Employment Agreement - IMGIS Inc. and John A. Tanner
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of December 9, 1998
(the "Effective Date") by and between IMGIS, Inc. (dba "AdForce") a California
corporation (the "Company") and, John A. Tanner (the "Employee").
RECITALS
A. The Company desires to continue the employment of the Employee as the
Company's Vice President-Finance and Chief Financial Officer, and the Employee
desires to accept such continued employment. The employment of the Employee
pursuant to this Agreement is hereinafter sometimes referred to as the
"Employment"; and
B. The Company and the Employee hereby enter into this Agreement setting
forth each and all of the terms and conditions of the Employment.
NOW, THEREFORE, in consideration of the premises and the agreements,
representations and warranties contained in the Agreement, the Company and the
Employee hereby agree as follows:
1. DUTIES, TERM AND EXCLUSIVE EMPLOYMENT.
1.1 DUTIES AND RESPONSIBILITIES. Within the limitations
established by the Company's Bylaws, the Employee shall have each and all of the
duties and responsibilities of the Company's Chief Financial Officer. As such,
the Employee shall have general management responsibility and authority with
respect to the financial affairs of the Company, subject to the direction of the
Company's Chief Executive Officer.
1.2 TERM OF EMPLOYMENT. The Employment shall begin on the
Effective Date and, shall continue until terminated as provided in Paragraph 3
hereof, the Employment shall continue until midnight on the second anniversary
of the Effective Date.
1.3 NO OTHER EMPLOYMENT OR PRODUCTIVE ACTIVITIES. During the term
of the Employment, the Employee shall diligently and conscientiously devote all
of his working time and attention to discharging his duties to the Company and
shall not, without the express prior written consent of the Company, render to
any other person, corporation, partnership, firm, company, joint venture or
other entity any services of any kind for compensation or engage in any other
activity that would in any manner whatsoever interfere with the performance of
the Employee's duties on behalf of the Company. The foregoing notwithstanding,
nothing herein shall prevent the Employee from serving on boards of director of
other companies not in competition with the Company, engaging in charitable
activities or activities of professional associations or from managing on his
own personal time any personal investments in entities not in competition with
any actual or then proposed business of the Company; provided that nothing in
this Paragraph 1.3 shall prohibit the Employee from owning up to one percent
(1%) of the outstanding shares of any class of equity securities of a
corporation engaged in any such
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competition whose securities are listed on a national securities exchange or
quoted daily in the over-the-counter listings of THE WALL STREET JOURNAL
("Permitted Shares").
1.4 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT. The Employee
acknowledges his obligations under the Employee Agreement Regarding
Confidentiality and Inventions dated as of November 3, 1997 (the
"Confidentiality and Inventions Agreement").
1.5 INDEMNITY AGREEMENT. The parties acknowledge their respective
obligations under the Officer and Director Indemnity Agreement between the
Employee and the Company attached as Exhibit B (the "Indemnity Agreement").
2. COMPENSATION. In full and complete consideration for the Employment
and each and all of the services to be rendered by the Employee to the Company
or any subsidiary or controlled affiliate of the Company (collectively, the
"AdForce Group"), the Employee shall receive compensation as follows, except as
otherwise provided in Paragraph 3 hereof:
2.1 BASE SALARY. The Employee shall receive from the Company a
base salary, at the initial rate of $175,000 per annum, payable in equal
semi-monthly installments during the term of Employment. The base salary
will be reviewed annually and may be increased (but not decreased) by the
Company, in the discretion of its Chief Executive Officer ("CEO") (or, if no
CEO then exists, in the discretion of the Board of Directors), based upon
such factors as the CEO (or, if no CEO then exists, in the discretion of the
Board of Directors) deems relevant, including the financial condition and
operating results of the Company. From each of the Employee's salary
payments the Company will withhold and pay to the proper governmental
authorities any and all amounts required by law to be withheld from the
Employee's salary. The Company will also deduct from the Employee's salary
payments those sums, if any, authorized by the Employee in writing and
approved by the Company. The Company will make all payments and
contributions that are required by law to be made by the Company for the
Employee's benefit without any deduction from the Employee's salary payments.
2.2 INCENTIVE BONUS PLAN. For each fiscal year of the Company
during the Employment, the Employee will be eligible to receive, in addition to
his base salary, annual incentive compensation at the Executive Officer level
(the "Annual Bonus") pursuant to the Company's incentive bonus plan (the "Bonus
Plan"), a summary of which is attached hereto as APPENDIX A, for so long as it
may be continued and as it may hereafter be amended from time to time. The
amount of the Annual Bonus, if any, for each year will be based on the
achievement of financial goals and performance objectives to be determined by
the Company in accordance with the Bonus Plan. Each Annual Bonus will be deemed
to be earned and will be payable at the time or times specified in the Bonus
Plan, as it may be amended from time to time.
