EXHIBIT 10.12
EMPLOYMENT AGREEMENT
MANAGING DIRECTOR
THE UNDERSIGNED
1. WEBSIDESTORY HOLDING B.V. I.O., (i) a company with limited liability, to
be incorporated under the laws of the Netherlands,, (ii) a wholly-owned
subsidiary of WebSideStory, Inc. a California corporation located in San
Diego, California (hereinafter, "WebSideStory, Inc."), (iii) having its
registered office in (1077 LX Amsterdam, the Netherlands, at the Xxxxxxxx
Xxxxxxxxxxx 00 0 hg, and (iv) represented by Xx. Xxxxxx Xxxxxxxx,
hereinafter referred to as the "Company";
and
2. XX. XXXXXX XXXXXX XXXXX XXXXXXXX, residing in (1077 LX) Amsterdam, the
Netherlands, at the Xxxxxxxx Xxxxxxxxxxx 00 0 hg, hereinafter referred to
as the "Director";
Jointly referred to as the "Parties".
WHEREAS:
- The Director has been appointed as managing director ("statutair
directeur") of the Company as per 1 July 2000 in a resolution of the
shareholder(s) dated August 4, 2000, which appointment has been
subsequently accepted by the Director;
- The Parties wish to enter into an employment agreement and wish to lay
down the terms and conditions of their employment in this employment
agreement (hereinafter referred to as: the "Employment Agreement");
HAVE AGREED AS FOLLOWS:
ARTICLE 1- COMMENCEMENT AND DURATION OF THE EMPLOYMENT AGREEMENT
1.1 The Director shall be employed by the Company as of 1 July 2000.
1.2 The Employment Agreement is entered into for an indefinite period of time.
1.3 The Company may terminate the Employment Agreement by giving six (6)
months notice and the Director may terminate the Employment Agreement by giving
three (3) months notice, such term of notice to expire on the last day of any
calendar month, provided, however, that in the event that on or before July 1,
2001, either (a) Xxxx X. Xxxxxxxx is no longer either the President or CEO of
WebSideStory, Inc. or (b) there is a change in control of WebSideStory, Inc.
before July 1, 2001, the Company may terminate the Employment Agreement by
giving twelve (12) months notice and the Director may terminate the Employment
Agreement by giving six (6) months notice, such term of notice to expire on the
last day of any calendar month. Notice as aforesaid must be given in writing, by
means of a letter sent by registered delivery.
1.4 The Employment Agreement shall terminate by operation of law, without any
prior notice being required, on the last day of the calendar month in which the
Director reaches the pensionable age (at present the age of 65).
ARTICLE 2- FUNCTION AND SCOPE OF DUTIES
2.1 The Director shall be employed in the position of managing director
("statutair directeur"). The Director will also hold the title in WebSideStory,
Inc. of "Vice President and General Manager, Europe."
2.2 The Director shall look after the interests of the Company to the utmost
of his powers, skills and ability. The Director shall perform to the best of his
abilities all tasks and services under the laws of the Netherlands and as laid
down in the articles of association of the Company.
2.3 The Director shall faithfully execute the instructions as may be given to
him from time to time by the general meeting of shareholders of the Company.
2.4 The position of the Director may require frequent travelling abroad.
ARTICLE 3- SALARY AND HOLIDAY ALLOWANCE
3.1 Salary
The Director shall receive a salary of 164,635 Euros gross per year
(hereinafter: the "Gross Salary") payable in twelve equal instalments at
the end of each month after deduction of social security premiums, tax
payments or other obligatory or agreed sums, on the bank account of the
Director.
(2)
3.2 Holiday allowance
The Gross Salary includes an 8% holiday allowance in the 164,635 Euros
gross amount.
ARTICLE 4- VARIABLE REMUNERATION
4.1 Bonus
The Director shall be entitled to up to a U.S.$75,000 bonus through Q-1
2001 as follows: (i) U.S.$45,000 contingent upon the Company recording
revenues in accordance with the revenue recognition policies of
WebSideStory, Inc. that are equal to or exceeding U.S. $1,200,000 with
expenses less than U.S. $1,200,000 through December 31, 2000 and (ii)
U.S.$30,000 for attaining Q-1 2001 financial objectives established by the
CEO of WebSideStory, Inc. in Q4 2000. The CEO of WebSideStory, Inc. shall
also establish a bonus plan for Q2-Q4 2001 in the amount of U.S.$75,000
and with such terms and conditions, as he shall decide in his discretion.
