Employment Agreement - Netpliance Inc. and James E. Cahill
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made as of March 1,
2001, by and between Netpliance, Inc., a Delaware corporation (the "Company"),
and James E. Cahill ("Employee").
WHEREAS, the Company desires to continue to obtain the services of
Employee, and Employee desires to continue to provide services to the Company,
in accordance with the terms and conditions of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Employee agree as
follows.
1. Employment. Effective on the Effective Date (as defined in Section
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2) and subject to the terms and conditions of this Agreement, the Company agrees
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to employ Employee as its Vice President and General Counsel, and Employee
agrees to perform the duties associated with that position diligently and to the
reasonable satisfaction of the Company. From the Effective Date until
termination of this Agreement, Employee will devote Employee's full business
time, attention and energies to the business of the Company.
2. Term and Termination. Employee will be employed under this Agreement
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for an initial term of two years (the "Initial Term"), beginning on the date of
the Agreement (the "Effective Date"). This Agreement shall renew for successive
one year periods after the completion of the Initial Term. Notwithstanding the
foregoing, either party may terminate this Agreement at any time, with or
without cause, by giving 30 days written notice of termination to the other
party, and upon termination, neither parry will have any continuing obligation
to the other party, except if (a) the Company terminates this Agreement without
Cause (as defined below) or the Employee terminates his employment for Good
Reason (as defined below) then the Company will be obligated to pay Employee in
a lump sum within two days after such notice an amount equal to one-half (1/2)
Employee's annual base salary and bonus plan; and (b) the provisions of Sections
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5, 6, and 7 hereof will survive any termination of this Agreement for any reason
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in accordance with their terms. As used in this Agreement, termination for
"Cause" shall mean any termination of Employee for (a) the commission of an act
of fraud or embezzlement against the Company or commission of a crime involving
moral turpitude, (b) consistent willful misconduct or gross negligence in
performing Employee's duties hereunder after written notice of such and
reasonable opportunity to cure, (c) material breach of fiduciary duty in
connection with Employee's employment by the Company after written notice of
such and reasonable opportunity to cure, or (d) a material breach of any of the
terms of this Agreement after written notice of such and reasonable opportunity
to cure; and "Good Reason" shall mean any of the following shall occur without
the Employee's express prior written consent: (a) a change by the Company in
Employee's title, function, duties or responsibilities (including reporting
responsibilities), (b) the Employee's base salary or bonus program is reduced by
the Company, or there is a material reduction in the benefits that are in effect
for the Employee, (c) relocation of the Employee's principal place of employment
to a place located outside of Austin, Texas, or (d) other material breach of
this Agreement by the Company after written notice of such and reasonable
opportunity to cure.
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3. Compensation. Beginning on the Effective Date and thereafter during the term
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of Employee's employment, the Company will pay Employee a base salary of not
less than $175,000 per year, payable biweekly or semi-monthly in accordance with
the payroll practices of the Company in effect from time to time. Such base
salary shall not be reduced and shall be subject to review and potential upward
adjustment periodically, in accordance with the compensation policies of the
Company in effect from time to time. Employee shall also, during the first year
of the Initial Term of Employee's employment hereunder, be eligible for an
annual discretionary incentive bonus of up to 50% of Employee's base salary.
Thereafter, Employee shall be eligible for an annual discretionary incentive
bonus of up to 30% of Employee's base salary. Such bonus to be awarded in
accordance with the bonus policies established by the Company from time to time.
All of Employee's compensation under this Agreement will be subject to deduction
and withholding authorized or required by applicable law.
4. Employee Benefits. Beginning on the Effective Date and thereafter during the
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term of this Agreement, the Company will provide to Employee such fringe
benefits, perquisites, vacation and other benefits that the Company provides to
its similarly situated employees. The Company will reimburse Employee for
reasonable out-of-pocket business expenses incurred and documented in accordance
with the policies of the Company in effect from time to time.
5. Confidential Information.
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(a) In the course of performing services for the Company under this
Agreement, Employee may receive or have access to commercially valuable,
confidential or proprietary information. "Confidential Information" means
all confidential information, whether oral or written, now or hereafter
developed, acquired or used by the Company and relating to the business of
the Company that is not generally known to others in the Company's area of
business, including without limitation (to the extent confidential) (i) any
trade secrets, work product, processes, analyses, know-how, software and
hardware development information or other Intellectual Property of the
Company; (ii) the Company's advertising, product development, strategic and
business plans and information; (iii) customer lists and prices at which
the Company has sold or offered to sell its products or services; and (iv)
the Company's financial statements and other financial information.
(b) Employee acknowledges and agrees that the Confidential Information
(to the extent it can be owned) is and will be the sole and exclusive
property of the Company. Employee will not use any Confidential Information
for Employee's own benefit or disclose any Confidential Information to any
third party (except in the course of performing Employee's authorized
duties for the Company under this Agreement), either during or subsequent
to Employee's employment with the Company. Upon termination of Employee's
employment with the Company, Employee will promptly deliver to the Company
all documents, computer disks and other computer storage devices and other
papers and materials (including all copies thereof in whatever form)
containing or incorporating any Confidential Information or otherwise
relating in any way to the Company's business that are in Employee's
possession or under Employee's control. Employee also agrees not to
disclose to the Company any Confidential Information belonging to others.
