EXHIBIT 10.29
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), dated as of Aug. 13,1999, is
entered into by Atrieva Corporation (the "Employer"), a Delaware corporation,
and Xxxx Xxxxx ("Employee").
1. BACKGROUND
In consideration of the promises herein and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged, Employer and
Employee hereby agree as follows:
2. EMPLOYMENT
Employee shall be the Chief Financial Officer of the Atrieva Corporation
with a start date of Aug. 23, 1999 subject to the approval by the Employer's
Board of Directors. Employee shall at all times report to, and his business
activities shall be subject to the direction and control of, the Chief Executive
Officer.
3. TERM
This Agreement shall become effective as of the date of this Agreement and
shall terminate in accordance with the provisions of paragraph 5 below.
4. COMPENSATION
4.1 Salary
During the term of this Agreement Employer agrees to pay or cause to be paid
to Employee, and Employee agrees to accept in exchange for the services rendered
hereunder by him, a salary of $10,833.33 before all legally required payroll
deductions. Such salary shall be paid in substantially equal monthly
installments, on monthly paydays that are consistent with the payroll schedule
used for other employees of Employer.
4.2 Performance Bonus
In addition to the annual salary described in subparagraph 4.1 above,
Employee shall be entitled to receive a Bonus of up to $5,000.00. quarterly,
said Bonus to be paid in a timely fashion upon the completion of each calendar
quarter, the Bonus will be based upon objectives determined and agreed upon by
the CEO. Said objectives will be defined in writing no later than 60 days after
Employees
CONFIDENTIAL TREATMENT **Confidential treatment has been
HAS BEEN REQUESTED FOR requested with respect to the
CERTAIN PORTIONS OF THIS information contained within the
DOCUMENT "[**]" markings. Such marked portions
have been omitted from this filing and
have been filed separately with the
Securities and Exchange Commission
signing of this agreement. All legally required payroll deductions shall Be
taken from the Employee's Performance Bonus to arrive at his net payable
Performance Bonus.
4.3 Stock Subscription Agreement
In addition, the Employee and Employer shall enter into a stock subscription
agreement allowing the Employee to purchase 318,718 shares of the Employer's
common stock. The said stock shall be purchased with a note, (due 5 years from
the date of the note) at a simple interest rate of 6% payable annually. The
stock price will be the fair market value as determined by the Employer's Board
of Directors at the same board meeting that this agreement is ratified. The
Employer shall have a repurchase right for the stock at the aforementioned stock
price, which shall reduce from the Employee start date proportionately by month
after a 12-month cliff, over a four year period.
4.4 Employee Benefits
During the term of this Agreement, Employee will be entitled to participate
in such fringe benefit programs as may be provided from time to time by Employer
to its employees generally. Employee's participation in all such fringe benefit
programs shall be subject to and in accordance with all applicable eligibility
and other requirements of those programs, including, without limitation, the
terms of any applicable employee benefits plans.
5. TERMINATION
Employment of Employee pursuant to this Agreement may be terminated as follows:
5.1. By Employer
With or without cause or for no cause (as defined in subparagraph 5.4
below), Employer may terminate the employment of Employee at any time during the
term of this Agreement upon giving Notice of Termination (as defined in
subparagraph 5.5 below).
5.2 By Employee
Employee may terminate his employment at any time, for any reason, upon
giving Notice of Termination.
5.3 Automatic Termination
This Agreement and Employee's employment hereunder shall terminate
automatically upon the death or Total Disability of Employee. The term "Total
Disability" as used herein shall mean Employee's inability to perform the
essential
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functions of Employer's Chief Financial Officer for a period or periods
aggregating 60 calendar days in any 12 month period as a result of physical or
mental illness, loss of legal capacity or any other case beyond Employee's
control, unless Employee is granted a leave of absence by Employer's Chief
Executive Officer. Employee and Employer hereby acknowledge that Employee's
ability to perform the essential functions of Employees Chief Financial Officer
is of the essence of this Agreement. Termination hereunder shall be deemed to be
effective (a) at the end of the calendar month in which Employee's death occurs
or (b) immediately upon a determination by Employees Chief Executive Officer of
Employee's Total Disability.
