FORM OF
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("AGREEMENT") is entered into as of
___________, 1999 between SELECTQUOTE, INC., a Delaware corporation (hereinafter
referred to as the "COMPANY"), and ____________________ (hereinafter referred to
as the "EXECUTIVE").
R E C I T A L S:
A. The Company wishes to engage the Executive as the __________ of
the Company on the terms and conditions set forth in this Agreement.
B. The Executive is willing to accept employment as the ___________
of the Company on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants set forth in this Agreement, the Company and the Executive agree as
follows:
1. POSITION AND RESPONSIBILITIES.
(a) POSITION. The Executive shall have the title and position of
____________________ of the Company. The Executive shall report directly to
[the Chairman of the Board and the Board of Directors].
(b) DUTIES AND RESPONSIBILITIES. The duties and responsibilities of
the Executive are further described in EXHIBIT A hereto. The Executive will
use his best efforts to perform those duties and discharge his
responsibilities pursuant to this Agreement competently, carefully and
faithfully.
2. TERMS AND CONDITIONS OF EMPLOYMENT.
(a) PERIOD OF EMPLOYMENT. The Company will employ the Executive, and
the Executive accepts employment with the Company, for a period of ________
years commencing on _______________, subject to Section 3.
(b) DEVOTION OF TIME. The Executive will devote his full time,
attention and energies (exclusive of any periods of sickness and disability
and of such normal holiday and vacation periods as have been established by
the Company) to the affairs of the Company to fulfill the responsibilities of
his office. [The Executive will not enter the employ of or serve as a
consultant to, or in any way perform any services with or without compensation
for, any other person, business or organization without the prior written
consent of the Board of Directors.]
(c) BASE SALARY. The Executive shall be paid a base salary ("BASE
SALARY") of no less than $__________ on an annualized basis. Base salary will
be paid in equal semi-monthly installments. Any increases in this Base Salary
will be granted in accordance with the Company's policies and procedures.
(d) CASH INCENTIVES. The Executive shall be eligible to participate
in the Company's [Executive Bonus Program]. The Executive shall be eligible
to receive a bonus ("BONUS") of up to
[___% of his Base Salary] [__________ Dollars ($________)] annually as
provided in the [Executive Bonus Program] during the term of this Agreement.
(e) EQUITY INCENTIVES. [The Executive shall be eligible to participate
in the Company's 1999 Employee Stock Option Plan (the "OPTION PLAN"). The
minimum grant of options to the Executive under this plan shall be __________
per year.] [The Executive has received a grant of stock options pursuant to
existing Option Agreements with Company. . . .]
(f) BENEFITS. The Executive shall be entitled to participate in any
pension, insurance or other benefit plan that may be maintained by the Company
for its employees from time to time, including but not limited to programs of
life and medical insurance, long term disability insurance, the Company's 401K
plan, and paid vacation and holiday benefits. [In addition to these standard
benefits, the Company will provide [list other perqs].]
(g) BUSINESS EXPENSES. The Company will reimburse the Executive for all
reasonable travel, entertainment and other expenses the Executive shall incur in
connection with the performance of his duties under this Agreement, provided
that the Executive properly accounts for such expenses in accordance with the
Company's policies and practices. [You may add more detailed expense policy
covering mobile phone, frequent flyer miles, travel per diems, automobile, etc.]
(h) COMPANY PROPERTY. The Executive agrees that all notes,
memoranda, reports, manuals, materials, data and other papers and records of
every kind relating to the business or finances of the Company which shall
come into his possession during the term of this Agreement shall be the sole
and exclusive property of the Company. This property shall be surrendered to
the Company upon the termination of the Executive's employment with the
Company, or otherwise upon request of the Board of Directors.
(i) PROPRIETARY INFORMATION AGREEMENT. The Executive has executed
and delivered to the Company a Proprietary Information and Assignment of
Inventions Agreement. The Executive's obligations under that agreement are
incorporated into this Agreement by this reference.
3. TERMINATION AND SEVERANCE.
(a) TERMINATION BY THE COMPANY FOR THE COMPANY'S CONVENIENCE. The
Company may terminate the Executive's employment under this Agreement without
cause at any time by giving notice to the Executive. Such termination will
become effective upon the date specified in such notice. A termination of the
Executive's employment by the Executive for good reason (as defined below)
will also be deemed to be a termination by the Company without cause. Any
such termination shall have the following consequences:
(i) the Company shall pay to the Executive the Executive's Base
Salary for a period of ______ [years/months] following such
termination,
(ii) [the Company shall pay to the Executive the pro rata portion
of the Executive's annual Bonus that the Executive would have received
had the Executive been employed by the Company on the date on which
annual bonuses are determined pursuant to the Company's [Executive
Bonus Program] for the year of termination, calculated based on
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that portion of the year during which the Executive was employed by
the Company] [$________, which amount is agreed to approximate the
amount of the Bonus to which Executive would have been entitled but
for such termination];
(iii) the Company shall reimburse the Executive for all business
expenses incurred by the Executive prior to the date of such
termination and otherwise payable pursuant to this Agreement;
(iv) [[all] [one-half] of the Executive's unvested options to
purchase Common Stock of the Company will immediately vest upon such
termination, and the vesting of the Executive's remaining unvested
options to purchase Common Stock of the Company shall cease upon the
date of such termination; and
(v) [for a period of [six months] following such termination, the
Company will continue to provide the Executive with medical, dental
and other insurance benefits on terms at least equivalent to the
benefits provided to the Executive prior to such termination.]
Other than the foregoing, the Company will not be obligated to make
any other payment or provide any other benefit to the Executive.
For the purposes of this section, the term "FOR GOOD REASON" shall
mean the establishment by the Executive in written notice to the Company that
any of the following has occurred:
(A) a material reduction in the Executive's Base Salary;
(B) a change of the Company's [Executive Bonus Program] that is
materially adverse to the Executive;
(C) a material reduction in the Executive's responsibilities;
(D) a change in the fundamental business of the Company [which
materially and adversely affects the Executive's compensation
potential with the Company]; or
(E) a material breach of this Agreement by the Company.
(b) TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate
the Executive's employment at any time for cause by giving written notice to
the Executive. Unless otherwise specified in the Company's notice, such
termination will become effective immediately upon giving of such notice. Any
such termination shall have the following consequences:
(i) the Company shall pay to the Executive such amount of the
Executive's Base Salary earned by the Executive prior to the date of
such termination but unpaid by the Company;
(ii) [the Company shall pay to the Executive that portion of
the Executive's annual Bonus that the Executive would have received had
the Executive been employed by the Company at the date on which annual
bonuses are determined pursuant to the Company's
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[Executive Bonus Program] that is attributable to that portion of the
year during which the Executive was employed by the Company];
(iii) the Company shall reimburse the Executive for all
business expenses incurred by the Executive prior to the date of such
termination and otherwise payable pursuant to this Agreement; and
(iv) the vesting of the Executive's options to purchase Common
Stock of the Company shall cease upon the date of such termination.
Other than the foregoing, the Company will not be obligated to make
any other payment or provide any other benefit to the Executive.
For the purposes of this section, "CAUSE" shall mean:
(A) fraud, theft or embezzlement by the Executive against the
Company or any of its affiliates, business partners or customers;
(B) gross dishonesty materially affecting the Company's
interests;
(C) final conviction for a felony or a breach of a law involving
moral turpitude or which breach is materially injurious to the Company
or its reputation;
(D) the Executive's willful and continued failure to perform
substantially his duties for the Company or any entity in control of,
controlled by or in common control with the Company (other than
failure resulting from the Executive's incapacity due to illness), as
determined by the Board of Directors in good faith following notice to
the Executive and a reasonable opportunity, not to exceed 30 days, for
the Executive to bring his performance into compliance with the
Board's requirements;
(E) the Executive's appropriation of a Company corporate
opportunity, other than as approved by the Board of Directors after
full disclosure;
(F) the Executive's material breach of this Agreement.
The existence of cause for termination of this Agreement shall be
conclusively determined for all purposes by a majority vote of a quorum of
the Board of Directors, excluding the Executive for both purposes if he is a
director, in good faith.
(c) TERMINATION BY THE EXECUTIVE FOR THE EXECUTIVE'S CONVENIENCE.
The Executive may terminate his employment without cause at any time by
giving written notice to the Company. Such termination become effective upon
the date specified in such notice, or at such earlier time as the Company may
elect, in its discretion. Any such termination will have the following
consequences:
(i) the Company shall pay to the Executive such amount of the
Executive's Base Salary earned by the Executive prior to the date of
such termination but unpaid by the Company;
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(ii) [the Company shall pay to the Executive the pro rata
portion of the Executive's annual Bonus that the Executive would have
received had the Executive been employed by the Company on the date on
which annual bonuses are determined pursuant to the Company's
[Executive Bonus Program] for the year of termination, calculated based
on that portion of the year during which the Executive was employed by
the Company];
(iii) the Company shall reimburse the Executive for all
business expenses incurred by the Executive prior to the date of such
termination and otherwise payable pursuant to this Agreement; and
(iv) the vesting of the Executive's remaining unvested options
to purchase Common Stock of the Company shall cease upon the date of
such termination.
