Employment Agreement - NextCard Inc. and Yinzi Cai
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into this 1st day
of July, 2001 (the "Effective Date"), by and between Yinzi Cai ("Employee") and
NextCard, Inc., a Delaware corporation (the "Company").
THE PARTIES HERETO AGREE AS FOLLOWS:
1. Employment and Duties. The Company agrees to employ Employee as
its President and Chief Operating Officer and Employee agrees to serve the
Company in such capacity, with the authority and responsibilities customarily
accorded a president and chief operating officer in an organization that also
has a chief executive officer to whom the president and chief operating officer
reports, in managing the following key functions of the Company's consumer
unsecured and secured credit card business groups: customer acquisition,
customer loyalty programs, consumer credit, technology and operations. Employee
shall loyally and conscientiously perform such services and duties as are
customarily incident to such employment. Employee agrees to devote substantially
all of her normal business time and efforts to the performance of her duties
under this Agreement (which will include making herself available to serve on
the Boards of Directors of direct and indirect subsidiaries of the Company, if
so selected to serve, and also to serve as an officer of direct and indirect
subsidiaries of the Company), provided that the devotion of time to personal
investments or other personal matters will not be deemed a breach of this
Agreement if it does not substantially interfere with the performance of
Employee's duties hereunder. Employee shall duly and faithfully perform and
observe any and all rules and regulations which the Company (including its
direct and indirect subsidiaries as relevant) has established governing the
conduct of its business or its employees. Employee shall report to the chief
executive officer of the Company.
2. Certain Definitions. For the purposes hereof:
a. "Breakeven Date" will mean the end of the first calendar
month immediately following the first calendar quarter in which the Company (on
a consolidated basis) achieves positive Net Income (i.e. net income after tax as
reflected in the Company's published financial statements prepared in accordance
with generally accepted accounting principles as applied in the Company's
audited financial statements). In the event of any dispute concerning the
computation of Net Income, the determinations of the Company's auditors will be
final and conclusive.
b. "Cause" will mean (i) Employee has intentionally engaged
in competition with the Company (and/or its direct and indirect subsidiaries),
committed an act of embezzlement, fraud or theft with respect to the property of
the Company (and/or its direct and indirect subsidiaries), deliberately
disregarded the rules of the Company
-1-
<PAGE>
Exhibit 10.49
(and/or its direct and indirect subsidiaries) or acted in a grossly negligent
manner with respect to the business or affairs of the Company (and/or its direct
and indirect subsidiaries), (ii) Employee has repeatedly abused alcohol or drugs
on the job or in a manner affecting her job performance, (iii) Employee has been
charged with commission of a felony offense; or (iv) Employee remains in
material willful breach of a material provision of this Agreement (or any other
agreement between Employee and the Company (and/or its direct and indirect
subsidiaries)) or of any fiduciary duty to the Company for fourteen (14) days
after receiving notice of such breach from the Company.
c. "Disability" shall mean a physical or mental condition,
verified by a physician mutually designated by the Company and Employee, which
has prevented or likely will prevent Employee from carrying out one or more of
the material aspects of her assigned duties for at least one hundred eighty
(180) consecutive days.
d. "Good Reason" will mean: (i) a materially adverse change
in Employee's authority or responsibilities with the Company but excluding a
change in authority and responsibilities resulting from a decision by the Board
of Directors that the Company's secured credit card business group has grown to
such a size, complexity or importance that it is appropriate that the secured
credit card business group report to a person other than Employee; (ii) a
reduction by the Company in Employee's base salary (other than as part of an
Approved Salary Reduction as defined below); (iii) the Company's requiring
Employee to be based in excess of 50 miles from the Company's present executive
offices located in San Francisco, California; (iv) failure of the Company to
provide support, information, assistance and staffing reasonably appropriate for
Employee to carry out Employee's duties (other than an across-the-board
reduction approved by the Board of Directors in good faith which generally
affects executives substantially the same); (v) the failure by the Company to
continue in effect for Employee any material benefit available generally to the
Company executives, including but not limited to any retirement, pension or
incentive plan, life, accident, disability or health insurance plans, equity or
cash bonus plans or savings and profit sharing plans, or any action by the
Company which would adversely affect Employee's participation in or reduce
Employee's benefits under any of such plans or deprive Employee of any fringe
benefit enjoyed by Employee (but in all cases excluding reductions in benefits
approved by the Board of Directors and that generally affect Company executives
in a similar manner); or (vi) any other material breach by the Company of this
Agreement which is not cured within fourteen (14) days of notice thereof by
Employee to Company.
