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EXHIBIT 10.15
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made this 17th day of May,
1995, is entered into by Best Programs, Inc., a Virginia Corporation with its
principal place of business at 00000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx
00000 (the "Company"), and Xxxxx X. Xxxxxxxx, residing at 0000 Xxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000 (the "Employee").
In consideration of the mutual covenants and promises contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the parties hereto, the parties agree as follows:
1. Term of Employment. The Company hereby agrees to employ the Employee,
and the Employee hereby accepts employment with the Company, upon the terms set
forth in this Agreement, for the period commencing on April 1, 1995 (the
"Commencement Date"), and ending on March 30, 2000 (such period, as it may be
extended, the "Employment Period"), unless earlier terminated in accordance
with the provisions of Sections 2 or 4.
2. Title; Capacity. The Employee shall serve as Chairman of the Company
or in such other reasonably similar alternate position as determined from time
to time by the Company's Board of Directors (the "Board"). The Employee shall
be based at the Company's headquarters in Northern Virginia. The Employee
shall be subject
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to the supervision of, and shall have such authority delegated to him by, the
Board.
The Employee hereby agrees to undertake the duties responsibilities of his
position. The Employee agrees to devote his entire business time, attention and
energies to the business and interests of the Company during the Employment
Period. Employee agrees to abide by the rules, regulations, instructions,
personnel practices and policies of the Company as are reason applicable to his
position.
At the election of the Company in the discretion of the Board of Directors
and with or without cause, in lieu of assign Employee to a reasonably similar
alternate position, the Company may terminate the employment of the Employee,
or assign no position and duties to Employee (and if so, the Employee may
resign if elects). Upon any termination or resignation pursuant to preceding
sentence, Employee's then current base salary shall, severance to the Employee,
continue to be paid to Employee by Company for the duration of the original
Employment Period of the Agreement, and the Company shall pay and maintain the
Employee health insurance coverage as provided by Section 5.4 hereof.
3. Compensation and Benefits.
3.1 Salary. The Company shall pay the Employee,
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installments not less than monthly, an annual base salary of $170,280.00 for
the one-year period commencing on the Commencement Date. Such salary shall be
subject to upward adjustment thereafter as determined by the Board consistent
with the annual average rate of upward adjustment of base salary levels of
senior executive employees of the Company.
3.2 Bonus. The Company shall include the Employee in the
bonus plan or plans now existing or hereafter adopted for senior executive
employees of the Company, and Employee shall be entitled to payment of bonuses
in amounts as applicable and as determined under the terms of such plan or
plans. In the absence of any such bonus plan or plans, at least annually, the
Board shall consider the award of a discretionary bonus to the Employee taking
into account the financial results of the Company and the performance and
efforts of the Employee.
3.3 Fringe Benefits. The Employee shall be entitled to
participate in all bonus, retirement, insurance and benefit programs that the
Company establishes and makes available to its senior executive employees, to
the extent that Employee's tenure, salary, age, health and other qualifications
make him eligible to participate.
3.4 Reimbursement of Expenses. The Company shall reimburse
the Employee for all reasonable travel, entertainment and
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other expenses incurred or paid by the Employee in connection with, or related
to, the performance of his duties, responsibilities or services under this
Agreement, upon presentation by the Employee of documentation, expense
statements, vouchers and/or such other supporting information as the Company
may reasonably request.
