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EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into this 5th day of
July, 1999 by and between infoUSA, a Delaware corporation, ("Employer"), and
Xxxxx X. Xxxxxxxx ("Executive").
WHEREAS, Employer and Executive desire to enter into this Employment
Agreement (this "Agreement") to set forth the rights and duties of the parties
herein;
NOW THEREFORE, in consideration of the premises and of the covenants
and agreements herein contained, the parties agree as follows:
1. Employment.
(a) Effective as of the date hereof, Employer shall employ
Executive as Executive Vice President, infoUSA. Executive hereby accepts such
employment as of such date upon the terms and conditions herein set forth.
(b) During the term of her employment under this Agreement,
Executive will devote her best efforts and her entire working time and attention
to her employment and perform those duties consistent with her capacity as
Executive Vice-President, infoUSA.
(c) Executive shall report directly to Xxxxx Xxxxx, or his
successor as Chairman and Chief Executive Officer, infoUSA.
2. Term.
The term of this Agreement shall begin on the date hereof and
shall continue until the earliest to occur of July 5, 2004, the date of
Executive's death or the date which shall be six (6) months following the date
of Executive's disability which shall have prevented Executive from carrying out
her duties during such six (6) month period.
3. Compensation and Bonus.
(a) In consideration of the services to be rendered by
Executive hereunder, Employer agrees to pay to the Executive, and Executive
agrees to accept, as base compensation, the sum of Three Hundred Twenty Thousand
Dollars ($320,000.00) per annum, which shall be paid on the regularly recurring
pay periods established by Employer ("Base Salary"). The Base Salary may be
increased but not decreased from time to time during the term of this Agreement.
(b) In consideration of Executive's entering into this
Agreement and her consulting with Employer regarding the
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integration of businesses during the period of her employment hereunder,
immediately upon signing this Agreement, Employer shall pay Executive a
consulting fee in the amount of One Million Dollars ($1,000,000.00), in such
manner as directed by Executive, including without limitation, directly to
Executive or to a retirement or deferred compensation plan designated by
Executive; provided, however, nothing contained in this Agreement shall obligate
Executive to refund this fee, or any portion thereof, nor entitle Employer to
offset this fee, or any portion thereof, against any monies owed by Employer to
Executive for any reason, including, but not limited to, the termination of
Executive's employment for any reason whatsoever, with or without cause, prior
to the termination of this Agreement.
(c) Executive shall participate in Employer's Executive Bonus
Plan on an annual basis.
(d) During the term of this Agreement: (1) in the event that
Executive's employment is terminated by Employer (other than a "Termination for
Cause," as that term is defined in Paragraph 8 below) or (2) in the event of
Executive's "Resignation for Cause," as that term is defined in Paragraph 9
below, Executive shall continue to be entitled to all payments under this
Paragraph 3 during the remaining term of this Agreement.
4. Stock Options.
Immediately upon signing this Agreement, Executive shall be
granted a stock option to purchase 400,000 shares of Class A Common Stock of
Employer, with a strike price equal to the average closing price for a share of
such stock as quoted on the NASDAQ or other national exchange for the 20 trading
days prior to the date of this Agreement. In addition, upon each annual
anniversary of this Agreement during the years 2000, 2001, 2002 and 2003, and
conditioned on Employer's EBITDA growth over the prior year of fifteen percent
(15%) and revenue growth over the prior year of ten percent (10%) without
acquisition, Executive shall be granted an additional stock option to purchase
100,000 shares of Class A Common Stock of Employer, with a strike price fixed by
Employer's Board of Directors at the NASDAQ closing prior on the date said
options are granted. During the term of this Agreement: (1) in the event that
Executive is terminated by Employer (other than a "Termination for Cause"); or
(2) in the event of Executive's "Resignation for Cause," all stock options to be
granted during the remaining term of this Agreement shall vest in the same
manner as if Executive's employment had not terminated, with a strike price
fixed by Employer's Board of Directors at the NASDAQ closing price on the date
said options are granted, said options to be exercisable for a period of one (1)
year or for the period designated under the applicable stock option plan,
whichever is greater.
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5. Vacation and Other Benefits.
(a) At all times during the course of her employment,
Executive shall be entitled to all employment benefits, including without
limitation, health and hospitalization, life insurance, death and retirement
plans, on the same terms as are afforded to the most senior officers of
Employer. During the term of this Agreement: (1) in the event that Executive's
employment is terminated by Employer (other than a "Termination for Cause") or
(2) in the event of Executive's "Resignation for Cause," Executive shall
continue to be entitled to all employment benefits under this subparagraph 5(a)
during the remaining term of this Agreement.
