EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS AGREEMENT by and among IAT Resources Corporation (the "Company"), a
Delaware corporation, Infolocity, Inc., a California corporation ("Infolocity")
and Xxxxxx X. Xxxxxxx (the "Executive"), dated as of the 21st day of December,
1999.
WITNESSETH
WHEREAS, the Company and Infolocity have consummated a merger transaction
whereby Infolocity has become a wholly owned subsidiary of the Company; and
WHEREAS, the Company wishes to employ the Executive and Infolocity wishes
to continue to employ the Executive for the period provided for in this
Agreement, and the Executive is willing to serve in the employ of the Company
and Infolocity on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants herein contained, the parties agree as follows:
1. EMPLOYMENT. The Company and Infolocity hereby agree to employ the
Executive, and the Execute hereby agrees to be employed with the Company and
Infolocity, on the terms and subject to the conditions set forth herein.
2. TERM OF EMPLOYMENT. The term of the Executive's employment under this
Agreement (the "Employment Period") shall commence as of the date of this
Agreement, and shall end on December 21, 2002 (the date which is three years
from the date of this Agreement), unless extended or terminated earlier in
accordance with Section 5.
3. TITLES AND RESPONSIBILITIES.
(a) TITLES. During the Employment Period, the Executive shall serve as
the Executive Vice President and Chief Operating Officer of the Company and
President of Infolocity. Executive's service as the Company's Executive Vice
President and Chief Operating Officer shall be without any additional
compensation to the Executive apart from what the Executive will receive from
Infolocity for continuing to serve as its President. The Executive shall report
and be responsible to the Chief Executive Officer of the Company and the Board
of Directors of Infolocity.
(b) RESPONSIBILITIES. Company hereby engages Executive to provide his
exclusive services as Executive Vice President of the Company and Chief
Executive Officer of Infolocity. Pursuant to the terms and conditions hereof,
Executive hereby accepts such engagement. Executive shall render all services
usually and customarily rendered by and required of executives similarly
employed in the internet industry. Executive shall report only to the Chief
Executive Officer of the Company the Board of Directors of Infolocity.
(c) PLACE OF PERFORMANCE. During the Employment Period, the
Executive's office shall be located at Infolocity's current offices, which shall
be in the Silicon Valley area of
Northern California, except for required business travel consistent with the
Executive's position. The Company shall provide the Executive with an office and
other support reasonably appropriate to his duties.
(d) BUSINESS TIME. During the Employment Period, the Executive agrees
to devote his full business time during normal business hours to the business
and affairs of the Company and to use his best efforts to perform faithfully,
diligently and competently the responsibilities assigned to him hereunder, to
the extent necessary to discharge such responsibilities, except for (i) time
spent serving on corporate, civic or charitable boards or committees only if and
to the extent not substantially interfering with the performance of such
responsibilities, (ii) periods of vacation, disability and sick leave to which
he is entitled, and (iii) reasonable activities having a charitable, educational
or other public interest purpose.
4. COMPENSATION.
(a) BASE SALARY. During the Employment Period, the Executive shall
receive a minimum annual base salary (`Base Salary") equal to $150,000, payable
in accordance with the customary payroll as in effect from time to dine for
senior executives of the Company. The Board shall review the Executive's Base
Salary for possible increases of such Base Salary in relationship to the goals
and performance of the Company and prevailing competitive conditions.
(b) BONUS. During the Employment Period, the Executive shall
participate in the Company's bonus plans to the extent that one exists or unless
otherwise granted by the Board of Directors of the Company.
(c) VACATION. During the Employment Period, the Executive shall be
entitled to four (4) weeks paid vacation per year.
(d) EXPENSES. During the Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all reasonable business-related
expenses incurred by the Executive in accordance with the policies and
procedures of the Company as applicable to its senior executives.
