EXHIBIT 10.16
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of the 9th
day of July, 1999 (the "Effective Date"), by and between xxXxxxx.xxx, Inc., a
Delaware corporation (the "Employer") and Xxxxxxx Xxxxxxxx (the "Employee").
The Employer desires to employ the Employee, and Employee desires to be
employed by the Employer, in accordance with the terms and conditions set forth
herein:
1. Employment. Employer hereby employees Employee as Vice President and
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General Counsel of the Employer, or in such other capacity as the parties may
agree from time to time. The Employee hereby accepts such employment upon the
terms and conditions set forth herein and agrees to devote his full business
time and efforts to the performance of his duties hereunder.
2. Employment Period. Employee is an employee at will. Either Employer or
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Employee may terminate this Agreement at any time for any reason, subject to the
terms of this Agreement. Employee will commence his services hereunder on July
19, 1999.
3. Duties. Employee shall have those duties and responsibilities which are
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assigned to him by the Chief Executive Officer or the board of directors of the
Employer during the period of his employment. Employee agrees to perform
faithfully the duties assigned to him to the best of his abilities.
4. Compensation. As compensation for all services rendered and to be
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rendered pursuant to this Agreement, Employer agrees to pay Employee a salary
(the "Base Salary") equivalent to no less than $175,000 per annum. The Base
Salary shall accrue and be payable in accordance with the payroll practices of
the Employer as in effect from time to time. In addition, Employee will be
eligible for semi-annual bonuses awarded at the discretion of the Employer,
based upon the Employer's performance and the Employee's individual performance.
Employer shall have the right to deduct from any compensation paid to Employee
hereunder all taxes and other amounts which may be required to be deducted or
withheld by law (including, but not limited to, income tax withholding and
social security payments), whether such laws are now in effect or become
effective after the date of this Agreement.
5. Stock Options. As additional consideration for services rendered or to
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be rendered hereunder or otherwise and for Employee's execution and delivery of
this Agreement, the Employer shall grant to Employee the right and option to
purchase from Employer all or any part of an aggregate of 75,000 shares of the
Common Stock, $.01 par value, of Employer at a strike price of the fair market
value at the close of market on the day previous to the board approved grant,
upon the terms and subject to the conditions set forth in the 1999 Class A
xxXxxxx.xxx Stock Option Plan. The options will vest at a rate of 25% per year
for four years. The first 25% will vest on the first anniversary of the grant
date.
6. Expenses. Employer shall promptly reimburse Employee for all reasonable
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and documented expenses incurred by Employee on behalf of Employer or in
connection with Employee's performance of his duties hereunder.
7. Relocation Expenses. Employer will reimburse Employee for certain
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expenses associated with relocating from Portola Valley, California to Austin,
Texas, as follows:
a. Lump sum. Within 15 days of employee's demand following
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commencement of employment, the sum of $19,650 will be paid. This
amount will be grossed up for taxes at employee's tax rate. For
purposes of this Agreement, "employee's tax rate" shall mean the
Employee's highest marginal tax rate for the year in which the
payment is made.
b. Moving expense. Employer will pay actual, reasonable, documented
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expenses to relocate the household goods, including one car, of
Employee's immediate
family to Austin, Texas and to store such goods for up to 6
months, using North American Van Lines.
c. Sale of California home. Employer will pay Employee 6% of the
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actual sales proceeds obtained by Employee upon sale of Employee's
California home, up to a maximum of $40,000, grossed up for taxes,
provided Employee sells the home by July 17, 2002, and delivers to
Employer evidence of the final sales price. This amount will be
grossed up for taxes at employee's tax rate.
d. Purchase of Texas home. Employer will pay Employee 2% of the
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purchase price paid by Employee upon purchase of a residence in
Texas, up to a maximum of $10,000, grossed up for taxes, provided
Employee purchases a Texas residence by December 31, 2000 and
delivers to Employer evidence by January 18, 2000 of the purchase
price paid by Employee for the residence. This amount will be
grossed up for taxes at employee's tax rate.
