EXHIBIT 10.3
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT, dated as of August 17, 1998, between iXL, Inc., a
Delaware corporation (the "Company"), and Xxxxx Xxxxxxx (the "Executive"). The
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parties hereto agree as follows:
1. Employment.
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(a) Agreement to Employ. Upon the terms and subject to the conditions of
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this Agreement, the Company shall hereby employ the Executive and the Executive
hereby agrees to be employed by the Company.
(b) Term of Employment. Subject to Section 5, the Company shall employ the
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Executive pursuant to the terms hereof for the period commencing on the date
hereof and ending on December 31, 2003, provided that the Executive's employment
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with the Company shall be deemed to be automatically renewed upon the same terms
and conditions for an additional one-year period on each of December 31, 2003
and December 31, 2004 unless either party hereto shall have given the other
party written notice that such party does not intend to renew the Agreement as
of such date at least six months in advance of the date on which this Agreement
would otherwise automatically be renewed. The period during which the Executive
is employed pursuant to this Agreement, including any renewal thereof in
accordance with this Section (1)(b), shall be referred to as the "Employment
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Period."
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2. Position and Duties.
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During the Employment Period, the Executive shall serve as Executive Vice
President for Worldwide Marketing of the Company and the Executive shall have
the duties, responsibilities and obligations customarily assigned to individuals
serving in the position or positions in which the Executive serves hereunder
including, but not limited to, those responsibilities set forth on Exhibit B
hereto. The Executive shall report to Xxxxxxx X. Xxxxxx; all officers and
employees of the Company employed by the Company in a marketing capacity shall
report to the Executive. The Executive shall devote his full time to the
services required of him hereunder, except for vacation time and reasonable
periods of absence due to sickness, personal injury or other disability, and
shall use his best efforts, judgment, skill and energy to perform such services
in a manner consonant with the duties of his position and to improve and advance
the business and interests of the Company.
3. Compensation.
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(a) Salary and Bonus. The Company shall pay the Executive a base salary at
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an annual rate of $250,000. The Company shall pay the Executive such base salary
in equal bi-monthly installments or in such other installments as the parties
may agree. Beginning with the fiscal year ended December 31, 1998 and continuing
until the end of the Employment Period, the Company shall pay the Executive an
annual bonus (the "Bonus"). Such bonus shall be paid within 15 days
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after the delivery of the annual audited financial statements of the Company and
its subsidiaries by the Company's independent accountant. The amount of any such
bonus shall be based upon certain strategic and financial goals which shall be
determined by the Executive and other senior officers of the Company, and shall
be determined by the Board of Directors of IXL Holdings, Inc., with a target
maximum of $50,000 per full fiscal year. The base salary and target bonus of the
Executive shall be reviewed annually, and may be increased from time to time by
the Company to reflect the Executive's performance and the Company's
profitability. Once increased, the base salary may not be decreased and the
target bonus may not be set at less than $50,000 per full fiscal year.
(b) Reimbursement of Relocation Expenses. The Company shall reimburse the
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Executive all reasonable moving and relocation costs associated with the
Executive's relocation from San Francisco, California to Atlanta, Georgia,
including, but not limited to, (i) realtor fees associated with the sale of the
Executive's home in San Francisco, California and (ii) roundtrip airfare as
necessary for the Executive's temporary commute from San Francisco, California
to Atlanta, Georgia through the earlier of (A) the date the Executive relocates
his permanent residence to Atlanta, Georgia, or (B) June 30, 1999. The
Executive shall be solely responsible for all temporary living expenses until
relocated to Atlanta, Georgia.
(c) Stock Options. Upon approval by the Stock Option Committee of the
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Board of Directors, the Executive shall be granted an aggregate of 600,000 ten-
year options to purchase Class B Common Stock, par value $.01 per share, of IXL
Holdings, Inc., as more specifically described on Exhibit A attached hereto.
(d) Stock Purchase. The Executive shall purchase 1,000 shares of the Class
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A Convertible Preferred Stock of IXL Holdings, Inc. for a total purchase price
of $1,000,000.00.