Other than the foregoing, the Company will not be obligated to make
any other payment or provide any other benefit to the Executive.
(d) TERMINATION UPON A CHANGE OF CONTROL. Upon any termination of
the Executive's employment within ___ months of the occurrence of a change of
control (as defined below), other than a termination described under Section
3(c), the Executive shall be entitled to receive the benefits set forth in
Section 3(a), provided that
(i) all unvested options shall fully vest upon the change of
control, and
(ii) the Executive shall receive a severance payment equal to
[___ times Base Salary], payable within [60] days following the change
of control.
For the purposes of this section, "CHANGE OF CONTROL" means [(i) the
acquisition of shares of capital stock of the Company by a person or entity or a
group of related persons or entities in one or a series of transactions that
causes the stockholders of the Company immediately prior to the transaction or
series of transactions to own less than 50% of the outstanding shares of capital
stock of the Company immediately after the transaction or series of
transactions]; [(ii) the acquisition of shares of capital stock of the Company
by a person or entity or a group of related persons or entities in one or a
series of transactions equaling 20% or more of the outstanding capital stock of
the Company in combination with a change in the composition of the Board of
Directors of the Company of more than 50% of the directors immediately prior to
the transaction or series of transactions that occurs within 12 months of such
transaction or series of transactions]; (iii) a merger or other reorganization
of the Company whereby the stockholders of the Company immediately prior to the
transaction own less than 50% of the outstanding shares of capital stock of the
surviving corporation immediately after the transaction; or (iv) a sale of all
or substantially all of the assets of the Company.
(e) TERMINATION BY DEATH OR DISABILITY. This Agreement shall terminate
upon the death or disability of the Executive. The Executive shall be considered
disabled if he is physically, emotionally or mentally unable to perform and does
not perform substantially the essential functions of his position for more than
[180] consecutive days. Any such termination shall have the following
consequences:
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(i) the Company shall pay the Executive the Executive's Base
Salary for a period of [___ year/months] following such termination;
(ii) [the Company shall pay the Executive that portion of the
Executive's annual Bonus that the Executive would have received had
the Executive been employed by the Company at the date on which annual
bonuses are determined pursuant to the Company's [Executive Bonus
Program] that is attributable to that portion of the year during which
the Executive was employed by the Company] [$________, which amount is
agreed to approximate the amount of the Bonus that Executive would
have been entitled but for such termination];
(iii) the Company shall reimburse the Executive for all business
expenses incurred by the Executive prior to the date of such
termination and otherwise payable pursuant to this Agreement;
(iv) [[all] [one-half] of the Executive's unvested options to
purchase Common Stock of the Company will immediately vest, and the
vesting of the Executive's remaining unvested options to purchase
Common Stock of the Company shall cease upon the date of such
termination;] and
(v) [for a period of [six] months following a termination upon
the disability of the Executive, the Company will continue to provide
the Executive with medical, dental and other insurance benefits on
terms at least equivalent to the benefits provided to the Executive
prior to such termination.]
(f) DATES OF PAYMENTS. The payment of Base Salary due the Executive
upon a termination under Section (b) shall be made on the date of such
termination. The payment of Base Salary due the Executive upon a termination
under Section 3(c) shall be made on the date of the effectiveness of such
termination. All payments due the Executive upon a termination under Section
3(a) for Base Salary attributable to services performed by the Executive
prior to the date of termination shall be made on the date of the
effectiveness of such termination. All payments of Base Salary due the
Executive after the termination of his employment shall be made to Executive
in approximately equal installments not less frequently than monthly, in
accordance with the Company's normal payroll practice. All Bonus payments due
the Executive after the termination of his employment shall be made to
Executive on the date on which bonus payments are made generally under the
[Executive Bonus Program]. All reimbursements of expenses due the Executive
after the termination of his employment shall be made as soon as reasonably
possible after the Company receives all documentation necessary to verify
such expenses.
