EXHIBIT 1.14
ACCESSPOINT CORPORATION
August 4, 2000
Mr. Austin Paris
Re: Letter of Proposal / Accesspoint Advisory Consultant
Dear Austin:
Thank you for your interest in assisting Accesspoint Corporation
("Accesspoint"). We would very much appreciate your service as an Accesspoint
Advisory Consultant ("Consultant"). As a Consultant to Accesspoint you are
appointed by the Chief Executive Officer of Accesspoint and serve as an adjunct
consultant to Accesspoint and its senior executives.
Accesspoint desires to benefit from any business referrals you might make
as a Consultant. To this end Accesspoint feels that your potential contribution
merit compensation in the form of stock and stock options. Accesspoint
understands that you will present, introduce and/or refer to Accesspoint: (i)
business and business opportunities which may result in revenue to Accesspoint;
and (ii) potential funding sources, investors, strategic business partners, and
others who may facilitate fulfillment of the capital needs of Accesspoint (
collectively "Potential Resources"). In accordance with the foregoing, you
will, from time to time, present and introduce Potential Resources to
Accesspoint, which will result in a financial benefit to Accesspoint of value
reasonably equivalent to the value of the stock and options granted hereunder.
Accesspoint shall retain sole discretion in determining (i) the value of
the Potential Resources referred by you; and (ii) whether or not to enter into
any transaction with any Potential Resource. Accesspoint may accept or reject
any proposal made by any Potential Resource referred by you hereunder. You
acknowledge that Accesspoint desires to conduct business only with suitable
Potential Resources, as determined by Accesspoint in its sole discretion.
Notwithstanding the foregoing, Accesspoint will use its bone fide good faith
judgment when determining whether or not to enter into any transaction or other
relationship with any Potential Resource.
Our respective expectations may be expressed as follows:
Duties of Consultant
1. Promote, advertise and market the Accesspoint Services; present and
represent Accesspoint and its services and products in a positive
manner and emphasize the value added aspects of Accesspoint and its
services and products.
2. Devote your best reasonable efforts and skills to the business
interests of Accesspoint, and further enhance and develop the
interests and welfare of Accesspoint.
Accesspoint Corporation
Mr. Austin Parris
August 4, 2000
Page 2
2. Refer Potential Resources to Accesspoint and provide Accesspoint
written notice regarding each Potential Resource so referred.
3. Obey all lawful rules, regulations, special instructions, and
directives as directed by Accesspoint applicable to the matters
contemplated herein.
4. Make available to Accesspoint any and all information of which you
have knowledge that is relevant to Accesspoint's business and is not
subject to any enforceable confidentiality restrictions, and make all
suggestions and recommendations, which you believe will be of benefit
to Accesspoint.
3. Refrain from making any representations or warranties regarding the
Accesspoint Services beyond those contained in the promotional,
advertising and marketing materials provided by Accesspoint.
Duties of Accesspoint
1. Provide you with materials describing Accesspoint software and
services for your reasonable use in promoting, advertising and
marketing Accesspoint software and services and obtaining Potential
Resources.
2. Subject to the understandings set forth herein, use bone fide good
faith judgment when determining whether to enter into agreements for
the Accesspoint Services (each an "Accesspoint Services Agreement")
with Potential Resources referred to Accesspoint.
3. Reserve and provide for the exercise of vested awards of hereunder,
issue vested shares, and allow the exercise of vested options
hereunder.
4. Reimburse you, upon submission of travel expense account and
supporting documents as required by the Internal Revenue Service, for
all pre-approved (which approval shall be in written form) reasonable
travel expenses incurred by you as part of and in connection with in
promoting, advertising and marketing Accesspoint software and services
and obtaining Potential Resources.
Accesspoint Corporation
Mr. Austin Parris
August 4, 2000
Page 3
As a Accesspoint Consultant, Accesspoint would like to offer you 6,000
shares of common stock vesting on an approximate prorata basis over a 12-month
period to avoid issuance of fractional shares, Accesspoint would propose the
following vesting schedule; 500 shares vesting each month, month 1 through 12
equaling a total of 6,000 shares.
Accesspoint would also like to offer you 2,400 stock options for the
purchase of common shares at an exercise price of $3.37 per share, for services
as a Consultant. The stock options would also vest on immediately upon grant.
Furthermore, the above options shall also carry a cashless exercise provision.
The foregoing stock awards and stock options would be deemed to constitute
an "Award" pursuant to the Accesspoint Corporation 1999 Stock Incentive Plan
("Plan"). The Plan permits the granting of stock options (including
nonqualified stock options) and stock Awards. Notwithstanding whether or not
the stock options would be intended to qualify as incentive stock options under
Section 422 of the Internal Revenue Code of 1986, as amended, the above exercise
price would be deemed to equal the Fair Market Value on the date of grant as
that term is defined pursuant to the Plan. All of the terms of the Plan shall
be incorporated herein by this reference.
You acknowledge and agree that service as a Consultant member may involve
access to certain trade secrets and confidential information pertaining to the
business of Accesspoint. Accordingly, you agrees that at all times after the
date hereof, you will not, directly or indirectly, without the express written
consent of Accesspoint, disclose to or use for the benefit of any person,
corporation or other entity, or yourself, any trade secrets or other
confidential information concerning Accesspoint's business, including, but not
limited to, information pertaining to its marketing strategy, earnings or
finances, or information concerning its past, present or prospective clients,
customers, purchasers, its operations, methods or other activities. Further,
you agree that you shall not, directly or indirectly, remove or retain, without
the express prior written consent of Accesspoint, any figures, calculations,
letters, papers, records, documents, instruments, drawings, designs, programs,
or any copies thereof, or any information or instruments derived therefrom or
any other similar information might be obtained or recorded, arising out of or
in any way relating to the business of Accesspoint or obtained as a result of
the matters contemplated herein. You acknowledge that all of the foregoing are
proprietary information, which is the exclusive property of Accesspoint. Any
provision in this letter or any other agreement to the contrary notwithstanding,
your obligation under this provision shall survive the termination of this
letter or any such agreement.
During the term of your service as a Consultant, and for a period of one
(1) year after the termination thereof, you shall not, directly or indirectly,
either as a representative, employer,
Accesspoint Corporation
Mr. Austin Parris
August 4, 2000
Page 4
consultant, agent, principal, partner, stockholder, corporate officer, director,
or in any other individual or representative capacity, engage or participate in
any business that is in competition in any manner whatsoever with the business
of Accesspoint in any county in which Accesspoint is then conducting business
without the prior written consent of Accesspoint.
Neither party to this letter agreement shall have, and neither party shall
hold itself out has having, any right or authority at any time to make any
contract or binding promise of any nature on behalf of the other party, whether
oral or written, without the express prior written consent of the other party.
This letter agreement is not intended to be an offer for the sale or
issuance of securities, whether pertaining to stock, options, or otherwise,
unless the same is exempt from registration and qualification pursuant to an
applicable exemption. The issuance of stock and options is expressly subject to
compliance with all state and federal securities laws, rules and regulations by
the parties. While the Company does not consider this letter agreement itself
to be a securities or offer of any securities, whether pertaining to stock,
options, or otherwise, in the event that this letter is construed to be an
offer, the parties acknowledge the following disclosure in accordance with
Section 25102(a) of the California Corporations Code:
The sale of the securities which are the subject of
this agreement has not been qualified with the
Commissioner of Corporation of the State of California
and the issuance of such securities or the payment or
receipt of any part of the consideration therefore
prior to such qualification is unlawful, unless the
sale of securities is exempt from the qualification by
Section 25100, 25102, or 25105 of the California
Corporations Code. The rights of all parties to this
agreement are expressly conditions upon such
qualification being obtained unless the sale is so
exempt.
We each understand that no part of the purchase price for stock or options
or other securities may be received and no stock, options or other securities
may be issued hereunder until and unless the sale of such securities is
qualified or registered under applicable state and federal law unless the sale
of such private securities is exempt from the qualification by applicable state
law (including, without limitation, pursuant to the provisions of Sections
25100, 25102 or 25105 of the Code) or exempt from registration by applicable
federal law.
This letter is intended for discussion purposes only and is not intended to
become a contract, written or oral, between Accesspoint and you. Accesspoint
may require that you enter into a separate
Accesspoint Corporation
Mr. Austin Parris
August 4, 2000
Page 5
Consultant Agreement, Stock Option Agreement, Stock Award Agreement,
Confidentiality Agreement, or other reasonable written agreement. Service as an
Accesspoint Advisory Board member shall not constitute employment of any type
whatsoever by Accesspoint. We each shall therefore have the right to terminate
this relationship at any time, for any reason, with no obligation to provide
advanced notice of such termination. Upon termination, all unvested Awards
(including, without limitation, stock and stock options) shall terminate and
cease to become exercisable by you. Accesspoint anticipates that it shall
receive commensurate value for the Awards in the form of referrals and potential
business relationships resulting from the Potential Resources introduced by you.
Should we determine in our sole unbelievable discretion, subject to the
provisions of this letter agreement, that Accesspoint has not received
commensurate value, Accesspoint may terminate your services as an Advisory Board
member, without cause and without notice as set forth above, and the vesting of
any and all awards hereunder shall immediately cease.
This letter agreement may be amended only by written consent of each of the
parties hereto. The parties hereto shall cooperate with each other and execute
such additional documents or instruments and perform such further acts as may be
reasonably necessary to affect the purpose and intent of this letter agreement.
This letter agreement constitutes the entire agreement between the parties
pertaining to the subject matter contained in it and supersedes all prior and
contemporaneous agreement, representations and understandings of the parties.
No waiver of any of the provisions of this letter agreement shall be deemed, or
shall constitute a waiver of any other provision, whether or not similar, nor
shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver. Should any provision
or portion of this letter agreement be held or otherwise become unenforceable or
invalid for any reason, the remaining provisions and portions of this letter
agreement shall be unaffected by such unenforceability or invalidity.
This letter agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The persons executing
this letter agreement represent that they possess full power and authority to
bind the entities they purport to bind hereunder. This letter agreement shall
be binding on, and shall inure to the benefit of, the parties to it and their
respective heirs, legal representatives, successors and assigns. All
representations, warranties and agreements of the parties contained in this
letter agreement, or in any instrument, certificate, opinion or other writing
provided for in it, shall survive the termination of this letter agreement.
Nothing in this letter agreement, whether express or implied, is intended to
confer any rights or remedies under or by reason of this letter agreement on any
persons other than the parties to it and their respective successors and
assigns, nor is anything in this letter agreement intended to relieve or
discharge the obligation or liability of any
Accesspoint Corporation
Mr. Austin Parris
August 4, 2000
Page 6
third party to this letter agreement, nor shall any provision give any third
person any right of subrogation or action over against any party to this letter
agreement.
Each party's obligations under this letter agreement are unique. If any
party should default in its obligations under this letter agreement, the parties
each acknowledge that it would be extremely impracticable to measure the
resulting damages; accordingly, the nondefaulting party, in addition to any
other available rights or remedies, may sue in equity for specific performance
without the necessity of posting a bond or other security, and the parties each
expressly waive the defense that a remedy in damages will be adequate.
If any legal action or any arbitration or other proceeding is brought for
the enforcement of this letter agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any of the provisions of
this letter agreement, the successful or prevailing party or parties shall be
entitled to recover as an element of their damages, reasonable attorneys' fees
and other costs incurred in that action or proceeding, in addition to any other
relief to which they may be entitled.
Whenever the context of this letter agreement requires, the masculine
gender includes the feminine or neuter gender, and the singular number includes
the plural. This letter agreement shall be construed in accordance with, and
governed by, the laws of the State of California. This letter agreement is to
be performed at Orange County, California. Therefore, venue for any action
brought regarding the interpretation or enforcement of this letter agreement
shall lie exclusively in Orange County, California.
If you find the foregoing provisions satisfactory, please execute the
acknowledgment and consent provision set forth below. As chief executive officer
of Accesspoint, I look forward to your potential contribution to our team. If
you have any questions concerning this proposal, please do not hesitate to
contact me at (949) 852-8526 x200 as soon as possible. I look forward to the
exciting opportunities ahead.
Accesspoint Corporation
Mr. Austin Parris
August 4, 2000
Page 7
Sincerely,
Accesspoint Corporation
By: /s/ Tom M. Djokovich
--------------------
Tom M. Djokovich,
Chief Executive Officer
Acknowledged By:
By: /s/ Austin Paris
----------------
Austin Paris
Date: August 4, 2000