4. Benefits and Vacation. During the Employment Period, the Executive shall be
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eligible to participate in the health, disability and life insurance plans
sponsored or maintained by the Company for the benefit of its senior executive
corporate officers to the extent that the Executive is eligible to participate
in any such plans under the generally applicable provisions thereof. The Company
may, in its discretion, amend or terminate any such plans in accordance with the
terms thereof. During the Employment Period, the Executive shall be entitled to
four weeks of paid vacation annually.
5. Termination of Employment. If the Executive's employment with the Company
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terminates earlier than upon the expiration of the Employment Period, the
Executive shall be entitled to receive the following payments under the
following circumstances:
(a) Death. Upon the death of the Executive, the Executive's spouse, if
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any, or his estate shall receive the Executive's base salary payable in the year
of his death pursuant to Section 3(a) hereof, life insurance benefits and a pro
rata portion of the Executive's Bonus that would have been payable pursuant to
Section 3(b) hereof with respect to the fiscal year in which the Executive died.
Such pro rata portion shall be determined by multiplying (i) the total Bonus
that the Executive would have received in respect of the year of his death by
(ii) the quotient of the number
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of days in such year prior to his death, divided by 365. Such pro rata Bonus
payment will be payable at the same time that the full Bonus would have been
payable to the Executive pursuant to Section 3(b) hereof.
(b) Disability. Upon the Disability of the Executive, he shall receive his
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Earned Salary, any disability benefits payable under any disability program in
which he participates, any other benefits under any benefit plan of the Company
to which he is entitled pursuant to the terms of such plan and a portion of the
Executive's Bonus that would have been payable pursuant to Section 3(b) hereof
with respect to the fiscal year in which the Executive became disabled. Such pro
rata portion shall be determined by multiplying (i) the total Bonus that the
Executive would have received in respect of the year of his Disability by (ii)
the quotient of the number of days in such year prior to his Disability, divided
by 365. Such pro rata Bonus payment will be payable at the same time that the
full Bonus would have been payable to the Executive pursuant to Section 3(b)
hereof.
(c) Termination for Cause or a Resignation Other than for Good Reason. If
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the Executive's employment terminates due to a Termination for Cause or a
Resignation Other than for Good Reason, the Executive shall receive his Earned
Salary and any other benefits under any benefit plan of the Company to which he
is entitled pursuant to the terms of such plan.
(d) Termination Without Cause or Resignation for Good Reason. If the
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Executive's employment terminates due to a Termination Without Cause or a
Resignation for Good Reason, (i) the Executive's entitlement to benefits
pursuant to Section 4 hereof shall continue until the earlier of (A) the date
eighteen months after the termination of Executive's employment, and (B) the
date the Executive begins employment with any other entity (such resulting
period hereinafter referred to as the "Severance Period"); (ii) the vesting of
unvested Stock Options granted to the Executive pursuant to Section 3(d) hereof
shall be immediately accelerated twelve months; provided that all such options
which remain unvested after such acceleration shall terminate; and (iii) the
Executive shall receive severance pay equal to the base salary payable to the
Executive under Section 3 for the Severance Period, plus the pro rata portion of
the Executive's Bonus that would have been payable to the Executive pursuant to
Section 3(b) hereof with respect to the Severance Period; such pro rata Bonus
payment(s) will be payable at the same time that the full Bonus would have been
payable to the Executive pursuant to Section 3(b) hereof. Notwithstanding
anything herein to the contrary, in no event shall the Company be obligated to
pay any amount to the Executive with respect to any period after the Severance
Period.
6. Definitions. For purposes of this Agreement, capitalized terms have the
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following meanings:
"Cause" shall mean a termination by the Company due to (i) the continued
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failure (other than any such failure resulting from incapacity due to reasonably
documented physical or mental illness) by the Executive substantially to perform
his duties, responsibilities or obligations as an officer, director or employee
of the Company or any of its subsidiaries after having been given written notice
of such failure to perform, listing in reasonable specificity such failures, and
after having failed to improve such performance within the time period (which
shall have been a
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reasonable time period) specified in such notice or (ii) the engaging by the
Executive in serious misconduct which is material to the performance by the
Executive of his duties and obligations for the Company, including, without
limitation, gross negligence, dishonesty, willful malfeasance, gross
insubordination or gross misconduct that is materially injurious to the Company
or conviction of a felony or the entering of a plea of nolo contendere to a
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felony.
