Employment Agreement (the "Agreement"), effective as of December 1,
1998 (the "Effective Date"), between eB2B Commerce, Inc., a Delaware corporation
with principal offices at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (the
"Company") and Xxxxxx Xxxxxxx, residing at 0 Xxxxx Xxxxx Xxxx, Xxx Xxxxx, Xxx
Xxxx, ("Xxxxxxx"). The Company and Bentley may be referred to herein
collectively as the "Parties" or individually as a "Party."
WHEREAS, the Company is engaged in the sales and service of building,
owning and operating electronic commerce networks;
WHEREAS, Bentley currently serves as the Chief Financial Officer and
Secretary of the Company; and
WHEREAS, the Company and Bentley believe that it is appropriate for
them to memorialize their understandings with respect to Bentley's employment,
including confidentiality and non-competition provisions, and agree as to each
other's obligations pursuant to their employer-employee relationship.
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, the Parties do hereby agree as follows:
1 Employment. The Company hereby employs Bentley and Bentley accepts this
employment and agrees to render services to the Company on the terms and
conditions set forth in this Agreement. Bentley shall serve in the capacity of
Chief Financial Officer and Secretary, perform services for the Company normally
associated with such positions, and use his best efforts to meet the business
requirements and goals set by the board of directors of the Company (the
"Board"). In furtherance thereof, Bentley will devote his best efforts,
including his full-time attention, during reasonable business hours, to the
affairs and business of the Company. Bentley further agrees to observe and
comply with the rules and regulations of the Company as adopted by the Board
with respect to performance of his duties, and to carry out and perform orders,
directions, and policies enacted by the Board.
2 Term. The term of this Employment Agreement shall be the period from
the Effective Date and terminating on December 31, 2001 (the "Initial Employment
Term"). The Agreement shall thereafter automatically renew for successive one
year terms, until terminated by either Party in accordance with this Agreement
(the "Succeeding Employment Term"), unless either Party provides written notice
of termination to the other party at least ninety (90) days prior to the
expiration of the Initial Employment Term or any Succeeding Employment Term.
3 Compensation.
3.1 Base Salary. The Company will compensate and pay Bentley for his
services during the term of this Agreement at a base salary of $115,000 per
year, and the Company agrees that the base salary will increase annually in an
amount no less than five (5%) percent of the previous year's base salary (the
"Base Salary"). The Base Salary shall be payable to Bentley in accordance with
the Company's standard payroll policy for similarly situated employees of the
Company. The Company has the right, from the Effective Date to December 31,
1999, to accrue the Base Salary of Bentley. At any time thereafter, the
Company's right and conditions to accrue the Base Salary of Bentley shall be
mutually agreed upon by the Company and Bentley. In the event that the Base
Salary is accrued, Bentley has the right to convert the accrued Base Salary
(less applicable withholding taxes and standard payroll deductions) ("Accrued
Salary") to purchase shares of the Company's Common Stock, in accordance with
the Accrued Salary Stock Purchase Agreement executed simultaneously with the
execution of this Agreement.
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3.2 Bonus. Bentley may receive, from time to time, bonus compensation
from the Company, as established by the Board following the negotiation of the
terms by the Parties (the "Bonus Compensation"). If at any time hereafter the
Company shall adopt a bonus program, an option program or any other form of
equity participation for senior executives of the Company, Bentley shall be
eligible to participate in such program in a manner and capacity commensurate
with his position and duties. Notwithstanding the foregoing, For each calendar
year of this Agreement, commencing with the 1999 calendar year, the Company will
pay Bentley a bonus of no less than twenty thousand ($20,000) dollars, payable
by March 15th of the following year.
3.3 Performance Based Options. The parties acknowledge that Bentley and
the Company have entered into the 1998 Executive Performance Equity Agreement
(the "Executive Performance Agreement"), to which Bentley will be granted
options ("Award") to purchase up to one hundred thousand (100,000) shares of the
Company's Common Stock provided that certain performance goals are met.
3.4 Stock Options. In addition, and without limiting the foregoing,
during the term of this Agreement, Bentley shall be entitled to participate, as
determined by the Board of Directors, in the Company's incentive stock option
plan to the same extent as other employees of the Company. For purposes of this
Agreement, "Options" shall mean any options granted under the Company's
incentive stock option plan and the Executive Performance Agreement.
