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EMPLOYMENT AGREEMENT
The effective date of this Agreement by and between EMARKETPLACE, INC.,
a Delaware corporation (the "Company"), and BRIAN P. BURNS, JR. (the "Officer")
is entered into as of December 31, 1999.
WITNESSETH
WHEREAS, the Company desires to employ Officer, and Officer desires to
accept such employment with the Company upon the terms and conditions set forth
herein,
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the Company and the Officer agree as follows:
AGREEMENT
1. EMPLOYMENT AND DUTIES.
The Company hereby employs Officer as VICE PRESIDENT -
ADMINISTRATION/CORPORATE DEVELOPMENT and Officer hereby accepts employment by
the Company upon the terms and conditions set forth herein, with the authority
and responsibilities customarily afforded the VICE PRESIDENT -
ADMINISTRATION/CORPORATE DEVELOPMENT of a company. Officer shall faithfully and
diligently assist in the development and direction of the Company's business
plan and reporting requirements that the Company's Board of Directors may adopt,
in accordance with the Company's bylaws, and do and perform all acts in the
ordinary cause of the Company's business (with such limits as the Board of
Directors of the Company may prescribe) necessary and conducive to the Company's
best interests. Officer shall report to the Chief Executive Officer and Board of
Directors of the Company. Officer shall devote full time, energy, and skill to
the business of the Company (and its subsidiaries) and to the promotion of the
Company's best interests, except for vacations, and absences made necessary
because of illness; provided, however, Officer may devote a reasonable amount of
time to his duties with TopTeam, Inc. and Gateway Advisors, Inc. The primary
place of employment shall be at the Company's principal offices in San Jose, CA.
2. TERM.
The term of this Agreement shall commence December 31, 1999, and shall
expire December 31, 2005, unless sooner terminated as hereinafter set forth (the
"Term"). This Agreement will renew for an additional two years unless the
Company's Board of Directors advises Officer in writing of its intent not to
renew six (6) months prior to the expiration of the Term.
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3. COMPENSATION.
Subject to the provisions of Paragraphs 4 and 5 of this Agreement, the
Company shall pay Officer for all services to be performed by Officer during the
Term of this Agreement the following compensation:
A. BASE SALARY. The Company shall pay Officer a fixed salary at the rate
of $100,000 per annum ("Base Salary"), payable in periodic payments in
accordance with the Company's practices for other executive,
managerial, and supervisory employees, as such practices may be
determined from time to time. The Company's Board of Directors will
review such Base Salary annually and, in its discretion, may grant
increases thereof based upon Officer's performance;
B. ANNUAL CASH BONUS. The Officer shall be entitled to receive an annual
cash performance bonus of up to 100% of his then Base Salary for the
applicable year upon the achievement of reasonable corporate
performance targets established by the Board of Directors on an annual
basis;
C. STOCK OPTIONS. The Company shall grant Officer an option pursuant to
the Company's 1999 Stock Plan (a copy of which is attached hereto as
Exhibit A) to purchase a total of 250,000 shares of common stock at an
exercise price of $2.50 per share with 50,000 shares being immediately
exercisable upon execution of this Agreement; 50,000 shares being
exercisable on February 1, 2000; and the remaining amounts becoming
exercisable in forty-eight equal, monthly installment amounts,
beginning February 29, 2000. In the event of a Change of Control as the
term is defined in Paragraph 4 or an Involuntary Termination, all of
Officer's unvested options will accelerate and become immediately
exercisable.
D. SUCCESS BONUS. In the event of Sale of the Company's subsidiary,
TopTeam Inc., (which is defined as the sale of all or substantially all
of the assets or capital stock, or a merger or consolidation of
TopTeam, Inc. with any other corporation or entity or an initial public
offering of its common stock), the Company shall grant Officer fully
vested options, at an exercise price of $2.50 per shares, according to
the following schedule:
i) 50,000 stock options for any Sale valued between $40
million and $100 million; OR
ii) 100,000 stock options for any Sale valued between $100
million and $200 million; OR
iii) 150,000 stock options for any Sale valued in excess of
$200 million.
In addition, Company shall pay Officer a cash bonus equal to 50%, 100% or
200% of his Base Salary based upon a Sale as set forth above in
3(D)(i-iii).
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E. WITHHOLDING. All such payments will be subject to such deductions as
may be required to be made pursuant to law, government regulations, or
order, or by agreement with, or consent of, the Officer;
F. BENEFITS. Officer shall be entitled to participate in such life
insurance, medical, dental, long-term disability, pension, and
retirement plans, and other programs as may be approved from time to
time by the Company for the benefit of its employees and to all normal
perquisites provided to senior executives of the Company. Provided,
however, the Officer, in his sole discretion, may seek reimbursement by
the Company of medical and dental insurance premiums no greater than
$800 per month. Officer also shall be entitled to no less than Three
(3) weeks of vacation with pay during each consecutive 12 period during
the term of Officer's employment hereunder, to be taken at such times
and in such periods as Officer and the Company shall mutually determine
and provided that no vacation time shall interfere with the duties
required to be rendered by Officer hereunder; and
G. BUSINESS EXPENSES. The Company agrees that during the term of this
Agreement Officer shall be entitled to reimbursement by the Company for
all reasonable expenses actually and necessarily incurred by Officer on
the Company's behalf in the course of Officer's employment hereunder,
for which Officer shall submit substantiation in a form satisfactory to
the Company and which are approved by the Company in its reasonable
discretion.
4. TERMINATION.
(a) Officer's employment with the Company may be terminated, subject to
the notification provisions set forth in Paragraph 4(b) below, as follows:
(i) Termination for Cause, which means
(1) Officer willfully and unreasonably refuses to perform
services hereunder;
(2) Officer materially breaches Paragraph 6 of this
Agreement;
(3) Officer engages in acts of dishonesty or fraud in
connection with the services performed hereunder that
have a material adverse effect on the Company; or
(4) Officer engages in other serious misconduct of such a
nature that the continued employment of Officer may, in
the reasonable discretion of the Board of Directors, be
expected to materially and adversely affect the
business or properties of the Company, including acts
which violate securities laws, misrepresentation of
material facts to the Board or the shareholders, or
criminal acts.
(ii) Involuntary Termination, which is defined as termination by
the Company of Officer's employment, other than in a
Termination for Cause, Voluntary Termination, a
discontinuation of employment in accordance with Paragraph 5
or due to death or retirement on or after age 65. Involuntary
Termination as defined herein shall include a termination by
Officer for Good Reason; or
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(iii) Voluntary Termination, which means termination by Officer of
Officer's employment by the Company.
(b) TERMINATION PAYMENTS. In the event of Officer's termination, severance
payments ("Severance Amount Payments") shall be made as follows:
(i) Termination for Cause. If Officer's employment with the
Company is Terminated for Cause, all accrued salary and
vacation as of the date of Termination for Cause, shall be
paid to Officer. If the Company determines that a reason
constituting cause for termination under clauses
4(a)(i)(1)-(4) has occurred, it shall give Officer written
notice thereof at least 30 days prior to the proposed date of
termination of employment. If Officer undertakes the necessary
steps to remedy the condition constituting cause within 30
days after the receipt of such notice, then a reason for
termination for cause shall be deemed not to have occurred. If
Officer shall not remedy the condition constituting cause
within such time period, then Termination for Cause shall
occur on the date set forth in the notice from the Company.
(ii) Voluntary Termination. In the event of Voluntary Termination
during the term of Officer's employment hereunder, Officer
shall immediately be paid all accrued salary and vacation pay
as of the date of termination, but no other compensation or
reimbursement of any kind, including without limitation,
severance compensation.