4.2 Share options
The Director shall be eligible to participate in WebSideStory, Inc.'s
stock option plan, as previously made available to the Director. Director
shall be granted stock option pursuant to the plan to purchase 525,000
shares (pre reverse split). The overall options will be subject to
standard 4 year vesting, but the vesting of 80,000 options will accelerate
and be immediately vested and fully exercisable based on attainment of
FY2000 financial objectives referenced in Section 4.4 above.
4.3 Company car
The Company shall pay to the Director a monthly company car allowance of 1200
Euros for the purpose of leasing an automobile. Fuel and maintenance costs, will
also be reimbursed in addition to the monthly allowance, but the parties
estimate the fuel and maintenance will cost approximately 600 Euros per month.
Subject to foregoing and Section 5.1, the Company shall bear all reasonable
costs related to the use of the company car, except for any personal income tax
to be paid for the private use of the company car. In the event that for any
reason Director's employment by the Company is terminated prior to the
termination or expiration of any lease for a company
(3)
car, the rights and duties of the automobile lease will belong to the Company,
and not to the director.
ARTICLE 5- EXPENSES
5.1 Expenses generally
Reasonable expenses wholly and necessarily incurred in the course of the
performance of his duties by the Director (including travel expenses) shall,
subject to approval by the Company, be reimbursed against presentation of
receipts or other appropriate proof of such expenses.
5.2 Telephone expenses
The Company shall reimburse the actual business related expenses of the Director
regarding the use (costs of subscription and conversation) of his telephone at
home and his mobile phone (incl. car equipment), against presentation of
receipts or other appropriate proof. The Company shall withhold an amount for
the private use of the telephone for tax related reasons.
5.3 PC, fax, printer
The Company shall make available to the Director for usage at home a Personal
Computer, fax and printer and bear all costs regarding the use of this
equipment, against presentation of receipts or other appropriate proof, subject
to relevant tax legislation. Any such equipment shall remain the property of the
Company and Director shall return them to the Company upon any termination of
Director's employment by the Company.
ARTICLE 6- PENSION
6.1 The Company shall provide the Director with a pension arrangement in an
amount and of a nature to be determined by the CEO of WebSideStory, Inc. in his
sole discretion.
6.2 Illness
(4)
In the event of illness, injury or any other incapacity of the Director, the
Company shall pay to the Director 100% of his last earned gross monthly salary,
during a maximum period of 52 weeks.
ARTICLE 7- INSURANCES
7.1 Health care insurance
The Company shall reimburse 60% of the premiums of the health care insurance of
the Director and his direct family. Personal tax and social security
consequences (if any) shall be for the account of the Director.
7.2 Collective disability insurance
The Director shall participate in a collective disability insurance in an amount
and of a nature to be determined by the CEO of WebSideStory, Inc. in his sole
discretion.
ARTICLE 8- WORKING HOURS, OVERTIME AND HOLIDAYS
8.1 Working hours
The usual number of working hours shall be 40 per week.
8.2 Overtime
The Director is expected to work reasonable overtime if and to the extent
that the smooth conduct of business would require so. No compensation for
work in overtime is provided, as it is deemed to be included in the salary
and fringe benefits as determined in the Employment Agreement.
8.3 Holidays
The Director shall be entitled to 25 paid personal holidays (or paid
vacation days) per calendar year in addition to public holidays in effect
in Amsterdam, Netherlands. There will be no reimbursement for holidays
that are not used by Director, unless Director's employment is terminated
during a calendar year, in which case the number of unused earned holidays
during the calendar year in which he is terminated will be paid to
Director upon termination at based upon a daily rate of 1/365th of the
Director's then current annual gross base salary.
(5)
ARTICLE 9- SIDE ACTIVITIES
The Director is not allowed to undertake other professional activities during
the term of the Employment Agreement, except with the prior written consent of
the Company, irrespective of whether or not the Director receives financial
compensation for these activities.
ARTICLE 10- NON-COMPETITION
10.1 The Director shall not during the term of the Employment Agreement and for
a period of 12 months thereafter, directly or indirectly, work for or assist or
advise a competitor, or establish or acquire a business which is or could be in
competition with the Company's business and/or the business of any of its
subsidiaries and/or of its affiliated companies, or assist, advise or
participate in the establishment or acquisition of such business. The Director
shall not, directly or indirectly, (attempt to) call upon, solicit, divert or
take away any of the customers, business or Directors of the Company or its
subsidiaries or affiliated companies.
10.2 The term "competitor" shall mean any business concerning or relating to
the providing of Internet related information and data services.