3.5 Deferred Compensation.
3.6 Amount. Deferred Compensation shall be the amount which is
calculated as the greater of (A) three hundred (300%) percent of the Base Salary
payments Bentley would have received had his employment continued for the
remaining term of this Agreement (including yearly increases); or (B) an amount
equal to two hundred (200%) percent of the highest annual compensation earned by
Bentley in the past three (3) years (including both Base Salary and Bonus
Compensation). In addition to the Deferred Compensation, Bentley shall be
entitled to all of the benefits and personal perquisites otherwise provided in
this Agreement (including the car allowance, as described in Section 4.2 hereof)
during the period of time which is the greater of (X) the remaining term of this
Agreement, or (Y) two (2) years following the date of termination. The Deferred
Compensation herein shall be deemed liquidated damages resulting from the
Company's sole and exclusive remedy for any such termination. Deferred
Compensation shall not be diminished or offset by reason of any earnings by
Bentley subsequent to the date of termination.
3.7 Payment of Deferred Compensation. Except as otherwise provided
below, the Deferred Compensation shall be paid in monthly installments over the
twelve (12) months following the event giving rise to the payment of Deferred
Compensation. If employment termination is a result of the death of Bentley, the
initial Deferred Compensation payments shall be made within fifteen (15) days
after the personal representative of Bentley's estate notifies the Company that
Letters Testamentary have been issued to the estate appointing an authorized
representative of the estate.
3.8 Withholding. All compensation paid to Bentley shall be subject to
the applicable withholding taxes and other employment taxes as required with
respect to compensation paid by an employer to an employee.
4 Benefits.
4.1 Health Insurance; Vacation. The Company shall provide Bentley with
health insurance coverage, personal time and other benefits during the term of
this Agreement as
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agreed upon by the Board, but in no event will such benefits be less than those
offered to other employees of the Company. Bentley shall be entitled to four (4)
weeks paid vacation during each year of this Agreement.
4.2 Car Allowance. The Company will pay to Bentley a car allowance of
six hundred fifty ($650) dollars per month.
5 Expenses. The Company shall reimburse Bentley or otherwise provide for
or pay for all reasonable expenses incurred by Bentley in furtherance of or in
connection with the business of the Company, including, but not by way of
limitation, (i) all reasonable expenses incurred by Bentley in accordance with
the Company's travel policy, as established by the Board; and (ii) all
reasonable expenses in connection with Bentley's attendance at trade and
professional conferences, which are in furtherance of the business of the
Company. Bentley agrees that he will furnish the Company with adequate records
and other documents for the substantiation of each such business expense.
6 Employment Termination.
6.1 Resignation of Bentley. The Parties agree that Bentley has the
right to voluntarily terminate his employment with the Company by providing the
Company with a minimum of sixty (60) days' notice. Upon the termination date
specified in the notice, Bentley will cease to have any of the powers associated
with the offices he held with the Company. In such event, all of the Company's
obligations under this Agreement will terminate immediately upon the date of
such termination of employment, and the Company will not be required to pay
Bentley the Deferred Compensation.
6.2 Termination by the Company for Convenience. The Parties agree that
the Board has the right to terminate Bentley's employment for convenience during
the term of this Agreement upon notice to Bentley. In such event, the Company
will pay Bentley the Deferred Compensation. The date of termination will be the
date specified in a notice from the Board, and Bentley will cease to have any
power of his office as of such date.
6.3 Termination by the Company for Cause. The Parties agree that the
Board has the right to terminate Bentley's employment during the term of this
Agreement for "Cause." For the purposes of this Agreement, the term "Cause" will
mean:
6.3.1 Conduct on Bentley's part willfully intended to or likely to
injure the Company's business or reputation;
6.3.2 Actions by Bentley intentionally furnishing materially false,
misleading, or omissive information to the Board;
6.3.3 Bentley is convicted of any felony or other serious offense;
6.3.4 Abusive use of drugs or alcohol by Bentley;
6.3.5 Any fraud, embezzlement or misappropriation by Bentley of the
"assets" of the Company. For the purposes of this provision, the Parties
acknowledge that "asset" includes, but is not limited to the "Confidential
Information" (as defined in Section 7 of this Agreement); or
6.3.6 The willful and significant failure by Bentley to perform
duties and obligations as set forth in this Agreement, resulting in substantial
damage to the Company, but not encompassing illness, physical or mental
incapacity.
