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EXHIBIT 10.20
EMPLOYMENT AGREEMENT
This Employment Agreement between Xxxxx X. Xxxxxxxx ("you" or "Employee")
and CyberCash, Inc., a Delaware corporation with offices at 0000 Xxxxxx Xxxxxxx,
Xxxxxx, Xxxxxxxx (with its successors, the "Company") is entered into as of
December 15, 1999 and sets forth the terms and conditions of your employment by
CyberCash.
1. SCOPE
a) You will act as Executive Vice President, Sales of the Company,
and in that capacity you will report directly to the Chief
Executive Officer. You will be responsible for carrying out the
functions normally performed by the most senior sales executive in
a corporation like the Company. From time to time the Chief
Executive Officer may change your title and responsibilities, but
not to a lesser title than Executive Vice President and
responsibilities concomitant with those of a senior executive who
reports directly to the Chief Executive Officer of a corporation
similar to the Company.
b) You agree not to engage in any other employment or activity at any
time during your employment with the Company which materially
interferes with the performance of your duties for the Company.
2. TERM OF EMPLOYMENT
The term of this Employment Agreement shall commence on the date set forth above
and, unless renewed by written agreement, shall terminate on December 31, 2003,
above; provided that, subject to the Company's compliance with its obligations
under Section 3, below either you or the Company may terminate this Agreement
prior to the expiration of its term.
3. COMPENSATION AND BENEFITS
a) Your compensation will consist of the following:
i) An annual base salary of $200,000, to be paid bi-monthly in
arrears into a bank account designated by you. You will be
responsible for the payment of any taxes due. Your base
salary shall be evaluated annually by the Compensation
Committee of the Board of Directors with consideration
given to a salary increase.
ii) You have already been granted certain stock options and
will be considered for the grant of additional options from
time to time in recognition of your achievement.
iii) You will be eligible for bonuses under the Company's
standard bonus plan as in effect from time to time.
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b) The Company shall provide you the following additional benefits:
i) Health insurance benefits for you and your family, in
accordance with the Company's standard health insurance
plan for executives.
ii) Twenty-three days per year of paid vacation.
iii) Reimbursement of pre-approved business expenses.
c) If (a) your employment with the Company is terminated by the
Company other than for cause, or (b) there is a Change of
Responsibilities (as defined below):
i) You will be entitled to severance pay equal to your then
current base salary (without benefits, but not less than
$200,000 per annum) for 12 months, paid in equal monthly
installments, plus a bonus equal to the amount of any
annual bonus you were paid for the calendar year
immediately preceding the termination of your employment or
Change of Responsibilities and an amount equal to the
commissions you earned for the preceding four calendar
quarters. If this calculation is made during 2000, the
commission will be calculated by annualizing the average
commissions you earned during the whole calendar quarters
of 2000 prior to the termination or Change of
Responsibilities. (These payments will be treated as
compensation income for purposes of applicable federal,
state, and local taxes.)
ii) All unvested stock options granted to you by the Company or
its successor shall vest and become immediately exercisable
in full.
iii) The Company will continue for 12 months the same health
(including dental) and disability insurance benefits you
were receiving prior to your termination.
d) For the purposes of this Agreement:
i) Cause for termination shall exist if: (a) you fail or
refuse to perform your duties as Executive Vice President,
Sales (not including a failure to perform due to a
disability entitling you to disability benefits) and your
failure or refusal continues after written notice; (b) you
are convicted for a crime constituting a felony involving
moral turpitude; or (c) you commit a material act of fraud
or dishonesty resulting in substantial harm to the Company.
ii) There would be a Change of Responsibilities if because of
actions of the Chief Executive Officer or the Board of
Directors of the Company you no longer were performing
management functions normally performed by an
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Executive Vice President of a corporation similar to the
Company or were no longer reporting directly to the Chief
Executive Officer of the Company or its successor.