ARTICLE 11- SECRECY
11.1 Except with the prior written approval of the Company, the Director shall
not, during the term of the Employment Agreement and thereafter, disclose to any
third party or use for his own benefit any information concerning the business
of the Company or any of its subsidiaries or affiliated companies which has
become known to the Director. "Information concerning the business" includes,
without limitation, all business, organisational and technical knowledge,
know-how, proprietary or confidential information, names or addresses of
customers of the Company or any of its subsidiaries or affiliated companies and
any other information which is known only to a limited number of persons and
which is not intended to become known outside of the Company or any of its
subsidiaries or affiliated companies.
11.2 All written and other records and all tangibles concerning the Company or
any of its subsidiaries or affiliated companies and their businesses which are
in the possession of the Director, shall be carefully kept and shall be
immediately returned to the Company or any of its subsidiaries or affiliated
companies upon their request and in any case upon the termination of the
Employment Agreement. The Director hereby waives any right of retention in
respect of such records or tangibles mentioned herein.
(6)
ARTICLE 12- INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS
12.1 During the term of the Employment Agreement and within a period of one
year thereafter, all rights, including intellectual and/or industrial property
rights, to any product, work, creation and/or performance ("objects"), amongst
others inventions, models, databases, trade marks, trade names, designs,
computer programs, which the Director, independently or in cooperation, has
made, created or invented, belong to the Company, irrespective of whether the
objects of intellectual and/or industrial property rights have been created
during or outside working hours and irrespective of the nature of the Employment
Agreement.
12.2 The Director shall inform the Company immediately if he has made, created
or invented an object of intellectual or industrial property right. If needed
and pursuant to the request of the Company, the Director shall immediately
transfer the intellectual and/or industrial property rights to the Company.
12.3 The Director shall take all measures that are necessary or desirable to
ensure the appropriate form of protection for the intellectual and/or industrial
property rights. In case protection of the intellectual and/or industrial
property rights has to be established by a filing procedure or request
procedure, such procedure shall be carried out exclusively, if possible, on
behalf and for the benefit of the Company.
12.4 The Director acknowledges that the Gross Salary, as referred to in Article
3.1 of the Employment Agreement, includes a compensation for any loss of
intellectual and/or industrial property rights.
ARTICLE 13- PENALTY
In the event of a breach of any of the provisions as mentioned in the Articles
11, 12, 13 and 14 of the Employment Agreement with respect to side activities,
non-competition, secrecy and/or intellectual and industrial property rights, the
Director shall forfeit to the benefit of the Company, without any prior notice
or judicial intervention being required, an immediately payable penalty of Euro
25,000 for any such breach and a penalty of Euro 500 for each day or part of a
day that any such breach shall continue, without the Company being required to
prove any damage or loss and without prejudice to the right of the Company and
to the right of its subsidiaries or affiliated companies to demand observance of
any of the provisions or to demand damages instead of the penalty. It is noted
that as far as the aforesaid penalty refers to the non-competition clause, this
provision deviates explicitly from the articles 7:650 par. 3, 4 and 5 of the
Dutch Civil Code.
ARTICLE 14- GENERAL
(7)
14.1 The Employment Agreement is governed by the laws of the Netherlands.
14.2 Any amendments or additions to the Employment Agreement shall be agreed
upon by the Parties in writing, signed by the Parties.
14.3 Should any provision of the Employment Agreement be or become invalid, the
validity of the other provision(s) shall not be affected thereby.
14.4 The Director shall inform the Company of any change of address or personal
circumstances.
14.5 Severance: Stock Vesting
In the event of a change in control of WebSideStory, Inc., if Director is
involuntarily terminated within one year after such change in control for
reasons other than failure to satisfy financial objectives established before
the change of control by the CEO of WebSideStory, Inc. or for a major company
rule violation or an illegality, then 50% of the Director's then remaining
unvested options shall immediately vest and be exercisable but otherwise subject
to the same terms and conditions for exercise as apply to any other previously
vested shares.
The Employment Agreement has been signed in duplicate.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
WebSideStory Holding B.V. i.o Name: Xxxxxx Xxxxxxxx, an individual
Name: Xxxxxx Guillox Date: _________________________
Title: Director Place: San Diego, California
Date: ___________________
Place: San Diego, California
Accepted and Agreed also by:
WebSideStory Inc.
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: President & Chief Executive Officer
Date:
Place: San Diego, California
(8)
ATTACHMENT A TO XXXXXX GUILLOX EMPLOYMENT AGREEMENT
Houtsch/employment agreement WebSideStory
(9)
