EXHIBIT 10.3
FIRST AMENDMENT
TO EMPLOYMENT AGREEMENT BETWEEN
SOFTLINK, INC. AND XXXXXXX X. XXXX
This First Amendment to Employment Agreement between Softlink, Inc. and
Xxxxxxx Xxxx (the "Amendment") is made and entered into as of this 31st day of
August 1999 by and between Softlink, Inc. (the "Company") and Xxxxxxx X. Xxxx
("Employee").
RECITALS
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A. Employee and the Company entered into that certain Employment
Agreement dated March 1, 1999 (the "Agreement") under which Employee was to
perform services on behalf of the Company for a six (6) month trial period.
B. Such trial period has now expired, and the Company and Employee now
desire to amend the Agreement on the terms and conditions set forth herein.
AGREEMENT
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Section 1.0 "Term of the Contract" is hereby deleted and replaced with
the following language:
Term. Unless the employment of Employee is terminated as set forth
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herein, this Agreement shall continue in full force and effect for a
period of three (3) years from August 31, 1999. The Agreement shall be
automatically renewed for successive periods of one (1) year unless:
(i) notice is received by the other party at least thirty (30) days
prior to the end of the term or extension thereof; or this Agreement
is otherwise terminated pursuant to the terms hereof.
2. The first paragraph of Section 2.0 "Duties of Employee" is hereby
deleted and replaced with the following:
Employment. Subject to the terms and conditions of this Agreement,
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the Company shall employ Employee as the President and Chief Executive
Officer of the Company. As President and Chief Executive Officer,
Employee shall have, subject to the control of the Board of Directors,
full and complete authority to manage and control the Company's
operations. Employees duties shall include but not be limited to the
following: (i) management of the day-to-day operations of the Company;
(ii) supervision of
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the accounting and financial operations and duties of the Company;
(iii) organization, coordination, and supervision of the sales and
marketing functions of the Company; (iv) supervision of the product
development operations of the Company; (iv) the hiring of personnel;
and (v) any other duties reasonably assigned to Employee by the Board
of Directors of the Company. Employee hereby accepts such employment
and agrees to devote his best efforts to the service of the Company,
to render this service to the Company on a full-time basis and
faithfully, diligently and to the best of his ability discharge the
responsibilities thereof. Employee may perform his duties from the
Company's principal location or from such other location as he
believes is appropriate.
3. The first paragraph of Section 3.0, "Compensation" is hereby amended
to state:
Employee shall receive monthly compensation subject to withholding and
other usual deductions in the amount of fifteen thousand dollars
($15,000) per month which shall be paid semi-monthly. The monthly
compensation will be reviewed annually to determine the appropriate
increase, if any.
4. Paragraph 5.0 is hereby deleted
5. Paragraph 8.0 is hereby deleted and replaced with the following
language:
THE COMPANY MAY TERMINATE THE EMPLOYMENT OF EMPLOYEE AT ANY TIME WITH
OR WITHOUT "CAUSE" (AS DEFINED BELOW), FOR ANY REASON OR NO REASON.
THE EMPLOYMENT RELATIONSHIP CONTEMPLATED HEREUNDER SHALL BE AT THE
WILL OF THE PARTIES HERETO. EMPLOYEE'S EMPLOYMENT SHALL ALSO TERMINATE
UPON HIS DEATH.
As contemplated above, the Company may also terminate Employee's
employment for "cause". The term "cause" as used herein shall include
but not be limited to (i) Employee's failure to follow directions of
the Board of Directors of the Company which are not inconsistent with
this Agreement, (ii) Employee's gross neglect of his responsibilities,
(iii) any act by Employee of dishonesty, fraud, misrepresentation,
harassment or employment discrimination, (iv) Employee's death or
disability; (v) Employee's indictment for a felony; and (vi)
Employee's unauthorized dissemination of the Company's confidential
information or trade secrets.
Severance. Upon the termination of the employment of Employee without
cause, Employee shall be paid severance equal to one (1) year's salary
in one lump-sum and all outstanding, unvested options to purchase
stock of the Company shall vest and be exercisable by Employee.
