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Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT, is entered into as of October 24, 1995,
between Infinity Financial Technology, Inc., a California corporation (the
"Company"), and Keith Hospers ("Employee").
R E C I T A L S
Company desires to obtain the services of Employee, on its own
behalf and on behalf of all existing and future Affiliated Companies (defined to
mean any corporation or other business entity or entities that directly or
indirectly controls, is controlled by, or is under common control with the
Company), and Employee desires to secure employment from the Company upon the
following terms and conditions.
A G R E E M E N T
ACCORDINGLY, THE PARTIES AGREE AS FOLLOWS:
1. Position, Period of Employment.
(a) Period of Employment. The Company hereby employs
Employee to render services to the Company in the position and with the duties
and responsibilities described in Section 1(b) for the period (the "Period of
Employment") commencing November 1, 1995 and ending upon the date this Agreement
is terminated in accordance with Section 3 below. Except as provided in Section
3 below, the Company shall pay Employee the compensation to which he is entitled
under Section 2(a) through the end of the Period of Employment, and thereafter
Company's obligations hereunder to pay or otherwise provide compensation and
benefits to Employee shall end.
(b) Position. Employee hereby accepts employment with
the Company as Vice President for Software Engineering. Employee shall devote
his best efforts and his full time and attention to the performance of the
services customarily incident to such office and to such other services as may
be reasonably requested by the Board of Directors of the Company (the "Board").
The Company shall retain full direction and control of the means and methods by
which Employee performs the above services and, subject to the terms of this
Section 1(b), of the place(s) at which such services are to be rendered.
Employee's place of employment shall be the Company's Mountain View, California
offices. Employee acknowledges that he will be required to travel frequently in
accordance with the Company's travel policies to destinations within and outside
the United States.
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(c) Other Activities. Except upon the prior written
consent of the Board, Employee, during the Period of Employment, will not (i)
accept any other employment, or (ii) engage, directly or indirectly, in any
other business activity (whether or not pursued for pecuniary advantage) that is
or may be competitive with, or that might place him in a competing position to
that of the Company or any Affiliated Company.
2. Compensation, Benefits, Expenses.
(a) Compensation. In consideration of the services to
be rendered hereunder, including, without limitation, services to any Affiliated
Company, Employee shall be paid an annual salary of One Hundred Fifty-Five
Thousand Dollars ($155,000), payable at the times and pursuant to the procedures
regularly established, and as they may be amended, by the Company during the
course of this Agreement. This rate shall be reviewed annually, in accordance
with the Company's salary review practices, and increased to reflect increases
in the cost of living and such other increases as are awarded in accordance with
the Company's regular salary review practices for giving salary increases to
similarly situated employees.
(b) Stock Options. Employee shall be granted an
incentive stock option pursuant to the Company's 1993 Stock Option Plan for
125,000 shares of the Company's Common Stock upon the terms and conditions set
forth in that certain Incentive Stock Option Agreement in the form attached
hereto as Exhibit A (the "ISO Agreement"), which the Company shall execute and
deliver to Employee concurrently with the signing by both parties of this
Agreement.
(c) Bonus. (i) Employee shall receive from the
Company a bonus of Forty-Five Thousand Dollars ($45,000) for the first
twelve-month term of the Period of Employment. Thirty Thousand Dollars ($30,000)
of such bonus shall be payable upon the commencement of the Employment Period,
Five Thousand Dollars ($5,000) thereof after the first six (6) months of the
Employment Period, Five Thousand Dollars ($5,000) thereof after the first nine
(9) months of the Employment Period, and the remaining Five Thousand Dollars
($5,000) thereof after the first twelve (12) months of the Employment Period.
(ii) After the first twelve months of the Employment Period, Employee shall be
eligible to participate in such bonus plans as the Company may from time to time
adopt for the benefit of similarly situated employees of the Company. Employee's
right to receive any such bonus shall be subject to the terms of any Company
bonus plan for which he may become a participant and the terms determined by the
Board or a Committee thereof designating him as a participant or granting him an
award thereunder.
