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Exhibit
10.30
EMPLOYMENT
AGREEMENT
THIS AGREEMENT by and between
Inovant LLC, a Delaware limited liability corporation (the
“Company”), and John Partridge (the
“Executive”), dated as of the first day of October,
2004 (“Effective Date”).
W I T N E S S E T H
:
WHEREAS, the Company wishes
to provide for the employment by the Company of the Executive, and
the Executive wishes to serve the Company, in the capacities and on
the terms and conditions set forth in this Agreement;
NOW, THEREFORE, it is hereby
agreed as follows:
1. EMPLOYMENT PERIOD. The
Company shall employ the Executive, and the Executive shall serve
the Company, on the terms and conditions set forth in this
Agreement for the full term hereof, that is from October 1,
2004 through and including December 31, 2009, or the date it
is terminated (“Employment Period”). The scheduled last
day of the Employment Period (without regard for any earlier
termination of employment by the Company or Executive) shall be the
“Expiration Date.”
2. POSITION AND
DUTIES.
(a) Executive shall serve as
the President and Chief Executive Officer of the Company with such
duties and responsibilities as are customarily assigned to such
position, and such other duties and responsibilities not
inconsistent therewith as may from time to time be assigned to him
by the Managing Board of the Company (so long as Inovant LLC
remains a subsidiary of Visa USA, Inc. or any successor in interest
to Visa USA, Inc.).
(b) During the Employment
Period, and excluding any periods of vacation and sick leave to
which the Executive is entitled, the Executive shall do all things
necessary, legal and incident to the above position, and otherwise
shall perform such functions as the Managing Board of the Company
may establish from time to time. The Executive shall devote his
full time and attention to the performance of the duties incident
to the Executive’s position with the Company, use his
reasonable best efforts to carry out such responsibilities
faithfully and efficiently, and shall not have any other employment
with any other enterprise or substantial responsibility for any
other enterprise. The foregoing shall not prevent the Executive
from participating in any charitable or civic organization that
does not interfere with his performance of the duties and
responsibilities to be performed by the Executive under this
Agreement. During the Employment Period the Executive may serve as
an outside director of Delta Dental, Inc. and Quantum Corporation.
The Company shall not prevent the Executive from acting as an
outside director of another organization not in direct competition
with the Company, provided Executive has received prior approval of
the Managing Board as to any such directorship. Executive agrees to
abide by the Company’s rules, regulations, policies and
practices, as they may from time to time be adopted or
modified by the Company in
its discretion. The Company’s rules, policies, practices and
procedures shall be binding on Executive unless superseded by or in
conflict with this Agreement, in which case this Agreement shall
govern.
(c) The Company’s
headquarters shall be located in Foster City, California, and the
Executive shall be based and reside in the general vicinity of
Foster City.
3. COMPENSATION. The
Executive’s compensation during the Employment Period shall
be determined by the Managing Board subject to the provisions of
Sections 3(a)-(f).
(a) BASE SALARY. Commencing
on the Effective Date, the Executive shall receive an annual base
salary (“Annual Base Salary”) at a rate of not less
than $625,000.00. The Annual Base Salary shall be payable in
accordance with the Company’s regular payroll practices for
its senior executives, as in effect from time to time. During the
Employment Period, the Annual Base Salary may be adjusted annually
by the Managing Board of the Company. The term “Annual Base
Salary” shall thereafter refer to the Annual Base Salary as
so adjusted as of the anniversary date.
(b) BONUSES.
(i) Annual Incentive :
Executive shall be eligible to receive an annual incentive bonus
based on performance as measured by the standards established
pursuant to the existing Company Incentive Plan, with a
“target” of 75% of his Annual Base Salary in effect
from time to time in accordance with the terms of the Incentive
Plan for that fiscal year. In accordance with the established
standards under the Incentive Plan, Executive’s bonus may
actually be determined to be more or less than target depending
upon factors including personal and Company performance. The
issuance (if any), timing and amount of any such bonus shall be
within the sole discretion of the Managing Board. Except as
otherwise provided herein, Executive’s eligibility to receive
any such incentive bonus shall be expressly conditioned on, among
other things, Executive remaining employed with the Company up
through any designated distribution date established by the
Managing Board.