4. CONFIDENTIAL INFORMATION.
a) In the course of your employment, the Company will disclose to you
confidential information concerning, among other things, the
Company's existing and prospective clients, existing and
contemplated products and services, inventions, software, and
other matters and information received from the Company clients,
any affiliated entities of the Company, and other third parties,
which information constitutes valuable assets of the Company
("Confidential Information"). The term "Confidential Information"
shall include all information that is not known by, or generally
available to the public at large and that concerns the business or
affairs of the Company and its affiliated entities, including, but
not limited to, technology, methods of operation, and information
regarding clients of a party hereto. The Company shall have no
obligation to specifically identify any information as
constituting Confidential Information in order for it to be
entitled to protection as such.
b) You will not, at any time during or after your employment, without
the prior written consent of the Company, use any portion of the
Confidential Information for any purpose other than as
contemplated herein, and you agree that:
i) You will hold all Confidential Information in the strictest
confidence, and will exercise at least the same care with
respect thereto as you exercise with respect to your own
proprietary and confidential information, and will not,
without the Company's prior written consent, copy or
disclose any portion thereof to any third party except as
contemplated herein; and
ii) You will not remove or permit to be removed from any
Confidential Information any notice placed thereon by the
Company indicating the confidential nature of, or the
proprietary right of the Company in such items.
c) The foregoing shall not prohibit or limit your use of information
(including, but not limited to, ideas, concepts, know-how,
techniques, and methodologies) which: (i) are already known to
you; (ii) are independently developed by you; (iii) were received
by you on a non-confidential basis, prior to receipt from the
Company, from a third party lawfully possessing and lawfully
entitled to disclose such information; or (iv) becomes part of the
public domain through circumstances unrelated to any breach by you
of this Agreement.
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d) In the event you become aware that any person or entity is taking
or threatens to take any action which would violate any of the
foregoing provisions were that person or entity a party to this
Agreement, you shall promptly and fully advise the Company (with
written confirmation as soon as practicable thereafter) of all
facts known to you concerning such action or threatened action.
You shall not in any way aid, abet or encourage any such action or
threatened action. You agree to cooperate in all reasonable ways
to prevent such action or threatened action, and you agree to do
all reasonable things and cooperate in all reasonable ways as may
be requested by the Company to protect the trade secrets, and
proprietary rights of the Company in and to the Confidential
Information.
5. OWNERSHIP OF WORK.
a) The Company shall own and you hereby assign to the Company all
right, title and interest in any invention, technique, process,
device, discovery, improvement or know-how, patentable or not,
including all trade secrets and copyrights, in and to the
following works created by you during the term of your employment
on the Company's premises or at any other location: (i) works that
relate to or are derived from the actual or anticipated business
of the Company, and (ii) works that result from or are derived
from any services performed by you or, if not actually performed,
services requested by the Company to be so performed (collectively
the "Contract Work"). The Company shall own such Contract Work
even if you create such Contract Work outside normal working hours
and regardless of the ownership of the equipment used to create
such Contract Work. Such Contract Work shall include program codes
and documentation.
b) To the extent that any such Contract Work does not qualify as
works made for hire under U.S. copyright law, you hereby assign to
the Company and agree to assign to the Company, irrevocably and in
perpetuity, any and all right, title and interest that you may
have in and to the Contract Work. Promptly upon the Company's
request, you agree that you will execute any appropriate
assignment document.
c) If you alone or jointly with others make or conceive of any
invention, technique, process, or other know-how, whether
patentable or not, in the course of your employment, which relates
in any manner to the actual or anticipated business of the Company
(collectively, "Inventions"), you hereby assign to the Company
your entire right, title and interest in such Inventions. You will
disclose any such Inventions to an officer of the Company and
will, upon request, promptly sign a specific assignment of title
to the Company, and do anything else reasonably necessary to
enable the Company to secure patent, trade secret or any other
proprietary rights in the United States or foreign countries.
d) You hereby agree, at the Company's request, to assist the Company
and its nominees to secure, maintain, and defend for the Company's
own benefit all copyrights and patents, and other proprietary
rights in the Contract Work in any
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and all countries. Your obligations to assist the Company in
obtaining and enforcing its proprietary rights in the Contract
Work shall continue beyond the termination or expiration of this
Agreement, but the Company shall compensate you for any assistance
rendered after such expiration or termination at a reasonable rate
for time actually spent by you at the Company's request.
e) You understand that you may continue to work on, and retain rights
to, projects of your own interest outside of the Company which do
not in any way compete or conflict with the current or planned
business of the Company provided that (i) they do not fall under
the paragraphs titled "Ownership of Works" above; and (ii) they do
not interfere in any way with your time at work or duties for the
Company. You understand that you are not permitted to engage in
any outside business activities while employed by the Company
which compete with or conflict with the current or planned
business of the Company.