2.3 STOCK OPTIONS.
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(a) The Employee is presently the holder of stock options
granted under the Company's Stock Plan, which options are subject to the
separate written Option Agreement (the "Existing Options").
(b) In the event of one or more of the following
transactions (a "Change of Control"), an additional one year of vesting in the
Existing Options will occur:
(i) a merger or acquisition in which the Company is
not the surviving entity (other than a reincorporation in another jurisdiction
or a merger in which the shares of the Company are converted into shares
representing a majority of the voting power of the surviving entity);
(ii) the sale, transfer or other disposition of all or
substantially all of the assets or stock of the Company;
(iii)
(iv) any other corporate reorganization or business
combination in which fifty percent (50%) or more of the Company's outstanding
voting stock is transferred to different holders in a single transaction or
series of related transactions.
(c) During the Employment, the Employee will be eligible for
the grant of additional options under the Stock Option Plan at the sole
discretion of the Company's Board of Directors, based upon such factors as it
deems relevant.
2.4
2.5 VACATION. The Employee shall be entitled to three (3) weeks
paid vacation per year. Unused vacation accruals will be subject to Company
policy in effect from time to time.
2.6 INSURANCE AND OTHER BENEFITS. The Employee shall be entitled
to participate in the life, medical, dental and/or disability insurance plans,
together with any supplemental insurance plans, offered by the Company to its
executive employees, generally from time to time during the Employment. The
Employee shall be eligible to participate in any other fringe benefits as may be
provided by the Company to its executive employees, generally, during the
Employment.
3. TERMINATION OF EMPLOYMENT. The Employment may be terminated prior to
the end of the term specified in Paragraph 1.2 hereof upon the occurrence of any
of the following:
3.1 DEATH AND DISABILITY. The Employment shall automatically
terminate upon the death of the Employee. The Company shall have the
unrestricted right, but not the obligation, to terminate the Employment at any
time following determination of the Employee's "permanent disability" (as deemed
in the Company's long-term disability insurance plan covering the Employee). In
the event of the Employee's death or permanent disability, the Employee or his
estate shall be entitled to receive (i) the Employee's base salary through the
date of termination of the Employment, plus (ii) any Annual Bonus earned by the
Employee and
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payable as of the date of termination of the Employment pursuant to Paragraph
2.2 hereof but not yet paid, plus (iii) any other benefits to which the Employee
is entitled pursuant to the plans described in Paragraph 2.6 hereof.
3.2 TERMINATION OF EMPLOYMENT BY THE COMPANY "FOR CAUSE". The
Company shall have the unrestricted right, but not the obligation, to terminate
the Employment at any time "For Cause" in the event of the Employee's (i)
conviction of a felony, (ii) commission of any act of theft or fraud against, or
involving the records of, the Company or any other member of the AdForce Group,
(iii) insubordination, or (iv) material breach of the Employee's obligations
under the Confidentiality and Inventions Agreement, which, if curable, is not
cured within thirty (30) days following the notice thereof by the Company. The
decision to terminate the Employment For Cause, to take other action or to take
no action in response to such occurrence shall be in the sole and exclusive
discretion of the Company. Upon any termination of the Employment by the
Company For Cause, the Employee shall be entitled to receive (A) the Employee's
base salary through the date of such termination, plus (B) any Annual Bonus
earned by the Employee and payable as of the date of termination of the
employment pursuant to Paragraph 2.2 hereof but not yet paid, plus (C) any other
benefits to which the Employee is entitled pursuant to the plans described in
Paragraph 2.6 hereof.
3.3 OTHER TERMINATION OF EMPLOYMENT BY THE COMPANY. The Company
shall have the right to terminate the Employment at any time. However, if the
Employment is terminated by the Company for any reason other than pursuant to
Paragraphs 3.1 or 3.2 hereof, the Employee shall be entitled to receive his base
salary through the date of termination of the Employment, plus an amount (the
"Severance Payment") equal to his then-current base salary for twelve (12)
months following the date of termination (The "Severance Period". The Severance
Payment shall be paid in equal, bi-weekly installments during the Severance
Period and shall be in lieu of any other severance pay to which the Employee
might otherwise be entitled. In addition, in the event of such a termination,
the Company will, to the extent its plans permit, continue to provide to the
Employee, at the current level of employee contribution by the Employee
prevailing at the date of termination, coverage under its life, medical, dental
and/or disability plans, as in effect on the date of termination, during the
Severance Period. If the Company's plans do not permit continued coverage for
the Employee under these circumstances, the Company shall pay or reimburse the
Employee for the cost of purchasing such coverage independently, subject to the
timely compliance by the Employee with any notification procedure required under
COBRA in order to obtain continued coverage. The Employee shall also be
entitled, upon any such termination, to receive (A) any Annual Bonus earned by
the Employee and payable as of the date of termination of the Employment
pursuant to Paragraph 2.2 hereof but not yet paid, plus (ii) any other benefits
to which the Employee is entitled pursuant to the plans described in Paragraph
2.6 hereof.
