EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of June
____, 1998, effective upon the resignation or separation of its current Chief
Executive Officer, and in no event later than August 10, 1998 by and between
Xxxxxxx X. Xxxxxxxx ("Employee") and GeoSystems Global Corporation, a Delaware
corporation (the "Company").
RECITALS
A. The Company desires to have Employee's active services as Chief
Executive Officer of the Company in accordance with this Agreement.
B. The Company and Employee desire to enter into an Employment Agreement on
the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and in consideration of Employee's employment by the Company, the parties hereto
agree as follows:
1. Employment. The Company agrees to employ Employee as Chief Executive
Officer and Employee agrees to serve the Company as such, upon the terms and
conditions hereinafter set forth.
2. Duties. As Chief Executive Officer, Employee shall have responsibility
and authority for directing and managing the operations of the Company as may be
assigned to him by the Board of Directors within such guidelines, policies, and
directions as the Board of Directors may prescribe or direct, and shall perform
such duties and assume such responsibilities as the Board of Directors may
otherwise establish from time to time. Employee agrees that he will serve the
Company faithfully, diligently, and to the best of his abilities. Employee will
devote his full working time and creative energies to the performance of his
duties hereunder. Employee warrants that his employment by the Company will not:
(a) violate any non-disclosure agreements, covenants against competition or
other restrictive covenants made by Employee to or for the benefit of any
previous employer or partner, or (b) violate or constitute a breach or default
under any statute, law, judgment, order, decree, writ, injunction, deed,
instrument, contract, or permit to which Employee is a party or by which he is
bound. The Company acknowledges that Employee in his capacity as Chief Executive
Officer of the Company shall be entitled to all indemnification available to
officers of the Company under its Certificate of Incorporation, By-Laws, and the
Delaware Corporation Law, as in effect from time to time.
3. Base Compensation. As compensation for all services rendered by Employee
to the Company, the Company shall pay to Employee the sum of $20,000.00 per
month, less any withholdings required by law ("Base Salary"). The Base Salary
shall be paid to Employee in equal, bi-monthly installments in accordance with
the regular payroll practices of the Company, and may be subject to annual
increases by the Board of Directors in its sole discretion.
4. Bonus. In addition to his Base Salary, Employee is eligible to earn
incentive compensation of up to $145,000.00 per year, based on objectives and
according to a plan to be mutually agreed to by Employee and the Board of
Directors from time to time. For calendar year 1998, Employee will be paid
incentive compensation of no less than $100,000.00. The bonus payment for 1998
will be payable at the time that the Company pays 1998 incentive compensation to
its employees who are eligible for incentive compensation. Bonus payments
subsequent to calendar year 1998 shall be paid at the time and in the manner
such payments are made to other eligible employees.
5. Employee Stock. Employee will be granted options to purchase 720,000
shares of common stock under the Company's 1995 Stock Option Plan (the "Plan"),
at an option exercise price of $1.00 per share. That certain Stock Option
Agreement, dated this date, between Employee and the Company (the "Stock Option
Agreement"), and the Plan will govern with respect to vesting, issuance, and
redemption and shall control over the terms of this or any other agreement
between the Employee and the Company, except that: (1) the stock will vest in
accordance with the following schedule:
16.67% at Employee's start date
16.67% at the end of year 1 of employment
16.67% at the end of year 2 of employment
33.33% at the end of year 3 of employment
16.67% at the end of year 4 of employment;
(2) in the event of an initial public offering ("IPO") (as defined in the Stock
Option Agreement), prior to the end of the third year of employment, 120,000
shares of the 240,000 shares vesting at the end of the third year of employment
will vest on the effective date of the IPO; (3) in the event Employee resigns
his employment within the first twelve (12) months of employment, the shares
vested at the time of his employment will be forfeited and he will relinquish
all claims to such shares; (4) in the event of a Change in Control (as defined
in Section 7(e) below), all shares will vest at the time of such change; (5) for
purposes of the Stock Option Agreement and the Plan, "Change in Control" shall
have the meaning set forth in Section 7(e) below; and (6) in the event
Employee's employment is terminated pursuant to Sections 7(b) or 7(e) below,
after one (1) year of employment, the shares will vest with Employee as if
Employee had continued employment through the end of the year in which Employee
was terminated, but not beyond.
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Employee understands that the vesting schedule is not a guarantee of continued
employment, and that the terms of the option are set forth specifically in the
Stock Option Agreement and the Plan.
6. Employee Benefits.
(a) Medical and Insurance Benefits. Employee will be entitled to receive
all employee benefits provided to employees of the Company generally from time
to time, including medical and dental (which plans will be comparable in
coverage and benefits to medical and dental plans maintained by companies of
similar size to the Company and in a similar geographic area), life insurance
and long-term disability, so long as and to the extent the same exist.
