Exhibit 10.10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of July 1, 1999
(the "Effective Date"), by and between INSWEB CORPORATION, a Delaware
corporation (the "Company"), and HUSSEIN A. ENAN (the "Employee").
RECITALS
A. The Employee is currently employed by the Company as its Chief
Executive Officer pursuant to an Employment Agreement dated as of November 22,
1996 (the "1996 Agreement");
B. The parties desire to terminate the 1996 Agreement and to continue the
employment of the Employee as the Company's Chief Executive Officer upon the
terms and conditions hereinafter set forth. The employment of the Employee
pursuant to this Agreement is hereinafter sometimes referred to as the
"Employment."
NOW, THEREFORE, in consideration of the agreements, representations and
warranties contained in this Agreement, the Company and the Employee hereby
agree as follows:
1. DUTIES, TERM AND EXCLUSIVE EMPLOYMENT.
1.1 DUTIES AND RESPONSIBILITIES. Within the limitations established
by the Company's Bylaws, the Employee shall have each and all of the duties and
responsibilities of the Company's Chief Executive Officer. As such, the
Employee shall have management responsibility and authority with respect to the
operations and strategic direction of the Company and the other customary
prerogatives of a chief executive officer, subject to the direction of the
Company's Board of Directors.
1.2 TERM OF EMPLOYMENT. The Employment shall begin on the Effective
Date and, unless earlier terminated as provided in Paragraph 3 hereof, the
Employment shall continue until midnight on the third anniversary of the
Effective Date. The Employment shall be renewed automatically for successive
one (1) year terms thereafter, unless either party gives written notice to the
other at least ninety (90) days prior to the expiration of the initial term (or,
if applicable, any extended term) of his or its election not to renew the
Employment for the subsequent term.
1.3 NO OTHER EMPLOYMENT OR PRODUCTIVE ACTIVITIES. During the term of
the Employment, the Employee shall diligently and conscientiously devote all of
his working time and attention to discharging his duties to the Company and
shall not, without the express prior written consent of the Company, render to
any other person or entity any services of any kind for compensation or engage
in any other activity that would in any manner whatsoever interfere with the
performance of the Employee's duties on behalf of the Company. The foregoing
notwithstanding, nothing herein shall prevent the Employee from (i) serving on
boards of directors of other companies not in competition with the Company, (ii)
engaging in charitable activities or activities of professional associations,
(iii) managing on his own personal time any personal investments in entities not
in competition with any actual or then proposed business of
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the Company or (iv) owning up to one percent (1%) of the outstanding shares of
any class of equity securities of a corporation engaged in any such competition
whose securities are listed on a national securities exchange or quoted daily in
the over-the-counter listings of THE WALL STREET JOURNAL ("Permitted Shares").
2. COMPENSATION AND BENEFITS. In full and complete consideration for the
Employment and each and all of the services to be rendered by the Employee to
the Company or any subsidiary or controlled affiliate of the Company
(collectively, the "InsWeb Group"), the Employee shall be entitled to receive
compensation and benefits as follows, except as otherwise provided in
Paragraph 3 hereof:
2.1 BASE SALARY. The Employee shall be entitled to receive from the
Company a base salary, at the initial rate of $250,000 per annum, payable in
periodic installments on the Company's regular payroll dates, during the term of
the Employment. The base salary will be reviewed annually and may be increased
(but not decreased) by the Company, in the sole discretion of its Board of
Directors, based upon such factors as the Board deems relevant, including the
financial condition and operating results of the Company. From each of the
Employee's salary payments the Company will withhold and pay to the proper
governmental authorities any and all amounts required by law to be withheld from
the Employee's salary. The Company will also deduct from the Employee's salary
payments those sums, if any, authorized by the Employee in writing and approved
by the Company. The Company will make all payments and contributions that are
required by law to be made by the Company for the Employee's benefit without any
deduction from the Employee's salary payments.
2.2 BONUS AWARDS. The Employee will be eligible to participate in
any incentive compensation plan adopted by the Company for the benefit of the
Company's officers generally. In the absence of such a plan, the Employee will
be eligible for consideration for incentive compensation ("Bonus Awards"). Any
such Bonus Award shall be at the sole discretion of the Company's Board of
Directors, or the Compensation Committee thereof, and shall be based upon such
factors as the Board or such Committee deems relevant.