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6. Paragraph 10.0 "General" is hereby deleted and replaced with the
following language:
Attorney's Fees. In the event that any legal action is brought to
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enforce or interpret any part of this Agreement, the prevailing party
shall be entitled to recover reasonable attorney's fees and other
costs incurred in that action, in addition to any other relief to
which that party may be entitled.
Governing Law. This Agreement shall in all respects be construed,
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interpreted, and enforced in accordance with, and governed by the laws
of the State of California.
Severability. If any term or provision of this Agreement shall be
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held invalid or unenforceable to any extent, the remainder of this
Agreement shall not be affected and each other term and provision of
this Agreement shall be valid to the fullest extent permitted by law.
Counterparts. This Agreement may be executed in counterparts, each of
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which shall constitute an original and all of which shall be one and
the same instrument.
Arbitration. In the event a dispute of any kind or nature arises
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under this Agreement, any documents executed in connection with this
Agreement, or any matters related to this Agreement, the parties
shall, within ninety (90) days of the receipt by the other party of a
demand for arbitration, select a mutually agreeable arbitrator and
submit the dispute to such arbitrator for binding arbitration, through
the nearest American Arbitration Association Regional Office, under
the Commercial Arbitration Rules of the American Arbitration
Association. In the event the parties are unable to agree upon an
arbitrator, the arbitrator shall be appointed in accordance with the
rules and procedures of the American Arbitration Association. The fees
for the arbitration proceedings shall be forwarded by the party
demanding arbitration. However, the arbitration fee shall be paid or
reimbursed by the non-prevailing party, as determined by the
arbitrator, who shall also award appropriate attorney's fees and costs
to the prevailing party.
Modification. Any amendment, change or modification of this Agreement
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shall be effective only if it is in writing and signed by the parties
hereto.
Waiver. The failure of either party to insist upon strict compliance
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with any of the terms, covenants or conditions of this Agreement by
the other party shall not be deemed a waiver of that term, covenant or
condition, nor shall any waiver or relinquishment of any right or
power at any one time be deemed a waiver or relinquishment of that
right or power for all or any other time.
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7. The following language is hereby added to the Agreement as Paragraph
11.0.
Assignment of Inventions. Employee shall communicate promptly to the
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Company all inventions, discoveries, concepts and ideas whether
patentable or not, including but not limited to hardware, software,
processes, methods, techniques as well as improvements thereto
conceived (collectively referred to as "Developments"), developed,
completed or reduced to practice during Employee's employment with the
Company, that (i) are related to the present or prospective business,
work or consulting of the Company; (ii) result from any work performed
on behalf of the Company; or (iii) result from use of the Company's
equipment, facilities or materials. Employee hereby assigns his entire
right, title and interest in and to all such Developments and any
intellectual property rights arising therefrom. Employee shall further
cooperate with the Company in connection with any applications,
filings or documents prepared and or filed related to the
Developments.
8. The following language is hereby added to the Agreement as Paragraph
12.0.
Non-Solicitation. During the term of this Agreement and for a period
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of one year following the termination or expiration of this Agreement
for whatever reason (or if this period of time shall be unenforceable
by law, then for such period as shall be enforceable), Employee agrees
not to contact, with a view towards purchasing or selling any product
or service competitive with any product or service purchased or sold
by Company, or purchase or sell any such product or service from or to
any person, firm, association, corporation or other entity whatsoever:
(i) which Employee solicited, contacted or otherwise dealt with on
behalf of the Company during the twelve month period or any portion
thereof preceding termination or expiration of Employee's employment
with the Company; or
(ii) which is known by Employee to have been a customer, or client of
the Company during the twelve month period or any portion thereof
preceding the termination or expiration of his or her employment with
the Company.
Furthermore, Employee shall not for a period of two years after the
termination of his or her employment for whatever reason, solicit for
hire, or hire any employee of the Company, or any person who was
employed by the Company at any time within six (6) months of the
termination of Employee's employment with the Company, to work for
Employee or any other person or entity.
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IN WITNESS WHEREOF, the parties have executed this Amendment on the
date first written above.
THE COMPANY: SOFTLINK, INC.
By:___________________
Its:__________________
EMPLOYEE: ______________________
Xxxxxxx X. Xxxx
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