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EXHIBIT 10.22
EMPLOYMENT AGREEMENT
(Executive)
This Employment Agreement ("Agreement") is made in Houston, Harris
County, Texas by and between PowerBrief, Inc. (the "Company") and LESLIE
BUTTERFIELD ("Employee") on this 12TH day of APRIL, 2000 (hereinafter
"Effective Date"). Now, in exchange for the mutual covenants and consideration
expressed herein, the sufficiency of which is hereby acknowledged, Company and
Employee agree as follows:
1. Employment. Company is engaged in the business of providing
Internet-based solutions, services and products to clients. Company hereby
employs Employee as provided in this Agreement in the position of VICE
PRESIDENT OF MARKETING. Employee accepts such employment with Company.
2. Term. Employee's employment shall begin on the Effective Date and
shall continue for a three (3) year period, subject to the termination
provisions in Paragraph 10.
3. Duties. Employee's duties shall be those assigned to Employee from
time to time by Company's officers, managers and/or Board of Directors.
Employee agrees that he/she will serve Company faithfully, diligently and to
the best of Employee's ability during the term of employment with Company.
Employee shall devote all of Employee's working time and his/her best efforts
to the performance of Employee's duties and to advance the interests of
Company. Employee agrees to comply with all of Company's policies, practices,
procedures and directives.
4. Compensation and Equity Incentive Plan. Company shall pay to Employee
compensation as outlined on EXHIBIT A to this Agreement. Subject to any
necessary stockholder and/or Board approval, and subject to the terms and
conditions of the Company's 2000 Equity Incentive Plan and the Stock Option
Agreement between the Company and Employee, the Company shall make stock
options available to Employee as outlined on EXHIBIT A. Further, Employee shall
be allowed to participate, on the same basis generally as other similar
employees of Company, in all general employee benefit plans and programs,
including improvements or modifications of the same, which on the Effective
Date or thereafter are made available by Company to all or substantially all of
Company's employees. Company shall not by reason of this provision, however, be
obligated to institute, maintain, or refrain from changing, amending, or
discontinuing, any such employee benefit plan or program, so long as such
actions are similarly applicable to covered employees generally. Employee
agrees that at the termination of his/her employment, Company may deduct from
Employee's final compensation any amounts Employee may owe Company.
5. Conflict of Interest. In acknowledgment of Employee's high fiduciary
duties to the Company, Employee agrees that he/she shall not, acting alone or
in conjunction with others, directly or indirectly, become involved in any
conflict of interest whatsoever, and upon discovery thereof, Employee shall not
allow such conflict to continue. Moreover, Employee agrees that he/she shall
disclose to the Company's President any facts which
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might involve any reasonable possibility of a conflict of interest. It is
agreed that any direct or indirect interest in, connection with, or benefit
from any outside activities, particularly commercial activities, which interest
might in any way adversely affect Company or its clients, involves a possible
conflict of interest. Circumstances in which a conflict of interest on the part
of Employee would or might arise and which must be reported immediately by
Employee to the President of Company, include, but are not limited to, the
following:
(a) Ownership or a material interest in any supplier, client or other
entity with which Company does business;
(b) Acting in any capacity including director, officer, partner,
consultant, employee, distributor, agent or the like for any supplier, client
or other entity with which Company does business;
(c) Acceptance, directly or indirectly, of payments, services or loans
from any supplier, client, or other entity with which Company does business,
including, but not limited to gifts, trips, entertainment or other favors of
more than a nominal value (more than $50.00);
(d) Misuse of Company information or facilities to which Employee has
access in a manner which will be detrimental to Company's interests, such as
utilization for Employee's own benefit of know-how or information developed
through the Company's business;
(e) Disclosure or other misuse of information of any kind obtained
through Employee's employment with Company;
(f) Appropriation by Employee or the diversion to others, directly or
indirectly, of any business opportunity in which it is known or could
reasonably be anticipated that Company would be interested; and
(g) The ownership, directly or indirectly, of an interest in any
enterprise in competition with Company or its clients, or acting as a director,
officer, partner, consultant, employee or agent of any enterprise which is in
competition with Company or its clients; however, Employee shall have the right
to purchase, acquire and/or invest in capital stock or other securities of any
entity whose stock or securities are regularly traded on the New York Stock
Exchange, the American Stock Exchange, or those which are reported on the
National Association of Securities Dealers Automated Quotation System.