4. Employment Termination. The employment of the Employee by the Company
pursuant to this Agreement shall terminate upon the occurrence of any of the
following:
4.1 Expiration of the Employment Period in accordance with
Section 1;
4.2 At the election of the Company, for cause, immediately
upon written notice by the Company to the Employee. For the purposes of this
Section 4.2, cause for termination shall be deemed to exist in the event of:
(i) the refusal of the Employee to perform his assigned duties for the Company,
if such refusal continues after notice and reasonable opportunity to cure, or
(ii) dishonesty, gross negligence or gross misconduct that is injurious to the
Company;
4.3 Thirty days after the death or disability of the
Employee. As used in this Agreement, the term "disability" shall mean the
inability of the Employee, due to a physical or mental
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disability, for a period of 180 days, whether or not consecutive, during any
360-day period to perform the services contemplated under this Agreement. A
determination of disability shall be made by a physician satisfactory to both
the Employee and the Company, provided that if the Employee and the Company
do not agree on a physician, the Employee and the Company shall each select a
physician and these two together shall select a third physician, whose
determination as to disability shall be binding on all parties; or
4.4 At the election of either party, at any time within one
year following: (i) the sale or other transfer by the Company of 50% or more of
its assets to an unrelated third party, or (ii) the sale or transfer, other
than through a public offering, of stock representing voting control of the
Company to one or more third parties not presently holding more than 50% of the
outstanding voting stock of the Company.
5. Effect of Termination.
5.1 Termination for Cause. In the event the Employee's
employment is terminated for cause pursuant to Section 4.2, the Company shall
pay to the Employee the compensation and benefits otherwise payable to him
under Section 3 through the last day of his actual employment by the Company.
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5.2 Termination for Death or Disability. If the Employee's
employment is terminated by death or because of disability pursuant to Section
4.3, the Company shall pay to the estate of the Employee or to the Employee, as
the case may be, the compensation and benefits which would otherwise be payable
to the Employee up to the end of the month in which the termination of his
employment because of death or disability occurs.
5.3 Termination under Section 4.4. In the event of
termination under Section 4.4 hereof, Employee shall be paid the compensation
and fringe benefits which would otherwise be payable to the Employee up to the
end of the month in which the termination occurs. In addition, with respect to
the then current base salary of the Employee and as severance to the Employee:
if the termination is at the election of the Company, such base salary shall be
paid through the end of the original Employment Period; and if the termination
is at the election of the Employee, such base salary shall be paid for a period
of one year from the date he ceases to be employed by the Company.
5.4 Health Insurance. Upon any termination of this
Agreement, other than for cause or death, the Company shall pay and maintain
the Employee's then current health insurance coverage for a period of one year
from the date of termination.
5.5 Transfer of Life Insurance. Upon any termination of
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this Agreement for reasons other than death, the Company at its expense shall
transfer to the Employee any life insurance policies then maintained by the
Company on the Employee's life, paid up through the end of the then current
policy periods of such policies.
5.6 Survival. The provisions of Sections 2, 5, 6 and 7 shall
survive the termination of this Agreement.
6. Non-Compete.
(a) During the Employment Period and for a period of one year
after the termination or expiration thereof, the Employee will not directly or
indirectly:
(i) as an individual proprietor, partner, stockholder,
officer, employee, director, joint venturer, investor, lender, or in any other
capacity whatsoever (other than as the holder of not more than one percent (1%)
of the total outstanding stock of a publicly held company), engage in the
business of developing, producing, marketing or selling products of the kind or
type then being developed, produced, marketed or sold by the Company; or
(ii) recruit, solicit or induce, or attempt to
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induce, any persons then employees of the Company to terminate their employment
with, or otherwise cease their relationship with, the Company; or
(iii) solicit, divert or take away from the Company, or
attempt to divert or to take away from the Company, the business or patronage
of any of the clients, customers or accounts, or prospective clients, customers
or accounts, of the Company which were contacted, solicited or served by the
Employee during the Employment Period.
(b) If any restriction set forth in this Section 6 is found
by any court of competent jurisdiction to be unenforceable because it extends
for too long a period of time or over too great a range of activities or in too
broad a geographic area, it shall be interpreted to extend only over the
maximum period of time, range of activities or geographic area as to which it
may be enforceable.
(c) The restrictions contained in this Section 6 are
necessary for the protection of the business and goodwill of the Company and
are considered by the Employee to be reasonable for such purpose. The Employee
agrees that any breach of this Section 6 will cause the Company substantial and
irrevocable damage and therefore, in the event of any such breach, in addition
to such other remedies which may be available, the Company shall have the
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right to seek specific performance and injunctive relief.