3.4 TERMINATION OF EMPLOYMENT BY THE EMPLOYEE FOR "GOOD REASON".
The Employee shall have the right to terminate the Employment at any time for
"Good Reason" in the event that, other than pursuant to Paragraphs 3.1 or 3.2
hereof, the Company, without the Employee's prior written consent, (i)
materially alters or reduces the Employee's duties, responsibilities and
authority from those which exist as of the Effective Date; (ii) changes the
Employee's job title to anything other than Vice President and Chief Financial
Officer; (iii)
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materially breaches the terms of this Agreement in respect to the payment of
compensation or benefits or in any other material respect and such breach is not
cured within ten (10) days after the Company receives notice thereof; or (iv)
requires the Employee, as a condition to the Employment, to perform illegal or
fraudulent acts or omissions. If the Employee voluntarily terminates the
Employment for Good Reason pursuant to this Paragraph 3.4, the Employee shall be
entitled to receive the payments and other benefits specified in Paragraph 3.3
hereof with respect to a termination by the Company other than For Cause.
3.5 TERMINATION OF EMPLOYMENT BY THE EMPLOYEE WITHOUT "GOOD
REASON". Upon any voluntary termination of the Employment by the Employee,
other than for Good Reason pursuant to Paragraph 3.4 hereof, the Employee shall
be entitled to receive (i) the Employee's base salary through the date of such
termination, plus (ii) any Annual Bonus earned by the Employee and payable as of
the date of termination of the Employment pursuant to Paragraph 2.2 hereof but
not yet paid, plus (iii) any other benefits to which the Employee is entitled
pursuant to the plans described in Paragraph 2.6 hereof.
4. EXPENSES. In addition to the payment or reimbursement of the
expenses specified in Paragraph 2.4 hereof, the Company will reimburse the
Employee for those customary, ordinary and necessary business expenses
incurred by him in the performance of his duties and activities on behalf of
the Company or any other member of the AdForce Group. Such expenses will be
reimbursed upon presentation by the Employee of appropriate documentation to
substantiate such expenses pursuant to the policies and procedures of the
Company governing reimbursement of business expenses to its executive
employees. The Employee shall present such documentation for any
unreimbursed expenses not later than thirty (30) days after the termination
of the Employment.
5. AUTHORITY: NONCOMPETITION. The Employee warrants and represents to
the Company that he has the full, complete and entire right and authority to
enter into the Employment and this Agreement, that he has no agreement, duty,
commitment or responsibility of any kind or nature whatsoever with any other
person, corporation, partnership, firm, company, joint venture or other entity
which would conflict in any manner whatsoever with any of his duties,
obligations or responsibilities to the Company or any other member of the
AdForce Group pursuant to the Employment and/or this Agreement, and that he is
fully ready, willing and able to perform each and all of such duties,
obligations and responsibilities. As a condition of the Employment and of the
Company's entering into this Agreement, the Employee hereby specifically agrees,
covenants, warrants and represents that, during the Employment, he will not,
without the Company's express prior written consent, accept any employment,
contractual or other relationship of any kind or nature whatsoever or engage in
any association or dealing of any kind or nature whatsoever with any person,
corporation, partnership, firm, company, joint venture, or other entity, in
competition with any business of the Company or any other member of the AdForce
Group currently conducted or conducted during that period; provided that nothing
in the Paragraph 5 shall prohibit the Employee from owning Permitted Shares.
6. DUTIES OF THE EMPLOYEE AFTER ANY NOTICE OF TERMINATION OF THE
EMPLOYMENT. Following any notice of termination of the Employment, the Employee
shall fully cooperate with the Company in all matters relating to the winding up
of the Employee's work on behalf of the
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Company and the orderly transfer of all pending work and of the Employee's
duties and responsibilities to such other person or persons as may be designated
by the Company in its sole discretion. Upon any termination of the Employment,
the Employee will immediately deliver to the company any and all of the property
of the Company or any other member of the AdForce Group of any kind or nature
whatsoever in the Employee's possession (except that the employee may keep in
his possession for a period of one year subsequent to the termination date any
laptop computer and related software and hardware), custody or control,
including, without limitation any and all Proprietary Information as that term
is defined in the Confidentiality and Inventions Agreement.
