Employment Agreement - eCollege.com and Robert Holmes
EMPLOYMENT AGREEMENT
DATE: November 5, 1999
PARTIES: eCollege.com, a Delaware corporation (the "Company")
Robert Haimes, a resident of Colorado (the "Employee")
RECITAL:
The Company is engaged in the business of online web production, online
education and online training. The Company desires to employ and retain the
unique experience, abilities, and services of Employee as Vice President of
Marketing in the Company's office in Denver, Colorado.
AGREEMENT:
The parties agree as follows:
1) EMPLOYMENT
a) Duties. Company shall employ Employee as Vice President of Marketing.
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Employee accepts employment with the Company on the terms and conditions
set forth in this Agreement, and agrees to devote his full time and
attention (reasonable periods of illness excepted) to the performance of
his duties under this Agreement. In general, such duties shall consist
of the duties and responsibilities described on Schedule A to this
Agreement. In performing such duties, Employee shall be subject to the
direction and control of the Vice President of the Employee's
Department, the Executive Committee and the President of the Company.
Employee further agrees that in all aspects of such employment, Employee
shall comply with the policies, standards, and regulations of the
Company established from time to time, and shall perform his duties
faithfully, intelligently, to the best of his ability, and in the best
interest of the Company. The devotion of reasonable periods of time by
Employee for personal purposes or charitable activities shall not be
deemed a breach of this Agreement, provided that such purposes or
activities do not materially interfere with the services required to be
rendered to or on behalf of the Company; however, any outside business
activities that are not first submitted in writing to the President of
the Company, and approved in writing by the President shall be deemed a
breach of this Agreement.
b) Term. Employment of the Employee shall begin on November 5, 1999 and
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shall end on the date of termination pursuant to Section 5 of this
Employment Agreement (the "Agreement"). The term of this Agreement shall
commence on November 5, 1999 and terminate on October 31, 2000 (the
"Initial Term"); the term of this Agreement shall be extended
automatically for successive periods of one (1) year each ("Renewal
Term") after the expiration of the Initial Term and any subsequent
Renewal Term, unless either (i) the Company provides the Employee, or
the Employee provides the Company, with written notice to the contrary
at least thirty (30) days prior to the end of the Initial Term or any
Renewal Term or (ii) the Employee is no longer employed by the Company
at the end of the Initial Term or the Renewal Term, as appropriate.
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2) NON SOLICITATION; CONFIDENTIALITY
a) Nonsolicitation. During the term of this Agreement and for a period of
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twelve (12) months after the termination of this Agreement, Employee
shall not, within the United States or Canada, directly or indirectly:
(1) solicit or accept if offered to his, with or without solicitation,
on his own behalf or on behalf of any other person, the services of any
person who is an employee of the Company, nor solicit any of the
Company's employees to terminate employment with the Company, nor agree
to hire any employee of the Company into employment with himself or any
company, individual or other entity; (2) directly or indirectly,
contact, solicit or direct any person, firm, or corporation to contact
or solicit, any of the Company's customers, prospective customers, or
business brokers for the purpose of selling or attempting to sell, any
products and/or services that are the same as, or similar to, the
products and services provided by the Company to its customers during
the term hereof; or (3) disclose the identity of any such business
brokers, customers, or prospective customers, or any part thereof, to
any person, firm, corporation, association, or other entity for any
reason or purpose whatsoever.
b) Confidentiality. Employee acknowledges and agrees that all product
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specifications, product planning information, lists of the Company's
customers and suppliers, marketing plans, financial information, and
other Company data related to its business ("Confidential Information")
are valuable assets of the Company. Except for information that is a
matter of public record, Employee shall not, during the term of this
Agreement or after the termination of employment with the Company,
disclose any Confidential Information to any person or use any
Confidential Information for the benefit of Employee or any other
person, except with the prior written consent of the Company.
c) Ideas, Inventions. The Employee recognizes and agrees that all ideas,
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inventions, enhancements, plans, writings, and other developments or
improvements (the "Inventions") conceived by the Employee, alone or with
others, during the term of his employment, whether or not during working
hours, that are within the scope of the Company's business operations or
that relate to any of the Company's work or projects, are the sole and
exclusive property of the Company. The Employee further agrees that (1)
he will promptly disclose all Inventions to the Company and hereby
assigns to the Company all present and future rights he has or may have
in those Inventions, including without limitation those relating to
patent, copyright, trademark or trade secrets; and (2) all of the
Inventions eligible under the copyright laws are "work made for hire."