(d) Vacation. Employee shall be entitled to vacation
in accordance with the Company's vacation policies for similarly situated
employees, as such policies may be amended from time to time.
(e) Benefits. As he becomes eligible therefor, the
Company shall provide Employee with the right to participate in and to receive
benefits from all present and
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future life, accident, disability, medical, pension, and savings plans and all
similar benefits made available generally to similarly situated employees of the
Company. The amount and extent of benefits to which Employee is entitled shall
be governed by the specific benefit plan, as it may be amended from time to
time.
(f) Expenses. The Company shall reimburse Employee
for reasonable travel and other business expenses incurred by Employee in the
performance of his duties hereunder in accordance with the Company's general
policies, as they may be amended from time to time during the course of this
Agreement.
3. Termination of Employment.
(a) By Death. The Period of Employment shall
terminate automatically upon the death of the Employee. The Company shall pay to
the Employee's beneficiaries or estate, as appropriate, (i) the compensation to
which he is entitled pursuant to Section 2(a) through the end of the month in
which death occurs, and (ii) any part of the bonus pursuant to Section 2(c)(i)
that has not been paid. Thereafter, the Company's obligations hereunder shall
terminate. Nothing in this Section shall affect any entitlement of the
Employee's heirs to the benefits of any life insurance plan.
(b) By Disability. If, in the sole opinion of the
Board, the Employee shall be prevented from properly performing his duties
hereunder by reason of any physical or mental incapacity for a period of more
than one hundred and twenty (120) consecutive days in any twelve-month period,
then, to the extent permitted by law, the Period of Employment shall terminate
on the last day of the month in which the one hundred and twentieth day of
incapacity occurs, and (i) the compensation to which Employee is entitled
pursuant to Section 2(a) through such date, and (ii) any part of the bonus
pursuant to Section 2(c)(i) that has not been paid shall be paid, and thereafter
the Company's obligations hereunder shall terminate. Nothing in this Section
shall affect Employee's rights under any disability plan in which he is a
participant.
(c) By Company For Cause. The Company may terminate,
without liability, the Period of Employment for Cause (as defined below) at any
time and upon ten (10) days' advance written notice to Employee. The Company
shall pay Employee the compensation to which he is entitled pursuant to Section
2(a) through the end of the notice period and thereafter the Company's
obligations hereunder shall terminate. Termination shall be for Cause if: (i)
because of any intentional act or failure to act by Employee which, in the
reasonable opinion of the Board, is in bad faith and to the detriment of the
Company or any Affiliated Company; (ii) in the reasonable opinion of the Board,
Employee refuses or fails to act in accordance with any direction or order of
the Board; (iii) in the reasonable opinion of the Board, Employee shall fail in
any material respect and on a continuing basis to perform his duties pursuant to
Section 1 hereof (other than as a result of disability as provided for in
Section 3(b)) and shall not have cured such failure following thirty (30) days
notice from a majority of the members of the Board; (iv) Employee is convicted
of a crime relating to his character or employment by the Company; or (v)
because Employee, in the reasonable opinion of the Board, breaches any material
term of this
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Agreement, provided the breach continues for a period of five (5) days after
Employee receives written notice of that breach from the Board.
