EMPLOYMENT AGREEMENT (the "Agreement"), dated as of March ____, 2002
(the "Effective Date") by and between Artemis International Solutions
Corporation (the "Company," "Artemis" or the "Employer") and XXXXXXX XXXXXX (the
"Employee").
WHEREAS, the Company desires to employ the Employee as the
Vice President, General Counsel and Secretary of the Company; and
WHEREAS, the Employee desires to accept such employment by the
Company, on the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Employee hereby agree as
follows:
Section 1. Duties.
Employer agrees to employ Employee, and Employee agrees to be so
employed, as Vice President, General Counsel and Secretary, reporting directly
to Xxxxxxx Xxxxxx, the Company's President and Chief Executive Officer ("Xxxxxx"
or "Chief Executive Officer"), commencing on the Effective Date and continuing
unless and until terminated as set forth herein. Employee shall be responsible
for performing the customary duties as are appropriate to Employee's position.
Employee shall be covered by Employer's "Director's and Officers" insurance as
is customary and appropriate to Employee's position. The Chief Executive Officer
will be responsible for evaluating Employee's performance for all purposes.
Employee agrees to perform Employee's duties to the best of his abilities and to
devote all of his professional time, attention and energy to the business of
Employer; provided, however, that Employee may (i) engage in activities in
connection with charitable or civic activities; and (ii) serve as an executor,
trustee or in other similar fiduciary capacity, if in each case, such activities
do not interfere with Employee's services hereunder.
Section 2. Compensation.
(a) Salary. Employer shall pay to Employee a base
salary at the rate of $120,000.00 per annum, less all applicable federal, state
and local withholding taxes payable in accordance with Employer's standard
payroll and other elected deductions. The Base Salary shall be reviewed at least
annually by the Chief Executive Officer, and may be increased in the sole
discretion of Employer.
(b) Incentive Compensation. Employee shall be eligible
to receive an annual bonus based on a bonus target of $30,000.00 for fiscal year
2002 (and mutually agreed targets for future fiscal years), paid quarterly
through the Artemis International Discretionary Incentive Compensation Plan (as
may be amended from time to time), based upon the Company's achievement of
economic performance criteria and Employee's achievement of
performance criteria as mutually agreed upon by the Employee and Chief Executive
Officer (MBO), if any. Employee shall be paid a pro-rated incentive bonus for
the quarter and based on the date in which Employee begins to perform duties as
outlined herein, consistent with the Artemis International Discretionary
Incentive Compensation Plan. Notwithstanding the foregoing, in the event the
budgeted economic performance of the Company is materially altered due to any
acquisitions or divestitures by the Company during fiscal year 2002, the
criteria for bonus payout will be adjusted equitably by the Chief Executive
Officer to take into account the effect of such acquisitions and/or
divestitures.
(c) Options. Subject to Board of Directors approval,
the Company shall grant Employee on or as soon as practicable after the
Effective Date (the "Initial Grant"), options to purchase, in the aggregate,
[50,000] shares of common stock of the Company (the "Common Stock").
Additionally, Employer, in its sole discretion, may grant to Employee additional
options to purchase shares of Common Stock, consistent with company policy and
commensurate with Employee's title. All of Employee's options shall be subject
to the terms and conditions of the Company's Stock Option Plan, as may be
amended from time to time, and any agreements evidencing such options.
Section 3. Benefits; Expense Reimbursement.
During the term of this Agreement, Employee shall be eligible to
participate in any generally available group insurance, accident, sickness and
hospitalization insurance, and any other similar employee benefit plans and
programs maintained by Employer, subject in each case to the generally
applicable terms and conditions of the applicable plan or program. Employee
further shall be entitled to reimbursement by Employer for all direct
out-of-pocket expenditures made by him on Employer's behalf in the performance
of his services under this Employment Agreement, subject to any reasonable
record keeping, reporting and other requirements imposed from time to time by
Employer.
Section 4. Term of Agreement
This Agreement shall commence as of the date first above written and shall
continue in effect until terminated as provided below.
(a) Termination (other than death or disability of
employee). Either party may terminate this Agreement at will, with or without
cause at anytime for any reason by giving the other party fifteen (15) days
written notice.
(b) Death or disability of Employee. If Employee dies,
this Agreement shall be deemed terminated as of the date of death. If Employee
has become disabled, so as to be unable to perform the essential functions of
his job with or without a reasonable accommodation, the Employer may terminate
this Agreement upon thirty (30) days written notice to Employee.
(c) Compensation upon termination. If this Agreement
is terminated, the following compensation shall be paid to Employee as his sole
and exclusive remedy against
Employer, and Employee shall not be entitled to any other salary, compensation,
bonus or monies of any kind.