3. Compensation.
a. Base Salary; Withholding. Commencing with the Effective
Date, the Company shall pay Employee a base salary of $300,000 per year, subject
to increase from time to time (but no less frequently than annually based on
annual anniversaries of the Effective Date) in the good faith discretion of the
Board of Directors of the Company, payable in arrears in equal semi-monthly
installments; provided that Employee's annual
-2-
<PAGE>
Exhibit 10.49
base salary rate will be not less than $350,000 per year after the Breakeven
Date. Such increases shall be based on a review of the prevailing compensation
rates of comparable executives in comparable companies, as well as the
performance of Employee and the Company. The parties shall comply with all
applicable withholding requirements in connection with all compensation payable
to Employee hereunder. Employee acknowledges that, notwithstanding the above,
the Board of Directors may decrease her salary as part of a good faith general
reduction of salaries of Company executives (an "Approved Salary Reduction").
b. Bonus. For each year commencing with calendar year 2001,
Employee shall be eligible for a cash bonus award (in lieu of any other cash
bonus award program previously discussed, promised or agreed upon with respect
to any such year) in the discretion of the Company's Board of Directors based on
Company and Employee performance during the year. The bonus will be structured
based on a target bonus equal to 100% of Employee's annualized base salary,
based on the base salary rate paid to Employee in the last pay check of the
year, for achievement by the Company and by Employee of "stretch" performance
goals set by the Board of Directors. Determination of whether stretch goals have
been achieved and determination of appropriate bonus (if any) if stretch goals
are not completely achieved will be in the sole discretion of the Company's
Board of Directors.
c. Incentive Plans. In addition to all other benefits and
compensation provided by this Agreement, Employee shall be eligible to
participate (to the extent determined by the Board in its discretion) in such of
the Company's equity, compensation and incentive plans (including without
limitation stock and stock option plans) as are generally made available to
Company executives.
d. Vacation. Employee shall be entitled to such annual
vacation time with full pay as the Company may provide in its standard policies
and practices for other Company executives; provided, however, that in any event
Employee shall be entitled to a minimum of four (4) weeks annual paid vacation
time (accrual of vacation at such rate commencing as of the Effective Date),
subject to Company vacation policies that may cap further accrual.
e. Other Benefits. Employee shall participate in and have the
benefits of all present and future vacation, holiday, paid leave, unpaid leave,
life, accident, disability, dental, vision and health insurance plans, pension,
profit-sharing and savings plans and all other plans and benefits which the
Company now or in the future from time to time makes generally available to
Company executives.
4. Business Expenses. The Company shall promptly reimburse Employee
for all appropriately documented, reasonable business expenses incurred by
Employee in accordance with Company policies for Company executives.
-3-
<PAGE>
Exhibit 10.49
5. Term. This Agreement shall commence as of the Effective Date and,
shall continue indefinitely until Employee's employment with the Company is
terminated as set forth herein.
6. Termination by the Company Without Cause or by Employee for Good
Reason. The Company may, by delivering seven (7) days' prior written notice to
Employee, terminate Employee's employment and service to the Company (and its
direct and indirect subsidiaries) at any time and for any reason without Cause.
Employee may terminate her employment and service to the Company (and its direct
and indirect subsidiaries) for Good Reason at any time upon providing written
notice of termination to the Company. In the event of any such termination by
the Company or the Employee, other than a termination as to which Section 7 or 9
applies, the following are agreed upon:
a. The Company will pay to Employee, no later than the date
of termination, a lump sum equal to Employee's base salary accrued and unpaid
through the date of termination, all accrued vacation pay and any bonus earned
for a prior calendar year, but then unpaid.
b. The Company will continue to pay to Employee compensation
at the annualized base salary rate applicable to Employee's paycheck last paid
prior to termination for a period of twelve (12) months following termination if
termination occurs prior to the Breakeven Date, or for a period of twenty-four
(24) months following termination if termination occurs on or after the
Breakeven Date.
c. Within a reasonable time following termination, the
Company's Board of Directors will determine in its discretion an appropriate
cash bonus, if any, to be paid to Employee based on degree of achievement of
"stretch" performance goals (as referred to in Section 3(b)) through the date of
termination and pro rating target bonus based on the portion of the year through
the date of termination. Such bonus, if any, will be paid within thirty (30)
days of such determination.
d. The Company will provide, at the Company's expense,
coverage to Employee under the Company's life insurance and disability insurance
policies and to Employee and her dependents under the Company's health plan, or
in the event any of the Company's health plan, life insurance, or disability
insurance are not continued or Employee is not eligible for coverage thereunder
due to her termination of employment, the Company shall pay for the premiums for
equivalent coverage for a period of twenty-four (24) months after the date of
termination.
