EMPLOYMENT AGREEMENT
Exhibit 10.6
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of April
9, 1999, by and between Xxxxx Micro Software, Inc., a Delaware corporation (the “Company”), and
Xxxxxxx X. Xxxxx (“Employee”).
I.
EMPLOYMENT
EMPLOYMENT
1.1 Position and Duties. The Company hereby engages and employs Employee as
General Manager, STF Technologies, MacIntosh Division on the terms set forth in this Agreement. The
Company’s Board of Directors (the “Board”) may provide such additional designations of title to
Employee as the Board, in its discretion, may deem appropriate. Employee shall perform the employee
duties and functions related to the above position, subject to the reasonable limitations of
authority set forth from time to time by the President of the Company and applicable law.
Employee shall report to the Chief Executive Officer of the Company. The Company agrees that
Employee will not be required to relocate outside of the Kansas City metropolitan region.
1.2 Best Efforts. Employee agrees to devote his full time and attention to the
Company, to use his best efforts to advance the business and welfare of the Company, to render his
services under this Agreement fully, faithfully, diligently, competently and to the best of his
ability, and not to engage in any other employment activities. Notwithstanding anything herein to
the contrary, Employee shall not be precluded from (a) engaging in charitable activities and
community affairs; or (b) managing his personal investments and affairs, provided that such
activities do not materially interfere with the proper performance of his duties and
responsibilities under this Agreement; or (c) consulting for businesses owned by Xxxx and Xxxxx
Xxxxx, so long as such consulting does not exceed five hours per week and does not interfere with
Employee’s ability to perform his duties as General Manager or create a conflict of interest.
II.
COMPENSATION AND BENEFITS
COMPENSATION AND BENEFITS
2.1 Base Salary. For all services to be rendered by Employee under this Agreement,
the Company agrees to pay Employee; an annual base salary of one hundred fifty thousand dollars
($150,000.00) less deductions required by law, payable in accordance with the normal payroll
practices of the Company.
2.2 Annual Performance Bonus. The Company shall pay to Employee a bonus of up to
$5,000 per quarter if the Employee meets or exceeds specified management objectives, as determined
by the Board at the beginning of each quarter. In addition, Employee shall be eligible to receive a
quarterly bonus based on a sales quota pursuant to the Xxxxx Micro Software. Worldwide Sales
Incentive Compensation Plan (“Incentive Compensation Plan”), a copy of which is attached as
Exhibit A. For purposes of the Incentive Compensation Plan, Employee’s “Commission”
schedule for achievement of 100% of the assigned quota objectives shall be $40,000 per year or
$10,000 per quarter. In calculating that quota Employee will get credit for all MacIntosh
compatible fax and communication software products sold by the
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Company. All bonus calculations relating to the financial performance of the Company shall be
based upon the Company’s final financial statements through the end of the applicable fiscal
quarter.
2.3 Stock Options. The Company shall grant Employee an option to purchase 50,000
shares of the Company’s Common Stock, subject to the standard vesting and other provisions set
forth in the Company’s stock option plan.
2.4 Other Benefits. The Company shall further provide to Employee the
following other benefits:
(a) An annual vacation leave of a minimum of four (4) weeks per
calendar year at full pay; and
(b) Full participation, on a basis commensurate with his position with the Company, in all
plans of life, accident, disability and health insurance that generally are made available to
senior Employees of the Company.
2.5 Expense Reimbursement. The Company shall promptly reimburse Employee for all
actual and reasonable business expenses incurred by Employee in promoting the business of the
Company, including expenditures for entertainment, travel, or other expenses, provided that (a)
such expenditures are of a nature qualifying them as legitimate business deductions and (b)
Employee furnishes to the Company adequate records and other documentary evidence reasonably
required by the Company to substantiate such expenditures. In addition, the Company agrees to
reimburse Employee for professional fees and continuing education expenses to maintain
Employee’s status as a certified public accountant so long as such amounts do not exceed
$2,500.00 annually.
III.
TERMINATION AND SEVERANCE PAY
3.1 At Will. Employee and the Company acknowledge and agree that Employee’s
employment with the Company is expressly “at-will” both during and after the term
of this Agreement. This means that either party may terminate Employee’s employment with or
without cause. Any termination of Employee’s employment is, however, subject to the terms
and provisions of this Agreement as to severance pay and other obligations.
