EXHIBIT 10.6
EMPLOYMENT AGREEMENT
This Agreement, dated as of July 20, 1998, is between XOOM, Inc. ("XOOM"),
and Xxxxxxx Xxxxx ("Xx. Xxxxx"). XOOM and Xx. Xxxxx agree to the following
terms and conditions of employment.
1. Position and Responsibilities. Xx. Xxxxx is employed by XOOM as Vice
President Business Development and agrees to perform all services appropriate to
that position, as well as such other services as may be assigned by XOOM. Xx.
Xxxxx shall devote his best efforts and full-time attention to the performance
of his duties and shall not accept any other employment or engage in any other
business, commercial, or professional activity that is or may be competitive
with XOOM, that might create a conflict of interest with XOOM, or that otherwise
might interfere with the business of XOOM or any affiliate. Xx. Xxxxx may
serve as a director or as a member of the advisory board of any company provided
that he complies with the restrictions set forth in Section 1 and Section 4.
2. Compensation and Benefits. XOOM shall pay Xx. Xxxxx a base salary at the
rate of One hundred twenty thousand dollars ($120,000) per year and a
discretionary bonus of up to Ten Thousand Dollars ($10,000) per quarter. Xx.
Xxxxx will be eligible for an annual review of this agreement no later than
November 30, 1998.
Xx. Xxxxx shall receive benefits from all present and future benefit plans set
forth in XOOM's policies and generally made available to similarly situated
employees (as these policies may be amended). XOOM may, in its sole discretion,
adjust Xx. Xxxxx'x compensation and benefits provided under this Agreement.
3. Termination of Employment.
(a) By Employer Not For Cause. Except as modified in section 3(c), below, at
any time, XOOM may terminate Xx. Xxxxx'x employment for any reason, with
or without Cause, by providing ninety (90) days' advance written notice,
and shall have the option, in its discretion, to terminate Xx. Xxxxx'x
employment at any time prior to the end of such notice period, provided
XOOM pays Xx. Xxxxx an amount equal to the base compensation Xx. Xxxxx
would have earned through the balance of the above notice period plus
benefits, thereafter all of XOOM's obligations under this Agreement shall
cease. In the event that XOOM exercises its right to terminate Xx.
Xxxxx'x employment upon notice under the terms of this subsection, Xx.
Xxxxx shall be immediately entitled to exercise one hundred percent
(100%) of any stock options granted by XOOM that had not previously
vested. If the stock of XOOM or any parent company is publicly traded,
Xx. Xxxxx'x exercise of stock options subject to vesting under this
subsection must be made within four (4) months of the date upon which Xx.
Xxxxx was informed of XOOM's intent to terminate his employment. In the
event XOOM's stock is not publicly traded, Xx. Xxxxx'x exercise of stock
options must be made within twelve (12) months of the date upon which Xx.
Xxxxx was informed of
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XOOM's intent to terminate his employment. XOOM may dismiss Xx. Xxxxx
with or without cause notwithstanding anything to the contrary contained
in or arising from any statements, policies, or practices of XOOM
relating to employment, discipline, or termination.
(b) By Employer For Cause. Except as modified in section 3(c), below, at any
time, XOOM may terminate Xx. Xxxxx for Cause (as defined below). XOOM
shall pay Xx. Xxxxx all compensation then due; thereafter, all of XOOM's
obligations under this Agreement shall cease. "Cause" shall include:
1. unsatisfactory performance, misconduct, failure to follow policies
or procedures, material breach of this Agreement, and excessive
absenteeism. XOOM shall provide at least one appropriate written
warning of specific deficiencies and provide a reasonable period
not to exceed thirty days for Xx. Xxxxx to cure any such
deficiencies.
2. to the extent permitted by law, unavailability for work due to
disability for more than ninety (90) days in any one (1) year
period.
3. Committing a felony, an act of fraud against or the willful
misappropriation of property belonging to XOOM.
4. Conviction in a court of competent jurisdiction of a felony or
misdemeanor which adversely and materially affects the ability of
the executive to perform his duties, obligations and
responsibilities herein or the good name, goodwill or reputation of
XOOM.
(c) By Employer Following Change in Control or Corporate Transaction.
Notwithstanding the foregoing, in the event that Xx. Xxxxx'x employment
is involuntarily terminated by XOOM, or any successor or assign of XOOM,
for any reason, with or without cause (as defined above), following a
Change in Control or Corporate Transaction or the execution of a letter
of intent that, by its terms, ultimately results in a Change in Control
or Corporate Transaction, as those terms are defined in the XOOM, Inc.