(b) Without limiting the generality of subparagraph
5(a), Executive shall be entitled to a reasonable vacation each year of her
employment with Employer.
6. Expenses.
Employer shall pay all reasonable expenses incurred by
Executive in the performance of her responsibilities and duties for Employer as
well as the promotion of Employer's business. Executive shall submit to Employer
periodic statements along with supporting documentation of all expenses so
incurred, in accordance with Employer's standard policies. Subject to such
reviews as Employer may deem necessary, Employer shall promptly reimburse
Executive the full amount of any such expenses advanced by Executive.
7. Residence.
During the term of this Agreement, it is intended that
Executive live either in the vicinity of Omaha, Nebraska, or the vicinity of
Chicago, Illinois. In the event it is necessary for Executive to relocate her
existing residence in Omaha, Nebraska, in order to fulfill her employment
responsibilities, Employer shall pay all reasonable relocation expenses of
Executive, including the actual costs incurred by Executive in connection with
the sale of her existing residence.
8. Termination for Cause.
The employment of Executive under this Agreement may be
terminated by Employer for cause at any time. As used in this Paragraph, the
term "cause" shall be defined solely to mean Executive's fraud, dishonesty,
willful misconduct, gross negligence in the performance of her duties or
material breach of her obligations under this Agreement.
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9. Resignation for Cause.
The employment of Executive under this Agreement may be
terminated by Executive for cause at any time. As used in this Paragraph, the
term "cause" shall mean the occurrence, without the express written consent of
Executive, of any of the following events:
(a) any action by Employer which materially
interferes with Executive's ability to carry out her responsibilities under this
Agreement such as, but not limited to, a reduction or adverse change in, or a
change which is inconsistent with, Executive's responsibilities, duties, status,
authority, reporting power, functions, title, working conditions or status as
provided herein;
(b) a reassignment to a geographic location more than
50 miles from 0000 X. 00xx Xxx., Xxxxx, Xxxxxxxx, other than a location within
the vicinity of Chicago, Illinois; or
(c) a material breach by Employer of this Agreement.
10. Other Provisions Upon Termination.
(a) If Executive's employment is terminated for any
reason, Executive shall have no duty to mitigate her damages or seek other
employment and Employer shall have no right to offset any amounts paid.
(b) After the termination of Executive's employment
for any reason, Executive and Executive's dependents shall be entitled to
continuation of health insurance coverage under COBRA and any other applicable
laws, at Employer's expense.
(c) If Executive's employment is terminated for any
reason, after the end of a performance period and prior to the payment of a
bonus for the period, Executive shall be paid such bonus amount at the regularly
scheduled time.
11. Litigation.
(a) In the event Executive is required to defend herself in
response to the claim of any other party that her employment with Employer and
the performance of her duties hereunder are in violation of a duty owed to said
other party, Employer agrees to assume the entire costs of defense of Executive
in response to said claims, including legal fees. Further, Employer shall
indemnify and hold harmless Executive for any damages of any sort Executive may
be required to pay a third party by virtue of her employment by Employer and the
performance of her duties hereunder. In the event Executive is legally prevented
from performing some or all of her
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duties hereunder, Employer shall continue to pay Executive all compensation and
benefits provided for in this Agreement; provided, however, in exchange for such
continued compensation, Executive shall perform alternative duties on behalf of
Employer during the remaining term hereof which are mutually agreeable to
Executive and Employer.
(b) Employer agrees that Executive shall be entitled to
indemnification and payment or reimbursement of expenses (including attorneys'
fees and expenses) for all damages, losses and expenses incurred by Executive in
connection with any claim, action, suit or proceeding which arises from
Executive's services and/or activities as an officer and/or employee of Employer
or any affiliate thereof, other than claims resulting from Executive's fraud or
dishonesty.
(c) This Paragraph 11 shall survive any termination of the
terms of this Agreement.
12. Non-Competition.
During the term of this Agreement and for a period of 18
months thereafter, Executive shall not, without the prior written consent of
Employer, within the geographic area in which Executive shall have solicited
customers or otherwise performed services on Employer's behalf during the final
12 months of her employment with Employer, promote or assist, financially or
otherwise, or otherwise at in aid of, any person, firm, corporation, association
or other entity which competes with the Employer in the development, marketing
or servicing of any product or service with which Employer is involved during
her employment with Employer, and, for such period, Executive shall not,
directly or indirectly, promote or assist, financially or otherwise, or
otherwise act in aid of, any such entity.