2.3 STOCK OPTIONS. During the Employment, the Employee will be
eligible for the grant of options under the Company's employee stock option
plans at the sole discretion of the Company's Board of Directors, or the
Compensation Committee thereof, based upon such factors as the Board or such
Committee deems relevant. Any such Bonus Award shall be payable at the time or
times specified by the Board or such Committee; provided, however, that for
purposes of Paragraph 3 hereof, (i) any portion of a Bonus Award that is subject
to the achievement of goals or objectives which have been achieved as of the
date of termination of the Employment shall be deemed to be earned and payable
as of such date, and (ii) any portion of a Bonus Award that is subject to the
achievement of goals or objectives which have not been achieved as of the date
of termination of the Employment but which are subsequently achieved shall be
deemed to be earned and payable on a pro-rata basis, based upon the number of
days of Employment in the relevant year or other fiscal period.
2.4 VACATION. The Employee shall be entitled to paid vacation in
accordance with the Company's vacation policy for executive officers, as in
effect from time to time during the Employment.
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2.5 INSURANCE AND OTHER BENEFITS. The Employee shall be entitled to
participate in the life, medical, dental and/or disability insurance plans,
together with any supplemental insurance plans, offered by the Company to its
employees, generally, from time to time during the Employment. The Employee
shall be eligible to participate in any other fringe benefits as may be provided
by the Company to its officers, generally, during the Employment.
3. TERMINATION OF EMPLOYMENT. The Employment may be terminated prior to
the end of the term specified in Paragraph 1.2 hereof upon the occurrence of any
of the following:
3.1 DEATH OR DISABILITY. The Employment shall automatically
terminate upon the death of the Employee. The Company shall have the
unrestricted right, but not the obligation, to terminate the Employment at any
time following determination of the Employee's "permanent disability" (as then
defined in the Company's long-term disability insurance plan covering the
Employee if such a plan is in effect, or otherwise as determined by the
Company's Board of Directors). In the event of the Employee's death or
permanent disability, the Employee or his estate shall be entitled to receive
(i) the Employee's base salary through the date of termination of the
Employment, plus (ii) any Bonus Award earned or deemed to be earned by the
Employee and payable as of the date of termination of the Employment pursuant to
Paragraph 2.2 hereof but not yet paid, plus (iii) any other benefits to which
the Employee is entitled pursuant to the plans described in Paragraph 2.5
hereof.
3.2 TERMINATION OF EMPLOYMENT BY THE COMPANY "FOR CAUSE". The
Company shall have the unrestricted right, but not the obligation, to terminate
the Employment at any time "For Cause" in the event of the Employee's
(i) conviction of a felony or any crime involving moral turpitude,
(ii) commission of any act of theft or fraud against, or involving the records
of, the Company or any other member of the InsWeb Group, (iii) material breach
of the Employee's obligations under the Confidentiality Agreement, which, if
curable, is not cured within thirty (30) days following notice thereof by the
Company, or (iv) repeated failure or inability (other than as a result of
physical disability) to perform his duties hereunder, which failure or inability
is not cured within thirty (30) days following written notice thereof by the
Board of Directors of the Company. The decision to terminate the Employment For
Cause, to take other action or to take no action in response to any such
occurrence shall be in the sole and exclusive discretion of the Board of
Directors of the Company. Upon any termination of the Employment by the Company
For Cause, the Employee shall be entitled to receive (A) the Employee's base
salary through the date of such termination, plus (B) any Bonus Award earned or
deemed to be earned by the Employee and payable as of the date of termination of
the Employment pursuant to Paragraph 2.2 hereof but not yet paid, plus (C) any
other benefits to which the Employee is entitled pursuant to the plans described
in Paragraph 2.5 hereof.
3.3 OTHER TERMINATION OF EMPLOYMENT BY THE COMPANY. The Company
shall have the right to terminate the Employment at any time. However, if the
Employment is terminated or not renewed by the Company for any reason other than
pursuant to Paragraphs 3.1 or 3.2 hereof, the Employee shall be entitled to
receive his base salary through the date of termination of the Employment, plus
an amount (the "Severance Payment") equal to his then-current base salary for
the greater of (i) the unexpired term of the Employment or (ii) a period of
twelve (12) months following the date of termination (the "Severance Period").
