Employment Agreement - eCollege.com Inc. and Doug Kelsall
EMPLOYMENT AGREEMENT
DATE: August 9, 1999
PARTIES: eCollege.com, Inc., a Delaware corporation (the "Company")
Doug Kelsall, 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 the Company's Chief
Financial Officer.
AGREEMENT:
The parties agree as follows:
1) EMPLOYMENT
a) Duties. Company shall employ Employee as Chief Financial Officer.
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 CEO 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 of which Employee is given
written (including email) notice, 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 (for the purposes of this paragraph, the term "business
services" shall not include passive investment by Employee of his
personal assets) that are not first submitted in writing to the CEO of
the Company, and approved in writing by the CEO shall be deemed a
breach of this Agreement.
b) Term. Employment of the Employee shall begin on or before
___________________ on a date determined by Employee and the Company's
CEO ("Start Date") and shall end on the date of termination pursuant to
Section 5 of this Employment Agreement (the "Agreement").
2) COVENANT NOT TO COMPETE; CONFIDENTIALITY
a) Noncompetition. During the term of this Agreement and for a period of
six (6) months after the termination of this Agreement, Employee shall
not, within the United States or Canada, directly or indirectly: (1)
own (as a proprietor, partner, stockholder, or otherwise) an interest
of five percent (5%) or more in; or (2) participate (as an officer,
Page 1 - Doug Kelsall Employment Agreement
<PAGE>
director, or in any other capacity) in the management, operation, or
control of; or (3) perform services as or act in the capacity of an
employee, independent contractor, consultant, or agent of any division
or business unit of an enterprise, to the extent that such division or
business unit is engaged, directly or indirectly, or any company or
other entity engaged primarily, in the online education or online
training business except with the prior written consent of the CEO of
the Company; or, (4) 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 online education or online
training business products and services provided by the Company to its
customers during the term hereof.
In addition, during the term of this Agreement and for a period of 12
months after the termination of employment with the Company, the
Employee will not 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; and solicit or accept if offered to him, 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.
b) Confidentiality. Employee acknowledges and agrees that all product
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, information that Employee knew before the date
of this Agreement, information that becomes public knowledge without
fault of Employee, or information lawfully made available to Employee
from another source prior to or after the term of employment, 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,
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 (except for
any associated, reasonable out-of-pocket expenses of Employee which
Company will pay), 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.
Page 2 - Doug Kelsall Employment Agreement
<PAGE>
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.
d) Nondisparagement. During the term of this Agreement and for a period of
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
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 and Company agree that it would be difficult to
measure damages to the Company or Employee from any breach by Employee
or Company 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 and Company agrees that if Employee or Company shall breach or
take steps preliminary to breaching Section 2)a), 2)b), 2)c) or 2)d),
the Employee or Company, as appropriate, 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 Employee or
Company.
g) No Release. Employee agrees that the termination of employment with the
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), 2)b), 2)c), 2)d), or 2)e) or Company from any obligations
set forth herein pursuant to Section 2)d) or 5.
3) COMPENSATION
a) Base Compensation; Bonus Compensation. In consideration of all services
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 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. Employee shall be allowed to
participate in any benefit program created by the Compensation
Committee of the
Page 3 - Doug Kelsall Employment Agreement
<PAGE>
Board and approved by the Board and/or created by the Board, as a
benefit program provided to all members of the Management Committee of
the Company.
4) COMPANY POLICIES
a) General Policy Descriptions. Employee has been provided with the
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 March 31, 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.
b) Abide by All Policies Established by the Company. Employee agrees to
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
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 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 six months of Employee's base salary paid on the Company's normal
payroll dates, plus the pro-rata portion of any earned bonus (paid on
the normal date for payment of the bonus), plus/less any
positive/negative accrued vacation days, regardless of whether the
termination was voluntary or involuntary, provided that the termination
was not a termination for cause (as defined in Paragraph 5)c) below and
the Employee executes the severance agreement (attached hereto) waiving
any claims against the Company and in which the Company waives claims
against the Employee.
b) Immediate Termination. The employment of Employee by the Company may be
terminated immediately in the reasonable discretion of the either the
CEO or the Board of Directors of the Company upon the occurrence of any
one of the following events:
i) If the Employee willfully fails or refuses to comply, in a
material manner, with the policies, standards, and regulations of
the Company following written notice of breach and a reasonable
opportunity to cure;
ii) Employee engages in fraud, dishonesty, or any other act of
misconduct in the performance of Employee's duties on behalf of
the Company;
iii) 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
Page 4 - Doug Kelsall Employment Agreement
<PAGE>
Employee will receive reasonable, written notice of breach and a
reasonable opportunity to cure such breach;
iv) Employee violates one or more of the rules identified on Schedule
B.
Termination as a result of the foregoing will be deemed a "termination
for cause" for the purposes of this Agreement. All other terminations
by the Company will be deemed terminations without cause for the
purposes of this Agreement. A voluntary resignation by Employee
resulting from a material breach of this Agreement by the Company, a
material lessening of Employee's role, duties or status with the
Company or requirement that Employee's principal office be other than
in the Denver, Colorado metropolitan area will be deemed a termination
without cause for the purposes of this Agreement.