(iii) Involuntary Termination. In the event of an Involuntary
Termination, including death or retirement on or after age 65,
during the Term and except as provided in Paragraph 5, the
Company shall pay the Officer, or a designated beneficiary in
the event of Officer's death, or if none, to Officer's then
living spouse, or if none, to the duly appointed personal
representative of Officer's estate, an amount equal to:
1) the then current Base Salary set forth in Paragraph
3(a) herein multiplied by 2.5 on the effective date
of the termination, plus
2) all accrued salary and vacation pay
3) the then maximum Annual Cash Performance Bonus for
the then current fiscal year set in accordance with
Paragraph 3(b)
4) and benefits for the later of the (i) duration of the
Term; and (ii) two years from the date of termination
If the Officer determines that a reason constituting
termination for Good Reason as defined in Paragraph 4(c) below
has occurred, he shall provide the Company written notice
thereof at least 30 days prior to the proposed date of
termination of employment. If the Company shall take the
necessary steps to remedy the condition constituting Good
Reason(s) for termination within 30 days after the receipt of
such notice, then a reason for termination for Good Reason
shall be deemed not to have occurred. If the Company shall not
remedy the condition constituting Good Reason within such time
period, then Termination for Good Reason shall occur on the
date set forth in the notice from the Officer.
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(c) DEFINITIONS. All the terms defined in this paragraph 4 shall have the
meanings given below throughout this Agreement:
(i) a "CHANGE OF CONTROL" shall be deemed to have occurred if:
a) a tender offer or exchange offer is made and consummated
for the ownership of securities of the Company representing
50 percent or more of the combined voting power of the
Company's then outstanding voting securities; or
b) the Company transfers substantially all of its assets to
another corporation which is not a wholly-owned subsidiary
of the Company.
(ii) a "GOOD REASON" shall mean:
c) the assignment of Officer to any duties inconsistent with,
or any adverse change in, Officer's titles or positions,
duties, responsibilities or status with the Company, or the
removal of Officer from, or failure to reelect Officer to,
any of such positions: or
d) the failure of the Company to provide support, information,
assistance and staffing reasonably appropriate for Officer
to carry out Officer's duties or to achieve the performance
goals set by the Company; or
e) any other material breach by the Company of this Agreement
which is not cured within thirty (30) days of notice
thereof by the Officer to the Company; or
f) a change in the location of the Officer's principal place
of employment, which shall be designated and operated as
the Company's executive offices, by the Company by more
than thirty miles from the location where the Officer was
principally employed immediately prior to the effective
date of this Agreement.
(d) CERTAIN PAYMENT REDUCTIONS:
(i) For purposes of this subparagraph (d), (i) a Payment shall mean
any payment or distribution in the nature of compensation to or
for the benefit of Officer, whether paid or payable pursuant to
this Agreement or otherwise; (ii) Agreement Payment shall mean a
Payment paid or payable pursuant to this Agreement (determined
without regard to this subparagraph (d)); (iii) Net After Tax
Receipt shall mean the Present Value of a Payment net of all
taxes imposed on Officer with respect thereto under Sections 1
and 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), determined by applying the highest marginal rate under
Sections 1 of the Code which applied to the taxable income of
Officer for the immediately preceding taxable year; (iv) "Present
Value" shall mean such value determined in accordance with
Section 280G(d)(4) of the Code; and (v) "Reduced Amount" shall
mean the smallest aggregate amount of Payments which (a) is less
than the sum of all Payments (determined without regard to this
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subparagraph (d)) and (b) results in aggregate Net After Tax
Receipts which are equal to or greater than the Net After Tax
Receipts which would result if the aggregate Payments were equal
to the sum of all Payments (determined without regard to this
subparagraph (d)) or any other amount less than the sum of all
payments (determined without regard to this subparagraph (d)).
(ii) Anything in this Agreement to the contrary notwithstanding, in
the event the Company's independent public accounts (the
"Accounting Firm") shall determine that receipt of all Payments
would subject Officer to tax under Section 4999 of the Code, it
shall determine whether some amount of Payments would meet the
definition of a "Reduced Amount." If the Accounting Firm
determines that there is a Reduced Amount, the aggregate
Agreement Payments shall be reduced to such Reduced Amount;
provided, however, that if the Reduced Amount exceeds the
aggregate Agreement Payments, the aggregate Payments shall, after
the reduction of all Agreement Payments, be reduced (but not
below zero) in the amount of such excess.