3.2 Involuntary Termination.
(a) Severance Pay. In the event that Employee’s employment with the Company is terminated
by the Company for Cause (as defined in Section 3.2(c)), Employee shall be entitled to no
severance pay. In the event that Employee’s employment with the Company is terminated by the
Company other than for Cause, then in consideration of Employee’s compliance with his
obligations under Article V and Article VI and Employee’s execution of a general release in
favor of the Company, Employee shall be entitled to severance pay (“Severance Pay”) in the form
of monthly payments to Employee in the amount of Employee’s monthly Base Salary as in effect on
the date of termination, payable in accordance with customary payroll practices, for six (6)
months following such termination; provided that, if the
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Company terminates Employee’s employment for reasons other than for Cause during the initial
year of this Agreement, then Employee’s severance pay shall continue for six (6) months or the
remaining portion of that initial year, whichever period is longer. Employee, acknowledges and
agrees that in the event Employee breaches any provision of Article V or Article VI, his right
to receive severance payments under this Section 3.2(a) shall automatically terminate.
(b) Benefits. Following termination, Employee shall cease to be a Company employee and
shall not be entitled to any employee benefits. This shall not preclude Employee from exercising
his COBRA benefits under applicable law.
(c) Cause. For purposes of this Agreement, “Cause” shall mean (i) the willful refusal of
Employee to comply with a lawful instruction of the Board; (ii) an act or acts of personal
dishonesty by Employee; (iii) Employee’s conviction of any felony; (iv) performing an act of
race, sex, national origin, religion, disability, age-based or other illegal discrimination or an
act of sexual harassment; or (v) Employee’s gross negligence, incompetence, willful
insubordination or misconduct, failure to abide by the Company’s policies, or material breach of
any provision of this Agreement, including without limitation, any representation or covenant
contained in Article V or Article VI of this Agreement.
3.3 Voluntary Termination. In the event Employee voluntarily terminates his
employment with the Company, Employee shall be entitled to no severance pay.
3.4 Death. In the event of Employee’s death, this Agreement shall automatically
terminate and shall be of no further force and effect. Termination of Employee’s employment as a
result of his death: shall not result in any obligation by the Company to pay severance pay or
other benefits to Employee’s estate or heirs.
3.5 Disability. In the event of Employee’s Disability (as defined below) during
the term of this Agreement for any period of at least three (3) consecutive months, the Company
shall have the right, which may be exercised in its sole discretion, to terminate this Agreement.
In the event the Company does elect to terminate this Agreement, Employee shall not be entitled
to any severance pay at any time but shall be entitled to normal disability benefits in accordance
with the policies established from time to time by the Company. For purposes of this Agreement,
“Disability” shall mean the inability of Employee to perform his employment services hereunder by
reason of physical or mental illness or incapacity as determined by a physician chosen by the
Company and reasonably satisfactory to Employee or his legal representative.
IV.
TERM
4.1 Term. The term of Employee’s employment under this Agreement shall commence on the
date hereof and shall continue for one year from the date hereof, as such date may be extended from
time to time. After expiration of the initial year of this Agreement, Employee’s employment will
automatically renew for a period of one year, each year, on the same terms and conditions as are
set forth herein, unless either party gives the other notice of non-renewal at least one month
prior to the end of the initial term of employment, or for any year
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in which the employment was renewed, whichever the case may be. The Company may in its sole
discretion elect to pay Employee the equivalent of one month base salary in lieu of notice in
the event of non-renewal of this Agreement.
V.
NONDISCLOSURE OF INFORMATION
AND NON-SOLICITATION OF EMPLOYEES
NONDISCLOSURE OF INFORMATION
AND NON-SOLICITATION OF EMPLOYEES
5.1 Proprietary Information and Inventions Agreement. Employee shall be subject
to the provisions of the Company’s Proprietary Information and Inventions Agreement, a copy of
which is attached as Exhibit B and incorporated herein by this reference.
5.2 Return of Information. Upon
termination of Employee’s employment, Employee
will deliver to the Company all customer lists, proposals, reports, memoranda, computer
software and programming, budgets and other financial information, and other materials or
records or writings of any type (including any copies thereof and regardless of the medium in
which the information exists) made, used or obtained by Employee in connection with his
employment by the Company.
