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EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of September
17, 1999, by and between ESPERNET.COM, INC., a Delaware corporation with a place
of business at 383 West 12th Street, New York, NY 10014 (the "Company") and
STEVEN F. DEMAR, an individual residing at 1925 North Halsted, Chicago, IL 60614
(the "Employee").
RECITALS
A. The Company has acquired from the Employee all of the issued and
outstanding shares of capital stock of InfoRamp, Inc., an Illinois corporation
("InfoRamp"), pursuant to a Stock Exchange Agreement made as of June 30, 1999,
by and among the Company, Employee and InfoRamp (the "Stock Exchange
Agreement").
B. The Company is an Internet Service Provider ("ISP") engaged in the
business of providing Internet access and services, web hosting, web design and
Internet related services and support.
C. As a condition to the consummation of the Stock Exchange Agreement,
the parties have agreed to enter into an employment relationship, in accordance
with the terms and conditions of this Agreement.
D. The Company wishes to employ Employee subject to the terms and
conditions of this Agreement, and Employee wishes to accept such employment
subject to the terms and conditions of this Agreement.
E. The giving of the covenants contained herein is a condition
precedent to the employment of Employee, and Employee acknowledges that the
execution of this Agreement and the entering into of these covenants is an
express condition of Employee's employment and other benefits conferred upon him
by this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements herein set forth, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
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1. Employee's Duties and Responsibilities.
1.1 Company hereby agrees to employ Employee, and Employee
agrees to enter the employ of Company for the term of employment as provided in
Section 2. Employee shall perform such duties from time to time and at such
place or places as the Company shall designate as appropriate and necessary in
connection with such employment. It is recognized that the Employee shall
continue to work within 25 miles of his residence in Chicago, Illinois and shall
travel to the extent that the Employee reasonably deems necessary to fulfill his
duties hereunder. Employee shall serve in the capacity of Vice President -
Midwest Region and Vice President - Marketing and Sales and a member of the
Council of Presidents and Board of Directors of the Company.
1.2 Employee will, to the best of Employee's reasonable
ability, devote his reasonable best efforts to the performance of his duties
hereunder and the business and affairs of the Company; provided, however,
notwithstanding the foregoing, Employee shall be entitled to expend reasonable
time and attention to the businesses set forth on Appendix III. Employee agrees
to perform such duties as may be assigned to Employee by or on the authority of
the Company's Board of Directors from time to time; provided, however, Employee
shall not be requested or required to perform duties which are not commensurate
with duties assigned to other senior executives of the Company or which are not
commensurate with the job titles and capacities enumerated in Section 1.1.
1.3 Employee will duly, punctually and faithfully perform and
observe any and all rules and regulations which the Company may now or shall
hereafter establish governing the conduct of its business of general
applicability to the Company's most senior executives.
2. Term of Employment.
2.1 The employment of the Employee by the Company shall be for
the period commencing on the date of the Company's initial public offering (the
"IPO") of its common stock (the "Starting Date") and expiring on the third
anniversary of the Starting Date (the "Expiration Date"), unless such employment
shall have been extended or sooner terminated as hereinafter set forth.
Employee's employment with the Company may be terminated at any time as provided
in Section 2.2.
2.2 The Company shall have the right, on written notice to
Employee, to terminate Employee's employment:
(a) immediately at any time for cause, as determined
under Section 2.3;
(b) at any time upon the mutual written agreement of
the parties hereto;
(c) immediately upon Employee's death;
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(d) immediately upon Employee's Total Disability (as
defined in Section 2.5); or
(e) upon not less than 30 days' advance written
notice from Employee of Employee's desire to terminate this Agreement; provided,
however, that, following such notice, the Company shall have the right to
terminate Employee's employment immediately.
2.3 Employee's employment may be terminated by the Company
upon written notice to Employee at any time for any of the following reasons,
each of which shall constitute "cause":
(a) any material breach of this Agreement by Employee
which is not cured within 20 days after written notice by the Company;
(b) Employee's fraud, embezzlement, dishonesty or
unlawful acts in connection with the business of the Company or its Affiliates;
(c) Employee's conviction for any felony or material
misdemeanor; or
(d) Employee's substantial and continuing willful
failure to perform, or grossly negligent performance of, the legal and ethical
duties of Employee's position and consistent with other senior executives of the
Company, which failure or performance is not cured within twenty (20) days after
written notice by the Company.
2.4 The term "Date of Termination" shall mean the earlier of
(i) the Expiration Date or (ii) if the Employee's employment is terminated (A)
by his death, the date of his death, or (B) for any other reason, the date on
which such termination is to be effective pursuant to the notice of termination
given by the party terminating the employment relationship. For all purposes of
this Agreement, references to the "term" of the Employee's employment hereunder
shall mean the period commencing on the Starting Date and ending on the Date of
Termination.
2.5 "Total Disability" means having a physical or mental
condition has rendered Employee incapable of substantially performing his
material duties and responsibilities with the Company after a consecutive period
of six months. Determination of a Total Disability will be made by a physician
selected by the Company. If the determination of such physician differs from the
opinion as to disability of the Employee's physician, the two physicians shall
select a third physician, whose determination shall be binding on both parties.
3. Compensation.
3.1 Salary. Employee shall receive a salary of $150,000.00 per
annum (the annual rate of salary in effect from time to time being referred to
as the "Salary"). Salary shall be payable in accordance with the Company's
standard payroll policies as in effect from time to time, but in no
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event less frequently than monthly. Except as otherwise provided in this
Agreement, the Salary shall be prorated for any period of service less than a
full year.
3.2 Performance Bonus. As additional compensation for his
services during the term of his employment hereunder, the Company shall pay the
Employee with respect to each fiscal year of the Company, determined in
accordance with Appendix I hereto, the performance bonus amounts, if any,
determined as set forth in said Appendix I (the "Performance Bonus Plan"). The
performance bonus shall be paid in accordance with the Company's policies for
payment thereof to its senior executives but in no event later than thirty (30)
days after the end of each fiscal year.
3.3 Stock Option. Subject to all of the terms and provisions
hereof, the Company shall grant to the Employee the stock option specified in
Appendix II hereto (the "Stock Option").
3.4 Automobile Allowance. The Company shall pay the Employee a
monthly automobile allowance of $800.00.
3.5 Vacation. Employee shall be entitled to vacation in
accordance with the Company's consistently applied policies for its most senior
executives but in no event less than four (4) weeks per annum.
3.6 Sick and Holiday Days. Employee shall be entitled to sick
and holiday days in accordance with the Company's consistently applied policies
for its most senior executives.
3.7 Fringe Benefits. Employee shall be entitled to participate
in benefits under the Company's benefit plans and arrangements, including,
without limitation, any employee benefit plan or arrangement made available in
the future by the Company to its senior executives, subject to and on a basis
consistent with the terms, conditions, and overall administration of such plans
and arrangements. The Company shall have the right to amend or delete any such
benefit plan or arrangement made available by the Company to its senior
executives and not otherwise specifically provided for herein.
3.8 Expenses. The Company shall reimburse Employee for
reasonable out-of-pocket expenses incurred in connection with the Company's
business and the performance of his duties hereunder, subject to (i) such
policies as the Board may from time to time establish, (ii) Employee furnishing
the Company with evidence in the form of receipts satisfactory to the Company
substantiating the claimed expenditures, (iii) Employee receiving advance
approval from the Board in case of expenses (or a series of related expenses) in
excess of $5,000.
4. Compensation upon Termination.
4.1 Death. Notwithstanding any other provision of this
Agreement, if the Employee's employment shall be terminated by reason of his
death, the Company shall pay or provide to such person or entity as the Employee
shall have designated in a notice filed with the Company,
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or, if no such person or entity shall have been designated, to his estate: (a)
his full Salary through the Date of Termination at the rate in effect at the
time of his death; and (b) the Prorated Performance Bonus (as defined in the
Performance Bonus Plan), if any.
4.2 Incapacity. Notwithstanding any other provision of this
Agreement, if the Employee's employment shall be terminated by reason of his
incapacity: (a) the Company shall continue to pay or provide the Employee his
full Salary through the Date of Termination at the rate in effect at the time
the notice of termination is given; and (b) the Prorated Performance Bonus, if
any.
4.3 Cause. Notwithstanding any other provision of this
Agreement, if the Company shall terminate the Employee's employment for cause,
the Company shall have no further obligations to the Employee under this
Agreement other than his pro rata Salary and the through the Date of
Termination.