(ii) Long Term
Incentive : Executive shall be eligible to receive the benefits
of the established Senior Executive Long Term Incentive Plan
(“SELTIP”) for each fiscal year for which
(“SELTIP”) are granted to senior executives.
Executive’s annual target award for fiscal years in which
(“SELTIP”) awards are granted to senior executives
shall be no less than $800,000. In the event of the occurrence of a
Change in Control or an effective registration of shares of common
stock of the Company in connection with an initial public offering
(“IPO”) in either case where immediately subsequent to
such Change in Control or IPO Executive is not retained as the
President and CEO of substantially the same operating entities as
was the case on the day immediately
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preceding the Change in
Control or IPO, or is then or within six (6) months thereafter
terminated by the Company without Cause or terminates for Good
Reason, Executive shall be fully vested and entitled to immediate
payment of all outstanding Senior Executive Long Term Incentive
Plan awards, and in any event the Senior Executive Long Term
Incentive Plan award granted for the fiscal year in which such
Change in Control or IPO occurs shall be deemed earned pro-rata at
no less than the “target” amount provided other senior
executives of the Company receive similar pro-rata grants. For
purposes of this subsection (ii), “Change of Control”
shall mean the acquisition (other than by the Company) by any
person, entity or “group” within the meaning of section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (excluding for these purposes the Company or any of its
parent, subsidiary, sister or affiliated entities – such as
Visa USA, Inc. and Visa International, Inc. – or any employee
benefit plan of the Company or its parent, subsidiary, sister or
affiliated entities) that acquires beneficial ownership of 50% or
more of either the then outstanding shares of common stock or the
combined voting power of the Company’s then outstanding
voting securities entitled to vote generally in the election of
directors, but excluding any transaction where any owner of the
Company becomes a publicly held company, in whole or in part, or
where any parent, subsidiary, sister or affiliated company of the
Company (such as Visa USA, Inc. or Visa International, Inc.)
acquires or sells any or all of its ownership interest in the
Company to another parent, subsidiary, sister or affiliated company
of the Company.
(c) FRINGE BENEFITS. During
the Employment Period, the Executive shall be entitled to receive
fringe benefits on a basis not less favorable than the basis on
which such benefits are provided to other senior executives of the
Company; provided Executive shall be entitled to not less than 30
days of vacation per calendar year and subject to the standard
limit on vacation accrual as it exists from time to
time.
(d) TRAVEL. Executive shall
be entitled to travel on Company business in reasonable first class
commercial air accommodations when available.
(e) OTHER BENEFITS. During
the Employment Period, (i) the Executive shall participate in
all applicable savings and retirement plans, practices, policies
and programs of the Company (including, without limitation, the
Visa Excess Retirement Benefit Plan, 401(k) Plan, pension plan,
thrift plan, and excess thrift plan) on a basis not less favorable
than the basis on which such benefits are provided to senior
executives of the Company, and (ii) the Executive and/or the
Executive’s eligible dependents, as the case may be, shall be
eligible for participation in, and shall receive all benefits
under, all applicable welfare benefit plans, practices, policies
and programs provided by the Company, including, without
limitation, medical (and retiree medical), prescription, dental,
disability, salary continuance, life insurance, group life
insurance, accidental death and travel accident insurance plans and
programs on the same basis and subject to the same terms,
conditions, cost-sharing requirements and the like as senior
executives of the Company.
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(f) PERQUISITES. Executive
shall be entitled to (i) a monthly automobile allowance of not
less than $1,900 or the maximum then provided under the Visa
Automobile Policy in effect (ii) an annual financial and
estate planning allowance of not less than $15,000.00 and otherwise
subject to annual reimbursement limits; (iv) reimbursement of
reasonable attorney’s fees (up to $20,000.00) for
consultation, negotiation and preparation of this
Agreement).
4. TERMINATION OF
EMPLOYMENT.
