January 24, 2000
This letter agreement (the "Agreement") entered into January 24, 2000
sets forth the terms and conditions of your employment with PurchasePro.com,
Inc. (the "Company").
In consideration of the mutual covenants and promises made in this
Agreement, you and the Company agree as follows:
1. EMPLOYMENT. Commencing as of January 24, 2000, you will serve as
Senior Vice President of Strategic Development for PurchasePro.com, Inc. You
will be given such duties, responsibilities and authority as are appropriate to
such position. Throughout the term of your employment, you shall devote
substantially all of your business time and energies to the business and affairs
of the Company as needed to carry out your duties and responsibilities, subject
to the overall supervision of the company's Executive Vice President of
Strategic Development, Geoff Layne.
2. TERM. The term of this Agreement will commence on your start of
employment date, and shall continue for two (2) years thereafter. During the
term of this Agreement, your employment with the Company will be "at-will."
Either you or the Company can terminate your employment at any time and for any
reason, with or without cause and with or without notice, in each case subject
to the terms and provisions of paragraph 7 below.
3. SALARY. For your services to the Company, you will be paid a base
salary, payable in accordance with the Company's usual payroll practices during
your employment, at an annualized rate of $165,000.00 per year which shall be
reviewed annually for increase.
4. BONUS. During the term of this Agreement, you will be eligible
for a bonus in an amount to be determined by the Company in its sole discretion
based on your performance reviews.
5. EMPLOYEE BENEFIT PROGRAMS. During your employment, you will be
entitled to participate in all Company employee benefit plans and compensation
and perquisite programs made available to the Company's executives or salaried
employees generally. This includes family health, dental and disability
insurance consistent with the existing company policy. You will be entitled to
four weeks of vacation per year, provided that you will not accrue unused
vacation of more than five weeks. The corporation shall provide you with an
automobile allowance of $1,000.00 per month and a cell phone allowance of
$100.00 per month. The corporation shall pay the ordinary expenses for your
commute to and from Texas and Las Vegas Nevada including reasonable air travel,
parking and taxis. The company shall also pay other pre approved reasonable
6. Stock Options. The Corporation will provide you with the
following options (Collectively, "Stock Options") to acquire shares of the
Corporation's Class A Common Stock ("Shares")
On your start of employment date (Grant day) Stock Options to purchase one
hundred seventy five thousand (175,000) Shares at a per share exercise price
that is twenty seven and 50/100 dollars ($27.50) per share below the market
price of the stock which shall be the average between the price at the open of
business and price at the close of business on the January 19, 2000. (subject to
SEC rules and restrictions imposed upon the officers and major shareholders of
the Corporation). The Stock Options will be exercisable at any time during the
ten (10) year period commencing on vesting of such Stock Options, as follows:
(i) Stock Options on ten thousand (10,000) shares vests immediately on grant
day, (ii), Stock Options on sixty one thousand eight hundred seventy five
(61,875) Shares shall vest six months after the grant date, (iii), Stock Options
on sixty one thousand eight hundred seventy five (61,875) Shares shall vest one
year after the grant date, (iv) Stock Options on forty one thousand two hundred
fifty shares (41,250) shall vest two (2) years after the grant date. No vesting
shall occur under this Section on or after the termination of your employment
except in the event the company is sold or there is a change of control of the
company or your employment is terminated without cause as referenced in Section
7(b) below or should you die or be permanently disabled per section 7(d) in
which case you will be fully vested hereunder.
7. CONSEQUENCES OF TERMINATION OF EMPLOYMENT.
(a) FOR CAUSE. If the Company terminates your employment for Cause
you will be entitled to any unpaid salary, bonus and vacation due you pursuant
to paragraphs 3, 4 and 6 above through the date of termination, provided,
however, you will not be entitled to any other compensation from the Company.
"Cause" will exist in the event you engage in conduct constituting willful
dishonesty, intentional fraud, or persistent gross negligence in each case in
the performance of your duties to the Company that directly causes a substantial
and actual economic loss that is material to the financial condition of the
Company which is not cured within 30 days following notice from the Company. You
have the right to appeal the decision of the management to the Board of
Directors by written notice to the company within 10 days of termination. You
have a right to be represented by counsel in your appeal.
(b) OTHER THAN FOR CAUSE. If the Company terminates your employment
for reasons other than Cause, you will be entitled to any unpaid salary, bonus
and vacation due you pursuant to paragraphs 3, 4 and 6 above through the date of
termination plus twelve (12) months of your base salary and bonus (assuming
minimum annual bonus equals base salary) in effect at the date of your
termination of employment. You will not be entitled to any other compensation
from the Company. A Constructive Termination shall be treated as a termination
for reasons other than for Cause. "Constructive Termination" will exist in the
event you terminate your employment with the Company after the Company: (i)
materially breaches this Agreement, which breach is not cured within 10 days
following written notice from you; (ii) changes your title, working conditions
or duties such that your powers are diminished, reduced or otherwise changed to
include powers, duties, or working conditions which are not generally consistent
with your title, continuing after written noticed and 10 days to cure; or (iii)
involuntarily relocates your primary place of employment outside of the Dallas,
Texas metropolitan area.