The Severance Payment shall be paid in periodic installments during the
Severance Period, in
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accordance with the Company's payroll policy as in effect from time to time, and
shall be in lieu of any other severance pay to which the Employee might
otherwise be entitled. In addition, in the event of such a termination, the
Company will, to the extent its plans permit, continue to provide to the
Employee, at the current level of employee contribution by the Employee
prevailing at the date of termination, coverage under its life, medical, dental
and/or disability plans, as in effect on the date of termination, during the
Severance Period. If the Company's plans do not permit continued coverage for
the Employee under these circumstances, the Company shall pay or reimburse the
Employee for the cost of purchasing such coverage independently, subject to the
timely compliance by the Employee with any notification procedure required under
COBRA in order to obtain continued coverage. The Employee shall also be
entitled, upon any such termination, to receive (A) any Bonus Award earned or
deemed to be earned by the Employee and payable as of the date of termination of
the Employment pursuant to Paragraph 2.2 hereof but not yet paid, plus (B) any
other benefits to which the Employee is entitled pursuant to the plans described
in Paragraph 2.5 hereof.
3.4 TERMINATION OF EMPLOYMENT BY THE EMPLOYEE FOR "GOOD REASON".
The Employee shall have the right to terminate the Employment at any time for
"Good Reason" in the event that, other than pursuant to Paragraphs 3.1 or 3.2
hereof, the Company, without the Employee's prior written consent, (i)
materially alters or reduces the Employee's duties, responsibilities and
authority from those which exist as of the Effective Date; (ii) changes the
Employee's job title so that it does not include the title Chief Executive
Officer or assigns the Employee duties which are inconsistent with the
Employee's position as Chief Executive Officer; (iii) materially breaches the
terms of this Agreement in respect to the payment of compensation or benefits
or in any other material respect and such breach is not cured within ten (10)
days after the Company receives notice thereof; (iv) requires the Employee,
as a condition to the Employment, to be based more than fifty (50) miles from
the Company's principal place of business as of the Effective Date; or (v)
requires the Employee, as a condition to the Employment, to perform illegal
or fraudulent acts or omissions. If the Employee voluntarily terminates the
Employment for Good Reason pursuant to this Paragraph 3.4, the Employee shall
be entitled to receive the payments and other benefits specified in Paragraph
3.3 hereof with respect to a termination by the Company other than For Cause.
3.5 TERMINATION OF EMPLOYMENT BY THE EMPLOYEE WITHOUT "GOOD REASON".
Upon any voluntary termination of the Employment by the Employee, other than for
Good Reason pursuant to Paragraph 3.4 hereof, the Employee shall be entitled to
receive (i) the Employee's base salary through the date of such termination,
plus (ii) any Bonus Award earned or deemed to be earned by the Employee and
payable as of the date of termination of the Employment pursuant to
Paragraph 2.2 hereof but not yet paid, plus (iii) any other benefits to which
the Employee is entitled pursuant to the plans described in Paragraph 2.5
hereof.
4. EXPENSES. The Company will reimburse the Employee for those
customary, ordinary and necessary business expenses incurred by him in the
performance of his duties and activities on behalf of the Company or any other
member of the InsWeb Group. Such expenses will be reimbursed upon presentation
by the Employee of appropriate documentation to substantiate such expenses
pursuant to the policies and procedures of the Company governing reimbursement
of business expenses to its executive employees. The Employee shall present
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such documentation for any unreimbursed expenses not later than thirty (30) days
after the termination of the Employment.
5. AUTHORITY; NONCOMPETITION. The Employee warrants and represents to
the Company that he has the full, complete and entire right and authority to
enter into the Employment and this Agreement, that he has no agreement, duty,
commitment or responsibility of any kind or nature whatsoever with any other
person, corporation, partnership, firm, company, joint venture or other entity
which would conflict in any manner whatsoever with any of his duties,
obligations or responsibilities to the Company or any other member of the InsWeb
Group pursuant to the Employment and/or this Agreement, and that he is fully
ready, willing and able to perform each and all of such duties, obligations and
responsibilities. As a condition of the Employment and of the Company's
entering into this Agreement, the Employee hereby specifically agrees,
covenants, warrants and represents that, during the Employment, he will not,
without the Company's express prior written consent, accept any employment,
contractual or other relationship of any kind or nature whatsoever or engage in
any association or dealing of any kind or nature whatsoever with any person,
corporation, partnership, firm, company, joint venture, or other entity, in
competition with any business of the Company or any other member of the InsWeb
Group currently conducted or conducted during that period; provided that nothing
in this Paragraph 5 shall prohibit the Employee from owning Permitted Shares.
6. DUTIES OF THE EMPLOYEE AFTER ANY NOTICE OF TERMINATION OF THE
EMPLOYMENT. Following any notice of termination of the Employment, the Employee
shall fully cooperate with the Company in all matters relating to the winding up
of the Employee's work on behalf of the Company and the orderly transfer of all
pending work and of the Employee's duties and responsibilities to such other
person or persons as may be designated by the Company in its sole discretion.