8. Employment Benefits. While employed by Employer, Employee shall be
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entitled to such other benefits as are customarily accorded to the employees of
the Employer, including, but not limited to, the right to participate in
employee benefit programs maintained by the Employer from time to time, such as
group health, life, and disability insurance.
9. Termination.
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(a) This Agreement may be terminated by written notice by the
Employer or the Employee at any time. If such termination is by
Employee for any reason, or by Employer with Cause (as such term
is hereinafter defined), all of Employee's rights to compensation
and benefits under Sections 4 and 8 above shall terminate, except
amounts accrued for periods prior to such termination. If such
termination is by the Employer without Cause, Employer shall (i)
continue to pay to Employee a monthly amount equal to one-twelfth
of the then current Base Salary for six months following the
effective date of such termination (or, at Employer's option, pay
such amount in a lump sum) and (ii) continue to provide to
Employee the employee benefits (through COBRA or otherwise) as
provided in Section 8 above during suchsix-month period. The term
"Cause" shall mean (i) material failure by Employee to perform
his duties as Vice President and General Council in a manner
consistent with such position and responsibilities, (ii) a
material breach by Employee of any of his obligations under this
Agreement, (iii) fraud or willful misconduct on the part of the
Employee, or (iv) conviction of Employee for fraud,
misappropriation, embezzlement, or any felony.
(b) If Employee shall die during the Employment Period, this
Agreement shall terminate, and no further compensation shall be
payable to Employee hereunder.
(c) If the Employee is unable to discharge his duties hereunder for a
period of six consecutive months by reason of physical or mental
illness, injury, or incapacity, Employer may, by written notice
to Employee, terminate this Agreement and no further compensation
shall be payable to Employee hereunder.
10. Proprietary Information and Restrictive Covenants.
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(a) As used herein, the term "Proprietary Information" means
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information, knowledge or data not generally known in the
relevant trade or industry that was disclosed to or known by
Employee as a consequence of or through Employee's employment
with the Employer (including, without limitation, information
conceived or developed by Employee during the course of his
employment by Employer), whether before or after the date of this
Agreement about:
(i) The Employer's activities, services, products, formulas,
computer programs and systems, trade secrets,
manufacturers, compositions, inventions, discoveries,
customer records, processes, information relating to
research, development, inventions, work performed or to be
performed for Customers (as such term is hereinafter
defined), contractual agreements, lists of past, current or
prospective Customers, lists of employees and salary
information, marketing plans, strategies, and forecasts;
(ii) Customers' activities, plans, products, processes and
services including, without limitation, information
relating to business operations, employee relations,
finance, and product or service marketing;
(iii) Vendors' (as such term is hereinafter defined) activities,
plans, services, products and processes including, without
limitation, information relating to business operations,
employee relations, finance, and product or service
marketing; and
(iv) All information which Employee has a reasonable basis to
know was created, modified or used and held secret by
Employer or that was accepted by Employer from any third
party under an obligation of confidentiality.
As used herein, the term "Customer" means any person or entity for whom Employer
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provided services or products on or within 12 months prior to the termination of
Employee's employment. As used herein, the term "Vendor" means any third party
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selling or licensing a product or service to a Customer or to Employer on or
within 12 months prior to termination of Employee's employment.
(b) Employee acknowledges that Employer has spent significant time,
effort, and money to develop the Proprietary Information, which
Employer considers vital to its business and goodwill. Employee
also acknowledges that the Proprietary Information has been or
will be communicated to or acquired by Employee in the course of
his training by and employment with Employer (whether before or
after the date of this Agreement), and Employer desires to have
the services of Employee only if, in doing so, it can protect its
Proprietary Information and goodwill.