4. EXCESS PARACHUTE PAYMENT. Notwithstanding any other provision of
this Agreement, if any payment to be made or benefit to be provided to the
Executive pursuant to this Agreement, after taking into account all other
payments or benefits provided by the Company to the Executive, would
constitute a "parachute payment" as defined in Section 280G of the Code, then
the payments to be made or benefits to be provided to the Executive shall be
reduced so that the aggregate present value of all parachute payments does
not exceed 299% of the Executive's "annualized includible compensation for
the base period" (as such term is defined in Section 280(d)(1) of the Code).
The determination of any reduction in the payments or benefits to be provided
to the Executive shall be
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made by the Board of Directors in good faith, and such determination shall be
conclusive and binding on the Executive.
5. NOTICE. Notices given pursuant to the provisions of this
Agreement must be in writing and shall be sent by certified mail, postage
pre-paid, or by overnight courier, or by telex, telecopier or telegraph,
charges prepaid, to the following addresses:
To the Company:
595 Market Street, 6th Floor
San Francisco, CA 94105
Attention: President
Facsimile:
------------------------
Telephone:
------------------------
To the Executive:
-----------------------------------
-----------------------------------
Facsimile:
------------------------
Telephone:
------------------------
Any party may, from time to time, designate any other address to
which any such notice to it or him shall be sent. Any such notice shall be
deemed to have been delivered upon receipt.
6. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with laws of the State of California without
regard to its conflict of laws provisions.
(b) WAIVER; AMENDMENT. The waiver by any party to this Agreement of
a breach of any provision by the other party or the occurrence of an event
constituting "cause" shall not be construed as a waiver of any subsequent
breach or event. No provision of this agreement may be terminated, amended,
supplemented, waived or modified other than by an instrument in writing,
signed by the party against whom the enforcement of the termination,
amendment, supplement, waiver or modification is sought.
(c) ENTIRE DOCUMENT. This Agreement, including its Exhibits,
represents the entire agreement between the parties with respect to the
subject matter of this Agreement and supersedes any previous agreement or
understanding.
(d) ASSIGNABILITY. The rights and obligations of the parties under
this Agreement shall inure to the benefit of and be binding upon their
respective successors and assigns. The Executive may not assign his rights
and obligations hereunder without the express, written consent of the
Company. The Company may assign its rights and obligations to any successor
in interest to the Company's business, subject to the provisions of Section
3(d).
(e) SEVERABILITY. If any provision of this Agreement is deemed to be
invalid or unenforceable, this remainder of the Agreement shall remain valid
and binding and of like effect as though such provision were not included.
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[(f) DISPUTE RESOLUTION. If there is a dispute between the parties
arising out of or relating to this Agreement, including but not limited to its
alleged breach or termination, the parties shall first attempt in good faith to
settle this dispute by mediation, either under the rules of the American
Arbitration Association or with the assistance of another organization
established to provide mediation services. If mediation is unsuccessful, any
remaining unresolved controversy or claim arising out of or relating to this
contract, its alleged breach or termination, shall be resolved by arbitration in
accordance with the commercial arbitration rules of the American Arbitration
Association and the laws of the State of California. The arbitration shall occur
in San Francisco, California.
There shall be a single arbitrator agreed upon mutually by the
parties. If the parties cannot agree upon the selection of an arbitrator
within 30 days after the demand for arbitration given by one party to the
other, the selection of the arbitrator shall be made by obtaining a list of
seven arbitrators from the San Francisco office of the American Arbitration
Association. After obtaining this list, the parties shall alternately strike
names from the list, with the Employee to be the party striking first. After
each party has stricken three names from the list, the remaining name shall
be the single arbitrator for this proceeding. Alternatively, the parties may
agree, by written stipulation, to appoint a single arbitrator whose name is
not on a list supplied by the American Arbitration Association,
The arbitrator will have the power to award contract damages to either
party. Each party shall be responsible for paying one half of the arbitrator's
fees, and its own costs and attorneys fees, except that the arbitrator shall be
empowered to award costs and attorneys fees to the prevailing party, should he
or she find that the position of the other party is without substantial merit.
The arbitrator's award shall be in writing and shall be accompanied by a written
opinion explaining the reasons for the arbitrator's decision.]
* * *
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IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the date first set forth above.
THE COMPANY THE EXECUTIVE
By:
-------------------------------- -----------------------------------
Name:
-------------------------
Title:
-------------------------
Date: , 2000 Date: , 2000
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EXHIBIT A
DUTIES AND RESPONSIBILITIES
OF
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