7. Proprietary Information and Developments.
7.1 Proprietary Information.
(a) Employee agrees that all information and know-how,
whether or not in writing, of a private, secret or confidential nature
concerning the Company's business or financial affairs (collectively,
"Proprietary Information") is and shall be the exclusive property of the
Company. By way of illustration, but not limitation, Proprietary Information
may include inventions, products, processes, methods, techniques, formulas,
compositions, compounds, projects, developments, plans, research data, clinical
data, financial data, personnel data, computer programs, and customer and
supplier lists. Employee will not disclose any Proprietary Information to
others outside the Company or use the same for any unauthorized purposes
without written approval by an officer of the Company, wither during or after
his employment, unless and until such Proprietary Information has become public
knowledge without fault by the Employee.
(b) Employee agrees to assign and does hereby assign to the
Company (or any person or entity designated by the Company) all his rights,
title and interest in and to all Developments and all related patents, patent
applications, copyrights and copyright
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applications. This Section 7(b), however, shall not apply to Developments
which do not relate to the then existing or planned business or research and
development of the Company and which are made and conceived by the Employee not
during normal working hours, not on the Company's premises and not using the
Company's tools, devices, equipment or Proprietary Information.
(c) Employee agrees to cooperate fully with the Company, both
during and after his employment with the Company, with respect to the
procurement, maintenance and enforcement of copyrights and patents (both in the
United States and foreign countries) relating to Developments. Employee shall
sign all papers, including, without limitation, copyright applications, patent
applications, declarations, oaths, formal assignments, assignment of priority
rights, and powers of attorney, which the Company may deem necessary or
desirable in order to protect its rights and interests in any Development.
7.2 Other Agreements. Employee hereby represents that he is
not bound by the terms of any agreement with any previous employer or other
party to refrain from using or disclosing any trade secret or confidential or
proprietary information in the course of his employment with the Company or to
refrain from competing, directly or indirectly, with the business of such
previous employer or any other party. Employee further represents that his
performance of all the terms of this Agreement and as an
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employee of the Company does not and will not breach any agreement to keep in
confidence proprietary information, knowledge or data acquired by him in
confidence or in trust prior to his employment with the Company.
8. Notices. All notices required or permitted under this
Agreement shall be in writing and shall be deemed effective upon personal
delivery or upon deposit in the United States Post Office, by registered or
certified mail, postage prepaid, addressed to the other party at the address
shown above, or at the such other address which hereafter is specified by
notice in accordance with this Section 8.
9. Pronouns. Whenever the context may require, any pronouns used
in this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular forms of nouns and pronouns shall include the plural,
and vice versa.
10. Entire Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes all prior agreements and
understandings, whether written or oral, relating to the subject matter of this
Agreement.
11. Amendment. This Agreement may be amended or modified only by
a written instrument executed by both the Company and the Employee.
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12. Governing Law. This Agreement shall construed, interpreted
and enforced in accordance with the laws of the Commonwealth of Virginia.
13. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of both parties and their respective successors and
assigns, including any corporation with which or into which the Company may be
merged or which may succeed to its assets or business, provided, however, that
the obligations of the Employee are personal and shall not be assigned by him.
14. Miscellaneous.
14.1 No delay or omission by either party in exercising
any right under this Agreement shall operate as a waiver of that or any other
right. A waiver or consent given by either party on any one occasion shall be
effective only in that instance and shall not be construed as a bar or waiver
of any right on any other occasion.
14.2 The captions of the sections of this Agreement are
for convenience of reference only and in no way define, limit or affect the
scope or substance of any section of this Agreement.
14.3 In case any provision of this Agreement shall be
invalid, illegal or otherwise unenforceable, the validity, legality
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and enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year set forth above.
BEST PROGRAMS, INC.
By: /s/ XXXXXX XXXXXXX
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Title: Executive VP and CFO
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EMPLOYEE
/s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
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