(i) if Employer terminates this Agreement without
Good Cause, Employee will be entitled to receive within ten (10) days after
termination, (A) a lump sum payment less applicable deductions, equivalent to
six (6) months base salary, at the salary rate in effect on the date of
Employee's termination, and (B) an incentive bonus payment pro-rated for the
quarter in which any such termination shall take effect based on said
termination date, consistent with the Artemis International Discretionary
Incentive Compensation Plan, to be computed at the one-hundred percent (100%)
level of payout under the Plan. Notwithstanding any employee handbooks,
memoranda, or any other policies of the Company, "Good Cause" shall mean only
the following: (A) proven dishonesty as to the Company's affairs or conviction
of a felony that adversely affects the Company's business; (B) proven failure by
Employee to observe or perform any of his obligations or duties in good faith;
or (C) proven gross negligence in performance of Employee's obligations and
duties under this Agreement.
(ii) if Employee terminates this Agreement (other
than for a Resignation for Good Reason as described below) or if the Employer
terminates this Agreement for Good Cause, the Employer will pay Employee any
salary then due and any reasonable expenses he has incurred to the time of
termination.
(iii) if this Agreement shall terminate because of
the death or disability of Employee, then, (A) Employer shall pay to Employee or
his estate an amount equivalent to three (3) months base salary within ten (10)
days of the effective date of termination, less applicable deductions at the
salary rate in effect on the date of the death or disability , and (B) Employee
or his estate shall be eligible for an incentive bonus payment pro-rated for the
quarter in which the Employee ceased performing duties herein due to the death
or disability, consistent with the Artemis International Discretionary Incentive
Compensation Plan. Any such payments shall be in addition to any death or
disability benefit coverage to which Employee or his estate may be entitled
under any death or disability insurance programs provided or maintained by
Employer.
(d) If Employee resigns for Good Reason, then said
resignation shall be treated as a termination without Good Cause, consistent
with and entitling Employee to the payments as provided in Section 4(c)(i)
above. For purposes of this Employment Agreement, Resignation for Good Reason
shall include and may be triggered by: (A) a reduction in title or any material
reduction in duties and responsibilities, or the cessation of reporting directly
to Xxxxxx, (B) the office as of the Effective Date located at 0000 XxxXxxxxxx
Xxxx xx Xxxxxxx Xxxxx, XX, being relocated more than twenty-five miles, (C) a
diminution of base salary, or (D) a diminution or elimination of the Incentive
Compensation bonus target for a fiscal year as described above in Section 2(b).
Employee shall have the right to resign for Good Reason and thereby terminate
his employment for cause under this Agreement and pursuant to this Section 4(d)
upon not less than fifteen (15) days prior written notice, which notice must be
given within
thirty (30) days after the occurrence of the event giving rise to such right to
terminate; provided, however, in cases where the title or position have been
reduced, that Company shall have the right to restore Employee to his title and
position prior to such event within ten (10) days after such notice is given. If
Employee is not restored to his prior title and position within ten (10) days
after such notice is given, his resignation under this subparagraph shall be
treated as a termination by Company without Good Cause, consistent with and
entitling Employee to the payments as provided in Section 4(c)(i) above.
Section 5. Non-Solicitation.
In consideration of the compensation and other benefits to be provided
to Employee hereunder, Employee shall not, directly or indirectly, for any
reason whatsoever, during the term of this Agreement and for a period of one
year following the termination of this Agreement:
(a) solicit or induce, or attempt to solicit or
induce, employees of, consultants to, or independent contractors of, the Company
or its subsidiaries to terminate their employment, engagement or affiliation
with the Company or in any way interfere with the relationship between the
Company or any of its subsidiaries, on the one hand, and any such employee of,
consultant to, or independent contractor of the Company or any of its
subsidiaries, on the other hand;
(b) Knowingly employ or retain for the benefit of a
party other than the Company, any such employee of, consultant to, or
independent contractor of the Company or any of its subsidiaries during a period
of three months after the termination of such employee's, consultant's or
independent contractor's employment, engagement or affiliation with the Company
or any of its subsidiaries unless such retainer is not competitive, and does not
interfere with, the simultaneous retention of such consultant or independent
contractor by the Company; or
(c) induce customers or vendors of the Company, or any
independent knowledge workers or other information technology professionals, or
end user organizations that have a business relationship with the Company, to
alter or terminate their business relationship with the Company or any of its
subsidiaries.
Section 6. Successors and Assigns.
This Agreement and all of the rights and obligations hereunder shall be
binding upon Employee and Employer and their respective successors and assigns.
Employer will require any successor (whether by purchase, merger, consolidation,
operation of law or otherwise) expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that Employer would be
required to perform it if no such succession or assignment had taken place.
Effective upon such assumption, and consummation of the underlying transaction,
Employer shall have no further obligation or liability under or with respect to
this Agreement.
Section 7. No Third Party Beneficiary.
This Agreement is not intended and shall not be construed to confer any
rights or remedies hereunder upon any Person, other than the parties hereto or
their permitted assigns. "Person" shall mean an individual, corporation,
partnership, limited liability company, limited liability partnership,
association, trust or other unincorporated organization or entity.
Section 8. Notices.