Upon any termination of the Employment, the Employee will immediately deliver to
the Company any and all of the property of the Company or any other member of
the InsWeb Group of any kind or nature whatsoever in the Employee's possession,
custody or control, including, without limitation any and all proprietary or
confidential information of the Company.
7. NO PREDATORY SOLICITATION. During the Employment and for one (1) year
following any termination of the Employment (except a termination pursuant to
Paragraphs 3.3 or 3.4 hereof), the Employee will not, without having received
the Company's prior written permission to do so, directly or indirectly, on his
own behalf or in the service of others, solicit the employment of any of the
officers, employees, consultants, agents and/or independent contractors of the
Company or any other member of the InsWeb Group or in any manner attempt to
persuade any such person to discontinue any relationship with such entity. The
Employee and the Company acknowledge that this Paragraph 7 is reasonable and
necessary for the protection of the trade secrets and proprietary information of
InsWeb.
8. ARBITRATION. Except as otherwise expressly provided in this
Agreement, any controversy, dispute and/or claim in any manner arising out of or
relating to this Agreement or the Employment shall be fully and finally resolved
solely by binding arbitration conducted in accordance with the rules of the
American Arbitration Association in Redwood City, California. Judgment on any
decision rendered by the arbitrator may be entered in any court having
jurisdiction. All costs of the arbitration, including, without limitation, the
costs of any record or transcript of the arbitration proceedings, administrative
fees, the fee of the arbitrator, the fees and
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expenses of the attorneys for each party and all other fees and costs shall be
borne by the party not prevailing in the arbitration, as determined by the
arbitrator, or apportioned as the arbitrator shall determine if, in the judgment
of the arbitrator, neither party prevails. Except as otherwise expressly
provided in this Agreement, the arbitration provisions set forth above in this
Paragraph 8 are intended by the Employee and by the Company to be absolutely
exclusive for all purposes whatsoever and applicable to each and every
controversy, dispute and/or claim in any manner arising out of or relating to
this Agreement, and the Employment, the meaning, application and/or
interpretation of this Agreement, any breach or claimed breach hereof and/or any
voluntary or involuntary termination of this Agreement with or without cause,
including, without limitation, any such controversy, dispute and/or claim which,
if pursued through any state or federal court or administrative agency, would
arise at law, in equity and/or pursuant to statutory, regulatory and/or common
law rules, regardless of whether such dispute, controversy and/or claim would
arise in and/or from contract, tort or any other legal and/or equitable theory
or basis. The arbitrator who hears and decides any controversy, dispute and/or
claim between the Company and the Employee shall, in determining a remedy, have
jurisdiction and authority only to award compensatory damages to make whole a
party suffering foreseeable economic damages, and, other than foreseeable
economic damages, the arbitrator shall not have any authority or jurisdiction to
make any award of any kind or nature whatsoever as compensation for any damages
and/or any award of damages for pain and suffering, emotional distress or any
other kind or form of non-economic damages and/or non-foreseeable economic
damages. Notwithstanding anything to the contrary contained in this Paragraph 8,
(i) the Company shall at all times have and retain the full, complete and
unrestricted right to seek injunctive and other relief as provided in Paragraph
9 below, and (ii) the Company and the Employee shall each retain the right to
institute legal proceedings to recover monetary damages or seek other relief
arising out of defamatory statements concerning such party made by or on behalf
of the other party.
9. THE COMPANY'S RIGHT TO INJUNCTIVE RELIEF. The Employee recognizes,
acknowledges and agrees that any breach or any threatened breach of any
Paragraph, term, provision or covenant of any of Paragraphs 5, 6, 7 or 8 of this
Agreement or of any confidentiality agreement between the Company and the
Employee would cause irreparable injury to the Company which could not be
adequately compensable in monetary damages and that the remedy at law for any
such breach will be entirely insufficient and inadequate to protect their
legitimate interests. Therefore, the Employee specifically recognizes,
acknowledges and agrees that the Company shall at any and all times be and
remain fully entitled to seek and obtain temporary, preliminary and permanent
injunctive relief for any such breach or threatened breach from any court of
competent jurisdiction. The prevailing party in any action instituted pursuant
to this Paragraph 9, or in any appeal from any arbitration pursuant to
Paragraph 8 hereof, shall be entitled to recover from the other party its
reasonable attorneys' fees and other expenses incurred in such litigation.
