EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement"), dated as of January ____, 2002
(the "Effective Date") by and between Artemis International Solutions
Corporation (the "Company," "Artemis" or the "Employer") and XXXXXXX XXXXXX (the
"Employee").
WHEREAS, the Company desires to employ the Employee as the
President and Chief Executive Officer of the Company; and
WHEREAS, the Employee desires to accept such employment by the
Company, on the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Employee hereby agree as
follows:
Section 1. Duties.
Employer agrees to employ Employee, and Employee agrees to be so
employed, as President and Chief Executive Officer, reporting directly to the
Board of Directors of the Company (the "Board"), commencing on the Effective
Date and continuing unless and until terminated as set forth herein. Employee
shall be responsible for performing the customary duties as are appropriate to
Employee's position. Employee agrees to perform Employee's duties to the best of
his abilities and to devote all of his professional time, attention and energy
to the business of Employer; provided, however, that Employee may (i) engage in
activities in connection with charitable or civic activities; and (ii) serve as
an executor, trustee or in other similar fiduciary capacity, if in each case,
such activities do not interfere with Employee's services hereunder.
Section 2. Compensation.
(a) Salary. During each year of the Agreement,
Employer shall pay to Employee base salary at the rate of $275,000.00 per annum,
less all applicable federal, state and local withholding taxes payable in
accordance with Employer's standard payroll policies the "Base Salary"). The
Base Salary shall be reviewed at least annually during the term of this
Agreement by the Compensation Committee of the Board, and may be increased in
the sole discretion of Employer.
(b) Incentive Compensation. Employee shall be eligible
to receive an annual bonus based on a bonus target of $175,000.00 for fiscal
year 2002 and mutually agreed targets for future fiscal years, based upon the
Company's achievement of economic performance criteria. The bonus for fiscal
year 2002 will be calculated and payable based on the targets and schedule
information shown on Attachment 1 hereto. Notwithstanding the foregoing, in the
event
the budgeted economic performance of the Company is materially altered due to
any acquisitions or divestitures by the Company during fiscal year 2002, the
criteria for bonus payout will be adjusted equitably by the Compensation
Committee of the Board to take into account the effect of such acquisitions
and/or divestitures.
(c) Options. The Company shall grant Employee on or as
soon as practicable after the Effective Date (the "Initial Grant"), options to
purchase, in the aggregate, [6,250,000] shares of common stock of the Company
(the "Common Stock"). In addition to the Initial Grant, the Company shall grant
to Employee additional options to purchase [3,125,000] shares of Common Stock
(the "Bonus Grants" and, together with the Initial Grant and any other options
granted to Employee during the term of this Agreement, the "Options") on or
about each of the first two anniversaries of the Effective Date, or as soon
thereafter as the satisfaction of the condition in the next sentence has been
reasonably satisfied. Each Bonus Grant shall only be granted to Employee if,
during the calendar year preceding the date on which such grant would otherwise
be made, the Company achieved its revenue and profit budget as approved by the
Board. The exercise price for each Option shall be no less than the fair market
value of a share of Common Stock on the date of grant, determined in accordance
with the Company's 2000 Stock Option Plan (the "Option Plan"). A portion of the
Options shall qualify for federal income tax purposes as "incentive stock
options" (the number of options that will qualify as incentive stock options
shall be the maximum number permitted under the terms of the Option Plan), and
the remainder shall not qualify for federal tax purposes as incentive stock
options. Written option agreements between the Company and the Employee (the
"Option Agreements") shall be prepared and delivered by the Company to the
Employee, which Option Agreements shall contain all of the terms and conditions
of the Options. The Options shall vest over three years, with 1/3 of such amount
vesting on each of the first three anniversaries of the date of grant. Further,
during the term of this Agreement, Employer, in its sole discretion, may grant
additional options to purchase common stock of the Company to Employee. All of
Employee's Options shall be subject to the terms and conditions of the Company's
2000 Stock Option Plan, as such plan may be amended from time to time, and any
agreements evidencing such Options. If, after the Effective Date, the Common
Stock is changed by reason of a stock split, reverse stock split, stock dividend
or recapitalization, or converted into or exchanged for other securities as a
result of a merger, consolidation or reorganization (a "Recapitalization"), the
numbers of shares subject to the Initial Grant and the Bonus Grants (in each
case if not yet granted) shall be adjusted or converted by the same factor or
into the same securities as a like number of outstanding shares of Common Stock
would have been adjusted as a result of such Recapitalization.