(c) VOLUNTARY TERMINATION. If you terminate your employment with the
Company of your own volition, such termination will have the same consequences
as a termination for Cause under subparagraph (a) above.
(d) DEATH OR DISABILITY. If your employment with the Company
terminates as a result of your death or total and permanent disability, such
termination will have the same consequences as a termination by the Company
other than for Cause under subparagraph (b) above.
(e) RELEASE OF CLAIMS. As a condition to the receipt of the payments
described in this paragraph 7, you shall be required to execute a release of all
claims arising out of your employment or the termination thereof including, but
not limited to, any claim of discrimination under state or federal law, but
excluding claims for indemnification from the Company under any indemnification
agreement with the Company, its certificate of incorporation and by-laws or
applicable law or claims for directors and officers' insurance coverage.
(f) CONDITIONS TO RECEIPT OF PAYMENTS AND BENEFITS. In view of your
position and access to proprietary information, as a condition to the receipt of
payments described in this paragraph 7, you shall not, without the Company's
written consent, directly or indirectly, alone or as a partner, joint venturer,
officer, director, employee, consultant, agent or stockholder (other than a less
than 5% stockholder of a publicly traded company), within one year of your date
of termination from the Company (i) engage in any activity which is in
competition with the business, the products or services of the Company, (ii)
solicit any of the Company's employees, consultants or customers, (iii) hire any
of the Company's employees or consultants in an unlawful manner or actively
encourage employees or consultants to leave the Company, or (iv) otherwise
breach your proprietary information obligations. You agree to execute and comply
with the form of proprietary information agreement adopted by the Company.
8. ASSIGNABILITY; BINDING NATURE. This Agreement will be binding
upon you and the Company and your respective successors, heirs, and assigns.
This Agreement may not be
assigned by you except for the following: (a) that your rights to compensation
and benefits hereunder, subject to the limitations of this Agreement, may be
transferred by will or operation of law, and (b) on or after the date this
agreement is signed you may assign your rights to the stock options in paragraph
6 above, subject to the conditions of this Agreement, to any trust established
by you or any trust established for your benefit. No rights or obligations of
the Company under this Agreement may be assigned or transferred except by
operation of law in the event of a merger or consolidation in which the Company
is not the continuing entity, or the sale or liquidation of all or substantially
all of the assets of the Company, provided that the assignee or transferee is
the successor to all or substantially all of the assets of the Company and
assumes the Company's obligations under this Agreement contractually or as a
matter of law.
9. GOVERNING LAW. This Agreement will be deemed a contract made
under, and for all purposes shall be construed in accordance with, the laws of
Nevada (without regard to its choice of law provisions).
10. ARBITRATION. The parties agree that any disputes arising out of
or related to the Agreement shall be resolved by using the following procedures:
(a) The party claiming to be aggrieved shall furnish to the other
party a written statement of the grievance and the relief requested or proposed.
(b) If the other party does not agree to furnish the relief requested
or proposed, or otherwise does not satisfy the demand of the party claiming to
be aggrieved, the parties shall submit the dispute to non-binding mediation
before a mediator to be jointly selected by the parties.
(c) If the mediation does not produce a resolution of the dispute,
the parties agree that the dispute shall be resolved by binding arbitration in
Las Vegas, Nevada, before a single arbitrator knowledgeable of employment law
under the Commercial Arbitration Rules of the American Arbitration Association.
The arbitrator shall not have the authority to modify, change or refuse to
enforce the terms of this Agreement.
(d) Arbitration shall be the exclusive final remedy for any dispute
between the parties, and the parties agree that no dispute shall be submitted to
arbitration where the party claiming to be aggrieved has not complied with the
preliminary steps provided for above, provided however, that this Section 10
shall not be construed to eliminate or reduce any right the Company or the
Executive may otherwise have to seek and obtain from a court a temporary
restraining order or a preliminary or permanent injunction to enforce the
restrictions of subparagraph 7(f) of this Agreement.
11. WITHHOLDING. Anything to the contrary notwithstanding, all
payments made by the Company hereunder to you or your estate or beneficiaries
will be subject to tax withholding pursuant to any applicable laws or
regulations. In lieu of withholding, the Company may, in its sole discretion,
accept other provision for payment of taxes as required by law, provided it is
satisfied that all requirements of law affecting its responsibilities to
withhold such taxes have been satisfied.
12. ENTIRE AGREEMENT. This Agreement contains all the legally binding
understandings and agreements between you and the Company pertaining to the
subject matter of this Agreement and supersedes all such agreements, whether
oral or in writing, previously entered into between the parties.
13. MISCELLANEOUS. No provision of this Agreement may be amended or
waived unless such amendment or waiver is agreed to by you and the Chief
Executive Officer or President of the Company in writing. No waiver by you or
the Company of the breach of any condition or provision of this Agreement will
be deemed a waiver of a similar or dissimilar provision or condition at the same
or any prior or subsequent time. In the event any portion of this Agreement is
determined to be invalid or unenforceable for any reason, the remaining portions
shall be unaffected thereby and will remain in full force and effect to the
fullest extent permitted by law.
Please indicate your acceptance and understanding of the terms
of this Agreement by signing and dating below.
ACKNOWLEDGED AND AGREED: