Employment Agreement - WebSideStory Inc. and Terry Kinninger
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), dated April 10, 2000
("Effective Date") is made by and between WebSideStory, Inc. ("the Company"), a
California corporation having its principal offices at 10182 Telesis Court, 6th
Floor, San Diego, CA and Terry Kinninger ("Employee").
AGREEMENT
1. Title and Duties. Employee's title and position with the Company
initially will be Chief Financial Officer. Employee shall devote all of his
business time and attention, energy and skills to the Company during his
employment under this Agreement. Employee's duties will be as assigned by the
Company's President and/or Chief Executive Officer, or his designee. Employee's
employment will commence on April 10, 2000.
2. At-will Employment. Employee's employment relationship with the
Company is at-will, terminable at any time and for any reason by either the
Company or Employee. The Company nonetheless reserves the right to discharge
Employee for the reasons defined in Sections 11 and 12 below. While certain
paragraphs of this Agreement describe events that could occur at a particular
time in the future, nothing in this Agreement may be construed as a guarantee of
employment of any length.
3. Policy Compliance. Employee is required to comply with the Company
policy, practice and procedure in effect during his employment. Employee agrees
to comply with the terms and conditions of the Company's Confidentiality and
Inventions Agreement ("Confidentiality Agreement") that is attached to this
Agreement as Exhibit 1 and is incorporated by reference.
4. Compensation.
4.1 Base Salary. Employee's annual Base Salary during his
employment will be Two Hundred Thousand Dollars ($200,000) to be paid according
to the Company's regular payroll practices. Any increase to the Base Salary is
within the sole discretion of the Chief Executive Officer and the Board of
Directors of the Company (the "Board") and according to the standards utilized
for other executive officers and consistent with his position and duties. The
Base Salary described above is subject to deduction for applicable federal,
state and local income, social security and other payroll deductions.
4.2 Bonus Compensation. In addition to the Base Salary, in Fiscal
Year 2000 Employee is eligible for an annualized bonus of up to Fifty Thousand
Dollars ($50,000) ("Bonus"), contingent upon reasonable goals to be established
by the Chief Executive Officer. Employee will be eligible for a bonus in Fiscal
Year 2001 pursuant to a Fiscal Year 2001 bonus plan to be established by the
Company in its sole discretion.
4.3 Mid-Year Bonus. Employee additionally is entitled to a
mid-year bonus ("Mid-Year Bonus") upon the Company's attainment of its June 30,
2000 financial goals as established by the Company in its sole discretion in the
event that such a bonus is generally
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established for other employees of the Company. Employee's Mid-Year Bonus will
be according to the same percentage of compensation calculation that applies to
other employees of the Company.
5. Stock Options.
5.1 Grant of Options. On the Effective Date, the Company will
grant to Employee non-statutory options representing the right to purchase up to
825,000 shares of the Company's Common Stock (collectively the "Options")
pursuant to the Company's 2000 Equity Incentive Plan (the "Plan"), at an
exercise price of $0.34 per share. This grant is further subject to the terms
and conditions of the Stock Option Agreement reflecting that grant (the "Option
Agreements") and to applicable state and federal laws including, but not limited
to, tax and securities laws. Each Option shall entitle Employee to purchase one
share of the Company's Common Stock. The Options shall vest as set forth in
Section 5.2 below.
5.2 Vesting Schedule.
5.2.1 133,334 of the Options will vest on the six (6)
month anniversary of the Effective Date;
5.2.2 666,666 of the Options will vest at the rate of the
2.7778% for each full month of Employee's continuous service from the six-month
anniversary through the third anniversary of the Effective Date such that the
Options will be fully vested three (3) years from the Effective Date.
5.2.3 The remaining Options (25,000) will vest on the
fourth anniversary of the Effective Date.
5.3 Tax Implications. The Company does not make any warranty or
representation with respect to the tax consequence of any of the above grant of
options or tax consequences of any exercise of the options or consequent sale of
the shares purchased. Employee is advised to consult with his own tax advisor as
to the tax treatment of all aspects of the option grant contained in the
Agreement or Option Agreements.
6. Fringe Benefits. During his employment, Employee will receive fringe
benefits ("Benefits") then generally available to executive staff.
7. Reimbursement of Expenses. During his employment and according to
Company policy and practice, and subject to final approval by the Chief
Executive Officer, Employee shall be entitled to reimbursement of reasonable and
actual expenses incurred on behalf of the Company.