(e) OTHER EXECUTIVE BENEFITS. Without limiting the foregoing
provisions of this Section 4, during the Employment Period the Executive shall
be entitled to participate in or be covered under ail compensation, bonus,
pension, retirement and welfare, and fringe benefit plans, programs and policies
of the Company applicable to senior executives of the Company.
(f) STOCK OPTIONS. To the extent Executive receives stock options in
the Company, the stock options will accelerate vesting in order to become fully
vested upon Executive's termination of his employment for a Change of Control,
upon termination of his employment for Good Reason, or upon termination of his
employment by the Company Without Cause (as defined below).
5. TERMINATION.
(a) DEATH OR DISABILITY. The Executive's employment pursuant to this
Agreement shall terminate automatically upon the Executive's death. The Company
may terminate the Executive's employment for Disability by giving to the
Executive notice of its intention
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accordance with Section 5(e) unless Executive returns to the performance of the
essential functions of his employment within 30 days after receipt of such
notice. For purposes of this Agreement, "Disability" means any physical or
mental condition that renders the Executive unable to perform the essential
functions of his employment for 90 consecutive days or for a total of 180 days
in any period of 360 consecutive days.
(b) VOLUNTARY TERMINATION AFTER CHANGE IN CONTROL. Notwithstanding
anything in this Agreement to the contrary, the Executive may voluntarily
terminate his employment at any time, after a Change in Control, (i) for any
reason upon six months' written notice to the Company, or (ii) if termination is
for Good Reason or on account of the Executive's serious illness, upon written
notice pursuant to Section 5(e) but without any notice period. In the event of
any termination pursuant to this Section 5(b), the Executive shall have no
further obligation to the Company under this Agreement, except as provided in
Section 9.
(c) CAUSE. The Company may terminate the Executive's employment for
Cause. For purposes of this Agreement, `Cause' means:
Executive's engaging in gross misconduct materially and demonstrably injurious
to the Company; failure to perform the services required hereunder; violation of
any written resolution adopted by the Company's Board of Directors or Executive
Committee; or conviction by final judgment of a felony constituting fraud,
theft, embezzlement or homicide.
(d) GOOD REASON. The Executive may terminate his employment for Good
Reason. For purposes of this Agreement, "Good Reason" means (i) a material
reduction in the nature or scope of the Executive's position, title, status,
authority, duties, powers or functions on the date of this Agreement; (ii) the
assignment to the Executive of any material duties which are not commensurate
with or at least as prestigious as the Executive's duties and responsibilities
as contemplated by this Agreement; (iii) a material breach by the Company of any
of the provisions of this Agreement; (iv) the relocation of the Company's
principal executive offices to a location outside the Silicon Valley area of
Northern California; or (v) the failure by the Company to obtain an agreement,
reasonably satisfactory m the Executive, from any successor to assume and agree
to perform this Agreement, as contemplated by Section 12(b). After a Change in
Control, in addition to items (i) through (v), "Good Reason" shall include (vi)
a determination by the Executive, in his sole discretion, during the 30-day
period commencing 180 days following a Change in Control, that due to the Change
in Control he can no longer effectively perform his duties.
(e) NOTICE OF TERMINATION Any termination by the Company for Cause or
Disability or by the Executive for Good Reason shall be communicated by a
written notice (a "Notice of Termination") to the other party hereto given in
accordance with Section 13(d). A "Notice of Termination" shall set forth in
reasonable detail the events giving rise m such termination.
(f) DATE OF TERMINATION. For proposes of this Agreement, the term
"Date Of Termination" means (i) in the case of termination for Disability, 30
days after Notice of Termination is given (provided that the Executive shall not
have returned to the full-time performance of his duties during such 30-day
period); (ii) in the case of termination for Cause, a date specified in the
Notice of Termination (which shall not be less than 30 days nor more than 60
days from the date such Notice of Termination is given); (iii) in the case of
any other termination for which a Notice of
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Termination is required, the date of receipt of such Notice of Termination or,
if later, the date specified therein, as the case may be; and (iv) in all other
cases, the actual date on which the Executive's employment terminates during the
Employment Period.