5.4 Cause
Wherever reference is made in this Agreement to termination being with or
without Cause, "Cause" is limited to the occurrence of one or more of the
following events:
(a) Failure or refusal to carry out the lawful duties of Employer's Chief
Financial Officer or any directions of the Employer, which directions are
reasonably consistent with the duties herein set forth to be performed by
Employee;
(b) Violation by Employee of a state or federal criminal law involving the
commission of any crime against Employer or any felony;
(c) Current use by Employee of illegal substances at work which impairs
Employee's performance of duties; intoxication at work which impairs
Employee's performance of duties; deception, fraud, misrepresentation or
dishonesty by Employee; any incident materially compromising Employee's
reputation or ability to represent Employer with the public; any breach of
Employee's duty of loyalty to Employer; any act or omission by Employee
which substantially impairs Employer's business, good will or reputation;
unacceptable performance, as determined in the sole and absolute discretion
of Employer's Chief Executive Officer, or any other serious misconduct; or
(d) Any other material violation of any provision of this Agreement.
5.5 Notice
The term "Notice of Termination" shaft mean at least five days' written
notice of termination of Employee's employment, during which period Employee's
employment and performance of services will continue; provided, however, that
Employer may, upon notice to Employee and without reducing Employee's
compensation during such period, excuse Employee from any or all of his duties
during such period. The effective date of the termination of Employee's
employment hereunder shall be the date on which such five-day period expires.
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6. TERMINATION PAYMENTS
In the event of termination of Employee's employment hereunder, all
compensation set forth in this Agreement shall terminate except as specifically
provided in this paragraph 6.
6.1 Termination by Employer
If Employer terminates Employee's employment without Cause (as defined in
subparagraph 5.4 above), Employee shall be entitled to receive (a) continuation
of his salary for a six month period following the effective date of the
termination of Employee's employment so long as Employee remains unemployed; (b)
the elimination of the cliff period of the employee's stock vesting and
continued vesting of stock for a six month period. (c) any unpaid salary that
has accrued for services already performed as of the effective date of the
termination of Employee's employment. If Employee is terminated by Employer for
Cause, Employee shall not be entitled to any payments hereunder, other than
those set forth in clause (c) of this subparagraph 6.1.
6.2 Termination by Employer after Change of Control
If subsequent to a change in control of the Company which results in a
liquidity event to the company's shareholders, the Employee is terminated
without cause, has a reduction in total cash compensation (salary plus bonus),
experiences a significant change in responsibility or is permanently relocated
to an office outside of San Francisco County, or the acquiring company fails to
assume the stock subscription agreement or substitute a similar agreement or
other consideration, in addition to the termination provisions set forth above,
the Company shall forfeit 50% of the remaining repurchase rights of the
Employee's stock.
6.3 Termination by Employee
In the case of the termination of Employee's employment by Employee,
Employee shall not be entitled to any payments hereunder, other than those set
forth in clause (c) of subparagraph 6.1 hereof.
6.4 Termination by Automatic Termination
In the case of the automatic termination of Employee's employment because
of Employee's death or Total Disability, Employee shall not be entitled to any
payments hereunder, other than those set forth in clauses (c) of subparagraph
6.1 hereof.
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6.5 Payment Schedule
All payments under this paragraph 6 shall be made to Employee at the same
interval as payments of salary were made to Employee immediately prior to
termination and the legally required payroll deductions will be made.
7. REPRESENTATIONS AND WARRANTIES
In order to induce Employer to enter into this Agreement, Employee
represents and warrants to Employer that neither the execution nor the
performance of this Agreement by Employee will violate or conflict in any way
with any other agreement by which Employee may be bound, or with any other
duties imposed upon Employee by corporate or other statutory or common law.
8. NOTICE AND CURE OF BREACH
Whenever a breach of this Agreement by either party is relied upon as
justification for any action taken by the other party pursuant to any provision
of this Agreement other than pursuant to the definition of "Cause" set forth in
subparagraph 5.4 hereof, before such action is taken, the party asserting the
breach of this Agreement shall give the other party at least ten days' prior
written notice of the existence and the nature of such breach before taking
further action hereunder and shall give the party purportedly in breach of this
Agreement the opportunity to correct such breach during the ten-day period.
9. FORM OF NOTICE
All notices given hereunder shall be given in writing, shall specifically
refer to this Agreement and shall be personally delivered or sent by telecopy or
other electronic facsimile transmission or by registered or certified mail,
return receipt requested, at the address set forth below or at such other
address as may hereafter be designated by notice given in compliance with the
terms hereof.