(a) DEATH OR DISABILITY. The
Executive’s employment shall terminate automatically upon the
Executive’s death. The Company shall be entitled to terminate
the Executive’s employment because of the Executive’s
Disability during the Employment Period. “Disability”
means that (i) the Executive has been unable, for the period
specified in the Company’s disability plan for senior
executives, but not less than a period of ninety
(90) consecutive business days, to perform the
Executive’s duties under this Agreement, as a result of
physical or mental illness or injury, and (ii) a physician
selected by the Company or its insurers, and acceptable to the
Executive or the Executive’s legal representative, has
determined that the Executive is disabled within the meaning of the
applicable disability plan for senior executives. A termination of
the Executive’s employment by the Company for Disability
shall be communicated to the Executive by written notice, and shall
be effective on the thirtieth (30th) day after such notice is
given (the “Disability Effective Date”), unless the
Executive returns to full-time performance of the Executive’s
duties before the Disability Effective Date.
(b) TERMINATION BY THE
COMPANY.
(i) The Company may terminate
the Executive’s employment for Cause or without Cause.
“Cause” means (A) the conviction of the Executive
for the commission of a felony; (B) willful or gross
misconduct by the Executive in connection with his employment by
the Company, in either case that results in material financial harm
to the Company; (C) the commission of fraud, misappropriation
or embezzlement in the performance of his duties; (D) conduct
which the Board in its reasonable discretion finds to violate
standards of decency, respect and appropriateness for a Chief
Executive Officer of a company of the Company’s stature in
the business community and causing material harm to the Company or
material damage to the Company’s reputation;
(E) habitual neglect of or recurring failure to perform the
duties required of Executive under the terms of this Agreement,
after notice is given specifying in detail such neglect or failure,
providing Executive thirty (30) days within which to cure, and
in which he has not so cured such neglect or failure; (F) a
material breach of the terms of this Agreement by Executive; or
(G) disclosure or misuse of confidential information in
violation of this Agreement or the Company’s written
policies. No act or failure to act on the part of the Executive
shall be considered “willful” unless it is done, or
omitted to be done, by the Executive in bad faith or without
reasonable belief that the Executive’s action or omission was
in the best interests of the
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Company. In the event of a
dispute concerning the application of this provision, no claim by
the Company that Cause exists shall be given effect unless the
Company establishes by a fair preponderance of evidence that Cause
exists, in accordance with the procedure provided below.
(ii) A termination of the
Executive’s employment for Cause shall not be effective
unless it is accomplished in accordance with the following
procedures. The Company shall give the Executive written notice
(“Notice of Termination for Cause”) of its intention to
terminate the Executive’s employment for Cause, setting forth
in reasonable detail the specific conduct of the Executive that it
considers to constitute Cause and the specific provisions of this
Agreement on which it relies, and stating the date, time and place
of the Special Board Meeting for Cause. The “Special Board
Meeting for Cause” means a meeting of the Board called and
held specifically and exclusively for the purpose of considering
the Executive’s termination for Cause, that takes place not
less than five (5) nor more than twenty (20) business
days after the Executive receives the Notice of Termination for
Cause. The Executive shall be given an opportunity, together with
counsel, to be heard at the Special Board Meeting for Cause. The
Executive’s termination for Cause shall be effective when and
if a resolution is duly adopted at the Special Board Meeting for
Cause by affirmative vote of a majority of the Board stating that,
in the good faith opinion of the Board, the Executive’s
actions fall within the definition of the conduct described in the
Notice of Termination for Cause and that such conduct constitutes
Cause under this Agreement.
(c) GOOD REASON.
(i) The Executive may
terminate employment for Good Reason or without Good Reason.
“Good Reason” means:
(A) the assignment to the
Executive of any duties or responsibilities inconsistent in any
respect with those customarily associated with the position
(including status, offices, titles and reporting requirements) to
be held by the Executive during the Employment Period, or any other
action by the Company that results in a diminution or other
material adverse change in the Executive’s position,
authority, duties or responsibilities, other than an isolated,
insubstantial or inadvertent action that is not taken in bad faith
and is remedied by the Company promptly after receipt of written
notice thereof from the Executive;
(B) any failure by the
Company to comply with any provision of Section 3 of this
Agreement, other than an isolated, insubstantial or inadvertent
failure that is not taken in bad faith and is remedied by the
Company promptly after receipt of written notice thereof from the
Executive; or
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(C) any failure by the
Company to comply with Section 12(c) of this
Agreement.