"Disability" shall mean the Executive's inability for more than six months
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within any 12-month period of performing his duties, responsibilities or
obligations as an officer, director or employee of the Company on a full-time
basis because of a physical, mental or emotional incapacity resulting from
injury, sickness or disease and within 30 days after written notice of
termination has been given to the Executive, the Executive shall not have
returned to the full-time performance of his duties, responsibilities and
obligations. The date of termination in the case of a termination for
"Disability" shall be the last day of the aforementioned 30-day period.
"Earned Salary" means the base salary earned, but unpaid, for services
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rendered to the Company on or prior to the date of disability, resignation or
termination of the Executive's employment, as the case may be. Earned Salary
shall be paid in a single lump sum as soon as practicable, but in no event more
than 30 days following such date.
"Resignation for Good Reason" means a resignation by the Executive as a
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result of any of the following:
(a) a material breach by the Company of its obligations under this
Agreement with respect to the base salary, Bonus, benefits or vacation to which
the Executive is entitled under Sections 3 and 4 hereof: or
(b) the taking of any action by the Company that would substantially
diminish the aggregate value of the benefits provided to the Executive under the
benefit plans of the Company that may be in effect at such time in which he was
participating, other than any such reduction which is (i) required by law, (ii)
implemented in connection with a general concessionary arrangement affecting all
employees or affecting the group of senior corporate executive employees and
station general managers or (iii) generally applicable to all similarly situated
beneficiaries of such plans; or
(c) the material reduction by the Company of the Executive's duties
and positions under this Agreement; or
(d) an express requirement by the Company that the Executive
permanently relocate to any office of the Company not located in the Atlanta,
Georgia metropolitan area.
"Resignation Other than for Good Reason" shall be any resignation other
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than a Resignation with Good Reason.
"Termination for Cause" shall be any termination of the Executive's
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employment by the Company for Cause.
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"Termination Without Cause" shall be any termination of the Executive's
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employment by the Company other than a Termination for Cause.
7. Full Discharge of Company Obligations. The amounts payable to the Executive
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pursuant to Section 5 following termination of his employment shall be in full
and complete discharge of the Executive's rights under this Agreement and any
other claims he may have in respect of his employment by the Company or any of
its subsidiaries other than any claims or rights the Executive may have under
the Stockholders' Agreement with respect to the Company's repurchase of his
equity interests in the Company. Such amounts payable shall constitute
liquidated damages with respect to any and all such rights and claims and, upon
the Executive's receipt of such amounts, the Company shall be released and
discharged from any and all liability to the Executive in connection with this
Agreement or otherwise in connection with the Executive's employment with the
Company and its subsidiaries.
8. Noncompetition and Confidentiality.
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(a) Noncompetition. If the Executive's employment with the Company
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terminates during the Employment Period for any reason (other than due to his
death or Disability), during the one-year period following such termination or
resignation of the Executive (the "Restriction Period"), the Executive shall not
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become associated with any entity, whether as a principal, partner, employee,
consultant or shareholder (other than as a holder of not in excess of 1% of the
outstanding voting shares of any publicly traded company), that is actively
engaged in the business of designing internet web sites and/or facilitating e-
commerce for third-party clients.
(b) Confidentiality. Without the prior written consent of the Company,
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except for disclosures of Confidential Information (as defined below) in the
ordinary course of business that, individually and in the aggregate, are not
materially injurious to the Company or any of its subsidiaries, and except to
the extent required by an order of a court having competent jurisdiction or
under subpoena from an appropriate government agency, the Executive shall not
disclose any trade secrets, customer lists, computer programs, drawings,
designs, marketing or sales plans, management organization information
(including data and other information relating to members of the Board or
management), operating policies or manuals, business plans, financial records or
other financial, commercial, business or technical information relating to the
Company or any of its subsidiaries or information designated as confidential or
proprietary that the Company or any of its subsidiaries may receive belonging to
suppliers, customers or others who do business with the Company or any of its
subsidiaries (collectively, "Confidential Information") to any third person
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unless such Confidential Information has been previously disclosed to the public
by the Company or is in the public domain (other than by reason of the
Executive's breach of this Section 8(b)). In the event the Executive receives an
order of a court or a subpoena requiring the Executive to disclose any
Confidential Information, as described above, the Executive shall promptly
deliver a copy of such order or subpoena to the Company and the Company shall
use its best efforts to assist the Executive in responding thereto.