(b) Vacation, Sick Leave and Holidays. Employee shall be entitled to
vacation, sick leave and vacation in accordance with the policies of the Company
applicable to senior executives of the Company, as such policies are determined
by the Board of Directors from time to time in its discretion.
(c) 401(k). Employee shall be entitled to participate in a contributory
401(k) plan to be adopted by the Company in accordance with the plan and the
policies of the Company from time to time.
(d) Temporary Living Expenses. The Company agrees to pay reasonable
temporary living expenses during the period in which the Company's headquarters
are relocated to New York City, New York.
7. Termination Benefits.
(a) Employment At Will. Employee acknowledges that his employment shall be
"at will": either the Company or the Employee may terminate this Agreement and
Employee's employment at any time, with or without Cause (as defined in Section
7(c) below) in its or his sole discretion and without further liability
whatsoever, except as provided in this Section 7.
(b) Without Cause. The Company may terminate Employee's employment at any
time for whatever reason it deems appropriate or without reason. Provided that
such termination is without Cause (as defined in Section 7(c) below), the
Company agrees to pay Employee (i) his Base Salary and any earned bonus which
has been declared or earned pursuant to the mutually agreed upon plan
established in Section 4 and accrued through the date of such termination and
not theretofore paid to him and (ii) his base salary in equal monthly
installments, less any withholdings required by law, until the expiration of a
period of twelve (12) months from the effective date of such termination, and to
continue to provide Employee and his dependents with the health insurance
benefits provided to other employees at the Company, on the same basis that such
benefits are provided to other employees (including employer contributions),
until
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the expiration of a period of twelve (12) months from the date of such
termination. Rights and benefits of Employee under the benefit plans and
programs of the Company shall be determined in accordance with applicable law
and the provisions of such plans and programs. If the Employee terminates his
employment, the Company shall pay to the Employee his base salary accrued
through the date of such termination and not theretofore paid to him, along with
any bonus declared, prior to such termination, to the extent unpaid.
(c) With Cause. The Company may terminate Employee's employment at any time
for Cause. For purposes of this Agreement, "Cause" means gross negligence
willful misconduct, or other malfeasance by Employee in the performance of his
duties, Employee's commission of a felony or other offense involving moral
turpitude, or Employee's material breach of this Agreement, including without
limitation any material breach of Sections 9 through 12 hereof, inclusive, in
each case as determined by the Board of Directors in good faith and considering
applicable guidance or law in its discretion. In the event of such termination,
the Company shall pay to Employee his base salary accrued to the date of such
termination and not theretofore paid to him, along with any bonus declared or
earned, pursuant to the mutually agreed upon plan established in Section 4 prior
to such termination, to the extent unpaid. Rights and benefits of Employee under
the benefit plans and programs of the Company shall be determined in accordance
with applicable law and the provisions of such plans and programs.
(d) Resignation. If Employee resigns prior to the expiration of one (1)
year of employment, Employee will forfeit all vested stock options and will be
entitled only to his base salary through the date of termination. If Employee
resigns after the expiration of one (1) year of employment, Employee will be
entitled to the benefits in Section 7(c) above. Rights and benefits of Employee
under benefit plans and programs of the Company shall be determined under this
Section 7(d) in accordance with applicable law and the provisions of said plans
and programs.
(e) Change in Control. Employee may terminate his employment and receive
compensation as if the Company terminated him without Cause if there is a Change
in Control in the Company, unless the Company's successor has agreed to continue
to employ Employee on substantially similar terms and conditions. Employee is
entitled to any stock vesting contemplated in Section 5 in the event of a Change
in Control without regard to whether the Company's successor agrees to continue
to employ employee on substantially similar terms and conditions. For purposes
of this Agreement, "Change in Control" shall mean a change in control as defined
in the Company's 1995 Stock Option Plan, as amended.
(f) The provisions of this Section 7 are intended to be and are exclusive
and in lieu of any other rights or remedies to which Employee may otherwise be
entitled, either in law, tort, or contract, in the event of any termination of
Employee's employment. Employee shall not be entitled to any other benefits,
compensation, or
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other payments or rights upon termination other than those benefits and payments
set forth in paragraph (b), (c), (d) or (e), whichever is applicable.
8. Successors.
(a) Company's Successors. Any successor to the Company (whether direct or
indirect and whether by purchase, lease, merger, consolidation, liquidation or
otherwise) to all or substantially all of the Company's business and/or assets
shall be entitled to assume the rights and obligations of the Company under this
Agreement and shall agree to perform the Company's obligations under this
Agreement in the same manner and to the same extent as the Company would be
required to perform such obligations in the absence of a succession. For
purposes of this Agreement, the term "Company" shall include any successor to
the Company's business and/or assets which executes and delivers the assumption
agreement described in this subsection (a) or which becomes bound by the terms
of this Agreement by operation of law.