(g) GUARANTEE. The Company irrevocably guarantees the payment of one
year of Executive's Base Salary in the event of a termination of Executive's
employment with the Company pursuant to Section 5(b), 5(d) or S(e) (the
"Guaranteed Obligations"). The Company's guarantee shall cover any amendment or
modification to this Agreement, unless such amendment specifically deletes this
section. The Company hereby waives: (i) any right to require Executive to pursue
a remedy before proceeding against the Company (provided that Executive shall
first provide the Company with 30 days written notice and a reasonable
opportunity to cure); (ii) subject to the preceding clause (i), demand,
diligence, presentment and notices of protest, dishonor and nonpayment; and
(iii) rights of subrogation or reimbursement.
6. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) DEATH, DISABILITY, CAUSE AND VOLUNTARY TERMINATION. If at any time
before or after a Change in Control the Executive's employment is terminated by
the Company during the Employment Period by reason of the Executive's death,
Disability or for Cause, or is voluntarily terminated by the Executive (other
than for Good Reason), the Company shall have no further obligation to the
Executive or the Executive's legal representatives other than (i) those
obligations earned for Base Salary and payments under any Company bonus plan
that have accrued at the Date of Termination (the "Accrued Obligations"), (ii)
those obligations expressly provided under any of the plans referred to in
Section 4(e) (the "Benefit Rights") and (iii) upon a termination of the
Executive's employment by reason of his death, the payment provided in Section
6(a)(iii), if applicable, shall be paid to the Executive or the Executive's
estate, as the case may be, in a lump sum in cash within 15 days of the Date of
Termination.
(b) PRIOR TO CHANGE IN CONTROL TERMINATION BY THE COMPANY OTHER THAN FOR
CAUSE OR DISABILITY AND TERMINATION BY THE EXECUTIVE FOR GOOD REASON.
(i) LUMP SUM PAYMENTS. If during the Employment Period and prior to a
Change in Control, the Company terminates the Executive's employment other than
for Cause or Disability, or the Executive terminates his employment for Good
Reason, the Company shall provide the Benefit Rights and shall pay to Executive
in a lump sum in cash within 15 days of the Date of Termination the of the
following amounts: (A) file Accrued Obligation; plus (B) an amount equal to the
product of (1) one-twelfth times (2) the sum of the Executive's Base Salary plus
the Executive's average bonus for the three years ended before the Date of
Termination, times (3) the number full or partial of months remaining in the
unexpired term of the Employment Period, but in no event less than twelve months
(such period being the "Severance Period").
(ii) WELFARE BENEFITS. Tile Company shall provide or cause to be provided
to the Executive and his family for the Severance Period continued life, medical
and dental and disability insurance benefits at least. equal to those which the
Executive was receiving or entitled to receive immediately prior to the
termination of employment described in Section 6(b)(i).
(iii) OFFICE. For the Severance Period, the Company shall provide the
Executive with an office reasonably acceptable to him.
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(iv) DISCHARGE OF THE COMPANY'S OBLIGATIONS. The Company shell have no
further obligations to the Executive in respect of any termination described in
this Section 60(b)(i).
(c) FOLLOWING CHANGE IN CONTROL, TERMINATION BY THE COMPANY OTHER THAN FOR
CAUSE OR DISABILITY AND TERMINATION BY THE EXECUTIVE FOR GOOD REASON.
(i) LUMP SUM PAYMENTS. If during the Employment Period and following a
Change in Control, the Company terminates the Executive's employment other than
for Cause or Disability, or the Executive terminates his employment for Good
Reason, the Company shall provide the Benefits Rights and shall pay to the
Executive in a lump sum in cash within 15 days of the Date of Termination the
sum of the following amounts: (a) the Accrued Obligations; and (B) an amount
equal to 2.99 times the sum of the amounts described in clause (2) of Section
6(b)(i)(B).