At the request of and without charge to the Company, the Employee will
do all things deemed by the Company to be reasonably necessary to
perfect title to the Inventions in the Company and to assist in
obtaining for the Company such patents, copyrights or other protection
as may be provided under law and desired by the Company, including but
not limited to executing and signing any and all relevant applications,
assignments or other instruments.
Notwithstanding the foregoing, the Company hereby notifies the Employee
that the provisions of this Section 2)c) shall not apply to any
Inventions for which no equipment, supplies, facility or trade secret
information of the Company was used and which were developed entirely on
the Employee's own time, unless (1) the Invention relates (i) to the
business of the Company, or (ii) to actual or demonstrably anticipated
research or development of the Company, or (2) the Invention results
from any work performed by the Employee for the Company.
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d) Nondisparagement. During the term of this Agreement and for a period of
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two years following the voluntary or involuntary termination of the
Employee's employment, the parties shall not make any statements
concerning the other party that would tend to diminish the esteem,
respect, good will, or confidence in which that party is held by members
of the community in which that party, or its officers, directors and
employees, conduct their business affairs or that would provoke adverse or
derogatory feelings or opinions in such members of those communities as to
that party.
e) Return of Documents and Computer Data. Employee acknowledges and agrees
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that all originals and copies of all computer data, records, reports,
documents, lists, plans, drawings, memoranda, notes, and other
documentation related to the business of the Company or containing any
Confidential Information shall be the sole and exclusive property of the
Company, and shall be returned to the Company upon the termination of
employment with the Company or upon the written request of the Company.
f) Injunction. Employee agrees that it would be difficult to measure damage
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to the Company from any breach by Employee of Section 2)a), 2)b), 2)c) or
2)d) and that monetary damages would be an inadequate remedy for any such
breach. Accordingly, Employee agrees that if Employee shall breach or take
steps preliminary to breaching Section 2)a), 2)b), 2)c) or 2)d), the
Company shall be entitled, in addition to all other remedies it may have
at law or in equity, to an injunction or other appropriate orders to
restrain any such breach, without showing or proving any actual damage
sustained by the Company.
g) No Release. Employee agrees that the termination of employment with the
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Company or the expiration of the term of this Agreement shall not release
Employee from any obligations set forth herein pursuant to Section 2)a) -
f).
3) COMPENSATION
a) Base Compensation; Bonus Compensation. In consideration of all services
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to be rendered by Employee to the Company, the Company shall pay to
Employee compensation as described on Schedule A of this Agreement.
b) Other Benefits. Employee has been provided with a brochure that provides
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a brief, general description of the Company's benefits. Employee agrees
and acknowledges that the benefits provided by the Company may be changed
or amended from time to time, and at any time, at the sole discretion of
the Company.
4) COMPANY POLICIES
a) General Policy Descriptions. Employee has been provided with the
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eCollege.com Employee Benefits Summary, which includes descriptions of
Medical Insurance and Prescription Card, Dental Insurance, Flexible
Reimbursement Program, Personal Days, Paid Holidays, Direct Deposit, Bonus
Programs, Employee Referral Program and Smoke Free Work Environment as of
November 5, 1999. Additional policies and standards of the Company will be
provided to Employee during the New Employee Orientation, and from time to
time during the Employee's employment.
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b) Abide by All Policies Established by the Company. Employee agrees to
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abide by all rules, policies, standards and regulations of the Company,
and in particular the three rules identified in Schedule B of this
Agreement.
c) Changes to Company Policies. Employee agrees and acknowledges that the
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Company's policies may be created, eliminated, changed or amended from
time to time, and at any time, at the sole discretion of the Company.
5) TERMINATION
a) At-Will Employment. Employee agrees and acknowledges that, just as he has
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the right to terminate his employment with the Company at any time for any
reason, the Company has the same right, and may terminate his employment
with the Company at any time for any reason.
b) Severance. The Company shall provide Employee with severance pay equal to
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approximately one week of Employee's base salary, less any negative
accrued vacation days, provided that the Employee's termination is either
(i) voluntary termination where the Employee provides the Company with two
weeks written notice of resignation or (ii) involuntary termination at any
time beginning ninety (90) days after the date of this Agreement, and not
pursuant to Section 5)c) of this Agreement.
c) Immediate Termination. The employment of Employee by the Company may be
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terminated immediately in the sole discretion of the either the President,
Vice President or the Board of Directors of the Company upon the
occurrence of any one of the following events:
i) Any time during the first 90 days of this Agreement;
ii) If the Employee willfully fails or refuses to comply, in a material
manner, with the policies, standards, and regulations of the
Company;
iii) Employee engages in fraud, dishonesty, or any other act of
misconduct in the performance of Employee's duties on behalf of the
Company;
iv) Employee fails to perform any material provision of this Agreement
to be performed by Employee, provided however, that if such breach
can be cured, the Employee will receive reasonable, written notice
of breach and opportunity to cure such breach.
v) Employee violates one or more of the rules identified on Schedule B.
6) REPRESENTATIONS AND WARRANTIES OF EMPLOYEE
a) No Other Employment Agreements. Employee represents and warrants to the
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Company that there is no employment contract or any other contractual
obligation to which Employee is subject, which prevents Employee from
entering into this Agreement or from performing fully Employee's duties
under this Agreement.
b) Special Needs. There are no special accommodations required to be made by
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Company for Employee to perform his duties and responsibilities.
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7) MISCELLANEOUS PROVISIONS
a) Notices. Any notice, election, waiver, consent, acceptance or other
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communication required or permitted to be given under this Agreement shall
be in writing and shall be hand delivered, transmitted via fax, by e-mail
or sent via nationally recognized third party delivery (such as Federal
Express or UPS) for next day delivery, addressed to the parties as
follows:
If to Company:
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eCollege.com
Attn: General Counsel
10200 "A" East Girard Ave.
Denver, Colorado 80231
Fax: 1-303-873-7449
If to Employee:
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Robert Haimes
10200 "A" East Girard Ave.
Denver, Colorado 80231
Fax: 1-303-873-7449
Any notice or other communication shall be deemed to be given at the date
the notice is hand delivered to the individual, the date the notice is
sent via fax, or the date following the date of deposit with any
nationally recognized third party delivery (such as Federal Express or
UPS) for next day delivery to the addressee. The addresses to which
notices or other communications shall be sent may be changed from time to
time by giving written notice to the other party as provided in this
Paragraph.
b) Amendments. This Agreement may be amended only by an instrument in
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writing executed by all the parties.
c) Entire Agreement. This Agreement (including the Schedules) sets forth the
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entire understanding of the parties with respect to the subject matter of
this Agreement and supersedes any and all prior understandings and
agreements, whether written or oral, between the parties with respect to
such subject matter.
d) Counterparts. This Agreement may be executed by the parties in separate
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counterparts, each of which when executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. Fax signatures shall have the same effect as an original
signature.
e) Severability. If any provision of this Agreement shall be invalid or
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unenforceable in any respect for any reason, the validity and
enforceability of any such provision in any other respect and of the
remaining provisions of this Agreement shall not be in any way impaired;
provided, however, that the parties will attempt to agree upon a valid and
enforceable provision which shall be a reasonable substitute for each
invalid provision or unenforceable provision in light of the tenor of this
Agreement and, upon so agreeing, shall incorporate such substitute
provision into this Agreement.