(ii) A termination of
employment by the Executive for Good Reason shall not become
effective unless written notice is given by Executive to the Board
specifying in detail the Good Reason and portion of this Agreement
upon which Executive is relying (“Notice of Intended
Termination for Good Reason”), and providing the Managing
Board thirty (30) days within which to cure, and in which the
Managing Board has not so cured, such asserted basis for Good
Reason. A termination of employment by the Executive for Good
Reason shall be effective on the thirty-fifth (35th) business
day following the date when the Notice of Termination for Good
Reason is given unless the Company earlier gives written notice to
Executive that it will not cure the condition giving rise to the
alleged Good Reason, in which case the Date of Termination will be
the day the Executive receives such notice.
(iii) A termination of the
Executive’s employment by the Executive without Good Reason
shall be effected by giving the Company written notice of the
termination.
(d) EXPIRATION OF
AGREEMENT.
(i) If the Company has made a
“Qualifying Offer” (as hereinafter defined) to
Executive but no agreement between Executive and Company relating
to the extension of Executive’s employment has been entered
into; or in the event Company has not made a Qualifying Offer to
Executive; the Executive’s employment with the Company shall
be deemed terminated as of the Expiration Date. A “Qualifying
Offer” shall mean:
(A) A written offer of
employment extended to Executive on or before December 2, 2009
(provided Executive is employed by the Company on that date) which
(v) shall be for a period of not less than two (2) years
effective from January 1, 2010; (w) shall include the
types of compensation contained in this Agreement; (x) shall
constitute a reasonable offer taking into account the compensation
to Executive provided for in this Agreement, Company’s
financial operating performance during the term of this Agreement
and any other then-current circumstances relevant to the
termination of Executive’s compensation by Company for the
period specified in clause (v) above; (y) shall not
contain any terms or provisions which reduce Executive’s
title or duties as stated herein; and (z) shall state that it
is irrevocable for thirty (30) days from the delivery
thereof.
(e) DATE OF TERMINATION. The
“Date of Termination” means the date of the
Executive’s death, the Disability Effective Date, or the date
on which the termination of the Executive’s employment by the
Company for Cause or without Cause, or by the Executive for Good
Reason or without Good Reason is effective, or on the Expiration
Date of this Agreement, as the case may be.
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5. RIGHTS OF THE EXECUTIVE
UPON TERMINATION.
(a) OTHER THAN FOR CAUSE; FOR
GOOD REASON; DEATH OR DISABILITY. If, during the Employment Period,
the Company terminates the Executive’s employment for
Disability or any other reason other than Cause; or the Executive
terminates employment for Good Reason; or the Executive’s
employment is terminated by reason of his death; or upon the
expiration of this Agreement as described in Section 4(d), the
Executive or his legal representative shall have the right to
receive the following benefits upon the terms and conditions set
forth below:
(i) unless otherwise
specified in this Section 5(a)(i), payment to the Executive
(or, in the event of termination of employment by reason of the
Executive’s death or Executive’s death following a
termination under this Section 5(a), to the beneficiary or
Executive’s estate, as provided in Section 12(a)),
of:
(A) Salary Continuation
Payments paid at the rate of Executive’s most recent annual
salary for eighteen (18) months following the Date of
Termination of his employment (“Salary Continuation
Period”) unless terminated earlier in accordance with the
terms of this Agreement, payable at times equivalent to the usual
payroll cycle of the Company, and, within thirty (30) days
following each of the first anniversary of the Date of Termination
and the last day of the eighteen (18) month salary continuation
period, full payment of all Inovant Incentive Plan bonuses
calculated at the “target” amount (as in effect for the
fiscal year in which the Date of Termination occurs) for the first
such year following the Date of Termination and one-half of the
“target” amount for the last six months of the salary
continuation period.
(B) Effective on the last day
of the period for which the Executive receives Salary Continuation
Payments:
(1) Executive shall be deemed
to be 100% vested in and receive full (not pro-rata) payment of all
outstanding grants previously awarded to him under the
Company’s Senior Executive Long Term Incentive Plan
(“SELTIP”) provided that, as to each such grant, on the
Date of Termination Executive has completed at least one year of
the multi-year P
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