Employment Agreement - Phone.com Inc. and Michael C. Mulica
PERSONAL AND PRIVATE
October 4, 1999
Mr. Michael C. Mulica
2324 Lincolnwood Avenue
Evanston, IL 60201
Dear Mike:
I am delighted to confirm our offer to you to join Phone.com, Inc. Each person
at Phone.com, Inc. will help shape our values and direction, each person will
add his or her unique strengths and perspectives, and we are certainly looking
forward to your contributions to our growing company.
The offer is for you to join us as a Senior Vice President, Worldwide Sales,
Support and Consulting reporting to myself. Your monthly salary will be
$18,333.33 per month or $220,000 on an annualized basis, and your annual target
compensation will be $380,000, with the bonus based upon your performance in
achieving defined objectives in your position as Senior Vice President,
Worldwide Sales, Support and Consulting. For the first nine months of your
employment, you will receive a non-recoverable draw equal to your incentive
bonus. From that point on your incentives will be governed by the plan
provisions which include a 50% recoverable draw. As an employee you are also
eligible to receive our standard employee benefits.
Subject to the approval of the Board of Directors of Phone.com, Inc. you will be
granted an option to purchase.
1. 175,000 shares of Common Stock at an exercise price equal to the fair market
value of the Common Stock at the date of grant. The shares will vest over
four years with a one year cliff, meaning that one fourth of your shares
will be vested one year from your hire date and the remaining shares will
be vest monthly after your first year of employment for the following
three years.
2. 25,000 shares of Common Stock at an exercise price equal to half of the
closing price of the Common Stock on the date of grant. Vesting for this
grant will commence on the date of grant and the shares will vest on a
monthly basis over a period of four years. Note these options will be
considered non-qualified stock options (NSO's) and will be subject to
taxation at the time of exercise.
3. Two blocks of 50,000 options which may be granted along with the first grant
of 175,000 options or on the first day of the following two quarters,
whichever you choose. However, you must make your performance on your date
of hire. The shares will vest over four years with one year cliff, meaning
that one fourth of your shares will be vested one year from your hire date
and the remaining shares will vest monthly after your first year of
employment for the following three years .
Vesting will of course, depend on your continued employment with Phone.com, Inc.
You will be offered to sign a "double trigger" agreement, which calls for
accelerated vesting of your stock if you are terminated with an 18 month period
after the Company is acquired.
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As we have discussed, we are extending additional financial support for your
relocation to the Bay Area. The relocation benefits available to you are
described below:
1. Moving of typical and customary household goods to your primary residence in
California, including two automobiles.
2. Storage of household goods for up to 30 days.
3. Reimbursement for real estate sales commissions on the sale of year existing
residence in Evanston as well as your second home in Wisconsin up to maximum
of $80,000 in total for both. It is expected that you will make every effort
to minimize these costs through negotiated real estate sales commissions.
4. Your may have the option to secure a one-time low-interest loan which will
be secured against your primary California residence. The amount of this
loan will be negotiated separately dependent on the specifics of your real
estate transaction, with the interest and repayment terms of this loan being
set forth in a separate loan agreement. It is understood that both you and
Phone.com will be reasonable in the negotiation of this loan agreement.
5. On the purpose of your primary residence in California, payment of closing
costs that are typical for a buyer in the California area that are non-
recurring and not negotiable or negotiated up to one percent (1%) of the
purchase price.
6. Temporary living accommodations for a period of up to 180 days at
accommodations selected by Phone.com.
7. Substitute transportation for a period of up to 30 days or until your
personal vehicle arrives, whichever is sooner.
8. Payment of expenses related to two house-hunting trips to the Bay Area with
your spouse. This would include coach round trip airfare, rental care and
per diem meal expenses.
9. Use of local relocation counseling services as selected by the Company.
Any amounts received by you for relocation expenses will be reported as taxable
income to you in the year received as required by applicable tax law. Income
taxes which result from Company payments under this agreement are your
responsibility. You may wish to consult a tax advisor to clarify the tax
implications to you. Relocation must be completed and associated expenses must
be submitted to Phone.com, Inc. by not later than one year from your employment
date.
You should be aware that your employment with Phone.com, Inc. is for no
specified period and constitutes "at will" employment. As a result, you are
free to resign at any time, for any reason or for no reason. Similarly,
Phone.com is free to conclude its employment relationship with you at any time,
with or without cause. However, should your employment be terminated except "for
cause" during the first 24 months of employment, you will be eligible to receive
a severance package equal to 12 months of target pay and benefits, excluding the
further vesting of options. After 24 months of employment, this severance
package will be equal to six months of target pay and benefits again excluding
the further vesting of options.
[Cause" shall mean (i) gross negligence or willful misconduct in the performance
of the Employee's duties to the Company; (ii) repeated unexplained or
unjustified absence from the Company; (iii) a material and willful violation of
any federal or state law; (iv) refusal or failure to act in accordance with any
specific direction or order of the Company; (v) commission of any act of fraud
with respect to the Company; or (vi) conviction of a felony on a crime involving
moral turpitude causing material harm to the standing and reputation of the
Company, in each case as determined by the Board of Directors of the Company.]
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You are invited to attend Day One Orientation on your first day of work during
which you will learn more about UP's business, culture and benefits.
Orientation will be held from 9:00 AM to 11:00 AM in the Human Resources
Department. For purposes of Federal Immigration Law, you will be required to
provide to the Company documentary evidence of your identity and eligibility
for employment in the United States. Such documentation must be provided to us
within three (3) business days of your date of hire, or our employment
relationship with you may be terminated.
Upon joining Phone.com, Inc. you will be required to sign a confidentiality
and invention agreement in which you will be asked to protect the company's
confidential information and to assign to the company any inventions produced
in the course of your work.
This letter together with the confidentiality agreement sets forth the terms
of your employment with Phone.com, Inc. and supercedes any prior
representations or agreements, whether written or oral. This letter may not be
modified or amended except by a written agreement signed by Phone.com, Inc.
and you. Please review the terms to make sure they are consistent with your
understanding. If so, send back to me this signed offer letter no later than
Wednesday, October 6, 1999. As we have discussed, your expected start date is
on or before November 1, 1999.
Your acceptance of this offer represents a unique opportunity for Phone.com,
Inc. both to grow and to succeed. I want to thank you for the commitment you
have made to our common vision and look forward to working with you.
Accepted by:
/s/ Alain Rossmann /s/ Michael Mulica
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Alain Rossmann Michael Mulica
Chairman and CEO