EXHIBIT 10.14
INVENTA CORPORATION
EMPLOYMENT AND NONCOMPETITION AGREEMENT
This Employment and Noncompetition Agreement (the "Agreement") is made by
and between Inventa Corporation, a California corporation (the "Company") and
Xxxxx X. Xxxxxxxxx ("Executive") as of May 11, 1998.
RECITALS
A. The Company desires to have Executive's active services as President
and Chairman of the Board of the Company for the period set forth in this
Agreement.
B. The Company and the Executive are parties to a Severance Agreement
dated January ___, (the "Severance Agreement").
C. The Company and Executive desire to enter into this Agreement on the
terms and conditions set forth in this Agreement and that this Agreement
supersede the Severance Agreement in its entirety so that the Severance
Agreement shall be null and void.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and in consideration of Executive's continued employment by the Company, the
parties hereto agree as follows:
1. Duties and Scope of Employment
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(a) Duties. The Company shall employ Executive to render services to
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the Company. Executive agrees that he will devote his full business time and
efforts to the business of the Company, excluding reasonable vacation and sick
leave in accordance with the Company's policies. In the course of Executive's
employment, Executive shall perform the duties of President and Chairman of the
Board of the Company under the direction of the Board of Directors. On the date
of hire by the Company of a Chief Executive Officer, Executive shall resign as
President of the Company but shall remain Chairman of the Board of Directors. No
other term or provision of this Agreement will otherwise be affected.
(b) Term of Employment. Executive's employment with the Company
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pursuant to this Agreement shall be effective January 1, 1998 (the "Effective
Date") and shall continue until terminated in accordance with this Agreement.
2. Compensation
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(a) Base Compensation. The Company shall pay the Executive as
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compensation for his service a base salary at the annualized rate of $160,000
("Salary") effective March 1, 1998. Such Salary shall be reviewed at least
annually and not later than January 31 of each calendar year hereafter during
the Employment Period and shall be increased from time to time subject to
accomplishment of such performance and contribution goals and objectives as may
be established from time to time by the Board of Directors in consultation with
Executive. Any increase to Executive's Salary shall be retroactively applied as
of January 1 of the applicable calendar year. Such Salary shall be paid
periodically in accordance with normal Company payroll. The annual compensation
(including bonus and benefit amounts pursuant to Section 2(b) and (c) below)
specified in this Section 2(a), together with any increases in such compensation
that the board of Directors may grant from time to time, is referred to in this
Agreement as "Base Compensation."
(b) Bonuses. In addition to Executive's base salary, Executive shall
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be entitled to receive an annual performance bonus (the "Performance Bonus") in
the maximum amount of $90,000 to be paid on January 15 of each calendar year
hereafter, subject to the satisfaction of certain performance goals mutually
determined and reviewed by the Board of Directors in consultation with
Executive, or in the event of Executive's death or disability, in consultation
with Executive's estate or legal representative, as the case may be. The
Performance Bonus shall be subject to annual review and increase by mutual
agreement, provided that Executive is employed by the Company on such dates.
(c) Executive Benefits. The Executive shall be eligible to
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participate in the Executive benefit plans and executive compensation programs
maintained by the Company applicable to other key executives of the Company,
including (without limitation) retirement plans, savings or profit-sharing
plans, deferred compensation plans, supplemental retirement or excess-benefit
plans, life, disability, health, accident and other insurance programs, paid
vacations, and similar plans or programs, subject in each case to the generally
applicable terms and conditions of the plan or program in question and to the
determination of any committee administering such plan or program.
(d) Car Payments. During the Employment Period and any renewal
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thereof, the Company shall pay the lease payments on the Executive's current or
subsequent car. To the extent that such car is used for other than the Company's
business purposes, Executive shall report such use to the Company and the extent
of such personal use shall be treated as compensation to the Executive.
(e) Expenses During Employment. The Company shall reimburse the
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Executive for all reasonable business, entertainment and travel expenses
actually incurred or paid by the Executive in the performance of his services on
behalf of the Company, in accordance with the Company's expense reimbursement
policy as from time to time in effect.
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3. Termination of Employment
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(a) By Death. The Employment Period shall terminate automatically
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upon the death of the Executive. In such event, the Company shall pay to
Executive's beneficiaries or his estate, as the case may be, any accrued Salary,
the pro rata amount of the Performance Bonus determined in accordance with
Section 2(b) above, any vested deferred compensation (other than pension plan or
Profit-sharing plan benefits which will be paid in accordance with the
applicable plan), any benefits under any plan of the Company in which Executive
is a participant to the full extent of Executive's rights under such plan, any
accrued vacation pay and any appropriate business expenses incurred by Executive
in connection with his duties hereunder, all to the date of termination
(collectively "Accrued Compensation"), but no other compensation or
reimbursement of any kind, including, without limitation, severance
compensation, and thereafter, the Company's obligations hereunder shall
terminate. Nothing in this Section shall affect any entitlement of the
Executive's heirs to the benefits of any life insurance provided by the Company
as act forth above.