In the event that Bentley's employment is terminated by the Company for
Cause, the
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date of employment termination will be as specified in a notice to Bentley from
the Company, and Bentley will cease to have any authority to act on behalf of
the Company as of such date. The Company will pay Bentley the Base Salary and
any Bonus Compensation due him as of such date, and all benefits provided by the
Company to Bentley will cease as of such date except as otherwise required by
law. In such event, the Company will not be required to pay Bentley the Deferred
Compensation.
6.4 Termination by the Company for Death or Disability. The Parties
agree that Bentley's employment will terminate upon Bentley's death or
Disability. The term "Disability" shall be defined as Bentley's inability,
through physical or mental illness or other cause, to perform the majority of
his usual duties for a period of at least three (3) continuous months. If
Bentley's employment is terminated due to Bentley's death or Disability, the
Company will pay Bentley the Deferred Compensation.
6.5 Good Reason. Bentley may terminate his employment for Good Reason
("Good Reason") upon sixty (60) days' notice to the Company if (i) Bentley's
duties are materially diminished or altered so as to be inconsistent with
Bentley's position, authority or responsibilities as the Chief Financial Officer
and Secretary of the Company; (ii) any change of either of Bentley's two titles;
(iii) any substantial adverse change in Bentley's position, authority or
responsibilities as the Chief Financial Officer and Secretary; (iv) the material
failure by the Company to comply with the terms of this Agreement; (v) the
Company requires Bentley to be based or perform services at any location more
than fifty (50) miles from New York, NY (except normal travel requirements
associated with Bentley's position and titles); or (vi) Bentley's Base Salary is
materially diminished. In the event Bentley's employment relationship with the
Company is terminated for "Good Reason," the Company will pay Bentley the
Deferred Compensation. In the event that Bentley shall in good faith give a
"Notice of Termination," as hereinafter defined in Section 6.7 hereof, for Good
Reason and it shall thereafter be determined that Good Reason did not exist, the
employment of Bentley shall, unless the Company and Bentley shall otherwise
mutually agree, be deemed to have terminated, at the date of the giving of such
purported Notice of Termination. In such event Bentley shall be deemed to have
elected to voluntarily resign and shall be entitled to receive only those
payments and benefits which he would have been entitled to receive at such date
under Section 6.1 of this Agreement.
6.6 Change of Control. Provided that the Company is a public company,
Bentley may terminate this Agreement upon thirty (30) days' notice to the
Company at any time within the one hundred eighty (180) day period following the
date of the occurrence of a "Change of Control." For the purposes of this
Agreement, a "Change of Control" shall be deemed to have occurred if: the
Company has a net worth of at least one million ($1,000,000) dollars (as
reflected on any quarterly or annual financial statement), and either (i) a
third person, including an entity or a "group" as defined in Article 13(d) or
14(d) of the Securities Exchange Act of 1934, as amended (other than an entity
or "group" which includes Bentley), becomes the beneficial owner of shares of
the Company having thirty (30%) percent or more of the total number of votes
that may be cast for the election of directors of the Company in the year 2000
and thereafter; or (ii) as the result of, or in connection with, any cash tender
or exchange offer, merger of other business combination, sale of assets or
contested election, or any combination of the foregoing transactions (a
"Transaction"), the persons who were directors of the Company before the
Transaction shall cease to constitute a majority of the Board of the Company or
any successor to the Company. In the event Bentley's employment relationship
with the Company is terminated for a Change of Control, the Company will pay
Bentley the Deferred Compensation.
6.7 Notice of Termination. Any termination by the Company for Cause, or
by
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Bentley for Good Reason shall be communicated by Notice of Termination to the
other Party hereto given in accordance with Section 18 hereof. For purposes of
this Agreement, a "Notice of Termination" means a written notice which (i)
indicates the specific termination provision in this Agreement relied upon, (ii)
sets forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Bentley's employment under the provision so indicated
and (iii) if the termination date is other than the date of receipt of such
notice, specifies the termination date of this Agreement which date shall be in
accordance with the specific termination provision of this Agreement relied
upon.