6) REPRESENTATIONS AND WARRANTIES OF EMPLOYEE
a) No Other Employment Agreements. Employee represents and warrants to the
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 Company for Employee to perform his duties and responsibilities.
7) MISCELLANEOUS PROVISIONS
a) Notices. Any notice, election, waiver, consent, acceptance or other
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:
eCollege.com
Attn: Denise Pilkington, General Counsel
Building A, 4th Floor
10200 East Girard Ave.
Denver, Colorado 80231
Fax: 1-303-873-7449
If to Employee:
Doug Kelsall
Building A, 4th Floor
10200 East Girard Ave.
Denver, Colorado 80231
Fax: 1-303-873-7449
Page 5 - Doug Kelsall Employment Agreement
<PAGE>
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
writing executed by all the parties.
c) Entire Agreement . This Agreement (including the schedules) sets forth
the 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
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
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.
f) Waiver. A provision of this Agreement may be waived only by a written
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) Further Assurances. From time to time, each of the parties shall
execute, acknowledge, and deliver any instruments or documents
necessary to carry out the purposes of this Agreement.
h) No Third-Party Beneficiaries -. Nothing in this Agreement, express or
implied, is intended to confer on any person, other than the parties to
this Agreement, any right or remedy of any nature whatsoever.
i) Expenses. Except as otherwise provided herein, each party shall bear
its own expenses in connection with this Agreement and the transactions
contemplated by this Agreement.
j) Exhibits. The exhibits and schedules referenced in this Agreement are a
part of this Agreement as if fully set forth in this Agreement.
Page 6 - Doug Kelsall Employment Agreement
<PAGE>
k) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the United States of America and the State
of Colorado.
l) Arbitration.
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 Employment 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 Employment 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.
iv) The arbitrator shall award all direct costs of the arbitration,
including arbitrator's fees and arbitration filing fees to the
substantially prevailing party. However, each party shall bear
their own costs related to the arbitration, such as attorneys'
fees, deposition costs, copy costs, express delivery costs,
travel costs, witness costs and postage.
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 seventy five (75) days following the date that the
arbitrator is appointed.
Page 7 - Doug Kelsall Employment Agreement
<PAGE>
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, Inc.
By:_____________________________________
Robert N. Helmick, CEO
_____________________________________
Doug Kelsall
Page 8 - Doug Kelsall Employment Agreement
<PAGE>
SCHEDULE A
COMPENSATION AND DUTIES
1) SALARY. For the period beginning the Start Date through October 1, 2000
(subject to (2), below), compensation to the Employee shall be at the rate
of $168,000 per year, payable on the Company's normal payroll dates.
2) SALARY ADJUSTMENT. Employee base compensation for periods after October 1,
2000 shall be at the rate as set by the Board of the Company, at the
recommendation of the CEO and the Compensation Committee, payable on the
Company's normal payroll dates. Salary adjustments will include any cost of
living increase provided generally to all members of the Management
Committee. Salary will not be adjusted downward except as part of a general
reduction in the salaries of senior executives of the Company.
3) BONUS/OTHER COMPENSATION. Employee shall be eligible for an annual bonus of
up to $85,000 based upon reasonable criteria and a bonus plan established
by the Compensation Committee and administered by the CEO. The bonus will
be paid following the annual audit of the Company's financial records, but
no later than March 31 of the year following the year in which the bonus
was earned. In any year in which the Employee is not employed by the
Company for the entire year, the bonus will be prorated according to the
number of days in the year that the Employee was employed by the Company.
4) STOCK OPTIONS. Employee shall be issued non-qualified stock options for
200,000 shares of the common stock, no par value, of the Company with an
exercise price of $10 per share. Options for 50,000 shares shall be vested
on the Start Date ("Start Date Options"). Option for an additional 50,000
shares shall vest on the first anniversary of the Start Date. Thereafter,
options on 4,166 shares shall vest on the last day of each month. Employee
shall not be allowed to exercise any options until he has been employed for
at least 12 consecutive months, and Employee shall not be allowed to
exercise any of the Start Date Options if he is not employed on the date of
the exercise of the Start Date Options; provided, however, that this
sentence shall not apply if Employee is terminated without cause during the
first 12 months of employment. All unvested options will vest on a change
of control of the Company. The stock options will provide for a net
exercise feature. All terms of the options shall be more fully described in
the Stock Option Agreement.
5) DUTIES AND JOB DESCRIPTION. As Chief Financial Officer Employee's duties
shall include:
. Manage the Finance Department and the financial affairs of the Company
. Manage the Corporate Services Department
. Report directly to CEO and perform such other duties and responsibilities
as assigned by the CEO
Employee acknowledges that he has read and fully understands all terms set forth
in this Schedule A.
_________________________
Doug Kelsall
Page 9 - Doug Kelsall Employment Agreement
<PAGE>
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. Unless authorized by the Board or the CEO, 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
in this Schedule B.
____________________________
Doug Kelsall
Page 10 - Doug Kelsall Employment Agreement
<PAGE>
ACKNOWLEDGMENT
--------------
I acknowledge that I have received, read, and understood the Employment
Agreement, the Schedules attached thereto, and the Employee Benefits Handbook of
eCollege.com, Inc., (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. Subject to the terms of the Agreement, 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
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.
________________________________
Doug Kelsall
________________
Date
Page 11 - Doug Kelsall Employment Agreement