(ii) WELFARE BENEFITS. The Company shall provide or cause to be provided to
the Executive and his family for a period of 36 months following such
termination continued life, medical and dental and disability insurance benefits
at least equal to those which the Executive was receiving or entitled to
receive. immediately prior m the termination of employment described in Section
6(c)(i).
(iii) OFFICE. For a period of 36 months following such termination, the
Company shall provide the Executive with an office reasonably acceptable to him
and other support services reasonably appropriate to an executive of a public
corporation.
(iv) DISCHARGE OF THE COMPANY'S OBLIGATIONS. The Company shall have no
further obligations to the Executive in respect of any termination described in
this Section 6(c).
(d) CHANGE IN CONTROL. A Change in Control shall be deemed to have
occurred:
(1) the shareholders of the Company shall approve (i) any merger,
consolidation or recapitalization of the Company (or, if the capital
stock of the Company is affected, any subsidiary of the Company) or
any sale, lease, or other transfer (in one transaction or a series of
transactions contemplated or arranged by any party as a single plan)
of all or substantially all of the assets of the Company (each of the
foregoing being an "Acquisition Transaction") where (x) the
shareholders of the Company immediately prior to such Acquisition
Transaction would not immediately after such Acquisition Transaction
beneficially own, directly or indirectly, shares representing in the
aggregate more than 65 % of (A) the then outstanding common stock of
the corporation surviving or resulting from such merger, consolidation
or recapitalization or acquiring such assets of the Company, as the
case may be (the "SURVIVING CORPORATION") (or of its ultimate parent
corporation, if any) or (B) the Combined Voting Power (as defined
below) of the then outstanding Securities (as defined below) of the
Surviving Corporation (or of its ultimate parent corporation, if may)
or (y) the Incumbent Directors at the time of the initial approval of
such Acquisition Transaction would not immediately after such
Acquisition Transaction constitute a majority of the Board of
Directors of the Surviving Corporation (or of its ultimate parent
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corporation, if any) or (ii) any plan or proposal for the liquidation
or dissolution of the Company; or
(2) any Person (as defined below) shall become the beneficial owner (as
defined in Rule 13d-3 and 13-d-5 under the Exchange Act), directly or
indirectly securities of the Company representing in the aggregate 50%
or more of either (i) the then outstanding shares of Stock, or (ii)
the Combined Voting Power of all then outstanding Voting Securities of
the Company; providing; however that notwithstanding the foregoing, a
Change in Control of the Company shall not be deemed to have occurred
for purposes of this subsection (2) solely as the result of:
(i) an acquisition of securities by the Company which, by reducing
the number of shares of Stock or other Voting Securities
outstanding, increases (i) the proportionate number of shares of
Stock beneficially owned by any Person to 50% more of the shares
of Stock then outstanding or (ii) proportionate voting power
represented by the Voting Securities beneficially owned by any
Person to 50% or more of the Combined Voting Power of all then
outstanding Voting Securities; or
(ii) an acquisition of securities directly from the Company except
that this subsection (ii) shall not apply to:
(A) any conversion of a security that was not acquired directly
from the Company; or
(B) any acquisition of securities if the Incumbent Directors at
the time of the initial approval of such acquisition would
not immediately after (or otherwise as a result of) such
acquisition constitute a majority of the Board;
PROVIDED, HOWEVER, that if any Person referred to in subsections
(i) or (ii) of this clause (2) shall thereafter become the
beneficial owner of any additional shares of Stock or other
Voting Securities of the Company (other than pursuant to a stock
split, stock dividend or similar transaction or an acquisition
exempt under such subsection (ii), then a Change in Control shall
be deemed to have occurred for purposes of this clause (2).