6. Confidential Information and Intellectual Property Rights
6.1 Definitions
(a) "Confidential Information" means any information which is
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proprietary or confidential to the Company, including without
limitation:
(i) any Developments (as hereinafter defined):
(ii) trade secrets, information and other subject
matters pertaining to the Company's business,
activities, processes, methods, formulae, apparatus,
specifications, materials, customers, suppliers,
contracts, finances, personnel, research, ideas,
plans, policies or intentions; and
(iii) matters which although not trade secrets, the
dissemination to, or knowledge by, others whereof
might prove prejudicial to the Company, whether such
information is acquired or made, authored,
conceived, created or developed by Employee in the
course of employment under this Agreement or
obtained directly or indirectly from other
employees, suppliers, customers or consultants of
the Company.
(b) "Developments" includes discoveries, inventions,
improvements, developmental or experimental work, whether
patentable or not, original literary and artistic works,
computer programs, designs, manuals, ideas, processes,
methods, and concepts relating or in any way pertaining to,
or connected with, any of the matters which will be within
the existing or contemplated scope of the Company's business
in a technical, scientific, manufacturing, marketing, or
financial way, which are acquired, made, discovered,
invented, improved, developed, authored, conceived, created,
used, sold, marketed, or distributed by Employee alone or in
conjunction with others or to which Employee is exposed
during the period of his employment with Company whether or
not in the performance of Employee's duties as an employee of
Company.
(c) "Protection" includes patent applications and patents in
any countries, including all divisions, continuations,
reissues, and extensions thereof and rights or priority
resulting from the filing of such applications, industrial
design registrations, and other forms of protection in other
countries corresponding to such registration, including all
divisions, continuations, reissues and extensions thereof and
all such applications and rights of priority resulting from
the filing of such applications, all copyright, including all
reversions thereof, and any and all other forms of
intellectual property relating to the Developments.
6.2 Ownership of Confidential Information. Employee agrees that all
Confidential Information is the exclusive property of Company and
Employee further agrees that all right, title and interest in and to
any and all Confidential Information (whether or not Employee may
solely or jointly conceive or develop such Confidential Information
during the period of Employee's employment by Company) is hereby
unconditionally assigned to Company.
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6.3 Ownership of Protection. Employee agrees that all Protection is
the exclusive property of Company and agrees to do all such things and
to execute without further consideration, but at the expense of
Company, such further assurances, applications, instruments, and other
documents as may reasonably be required by the Company to obtain and
maintain the Protection for any Developments and Confidential
Information and for assigning, transferring, conveying, and securing
to the Company or its nominee the sole and exclusive right, title,
property, benefit, and interest in and to such Protection for the
Developments and Confidential Information.
6.4 Other Acknowledgments and Agreements. Employee further agrees not
to disclose, reproduce, download or use any Confidential Information
without the express prior written approval of Company, except as would
be required in the normal course and scope of performing Employee's
job duties for Company. At such time that Employee ceases to be
employed by Company, Employee agrees to immediately turn over to
Company all information, including papers, documents, writings,
computer files and all copies thereof, and any other property such as
keys, computer software, hardware and equipment provided to or
prepared by Employee during the course and scope of his/her employment
with Company. Further, Employee shall refrain, both during the
employment relationship and after the employment relationship
terminates, from publishing any oral or written statements about
Company, any of its subsidiaries or affiliates, or any of such
entities' officers, employees, shareholders, agents or representatives
that are slanderous, libelous, or defamatory; or that disclose private
or confidential information about Company, any of its subsidiaries or
affiliates, or any of such entities' business affairs, officers,
employees, shareholders, agents, or representatives; or that
constitute an intrusion into the seclusion or private lives of
Company, any of its subsidiaries or affiliates, or such entities'
officers, employees, shareholders, agents, or representatives; or that
place Company or any of its subsidiaries or affiliates, or any of such
entities' or its officers, employees, shareholders, agents, or
representatives in a false light before the public; or that constitute
a misappropriation of the name or likeness of Company, any of its
subsidiaries or affiliates, or any of such entities' or its officers,
employees, shareholders, agents, or representatives. A violation or
threatened violation of this prohibition may be enjoined by the
courts. The rights afforded the Company entities and affiliates under
this provision are in addition to any and all rights and remedies
otherwise afforded by law.
