Exhibit 10.14


 


EMPLOYMENT AGREEMENT


 


This Employment Agreement
(“Agreement”), the Release attached as Schedule A hereto (“the Release”),
the Nonsolicitation Agreement attached hereto as Schedule B (the
“Nonsolicitation Agreement”) and the Noncompetition Agreement attached as
Schedule C hereto (the “Noncompetition Agreement”) are made and entered
into between Digital River, Inc., including its agents, facilities, affiliates,
associated entities, joint ventures, subsidiaries, predecessors, successors, officers,
directors, assigns, employees, stockholders, delegates, benefit plans and plan
administrators, attorneys and insurers (collectively “Digital River”), and  Gary Howorka (“Mr. Howorka”).  Notwithstanding any other provision of this
Agreement, this Agreement shall not be effective or have any effect until the
Release has become effective and enforceable. Mr. Howorka and Digital
River are sometimes referenced collectively as the “Parties” to this Agreement.


 


Digital River and
Mr. Howorka wish to provide for the modification of their employment and
other contractual relationships in connection with Mr. Howorka’s
resignation as an Officer of Digital River, Inc., as follows:


 


I.                                         MR. HOWORKA’S
EMPLOYMENT.


 


The parties agree that
Mr. Howorka will have the title of Senior Vice President – Advanced
Technologies, reporting to the Chief Executive Officer,  effective September 29, 2003 (the
“Transfer Date”), until February 13, 2004 (the “Strategic Planning
Period”).  The parties agree that
Mr. Howorka’s employment with Digital River will terminate on
February 13, 2004 , or sooner if Mr. Howorka accepts other employment
(excluding board memberships and part-time consulting arrangements) (such date,
the “Separation Date”) or materially breaches this Agreement, including the
Schedules thereto.  The parties agree
that Mr. Howorka shall remain an employee of Digital River during the
Strategic Planning Period, except as specifically provided herein.  The parties agree that Mr. Howorka
shall not be an executive officer of Digital River after the Transfer
Date.  The parties agree that
Mr. Howorka shall be paid at an annual salary of $125,000, less applicable
withholdings, in accordance with Digital River’s normal payroll practices during
the Strategic Planning Period.


 


During the Strategic
Planning Period Mr. Howorka shall assist Digital River in such projects
and work as Digital River may assign to Mr. Howorka.  Such projects and work may include but are
not limited to technology architecture, design, intellectual property identification
and protection.  Digital River may
assign work to Mr. Howorka at its sole discretion during the Strategic
Planning Period.  Mr. Howorka may
work at such location as he deems appropriate, subject to the reasonable
requirements of Digital River.  Digital
River is an at will employer, and neither Mr. Howorka or Digital River is bound
to continue the employment relationship if either chooses, at its will, to end
the relationship at any time period.  
Notwithstanding the foregoing, in the event that Digital River
terminates Mr. Howorka’s employment without cause during the Strategic Planning
Period, or terminates Mr. Howorka’s employment for cause during the Strategic
Planning Period where the events deemed to provide “cause” occurred prior to
the date of this Agreement, then (i) Mr. Howorka will be relieved of any
obligations to Digital River under the Noncompetition Agreement and (ii) the
Release will no longer be of any force or effect.  Mr. Howorka agrees during the Strategic Planning Period that
he will faithfully, industriously, and to the best of his ability, experience,
and talents, perform all of the duties that may be required by Digital River.


 

















 


The parties agree
that Digital River shall pay Mr. Howorka for all accrued and used vacation
as soon as is practicable after the Transfer Date.  The parties agree that Mr. Howorka shall no longer accrue
vacation after the Transfer Date.


 


II.                                     CONSIDERATION.


 


In exchange for
the covenants and promises contained in this Agreement and its attachments, and
subject to this Agreement, Digital River agrees to provide Mr. Howorka
with the following compensation and benefits (the “Consideration”):


 


A.                                    Payment.  Digital River will continue to make payments
to Mr. Howorka through February 13, 2004 as discussed in Paragraph I
above.


 


B.                                    Withholding.  Digital River will withhold from the
compensation and benefits payable to Mr. Howorka under this Agreement and
the attached Release all appropriate deductions for life insurance, short term
disability, health insurance and dental insurance, as applicable.


 


C.                                    Acknowledgment.  The parties acknowledge that the
consideration provided in this Agreement is valuable consideration for this
Agreement (including its attachments) and its covenants, and includes payments
and benefits to which Employee is not otherwise entitled.


 


III.                                 COVENANTS
OF MR. HOWORKA.


 


Confidentiality.  The Parties understand that this agreement
may be filed with the Securities and Exchange Commission at such time as
required by the rules of the Securities and Exchange Commission.  Until such time this contract is so filed,
the parties agree that this agreement shall remain confidential.  Until such filing, Mr. Howorka warrants
that he has not disclosed, and agrees he will not in the future disclose, the
terms of this Agreement, or the existence or terms of consideration to be paid
by Digital River to Mr. Howorka, as part of this Agreement and/or the
settlement of his claims, to any person, other than to Mr. Howorka’s
attorneys and tax advisors (“Confidential Persons”). Mr. Howorka agrees
these Confidential Persons shall be bound by the same prohibitions against
disclosure as he is, and Mr. Howorka shall be responsible for advising
these individuals of this confidentiality provision and obtaining their
commitment to maintain such confidentiality.