For purposes of this Agreement:
(A) "PERSON" shall mean any individual, entity (including,
without limitation, any corporation, partnership, trust,
joint venture, association or governmental body and
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any
successor to any such entity) or group (as defined in
Sections 13(d)(3) or 14(d)(2) of the Exchange Act and the
rules and regulations thereunder); provided, however, that
Person shall not include Executive, the Company, any of its
majority-owned subsidiaries, any executive benefit plan of
the Company or any of its majority-owned subsidiaries or any
entity organized, appointed or established by Executive, the
Company or any of its majority-owned subsidiaries for or
pursuant to the terms of any such plan, or any of their
affiliates;
(B) "VOTING SECURITIES" shall mean all securities of a
corporation having the right under ordinary circumstances to
vote in an election of the board of directors of such
corporation; and
(C) "COMBINED VOTING POWER" shall mean the aggregate votes
entitled to be cast generally in the election of directors
of a corporation by holders of then outstanding Voting
Securities of such corporation.
7. NO MITIGATION: NO OFFSET. In no event shall the Executive be obligated
to seek other employment by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement. Any amounts that may be
earned by the Executive other than from the Company after the Date of
Termination shall not reduce the Company's obligation to make any payments
hereunder. The amounts payable by the Company hereunder shall not be subject to
any right of set-off that the Company may assert against the Executive.
8. NONCOMPETITION.
(a) SCOPE. In the case of the Executive's termination of employment,
including due to the expiration of the Employment Period, the Executive shall
not, for one year following the Date of Termination, (a) divert to any
competitor of the Company in the business conducted by the Company (the
"Designated Industry") any active project of the Company, or (b) solicit or
encourage any officer, employee or consultant of the Company to leave their
employ for employment by or with any competitor of the Company in the Designated
Industry. If at any time the provisions of this Section 8 shall be determined to
be invalid or unenforceable, by reason of being vague or unreasonable as to
area, duration or scope of activity, this Section 8 shall be considered
divisible and shall become and be immediately amended to apply only to such
area, duration and scope of activity as shall be determined to be reasonable and
enforceable by the court or other body having jurisdiction over the matter; and
the Executive agrees that this Section 8 as so amended shall be valid and
binding as though any invalid or unenforceable provision had not been included
herein. Nothing in this Section 8 shall prevent or restrict the Executive from
engaging in any business or industry other than the Designated Industry in any
capacity.
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(b) IRREPARABLE HARM. The Executive agrees that the remedy at law for
any breach of this Section 8 shall be inadequate and that the Company shall be
entitled to injunctive relief.
9. INDEMNIFICATION. The Company shall indemnify and hold harmless the
Executive, his heirs and personal representatives to the fullest extent
permitted by applicable law, as now or hereafter in effect, with respect to any
acts, omissions or events that occurred while the Executive is or was an
employee of the Company or serves or served the Company or any other corporation
or other enterprise of any kind in any capacity at the request of the Company
(an "Enterprise"). Without limiting the generality of the foregoing, the Company
shall promptly pay, or reimburse the Executive for, or advance to the Executive
amounts for the payment of (a) all of the Executive's reasonable expenses,
including attorneys' fees and court costs, actually and reasonably incurred in
connection with the defense of any action, suit or proceeding, including any
suit seeking recovery under any Company director's and officer's liability
policy, or in connection with any appeal thereof, to which the Executive may be
a party by reason of any action taken or failure to act under or in connection
with his service for the Company or an Enterprise; and (b) all amounts required
to be paid in settlement of or in satisfaction of a judgment in connection with
any such action, suit or proceeding; provided, however, that the Company shall
not be required to indemnify or hold harmless the Executive, his heirs or
personal representatives in any manner whatsoever in the event and to the extent
there is a final and nonappealable judgment by a court of competent jurisdiction
that the liability incurred by the Executive resulted from his gross negligence,
fraud or willful malfeasance.