7. Non-Competition. In acknowledgment of the consideration provided under
this Agreement, upon termination of Employee's employment by the Company for
cause (as defined in Paragraph 10.1) or by the Employee for any reason,
Employee will not, directly or indirectly, individually or in conjunction with
any person, firm, partnership, corporation and/or any other entity
(collectively "Entity"), whether as principal, agent, director, officer,
employee, consultant, investor, shareholder, or in any other manner
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whatsoever, for a period of three (3) years, compete either directly or
indirectly with Company in any manner whatsoever. The following examples are
listed only as identifiers of conduct, which both parties agree, would amount
to direct and/or indirect competition and a material breach of this Agreement,
and in no way limit the possible realm of conduct which could amount to a
material breach. For example,
(a) carry on, be engaged in, concerned, connected and/or
interested in any business or activity in competition with
the business of the Company, or advise, lend money to,
guarantee the debts or obligations of, or permit Employee's
name or any part thereof to be used or employed by any
Entity, engaged in competition with the business of the
Company in any of the States Company is doing business at the
time of the termination of the employment relationship;
(b) solicit or attempt to solicit any of the employees of the
Company to enter into employment or service with any Entity
described in (a) above, or
(c) solicit in respect to services and/or products of the
same nature as those services and products provided by the
Company, any customer of the Company or any person actively
solicited by the Company in any of the States Company is
doing business at the time of the termination of the
employment relationship.
Employee warrants and agrees that the covenants in this section are reasonable
and valid and all defenses to the strict enforcement thereof are hereby
irrevocably waived to the extent allowed by law. Further, if any court or
tribunal is asked to interpret this provision and finds such provisions too
broad to be enforceable, then Employee hereby agrees that such provision shall
be interpreted to provide the broadest scope and longest duration enforceable
under the applicable law.
8. Remedies. Employee understands and acknowledges that each of the
provisions in Paragraphs 5, 6 and 7 are important and material, gravely affect
the effective and successful conduct of Company's business, and affects its
reputation and good will. Employee further understands and acknowledges that
his/her employment is expressly contingent upon agreement to the terms in these
paragraphs. Any breach of the terms of these paragraphs shall be considered a
material breach. Employee further understands and agrees that such a breach (or
threatened breach) presents a situation from which the Company will have no
adequate remedy at law, and for which Employee may be enjoined. Employee
understands and agrees that he/she may be required to pay to the Company all
damages which may arise from the breach or threatened breach, together with
interest, costs and Company's reasonable attorneys' fees arising therefrom.
Should injunctive relief be pursued by Company, Employee hereby consents to the
issuance of injunctive relief without the requirement of any bond and/or other
type of security whatsoever.
9. Continuing Effect. Employee understands and acknowledges that
Employee's responsibilities in Paragraphs 5, 6 and 7 are severable from the
rest of this Agreement and shall continue in full force and effect after
Employee's employment relationship with the Company ends or if this Agreement
is otherwise terminated for any reason.
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10. Termination Provision:
10.1 Termination for Cause. Employee may only be terminated for (i)
inability or refusal to perform his/her duties, (ii) any material breach of
this Agreement (including, without limitation, any announcement of an intention
to terminate Employee's employment relationship), (iii) engaging in misconduct,
(iv) failure to follow Company's policies, directives, or orders, (v) failure
to provide an adequate level of performance as determined by the Board of
Directors, (vi) insubordination or disruptive influence, (vii) unauthorized or
excessive absences, (viii) destruction of Company property or falsification of
Company documents, (ix) conviction of a crime of moral turpitude or felony, or
(x) committing acts of gross negligence, dishonesty or disloyalty.
10.2 Termination without Cause. Company may terminate Employee's
employment without cause at any time, provided however, that if Employee's
employment is terminated under this paragraph, then Company will continue to
pay to six (6) months of Employee's base salary, to which he/she is entitled.
11. Employee Representations. Employee represents that Employee is free to
enter into this Agreement and has no written agreement or legal obligation with
another person or entity pertaining to confidentiality, noncompetition or
restrictions against competitive employment. Employee further represents that
he/she has had the opportunity to gain advice of counsel regarding this
Agreement and has either done so or chosen to forgo such advice of his/her own
volition.