 


A.                                    Return
of Property.  No later than the
Separation Date, except as mutually agreed otherwise, Mr. Howorka will
return to Digital River all company property, including but not limited to all
identification cards, files, computer hardware, software, equipment and disks,
keys, credit cards and records.  The
property to be returned includes all information or data regarding clients,
prospective clients and vendors of Digital River, whether in original or
duplicate form.


 


B.                                    Cooperation.  Mr. Howorka agrees to cooperate fully
with Digital River, including its attorneys or accountants, in connection with
any potential or actual litigation, or other real or potential disputes, which
directly or indirectly involve Digital River. 
Mr. Howorka agrees to appear as a witness and be available to
attend depositions, consultations or meetings regarding litigation or potential
litigation as requested by Digital River.


 


C.                                    Confidential
Information.  Mr. Howorka
acknowledges that he has had access to confidential business information
(including, but not limited to, future business plans and personnel
information) concerning the business, strategic plans, finances and assets of
Digital River (“Confidential Information”). 
This Confidential Information is not generally known outside of Digital
River.  Mr. Howorka agrees that he
will not, without the prior written authorization of Digital River, directly or


 


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indirectly use, divulge,
furnish or make accessible to any person any Confidential Information, but
instead shall keep all Confidential Information strictly and absolutely
confidential.  Mr. Howorka will
take reasonable care to safeguard and prevent the unauthorized use or
disclosure of Confidential Information.


 


Mr. Howorka expressly acknowledges that he understands that the
terms of this subsection are important to this Agreement and that, if he
breaches the terms of this subsection, he shall be responsible for all damages
to Digital River.  Mr. Howorka also
acknowledges and agrees that the Confidential Information acquired during his
employment with Digital River is valuable and unique, and that breach by
Mr. Howorka of the provisions of this subsection would cause Digital
River irreparable injury and damage that cannot be reasonably or adequately
compensated by money damages. 
Mr. Howorka therefore expressly agrees that Digital River shall be
entitled to injunctive or other equitable relief in order to prevent a breach
of this subsection of the Agreement in addition to such other remedies
legally available to Digital River. 
Mr. Howorka expressly waives the claim that Digital River has an
adequate remedy at law for such a breach.


 


IV.                      ADDITIONAL
PROVISIONS.  Mr. Howorka
agrees to execute the Nonsolicitation Agreement attached as Schedule B and
the Non-Competition Agreement attached as Schedule C; and confirms that
the Release previously executed by him on September 26, 2003 remains in
effect, subject to the rescission rights described in Section VI thereof.


 


V.                                    MISCELLANEOUS
PROVISIONS.


 


A.                                    Non-Assignment
of Claims.  Mr. Howorka
represents that he has not sold, assigned, or transferred to any third party
any obligation, covenant, or claim of any nature whatsoever relating to any
matter covered by this Agreement.


 


B.                                    Successors.  This Agreement shall be binding upon,
enforceable by, and inure to the benefit of Mr. Howorka’s personal or
legal representatives and heirs, and of Digital River and any successor
company, but neither this Agreement nor any rights or payments arising
hereunder may be otherwise assigned or pledged by the parties.


 


C.                                    Controlling
Law and Venue.  The validity of
this Agreement and any of its provisions and conditions, as well as the rights
and duties of the parties, shall be interpreted and construed pursuant to and
in accordance with the internal laws, and not the law of conflicts, of the
State of Minnesota.  The Parties select
and irrevocably submit to the exclusive jurisdiction of any Minnesota or United
States Federal Court sitting in the State of Minnesota for any action to
enforce, construe or interpret this Agreement. 
The Parties further waive any objection to venue in such state on the
basis of forum non conveniens or of convenience of the party.


 


D.                                    Amendment.  Any amendment to this Agreement shall be
made in writing and signed by the Parties.


 


E.                                      Waiver.  No right arising out of this Agreement can
be waived unless the waiver is in writing signed by the party to be bound by
such waiver.  A waiver by any party of a
breach or default of any provision of this Agreement shall not be deemed a
waiver of future compliance.


 


F.                                      Entire
Agreement.  Digital River and
Mr. Howorka each represent that no promise or inducement has been offered
or made except as set forth or referenced above, or in Schedule A,
Schedule B or Schedule C, and that the consideration stated herein is
the sole consideration for this Agreement. 
This Agreement and its attachments supersede any prior agreement between
the parties with


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respect to the subject matter
hereof; provided that the Release shall continue to be of full force and
effect, subject to Mr. Howorka’s rescission rights described in Section VI
of the Release.


 


G.                                    Severability.   If one or more provisions of this Agreement
are held to be unenforceable under applicable law, (i) such provision
shall be excluded from this Agreement, (ii) the balance of the Agreement
shall be interpreted as if such provision were so excluded and (iii) the
balance of the Agreement shall be enforceable in accordance with its terms.


 


IN
WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date set forth below:


 


 


	
  Gary Howorka

  	
   

  	
  DIGITAL RIVER, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Gary Howorka

  	
   

  	
  By:

  	
   /s/ Carter D. Hicks

  	
   

  
	
   

  	
   

  	
  Its:

  	
  CFO

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  10/9/03 and 9/26/03

  	
   

  	
  Date:

  	
  10/9/03 and 9/26/03

  	
   

  
							



 


 


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Schedules A,
B and C – Intentionally Omitted