(c) Employee agrees to hold the Proprietary Information in strict
confidence and trust and that he shall not, at any time, disclose
any Proprietary Information to any person or entity, except in
the course of Employee's duties on behalf of Employer, and shall
not copy, publish or use any Proprietary Information for the
benefit of anyone or any entity other than Employer.
(d) In consideration, among other things, of the disclosure of the
Proprietary Information by Employer to Employee, Employee
covenants and agrees that he shall not (personally, nor will he
direct any third party to do so), during his employment by
Employer, during the period of his employment by Employer and for
an additional period of two years immediately following
termination of his employment by Employer (the "Restriction
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Period"), (i) provide or offer to provide to any Customer any
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product or service similar to that offered by Employer at the
time of such termination of employment, or (ii) induce or attempt
to induce any Customer to withdraw, curtail or cancel its
business with Employer or in any manner modify or fail to enter
into any actual or potential business relationship with Employer.
(e) In consideration, among other things, of the disclosure of the
Proprietary Information by Employer to Employee, Employee
covenants and agrees that he shall not (personally, nor will he
direct any third party to do so), during the Restriction Period,
recruit or otherwise solicit or induce any person or entity who
is, at the time of such termination of Employee's employment or
thereafter, an employee or Vendor of Employer to terminate their
employment with, or otherwise cease their relationship with,
Employer.
(f) In consideration, among other things, of the disclosure of the
Proprietary Information by Employer to Employee, Employee
covenants and agrees that he shall not, during the Restriction
Period, working alone or in conjunction with one or more other
persons or entities, for compensation or not, permit Employee's
name to be used by or engage in or carry on, directly or
indirectly, either for himself or as a member of a partnership or
other entity or as a stockholder, investor (other than as the
holder of 1% or less of the voting capital stock of any
corporation with a class of equity securities registered under
Section 12 (b) or 12 (g) of the Securities Exchange Act of 1934,
as amended) in any business providing electronic commerce
technology and services to computer manufacturers, distributors,
corporate resellers, or retailers to facilitate the purchase and
sale of their information technology products, but only for as
long as such business is carried on by (i) Employer or (ii) any
person, corporation, partnership, trust or other organization or
entity deriving title from Employer to the assets and goodwill of
the business being carried on by Employer immediately prior to
such termination of Employee's employment by Employer, in any
county of any state of the United States, or in any country or
political subdivision of the world, except for shareholdings in
WebOrder. The parties intend that the covenants contained in
this Section 10 (f) shall be deemed to be a series of separate
covenants, one for each county in each state of the United States
and for each country and political subdivision of the world, and
except for geographic coverage, each such separate covenant shall
be identical in terms to the covenant contained in this Section
10 (f).
(g) If Employee violates any covenant contained in paragraphs (d),
(e) or (f) of this Section 10, then the term of such violated
covenant shall be tolled for the commencing on the commencement
date of such violation and ending upon the earlier of (i) such
time as such violation shall be cured by Employee to the
reasonable satisfaction of Employer or (ii) final adjudication
(including appeals) of any action filed for injunctive relief or
damages arising out of such violation.
(h) If, in any judicial proceeding, the court shall refuse to enforce
any of the separate covenants contained in paragraphs (d), (e) or
(f) of this Section 10 because the time limit is too long, it is
expressly understood and agreed between the parties hereto that
for purposes of such proceeding such time limitation shall be
deemed reduced to the extent necessary to permit enforcement of
such covenants. If, in any judicial proceeding, the court shall
refuse to enforce any of the separate covenants contained in
paragraphs (d), (e) or (f) of this Section 10 because they are
more extensive than necessary to protect the business and
goodwill of the Employer, it is expressly understood and agreed
between the parties hereto that for purposes of such proceeding
such provisions shall be deemed reduced to the extent necessary
to permit enforcement of such covenants.