(b) Employee's Successors. The terms of this Agreement and all rights of
Employee hereunder shall inure to the benefit of, and be enforceable by,
Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
9. Confidential Information.
(a) Employee acknowledges that the Confidential Information (as defined in
Section 9(b) below) relating to the business of the Company which Employee has
obtained or will obtain during the course of his association with the Company
and his performance under this Agreement are the property of the Company.
Employee agrees that he will not disclose or use at any time, either during or
after the term of his employment, any Confidential Information without the prior
written consent of the Board of Directors of the Company. Employee agrees to
deliver to the Company at the end of the term of his employment, or at any other
time that the Company may request, all memoranda, notes, plans, records,
documentation and other materials (and copies thereof) containing Confidential
Information relating to the business of the Company, no matter where such
material is located and no matter what form the material may be in, which
Employee may then possess or have under his control. If requested by the
Company, Employee shall provide to the Company written confirmation that all
such materials have been delivered to the Company or have been destroyed.
Employee shall take all appropriate steps to safeguard Confidential Information
and to protect it against disclosure, misuse, espionage, loss and theft.
(b) "Confidential Information" shall mean information which is not
generally known to the public and which is used, developed, or obtained by the
Company relating to the business of the Company including, but not limited to:
products or services; fees, costs and pricing structure; designs; analyses;
formulae; drawings; photographs; reports; computer software, including operating
systems, applications,
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program listings, flow charts, manuals and documentation; data bases; accounting
and business methods; inventions and new developments and methods, whether
patentable or unpatentable and whether or not reduced to practice; all
copyrightable works; the customers of the Company and the Confidential
Information of any customer thereof; and all similar and related information in
whatever form. Confidential Information shall not include any information which
(i) was rightfully known by Employee prior to the term of his employment; (ii)
is publicly disclosed by law or in response to an order of a court or
governmental agency; (iii) becomes publicly available through no fault of
Employee or (iv) has been published in a form generally available to the public
prior to the date upon which Employee proposes to disclose such information.
Information shall not be deemed to have been published merely because individual
portions of the information have been separately published, but only if all the
material features comprising such information have been published in
combination.
10. Inventions and Patents. In the event that Employee, as a part of
Employee's activities on behalf of the Company, generates, authors or
contributes to any invention, new development or method, whether or not
patentable and whether or not reduced to practice, any copyrightable work, any
trade secret, any other Confidential Information, or any information that gives
the Company an advantage over any competitor, or similar or related developments
or information related to the present or future business of the Company
(collectively "Developments and Information"), Employee acknowledges that all
Developments and Information are the exclusive property of the Company. Employee
hereby assigns to the Company, its nominees, successors or assigns, all rights,
title and interest to Developments and Information. Employee shall cooperate
with the Company's Board of Directors to protect the interests of the Company in
Developments and Information. Employee shall execute and file any document
related to any Developments and Information requested by the Company's Board of
Directors including applications, powers of attorney, assignments or other
instruments which the Company's Board of Directors deems necessary to apply for
any patent, copyright or other proprietary right in any and all countries or to
convey any right, title or interest therein to any of the Company's nominees,
successors or assigns.
11. No Conflicts.
(a) During the term of his employment, Employee agrees that in his
individual capacity he will not enter into any agreement, arrangement or
understanding, whether written or oral, with any supplier, contractor,
distributor, wholesaler, sales representative, representative group or customer,
relating to the business of the Company, without the express written consent of
the Board of Directors of the Company.
(b) As long as Employee is employed by the Company, Employee agrees that he
will not, except with the express written consent of the Board of Directors of
the Company, become engaged in, render services for, or permit his name to be
used in connection with, any business other than the business of the Company,
any of its
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subsidiaries or any corporation or partnership in which the Company has an
equity interest.
12. Non-Competition and Non-Solicitation Agreements. Employee agrees with
the Company as follows;
(a) Until one (1) year following the termination of employment with the
Company, Employee shall not without the prior written approval of the Company,
directly or indirectly, under any circumstances whatsoever (i) own, manage,
operate, control or participate in the ownership, management, or control of, or
be connected with, whether as a partner, stockholder, director, officer or
principal of any business that is in competition with the business of the
Company as of the date of such termination (a "Competing Business") or (ii) be
employed or retained as an agent, employee or consultant or in any other
relation or capacity whatsoever by a Competing Business; except to the extent
the Company shall elect to extend the non-compete period to up to an additional
six (6) months by written notice to Employee not more than 90 days prior to the
expiration of the first (1st) year following termination. In the event of such
election, the Company shall pay to Employee one (1) month of base salary for
each month the Company continues to enforce this noncompetition restriction
after the first twelve (12) months of such restriction, up to a maximum of six
(6) additional months of non-compete payments.