4.4 Without Cause. Notwithstanding any other provision of this
Agreement, if the Company shall terminate the Employee's employment other than
pursuant to Section 2.2 hereof or if the Employee elects to terminate his
employment pursuant to Section 2.2(e) due to (a) Company's breach of its
obligations hereunder, (b) constructive discharge of Employee, or (c) a change
in control of the Company, then the company shall pay to the Employee: (i) his
full Salary through the earlier of (A) one year from the Date of Termination or
(B) the Expiration Date, at the rate in effect at the time notice of termination
is given; and (ii) a prorated Performance Bonus, if any.
4.5 Post-Termination Obligations Generally. In the event the
Employee's employment shall terminate by reason of the expiration of the term of
this Agreement: the Company shall pay to the Employee (a) his Performance Bonus,
if any, with respect to the fiscal year ending on or prior to the Expiration
Date and (b) the Prorated Performance Bonus, if any, for that portion of the
fiscal year through the Expiration Date. Except as expressly set forth in the
preceding sentence and in the Stock Option, the Company shall have no further
obligations to the Employee following expiration of the term of this Agreement.
In the event of the termination of the Employee's employment other than by
expiration of the term of this Agreement, the Company shall have no obligation
to the Employee except as otherwise specifically provided in this Section 4 and
in the Stock Option, and performance by the Company thereof shall constitute
full settlement of any claim that the Employee may have against the Company or
any of its shareholders, subsidiaries or Affiliates on account of such
termination.
5. Other Activities During Employment. Except for any outside
employment and directorships currently held by Employee, as listed on Appendix
III attached hereto, and except with the prior written consent of the Company's
Board of Directors, which consent shall not be unreasonably withheld, Employee
will not during the term of this Agreement undertake or engage in any other
employment, occupation or business enterprise other than one in which Employee
is an inactive investor.
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6. Former Employers. Employee represents that the execution and
delivery of this Agreement and Employee's employment with the Company does not
violate any previous employment agreement or other contractual obligation of
Employee. Employee represents and agrees that any and all employment agreements
to which Employee is or was a party (the "Employment Agreements") have been
terminated and Employee has obtained releases with respect to said Employment
Agreements. Employee also represents and agrees that Employee has not used or
disclosed, and will not use or disclose, to the Company any information, whether
confidential, proprietary, or otherwise, which Employee has in Employee's
possession and which Employee is not legally free to use or disclose.
7. Confidential and Proprietary Information. Employee agrees that as a
condition to Employee's employment that he will never disclose, directly or
indirectly, to any other firm or person any of Company's or its Affiliates'
confidential or proprietary information including customer lists, trade secrets,
and know-how relating to its or their business. Confidential or proprietary
information shall not include any information which is or hereafter comes in the
public domain or is or becomes generally known or available in the industry
through no act of Employee prohibited by this Agreement.
8. Non-Compete and Non-Solicitation Agreement.
8.1 Employee recognizes that (a) the Company and its
Affiliates have spent substantial money, time and effort developing and
solidifying their relationships with their customers and in developing their
confidential information; (b) customer relationships have been difficult to
develop and required a significant investment of Company time, effort and
expense; (c) the Company pays its employees to, among other things, develop and
preserve business information, customer goodwill and customer loyalty for and on
behalf of the Company; and (d) the Company is hereby agreeing to employ and pay
Employee based upon Employee's assurances and promises contained herein not to
misappropriate the goodwill of the Company's customers and not to put herself in
a position during or following Employee's employment with the Company in which
the confidentiality of the Company's confidential and proprietary information as
described in Section 7 might somehow be compromised. Accordingly, Employee
covenants and agrees that for a period ending on the later of (i) two years from
the date hereof or (ii) one year after termination of Employee's employment
hereunder (the "Non-Compete Period"), regardless of whether Employee's
termination of employment, if any, is with or without cause, neither Employee
nor any entity controlled by or under common control with Employee shall (x)
engage in, or have any direct or indirect interest in any other person, firm,
corporation, or other entity engaged in any material business activities engaged
in by the Company on the Date of Termination, or (y) become an employee,
director, advisor, consultant, independent contractor, or agent of any such
person, firm, corporation or other entity, except with the Company's prior
written consent.