(i) Employee acknowledges that a breach of this Section 10 would
cause irreparable damage to Employer, and in the event of
Employee's actual or threatened breach of the provisions of this
Section 10, Employer shall be entitled to a temporary restraining
order and injunction restraining Employee from
breaching such covenants without the necessity of posting bond or
proving irreparable harm, such being conclusively admitted by
Employee. Nothing herein shall be construed as prohibiting Employer
from pursuing any other available remedies for such breach, including
the recovery of damages from Employee. Employee acknowledges that the
restrictions set forth in this Section 10 are ancillary to an
otherwise enforceable agreement and are reasonable in scope and
duration, given the nature of the business of the Employer. Employee
agrees that issuance of an injunction will not pose an unreasonable
restriction on Employee's ability to obtain employment or other work
following termination of Employee's employment by Employer.
11. Representations by Employee. Employee hereby represents and warrants
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to Employer that (i) Employee's execution and delivery of this Agreement and his
performance of his duties and obligations hereunder will not conflict with, or
cause a default under, or give any party a right to damages under, or to
terminate, any other agreement to which Employee is a party or by which he is
bound, and (ii) there are no agreements or understandings that would make
unlawful Employee's execution or delivery of this Agreement or his employment
hereunder.
12. Notices. All notices, requests, demands, and other communications
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required or permitted hereunder shall be in writing and shall be deemed to have
been duly given, made, and received only when personally delivered, sent by
electronically confirmed facsimile transmission, delivered by Federal Express or
other nationally recognized courier service, or two days after having been
deposited in the United States mail, certified mail, postage prepaid, return
receipt requested, addressed as set forth below:
in the case of the Employer at:
xxXxxxx.xxx, Inc.
0000 Xxxxx xx xxx Xxxx
Xxxxxx, Xxxxx 00000
and, in the case of the Employee, at his residence at:
Xxxxxxx Xxxxxxxx
000 X. Xxxxxxxx Xxx
Xxxxxxx Xxxxxx, XX 00000
Either party may designate a different address by giving notice of change of
address in the manner provided above.
13. Waiver. No waiver or modification in whole or in part of this
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Agreement, or any term or condition hereof, shall be effective against any party
unless in writing and duly signed by the party sought to be bound. Any waiver
or any breach of a any provisions hereof or any right or power by any party on
one occasion shall not be construed as a waiver of, or a bar to, the exercise of
such right or power on any other occasion or as a waiver of any subsequent
breach.
14. Binding Effect; Successor. This Agreement shall be binding upon and
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shall inure to the benefit of Employer and its successors and assigns, and shall
inure to the benefit of and be binding upon Employee and his executors,
administrators, heirs, and legal representatives. This Agreement may not be
transferred, sold or assigned by Employer. Because the Employee's duties and
services hereunder are special, personal, and unique in nature, Employee may not
transfer, sell or otherwise assign his rights, obligations, or benefits under
this Agreement.
15. Controlling Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Texas applicable to contracts made and
to be performed therein exclusive of the conflict of laws provisions thereof.
16. Severability. If any provision of this Agreement shall be held to be
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invalid or unenforceable, such invalidity or unenforceability shall not affect
or impair the validity or enforceability of the remaining provisions of this
Agreement, which shall remain in full force and effect and the parties hereto
shall continue to be bound thereby.
17. Entire Agreement. This Agreement contains the entire agreement between
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the parties relating to the subject matter hereof and shall supersede all
previous agreements between the parties, whether written or oral, with respect
to the subject matter hereof. This Agreement cannot be modified, altered, or
amended except by a writing signed by each of the parties hereto.
IN WITNESS WHEREOF, Employer and Employee have executed this Agreement as
of the Effective Date.
EMPLOYER: EMPLOYEE:
XXXXXXX.XXX, INC.
By: /s/ XXXXXXXXX X. XXXXX /s/ XXXXXXX XXXXXXXX
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Xxxxxxxxx X. Xxxxx, President XXXXXXX XXXXXXXX