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(c) Company Property. Promptly following the Executive's termination of
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employment, the Executive shall return to the Company all property of the
Company, and all copies thereof in the Executive's possession or under his
control, including, without limitation, all Confidential Information, in
whatever media.
(d) Nonsolicitation of Employees. During the Employment Period and the
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Restriction Period, the Executive shall not directly or indirectly induce any
employee of the Company or any of its subsidiaries to terminate employment with
such entity, and will not directly or indirectly, either individually or as
owner, agent, employee, consultant or otherwise, employ or offer employment to
any person who is or was employed by the Company or a subsidiary thereof unless
such person shall have ceased to be employed by such entity for a period of at
least six months.
(e) Certain Payments to the Executive during the Restriction Period. If
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the Executive's employment with the Company is terminated due to a Termination
for Cause or a Resignation Other than for Good Reason, then, as consideration
for the covenants set forth in Section 8(a) and Section 8(d), the Company shall
pay the Executive, for the duration of the Restriction Period, the salary he
otherwise would have received under Section 3(a). If the Executive's employment
with the Company is terminated due to a Termination Without Cause or a
Resignation for Good Reason, then, as consideration for the covenants set forth
in Section 8(a) and Section 8(d), the Company shall pay the Executive his salary
and Bonus as set forth in Section 5(d). If the Restriction Period extends beyond
the Employment Period, the Company shall continue to pay the Executive his then
current salary until the end of the Restriction Period. Except in the case of a
Termination Without Cause or such Resignation for Good Reason, the Company may
elect at any time during the Restriction Period upon thirty (30) days prior
written notice to discontinue such salary and Bonus payments, in which event the
Executive shall be released from any further obligation to comply with the
provisions of Sections 8(a) and 8(d) herein. If the Company fails to timely make
any payment due under this Section 8(e) and if such failure continues for ten
(10) business days after notice by the Executive to the Company of such failure,
the Executive shall be released from any further obligation to comply with the
provisions of Sections 8(a) and 8(d) herein.
(f) Injunctive Relief with Respect to Covenants. The Executive
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acknowledges and agrees that the covenants and obligations of the Executive with
respect to noncompetition, nonsolicitation, confidentiality and Company property
relate to special, unique and extraordinary matters and that a violation of any
of the terms of such covenants and obligations will cause the Company and its
subsidiaries irreparable injury for which adequate remedies are not available at
law. Therefore, the Executive agrees that the Company and its subsidiaries shall
be entitled to an injunction, restraining order or such other equitable relief
(without the requirement to post bond) as a court of competent jurisdiction may
deem necessary or appropriate to restrain the Executive from committing any
violation of the covenants and obligations contained in this Section 8. These
injunctive remedies are cumulative and are in addition to any other rights and
remedies the Company or its subsidiaries may have at law or in equity.
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9. Miscellaneous.
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(a) Binding Effect. This Agreement shall be binding on the Company and
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any person or entity which succeeds to the interest of the Company (regardless
of whether such succession occurs by operation of law, by reason of the sale of
all or a portion of the Company's stock or assets or a merger, consolidation or
reorganization involving the Company). This Agreement shall also inure to the
benefit of the Executive's heirs, executors, administrators and legal
representatives.
(b) Assignment. Except as provided under Section 9(a) above, neither this
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Agreement nor any of the rights or obligations hereunder shall be assigned or
delegated by either party hereto without the prior written consent of the other
party.
(c) Entire Agreement. This Agreement supersedes any and all prior
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agreements between the parties hereto, and constitutes the entire agreement
between the parties hereto with respect to the matters referred to herein, and
no other agreement, oral or otherwise, shall be binding between the parties
unless it is in writing and signed by the party against whom enforcement is
sought. There are no promises, representations, inducements or statements
between the parties other than those that are expressly contained herein. The
Executive acknowledges that he is entering into this Agreement of his own free
will and accord, and with no duress, that he has read this Agreement and that he
understands it and its legal consequences. No parol or other evidence may be
admitted to alter, modify or construe this Agreement, which may be changed only
by a writing signed by the parties hereto.