5.3 Non-Solicitation. Employee agrees that, so long as he is employed by the
Company and for a period of one (2) years after termination of his employment for any reason,
he shall not (a) directly or indirectly solicit, induce or attempt to solicit or induce any
Company employee to discontinue his or her employment with the Company, (b) usurp any
opportunity of the Company that Employee became aware of during his tenure at the Company or
which is made available to him on the basis of the belief that Employee is still employed by
the Company, or (c) directly or indirectly solicit or induce or attempt to influence any person
or business that is an account, customer or client of the Company to restrict or cancel the
business of any such
account, customer or client with the Company.
VI.
NON-COMPETITION
Employee agrees that given the extent and nature of the Confidential
Information he obtains
during the course of his employment, it would be inevitable that such Confidential Information
would be disclosed or utilized by the Employee should he obtain employment from, or otherwise
become associated with, an entity or person that is engaged in the development, manufacture or
distribution of fax/modem and internet protocol/telephony software products, in any state or
country in which the Company, its resellers or strategic partners sells the Company’s products or
conducts business. In order to protect the Confidential Information Employee obtains during the
course of his employment, Employee agrees that, so long as Employee is employed by the Company
and for a period of two (2) years after termination of his employment for any reason, Employee
shall not, without the prior written consent of the Company, either directly or indirectly,
including without limitation through a partnership, joint venture, corporation or other entity or
as a consultant, director or employee, engage in the development, manufacture or distribution of
fax/modem and internet protocol/telephony software products.
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Notwithstanding the foregoing,
in the event Employee is terminated by the Company without
Cause, the period of the non-competition restriction shall be for the duration of the severance
period.
The parties hereto agree that both
the scope and nature of the covenant and the duration and
area for which the covenant not to compete set forth in this Article VI is to be effective are
reasonable in light of all facts and circumstances. In the event that any provision of this
Agreement, including without limitation any provision of this Article VI, shall to any extent be
held invalid, unreasonable or unenforceable, in any circumstances, the parties hereto agree that
the remainder of this Agreement and the application of such provision of this Agreement to other
circumstances shall be valid and enforceable to the fullest extent permitted by law. If any
provision, or any part thereof, is held to be unenforceable because of the scope or duration of or
the area covered by such provision, the parties hereto agree that the court making such
determination shall have the power, and is hereby asked by the parties, to reduce the scope,
duration and/or areas of such provisions (and to substitute appropriate provisions for any such
unenforceable provisions) in order to make such provisions enforceable to the fullest extent
permitted by law, and/or to delete specific words and phrases, and such modified provisions shall
then be enforceable and shall be enforced.
VII.
MISCELLANEOUS
7.1
Successors; Binding Agreement.
This Agreement shall not be terminated by the
voluntary or involuntary dissolution of the Company or by any merger or consolidation, whether or
not the Company is the surviving or resulting corporation, or upon any transfer of all or
substantially all of the assets of the Company. In the event of any such merger, consolidation or
transfer of assets, the provisions of this Agreement shall bind and inure to the benefit of the
surviving or resulting corporation, or the corporation to which such assets shall have been
transferred, as the case may be; provided, however, that the Company will require any successor to
all or substantially all of the business and/or assets of the Company, by agreement in form and
substance satisfactory to Employee, to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to perform it if no such
succession had taken place.
7.2 Arbitration.
Any disputes or controversy between the parties to this Agreement,
including allegations of fraud and misrepresentation arising from or as a result of this
Agreement, the resulting business dealings between Company and Employee, Employee’s employment or
the termination thereof, including any claims of discrimination or other claims under any
federal, state, or local law or regulation now in existence or hereinafter enacted concerning in
any way the subject of Employee’s employment with Company or its termination, shall be resolved,
after the parties attempt informal resolution, exclusively by arbitration in accordance with the
National Rules for the Resolution of Employment Disputes of the American Arbitration Association.