Section 3. Benefits; Expense Reimbursement.
During the term of this Agreement, Employee shall be eligible to
participate in any generally available group insurance, accident, sickness and
hospitalization insurance, and any other similar employee benefit plans and
programs maintained by Employer, subject in each case to the generally
applicable terms and conditions of the applicable plan or program. Employee
shall be provided a leased car or a car allowance with a per annum cost to the
Company not to
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exceed $12,000 (provided that Employee shall not be entitled to any other
mileage or other car expense reimbursement). Employee further shall be entitled
to reimbursement by Employer for all direct out-of-pocket expenditures made by
him on Employer's behalf in the performance of his services under this
Agreement, subject to any reasonable recordkeeping, reporting and other
requirements imposed from time to time by Employer.
Section 4. Employment Termination.
(a) Termination by Employer for Cause. Notwithstanding
anything to the contrary herein contained, Employer may terminate immediately
the employment of Employee without notice and without pay in lieu of notice:
(i) if Employee commits an act of theft, fraud or
material dishonesty or misconduct involving the property or affairs of
Employer or the carrying out of Employee's duties;
(ii) if Employee commits a material breach or
material non-observance of any of the terms or conditions of this
Agreement; provided, however, that, if such breach or non-observance is
capable of cure, Employee is given written notice identifying any such
breach or non-observance with particularity and (A) fails to remedy the
same within thirty (30) days of receipt of such notice, or (B) fails to
commence such cure within such thirty (30) day period and to continue
to effect such cure thereafter provided that any cure period lasting
longer than ten (30) days shall only apply if such breach or
non-observance is capable of cure within a reasonable time of such
notice;
(iii) if Employee is convicted of a felony;
(iv) if Employee refuses or fails to follow any
lawful directive related to the Employer's business issued by
Employer's Board of Directors; provided, however, that, if such refusal
or failure is capable of cure, Employee is given written notice
identifying any such refusal or failure with particularity and (A)
fails to remedy the same within ten (10) days of receipt of such
notice, or (B) fails to commence such cure within such ten (10) day
period and to continue to effect such cure thereafter provided that any
cure period lasting longer than ten (10) days shall only apply if such
refusal or failure is capable of cure within a reasonable time of such
notice;
(v) if Employee or any member of his family makes
any personal profit arising out of or in connection with a transaction
to which Employer or any of its subsidiaries or affiliates is a party
without making disclosure to and obtaining prior written consent of
Employer;
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(vi) if Employee habitually fails to perform or
performs his duties or responsibilities hereunder incompetently in any
material respect, or if Employee is inexcusably or repeatedly absent
from work or if Employee is absent for a prolonged period of time
(other than as a result of, or in connection with, a disability or a
legally protected leave) (collectively "Non-Performance"); provided,
however, that, if such Non-Performance is capable of cure, Employee is
given written notice identifying any such breach or non-observance with
particularity and (A) fails to remedy the same within thirty (30) days
of receipt of such notice, or (B) fails to commence such cure within
such thirty (30) day period and to continue to effect such cure
thereafter provided that any cure period lasting longer than ten (30)
days shall only apply if such Non-Performance is capable of cure within
a reasonable time of such notice; or
provided, however, that with respect to Subsections (a)(ii), (iv) and (vi), the
Employer shall only be required to provide notice and opportunity to cure on one
(1) occasion.
Upon the termination of Employee's employment pursuant to this
Subsection (a), the employment of Employee hereunder shall be wholly terminated.
Upon any such termination, Employee shall have no claim against Employer in
respect of his employment for damages or otherwise except in respect of payment
of Base Salary earned, due and owing and unused vacation time to the date of
termination. Further, following any termination for Cause, Employee shall
forfeit all of Employee's Options.
(b) Termination by Employer Without Cause.