(b) By Disability. If the Executive is prevented from properly
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performing his duties hereunder by reason of any physical or mental incapacity
for a period of more than 60 days in the aggregate in any 365-day period, then,
to the extent permitted by law, the Company may terminate the Employment Period
on the 60th day of such incapacity. In such event, the Company shall pay to
Executive all Accrued Compensation, and shall continue to pay to Executive the
Salary and the pro rata amount of the Performance Bonus determined in accordance
with Section 2(b) above until such time as Executive shall become entitled to
receive disability insurance payments under the disability insurance policy
maintained by the Company (but not more than 90 days following termination), but
no other compensation or reimbursement of any kind, including without
limitation, severance compensation, and thereafter the Company's obligations
hereunder shall terminate. Nothing in this Section shall affect Executive's
rights under any disability plan in which he is a participant.
(c) By Resignation or By Company for Cause. If Executive's employment
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with the Company terminates due to his voluntary resignation or if the Company
terminates Executive's employment due to Cause (as defined below), the Company
shall pay Executive all Accrued Compensation less the pro rata amount of the
Performance Bonus (which shall not be paid to Executive), but no other
compensation or reimbursement of any kind, including without limitation,
severance compensation, and thereafter the Company's obligations hereunder shall
terminate. Termination shall be for "Cause" in the event of the occurrence of
any of the following: (i) Executive's conviction by, or entry of a plea of
guilty or nolo contendere in, a court of competent and final jurisdiction for
any crime which constitutes a felony in the jurisdiction involved, which
conviction materially injures the Company; or (ii) Executive's commission of a
material act of fraud or misappropriation of funds, whether prior to or
subsequent to the date hereof, upon the Company; or (iii) gross negligence by
Executive in the scope of Executive's services to the Company; or (iv)
Executive's failure to follow the reasonable policies or directions of the Board
of Directors of the Company; or (v) Executive's intentional breach of any
material term of this Agreement; provided that in the event that any of the
foregoing events is capable of being cured, the Company shall
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provide written notice to the Executive describing the nature of such event and
the Executive shall thereafter have ten (10) business days to cure such event.
(d) By Company for Other Than Cause. If the Company terminates
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Executive's employment with the Company for any reason other than Cause,
Executive shall be entitled to receive: (i) Accrued Compensation to the date of
termination; (ii) continued payment by the Company of the lease payments on the
Executive's car for twelve (12) months after the date of termination of
employment (the "Termination Date"); (iii) severance compensation equal to
Executive's Base Compensation, immediately prior to the termination, for twelve
(12) months after the Termination Date payable in accordance with the Company's
normal payroll; (iv) payment of all costs which the Company would otherwise have
incurred to maintain all of Executive's health and welfare, and retirement
benefits (either on the same or substantially equivalent terms and conditions)
if the Executive had continued to render services to the Company for twelve (12)
months after the Termination Date. In addition, in the event of any termination
of Executive's employment pursuant to this Section 3(d), any options currently
or subsequently granted to Executive which have not then vested will continue to
vest in accordance with their stated vesting schedule(s) during the twelve (12)
month period after the date of termination and to be exercisable during such
twelve (12) month period to the extent vested, including any options which would
not otherwise have been exercisable during the first year after grant of such
options. "Other than for Cause" shall include, but not be limited to the
following: (i) without the Executive's express written consent, the assignment
to the Executive of any duties or the reduction of the Executive's duties,
either of which results in a significant diminution in the Executive's position
or responsibilities with the Company in effect immediately prior to such
assignment, or the removal of the Executive from such position and
responsibilities except as contemplated by Section 1(a) above; (ii) without the
Executive's express written consent, a substantial reduction, without good
business reasons, of the facilities and perquisites (including office space and
location) available to the Executive immediately prior to such reduction; (iii)
a reduction by the Company in the Base Compensation of the Executive as in
effect immediately prior to such reduction, other than a bonus reduction
resulting from application of a bonus formula or plan on a basis that is
consistent with prior practice; (iv) a material reduction by the Company in the
kind or level of Executive benefits to which the Executive is entitled
immediately prior to such reduction with the result that the Executive's overall
benefits package is significantly reduced; (v) the relocation of the Executive
to a facility or a location more than 25 miles from the Executive's then present
location, without the Executive's express written consent; provided, however,
that this Section 3(d)(v) shall not apply if Executive is relocated to new
headquarters of the Company if such relocation of the Company's headquarters is
to a location no more than 50 miles from the Executive's current location; (vi)
if, at the election of the Board of Directors, the Executive is no longer the
Chairman of the Board; or (vii) the failure of the Company to obtain the
assumption of this Agreement by any successors. If Executive resigns due to one
of the above enumerated factors within three (3) months after the date of the
occurance of one of the above enumerated factors, such resignation shall be
deemed a termination by the Company for Other Than Cause and shall be governed
by this Section 3(d).