6.8 Obligations of the Company Upon Certain Terminations. In the event
that Bentley's employment with the Company is terminated pursuant to Sections
6.2, 6.4, 6.5 and 6.6 of this Agreement, all Options granted to Bentley by the
Company shall immediately vest upon such termination and remain exercisable
until the scheduled expiration date of each such Option. The Options shall be
subject to the provisions of the specific option agreement currently in effect
with regard to each Option grant, provided that, to the extent the provisions of
the option agreements are inconsistent with this Section 6.8.1, the Section
shall control.
6.9 Survival of Agreement Upon Termination. In the event that Bentley's
employment is terminated pursuant to any provision set forth in this Section 6,
the rights and obligations of the Parties which are set forth in Sections 7
through 17 of this Agreement shall survive the employment termination for a
period from the date of such employment termination through the third (3rd)
anniversary of such date.
7 Confidential Information. Bentley hereby agrees and acknowledges that
the following information and materials, whether in written, oral, magnetic,
photographic, optical or other form and whether now existing or developed or
created during the period of Bentley's employment or engagement with the
Company, excepting information obtained by Bentley from general or public
sources, are proprietary to the Company and are highly confidential in nature
(the "Confidential Information"):
7.1 Business Records, Marketing Plans and Customer Information. All
books, records, documents, memoranda and materials, and the information
contained therein directly relating to the business and finances of the Company
including, but not limited to: (i) marketing and development plans, forecasts,
forecast assumptions, forecast volumes, future plans and potential strategies of
the Company; (ii) cost objectives, pricing policies and procedures, quoting
policies and procedures, and unpublished price lists; (iii) licensing policies,
strategies and techniques; (iv) customer lists, names of past, present and
prospective customers and their representatives; (v) data and other business
information about or provided by past, present and prospective customers; (vi)
names of past, present and prospective vendors and their representatives, data
and other Information about or provided by past, present and prospective
vendors; (vii) purchasing information, orders, invoices, xxxxxxxx, and payment
of xxxxxxxx; (viii) past, present and prospective licenses and licensees, the
terms and conditions of any licenses or prospective licenses, contracts or
prospective contracts; (ix) types of products, supplies, materials and services
purchased, leased, licensed and/or sold by the Company; (x) past, present and
future research and development arrangements; (xi) customer service information;
(xii) joint ventures, mergers and/or acquisitions; (xiii) the Company personnel
policies and procedures, the Company personnel files, and the compensation of
officers, directors and employees of the Company; and (xiv) all other
confidential business records and trade secrets of the Company.
7.2 Technology and Manufacturing Procedures. All books, records,
documents, memoranda and materials, and the information contained therein,
relating to the technology of
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the Company (whether or not patentable, whether or not protected by copyright,
whether developed by or for the Company) including, but not limited to: (i)
ideas and concepts for existing and new products, processes and services; (ii)
specifications for products, equipment and processes, whether technical or
financial; (iii) manufacturing and performance specifications and procedures;
(iv) engineering drawings, flow charts, and graphs; (v) technical, research and
engineering data; (vi) formulations, materials, and material specifications;
(vii) laboratory studies and benchmark tests; (viii) laboratory notebooks; (ix)
plant layout and equipment; (x) manuals, including service manuals and operation
manuals; (xi) quality assurance policies, procedures and specifications; (xii)
validation studies; and (xiii) all other know-how, methodology, procedures,
techniques and trade secrets related to the research, engineering and
development affairs of the Company.
7.3 Third Party Information. Any and all other information and
materials in the Company's possession or under its control from any other person
or entity which the Company is obligated to treat as confidential or proprietary
("Third Party Information").
7.4 Not Generally Known. Any and all Confidential Information not
generally known to the public or within the industries or trades in which the
Company competes.
8 General Skills and Knowledge. The general skills and experience gained
by Bentley during Bentley's employment with the Company, and information
publicly available or generally known within the industries or trades in which
the Company competes, is not considered Confidential Information.