Notwithstanding anything herein to the contrary, Employer may terminate
Employee's employment hereunder at any time, for any reason or no reason, on not
less than fifteen (15) days' prior written notice, or with fifteen (15) days'
pay in lieu of such notice. In the event of termination either pursuant to this
Subsection (b), or if Employee resigns for Good Reason as defined in Section
4(d)(ii) below, Employee will be entitled to Employee's continued Base Salary
for a period of one (1) year at the rate in effect on the date of Employee's
termination and to any bonus earned but not yet paid; provided, however, that
Employee's right to receive the salary continuation payments provided for in
this Section 4(b) shall be conditioned upon continued compliance with Employee's
obligations under the provisions of this Agreement that survive such
termination.
(c) Termination by Employer Due to Death or
Disability. The employment of Employee shall, at the option of Employer,
terminate immediately in the event of his death or permanent disability, in
which case notice in writing from Employer shall be sent to Employee or his
legal representative. In the event of termination under this Subsection (c), in
addition to any disability benefit coverage to which he may be entitled under
any disability insurance programs maintained by Employer in which he is a
participant, Employee will be paid an amount equal to the difference between (i)
six (6) months salary at Employee's Base Salary rate as in effect on the date of
the termination under this Subsection (c) and (ii) the amount of disability
benefits for a six-month period payable to Employee under Employer's long-term
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disability program in which he is a participant. Except as provided in the
preceding sentence, Employee shall be entitled to no additional compensation
under this Agreement following the date of termination under this Subsection
(c), other than Base Salary and bonus earned but not paid, and unused vacation
time accrued, through the date of termination. For purposes of this Agreement, a
permanent disability shall mean an illness, disease, mental or physical
disability or other causes beyond Employee's control which makes Employee
incapable of discharging his duties or obligations hereunder, or causes Employee
to fail in the performance of his duties hereunder, for six (6) consecutive
months, as determined in good faith by the Board based on a report of a
physician selected in good faith by the Board.
(d) Termination by Employee's Resignation. (i) Except
as provided in subparagraph (ii) below, upon termination of Employee's
employment due to Employee's resignation, Employee shall have no claim against
Employer in respect of his employment for damages or otherwise except in respect
of payment of Base Salary earned, due and owing and unused vacation time to the
date of termination.
(ii) For purposes of this Employment Agreement,
"Good Reason" shall mean that Employee's title has been changed to a title of
lesser authority or Employee's duties or responsibilities within Company have
been materially reduced. Employee shall have the right to terminate his
employment for Good Reason under this Agreement upon not less than fifteen (15)
days prior written notice, which notice must be given within thirty (30) days
after the occurrence of the event giving rise to such right to terminate,
provided that Company shall have the right to restore Employee to his title and
position prior to such event within ten (10) days after such notice is given. If
Employee is not restored to his prior title and position within ten (10) days
after such notice is given, his resignation under this subparagraph shall be
treated as a termination by Company without cause, consistent with Section 4(b)
above.
Section 5. Non-Solicitation.
In consideration of the compensation and other benefits to be provided
to Employee hereunder, Employee shall not, directly or indirectly, for any
reason whatsoever, during the term of this Agreement and for a period of one
year following the termination of this Agreement:
(a) solicit or induce, or attempt to solicit or
induce, employees of, consultants to, or independent contractors of, the Company
or its subsidiaries to terminate their employment, engagement or affiliation
with the Company or in any way interfere with the relationship between the
Company or any of its subsidiaries, on the one hand, and any such employee of,
consultant to, or independent contractor of the Company or any of its
subsidiaries, on the other hand;
(b) knowingly employ or retain for the benefit of
a party other than the Company, any such employee of, consultant to, or
independent contractor of the Company or any of its subsidiaries during a period
of three months after the termination of such employee's,
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consultant's or independent contractor's employment, engagement or affiliation
with the Company or any of its subsidiaries unless such retainer is not
competitive, and does not interfere with, the simultaneous retention of such
consultant or independent contractor by the Company; or
(c) induce customers or vendors of the Company, or
any independent knowledge workers or other information technology professionals,
or end user organizations that have a business relationship with the Company, to
alter or terminate their business relationship with the Company or any of its
subsidiaries.