Unless otherwise provided herein, any notice, exercise of rights or
other communication required or permitted to be given hereunder shall be in
writing and shall be given by overnight delivery service such as Federal
Express, telecopy (or like transmission) or personal delivery against receipt,
or mailed by registered or certified mail (return receipt requested), to the
party to whom it is given at such party's address set forth below such party's
name on the signature page or such other address as such party may hereafter
specify by notice to the other party hereto. Any notice or other communication
shall be deemed to have been given as of the date so personally delivered or
transmitted by telecopy or like transmission or on the next business day when
sent by overnight delivery service.
Section 9. Amendment.
This Agreement may be amended, modified, superseded or canceled, and
the terms and covenants hereof may be waived, only by a written instrument
executed by both of the parties hereto, or in the case of a waiver, by the party
waiving compliance. The failure of either party at any time or times to require
performance of any provision hereof shall in no manner affect the right at a
later time to enforce the same.
Section 10. Binding Effect.
This Agreement is not assignable by Employee. None of Employee's rights
under this Agreement shall be subject to any encumbrances or the claims of
Employee's creditors. This Agreement shall be binding upon and inure to the
benefit of Employer and any successor organization which shall succeed to
Employer by merger or consolidation or operation of law, or by acquisition of
all or substantially all of the assets of Employer (provided that a successor by
way of acquisition of assets shall have undertaken in writing to assume the
obligations of Employer hereunder).
Section 11. Dispute Resolution.
The parties agree that binding arbitration shall be the sole and
exclusive means of resolving any and all disputes, claims or controversies
whatsoever arising out of or relating to this Agreement, including arbitrability
of claims under this Agreement, (collectively referred to herein as "Disputes").
Any and all such Disputes shall be submitted to a single arbitrator
selected from a panel provided by the American Arbitration Association comprised
of labor arbitrators who are members of the National Academy of Arbitrators,
located in Orange County, California. Any
decision and/or award resulting from arbitration pursuant to this provision
shall be final and binding. The prevailing party in arbitration shall be
entitled to reimbursement for its expenses, including costs and reasonable
attorneys' fees. The parties further agree that judgment upon any award rendered
by the arbitrator may be entered in any court having jurisdiction thereof.
Employee agrees to provide written notice of any such demand for arbitration to
the attention of Company's Vice President, Human Resources clearly labeled
"Demand for Arbitration," no later than sixty (60) days from the date he becomes
aware or are provided notice of the occurrence giving rise to the claim.
Employee's failure to provide such timely notice shall constitute a full and
complete waiver of any such related claim. Company agrees to provide Employee
written notice of any such demand for arbitration clearly labeled "Demand for
Arbitration," no later than sixty (60) days from the date Company becomes aware
or is provided notice of the occurrence giving rise to the claim. Company's
failure to provide such timely notice shall constitute a full and complete
waiver of any such related claim.
Section 12. Severability.
If any provision of this Agreement shall for any reason be held
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof shall not be affected or impaired thereby and
such remaining provisions of this Agreement shall remain in full force and
effect. Moreover, if any one or more of the provisions of this Agreement shall
be held to be excessively broad as to duration, activity or subject, such
provisions shall be construed by limiting and reducing them so as to be
enforceable to the maximum extent allowable by applicable law. To the extent
permitted by applicable law, each party hereto waives any provision of law that
renders any provision of this Agreement invalid, illegal or unenforceable in any
way.
Section 13. Execution in Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original and all of which shall constitute one
and the same instrument.
Section 14. Entire Agreement.
This Agreement sets forth the entire agreement with respect to the
subject matter hereof, and supersedes all prior agreements and any other
agreement between the parties and understandings, both written and oral, between
the parties with respect to the subject matter hereof.
Section 15. Titles and Headings.
Titles and headings to Sections herein are for purposes of reference
only, and shall in no way limit, define or otherwise affect the meaning or
interpretation of any of the provisions of this Agreement.
Section 16. Conflicts of Interest; Representations and
Warranties.
Employee specifically covenants, warrants and represents to Employer
that he has the full, complete and entire right and authority to enter into this
Agreement, that he has no agreement, duty, commitment or responsibility or
obligation of any kind or nature whatsoever with any corporation, partnership,
firm, company, joint venture or other Person which would conflict in any manner
whatsoever with any of his duties, obligations or responsibilities to Employer
pursuant to this Agreement or which could interfere with Employee's performance
under this Agreement, that he is not in possession of any document or other
tangible property of any other Person of a confidential or proprietary nature
which would conflict in any manner whatsoever with any of his duties,
obligations or responsibilities to Employer pursuant to Employee's Agreement and
Employee's performance of his obligations to Employer during the term of this
Agreement will not breach any agreement by which Employee is bound not to
disclose any proprietary information, and that he is fully ready, willing and
able to perform each and all of his duties, obligations and responsibilities to
Employer pursuant to this Agreement.
Remainder of page left intentionally blank
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
XXXXXXX XXXXXX
----------------------------------------
Name:
Address:
ARTEMIS INTERNATIONAL SOLUTIONS
CORPORATION
By:
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Name:
Title:
Address: Artemis International Solutions
Corporation
Attn: Secretary
0000 Xxxxxxx Xxxx
Xxxxxxx XX 00000