9 Bentley's Obligations as to Confidential Information and Materials.
During Bentley's employment by the Company, Bentley will have access to
Confidential Information and will occupy a position of trust and confidence with
respect to the Company's affairs and business. Bentley agrees to take the
following steps to preserve the confidential and proprietary nature of the
Confidential Information:
9.1 Non-Disclosure. During and for a period of three (3) years after
Bentley's employment with the Company, Bentley will not use, disclose or
otherwise permit any person or entity access to any of the Confidential
Information other than as required in the performance of Bentley's duties with
the Company.
9.2 Prevent Disclosure. Bentley will take all reasonable precautions to
prevent disclosure of the Confidential Information in accordance with the
Company's reasonable instructions to Bentley.
9.3 Return all Materials. Upon termination of Bentley's employment with
the Company, for any reason whatsoever, Bentley will deliver to the Company all
tangible materials embodying the Confidential Information, including, without
limitation, any documentation, records, listings, notes, data, sketches,
drawings, memoranda, models, accounts, reference materials, samples,
machine-readable media and equipment which in any way relate to the Confidential
Information.
10 Ideas and Inventions. Bentley agrees that all right, title and interest
in or to any and all Inventions are the property of the Company. For the
purposes of this Agreement, "Inventions" shall mean all ideas, concepts,
know-how, techniques, processes, methods, inventions, discoveries, developments,
innovations and improvements (i) conceived or made by Bentley, whether alone or
with others, in the course of Bentley's employment by the Company, or (ii)
conceived or made by Bentley, whether alone or with others, in the course of
Bentley's employment, but which reach fruition within the period from the date
of termination of Bentley's
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employment through the second (2nd) anniversary of such date, and which either
(a) involve or are reasonably related to the business of the Company or to the
Company's actual or demonstrably anticipated research or development; or (b)
incorporate or are derived from, in whole or in part, any of the Confidential
Information. Bentley agrees to promptly disclose all Inventions to the Company,
and to provide all assistance reasonably requested by the Company in the
preservation of its interests in the Inventions, such as by executing documents,
testifying, etc. Bentley agrees to execute, acknowledge and deliver any
instruments confirming the complete ownership by the Company of such Inventions.
Such assistance shall be provided at the Company's expense without any
additional compensation to Bentley.
11 Post-Employment Procedures. Bentley agrees that, upon the termination
of his employment with the Company, he will (i) participate in good faith in the
Company's exit interview process; and (ii) enter into an appropriate Employment
Termination Agreement, in which, among other things, Bentley will represent to
the Company that he has fully complied with the terms of this Agreement and that
he will fulfill the then-executory obligations contained in this Agreement.
12 Copyrights. Bentley agrees that any work prepared for the Company which
is protected under United States Copyright laws or under the universal Copyright
Convention, the Berne Copyright convention and/or the Buenos Aires Copyright
Convention shall be a work made for hire and ownership of all copyrights
(including all renewals and extensions) therein shall vest in the Company. In
the event any such work is deemed not to be a work made for hire for any reason,
Bentley hereby grants, transfers and assigns all right, title and interest in
such work and all copyrights in such work and all renewals and extensions
thereof to the Company, and agrees to provide all assistance reasonably
requested by the Company in the establishment, preservation and enforcement of
its copyright in such work, such assistance to be provided at the Company's
expense but without any additional compensation to Bentley. Bentley hereby
agrees to and does hereby waive all moral rights with respect to the work
developed or produced hereunder, including, without limitation any and all
rights of identification of authorship and any and all rights of approval,
restriction, or limitation on use or subsequent modifications.
13 Conflicting Obligations and Rights. Before (i) performing any
obligations Bentley may have to preserve the confidentiality of another's
proprietary information or materials, or (ii) exercising any rights Bentley may
claim to any patent or copyrights trade secrets, or other discoveries,
inventions, ideas, know-how, techniques methods, processes or other proprietary
information or materials before performing that work, Bentley shall inform the
Company in writing of any apparent conflict between Bentley's work for the
Company and such other obligations and/or rights. In the absence of such written
notice, the Company may conclude that no such conflict exists and Bentley agrees
thereafter to make no such claim against the Company. The Company shall hold
such disclosures by Bentley in strict confidence.
14 Restrictive Covenants.
14.1 Bentley acknowledges that (i) the Company's business is all
aspects of business-to-business electronic commerce, but not limited to,
building, owning and operating electronic commerce networks; and providing
systems integration and consulting services relating thereto, and that (ii)
fulfillment of the obligations hereunder will result in Bentley becoming
familiar with the business affairs of the Company and any present or future
parent, subsidiary and/or affiliate.