1998 Stock Incentive Plan, which is incorporated by reference herein, Xx.
Xxxxx shall be entitled to payment of an amount equal to six months (6)
month's base compensation plus benefits; thereafter, all obligations of
XOOM, or any successor or assign of XOOM, under this Agreement shall
cease. In the event that Xx. Xxxxx'x employment is terminated under the
terms of this subsection, Xx. Xxxxx shall be immediately entitled to
exercise any and all stock options granted by XOOM that had not
previously vested. In the event the company effecting the change in
control or XOOM is publicly traded, any exercise of Xx. Xxxxx'x stock
options subject to vesting under this subsection must be made within four
(4) months of the date upon which Xx. Xxxxx was informed by XOOM, or any
successor or assign of XOOM, of its intent to terminate his employment,
whether such termination is with or without notice. If the company
effecting the change in control or XOOM is not publicly traded, Xx. Xxxxx
may have up to twelve (12) months from the date upon which Xx. Xxxxx was
informed by XOOM, or any successor or assign of XOOM, of its intent to
terminate his employment, to exercise his options subject to vesting
under this subsection.
(d) By Employee. At any time, Xx. Xxxxx may terminate his employment for any
reason, with or without cause, by providing XOOM thirty (30) days'
advance written notice. XOOM shall
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have the option, in its complete discretion, to make Xx. Xxxxx'x
termination effective at any time prior to the end of such notice period,
provided XOOM pays Xx. Xxxxx all compensation due and owing through the
last day actually worked, plus an amount equal to the base salary Xx.
Xxxxx would have earned through the balance of the above notice period,
not to exceed thirty (30) days; thereafter, all of XOOM's obligations
under this Agreement shall cease.
(e) Termination Obligations. Xx. Xxxxx agrees that all property, including
tangible Proprietary Information (as defined below), documents, records,
notes, contracts, and computer-generated materials furnished to or
prepared by Xx. Xxxxx related to his employment, belongs to XOOM and
shall be returned promptly to XOOM upon termination. Xx. Xxxxx'x
obligations under this subsection shall survive the termination of his
employment and the expiration of this Agreement.
4. Proprietary Information. "Proprietary Information" is all information and
any idea pertaining in any manner to the business of XOOM (or any affiliate),
its employees, clients, consultants, or business associates, which was produced
by any employee of XOOM in the course of his or her employment or otherwise
produced or acquired by or on behalf of XOOM. Proprietary Information shall
include, without limitation, trade secrets, product ideas, inventions,
processes, formulas, data, know-how, software and other computer programs,
copyrightable material, marketing plans, strategies, sales, financial reports,
forecasts, and customer lists. All Proprietary Information not generally known
outside of XOOM's organization, and all Proprietary Information so known only
through improper means, shall be deemed "Confidential Information." During his
employment, Xx. Xxxxx shall use Proprietary Information, and shall disclose
Confidential Information, only for the benefit of XOOM and as is necessary to
perform his job responsibilities under this Agreement. Following termination,
Xx. Xxxxx shall not use any Proprietary Information and shall not disclose any
Confidential Information, except with the express written consent of XOOM. By
way of illustration and not in limitation of the foregoing, following
termination, Xx. Xxxxx shall not use any Confidential Information to compete
against XOOM or employ any of its employees. Xx. Xxxxx further agrees that for
one (1) year following termination, he shall not solicit any customer or
employee of XOOM. Xx. Xxxxx'x obligations under this Section shall survive the
termination of his employment and the expiration of this Agreement.
5. Integration and Amendment. This Agreement is intended to be the final,
complete, and exclusive statement of the terms of Xx. Xxxxx'x employment. This
Agreement supersedes all other prior and contemporaneous agreements and
statements, whether written or oral, express or implied, pertaining in any
manner to the employment of Xx. Xxxxx, and it may not be contradicted by
evidence of any prior or contemporaneous statements or agreements. To the
extent that the practices, policies, or procedures of XOOM, now or in the
future, apply to Xx. Xxxxx and are inconsistent with the terms of this
Agreement, the provisions of this Agreement shall control. This Agreement may
not be amended except by a writing signed by each of the parties. Failure to
exercise any right under this Agreement shall not constitute a waiver of such
right.
6. Interpretation. This Agreement shall be governed by and construed in
accordance with the law of the State of California. This Agreement shall be
construed as a whole, according to its
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fair meaning, and not in favor of or against any party. By way of example and
not in limitation, this Agreement shall not be construed in favor of the party
receiving a benefit nor against the party responsible for any particular
language in this Agreement. If a court or arbitrator holds any provision of
this Agreement to be invalid, unenforceable, or void, the remainder of this
Agreement shall remain in full force and effect. Captions are used for
reference purposes only and should be ignored in the interpretation of the
Agreement.
7. Acknowledgment. Xx. Xxxxx acknowledges that he has had the opportunity to
consult legal counsel in regard to this Agreement, that he has read and
understands this Agreement, that he is fully aware of its legal effect, and that
he has entered into it freely and voluntarily and based on his own judgment and
not on any representations or promises other than those contained in this
Agreement.
The parties have duly executed this Agreement as of the date first written
above.
/s/ XXXXXXX XXXXX /s/ XXXXX XXXXX
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By: Xxxxxxx Xxxxx By: Xxxxx Xxxxx
Its: Vice President Business Development Its: Chairman
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