10. SURVIVAL OF CERTAIN PROVISIONS OF THIS AGREEMENT. Except as may
otherwise be provided herein, each and all of the terms, provisions and
covenants of this Agreement shall, for any and all purposes whatsoever, survive
any termination of the Employment, subject to the limitations and conditions set
forth in each separate provision, regardless of whether such termination is by
the Employee, by the Company, by expiration or otherwise.
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11. GENERAL.
11.1 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall inure to the benefit of and be binding upon the Company, the Employee
and each and all of their respective heirs, legal representatives, successors
and assigns. The duties, responsibilities and obligations of the Employee
under this Agreement shall be personal and not assignable or delegable by the
Employee in any manner whatsoever to any person, corporation, partnership,
firm, company, joint venture or other entity. The Employee may not assign,
transfer, convey, mortgage, pledge or in any other manner encumber the
compensation or other benefits to be received by him or any rights which he
may have pursuant to the terms and provisions of this Agreement.
11.2 WAIVER. No waiver of any breach of any warranty,
representation, agreement, promise, covenant, paragraph, term or provision of
this Agreement shall be deemed to be a waiver of any preceding or succeeding
breach of the same or any other warranty, representation, agreement, promise,
covenant, paragraph, term and/or provision of this Agreement. No extension
of the time for the performance of any obligation or other act required or
permitted by this Agreement shall be deemed to be an extension of the time
for the performance of any other obligation or any other act required or
permitted by this Agreement.
11.3 SOLE AND ENTIRE AGREEMENT. This Agreement, and the other
agreements referred to herein, including the Company's benefit plans, are the
sole, complete and entire contract, agreement and understanding between the
Company and the Employee concerning the Employment, the terms and conditions
of the Employment, the duration of the Employment, the termination of the
Employment and the compensation and benefits to be paid and provided by the
Company to the Employee pursuant to the Employment. Except as otherwise
provided herein, this Agreement supersedes the 1996 Agreement and any and all
other prior contracts, agreements, plans, agreements in principle,
correspondence, letters of intent, understandings, and negotiations, whether
oral or written, concerning the Employment, the terms and conditions of the
Employment, the duration of the Employment, the termination of the Employment
and the compensation and benefits to be paid by the Company to the Employee
pursuant to the Employment.
11.4 AMENDMENTS. No amendment, modification, waiver, or consent
relating to this Agreement will be effective unless and until it is embodied
in a written document signed by the Company and by the Employee.
11.5 ORIGINALS. This Agreement may be executed by the Company and
the Employee in counterparts, each of which shall be deemed an original and
which together shall constitute one instrument.
11.6 HEADINGS. Each and all of the headings contained in this
Agreement are for reference purposes only and shall not in any manner
whatsoever affect the construction or interpretation of this Agreement or be
deemed a part of this Agreement for any purpose whatsoever.
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11.7 SAVINGS PROVISION. To the extent that any provision of this
Agreement or any Paragraph, term, provision, sentence, phrase, clause or word
of this Agreement shall be found to be illegal or unenforceable for any
reason, such Paragraph, term, provision, sentence, phrase, clause or word
shall be modified or deleted in such a manner as to make this Agreement, as
so modified, legal and enforceable under applicable laws. The remainder of
this Agreement shall continue in full force and effect.
11.8 APPLICABLE LAW. This Agreement shall be governed in all
respects by the laws of the State of California as such laws are applied to
agreements between California residents entered into and to be performed
entirely within California.
11.9 CONSTRUCTION. The language of this Agreement and of each and
every paragraph, term and provision of this Agreement shall, in all cases,
for any and all purposes, and in any and all circumstances whatsoever be
construed as a whole, according to its fair meaning, not strictly for or
against the Employee, the Company, and with no regard whatsoever to the
identity or status of any person or persons who drafted all or any portion of
this Agreement.
11.10 NOTICES. Any notices to be given pursuant to this Agreement
by either party to the other party may be effected by personal delivery or by
registered or certified mail, postage prepaid with return receipt requested.
Mailed notices shall be addressed to the parties at the addresses stated
below, but each party may change its or his address by written notice to the
other in accordance with this Paragraph 11.10. Notices delivered personally
shall be deemed received on the date of delivery. Notices delivered by mail
shall be deemed received on the third business day after the mailing thereof.
Mailed notices to the Employee shall be addressed as follows:
Hussein A. Enan
000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Mailed notices to the Company shall be addressed as follows:
InsWeb Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
Attention: General Counsel
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IN WITNESS WHEREOF, the Company and the Employee have each duly executed
this Agreement as of the date first set forth above.
INSWEB CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Title: Senior Vice President,
General Counsel & Secretary
/s/ Hussein A. Enan
-----------------------------
Hussein A. Enan
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