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f) Waiver. A provision of this Agreement may be waived only by a written
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instrument executed by the party waiving compliance. No waiver of any
provision of this Agreement shall constitute a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a
continuing waiver. Failure to enforce any provision of this Agreement
shall not operate as a waiver of such provision or any other provision.
g) No Third-Party Beneficiaries. Nothing in this Agreement, express or
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implied, is intended to confer on any person, other than the parties to
this Agreement, any right or remedy of any nature whatsoever.
h) Expenses. Except as otherwise provided herein, each party shall bear its
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own expenses in connection with this Agreement and the transactions
contemplated by this Agreement.
i) Exhibits. The exhibits and schedules referenced in this Agreement are a
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part of this Agreement as if fully set forth in this Agreement.
j) Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the United States of America and the State of
Colorado.
k) Arbitration.
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i) Any controversy or claim arising out of or relating to this Agreement,
including, without limitation, the making, performance, or
interpretation of this Agreement, any claim for employment
discrimination, wrongful termination or violation of any state or
federal law related to employment, shall be settled by arbitration.
ii) The parties may choose an arbitrator and rules of arbitration by
mutual agreement. Unless the parties agree otherwise, the arbitration
shall be conducted in Denver, Colorado in accordance with the then
current Commercial Arbitration Rules of the American Arbitration
Association in Denver, Colorado. The arbitration shall be held before
a single arbitrator (unless otherwise agreed by the parties). The
arbitrator shall be chosen from a panel of attorneys knowledgeable in
the field of business law in accordance with the then current
Commercial Arbitration Rules of the American Arbitration Association
and judgment upon the award of the arbitrator may be entered in any
court having jurisdiction thereof and any party to the arbitration
may, if it so elects, institute proceedings in any court having
jurisdiction for the specific performance of any such award. The
powers of the arbitrator shall include the granting of injunctive
relief. If the arbitration is commenced, the parties agree to permit
reasonable discovery proceedings as determined by the arbitrator,
including production of material documents, accounting of sources and
uses of funds, interrogatories and the deposition of each party and
any witness proposed by either party.
iii) The parties agree that the arbitrator shall have no jurisdiction to
consider evidence with respect to or render an award or judgment for
punitive damages (or any other amount awarded for the purpose of
imposing a penalty), incidental or consequential damages, except as
authorized by statute.
iv) The arbitrator shall award all direct costs of the arbitration,
including arbitrator's fees and arbitration filing fees according to
the parties' ability to pay.
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v) The arbitrator shall determine a schedule for the arbitration
proceedings such that a final determination of the matter submitted to
the arbitrator can be rendered and delivered to the parties within 150
days following the date that a demand for arbitration is filed.
vi) The parties agree that all facts and other information relating to any
arbitration arising under this Agreement shall be kept confidential to
the fullest extent permitted by law.
eCollege.com
By: /s/ Robert N. Helmick
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Robert N. Helmick, President
/s/ Robort Haimes
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Robert Haimes
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SCHEDULE A
COMPENSATION AND DUTIES
1) SALARY. For the period November 5, 1999 through October 31, 2000,
compensation to the Employee shall be at the rate of $140,000 per year,
payable on the Company's normal payroll dates, plus On Target Earnings of
$200,000 inclusive of the base salary.
2) SALARY ADJUSTMENT. Employee base compensation for the all periods after
October 31, 2000, shall be at the rate as set by the Compensation Committee
of the Company, payable on the Company's normal payroll dates.
3) BONUS/OTHER COMPENSATION. Employee bonus compensation, whether in cash,
Company stock, or other consideration, may be provided to Employee as
determined from time to time by the Board of Directors or the President of
the Company; the Company has no requirement to provide Employee with bonus
compensation of any type.
4) DUTIES AND JOB DESCRIPTION. The Vice President of Marketing is responsible
for managing the marketing department, including, but not limited to,
coordinating trade shows, advertising, public relations and other marketing
matters. The Vice President of Marketing reports to the Chief Operating
Officer.