10. ARBITRATION. If a dispute arises between the parties respecting the
terms of this Agreement or Executive's employment with the Company, including,
without limitation, any dispute with respect to the validity of this Agreement
or this arbitration clause, such dispute shall be finally resolved by binding
arbitration as follows. Any party may require that the dispute be submitted to
binding arbitration, and in such event the dispute shall be settled by
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. If a matter is submitted to arbitration, each of the
parties shall choose one arbitrator. The arbitrators selected by the two parties
shall choose a third arbitrator who shall act as chairman and shall be an
attorney and a member of the panel of the American Arbitration Association. Each
party shall agree to a speedy hearing upon the matter in dispute and the
judgment upon the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof. The place of arbitration shall be Los Angeles,
California. Notwithstanding anything to the contrary contained herein, no
discovery shall be permitted in the arbitration proceeding.
11. SUCCESSORS.
(a) This Agreement is personal to the Executive and, without the prior
written consent of the Company, shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors. The Company shall require any successor to all
or substantially all of file business and/or assets of the Company, whether
direct or indirect, by an agreement in form and
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substance reasonably satisfactory to the Executive, expressly to assume and
agree to perform this Agreement.
12. MISCELLANEOUS
(a) WITHHOLDING. Any payments provided for hereunder shall be paid net
of any applicable withholding required under federal, state or local law and any
additional withholding to which the Executive has agreed.
(b) APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of California, applied without reference to
principles of conflict of laws.
(c) AMENDMENTS. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(d) NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given when delivered or mailed
to the other party, by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Executive:
Xxxxxx X. Xxxxxxx
000 Xxxx Xxxxx
Xxx Xxxxx, XX 00000
If to the Company:
IAT Resources Corporation
0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx X
Xxx Xxxxxxx, XX 00000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith, except that notice of change of address shall be
effective only when actually received by the addressee.
(e) SEVERABILITY. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(f) WAIVER. Waiver by any party hereto of any breach or default by any
other party of any of the terms of this Agreement shall not operate as a waiver
of any other breach or default, whether similar to or different from the breach
or default waived.
(g) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the matters referred to herein, and
no other agreement, verbal or otherwise, shall be binding as between the parties
unless k is in writing and signed by the party against whom enforcement is
sought. This Agreement wholly supersedes the Employment, Confidential
Information and Invention Assignment Agreement entered into between Infolocity
and Executive on or about March 12, 1999, which such agreement has been
terminated as of the date
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hereof. All prior and contemporaneous agreements and understandings between the
parties with respect to the subject matter of this Agreement are superseded by
this Agreement.
(h) SURVIVAL. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
(i) CAPTIONS AND REFERENCES. The captions of this Agreement are not
part of the provisions hereof and shall have no force or effect. References in
this Agreement to section number are references to sections of the Agreement
unless otherwise specified.
(j) CONSENT TO JURISDICTION. Each of the parties to this Agreement
hereby submits to the exclusive jurisdiction of the courts of the State of
California and the Federal courts of the United States of America located in
such state solely in respect of the interpretation and enforcement of the
provisions of this Agreement, and hereby waives, and agrees not to assert, as a
defense in any action, suit or proceeding-for the interpretation and enforcement
of this Agreement, that it is not subject thereto; that such action, suit or
proceeding, may not be brought or is not enforceable in said courts; that this
Agreement may not be enforced in or by said courts; that its property is exempt
or immune from execution; that the suit, action or proceeding is brought in an
inconvenient forum; or that the venue of the suit, action or proceeding is
improper. Each of the parties agrees that service of process in any such action,
suit or proceeding shall be deemed in every respect effective service of process
upon ii if given in the manner set forth in Section 13(d).
(k) LEGAL FEES. The Executive shall be entitled to reimbursement by
the Company for all reasonable legal fees and expenses incurred by him in
connection with the initial review of this Agreement. Such payments, which shall
be made on an ongoing basis after the Executive submits an invoice or other
reasonably appropriate documentation relating thereto to the Company.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and the
Company has caused this Agreement to be executed in its name on its behalf all
as of the day and year first above written.
IAT RESOURCES CORPORATION
By: /S/ XXXXXX XXXXXXXXX
-------------------------------
Its: Executive Vice President
XXXXXX X. XXXXXXX
By: /S/ XXXXXX X. XXXXXXX
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