(b) In addition, until one (1) year following termination of employment
with the Company, Employee shall not, directly or indirectly, solicit the
employment or engagement of the consulting or other services of any person who
shall then be employed by the Company or who shall have been employed by the
Company at any time within the then previous twelve (12) months.
(c) Employee acknowledges that compliance with the covenants contained in
this Section 12 and in Section 9 hereof are necessary to protect the value of
the business of the Company and that a breach of any such covenant would result
in irreparable and continuing damage for which there would be no adequate remedy
at law. Accordingly, Employee agrees that in the event of any breach of said any
such covenant, the Company shall be entitled to injunctive relief and to such
other and further relief as is proper under the circumstances. Employee agrees
to waive any requirement to post a bond.
(d) Employee agrees that these restrictions on competition and solicitation
shall be deemed to be a series of separate covenants not-to-compete and a series
of separate non-solicitation covenants for each state within the United States
and each country in the world, separate covenants not-to-compete for each area
of competition, and separate non-solicitation covenants with respect to each
employee of the Company. If any court of competent jurisdiction shall determine
any of the foregoing covenants to be unenforceable with respect to the term
thereof or the scope of the subject matter or geography covered thereby, such
remaining covenants shall nonetheless be
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enforceable by such court against such other party or parties or upon such
maximum shorter term or within such maximum lesser scope as may be determined by
the court to be enforceable.
13. Miscellaneous Provisions.
(a) Notice. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given (i)
when personally delivered, (ii) three (3) business days after deposit in U.S.
Mail, if mailed by U.S. registered or certified mail, return receipt requested,
or (iii) one (1) business day after the date of deposit with Federal Express or
similar overnight courier, freight prepaid. In the case of Employee, notices
shall be addressed to him for personal delivery at the office or at the home
address which he most recently communicated to the Company in writing or if
delivered by U.S. mail or courier, then to the home address which he most
recently communicated to the Company in writing. In the case of the Company,
notices shall be addressed to its corporate headquarters, to the attention of
its Corporate Secretary.
(b) Notice of Termination. Any termination by the Company or Employee shall
be communicated by a notice of termination to the other party hereto given in
accordance with paragraph (a) hereof. Such notice shall indicate the specific
termination provision in this Agreement relied upon.
(c) Waiver. No provision of this Agreement shall be modified, waived or
discharged unless the modification, waiver or discharge is agreed to in writing
and signed by Employee and by an authorized officer of the Company (other than
Employee). No waiver by either party of any breach of, or of compliance with,
any condition or provision of this Agreement by the other party shall be
considered a waiver of any other condition or provision or of the same condition
or provision at another time.
(d) Entire Agreement. This Agreement shall supersede any and all
contemporaneous or prior agreements, representations or understandings (whether
oral or written and whether express or implied) between the parties with respect
to the subject matter hereof.
(e) Choice of Law. This Agreement will be governed and construed in
accordance with the laws of the State of New York, without regard to principles
of conflict of laws.
(f) Severability. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision hereof, which shall remain in full force and effect.
(g) Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in New York,
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New York, in accordance with the rules of the American Arbitration Association
then in effect. Judgment may be entered on the arbitrator's award in any court
having jurisdiction. Punitive damages shall not be awarded.
(h) No Assignment of Benefits. The rights of any person to payments or
benefits under this Agreement shall not be made subject to option or assignment,
either by voluntary or involuntary assignment or by operation of law, including
(without limitation) bankruptcy, garnishment, attachment or other creditor's
process, and any action in violation of this subsection (h) shall be void.
(i) Employment Taxes. All payments made pursuant to this Agreement will be
subject to withholding of applicable taxes.
(j) Assignment by Company. The Company may assign its rights under this
Agreement to an affiliate, and an affiliate may assign its rights under this
Agreement to another affiliate of the Company or to the Company. As used herein,
the term "Company" shall mean the Company and its subsidiaries. However, if the
Company assigns this Agreement without the prior written consent of the
Employee, such assignment shall be deemed a "Change in Control" as defined in
paragraph 7(e) above.
(k) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together will constitute one
and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized officer, as of the date and year
first above written.
COMPANY: GEOSYSTEMS GLOBAL CORPORATION
By:
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Name:
Title:
XXXXXXX X. XXXXXXXX
EMPLOYEE: /s/Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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