e. In addition, notwithstanding anything to the contrary
contained herein (other than in Section 10 hereof) or in any agreement with
respect hereto, following termination of Employee's employment pursuant to this
Section 6, (i) vesting on a monthly basis will continue, at the same rate
following termination as immediately
-4-
<PAGE>
Exhibit 10.49
prior to termination with respect to each equity option, restricted equity grant
and similar right held by Employee with respect to securities of the Company,
over the period from date of termination through the applicable period referred
to in Section 6(b), above, and the balance of such unvested equity options,
etc., if any, that remains unvested as of the end of such applicable period will
vest at the end of such applicable period; provided, however, that if the date
of termination is prior to the Breakeven Date, then vesting pursuant to this
Section 6(e) will not, with respect to a particular equity option, etc. cause
more than seventy-five percent (75%) of the portion of such equity option, etc.
that is unvested as of the termination to become vested, and (ii) Employee shall
have until the later of twelve (12) months following the date of termination, or
three (3) months following vesting of such particular portion of an option, to
exercise any unexercised, vested options. Employee acknowledges that exercise of
an incentive stock option during any extended exercise period may disqualify
treatment as an incentive stock option for tax purposes.
f. It shall be a condition to Employee's eligibility to
receive the payments and benefits referred to in Sections 6(b) through 6(e) that
Employee shall have executed a general release in a form proposed by the Company
in good faith, releasing the Company, its affiliates, officers, directors,
employees, agents and attorneys from any and all claims associated with
Employee's service to the Company and the termination of Employee's employment
with the Company.
7. Termination by the Company for Cause. The Company may terminate
this Agreement at any time if such termination is for "Cause," as defined above,
by delivering to Employee prior written notice of termination supported by a
reasonably detailed statement of the relevant facts and reason for termination.
In the event of such termination, the Company shall pay Employee, no later than
ten (10) days following the date of termination, a lump sum equal to Employee's
accrued base salary through the date of termination, all accrued vacation pay
and any bonus earned for a prior calendar year, but then unpaid.
8. Voluntary Termination by Employee. Employee may terminate this
Agreement at any time for any reason or no reason upon delivering thirty (30)
days' prior written notice to the Company. No later than the date of
termination, the Company shall pay Employee a lump sum equal to her accrued base
salary through the date of termination, all accrued vacation pay and any bonus
earned for a prior calendar year, but then unpaid, unless Section 6 or 9 applies
to such termination.
9. Termination by Death or Disability.
a. Death. In the event of the death of Employee during the
term hereof, the Company, within ten (10) days of receiving notice of such
death, shall pay Employee's estate accrued base salary through the date of her
death, all accrued vacation pay and any bonus earned for a prior calendar year,
but then unpaid, and the Company
-5-
<PAGE>
Exhibit 10.49
shall continue to pay Employee's then base salary for twelve (12) months
following the date of death. In addition, notwithstanding anything to the
contrary contained herein or in any agreement with respect thereto, upon
termination of Employee's employment pursuant to this Section 9(a), fifty
percent (50%) of the then remaining balance of unvested equity options,
restricted equity grants and similar rights held by Employee with respect to
securities of the Company shall automatically become fully vested and shall
become immediately exercisable.
b. Disability. In the event of Employee's Disability during
the term hereof, the Company, within ten (10) days following the determination
of Disability, shall pay Employee accrued base salary through the date of such
determination, all accrued vacation pay and any bonus earned for a prior
calendar year, but then unpaid, and the Company shall continue to pay Employee's
salary for twelve (12) months following the date of such determination, less all
proceeds of Company-paid disability insurance received by Employee during such
period. In addition, notwithstanding anything to the contrary contained herein
or in any agreement with respect hereto, upon termination of Employee's
employment pursuant to this Section 9(b), fifty percent (50%) of the then
remaining balance of unvested equity options, restricted equity grants and
similar rights held by Employee with respect to securities of the Company shall
automatically become fully vested and shall become immediately exercisable. The
Company may condition eligibility for such salary continuation and additional
vesting on Employee's execution of a general release of the type described in
Section 6(f).
c. Conformance. The provisions of this Section 9 supercede
and prevail over any contrary or inconsistent provision of the various Stock
Option Agreements to which Employee and the Company are parties.