14.2 Covenant Not to Compete. In consideration for the Compensation,
and as a condition to the performance by the Company of all obligations under
this Agreement, Bentley
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agrees that during the Initial Employment Term or any Succeeding Employment
Terms of this Agreement and for the period from the date of termination of
Bentley's employment pursuant to either Section 6.1 or 6.3 hereof through the
second (2nd) anniversary of such date, Bentley shall not directly or indirectly
through any other person, firm or corporation compete with or be engaged in the
same business or "participate in" any other business or organization which
during such period competes with or is engaged in the same business as the
Company. The term "participate in" shall mean: "directly or indirectly, for his
own benefit or for, with, or through any other person, firm, or corporation,
own, manage, operate, control, loan money to, or participate in the ownership,
management, operation, or control of, or be connected as a director, officer,
employee, partner, consultant, agent, independent contractor, or otherwise with,
or acquiesce in the use of his name." Notwithstanding the foregoing, it shall
not be a breach of the provisions of this Section 14 if, after the term of this
Agreement, Bentley is a passive investor in any publicly held entity and Bentley
owns three (3%) percent or less of the equity interests therein.
14.3 Restrictive Covenants Necessary and Reasonable. Bentley agrees
that the provisions of this Section 14 are necessary and reasonable to protect
the Company in the conduct of its business. If any restriction contained in this
Section 14 shall be deemed to be invalid, illegal, or unenforceable by reason of
the extent, duration or geographical scope thereof, or otherwise, then the court
making such determination shall have the right to reduce such extent, duration,
geographical scope, or other provisions hereof and in its reduced form such
restriction shall then be enforceable in the manner contemplated hereby.
15 Injunctive Relief. Bentley, recognizing that irreparable injury shall
result to the Company in the event of Bentley's breach of the terms and
conditions of this Agreement, agrees that in the event of his breach or
threatened breach, the Company shall be entitled to injunctive relief
restraining Bentley, and any and all persons or entities acting for or with him,
from such breach or threatened breach. Nothing herein contained, however, shall
be construed as prohibiting the Company from pursuing any other remedies
available to it by reason of such breach or threatened breach.
16 Indemnification.
16.1 To the full extent allowed by law, the Company shall hold harmless
and indemnify Bentley, his executors, administrators or assigns, against any and
all judgments, penalties (including excise and similar taxes), fines,
settlements and reasonable expenses (including attorneys' fees) actually
incurred by Bentley (net of any related insurance proceeds or other amounts
received by Bentley or paid by or on behalf of the Company on Bentley's behalf
in compensation of such judgments, penalties, fines, settlements or expenses) in
connection with any threatened, actual or completed action, suit or proceeding,
whether civil, criminal, arbitral, administrative or investigative, or any
appeal in such action, suit or proceeding, to which Bentley was, is or is
threatened to be made a named defendant or respondent (a "Proceeding"), because
Bentley is or was a director or officer of the Company, or was serving at the
request of the Company as a director, officer, partner, venturer, proprietor,
trustee, employee, agent or similar functionary (an "Affiliate Executive") of
another corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise (each, a "Company Affiliate"). Upon
authorization of indemnification of Bentley by the Board in accordance with the
applicable provisions of the Delaware General Corporation Law (the "DGCL"),
Bentley shall be presumed to be entitled to such indemnification under this
Agreement upon submission of a Claim (as hereinafter defined). Thereafter, the
Company shall have the burden of proof to overcome the presumption that Bentley
is so entitled. Such
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presumption shall only be overcome by a judgment or other final adjudication,
after all appeals and all time for appeals have expired ("Final Determination"),
adverse to Bentley establishing that such indemnification is not permitted
hereunder or by law. An actual determination by the Company (including its
Board, legal counsel, or its stockholders) that Bentley has not met the
applicable standard of conduct for indemnification shall not be a defense to the
action or create a presumption that Bentley has not met the applicable standard
of conduct. The purchase, establishment or maintenance of any Indemnification
Arrangement shall not in any way diminish, restrict, limit or affect the rights
and obligations of the Company or of Bentley under this Agreement except as
expressly provided herein, and the execution and delivery of this Agreement by
the Company and Bentley shall not in any way diminish, restrict, limit or affect
Bentley's right to indemnification from the Company or any other Party or
Parties under any other indemnification arrangement, the Certificate of
Incorporation or Bylaws of the Company, or the DGCL.