6. EQUITABLE RELIEF.
a) Because any breach by you of the promises set forth in Sections 4
and 5 herein would cause irreparable harm and significant injury
which dollar amount would be difficult to ascertain and which in
fact would not be compensable by money damages alone, you agree
that the Company shall have the right to enforce this Agreement
and any of such provisions by injunction, specific performance or
other equitable relief without prejudice to any other rights and
remedies that the Company may have for breach of this Agreement.
b) You hereby consent to the personal jurisdiction of the U.S.
federal courts in the Commonwealth of Virginia over you in
connection with all disputes regarding this Agreement and agree
that all disputes regarding this Agreement shall be exclusively
settled in those courts.
7. RESTRICTIVE COVENANTS.
a) You further agree that, unless the Company has materially failed
to meet its obligations under this Agreement, during your
employment by the Company and for a period of 12 months (or, if
you were employed by the Company for less than 12 months and you
are not receiving the above described severance pay, for a shorter
period equal to the duration of your employment by the Company)
commencing on the date of termination of your employment with the
Company (the "Termination Date"), you shall not:
i) solicit business or perform work for any of the Company's
clients, or for any of the Company's prospective clients to
whom the Company has made written proposals within six
months prior to the Termination Date, either directly or
indirectly, for the benefit of anyone other than the
Company or participate or assist in any way in the
solicitation of business from or performance of work for
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any such clients as an independent contractor or consultant
to any other entity unless the business being solicited or
the work being performed is not directly competitive with
the services and products provided by the Company to such
clients (the business of the Company is international in
scope, therefore, the restrictions of this paragraph shall
apply worldwide); or
ii) hire any employee of the Company, or knowingly attempt to
induce any employee of the Company to leave the Company's
employ.
b) You acknowledge that (i) the Company is engaged and in the future
will be engaged in the business of providing technology and
services to enable electronic payments (the foregoing, together
with any other businesses that the Company engages from the date
hereof to the date of the termination of this Agreement, being
hereinafter referred to as the "Company Business"); (ii) your
services to the Company have been and will continue to be special
and unique and have immeasurable value to the Company; (iii) your
work for the Company allows you access to trade secrets of and
confidential information concerning the Company; (iv) the Company
Business is national and international in scope; (v) the Company
would not have entered into this Agreement and employed you but
for the agreements and covenants contained in this Agreement; and
(vi) the agreements and covenants contained in this Agreement are
essential to protect the business and goodwill of the Company.
8. GOVERNING LAW AND SEVERABILITY.
This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Virginia. If any provision of this Agreement is for
any reason found by a court of competent jurisdiction to be unenforceable, that
provision will be enforced to the maximum extent permissible, and the remainder
of this Agreement shall continue in full force and effect.
9. NOTICES.
Any notices required or permitted hereunder shall be given to the
appropriate party at the address specified above or at such other address as the
party shall specify in writing. Such notice shall be deemed given upon personal
delivery to the appropriate address or three days after being sent by certified
or registered mail or Federal Express.
10. ENTIRE AGREEMENT AND MODIFICATION.
This Agreement contains the entire agreement between you and the Company
concerning the subject matter hereof and supersedes all prior agreements and
understandings. This Agreement may be modified only by a writing signed by the
parties hereto. If the terms of this offer of employment are acceptable to you,
please sign and return the enclosed copy of this letter, confirming your
agreement with the foregoing.
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Xxxxx X. Xxxxxxxx CyberCash, Inc.
/s/ XXXXX X. XXXXXXXX By: /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
President and Chief Executive Officer
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