Section 6. Successors and Assigns.
This Agreement and all of the rights and obligations hereunder shall be
binding upon Employee and Employer and their respective successors and assigns.
Employer will require any successor (whether by purchase, merger, consolidation,
operation of law or otherwise) expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that Employer would be
required to perform it if no such succession or assignment had taken place.
Effective upon such assumption, and consummation of the underlying transaction,
Employer shall have no further obligation or liability under or with respect to
this Agreement.
Section 7. No Third Party Beneficiary.
This Agreement is not intended and shall not be construed to confer any
rights or remedies hereunder upon any Person, other than the parties hereto or
their permitted assigns. "Person" shall mean an individual, corporation,
partnership, limited liability company, limited liability partnership,
association, trust or other unincorporated organization or entity.
Section 8. Notices.
Unless otherwise provided herein, any notice, exercise of rights or
other communication required or permitted to be given hereunder shall be in
writing and shall be given by overnight delivery service such as Federal
Express, telecopy (or like transmission) or personal delivery against receipt,
or mailed by registered or certified mail (return receipt requested), to the
party to whom it is given at such party's address set forth below such party's
name on the signature page or such other address as such party may hereafter
specify by notice to the other party hereto. Any notice or other communication
shall be deemed to have been given as of the date so personally delivered or
transmitted by telecopy or like transmission or on the next business day when
sent by overnight delivery service.
Section 9. Amendment.
This Agreement may be amended, modified, superseded or canceled, and
the terms and covenants hereof may be waived, only by a written instrument
executed by both of the parties
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hereto, or in the case of a waiver, by the party waiving compliance. The failure
of either party at any time or times to require performance of any provision
hereof shall in no manner affect the right at a later time to enforce the same.
Section 10. Binding Effect.
This Agreement is not assignable by Employee. None of Employee's rights
under this Agreement shall be subject to any encumbrances or the claims of
Employee's creditors. This Agreement shall be binding upon and inure to the
benefit of Employer and any successor organization which shall succeed to
Employer by merger or consolidation or operation of law, or by acquisition of
all or substantially all of the assets of Employer (provided that a successor by
way of acquisition of assets shall have undertaken in writing to assume the
obligations of Employer hereunder).
Section 11. Governing Law; Dispute Resolution.
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Colorado, without regard to its
conflict of laws provisions.
The parties agree that binding arbitration shall be the sole and
exclusive means of resolving any and all disputes, claims or controversies
whatsoever arising out of or relating to this Agreement, including arbitrability
of claims under this Agreement, (collectively referred to herein as "Disputes").
Any and all such Disputes shall be submitted to a single arbitrator
selected from a panel provided by the American Arbitration Association comprised
of labor arbitrators who are members of the National Academy of Arbitrators,
located in Orange County, California. Any decision and/or award resulting from
arbitration pursuant to this provision shall be final and binding. The
prevailing party in arbitration shall be entitled to reimbursement for its
expenses, including costs and reasonable attorneys' fees. The parties further
agree that judgment upon any award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. Employee agrees to provide written notice
of any such demand for arbitration to the attention of Company's General Counsel
clearly labeled "Demand for Arbitration," no later than sixty (60) days from the
date he becomes aware or are provided notice of the occurrence giving rise to
the claim. Employee's failure to provide such timely notice shall constitute a
full and complete waiver of any such related claim. Company agrees to provide
Employee written notice of any such demand for arbitration clearly labeled
"Demand for Arbitration," no later than sixty (60) days from the date Company
becomes aware or is provided notice of the occurrence giving rise to the claim.
Company's failure to provide such timely notice shall constitute a full and
complete waiver of any such related claim.
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Section 12. Severability.
If any provision of this Agreement shall for any reason be held
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof shall not be affected or impaired thereby and
such remaining provisions of this Agreement shall remain in full force and
effect. Moreover, if any one or more of the provisions of this Agreement shall
be held to be excessively broad as to duration, activity or subject, such
provisions shall be construed by limiting and reducing them so as to be
enforceable to the maximum extent allowable by applicable law. To the extent
permitted by applicable law, each party hereto waives any provision of law that
renders any provision of this Agreement invalid, illegal or unenforceable in any
way.