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8.2 Employee further covenants that he shall not (a) solicit,
cause or induce or attempt to solicit, cause or induce any present or future
employee of the Company or its Affiliates (i.e., any person employed by the
Company or its Affiliates (or their successors) at any time from and including
the date hereof through the Date of Termination) to leave the employ of the
Company or its Affiliates (or their successors), (b) cause or induce or attempt
to cause or induce any present or future client ("Present or Future Client") of
the Company or its Affiliates (or their successors) (i.e., any person or entity
which is a client of the Company or its Affiliates (or their successors) at any
time from and including the date hereof through the Date of Termination) to
reduce or sever its affiliation with the Company or its Affiliates (or their
successors) with respect to a material business of the Company or its Affiliates
engage in on the Date of Termination, or (c) solicit, attempt to solicit or
accept business relating to the material business of the Company or its
Affiliates engaged in by the Company on the Date of Termination from any Present
or Future Client of the Company or its Affiliates (or their successors).
8.3 Employee recognizes and agrees that the restraints
contained in Sections 8.1 and 8.2 are reasonable and enforceable in view of the
legitimate interests of the Company and its Affiliates in protecting their
confidential information and customer goodwill, and that the limitations
contained therein on the duration and geographic scope of, and activities
prohibited by, such restraints are reasonable and binding upon Employee.
8.4 The covenants contained in this Section 8 shall be deemed
to be a series of separate covenants, one for each aspect of the Company's
businesses and locations. Each separate covenant shall hereinafter be referred
to as a "Separate Covenant."
8.5 If any court or tribunal of competent jurisdiction shall
refuse to enforce one or more of the Separate Covenants because the time limit
applicable thereto is deemed unreasonable, it is expressly understood and agreed
that such Separate Covenant or Separate Covenants shall not be void but that for
the purpose of such proceedings such time limitation shall be deemed to be
reduced to the extent necessary to permit the enforcement of such Separate
Covenant or Separate Covenants.
8.6 If any court or tribunal of competent jurisdiction shall
refuse to enforce any or all of the Separate Covenants because, taken together,
they are more extensive (whether as to geographic area, scope of business, or
otherwise) than is deemed to be reasonable, it is expressly understood and
agreed between the parties that such Separate Covenant or Separate Covenants
shall not be void but that for the purpose of such proceedings the restrictions
contained therein (whether as to geographic area, scope of business or
otherwise) shall be deemed to be reduced to the extent necessary to permit the
enforcement of such Separate Covenant or Separate Covenants.
8.7 Nothing contained herein shall restrict Employee from
owning 5% or less of the corporate securities of any entity in competition with
the Company's businesses,
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which securities are listed on any national securities exchange or authorized
for listing on the NASDAQ National Market, if Employee has no other connection
or relationship, direct or indirect, with the issuer of such securities.
9. Survival. Employee's obligations under the provisions of Sections 7,
8, 9, 10 and 14 of this Agreement (as modified by Section 10, if applicable)
shall survive the expiration or termination of Employee's employment (whether
through Employee's resignation or otherwise) with the Company.
10. Assignment. This Agreement and the rights and obligations of the
parties hereto shall bind and inure to the benefit of any successor or
successors of the Company by reorganization, merger or consolidation and any
assignee of all or substantially all of its business and properties.
Notwithstanding any other provision of this Agreement, and properties, but,
except as to any such successor or assignee of the Company, neither this
Agreement nor any rights or benefits hereunder may be assigned by the Company or
by Employee.
11. Interpretation. IT IS THE INTENT OF THE PARTIES THAT in case any
one or more of the provisions contained in this Agreement shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect the other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. MOREOVER, IT IS THE
INTENT OF THE PARTIES THAT in case any one or more of the provisions contained
in this Agreement shall for any reason be held to be excessively broad as to
duration, geographical scope, activity or subject, such provision shall be
construed by limiting and reducing it as determined by a court of competent
jurisdiction, so as to be enforceable to the extent compatible with applicable
law.
12. Notices. Any notice which the Company is required or may desire to
give Employee shall be given by personal delivery or registered or certified
mail, return receipt requested, addressed to Employee at Employee's address of
record with the Company, or at such other place as Employee may from time to
time designate in writing. Any notice which Employee is required or may desire
to give to the Company hereunder shall be given by personal delivery or by
registered or certified mail, return receipt requested, addressed to the Company
at its principal office, or at such other office as the Company may from time to
time designate in writing. The date of personal delivery or the date of mailing
any notice under this Section 11 shall be deemed to be the date of delivery
thereof.
