EXHIBIT 10.17
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of April 27, 2000, by and between
Xxxxx Xxxx ("Executive") and iAsiaWorks, Inc., a California corporation (the
"Company").
1. Duties and Scope of Employment.
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(a) Position and Duties. For the term of his employment under
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this Agreement, the Company agrees to employ Executive in the position of Vice
President of Sales. Executive shall report to the Company's U.S. President, and
his position will be based at the Company's corporate headquarters in San Mateo,
California. Executive's duties will include: developing, hiring and training
employees of a nationwide U.S. sales organization focused on selling, hosting,
colocation and managed services into Asia Pacific markets.
(b) Obligations to the Company. During the term of his
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employment, Executive shall devote his full business efforts and time to the
Company; provided, however, that this shall not preclude Executive from serving
as a member of the board of directors of up to three other companies to the
extent such other companies do not compete with the Company and to the extent
such service does not materially impact the ability of Executive to fulfill his
obligations to the Company. Executive shall comply with the Company's policies
and rules, as they may be in effect from time to time during the term of his
employment.
(c) No Conflicting Obligations. Executive represents and
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warrants to the Company that he is under no obligations or commitments, whether
contractual or otherwise, that are inconsistent with his obligations under this
Agreement. Executive represents and warrants that he will not use or disclose,
in connection with his employment by the Company, any trade secrets or other
proprietary information or intellectual property in which Executive or any other
person has any right, title or interest and that his employment by the Company
as contemplated by this Agreement will not infringe or violate the rights of any
other person or entity. Executive represents and warrants to the Company that he
has returned all property and confidential information belonging to any prior
employers.
(d) Commencement Date. The employment of Executive by the
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Company shall be governed by this agreement as of the date first written above
(the "Effective Date").
(e) Term of Employment.
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(i) Basic Rule. The Company agrees to continue Executive's
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employment, and Executive agrees to remain in employment with the Company, from
the Commencement Date set forth in Section 1(d) until the date when Executive's
employment terminates pursuant to Subsection (ii) below (the "Employment
Period"). Executive's employment with the Company shall be "at will," which
means that either Executive or the Company may terminate Executive's employment
at any time, for any reason, with or Without
Cause. Any contrary representations, which may have been made to Executive shall
be superseded by this Agreement. This Agreement shall constitute the full and
complete agreement between Executive and the Company of the "at will" nature of
Executive's employment, which may only be changed in an express written
agreement signed by Executive and a duly authorized officer of the Company.
(ii) Termination. The Company or Executive may terminate
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Executive's employment at any time for any reason (or no reason), and with
"Cause" or "Without Cause," by giving the other party fourteen (14) days' notice
in writing. Executive's employment shall terminate automatically in the event of
his death.
2. Cash and Incentive Compensation.
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(a) Salary. The Company shall pay Executive a Base Salary of
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$100,000, less applicable withholdings and deductions in accordance with the
Company's payroll policies. (The compensation specified in this Subsection (a),
together with any increases in such compensation that the Company may grant from
time to time, are referred to in this Agreement as "Base Salary.")
(b) Stock Option. The unvested shares of Executive's stock
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option granted by the Company under the Stock Option Plan, dated _____1995 (the
"Plan") shall continue to vest pursuant to the Plan.
(c) Commissions. Executive shall be eligible to earn commission
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payments on a monthly basis. The amount of commission will be based on the
revenue generated by Executive and his sales force, and will be comprised of a
cash and stock component, pursuant to the Commission Earnings Quota Schedule
attached hereto.
(d) Effect of Termination.
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(i) Termination Following Change of Control. If, within one
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year following a "Change of Control," Executive resigns for "Good Reason" or the
Company terminates Executive's employment "Without Cause," then Executive shall
receive immediate vesting of the unvested shares of Executive's option, with the
Company's repurchase right lapsing as to such shares.
(ii) Termination Outside a Change of Control. If the Company
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terminates Executive's employment "Without Cause" outside a Change of Control,
then Executive shall receive a lump sum severance payment equal to four (4)
months of his Base Salary.
(i) Definitions.
(a) "Change of Control." For all purposes under this
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Agreement, "Change of Control" shall mean (i) a merger or consolidation in which
securities possessing at least fifty percent (50%) of the total combined voting
power of the Corporation's outstanding securities are transferred to a person or
persons different from the persons holding those securities immediately prior to
such transaction, or (ii) the sale, transfer or other disposition
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of all or substantially all of the Corporation's assets in complete liquidation
or dissolution of the Corporation.
(b) "Good Reason." For all purposes under this
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Agreement, "Good Reason" for Executive's resignation will exist if he resigns
within sixty (60) days of any of the following events: (i) any reduction in his
Base Salary; (ii) any material reduction in his benefits; or (iii) an increase
in the quota requirements, provided such reduction or change is effected by the
Company without his written consent. A resignation by Executive under any other
circumstance or for any other reason will be a resignation without "Good
Reason."
(c) Termination for "Cause." For all purposes under
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this Agreement, a termination for "Cause" shall mean a good faith determination
by the Company's Board of Directors that Executive's employment be terminated
for any of the following reasons: (i) willful misconduct which materially
damages the Company; (ii) willful failure to attempt to substantially perform
your duties with the Company after a written demand for such performance is
delivered to Executive by the Board of Directors or by the CEO, which
specifically identifies the manner in which the Board of Directors or CEO
believes Executive has not substantially performed his duties, and which
Executive does not remedy within thirty (30) days after receipt of such demand;
(iii) misappropriation of the assets of the Company; or (iv) conviction of, or a
plea of "guilty" or "no contest" to a felony under the laws of the United States
or any state thereof. A termination of Executive's employment in any other
circumstance or for any other reason will be a termination "Without Cause."