16.2 Subject only to the provisions of this Section 16.2, as long as
Bentley shall continue to serve as a director and/or officer of the Company (or
shall continue at the request of the Company to serve as an Affiliate Executive)
and, thereafter, as long as Bentley shall be subject to any possible Proceeding
by reason of the fact that Bentley was or is a director and/or officer of the
Company (or served in any of said other capacities), the Company shall, unless
no such policies are available in any market, purchase and maintain in effect
for the benefit of Bentley one or more valid, binding and enforceable policies
(the "Insurance Policies") of directors' and officers' liability insurance ("D&O
Insurance") providing adequate liability coverage for Bentley's acts as a
director and/or officer of the Company or as an Affiliate Executive. The Company
may promptly notify Bentley of any lapse, amendment or failure to renew said
policy or policies or any provision thereof relating to the extent or nature of
coverage provided thereunder. In the event the Company does not purchase and
maintain in effect said policy or policies of D&O Insurance pursuant to the
provisions of this Section 16.2, the Company shall, to the full extent permitted
by law, in addition to and not in limitation of the other rights granted Bentley
under this Agreement, hold harmless and indemnify Bentley to the full extent of
coverage which would otherwise have been provided for the benefit of Bentley
pursuant to the Insurance Policies.
16.3 Bentley shall have the right to receive from the Company on
demand, or at his Option to have the Company pay promptly on his behalf, in
advance of a Final Determination of a Proceeding all expenses payable by the
Company pursuant to the terms of this Agreement as corresponding amounts are
expended or incurred by Bentley in connection with such Proceeding or otherwise
expended or incurred by Bentley (such amounts so expended or incurred being
referred to as "Advanced Amounts"). In making any claim for payment by the
Company of any expenses, including any Advanced Amount, pursuant to this
Agreement, Bentley shall submit to the Company a written request for payment (a
"Claim"), which includes a schedule setting forth in reasonable detail the
dollar amount expended (or incurred or expected to be expended or incurred).
Each item on such schedule shall be supported by the xxxx, agreement or other
documentation relating thereto, a copy of which shall be appended to the
schedule as an exhibit. Where Bentley is requesting Advanced Amounts, Bentley
must also provide (i) written affirmation of such Bentley's good faith belief
that he has met the standard of conduct required by law for indemnification, and
(ii) a written undertaking to repay such Advanced Amounts if a Final
Determination is made that Bentley is not entitled to indemnification hereunder.
16.4 The Company shall not be liable under this Agreement to make any payment in
connection with any claim made against Bentley for an accounting of profits made
from the
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purchase or sale by Bentley of securities of the Company within the meaning of
Section 16(b) of the Exchange Act or similar provisions of any state statutory
law or common law.
16.5 All agreements and obligations of the Company contained herein
shall continue during the period Bentley is a director and/or officer of the
Company (or is serving at the request of the Company as an Affiliate Executive)
and shall continue thereafter so long as Bentley shall be subject to any
possible Proceeding by reason of the fact that Bentley was a director or officer
of the Company or was serving as such an Affiliate Executive.
16.6 Promptly after receipt by Bentley of notice of the commencement of
any Proceeding, Bentley shall, if a claim in respect thereof is to be made
against the Company under this Agreement, notify the Company of the commencement
thereof, but failure to so notify the Company will not relieve the Company from
any liability which it may have to Bentley. With respect to any such Proceeding:
(i) the Company shall be entitled to participate therein at its own expense;
(ii) except with prior written consent of Bentley, the Company shall not be
entitled to assume the defense of any Proceeding; and (iii) the Company shall
not settle any Proceeding in any manner which would impose any penalty or
limitation on Bentley without Bentley's prior written consent.