(iii) If the Accounting Firm determines that aggregate Agreement
Payments or Payments, as the case may be, should be reduced to
the Reduced Amount, the Company shall promptly give notice to
Officer to that effect and a copy of the detailed calculation
thereof, and Officer may then elect, in Officer's sole
discretion, which and how much of the Payments shall be
eliminated or reduced (as long as after such election the present
value of the aggregate Payments equals the Reduced Amount), and
Officer shall advise the Company in writing of Officer's election
within ten days of Officer's receipt of notice. If no such
election is made by Officer within such ten-day period, the
Company may elect which of the Agreement Payments or Payments, as
the case may be, shall be eliminated or reduced (as long as after
such election the present value of the aggregate Agreement
Payments or Payments, as the case may be, equals the Reduced
Amount) and shall notify Officer promptly of such election. All
determinations made by the Accounting Firm under this Paragraph
4(d) shall be binding upon the Company and Officer and shall be
made within 60 days after a termination of Officer's employment.
As promptly as practicable following such determination, the
Company shall pay to or distribute for Officer's benefit such
Payments as are then due to Officer under this Agreement and
shall promptly pay to or distribute for Officer's benefit in the
future such Payments as become due to Officer under this
Agreement.
(iv) While it is the intention of the Company and Officer to reduce
the amounts payable or distributable to Officer hereunder only if
the aggregate Net After Tax Receipts to Officer would thereby be
increased, as a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that amounts
will have been paid or distributed by the Company to or for
Officer's benefit pursuant to this Agreement which should not
have been so paid or distributed ("Overpayment") or that
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additional amounts which will have not been paid or distributed
by the Company to or for Officer's benefit pursuant to this
Agreement could have been so paid or distributed
("Underpayment"), in each case, consistent with the calculation
of the Reduced Amount hereunder. In the event that the Accounting
Firm, based either upon the assertion of a deficiency by the
Internal Revenue Service against the Company or Officer which the
Accounting Firm believes has a high probability of success or
controlling precedent or other substantial authority, determines
that an Overpayment has been made, any such Overpayment paid or
distributed by the Company to or for Officer's benefit shall be
treated for all purposes as a loan AB INITIO to Officer which
Officer shall repay to the Company together with interest at the
applicable federal rate provided for in Section 7872(f)(2) of the
Code; provided, however, that no such loan shall be deemed to
have been made and no amount shall be payable by Officer to the
Company if and to the extent such deemed loan and payment would
not either reduce the amount on which Officer is subject to tax
under Section 1and Section 4999 of the Code or generate a refund
of such taxes. In the event that the Accounting Firm, based upon
controlling precedent or other substantial authority, determines
that an Underpayment has occurred, any such Underpayment shall be
promptly paid by the Company to or for Officer's benefit together
with interest at the applicable federal rate provided for under
Section 7872(f)(2) of the Code.
(v) The Company will bear the fees and expenses of the Accounting
Firm in making the determinations required by the Paragraph 4(d).
5. DISABILITY.
In the event that Officer is permanently disabled so as to be unable to
fully perform the services required hereunder, Officer's obligation to perform
such services will terminate and the Company may terminate this Agreement upon
five days' written notice to Officer. In the event of such termination,
Officer's Base Salary as defined in Paragraph 3 (a) hereof and benefits as
defined in Paragraph 3 (e) hereof shall continue during the then remaining Term
of this Agreement, reduced by any payments received by Officer during such term
under a long-term disability plan or policy maintained by the Company. For
purposes hereof, "Disability" shall mean that by reason of physical or mental
disability, officer will be unable to perform substantially the duties of
employment under this Agreement for a period of 180 consecutive days.
6. NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
Officer acknowledges that the Company may disclose certain confidential
information to Officer during the term of this Agreement to enable Officer to
perform the duties required hereunder. Officer hereby covenants and agrees that
he will not, without the prior written consent of the Company, during the term
of this Agreement or for a two year period thereafter, knowingly disclose or
permit to be disclosed to any third party by any method whatsoever any of the
confidential information of the Company. For purposes of this Agreement,
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"Confidential Information" shall include, but not be limited to, any and all
records, notes, memoranda, data, ideas, processes, methods, techniques, systems,
formulas, patents, models, devices, programs, computer software, writings,
research, personnel information, customer information, the Company's financial
information, plans, or any other information of whatever nature in the
possession or control of the Company which has not been published or disclosed
to the general public, or which gives to the Company an opportunity to obtain an
advantage over competitors who do not know of or use it. Confidential
Information will not, however, include information that Officer can establish:
(a) was already known to the Officer at the time it was disclosed through no
wrongful act of the Officer; (b) has become publicly known through no wrongful
act of the Officer; (c) has been rightfully received from a third party without
restriction on disclosure and without breach of an obligation of
confidentiality; or (d) has been independently developed by the Officer without
reference to the Confidential Information. Officer further agrees that if
Officer's employment hereunder is terminated for any reason, he will leave with
the Company and will not take originals or copies of any records, papers,
programs, computer software, and documents or any matter of whatever nature that
bears secret or Confidential Information of the Company.
The foregoing paragraph shall not be applicable if and to the extent
Officer is required to testify in a judicial or regulatory proceeding pursuant
to an order of a judge or administrative law judge. Officer hereby does assign,
to the Company, its parent, subsidiary, successors, assigns, and nominees, all
inventions, discoveries, improvements, copyrightable material, trademarks,
programs, computer software, and ideas concerning the same, capable of use in
connection with the business of the Company, which Officer may make or conceive,
either solely or jointly with others, during the period of Employment by the
Company, its parent, subsidiaries, or successors.
Officer agrees, without charge to the Company and at the Company's
expense, to execute, acknowledge, and deliver to the Company all such papers,
including applications for patents, applications for copyright and trademark
registrations, and assignments thereof, as may be necessary, and at all times to
assist the Company, its parent, subsidiaries, successors, assigns, and nominees
in every proper way to patent or register said programs, computer software,
ideas, inventions, discoveries, improvements, copyrightable material, or
trademarks in any and all countries and to vest title thereto in the Company,
its parent, subsidiaries, successors, assigns, or nominees. Officer will report
to the Company all discoveries, inventions, or improvements of whatever nature
conceived or made by Officer at any time he was employed by the Company, its
parent, subsidiaries, or successors. All such discoveries, inventions, and
improvements which are applicable in any way to the Company's business shall be
the sole and exclusive property of the Company. The covenants set forth in this
paragraph which are made by Officer are in consideration of the employment or
continuing employment of, and the compensation paid to, Officer during
employment by the Company. The foregoing covenants will not prohibit Officer
from disclosing confidential or other information to other employees of the
Company or to third parties to the extent that such disclosure is necessary to
the performance of the duties required under this Agreement. Any breach of this
covenant of nondisclosure will result in the forfeiture by Officer and all other
persons of any and all rights to severance pay and supplemental pension benefits
unpaid at the time of breach and in such event the Company shall have no further
obligation to pay any amount related thereto.
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This Agreement does not apply to any invention that qualifies fully
under the provisions of Section 2870(a) of the California Labor Code, which
reads as follows:
Section 2870. Inventions on Own Time--Exemption from Agreement
(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice
of the invention to the employer's business, or actual or demonstrably
anticipated research or development of the employer; or
(2) Result from any work performed by the employee for the
employer.
7. ADDITIONAL REMEDIES.
Officer recognizes that irreparable injury will result to the Company
and to its business and properties in the event of any breach by Officer of any
of the provisions of Paragraph 6 of this Agreement, and that Officer's continued
employment is predicated on the commitments undertaken by Officer pursuant to
said paragraph. In the event of any breach of any of Officer's commitments
pursuant to Paragraph 6, the Company shall be entitled, in addition to any other
remedies and damages available, to injunctive relief to restrain the violation
of such commitments by Officer or by any person or persons acting for or with
Officer in any capacity whatsoever.
8. NONASSIGNMENT.
This Agreement is personal to Officer and shall not be assigned by him.
Officer shall not hypothecate, delegate, encumber, alienate, transfer or
otherwise dispose of his rights and duties hereunder. The Company may not assign
this Agreement without Officer's consent to any other entity that, in connection
with such assignment, acquires all or substantially all of the Company's assets
or into or with which the Company is merged and consolidated.
