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EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS AGREEMENT, is entered into as of September 1, 1995,
between Infinity Financial Technology, Inc., a California corporation (the
"Company"), and Till Guldimann ("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 on the date of this Agreement 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 Executive Vice President. 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.
Commencing as of the date and continuing until not later than September 1, 1996,
Employee's place of employment shall be the Company's New York offices,
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and Employee acknowledges that he will be required to travel frequently in
accordance with the Company's travel policies to its principal place of business
in Mountain View, California and to destinations outside the United States. By
September 1, 1996, Employee shall have relocated to the Company's principal
offices in Mountain View, California.
(c) Service on Board and Management Committee.
During the Period of Employment and subject to this Section 1(c), Employee shall
further serve as a member of the Company's Management Committee and as a member
of the Board, provided that (i) the Company shall have the right to require
Employee to resign or otherwise be removed from the Board if a majority of the
Board shall reasonably determine that it is in the best interest of the Company
that Employee cease to serve on the Board; (ii) Employee shall in his sole
discretion have the right at any time during the Period of Employment to resign
from the Board; and (iii) any right of Employee to continue to serve on the
Board shall be subject to the rights of the shareholders of the Company to vote
their shares of the Company to remove or not re-elect him to the Board.
(d) 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. The Company
acknowledges that Employee shall be receiving continued salary payments through
February of 1996 from his prior employer, J. P. Morgan, and agrees that receipt
of such salary payments shall not be deemed a breach of or inconsistent with
this Agreement provided that Employee agrees that he shall not: (x) take any
action or omit to take action as a condition to receipt of such salary payments
that would constitute a breach of this Agreement or the Employee Proprietary
Information and Inventions Agreement described in Section 4 below; or (y) engage
in any conduct in connection with his continued affiliation with J. P. Morgan
that would constitute a conflict of interest with his employment relationship at
the Company or a breach of this Section 1(d).
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 Two Hundred
Thousand Dollars ($200,000), 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
100,000 shares of the Company's Common Stock upon the terms and conditions set
forth in that certain Incentive Stock Option
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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. 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) Moving Expenses. The Company agrees to
reimburse Employee for his reasonable expenses in accordance with Company
policies for his move from the New York area to the Mountain View, California
area as contemplated by Section 1(a) above.
(f) 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 future life, accident, disability,
medical, pension, and savings plans and all similar benefits made available
generally to executives 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.
(g) 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, the compensation to
which he is entitled pursuant to Section 2(a) through the end of the month in
which death occurs. 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
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terminate on and the compensation to which Employee is entitled pursuant to
Section 2(a) shallbe paid up through the last day of the month in which the one
hundred and twentieth day of incapacity occurs, 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 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
(including without limitation Employee's position on the Management Committee or
any successor committee, unless such committee is otherwise terminated by the
Company), 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 (provided that removal and/or failure to
re-elect Employee to the Board in accordance with Section 1(c) shall not be
deemed Good Reason for purposes of this Section 3(d)); (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 benefit under any benefit plan of the Company in which the Employee
is participating or deprive the Employee of
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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 three (3) months'
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. 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 six (6) months 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 six (6) 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.
(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; and (iii) the vesting and right to exercise any stock options held by
Employee at the time of termination. As a condition precedent to the continued
vesting and exercisability of Employee's stock options during said six (6) month
period, Employee agrees to perform, on request from the Company, up to ten (10)
hours of consulting service per month during said six (6) month period. Subject
to Employee fulfilling his consulting obligations to the Company as provided in
this Section 3(f)(2) during the Severance Period (as defined below), Employee
shall be deemed to
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continue as employee of the Company during the Severance Period for the purpose
of such stock options, and such stock options shall thereafter terminate in
accordance with their terms following expiration of the Severance Period. No
additional compensation shall be payable by the Company for such consulting
services beyond the Severance Benefits. The period in which Employee shall be
entitled to Severance Benefits shall hereinafter 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.
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
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hand or mailed, postage prepaid, by certified or registered mail, return receipt
requested, and addressed to the Company at:
2001 Landings Drive
Mt. View, CA 94034
Attn: Vice President, Finance
or to the Employee at: 34 Roosevelt Road
Maplewood, NJ 07040
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.
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
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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: _________________________________ _______________________________
Title: ______________________________ Till Guldimann
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