7. NO PREDATORY SOLICITATION. For one (1) year following any termination
of the Employment, the Employee will not, without having received the Company's
prior written permission to do so, directly of indirectly, on his own behalf or
in the service of others, interfere with or raid the officers, employees,
consultants, agents and/or independent contractors of the Company or any other
member of the AdForce Group or in any manner attempt to persuade any such person
to discontinue any relationship with such entity. The Employee and the Company
confirm that this Paragraph 7 is reasonable and necessary for the protection of
the trade secrets and proprietary information of the AdForce Group.
8. ARBITRATION. Except as otherwise expressly provided in this
Agreement, any controversy, dispute and/or claim in any manner arising out of
or relating to this Agreement or the Employment shall be fully and finally
resolved solely by binding arbitration conducted by the American Arbitration
Association in San Jose, California. Judgment on any decision rendered by
the arbitration may be entered in any court having jurisdiction. All costs
of the arbitration, including, without limitation, the costs of any record or
transcript of the arbitration proceedings, administrative fees, the fee of
the arbitrator, the fees and expenses of the attorneys for each party and all
other fees and costs shall be borne by the party not prevailing in the
arbitration, as determined by the arbitrator, or apportioned as the
arbitrator shall determine if, in the judgement of the arbitrator, neither
party prevails. Except as otherwise expressly provided in the Agreement, the
arbitration provisions set forth above in Paragraph 8 are intended by the
Employee and by the Company to be absolutely exclusive for all purposes
whatsoever and applicable to each and every controversy, dispute and/or claim
in any manner arising out of or relating to this Agreement, and the
Employment, the meaning, application and/or interpretation of this Agreement,
any breach or claimed breach hereof and/or any voluntary or involuntary
termination of this Agreement with or without cause, including without
limitation, any such controversy, dispute and/or claim which, if pursued
through any state or federal court or administrative agency, would arise at
law, in equity and/or pursuant to statutory, regulatory and/or common law
rules, regardless of whether such dispute, controversy and/or claim would
arise in and/or from contract, tort or any other legal and/or equitable
theory or basis. The arbitrator who hears and decides any controversy,
dispute and/or claim between the Company and the Employee shall, in
determining a remedy, have jurisdiction and authority only to award
compensatory damages to make whole a party suffering foreseeable economic
damages, and, other than foreseeable economic damages, the arbitrator shall
not have any authority or jurisdiction to make any award of any kind or
nature whatsoever as compensation for any damages and/or any award of damages
for pain and suffering, emotional distress or any other kind or form of
non-economic damages and/or non-foreseeable economic damages.
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Notwithstanding anything to the contrary contained in this Paragraph 8, the
Company shall at all times have and retain the full, complete and unrestricted
right to immediate and permanent injunctive and other relief as provided in
Paragraph 9 below.
9. THE COMPANY'S RIGHT TO INJUNCTIVE RELIEF. The Employee recognizes,
acknowledges and agrees that any breach of any threatened breach of any
Paragraph; term, provision or covenant of any of Paragraphs 5 or 7 of this
Agreement or of the Confidentiality and Inventions Agreement would cause
irreparable injury to the Company which could not be adequately compensable in
monetary damages and that the remedy at law for any such breach will be entirely
insufficient and inadequate to protect their legitimate interests. Therefore,
the Employee specifically recognizes, acknowledges and agrees that the Company
shall at any and all times be and remain fully entitled to seek and obtain
temporary, preliminary and permanent injunctive relief for any such breach or
threatened breach from any court of competent jurisdiction. The prevailing
party in any action instituted pursuant to Paragraph 8 hereof, shall be entitled
to recover from the other party its reasonable attorneys' fees and other
expenses incurred in such litigation.
10. SURVIVAL OF CERTAIN PROVISIONS OF THIS AGREEMENT. Except as may
otherwise be provided herein, each and all of the terms, provisions and
covenants of this Agreement shall, for any and all purposes whatsoever, survive
any termination of the Employment, subject to the limitations and conditions set
forth in each separate provision, regardless of whether such termination is by
the Employee, by the Company, by expiration or otherwise.