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(e) No Duty to Mitigate. The Executive shall not be required to
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mitigate the amount of any payment contemplated by Section 3(d) (whether by
seeking new employment or in any other manner).
4. Covenants Not to Compete or Solicit.
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(a) Non-Competition. The Executive agrees that he will not, while
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employed by the Company and for a period of one (1) year following termination
of such employment in the case of termination of Executive's employment by the
Company for Other than for Cause, or for a period of two (2) years following
termination of such employment in the case of a voluntary termination or a
termination of Executive's employment by the Company for Cause, directly or
indirectly (other than on behalf of the Company), without the prior written
consent of the Company, engage in a Competitive Business Activity anywhere in
the Restricted Territory. Engaging in a "Competitive Business Activity" shall
mean engaging in, whether independently or as an employee, agent, consultant,
advisor, independent contractor, partner, stockholder, officer, director or
otherwise, any business which is materially competitive with the business of the
Company as conducted or actively planned to be conducted by the Company during
his employment by it, provided that Executive shall not be deemed to engage in a
Competitive Business Activity solely by reason of (i) owning 2% or less of the
outstanding common stock of any corporation if such class of common stock is
registered under Section 12 of the Securities Exchange Act of 1934, or (ii)
after the termination of his employment by the Company, being employed by or
otherwise providing services to a corporation having total revenue of at least
$250 million (or such lower number as may be agreed by the Company) so long as
such services are provided solely to a division or other business unit of such
corporation which does not engage in a business which is then competitive with
the business of the Company. The term "Restricted Territory" shall mean each
state of the United States, each province of Canada, and each other country in
the world in which the Company, during the term of this non-competition
provision, sells or markets its products and services or otherwise engages in
business. Notwithstanding the foregoing, in the event that, prior to the
termination of Executive's employment by the Company, the Company enters or
actively plans to enter a new line of business which is materially competitive
with the business of Challenger Systems, Inc. ("Challenger"), the Company and
Executive shall in good faith negotiate the application of this non-competition
provision to Executive's ownership of stock in Challenger. Executive shall,
during the term of this non-competition provision, if he continues to own stock
of or otherwise to be affiliated with Challenger, provide the Board of Directors
of the Company from time to time information regarding Challenger's business
activities pertinent hereto.
(b) Non-Solicit of Employees. The Executive agrees that he will not,
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while employed by the Company and for a period of two (2) years following
termination of such employment:
(i) directly solicit, encourage, or take any other action which
is intended to induce any other employee of the Company or any of its
subsidiaries to terminate his or her employment with the Company or any of its
subsidiaries; or
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(ii) directly interfere in any manner with the contractual or
employment relationship between the Company or any of its subsidiaries and any
such employee of the Company or any of its subsidiaries.
The foregoing shall not prohibit the Executive or any entity with
which the Executive may be affiliated from hiring a former or existing employee
of the Company or any of its subsidiaries, provided that such hiring does not
result from the direct actions of Executive.
(c) Non-Solicit of Customers with respect to Competitive Business
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Activity. The Executive agrees that he will not, while employed by the Company
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and for a period of two (2) years following termination of such employment,
directly or indirectly, whether for his own account or for the account of any
other individual or entity, solicit the business or patronage of any customers
of the Company with respect to products and/or services directly related to a
Competitive Business Activity.
(d) Severability. The scope of the geographic, time and subject
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matter restrictions set forth in this Section 4 are intended to conform to
applicable law. If, however, a court determines that the scope of any such
restriction exceeds what is permitted by law, then such restriction shall be
limited or otherwise reformed as necessary to comply with and be enforceable
under applicable law. If a court determines that any provision of this Section 4
is unenforceable and cannot be reformed, then such provision shall be deemed
eliminated from this Section to the extent necessary to permit the remaining
provisions of this Section to be enforced.