13. Waivers. If either party should waive any breach of any provision
of this Agreement, such party shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
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14. The Company's Right to Injunctive Relief. In the event of a breach
or threatened breach of any of Employee's duties and obligations under the terms
and provisions of Sections 7 or 8 hereof, the Company shall be entitled, in
addition to any other legal or equitable remedies it may have (including any
right to damages that it may suffer), to temporary, preliminary, and permanent
injunctive relief restraining such breach or threatened breach. Employee hereby
expressly acknowledges that the harm which might result to the Company's
business as a result of any noncompliance by Employee with any of the provisions
of Sections 7 or 8 hereof would be largely irreparable.
15. Definition of Affiliate. "Affiliate" shall for purposes of this
Agreement mean any person or entity (the "Specified Person") (a) who directly or
indirectly controls, is controlled by, or is under common control with the
Company, (b) who owns or controls fifty percent (50%) or more of the Company's
outstanding voting securities or percentage interests; (c) in whom the Company
owns or controls fifty percent (50%) or more of the outstanding voting
securities or percentage interests; (d) who is a director, partner, manager,
employee, officer or trustee of the Company; (e) in whom the Company is a
partner; or (f) who has any relationship with the Specified Person by blood,
marriage or adoption, not more remote than lineal ancestor or lineal descendant.
16. Complete Agreement; Amendments. The foregoing, including each of
the Appendices attached hereto, is the entire agreement of the parties with
respect to the subject matter hereof, superseding any previous oral or written
communications, representations, understandings, or agreements with the Company
or any officer or representative thereof. Any amendment to this Agreement or
waiver by the Company of any right hereunder shall be effective only if
evidenced by a written instrument executed by the parties hereto, upon
authorization of the Company's Board of Directors.
17. Headings. The headings of the Sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning of this Agreement.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument. A facsimile, telecopy or
other reproduction of this Agreement may be executed by one or more parties
hereto, and an executed copy of this Agreement may be delivered by one or more
parties hereto by facsimile or similar instantaneous electronic transmission
device pursuant to which the signature of or on behalf of such party can be
seen, and such execution and delivery shall be considered valid, binding and
effective for all purposes as of the date first written above. At the request of
any party hereto, all parties hereto agree to execute an original of this
Agreement as well as any facsimile, telecopy or other reproduction hereof.
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19. Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Illinois without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of Illinois or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Illinois.
20. No Joint Venture. Nothing in this Agreement shall be construed as
creating a joint venture or partnership between Employee and the Company or any
of its Affiliates.
21. Arbitration. In the event of any dispute, claim or controversy
concerning, arising out of or relating to this Agreement, its effect, the breach
thereof, or the transactions contemplated by it, including, without limitation,
issues of arbitrability, the dispute shall be settled by arbitration conducted
on a confidential basis, under the U.S. Arbitration Act, if applicable, and the
then current Commercial Arbitration Rules of the American Arbitration
Association (the "Association") strictly in accordance with the terms of this
Agreement and the substantive law of the State of Illinois. The arbitration
shall be conducted at the Association's regional office located in the Chicago,
Illinois area by three arbitrators, at least one of whom shall be knowledgeable
regarding businesses engaged in providing services via the Internet, one of whom
shall be an attorney and one of whom shall be a member of a "Big-Five"
accounting firm familiar with businesses engaged in providing services via the
Internet. Judgment upon the arbitrators' award may be entered and enforced in
any court of competent jurisdiction. Neither party shall institute a proceeding
hereunder unless at least 60 days prior thereto such party shall have given
written notice to the other party of its intent to do so. In any award, the
arbitrators shall assess the arbitration costs and expenses, including attorneys
fees of the parties, in a manner deemed equitable by the arbitrators, taking
into account the arbitration decision.
22. Separate Transaction. The employment relationship contemplated
herein between Employee and Company is a separate, distinct, and independent
transaction from the transaction contemplated in the Stock Exchange Agreement.