12. Vacation; Holidays; Sick Leave. Employee will be entitled to a total
of three (3) weeks annual paid vacation time, plus any regularly observed
holidays of Company.
13. Business Expenses. Employee shall be reimbursed for all reasonable
expenses incurred by Employee on behalf of the Company.
14. Invalidity. If any part of this Agreement is declared invalid by a
court of competent jurisdiction, such decision shall not affect the validity of
any remaining portion of the Agreement. Those portions not declared invalid
shall remain in full force and effect as if this Agreement had been executed
without the inclusion of the invalid portion. The invalid portion, if any,
shall be modified by the court to the extent necessary to become enforceable.
15. Modification. This Agreement constitutes the entire agreement between
Company and Employee and may not be changed, altered or modified unless in
writing and signed by both parties. This Agreement shall be governed by the
Texas Statute of Frauds.
16. Construction and Jurisdiction. This Agreement shall be governed by and
constructed in accordance with the laws of the State of Texas. All claims, if
any, arising
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under or relating to this Agreement shall be brought exclusively in Harris
County, Texas, and both parties agree to the exclusive jurisdiction and venue
of such courts. Further, this Agreement shall be interpreted and enforced under
the laws of the State of Texas, without regard to any conflicts of laws.
17. Binding Affect. The rights and benefits of Employee under this
Agreement are personal to Employee and shall not be subject to voluntary or
involuntary alienation, assignment, or transfer. This Agreement may be assigned
by Company and shall inure to the benefit of any such assignee.
18. Waiver. Waiver by Company of any breach of this Agreement by Employee
shall not be effective unless in writing and signed by the President of
Company, and no such waiver shall operate or be construed as a waiver of any
subsequent breach.
19. Employee Acknowledgment. By signing below, Employee acknowledges and
agrees that he/she has read and fully understands this Agreement, its purposes,
terms and provisions which Employee agrees to abide by and which Employee
expressly acknowledges to be reasonable in all respects. Employee further
acknowledges receipt of a copy of this Agreement.
ACCEPTED AND AGREED:
POWERBRIEF, INC.
By: /s/ Ernest D. Rapp
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Title: CEO
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Date: 4/4/00
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Employee: /s/ Leslie Butterfield
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Date: /4/4/00
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Exhibit A
Employee Name: LESLIE BUTTERFIELD
Position: VICE PRESIDENT OF MARKETING
Location: Houston, Harris County, Texas
Reporting Relationship: CEO and Board of Directors
Monthly Base Salary: $9,583.33 per month
Annual Bonus: Up to 40% of base annualized compensation
subject to milestones to be agreed upon
between employee and CEO, measured and
payable quarterly.
Long Term Incentive: Company shall grant Employee 57,000(1) stock
options (NQ) (vesting in three equal parts
at each one year anniversary) with an
exercise price of $2.50 per share, pursuant
to and subject to any and all necessary
stockholder and/or Board approval, and the
terms and conditions of Company's 2000
Equity Incentive Plan and the Stock Option
Agreement between Company and Employee.
Employee shall be eligible for up to an
additional 28,500 stock options (NQ) as
follows:
Options for 9,500 shares with an
exercise price of $2.50 per share
vesting upon the initial public
offering of the company's
securities or sale of all of the
Company's equity securities in a
Change in control transaction
resulting in consideration of $18
or greater per share of common
stock, as valued by the Board of
Directors;
Options for 9,500 shares with an
exercise price of $2.50 per share
vesting upon the Company's
generation of cumulative revenue in
excess of $10mm; and
Options for 9,500 shares with an
exercise price of $2.50 per share
to vest upon the measured
improvement of usability and
customer satisfaction
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(1) This is a pre- 3 for 1 split number.
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in comparing Version 1.0 to Version
2.0. It is anticipated that the
study will occur with 60 to 90 days
post release of each version.
Benefits: CUSTOMARY benefits available to other executives at
the company
ACCEPTED AND AGREED:
POWERBRIEF, INC.
By: /s/ Ernest D. Rapp
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Title: CEO
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Date: 4/4/00
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Employee: /s/ Leslie Butterfield
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Date: 4/4/00
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