11. GENERAL.
11.1 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
inure to the benefit of and be binding upon the Company, the Employee and each
and all of their respective heirs, legal representatives, successors and
assigns. The duties, responsibilities and obligations of the Employee under
this Agreement shall be personal and not assignable or delegable by the Employee
in any manner whatsoever to any person, corporation, partnership, firm, company,
joint venture or other entity. The Employee may not assign, transfer, convey,
mortgage, pledge or in any other manner encumber the compensation or other
benefits to be received by him or any rights which he may have pursuant to the
terms and provisions of this Agreement.
11.2 WAIVER. No waiver of any breach of any warranty,
representation, agreement, promise, covenant, paragraph, term or provision of
this Agreement shall be deemed to be a waiver of any preceding or succeeding
breach of the same or any other warranty, representation, agreement, promise,
covenant, paragraph, term and/or provision of this Agreement. No extension of
the time for the performance of any obligation or other act required or
permitted by this Agreement shall be deemed to be an extension of the time for
the performance of any other obligation or any other act required or permitted
by this Agreement.
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11.3 SOLE AND ENTIRE AGREEMENT. This Agreement, the attachment
hereto and the other agreements referred herein, including the Company's bonus
and award plans and benefit plans, are the sole, complete and entire contract,
agreement and understanding between the Company and the Employee concerning the
Employment, the terms and conditions of the Employment, the duration of the
Employment, the termination of the Employment and the compensation and benefits
to be paid and provided by the Company to the Employee pursuant to the
Employment. Except as otherwise provided herein, this Agreement supersedes any
and all prior contracts, agreements, plans, agreements in principle,
correspondence, letters of intent, understandings, and negotiations, whether
oral or written, concerning the Employment, the terms and conditions of the
Employment, the duration of the Employment, the termination of the Employment
and the compensation and benefits to be paid by the Company to the Employee
pursuant to the Employment.
11.4 AMENDMENTS. No amendment, modification, waiver, or consent
relating to this Agreement will be effective unless and until it is embodied in
a written document signed by the Company and by the Employee.
11.5 ORIGINALS. This Agreement may be executed by the Company and
the Employee in counterparts, each of which shall be deemed an original and
which together shall constitute one instrument.
11.6 HEADINGS. Each and all of the headings contained in the
Agreement are for reference purposes only and shall not in any manner whatsoever
affect the construction or interpretation of this Agreement or be deemed as part
of this Agreement for any purpose whatsoever.
11.7 SAVINGS PROVISION. To the extent that any provision of this
Agreement or any Paragraph, term, provision, sentence, phrase, clause or word of
this Agreement shall be found to be illegal or unenforceable for any reason,
such Paragraph, term, provision, sentence, paragraph, clause or word shall be
modified or deleted in such a manner as to make this Agreement, as so modified,
legal and enforceable under applicable laws. The remainder of this Agreement
shall continue in full force and effect.
11.8 APPLICABLE LAW. This Agreement shall be governed in all
respects by the laws of the State of California as such laws are applied to
agreements between California residents entered into and to be performed within
California.
11.9 CONSTRUCTION. The language of this Agreement and of each and
every paragraph, term and provision of the Agreement shall, in all cases, for
any and all purposes, and in any and all circumstances whatsoever be construed
as a whole, according to its fair meaning, not strictly for or against the
Employee, the Company, and with no regard whatsoever to the identity or status
of any person or persons who drafted all or any portion of this Agreement.
11.10 NOTICES. Any notices to be given pursuant to this Agreement by
either party to the other party may be effected by personal delivery or by
registered or certified mail, postage
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prepaid and with return receipt requested. Mailed notices shall be addressed
to the parties at the addresses stated below, but each party may change its
or his address by written notice to the other in accordance with this
Paragraph 11.10. Notices delivered personally shall be deemed received on the
date of delivery. Notices delivered by mail shall be deemed received on the
third business day after the mailing thereof.
Mailed notices to the Employee shall be addressed as follows:
John A. Tanner
1224 Serene Valley Court
San Jose, California 95120
Mailed notices to the Company shall be addressed as follows:
IMGIS, Inc., (dba "AdForce")
10101 N. De Anza Boulevard
Suite 210
Cupertino, California 95014
Attention: Chief Executive Officer
IN WITNESS WHEREOF, the Company and the Employee have each duly
executed this Agreement as of the date set forth above.
IMGIS, Inc. (dba "AdForce")
By: /s/ Charles W. Berger
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Charles W. Berger
Title: Chief Executive Officer
Chairman of the Board of Directors
/s/ John A. Tanner
-----------------------------------
John A. Tanner
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