The entry into this Agreement shall be in full satisfaction of the condition of
Employee's employment with the Company pursuant to the Stock Exchange Agreement.
No breach by either party of this Agreement shall constitute a breach of the
Stock Exchange Agreement.
22. WAIVER OF JURY TRIAL. WITH RESPECT TO ANY DISPUTE ARISING UNDER OR
IN CONNECTION WITH THIS AGREEMENT, WHICH HAS NOT BEEN RESOLVED BY NEGOTIATION AS
PROVIDED HEREIN AND AS TO WHICH LEGAL ACTION NEVERTHELESS OCCURS, EACH PARTY
HEREBY IRREVOCABLY WAIVES ALL RIGHTS IT MAY HAVE TO DEMAND A JURY TRIAL. THIS
WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY EACH PARTY HERETO
AND EACH PARTY ACKNOWLEDGES THAT NONE OF THE OTHER PARTIES NOR ANY PERSON ACTING
ON BEHALF OF THE OTHER PARTIES HAS MADE ANY REPRESENTATION OF FACT TO INDUCE
THIS WAIVER OF TRIAL BY
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JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. THE PARTIES EACH FURTHER
ACKNOWLEDGE THAT IT HAS BEEN REPRESENTED OR HAS HAD THE OPPORTUNITY TO BE
REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY
INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD
THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. THE PARTIES EACH FURTHER
ACKNOWLEDGE THAT IT HAS READ AND UNDERSTOOD THE MEANING AND RAMIFICATIONS OF
THIS WAIVER PROVISION.
23. No Punitive Damages. The parties to this Agreement agree to waive
any right to seek punitive damages.
[SIGNATURE PAGE FOLLOWS]
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PLEASE NOTE: BY SIGNING THIS EMPLOYMENT AGREEMENT, EMPLOYEE IS HEREBY CERTIFYING
THAT EMPLOYEE (A) HAS RECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND STUDY
BEFORE EXECUTING IT; (B) HAS READ THIS AGREEMENT CAREFULLY BEFORE SIGNING IT;
(C) HAS CONSULTED AN ATTORNEY PRIOR TO SIGNING OR HAS VOLUNTARILY ELECTED NOT TO
DO SO; (D) HAS HAD SUFFICIENT TIME TO CONSIDER WHETHER TO SIGN THIS AGREEMENT;
(E) HAS HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE AGREEMENT TO ASK ANY
QUESTIONS EMPLOYEE HAS ABOUT THE AGREEMENT AND HAS RECEIVED SATISFACTORY ANSWERS
TO ALL SUCH QUESTIONS; AND (F) UNDERSTANDS EMPLOYEE'S RIGHTS AND OBLIGATIONS
UNDER THE AGREEMENT.
IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement on the date first set out above.
COMPANY:
ESPERNET.COM, INC.
By: /s/ Chinh Chu
-------------------------------------
Name: Chinh Chu
Title: Chairman
EMPLOYEE:
/s/ Steven F. DeMar
-------------------------------------------
Steven F. DeMar
[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT]
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APPENDIX I
1. Performance Bonus Plan: Annual Cash Target Bonus of 100% of your Salary
based upon performance targets established by the Board of Directors
and payable at the end of the Company's fiscal year established by the
Board of Directors. If the Performance Bonus becomes payable for any
period less than a full fiscal year, then such Performance Bonus shall
be prorated for the such period so long as the performance targets have
been satisfied.
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APPENDIX II
Stock Option Plan: 1999 Stock Option/Stock Issuance Plan
Optionee: Steven F. DeMar
Grant Date: Closing of IPO
Vesting Commencement Date: Closing of IPO
Exercise Price: IPO Price
Number of Option Shares: 150,000 shares of Common Stock
Expiration Date: 10 years from Vesting Commencement Date
Type of Option: Non-Statutory Option
Vesting Schedule: Ratably (1/3 each) over 3 years; fulling vesting upon
any Corporate Transaction; full vesting upon an event described in
Section 4.4 of the Employment Agreement.
Exercise Period After Termination of Service: In no event shall
Employee have less than three (3) months to exercise his options after
a Termination of Service.
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APPENDIX III
Cellular Dynamics, Inc.
Aces Group, Ltd.
Techdogs, Inc.
Case Venture Management, Inc.
InfoRamp, Inc.