10. Condition Related to Certain Payments. Employee acknowledges and
agrees that, notwithstanding anything else herein, if Employee:
(a) becomes employed by, renders services to, becomes
associated with, creates, or invests in (other than investments in public
companies at the level of not more than 1%) any of the following businesses: (i)
businesses that involve the extension of consumer credit (but in the case of
employment or rendering of services, only to the extent that Executive's
employment or rendering of services actively involves the consumer credit side
of such a business); (ii) development of internet based payment systems,
including any business involved, as a primary focus of its business, in
internet-based person to person payments or electronic bill presentment or
payment; (iii) electronic banking; (iv) electronic wallet companies; or (v)
businesses involving the direct marketing of financial services; or
(b) attempts to solicit or encourage, directly or indirectly,
any employee of the Company or its affiliates to leave the employ of the Company
and its affiliates,
-6-
<PAGE>
Exhibit 10.49
then the payments and benefits referred to in Sections 6(b), 6(d), 6(e)
(including both further vesting and extended exercisability after the date that
Employee so becomes employed, etc.) and 9(b) will cease. This Section 10 does
not, in and of itself, prevent Employee from becoming so employed, etc.; the
effect of this Section 10 is merely to condition certain payments and benefits
to which Employee is not otherwise entitled. Nothing in this Section 10
authorizes Employee to become so employed; Employee's obligations to the Company
under confidentiality agreements, etc. remain unaffected by this Section 10.
11. No Termination by Merger, Transfer of Assets or Dissolution. This
Agreement shall not be terminated by any voluntary or involuntary dissolution of
the Company or the transfer of all or substantially all the assets of the
Company or the merger or other business combination of the Company with or into
another entity.
12. Assignment. The rights and obligations of the parties under this
Agreement shall be binding upon and inure to the benefit of their respective
successors, assigns, executors, administrators and heirs, provided, however,
that Employee may not delegate any of Employee's duties under this Agreement.
13. Miscellaneous.
a. Complete Agreement. This Agreement constitutes the entire
agreement between the parties and cancels and supersedes all other prior or
contemporaneous agreements between the parties which relate to the subject
matter contained in this Agreement, but excluding the following agreements to
which Employee and the Company are parties: (i) the Employee Confidential
Information and Invention Agreement previously executed by Employee, (ii)
various Stock Option Agreements and associated documentation, and (iii) the
Stock Repurchase Agreement (and associated Promissory Note) dated December 13,
2000, as amended, each of which will continue in full force and effect, except
as expressly amended hereby. This Agreement may be executed in counterparts.
b. Expenses. Each party to this Agreement will bear its own
costs and expenses associated with the negotiation and execution of this
Agreement.
c. Modification, Amendment and Waiver. No modification or
amendment of any provision of this Agreement shall be effective unless approved
in writing by both parties. The failure at any time to enforce any of the
provisions of this Agreement shall in no way be construed as a waiver of such
provisions and shall not affect the right of either party thereafter to enforce
each and every provision hereof in accordance with its terms.
-7-
<PAGE>
Exhibit 10.49
d. Governing Law. This Agreement shall be construed in
accordance with the substantive laws of the State of California without regard
to choice of law provisions thereof.
e. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
f. Attorneys' Fees. In the event of litigation under this
Agreement (including enforcing judgments and appeals), the prevailing party
shall be entitled to reimbursement of its reasonable attorneys' fees and costs
of suit in addition to such other relief as may be granted.
g. Interpretation. This Agreement will not be interpreted for
or against either party based on who drafted this Agreement. Each party
acknowledges that it or she has had an opportunity to review this Agreement,
prior to execution, with counsel of its choosing.
h. Notices. All notices and other communications under this
Agreement shall be in writing and shall be given in person or by telegraph,
telefax or first class mail, certified or registered with return receipt
requested, and shall be deemed to have been duly given when delivered personally
or three days after mailing or one day after transmission of a telegram or
telefax, as the case may be, to the respective persons named below.
If to the Company: NextCard, Inc.
595 Market Street, Suite 950
San Francisco, California 94105
Attention: Chief Executive Officer
With a copy to: Ronald Star, Esq.
Howard, Rice, Nemerovski, Canady, Falk & Rabkin
Three Embarcadero Center, Suite 700
San Francisco, California 94111
If to the Employee: Yinzi Cai
1431 Greenwood Avenue
Palo Alto, CA 94301
-8-
<PAGE>
Exhibit 10.49
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the day and year first above written.
COMPANY: NextCard, Inc., a Delaware corporation
By:
-------------------------------------
John Hashman, Chief Executive Officer
EMPLOYEE:
----------------------------------------
Yinzi Cai
-9-