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Exhibit 99.17
EMPLOYMENT AGREEMENT
This Employment
Agreement ("AGREEMENT") is entered into as of June 16, 2005
(the "EFFECTIVE DATE"), by and between
Vista.com, Inc., a Washington corporation
(the "COMPANY"), and Mark LeMay
("EMPLOYEE").
The parties
agree as follows:
1. EMPLOYMENT.
The Company hereby employs Employee through its wholly-owned
subsidiary, Jadeon, Inc. ("JADEON"), and
Employee hereby accepts such
employment, upon the terms and conditions
set forth in this Agreement.
2. DUTIES.
2.1 POSITION. Employee shall report directly to the Company's
President or Chief Executive Officer and
perform such duties as are customary
for the position of Division Executive.
Employee shall devote Employee's full
business time and efforts to the
performance of Employee's assigned duties for
the Company, provided, however, that
Employee, subject to the approval of the
President, Chief Executive Officer or the
Company's Board of Directors (the
"BOARD"), may devote reasonable periods of
time to (a) serving on the boards of
directors of other corporations, and (b)
engaging in charitable or community
service activities, so long as none of the
foregoing additional activities
materially interferes with Employee's
duties under this Agreement.
2.2 WORK LOCATION. Employee's principal place of work shall be
located
in Irvine, California, or such other
location as the parties may agree upon from
time to time.
3. TERM. The
employment relationship pursuant to this Agreement shall be
for an initial term (the "INITIAL TERM")
commencing on the Effective Date set
forth above and continuing until the
earlier of (i) two (2) years from the
Effective Date or (ii) the date on which
Employee exercises his right to
repurchase all of the outstanding shares of
Jadeon pursuant to Article X of that
certain Stock Purchase Agreement by and
between the Company and Employee dated
as of May 17, 2005, as amended, and may be
terminated by Employee or the Company
at any time, with or without Cause (as
defined in Section 7.1) or for Good
Reason (as defined in Section 7.2), subject
to the provisions regarding
termination set forth in Section 7;
provided, however, that the employment
relationship pursuant to this Agreement
shall be automatically renewed for
additional twelve-month terms, unless
either party gives the other notice of
intention to terminate not less than sixty
(60) days prior to the end of the
Initial Term or any renewal period
thereof.
4.
COMPENSATION.
4.1 BASE SALARY. As compensation for Employee's performance of
Employee's duties under this Agreement, the
Company shall pay Employee a base
salary ("BASE SALARY"), at a monthly rate,
initially, of $10,416.67 (which
equals $125,000.00 per year), payable in
accordance with the normal payroll
practices of the Company, less required
deductions for state and federal
withholding tax, social security and all
other employment taxes and payroll
deductions.
4.2 INCENTIVE COMPENSATION. If, during the period commencing from
the
Effective Date through June 16, 2015,
cumulative Gross Revenues exceed
$60,000,000 in the aggregate (such excess
Gross Revenues shall be referred to
herein as the "EXCESS GROSS REVENUES"), the
Company shall pay Employee a
commission equal to the lesser of the
following: (a) 10.0% of any such Excess
Gross Revenues recognized by Jadeon for
such period, or (b) 100% of Jadeon's net
income plus amortization
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for such period, calculated consistently
with generally accepted accounting
principles, as applied by the Company (the
"COMMISSION PAYMENT"), payable on
quarterly basis, less required deductions
for state and federal withholding tax,
social security and all other employment
taxes and payroll deductions. For
purposes of this Agreement, "GROSS
REVENUES" means the gross revenues recognized
by Jadeon from the sales of its products
and services from the business
conducted by Jadeon, excluding costs of all
hardware sales of Jadeon that are
sold as part of a system installation, in
all cases calculated consistently with
generally accepted accounting principles,
as applied by the Company. In no event
shall Employee be entitled to any
Commission Payment for any Excess Gross
Revenues received by Jadeon or the Company
after June 16, 2015. The parties
acknowledge and agree that Jadeon's results
of operations will be included in
the consolidated financial statements of
the Company, and, as a result, the
parties agree that, for purposes of
calculating Jadeon's net income plus
amortization, Jadeon will be assigned its
reasonable portion of the general and
administrative costs of the Company, as
determined by the Company's independent
auditors, provided that the amount of such
general and administrative costs
assigned to Jadeon shall not exceed $20,000
per month.
4.3 PERFORMANCE AND SALARY REVIEW. The Board will periodically
review
Employee's performance on no less than an
annual basis to determine whether
Employee's salary or other compensation
will be adjusted. Adjustments to salary
or other compensation, if any, will be made
by the Board in its sole and
absolute discretion.
4.4 VACATION. Employee shall accrue three (3) calendar weeks of
paid
vacation in each year of this Agreement in
addition to regular Company holidays.
Vacation may be carried over to the
following year and shall not be deemed
forfeited if unused, provided, however,
that Employee may not accrue more than
four (4) calendar weeks of vacation.
5. BENEFITS AND
INSURANCE. Employee shall be entitled to all health
insurance and other benefits that the
Company may make generally available from
time to time to its employees.
6. BUSINESS
EXPENSES. The Company shall pay, or promptly reimburse, the
Employee for all reasonable, out-of-pocket
business expenses incurred in the
performance of Employee's duties on behalf
of Company for which Employee submits
appropriate supporting documentation.
7. TERMINATION
OF EMPLOYEE'S EMPLOYMENT.
7.1 TERMINATION FOR CAUSE BY COMPANY. The Company may terminate
Employee's employment at any time for
Cause. For purposes of this Agreement,
"CAUSE" is defined as: (a) acts
constituting willful misconduct on the part of
Employee with respect to Employee's
obligations or otherwise relating to the
business of Company, including any wilful
breach of this Agreement or the
Employee Nondisclosure and Assignment
Agreement entered into by Employee at the
commencement of his employment with Jadeon
(the "EMPLOYEE NDA"), which breach is
not cured within ten (10) days following
written notice specifying the breach of
this Agreement or the Employee NDA given by
Employee to the Company; or (b)
Employee's conviction or entry of a plea of
nolo contendere for fraud or
embezzlement, any felony, or any crime
involving moral turpitude. In the event
Employee's employment is terminated in
accordance with this Section 7.1,
Employee shall be entitled to receive only
(i