(d) By Employee For Good Reason. Employee may
terminate, without liability, the Period of Employment for Good Reason (as
defined below) upon twenty (20) days' advance written notice to the Company. The
Company shall pay Employee the compensation to which he is entitled pursuant to
Section 2(a) through the end of the notice period plus the Severance Benefits
(as defined in Section 3(f) below), and thereafter all obligations of the
Company hereunder shall terminate. Good Reason shall exist if: (i) there is an
assignment to the Employee of any duties materially inconsistent with or which
constitute a material change in the Employee's position, duties,
responsibilities, or status with the Company, or a material change in the
Employee's reporting responsibilities, title, or offices; or removal of the
Employee from or failure to re-elect the Employee to any of such positions,
except in connection with the termination of the Period of Employment for Cause,
or due to disability, early or normal retirement as defined by the Company's
pension plan, death, or termination of the Period of Employment by the Employee
other than for Good Reason; (ii) there is a reduction by the Company in the
Employee's annual salary then in effect other than a reduction similar in
percentage to a reduction generally applicable to similarly situated employees
of the Company; or (iii) the Company acts in any way that would adversely affect
the Employee's participation in or materially reduce the Employee's benefits
under any benefit plan of the Company in which the Employee is participating or
deprive the Employee of any material fringe benefit enjoyed by the Employee
except those changes generally affecting similarly situated employees of the
Company.
(e) At Will. At any time, either the Company or the
Employee may terminate, without liability, the Period of Employment for any
reason, with or without cause, on written notice to the other party. In the
event Employee elects to terminate the Period of Employment pursuant to this
Section 3(e), Employee shall give the Company not less than six (6) weeks'
notice of such termination. If the Employee terminates his employment pursuant
to this Section 3(e), the Company shall have the option, in its sole discretion,
to terminate Employee immediately without the running of the notice period. If
the Employee terminates his employment pursuant to this, the Company shall pay
Employee the compensation to which he is entitled pursuant to Section 2(a)
through the end of the notice period or, if elected through the day upon which
early termination is elected pursuant to the foregoing sentence, and thereafter
all obligations of the Company shall terminate; Employee shall not be entitled
to Severance Benefits. In the event the Company elects to terminate the Period
of Employment pursuant to this Section 3(e), the Company shall give Employee not
less than one (1) month notice of such termination. If the Company terminates
Employee's employment pursuant to this Section 3(e), the Company shall have the
option, in its sole discretion, to terminate Employee at any time during such
one (1) month period and to immediately commence the Severance Period as of the
date of such termination. Employee hereby agrees that the Company may dismiss
him under this Section 3(e) without regard (i) to any general or specific
policies (whether written or oral) of the Company relating to the employment or
termination of its employees, or (ii) to any statements made to Employee,
whether made orally or contained in any document, pertaining to Employee's
relationship with the Company.
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(f) Severance Benefits.
(1) Employee shall only be entitled to
Severance Benefits hereunder in the event that the Period of Employment shall
terminate in accordance with Section 3(d) and 3(e) hereof and in each case
subject to the terms of said Sections 3(d) and 3(e). Upon full payment of and
upon providing of such Severance Benefits, Employee shall be deemed to have
released the Company and each of its officers, directors and agents from any and
all claims, liabilities or causes of action in favor of the Employee arising in
connection with his prior employment by the Company.
(2) For purposes of this Agreement,
"Severance Benefits" shall mean a continuation by the Company for a period of
six (6) months of: (i) Employee's salary payable in accordance with the
Company's payroll procedures pursuant to Section 2(a) following termination;
(ii) those benefits to which Employee is entitled pursuant to Section 2(f)
hereof; (iii) the payment of any part of the bonus pursuant to Section 2(c)(i)
that has not been paid; and (iv) the vesting and right to exercise any stock
options held by Employee at the time of termination. The period in which
Employee shall be entitled to Severance Benefits shall be referred to as the
"Severance Period".
(g) Termination Obligations.
(1) Employee hereby acknowledges and agrees
that all personal property, including, without limitation, all books, manuals,
records, reports, notes, contracts, lists, blueprints, and other documents, or
materials, or copies thereof, and equipment furnished to or prepared by Employee
in the course of or incident to his employment, belong to the Company and shall
be promptly returned to the Company upon termination of the Period of
Employment. Following termination, the Employee will not retain any written or
other tangible material containing any proprietary information of the Company.