8. Return Of Property. Employee agrees that all documents, records,
apparatus, equipment and other physical property (as more specifically defined
in the Confidentiality Agreement) which is furnished to or obtained by Employee
in the course of his employment with the Company shall be and remain the sole
property of the Company. Employee agrees that upon the termination of his
employment he will return all such property (whether or not it pertains to
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trade secret or proprietary information), and will not make or retain copies,
reproductions, or summaries of any such property.
9. Non Competition. During his employment Employee shall not directly or
indirectly, either as an employee, employer, consultant, corporate officer,
director, or in any other individual or representative capacity, engage or
participate in any business that is in competition with the business of the
Company in any location, unless such participation or interest is fully
disclosed to the Company and approved by the Board.
10. Agreement with Previous Employers. Employee confirms he does not
have any agreement with a previous employer that prevents or limits him in
performing under this Agreement. In the event the Company is sued by any
previous employer of Employee as a result of any act by Employee, the Company
may recover costs or attorneys' fees expended in defending against such a
lawsuit.
11. Effect of Termination Without Cause or Resignation for Good Reason
Following a Change of Control. As set forth in Section 2 above, employment with
the Company is "at-will". However, if, within one year following a Change of
Control as defined in Section 11.1 below, the Company terminates Employee's
employment relationship without cause ("Cause") as defined in Section 11.2 below
or Employee resigns his employment with Good Reason ("Resignation for Good
Reason") as defined in Section 11.3 below, Employee may be entitled to
accelerated vesting of Options as follows:
11.1 Change of Control Defined. For purposes of this Agreement,
"Change of Control" is defined to have occurred if, and only if, during
Employee's employment:
11.1.1 any individual, partnership, firm, corporation,
association, trust, unincorporated organization or other entity or person, or
any syndicate or group deemed to be a person under Section 14(d)(2) of the
Exchange Act is or becomes the "Beneficial Owner" (as defined in Rule 13d-3 of
the General Rules and Regulations under the Exchange Act), directly or
indirectly, of securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding securities entitled to
vote in the election of directors of the Company;
11.1.2 there occurs a reorganization, merger,
consolidation or other corporate transaction involving the Company
("Transaction"), in each case, with respect to which the stockholders of the
Company immediately prior to such Transaction do not, immediately after the
Transaction, own more than fifty (50) percent of the combined voting power of
the Company or other corporation resulting from such Transaction; or
11.1.3 all or substantially all of the assets of the
Company are sold, liquidated or distributed.
11.2 Cause Defined. For purposes of this Agreement, "Cause" is
defined as (i) Employee's personal dishonesty; (ii) Employee's willful
misconduct; (iii) Employee's intentional failure to perform stated duties; (iv)
Employee's breach of fiduciary duty involving personal profit; (v) Employee's
willful violation of any law, rule, or regulation (other than traffic violations
or similar offenses) that has an adverse impact on the reputation of the
Company;
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(vi) any material breach by Employee of any provision of this Agreement or any
Company policy or practice; (vii) Employee's death; or (viii) if Employee has a
disability which cannot be reasonably accommodated and which renders him unable
to perform the essential functions of his position.
11.3 Resignation for Good Reason Defined. "Resignation for Good
Reason" shall mean the voluntary resignation by Employee of his employment with
the Company within one year following a Change of Control and within three (3)
months of the following Good Reasons:
11.3.1 any reduction in Employee's Base Salary or Benefits
as they exists at the Change of Control; or
11.3.2 any reduction in Employee's title as it exists at
the Change of Control; or
11.3.3 any significant reduction in Employee's
responsibilities and authority as of the Change of Control; or
11.3.4 a relocation by the Company of Employee's place of
Employment outside a forty (40) mile radius of Employee's current place of
employment.
An event described in Section 11.3.1 through 11.3.4 will
not constitute Good Reason unless Employee provides written notice to the
Company of his intention to resign for Good Reason and unless the Company does
not cure the Good Reason within ten (10) days of the Company's receipt of the
written notice.
11.4 Accelerated Vesting of Options. If, within one (1) year
immediately following a Change of Control, Employee's employment is terminated
without Cause or Employee resigns his employment for Good Reason, vesting of
one-half of Employee's unvested Options will be accelerated to the effective
date of termination ("Termination Date").
11.5 Release. The accelerated vesting schedule set forth in
Section 11.4 above is in exchange for, and contingent upon Employee's execution
of a release of all claims as of the effective date of the Resignation for Good
Reason, in substantially the form attached to this Agreement as Exhibit 1.