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6. Restrictive Covenant. For purposes hereof, the "Noncompetition
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Period" will begin on the Effective Date and end six (6) months after the
date Employee's employment with the Company is terminated for any reason.
In consideration of the Company's agreement to employ Employee and the
receipt by the Employee of Confidential Information, Employee hereby agrees
that, during the Noncompetition Period, Employee will not (except in the
course of performing Employee's authorized duties for the Company under
this Agreement), directly or indirectly, on Employee's own behalf or as an
officer, director, employee, consultant or other agent of, or as a
stockholder, partner or other investor in, any person or entity (other than
the Company or its affiliates):
(a) engage in any business conducted by the Company, its
subsidiaries or affiliates and any business competitive with the
business conducted by the Company, its subsidiaries or affiliates
(collectively a "Competing Business") within any geographic area in
which the Company, its subsidiaries or affiliates conducts any
business, or in which businesses competitive with the businesses of the
Company, its subsidiaries or affiliates are conducted (the
"Territory"), or;
(b) directly or indirectly influence or attempt to influence any
customer, potential customer, supplier or accounts of the Company, its
subsidiaries or affiliates located within the Territory to purchase,
sell or lease goods or services related to a Competing Business other
than from or to the Company; or
(c) solicit, encourage, or take any other action which is
intended, directly or indirectly, to induce any other employee of the
Company to terminate such employee's employment with the Company, or
interfere in any manner with the contractual or employment relationship
between the Company and any other employees of the Company, or hire or
attempt to hire any former employee of the Company whose termination
from employment has been effective for ninety (90) days or less;
provided, that the foregoing will not apply to any investment in publicly traded
securities constituting less than 5% of the outstanding; securities in such
class. For purposes of this Agreement, the term "affiliate" means with respect
to any person or entity any other person or entity controlling, controlled by or
under common control with such person or entity.
7. Enforcement.
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(a) Employee represents to the Company that Employee is willing
and able to engage in businesses other than a Competing Business within
the Territory and that enforcement of the restrictions set forth in
Section 6 would not be unduly burdensome to Employee. The Company and
Employee acknowledge and agree that the restrictions set forth in
Section are reasonable as to time, geographic area and scope of
activity and do not impose a greater restraint than is necessary to
protect the goodwill and other business interests of the Company, and
Employee agrees that that the Company is justified in believing the
foregoing.
(b) If the provisions of Section 6 are found by a court of
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competent jurisdiction to contain unreasonable or unnecessary
limitations as to time, geographical
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area or scope of activity, then such court is hereby directed to reform
such provisions to the minimum extent necessary to cause the
limitations contained therein as to time, geographical area and scope
of activity to be reasonable and enforceable.
(c) Employee acknowledges and agrees that the Company would be
irreparably harmed by any violation of Employee's obligations under
Sections 6 and 7 hereof and that, in addition to all other rights or
remedies available at law or in equity, the Company will be entitled to
injunctive and other equitable relief to prevent or enjoin any such
violation. If Employee violates Section 6, the period of time during
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which the provisions thereof are applicable will automatically be
extended for a period of time equal to the time that Employee began
such violation until such violation permanently ceases.
8. No Obligation to Third Party. Employee represents and warrants that
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Employee is not under any obligation to any person or other third party and does
not have any other interest which is inconsistent or in conflict with this
Agreement, or which would prevent, limit, or impair Employee's performance of
any of the covenants hereunder or Employee's duties as an employee of the
Company.
9. Entire Agreement. This Agreement embody the complete agreement of the
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parties with respect to the subject matter hereof and supersedes any prior
written, or prior or contemporaneous oral, understandings or agreements between
the parties that related in any way to the subject matter hereof. This Agreement
may be amended only in writing executed by the Company and Employee.
10. Binding Effect. This Agreement shall be binding upon and inure to the
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benefit of the respective heirs, executors, administrators, legal
representatives and successors of the Company and Employee.
11. Notice. Any notice required or permitted under this Agreement must be
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in writing and will be deemed to have been given when delivered personally, by
telecopy or by overnight courier service or three days after being sent by mail,
postage prepaid, to (a) if to the Company, to the Company's principal place of
business, or (b) if to Employee, to Employee's residence or to Employee's latest
address then contained in the Company's records (or to such changed address as
such person may subsequently give notice of in accordance herewith).
12. GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND
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INTERPRETED IN ACCORDANCE WITH SUBSTANTIVE LAWS OF TEXAS, WITHOUT GIVING EFFECT
TO ANY CONFLICTS OF LAW, RULE OR PRINCIPLE THAT MIGHT REQUIRE THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION.
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IN WITNESS WHEREOF, the Company and Employee have executed and delivered
this Agreement as of the date first above written.
NETPLIANCE, INC.
By: /s/ JOHN F. MCHALE
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Name: John F. McHale
Title: Chairman and CEO
/s/ JAMES E. CAHILL
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James E. Cahill
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