5. Confidential Information.
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(a) Company Information. Executive agrees at all times during the
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term of Executive's employment and thereafter, to hold in strictest confidence,
and not to use, except for the benefit of the Company, or to disclose to any
person, firm or corporation without written authorization of the Board of
Directors of the Company, any Confidential Information of the Company. Executive
understands that "Confidential Information" means any Company proprietary
information, technical data, trade secrets or know-how, including, but not
limited to, research, product plans, products, services, customer lists and
customers (including, but not limited to, customers of the Company on whom
Executive called or with whom Executive became acquainted during the term of
Executive's employment), markets, software, developments, inventions, processes,
formulas, technology, designs, drawings, engineering, hardware configuration
information, marketing, finances or other business information disclosed to
Executive by the Company either directly or indirectly in writing, orally or by
drawings or observation of parts or equipment. Executive further understands
that Confidential Information does not include any of the foregoing items which
has become publicly known or made generally available through no wrongful act of
Executive's or of others who were under confidentiality obligations as to the
item or items involved.
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(b) Former Employer Information. Executive agrees that Executive will
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not, during Executive's employment with the Company, improperly use or disclose
any proprietary information or trade secrets of any former or concurrent
employer or other person or entity and that Executive will not bring onto the
premises of the Company any unpublished document or proprietary information
belonging to any such employer, person or entity unless consented to in writing
by such employer, person or entity.
(c) Third Party Information. Executive recognizes that the Company
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has received and in the future will receive from third parties their
confidential or proprietary information subject to a duty on the Company's part
to maintain the confidentiality of such information and to use it only for
certain limited purposes. Executive agrees to hold all such confidential or
proprietary information in the strictest confidence and not to disclose it to
any person, firm or corporation or to use it except as necessary in carrying out
Executive's work for the Company consistent with the Company's agreement with
such third party.
6. Representations. Executive has not entered into, and will not enter
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into, any oral or written agreement in conflict herewith.
7. Arbitration. Executive and Company agree that any dispute or
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controversy arising out of or relating to any interpretation, construction,
performance or breach of this Agreement shall be settled by arbitration of a
single arbitrator to be held in Santa Clara, California, in accordance with the
rules then in effect of the American Arbitration Association. The arbitrator
may grant injunctions or other relief in such dispute or controversy. The
decision of the arbitrator shall be final, conclusive and binding on the parties
to the arbitration. Judgment may be entered on the arbitrator's decision in any
court having jurisdiction. The Company and Executive shall each pay one-half of
the costs and expenses of such arbitration, and each party shall separately pay
counsel fees and expenses.
8. General Provisions
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(a) Governing Law; Consent to Personal Jurisdiction. This Agreement
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will be governed by the laws of the State of California. Executive and Company
hereby expressly consent to the personal jurisdiction of the state and federal
courts located in California for any lawsuit filed relating to this Agreement.
(b) Entire Agreement. This Agreement sets forth the entire agreement
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and understanding between the Company and Executive relating to the subject
matter herein and merges all prior discussions between the parties. No
modification of or amendment to this agreement, nor any waiver of any rights
under this agreement, will be effective unless in writing signed by both parties
hereto. Any subsequent change or changes in Executive's duties, salary or
compensation will not affect the validity or scope of this agreement.
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(c) Severability. If one or more of the provisions in this Agreement
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are deemed void by law, then the remaining provisions will continue in full
force and effect.
(d) Successors.
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(i) Company's Successors. Any successor to the Company (whether
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direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's business
and assets shall assume the obligations under this Agreement and agree expressly
to perform the obligations under this Agreement in the same manner and to the
same extent as the Company would be required to perform such obligations in the
absence of a succession. For all purposes under this Agreement, the term
"Company" shall include any successor to the Company's business and assets which
executes and delivers an appropriate assumption agreement or which becomes bound
by the terms of this Agreement by operation of law.
(ii) Executive's Successors. The terms of this Agreement and all
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rights of the Executive hereunder shall inure to the benefit of, and be
enforceable by, the Executive's personal or legal representatives, executors,
administrators, successor, heirs, distributees, devisees or legatees.
(e) Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed an original, but all of which together will
constitute one and the same instruments.
IN WITNESS WHEREOF, each of the parties has executed this Agreement of the
Company by its duly authorized officer, as of the day and year first written
above.
XXXXX XXXXXXXXX, an individual
Date: May 1, 1998 /s/ [ILLEGIBLE]^^
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INVENTA CORPORATION
Date: May 1, 1998 By: /s/ [ILLEGIBLE]^^
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