5) Employee's duties may vary from time to time as determined by the Employee's
Supervisor, the Vice President of the Employee's Department and/or the
President of the Company.
Employee acknowledges that he has read and fully understands all terms set forth
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in this Schedule A.
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/s/ Robert S Haimes
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Robert Haimes
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SCHEDULE B
All employees must abide by the following rules of the Company:
HONESTY. Employees shall conduct their affairs with honesty and integrity and
shall not engage in fraud, dishonesty or any act of material misconduct.
SIGNING AGREEMENTS. Employees shall not sign any document or agreement that
creates a legally binding obligation on the Company. The only person authorized
to sign agreements is the CEO, Robert Helmick.
WRITTEN AGREEMENT. All employees of the Company and all independent contractors
of the Company must have a signed, written agreement with the Company prior to
performing work for the Company.
Any violation of the above rules may result in disciplinary action, including
termination of any employee found to have violated one or more of the above
rules.
Employee acknowledges that he has read and fully understands all terms set forth
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in this Schedule B.
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/s/ Robert S Haimes
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Robert Haimes
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ACKNOWLEDGMENT
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I acknowledge that I have received, read, and understood the Employment
Agreement, the Schedules attached thereto, and the Employee Benefits Handbook of
eCollege.com, (the "Company"). Further, I understand and agree to the following:
1. The Employment Agreement, the Schedules attached thereto, and the
Employee Benefits Handbook (the "Employment Documents") contain a brief summary
of some important Company guidelines and policies. Consequently, the Employment
Documents are not all-inclusive and do not include all guidelines and policies
which may affect my employment with the Company.
2. The Company may alter, amend, delete or add to any of the statements
contained in the Employment Documents, or any of its policies or guidelines, at
any time, with or without notice, and my continued employment with the Company
after any such deletion or addition constitutes acceptance.
3. No contract, agreement, understanding, course of dealing, practice, or
statement of any kind by any employee, supervisor, officer, director, or
representative of the Company shall be effective or binding upon the Company
unless it is in writing, refers to and names me personally, and is signed by me
and by an authorized Company representative.
4. Just as I have the right to terminate my employment with the Company at
any time for any reason, with or without cause and with or without notice, the
Company has the same right, and may terminate my employment with the Company at
any time for any reason, with or without cause, and with or without notice.
5. The Employment Documents provide for arbitration of any matter related
to my employment and any matter or claim between the Company any me. I
understand that by signing the Employment Agreement, I am waiving my rights to a
trial to a court or jury and to have any claim against the Company (including
claims relating to employment or termination) filed and heard in state or
federal court, and the Company has also waived its rights to have any claim
against me filed and heard in state or federal court. Instead, the Company and I
have agreed to have all disputes resolved by arbitration before the American
Arbitration Association.
/s/ Robert S Haimes
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Robert Haimes
11/5/99
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Date
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March 12, 2001
Robert S. Haimes
Senior Vice President Marketing and Business Development
10200 A East Girard Avenue
Denver, Colorado 80231
Re: Amendment to Employment Agreement
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Dear Bob:
I am writing to confirm that effective October 1, 2000 your salary is $180,000,
and your target bonus, subject to the discretion of the Board of Directors, is
$72,000. Effective November 30, 2000, your title is Senior Vice President,
Marketing and Business Development.
This letter is intended to amend your Employment Agreement to reflect your new
salary and/or title. The purpose of this letter is to express these changes
only; no terms and conditions of your Employment Agreement, other than the terms
that are expressly amended in this letter, are changed by this letter.
If you have any questions regarding this matter, please do not hesitate to
contact me. Please acknowledge your understanding and acceptance of this
amendment to your Employment Agreement by signing below and returning this
document to the General Counsel on or before March 16, 2001.
Sincerely,
/s/ Douglas H. Kelsall
Douglas H. Kelsall
Executive Vice President & CFO
Acknowledged and Accepted By:
/s/ Robert S. Haimes
Robert S. Haimes
Senior Vice President Marketing and Business Development