12. Effect of Termination Without Cause or Resignation for Good Reason
During the First Year of Employment.
12.1 Accelerated Vesting of Options. As set forth in Section 2
above, employment with the Company is "at-will". However, in the event the
Company terminates Employee's employment relationship with the Company prior to
the first anniversary of the Effective Date for any reason other than Cause or
Employee Resigns for Good Reason prior to the first anniversary of the Effective
Date, the Options which otherwise would have vested had Employee completed one
year of employment (up to 266,666 Options) will vest as of the Termination Date;
provided, however, Employee is not entitled to the accelerated vesting rights
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described in this Section 12 if he becomes entitled to the accelerated vesting
rights described in and pursuant to Section 11 above.
12.2 Release. The accelerated vesting schedule set forth in
Section 12.1 above is in exchange for, and contingent upon, Employee's execution
of a release of all claims as of the effective date of the Termination Without
Cause, in substantially the form attached to this Agreement as Exhibit 1.
13. Dispute Resolution Procedures. Any dispute or claim arising out of
this agreement shall be subject to final and binding arbitration. The
arbitration will be conducted by one arbitrator who is a member of the American
Arbitration Association (AAA) and will be governed by the Model Employment
Arbitration rules of AAA. The arbitration shall be held in San Diego,
California. The arbitrator shall have an authority to determine the
arbitrability of any claim and enter a final and binding judgment at the
conclusion of any proceedings in respect of the arbitration. Any final judgment
only may be appealed on the grounds of improper bias or improper conduct of the
arbitrator. The arbitrator will apply California substantive law in all
respects. The arbitrator will decide how the costs of arbitration should be
split. In the event of any arbitration arising out of or relating to this
Agreement, its breach or enforcement, including an action for declaratory
relief, the prevailing party in such action or proceedings shall be entitled to
receive his or its damages, court costs and reasonable out-of-pocket expenses
including reasonable attorneys' fees. Such recovery shall include court costs,
reasonable out-of-pocket expenses, and attorneys' fees on appeal, if any. The
arbitrator or court shall determine who is the prevailing party, whether or not
the dispute or controversy proceeds to final judgment.
14. General Provisions.
14.1 Governing Law. This Agreement will be governed by and
construed according to California law, without regard to principles of conflict
of laws.
14.2 Assignment. Employee may not assign, pledge or encumber his
interest in this Agreement or any part of this Agreement.
14.3 Binding Nature. This Agreement will be binding upon
Employee, his heirs, executors, and administrators and will inure to the benefit
of the Company, its subsidiaries, successors and assigns.
14.4 No Waiver of Breach. The failure to enforce any provision of
this Agreement will not be construed as a waiver of any such provision, nor
prevent a party thereafter from enforcing the provision or any other provision
of this Agreement. The rights granted the parties are cumulative, and the
election of one will not constitute a waiver of such party's right to assert all
other legal and equitable remedies available under the circumstances.
14.5 Severability. The provisions of this Agreement are
severable, and if any provision will be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions, or
enforceable parts of this Agreement, will not be affected.
14.6 Entire Agreement. This Agreement, including the
Confidentiality Agreement and any Option Agreements, constitutes the entire
agreement of the parties with
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respect to the subject matter of this Agreement, and supersedes all prior and
contemporaneous oral or written negotiations, agreements or understandings
between the parties.
14.7 Modification/Waiver. No modification, amendment,
supplementation, termination or attempted waiver of this Agreement will be valid
unless in writing, signed by the party against whom modification, amendment
termination or waiver is sought to be enforced.
14.8 Fees and Expenses. If any proceeding is brought for the
enforcement or interpretation of this Agreement, or because of any alleged
dispute, breach, default or misrepresentation in connection with any provisions
of this Agreement, the successful or prevailing party will be entitled to
recover from the other party reasonable attorneys' fees and other costs incurred
in that proceeding (including, in the case of an arbitration, arbitration fees
and expenses), in addition to any other relief to which such party may be
entitled.
14.9 Duplicate Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original. Such counterparts
together constitute one instrument.
14.10 Interpretation. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
14.11 Drafting Ambiguities. Each party to this Agreement and his
or its counsel have reviewed and revised this Agreement. The rule of
construction that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or any of the
amendments to this Agreement.
WebSideStory, Inc. Employee
By: /s/ JOHN HENTRICH /s/ TERRY A. KINNINGER
______________________________________ ________________________
John Hentrich, Chief Executive Officer Terry Kinninger
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