13. Non-solicitation.
During the term of this Agreement and for a period of 18
months thereafter, Executive shall not, either directly or indirectly, solicit,
induce or encourage any of Employer's employee(s) to terminate their employment
with Employer or to accept employment with any competitor, supplier or customer
of Employer, not shall Executive cooperate with any others in doing or
attempting to do so.
14. Confidentiality.
Executive and Employer expressly recognize and acknowledge
that as a result of Executive's activities hereunder, Executive shall become
personally acquainted with Employer's clients and the manner in which Employer
renders services to them. Executive hereby covenants and agrees to retain in
confidence all
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information regarding Employer's clients so long as such information is not
publicly disclosed.
15. Ownership of Property.
Executive agrees that all works of authorship developed,
authored, written, created or contributed to during the term of this Agreement
for the benefit of Employer, whether solely or jointly with others, shall be
considered works-made-for-hire. Executive agrees that such works shall be the
sole and exclusive property of Employer (or an appropriate affiliate of
Employer) and that all right, title and interest therein and thereto, including
all intellectual property rights existing or obtained in connection therewith,
shall likewise be the sole and exclusive property of Employer (or such other
appropriate affiliate of Employer). Executive agrees further that, in the event
that any work is not considered to be work-made-for-hire by operation of law,
Executive will immediately, and without further compensation, assign all of
Executive's right, title and interest therein to Employer (or any affiliate of
Employer which it may designate). At the request and expense of Employer,
Executive agrees to perform in a timely manner such further acts as may be
necessary or desirable to transfer, defend or perfect Employer's ownership of
such work and all rights incident thereto.
16. Severable Provisions.
The provisions of this Employment Agreement are severable, and
if any one or more provisions may be determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions, and any partially
unenforceable provision to the extent enforceable in any jurisdiction, shall
nevertheless be binding and enforceable.
17. Arbitration.
Any controversy or claim arising out of or relating to this
Agreement, the making, interpretation or breach thereof, shall be resolved by
arbitration in Omaha, Nebraska in accordance with the Commercial Arbitration
Rules of the American Arbitration Association and judgment upon the award
tendered by the arbitrators may be entered in any court having jurisdiction
thereof and any party to the arbitration may, if such party so elects, institute
proceedings in any court having jurisdiction for the specific performance of any
such award. The powers of the arbitrator(s) shall include, but not be limited
to, the award of injunctive relief. The arbitrator(s) shall include in any award
in the prevailing party's favor the amount of her or its reasonable attorneys'
fees and expenses and all other reasonable costs and expenses of the
arbitration. In the event the arbitrator does not rule in favor of the
prevailing party in respect to all the claims alleged by such party, the
arbitrator shall include in the award in
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favor of the prevailing party the reasonable costs and expenses of the
arbitration as the arbitrator(s) deems just and equitable under the
circumstances. Except as provided herein, each party shall bear her or its own
attorneys' fees and expenses and the parties shall bear equally all other costs
and expenses of the arbitration.
18. Notices.
Any notice to be given to Employer under the terms of this
Employment Agreement shall be addressed to Employer at the address of its
principal place of business, and any notice to be given to Executive shall be
addressed to her at her home address last shown on the records of Employer, or
at such other address as either party may hereafter designate in writing to the
other. Any such notice shall have been duly given when enclosed in a properly
sealed envelope addressed as aforesaid, postage prepaid, registered or
certified, return receipt requested, and deposited in a post office or branch
office regularly maintained by the United States Government.
19. Waiver.
Either party's failure to enforce any provision or provisions
of this Employment Agreement shall not in any way be construed as a waiver of
any such provision or provisions as to any future violations thereof, nor
prevent that party thereafter from enforcing each and every other provision of
this Agreement. The rights granted the parties herein are cumulative and the
waiver by a party of any single remedy shall not constitute a waiver of such
party's right to assert all other legal remedies available to her or it under
the circumstances.
20. Captions and Paragraph Headings.
Captions and paragraph headings used herein are for
convenience only and are not a part of this Agreement and shall not be used in
construing it.
21. Entire Agreement.
This Agreement constitutes the entire agreement of the parties
and may not be changed orally but only by an agreement in writing signed by the
party against whom the enforcement of any waiver, change, modification,
extension, or discharge is sought.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
infoUSA
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, Chairman and Chief
Executive Officer
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
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