All arbitration hearings shall be held in Kansas City, Missouri within one hundred twenty days
from the date arbitration is demanded by any of the parties and the arbitrator shall render
his/her written decision within thirty days after the arbitration hearing has concluded. The
decision of the arbitrator shall be final and binding on all parties, and may be entered as a
judgment by any party with any federal or state court of competent jurisdiction. The
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parties to the arbitration hearing shall share any filing fees and arbitrator’s fees which must be
paid in advance of the hearing equally; however, as set forth below the prevailing party shall be
entitled to recover from the losing party all costs that it has incurred as a result of the
arbitration hearing, including fees paid to the arbitrator, travel costs and attorneys’ fees. This
provision shall not alter the rights of the parties to seek and obtain the provisional equitable
remedies provided under any applicable state or federal law. Employee represents, by her
signature, that he is making a voluntary and knowing waiver of her right to pursue any and all
employment-related claims in court.
7.3 No Waiver. The waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed as a waiver of any subsequent breach thereof.
7.4 Governing Law. This Agreement shall be construed and enforced in accordance
with the laws and decisions of the State of Missouri.
7.5
Entire Agreement; Modifications.
This Agreement represents the entire agreement
between the parties with respect to the mutters set forth herein and supersedes all prior
agreements and understandings between the parties relating to the employment of Employee by the
Company, and it may not be changed or terminated orally. No modification, termination, or
attempted waiver of any other provisions of this Agreement shall be valid unless in writing
signed by the party against whom the same is sought to be enforced.
7.6
Jurisdiction; Venue. The parties
do hereby agree and submit to personal
jurisdiction in the State of Missouri for the purposes of any proceedings brought to enforce or
construe the terms of this Agreement or to resolve any dispute or controversy relating to
Employee’s employment or arising under, as a result of, or in connection with this Agreement, and
do hereby agree and stipulate that any such proceedings shall be venued and held in Kansas City,
Missouri.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as
of the day and year first above written.
| The “COMPANY”: XXXXX MICRO SOFTWARE, INC. a Delaware corporation |
||||||
| By: | /s/ Xxxxxxx X. Xxxxx Xx. | |||||
| Its: | ||||||
| “EMPLOYEE”: | ||||||
| /s/ Xxxxxxx X. Xxxxx | ||||||
| Name: Xxxxxxx X. Xxxxx | ||||||
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EXHIBITS
EXHIBIT A
|
Xxxxx Micro Software Worldwide Sales Incentive Compensation Plan | |
EXHIBIT B
|
Proprietary Information and Inventions Agreement |
EXHIBIT A
XXXXX MICRO SOFTWARE
WORLDWIDE SALES INCENTIVE COMPENSATION PLAN
1.0 INCENTIVE COMPENSATION PLAN
The
Xxxxx Micro Software (“Company”) Worldwide Sales Incentive Compensation Plan,
(“Plan”) is in effect beginning January 1, 1998. The objective of the plan is to
provide a sales incentive to participating sales employees to enhance the overall
performance of the Company.
2.0 PARTICIPANTS
The Company’s employees (“Participant”), who are employed by the Company in
a sales or sales management that have an assigned product, service, account,
territory or sales management quota and have an executed copy of this Plan are
eligible to participate in the Plan.
3.0 ADMINISTRATION & PLAN MODIFICATION
The Company reserves the right, at it’s sole discretion, to modify or change the
Plan in any respect, and at any time without prior notice. The Plan shall be
administered by the President/CEO, or his designated officer, whose decisions with
respect to any dispute over adiministration of, or modification to, the Plan shall
be considered final. Upon execution by the Participant, this Plan supersedes any
previous sales compensation plan or sales program that may have been put into
effect by the Company At the sole discretion of the Company, the Plan may be
terminated at any time.
4.0 SALES QUOTA
Sales quota (“Quota”) is “defined by the Company as the assigned
U.S. dollar amount of sales objective in the Company’s products or services
that are to be sold by the Participant, in an assigned list of accounts,
territory or region, during a specific fiscal quarter or fiscal year An
under or over Quota condition may exist where the Participant has not
achieved or has exceeded the assigned Quota objective during a specific
fiscal quarter or fiscal year.
Each Participant will be assigned a Quota defined as a U.S. dollar amount related
to one or more of the following specific categories: (a) geographical area or
territory, (b) products, (c) services, (d) customers and/or prospects, (e) class
of accounts, markets, resellers, distributors, systems integrators, OEMs or end
users, (f) profit, or (g) any combination of the above.
A-1
Each Participant will be assigned one or more of the above specific categories
which alone, or when combined, will define the Participant’s total Quota. The Quota
of any Participant may be changed from time to time by the Company at its sole
discretion. Participant’s assigned Quota will be presented by the CEO of the
Company each year. To be in force, the Quota must be signed by the Participant, and
the President/CEO, or his designated officer.
5.0 SALES
Sales that are eligible for commissions in a given period (“Sales”) are calculated
as follows: the sum of gross revenue less invoices aged beyond the defined target
dates plus cash collections on invoices previously deducted. Gross revenue is
defined as revenue that is recognized by the Company’s accounting department in
accordance with Generally Accepted Accounting Principles. Target dates for
invoice collections are set at 90 days for OEM and other non-retail customers and
180 days for distributor/retail customers.
6.0 ASSIGNED ACCOUNTS
Assigned accounts are the Company’s domestic or international customers or
prospects that are assigned to a Participant. If applicable, the specific accounts
that are assigned are presented in Schedule 2, attached hereto. The Company may
identify specific house accounts that are not assigned to a Participant and will not
qualify for calculating sales credit toward a Participant’s Quota.
7.0 SALES INCENTIVE COMPENSATION
7.1 Base Salary
A Participant’s Base Salary (BS) is the bi-monthly compensation received
from the Company through the normal payroll channel.
7.2 Commissions
Commissions are the amount of additional earnings a Participant may receive
for achievement of 100% of assigned Quota objectives. Scheduled Commissions
refer to commissions possible as outlined in the employees original offer
letter or subsequent Change of Status Form.
Calculation of Commission payments:
+ Sales (Gross revenue)
- OEM Bad Debt
- Retail Bad Debt
- Special Price Adjustments
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+ Bad Debt Recovery
+/- Other Adjustments
= Sales Eligible for Commission (see 5.0)
Divided by Quota
= Fraction Earned (can be greater than 100%)
Multiplied by scheduled commissions
= Commissions Earned
7.3 Planned Earnings
The total amount of compensation that a Participant may earn for achievement of 100% of
assigned Quota objectives is defined as Planned Earnings (PE). PE is calculated by adding
the BS component to the commission component.
7.4 Incentive Compensation Threshold/Multipliers
None. Thresholds or multipliers may be used when quotas are established.
7.5 Cumulative Quota and Sales
Quota and sales will be cumulative for the purposes of calculating Commission on a
Quarterly basis. At Quarter end, the Participant will be able to recover all
Commissions earned but not paid.
7.6 Quarterly Commission Limit
None. May be defined and applied to certain periods by the
President/CEO, or his designated officer.
7.7 Over Quota Multiplier
None. May be defined and applied to certain periods by the
President/CEO, or his designated officer.
7.8 Sales Management Quota
Sales Management Quota will be assigned to Participants with direct sales
management responsibilities. A sales manager’s Quota is comprised of the sum of the
Company’s or Region’s area quota.
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7.9 Commission Payment
Payment of Commissions earned on a monthly, Quarterly or annual basis
will be paid within 30 days after the end of each month or within 45 days after
the end of the fiscal year.
7.10 Expense Budget
An expense budget will be assigned to the Sales Managers for variable
expenses which will be adjusted pro-rata to the performance against quota.
In the event expenses are over the pro-rated budgeted amount, commissions
will be reduced at 10% of the budget over-run, to the limit of Commission. Exceptions require written approval by the Director of Sales
and CFO on overrun programs.
8.0 NOT AN EMPLOYMENT AGREEMENT
The Plan shall not be construed as an employment agreement,or any guarantee of
employment, payment of incentive, or any other compensation by the Company.
9.0 TERMINATION OF EMPLOYMENT.
The Plan shall to in effect through the Participant’s termination date,
subject to the change noted herein. Unpaid commissions as of any notice
of termination will be paid 100 days after the termination date.
10.0 RECEIPT AND ACCEPTANCE
I, the Participant, hereby acknowledge that I have received and, that I fully
understand the contents thereof and I agree that as long as I hold the position of
Participant, my Incentive Compensation will be calculated under the provisions
of the Plan. I also understand that the Plan will be modified from time to
time or terminated by the Company, at its sole discretion, as required to meet
the Company’s objectives.
| PARTICIPANT | CHIEF EXECUTIVE OFFICER | |||||||
/s/ Xxxxxxx X. Xxxxx
|
4/9/99 | /s/ Xxxxxxx X. Xxxxx Xx. | ||||||
Signature
|
Date | Signature | Date | |||||
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