breach of, or of
compliance with, any condition or provision of this Agreement by the other party
shall be considered a waiver of any other condition or provision or of the same
condition or provision at another time.
(c) Whole Agreement. No other agreements, representations or
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understandings (whether oral or written) which are not expressly set forth in
this Agreement have been made or entered into by either party with respect to
the subject matter of this Agreement. This Agreement, the Proprietary
Information Agreement, and applicable stock option agreements and stock plans,
contain the entire understanding of the parties with respect to the subject
matter hereof.
(d) Taxes. All payments made under this Agreement shall be subject to
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reduction to reflect taxes or other charges required to be withheld by law.
(e) Choice of Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by the laws of the State of
California (except provisions governing the choice of law).
(f) Severability. The invalidity or unenforceability of any provision
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or provisions of this Agreement shall not affect the validity or enforceability
of any other provision hereof, which shall remain in full force and effect.
(g) No Assignment. This Agreement and all rights and obligations of
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Executive hereunder are personal to Executive and may not be transferred or
assigned by Executive at any time. The Company may assign its rights under this
Agreement to any entity that assumes the Company's obligations hereunder in
connection with any sale or transfer of all or a substantial portion of the
Company's assets to such entity.
(h) Headings. The headings of the paragraphs contained in this
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Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of any provision of this Agreement.
(i) Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this
Agreement, in the case of the Company by its duly authorized officer, as of the
day and year first above written.
EXECUTIVE
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By:
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Title:
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VIADOR, INC.
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By:
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Title:
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