3. Vacation and Executive Benefits. During the term of his
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employment, Executive shall be eligible for paid vacation, in accordance with
the Company's standard policy for similarly situated employees, as it may be
amended from time to time. During the term of his employment, Executive shall
be eligible to participate in any employee benefit plans maintained by the
Company for similarly situated employees, subject in each case to the generally
applicable terms and conditions of the plan in question and to the
determinations of any person or committee administering such plan.
4. Business Expenses. During the term of his employment, Executive
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shall be authorized to incur necessary and reasonable travel and other business
expenses in connection with his duties hereunder. The Company shall reimburse
Executive for such expenses upon presentation of an itemized account and
appropriate supporting documentation, all in accordance with the Company's
generally applicable policies.
5. Non-Solicitation and Non-Disclosure.
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(a) Non-Solicitation. During the period commencing on the
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date of this Agreement and continuing until the first anniversary of the date
when Executive's employment terminates for any reason, Executive shall not
directly or indirectly, personally or through others, solicit or attempt to
solicit (on Executive's own behalf or on behalf of any other person or entity)
for hire any employee or consultant of the Company or any of the Company's
affiliates.
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(b) Non-Disclosure. As a condition of employment, Executive
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will execute the Company's standard Proprietary Information Agreement, a copy of
which is attached.
3. Legal Fees. The Company will pay Executive's reasonable
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attorneys' fees in connection with negotiating and drafting this Agreement.
4. Successors.
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(a) Company's Successors. This Agreement shall be binding
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upon any successor (whether direct or indirect and whether by purchase, lease,
merger, consolidation, liquidation or otherwise) to all or substantially all of
the Company's business and/or assets. For all purposes under this Agreement, the
term "Company" shall include any successor to the Company's business and/or
assets which becomes bound by this Agreement.
(b) Executive's Successors. This Agreement and all rights
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of Executive hereunder shall inure to the benefit of, and be enforceable by,
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
5. Indemnity. The Company will indemnify and provide a defense to
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Executive to the full extent permitted by law and its bylaws with respect to any
claims arising out of the performance of his duties as an employee, director or
officer of the Company. To the same extent, the Company will pay, and subject to
any legal limitations, advance all expenses, including reasonable attorney fees
and costs of court-approved settlements, actually and necessarily incurred by
Executive in connection with the defense of any action, suit or proceeding and
in connection with any appeal, which has been brought against Executive by
reason of his service as an officer, director or agent of the Company, or his
acceptance of this Agreement or the performance of his duties thereunder. The
Company shall use its best efforts to obtain coverage for Executive under a
liability insurance policy or policies that cover the actions of officers and
directors of the Company.
6. Arbitration. Any controversy between the parties hereto involving
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the construction or application of any terms, covenants or conditions of this
Agreement, or any claims arising out of or relating to this Agreement or the
breach thereof or with your employment with the Company or any termination of
that employment, will be submitted to and settled by final and binding
arbitration in Palo Alto, California, in accordance with the Model Employment
Dispute Resolution Rules of the American Arbitration Association (the "Rules"),
or any other applicable rules of the AAA then in effect. Any arbitrator shall be
selected pursuant to such Rules and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.
7. Miscellaneous Provisions.
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(a) Notice. Notices and all other communications contemplated by
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this Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by overnight courier, U.S. registered
or certified mail, return receipt requested and postage prepaid. Mailed notices
shall be addressed to Executive at the home
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address which he most recently communicated to the Company in writing. In the
case of the Company, mailed notices shall be addressed to its corporate
headquarters, and all notices shall be directed to the attention of its
Secretary.
(b) Modifications and Waivers. No provision of this Agreement
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shall be modified, waived or discharged unless the modification, waiver or
discharge is agreed to in writing and signed by Executive and by an authorized
officer of the Company (other than Executive). No waiver by either party of any
breach of, or of compliance with, any condition or provision of this Agreement
by the other party shall be considered a waiver of any other condition or
provision or of the same condition or provision at another time.
(c) Whole Agreement. No other agreements, representations or
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understandings (whether oral or written) which are not expressly set forth in
this Agreement have been made or entered into by either party with respect to
the subject matter of this Agreement. This Agreement, the Proprietary
Information Agreement, and applicable stock option agreements and stock plans,
contain the entire understanding of the parties with respect to the subject
matter hereof.
(d) Taxes. All payments made under this Agreement shall be
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subject to reduction to reflect taxes or other charges required to be withheld
by law.
(e) Choice of Law. The validity, interpretation, construction
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and performance of this Agreement shall be governed by the laws of the State of
California (except provisions governing the choice of law).
(f) Severability. The invalidity or unenforceability of any
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provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
(g) No Assignment. This Agreement and all rights and obligations
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of Executive hereunder are personal to Executive and may not be transferred or
assigned by Executive at any time. The Company may assign its rights under this
Agreement to any entity that assumes the Company's obligations hereunder in
connection with any sale or transfer of all or a substantial portion of the
Company's assets to such entity.
(h) Headings. The headings of the paragraphs contained in this
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Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of any provision of this Agreement.
(i) Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement,
in the case of the Company by its duly authorized officer, as of the day and
year first above written.
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EXECUTIVE
/s/ Xxxxx Xxxx
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Xxxxx Xxxx
iAsiaworks, Inc.
By: /s/ Xxxxxxxx Xxxxxx
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Title: Chief Financial Officer
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