17 Dispute Resolution. The Company and Bentley agree that any dispute or
controversy arising between any of the Parties to this Agreement, or any person
or entity in privity therewith, out of the transactions effected and
relationships created in connection herewith, including any dispute or
controversy involving the formation, terms or construction of this Agreement,
regardless of kind or character, will be resolved through binding arbitration
held in New York, NY. The only disputes not subject to mandatory, binding
arbitration are requests for injunctive relief. With respect to the arbitration
of any dispute or controversy, each Party understands that: (i) arbitration is
final and binding on the Parties; (ii) each Party is waiving its right to seek
certain remedies in court, including to right to a jury trial; (iii) discovery
in arbitration is different and more limited than discovery in litigation; and
(iv) an arbitrators' award need not include factual findings or legal reasoning,
and any Party's right to appeal or to seek modification of a ruling by the
arbitrator is strictly limited.
17.1 Each Party to this Agreement will submit any dispute or
controversy to arbitration before the American Arbitration Association ("AAA")
within five (5) days after receiving a written request to do so from the other
Party. If any Party fails to submit a dispute or controversy to arbitration as
requested, then the requesting Party may commence the arbitration proceeding.
The Federal Arbitration Act will govern the proceeding and all issues raised by
this Agreement to be arbitrated. Each Party to this Agreement will be bound by
the determination of an arbitration panel of three members empaneled by the AAA
to adjudicate the dispute. Judgment on any arbitration award may be entered in
any court of competent jurisdiction.
17.2 Any Party to this Agreement may bring an action including a
summary or expedited proceeding of any such dispute or controversy in a court of
competent jurisdiction and, further, may seek provision or ancillary remedies,
including temporary or injunctive relief in connection with such dispute or
controversy in a court of competent jurisdiction, provided that the dispute or
controversy is ultimately resolved through binding arbitration conducted in
accordance with the terms and conditions of Section 17. If any Party institutes
legal proceedings in an effort to resist arbitration and is unsuccessful in
doing so, the prevailing Party is entitled to recover, from the losing Party,
its legal fees and out-of-pocket expenses incurred in connection with the
defense of such legal proceedings.
18 Miscellaneous.
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18.1 Notices. Any and all notices, demands, requests or other
communication required or permitted by this Agreement or by law to be served on,
given to, or delivered to any Party hereto by any other Party to this Agreement
shall be in writing and shall be deemed duly served, given, or delivered when
personally delivered to the Party to be notified, or in lieu of such personal
delivery, when deposited in the United States mail, registered or certified
mail, return receipt requested, or when confirmed as received if delivered by
overnight courier, addressed to the to the Party to be notified, at the address
of the Company at its principal office, as first set forth above, or to Bentley
at the address as first set forth above. The Company or Bentley may change the
address in the manner required by law for purposes of this paragraph by giving
notice of the change, in the manner required by this paragraph, to the
respective Parties.
18.2 Amendment. This Agreement may not be modified, changed, amended,
or altered except in writing signed by Bentley or his duly authorized
representative, and by a member of the Board.
18.3 Governing Law. This Agreement shall be interpreted in accordance
with the laws of the State of New York. It shall inure to the benefit of and be
binding upon the Company, and its successors and assigns.
18.4 Attorney's Fees. Should any litigation or arbitration be commenced
between the Parties to this Agreement concerning any provision of this
Agreement, the expense of all attorneys' fees and other costs incurred in
connection therewith shall be paid by the losing Party.
18.5 Severability. Should any provision or portion of this Agreement be
held unenforceable or invalid for any reason, the remaining provisions and
portions of this Agreement shall be unaffected by such holding.
18.6 Entire Agreement. This Agreement constitutes the sole and only
agreement of the Parties hereto respecting the subject matter hereof. Any prior
agreements, promises, negotiations, or representations concerning its subject
matter not expressly set forth in this Agreement, are of no force and effect.
18.7 Counterparts. This Agreement and any certificates made pursuant
hereto, may be executed in any number of counterparts and when so executed all
of such counterparts shall constitute a single instrument binding upon all
Parties hereto notwithstanding the fact that all Parties are not signatory to
the original or to the same counterpart.
18.8 Section Headings. The Article and Section headings used in this
Agreement are for reference purposes only, and should not be used in construing
this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
day and year set forth below.
eB2B Commerce, Inc
By:_____________________ By:_________________________
Xxxxxx Xxxxxxx
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Date:_____________________ Date:_____________________
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