9. WAIVER.
The waiver of a breach of any provision of this Agreement by a party
shall not be construed as a waiver of any subsequent breach by said party.
10. SEVERABILITY.
If any clause, phrase, provision, or portion of this Agreement or the
application thereof to any person or circumstance shall be invalid or
unenforceable under any applicable law, such event shall not affect or render
invalid or unenforceable the remained of this Agreement and shall not affect the
application of any clause, provision, or portion hereof to other persons or
circumstances.
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11. ARBITRATION.
(a) The terms of this Paragraph 11 contain the sole and exclusive
method, means and procedure to resolve any and all claims, disputes or
disagreements arising under this Agreement, except those arising under the
provisions of Paragraph 6, above. Nothing in this Paragraph 11 shall prohibit a
party from seeking and obtaining injunctive relief from a court of competent
jurisdiction pending the outcome of arbitration. A party bringing an action for
injunctive relief shall not be deemed to have waived his or its right to demand
arbitration of all disputes. The parties irrevocably waive any and all rights to
the contrary and shall at all times conduct themselves in accordance with the
terms of this Paragraph 11; any attempt to circumvent the terms of this
Paragraph 11 shall be null and void and of force or effect.
(b) Either party desiring to arbitrate shall give written notice to the
other party within a reasonable period of time after the party becomes aware of
the need for arbitration. The arbitration shall be conducted in the County of
Santa Clara , California, in accordance with the National Rules of the American
Arbitration Association ("AAA"), and shall be conducted by a single arbitrator
selected from the approved AAA panel or by stipulation of the parties. In any
arbitration hereunder, the parties shall be entitled to all rights of discovery
provided for in the California Code of Civil Procedure for judicial proceedings.
The arbitrator shall give effect to statutes of limitation in determining any
claim. The decision of the arbitrator shall be final and binding. Judgment on
any award rendered by such arbitrator shall be final and binding. Judgment on
any award rendered by such arbitrator may be entered in any court having
jurisdiction over the subject matter of the controversy. The prevailing party
shall receive an award of costs and expenses related to the arbitration,
including attorneys' fees. The fees and costs of the arbitrator and the cost of
any record or transcript of the arbitration shall be borne by the losing party.
Should Officer or the Company institute any legal action or administrative
proceeding with respect to any claim waived by this agreement or pursue any
dispute or matter covered by this paragraph by any method other than said
arbitration, the responding party shall be entitled to recover from the other
party all damages, costs, expenses and attorneys' fees incurred as a result of
such action.
12. RELEVANT LAW.
This Agreement shall be construes and enforced in accordance with the
laws of the State of California.
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13. NOTICES.
All notices, requests, demands and other communications in connection
with this Agreement shall be made in writing and shall be deemed to have been
given when delivered by hand or 48 hours after mailing at any general or branch
United States Post Office, by registered or certified mail, postage prepaid,
addressed as follows, or to such other address as shall have been designated in
writing by the addressee:
(a) if to the Company: (b) if to the Officer:
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eMarketplace, Inc. c/o eMarketplace, Inc.
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255 West Julian Street 255 West Julian Street
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Suite 100 Suite 100
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San Jose, CA 95110 San Jose, CA 95110
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Facsimile (408) 275-1958 Facsimile (408) 275-1958
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14. ENTIRE AGREEMENT.
This Agreement sets forth the entire understanding of the parties and
supersedes all prior agreements, arrangements, and communications, whether oral
or written, pertaining to the subject matter hereof; and this Agreement shall
not be modified or amended except by written agreement of the Company and
Officer.
15. ATTORNEYS' FEES.
If any action or proceeding is brought to enforce or interpret any
provision of this Agreement, the prevailing party shall be entitled to recover
as an element of its cost, and not its damages, its reasonable attorneys' fees,
costs and expenses.
16. HEADINGS.
The subject heading of the paragraphs and subparagraphs of this
Agreement are included for purposes of convenience only, and shall not affect
the construction or interpretation of any of its provisions.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first set forth above.
eMarketplace, Inc. Officer: Brian P. Burns, Jr.
By: _________________ By: /s/ BRIAN P. BURNS, JR.
Officer: _________________
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