(2) Upon termination of the Period of
Employment, the Employee shall be deemed to have resigned from all offices and
directorships then held with the Company or any Affiliated Company.
4. Proprietary Information Agreement. As a condition to his
employment with the Company, Employee shall execute and deliver a copy of the
Company's standard form Employee Proprietary Information and Inventions
Agreement. Any breach by Employee of such agreement shall be deemed a breach of
this Agreement for purposes of Section 3(c) hereof. Employee's obligations under
such Employee Proprietary Information and Inventions Agreement shall survive any
termination of the Period of Employment.
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5. Assignment; Successors and Assigns. Employee agrees that he
will not assign, sell, transfer, delegate or otherwise dispose of, whether
voluntarily or involuntarily, or by operation of law, any rights or obligations
under this Agreement, nor shall Employee's rights be subject to encumbrance or
the claims of creditors. Any purported assignment, transfer, or delegation shall
be null and void. Nothing in this Agreement shall prevent the consolidation of
the Company with, or its merger into, any other corporation, or the sale by the
Company of all or substantially all of its properties or assets, or the
assignment by the Company of this Agreement and the performance of its
obligations hereunder to any successor in interest or any Affiliated Company.
Subject to the foregoing, this Agreement shall be binding upon and shall inure
to the benefit of the parties and their respective heirs, legal representatives,
successors, and permitted assigns, and shall not benefit any person or entity
other than those enumerated above.
6. Notices. All notices or other communications required or
permitted hereunder shall be made in writing and shall be deemed to have been
duly given if delivered by hand or mailed, postage prepaid, by certified or
registered mail, return receipt requested, and addressed to the Company at:
2001 Landings Drive
Mountain View, CA 94034
Attn: Vice President, Finance
or to the Employee at: 216 Greg Drive
Los Gatos, CA 95032
Notice of change of address shall be effective only when done in accordance with
this Section.
7. Entire Agreement. The terms of this Agreement are intended
by the parties to be the final expression of their agreement with respect to the
employment of Employee by the Company and may not be contradicted by evidence of
any prior or contemporaneous agreement. The parties further intend that this
Agreement shall constitute the complete and exclusive statement of its terms and
that no extrinsic evidence whatsoever may be introduced in any judicial,
administrative, or other legal proceeding involving this Agreement.
8. Amendments; Waivers. This Agreement may not be modified,
amended, or terminated except by an instrument in writing, signed by the
Employee and by a duly authorized representative of the Company other than
Employee. By an instrument in writing similarly executed, either party may waive
compliance by the other party with any provision of this Agreement that such
other party was or is obligated to comply with or perform, provided, however,
that such waiver shall not operate as a waiver of, or estoppel with respect to,
any other or subsequent failure. No failure to exercise and no delay in
exercising any right, remedy, or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, or power
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, or power provided herein or by law or in equity.
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9. Severability; Enforcement. If any provision of this
Agreement, or the application thereof to any person, place, or circumstance,
shall be held by a court of competent jurisdiction to be invalid, unenforceable,
or void, the remainder of this Agreement and such provisions as applied to other
persons, places, and circumstances shall remain in full force and effect.
10. Governing Law. The validity, interpretation,
enforceability, and performance of this Agreement shall be governed by and
construed in accordance with the law of the State of California.
11. Employee Acknowledgment. Employee acknowledges (i) that he
has consulted with or has had the opportunity to consult with independent
counsel of his own choice concerning this Agreement and has been advised to do
so by the Company, and (ii) that he has read and understands the Agreement, is
fully aware of its legal effect, and has entered into it freely based on his own
judgment.
12. Exclusive. Both parties agree that this Agreement shall
provide the exclusive remedies for any breach by the Company of its terms.
The parties have duly executed this Agreement as of the date
first written above.
COMPANY: EMPLOYEE:
INFINITY FINANCIAL TECHNOLOGY, INC.
By:
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Title: Keith Hospers
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