Section 13. Execution in Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original and all of which shall constitute one
and the same instrument.
Section 14. Entire Agreement.
This Agreement sets forth the entire agreement with respect to the
subject matter hereof, and supersedes all prior agreements and any other
agreement between the parties and understandings, both written and oral, between
the parties with respect to the subject matter hereof.
Section 15. Titles and Headings.
Titles and headings to Sections herein are for purposes of reference
only, and shall in no way limit, define or otherwise affect the meaning or
interpretation of any of the provisions of this Agreement.
Section 16. Conflicts of Interest; Representations and
Warranties.
Employee specifically covenants, warrants and represents to Employer
that he has the full, complete and entire right and authority to enter into this
Agreement, that he has no agreement, duty, commitment or responsibility or
obligation of any kind or nature whatsoever with any corporation, partnership,
firm, company, joint venture or other Person which would conflict in any manner
whatsoever with any of his duties, obligations or responsibilities to Employer
pursuant to this Agreement or which could interfere with Employee's performance
under this Agreement, that he is not in possession of any document or other
tangible property of any other Person of a confidential or proprietary nature
which would conflict in any manner whatsoever with any of his duties,
obligations or responsibilities to Employer pursuant to Employee's Agreement and
Employee's performance of his obligations to Employer during the term of this
Agreement will not breach any agreement by which Employee is bound not to
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disclose any proprietary information, and that he is fully ready, willing and
able to perform each and all of his duties, obligations and responsibilities to
Employer pursuant to this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
XXXXXXX XXXXXX
---------------------------------------
Name:
Address:
Facsimile:
ARTEMIS INTERNATIONAL SOLUTIONS
CORPORATION
By:
------------------------------------
Name:
Title:
Address: Artemis International Solutions
Corporation
Attn: Secretary
0000 Xxxxxxx Xxxx
Xxxxxxx XX 00000
Facsimile: 000-000-0000
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ATTACHMENT 1
INCENTIVE PLAN
PRESIDENT AND CEO
For fiscal year 2002, Employee has the opportunity to achieve an annual bonus of
$175,000. Bonus will be weighted to reflect the percentage of field margin and
revenue produced per quarter. Twenty percent (20%) of the bonus will be based
upon achievement of the worldwide gross revenue targets and eighty percent (80%)
upon achievement of the operating profit/field margin targets established by the
Board of Directors of the Company for fiscal year 2002. Bonus will be based upon
achievement of the targets as shown in the final budget approved by the Board.
Bonuses shall be payable only for calendar quarters in which Employee is
employed by the Company at the end of the quarter.
Incentive compensation for subsequent years will be mutually agreed upon by the
CEO and the Board of Directors.
Bonus will be paid quarterly based on performance, and will be paid within 30
days after the close of each fiscal quarter. Bonus will be paid based on the
percentage of the revenue or profit targets produced in each quarter, and
scheduled targets are shown below.
REVENUE -TARGET $35,000 ANNUALLY
QUARTER BONUS TARGET YTD BONUS TARGET
Q1 $8,050 $ 8,050
Q2 $8,750 $16,800
Q3 $8,400 $25,200
Q4 $9,800 $35,000
PROFIT/FIELD MARGIN - TARGET $140,000 ANNUALLY
QUARTER BONUS TARGET YTD BONUS TARGET
Q1 $0 $0
Q2 $33,600 $33,600
Q3 $14,000 $47,600
Q4 $92,400 $140,000
No incentive payment will be paid if results are below 80% of the established
target.
Bonus payable upon achievement of targets within the below ranges shall be
pro-rated on a straight line basis. Bonus amounts for the first three quarters
of the fiscal year will be paid at a maximum of 100% in order to avoid excessive
up front payment. In Q4, cumulative performance in excess of 120% will be paid
at 140% multiplier.
PERFORMANCE % PAYMENT %
>120 140
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120>X>110 120
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110>X>100 100
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100>X>90 80
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90>X>80 60
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