(d) Severability; Reformation. In the event that one or more of the
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provisions of this Agreement shall become invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not be affected thereby. In the event any of
Section 8(a), (b), (c), (d) or (e) is not enforceable in accordance with its
terms, the Executive and the Company agree that such Section, or such portion of
such Section, shall be reformed to make it enforceable in a manner which
provides the Company the maximum rights permitted under applicable law.
(e) Waiver. Waiver by either party hereto of any breach or default by the
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other party of any of the terms of this Agreement shall not operate as a waiver
of any other breach or default, whether similar to or different from the breach
or default waived. No waiver of any provision of this Agreement shall be implied
from any course of dealing between the parties hereto or from any failure by
either party hereto to assert its or his rights hereunder on any occasion or
series of occasions.
(f) Notices. Any notice required or desired to be delivered under this
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Agreement shall be in writing and shall be delivered personally, by courier
service, by registered mail, return receipt requested, or by telecopy and shall
be effective upon dispatch to the party to whom such notice shall be directed,
and shall be addressed as follows (or to such other address as the party
entitled to notice shall hereafter designate in accordance with the terms
hereof):
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If to the Company:
iXL, Inc.
0000 Xxxxx Xxxxxx, XX
Xxxxxxx, XX 00000
Fax: 404/000-0000
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
Xxxxxx & Xxxxxx, P.C.
One Buckhead Plaza
0000 Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Fax: 404/000-0000
with an additional copy to:
Xxxxx & Company
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx XX, Esq.
Fax: 212/000-0000
If to the Executive:
Xxxxx Xxxxxxx
0000 Xxxxxxxxxx Xx.
Xxx Xxxxxxxxx, XX 00000
(g) Amendments. This Agreement may not be altered, modified or amended
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except by a written instrument signed by each of the parties hereto.
(h) Headings. Headings to sections in this Agreement are for the
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convenience of the parties only and are not intended to be part of or to affect
the meaning or interpretation hereof.
(i) Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed an original but both of which together shall constitute
one and the same instrument.
(j) Withholding. Any payments provided for herein shall be reduced by any
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amounts required to be withheld by the Company from time to time under
applicable Federal, state or local income or employment tax laws or similar
statutes or other provisions of law then in effect.
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(k) Governing Law. This Agreement shall be governed by the laws of the
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State of Georgia, without reference to principles of conflicts or choice of law
under which the law of any other jurisdiction would apply.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer and the Executive has hereunto set his hand as of
the day and year first above written.
iXL, INC.
/s/ Xxxxxxx X. Xxxxxx
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By: Xxxxxxx X. Xxxxxx
Title: President
THE EXECUTIVE:
/s/ Xxxxx Xxxxxxx 7-31-98
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Xxxxx Xxxxxxx
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EXHIBIT A
STOCK OPTIONS
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NUMBER OF OPTIONS TO PURCHASE
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EXERCISE PRICE CLASS B COMMON STOCK
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$ 5.00 100,000
$10.00 500,000
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VESTING SCHEDULE
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NUMBER OF
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DATE EXERCISE PRICE OPTIONS VESTED
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Executive's start date: $ 5.00 16,000
$10.00 80,000
The last day of each of the 48 calendar months
immediately following the month of
Executive's start date: $ 5.00 1,750
$10.00 8,750
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EXHIBIT B
RESPONSIBILITIES OF THE EXECUTIVE
Create and refine corporate strategy, competitive positioning, corporate image
and visual style.
Create product definitions, positioning and collateral material for iXL's
productized services (like Pitchman and Siteman); product managers will continue
to report to CTO.
Oversee the Practice Group departments.
Raise iXL's visibility in the client marketplace through press attention,
executive speaking engagements and frugal use of paid channels such as
advertising and trade shows.
Manage all Marketing Communication channels including paper collateral, web
sites, Pitchman and other sales tools.
Select and manage a corporate-wide PR agency and Advertising agency.
create a lead generation, management, measurement and distribution system.
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