If to Employee: Xxxx Xxxxx
[***]
If to Employer: Atrieva Corporation
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Copy to: Xxxxx X. XxXxxx
Xxxxxxx Coie LLP
0000 Xxxxx Xxxxxx, 00xx Xxxxx
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Xxxxxxx, XX 00000
Fax: (000) 000-0000
If notice is mailed, such notice shall be effective upon mailing, or if notice
is personally delivered or sent by telecopy or other electronic facsimile
transmission, it shall be effective upon receipt.
10. ASSIGNMENT
This Agreement is personal to Employee and shall not be assignable by
Employee. Employer may assign its rights hereunder to (a) any corporation
resulting from any merger, consolidation or other reorganization to which
Employer is a party or (b) any corporation, partnership, association or other
person to which Employer may transfer all or substantially all of the assets and
business of Employer existing at such time. All of the terms and provisions of
this Agreement shall be binding upon and shall inure to the benefit of and be
enforceable by the parties hereto and their respective successors and permitted
assigns.
11. WAIVERS
No delay or failure by any party hereto in exercising, protecting or
enforcing any of its rights, titles, interests or remedies hereunder, and no
course of dealing or performance with respect thereto, shall constitute a waiver
thereof. The express waiver by a party hereto of any right, title, interest or
remedy in a particular instance or circumstance shall not constitute a waiver
thereof in any other instance or circumstance. All rights and remedies shall be
cumulative and not exclusive of any other rights or remedies.
12. ARBITRATION
With the exception of any claims for which the applicable law precludes a
predispute agreement to binding arbitration, any controversies or claims arising
out of or relating to this Agreement, or to the employment relationship between
Employee and Employer, shall be settled by final and binding arbitration
administered by the American Arbitration Association (the "AAA") under its then-
current National Rules for the Resolution of Employment Disputes. A single
arbitrator shall be selected and the arbitration shall be held in Seattle,
Washington. The parties shall equally share the fees and expenses of the
arbitrator and the administrative expenses of the AAA. Judgment upon the
arbitrator's award may be entered in any court having jurisdiction and, for this
purpose, Employee irrevocably consents to the jurisdiction of the United States
District Court for the Western District of Washington and the courts of the
State of Washington, with venue in King County.
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13. AMENDMENTS IN WRITING
No amendment, modification, waiver, termination or discharge of any
provision of this Agreement, nor consent to any departure therefrom by either
party hereto, shall in any event be effective unless the same shall be in
writing, specifically identifying this Agreement and the provision intended to
be amended, modified, waived, terminated or discharged and signed by Employer
and Employee, and each such amendment, modification, waiver, termination or
discharge shall be effective only in the specific instance and for the specific
purpose for which given. No provision of this Agreement shall be varied,
contradicted or explained by any oral agreement, course of dealing or
performance or any other matter not set forth in an agreement in writing and
signed by Employer and Employee.
14. APPLICABLE LAW
This Agreement shall in all respects, including all matters of
construction, validity and performance, be governed by, and interpreted,
construed and enforced in accordance with, the laws of the state of Washington,
without regard to any rules governing conflicts of laws.
15. SEVERABILITY
If any provision of this Agreement shall be held invalid, illegal or
unenforceable in any jurisdiction, for any reason, including, without
limitation, the duration of such provision, its geographical scope or the extent
of the activities prohibited or required by it, then, to the full extent
permitted by law (a) all other provisions hereof shall remain in full force and
effect in such jurisdiction and shall liberally construed in order to carry out
the intent of the parties hereto as nearly as may be possible, (b) such
invalidity, illegality or unenforceability shall not affect the validity,
legality or enforceability of any other provision hereof, and (c) any court or
arbitrator having jurisdiction thereover shall have the power to reform such
provision to the extent necessary for such provision to be enforceable under
applicable law.
16. HEADINGS
All headings used herein are for convenience only and shall not in any way
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
17. ENTIRE AGREEMENT
This Agreement and a Stock Subscription Agreement between the parties to
this Agreement and dated as of the date of this Agreement constitute the entire
agreement between Employer and Employee with respect to the subject matter
hereof,
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and all prior or contemporaneous oral or written communications, understandings
or agreements between Employer and Employee with respect to such subject matter
are hereby superseded and nullified in their entireties.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement on
the dates set forth below.
FOR EMPLOYER: FOR EMPLOYEE:
By: /s/ [ILLEGIBLE]^^ /s/ Xxx Xxxxx
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of Atrieva Corporation Xxxx Xxxxx
Its President & CEO
Date: 8/20/99 Date: 8/20/99
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