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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Employment Agreement") is entered into
as of the 9th day of May, 2000 between Xxxxxx X. Xxxx (the "Employee") and
infoUSA Inc. ("Company").
WHEREAS, the Company wishes to employ the Employee as Chief Financial
Officer of the Company on the terms set forth in this Employment Agreement, and
the Employee wishes to accept such employment on such terms.
THEREFORE, in consideration of the mutual promises set forth herein, it
is mutually agreed between the parties as follows:
Section 1. EMPLOYMENT AND TERM. The Company hereby employs the Employee
and the Employee hereby accepts employment as Chief Financial Officer on the
terms of this Employment Agreement, and continuing for a period of three years
from the date first written above, unless terminated earlier in accordance with
the provisions of Section 5 hereof or extended by mutual agreement of the
parties. This Agreement shall thereafter continue in effect from year to year
unless altered or terminated as hereinafter provided.
Section 2. DUTIES AND AUTHORITY. The Employee's duties shall be as
determined by the Chief Executive Officer of the Company from time-to-time.
Employee agrees, unless otherwise specifically authorized by the Company, to
devote his full time and effort to his duties for the profit, benefit and
advantage of the business of the Company. Employee hereby confirms that he is
under no contractual commitments inconsistent with his obligations set forth in
this Agreement and that during the term of this Agreement he shall not render or
perform services for any other corporation, firm, entity or person.
Section 3. COMPENSATION.
(a) Base Salary. The Employee will receive a base salary
during the term of this Employment Agreement of $210,000 per year
("Base Salary"), payable bi-weekly.
(b) Bonus. In the event the Employee is entitled to a bonus,
any such bonus will be determined at the sole discretion of the
Company's Chief Executive Officer and the Board of Directors.
(c) Additional Benefits. The Employee will receive such
additional employee benefits as the Company may from time to time make
available to its executive officers, including paid vacations, pension
benefits, qualified profit-sharing plans, employee group health and
life insurance and disability insurance.
(d) Withholdings. All payments made to the Employee pursuant
to this Employment Agreement shall be reduced by all required federal,
state and local withholdings for taxes and similar charges and by all
contributions or payments required
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to be made by the Employee in connection with any employee benefit plan
maintained by the Company.
(e) Options. The Employee will be granted an option to
purchase 75,000 shares of infoUSA Inc.'s common stock at the closing
price on the date of execution of this Agreement. Such options will be
granted under the terms of the infoUSA 1997 Stock Option Plan.
Section 4. REIMBURSEMENT FOR EXPENSES. The Employee is expected to
incur certain expenses on behalf of the Company for travel, promotion,
telephone, entertainment and similar items. The Company will reimburse the
Employee for all pre-approved expenses incurred by the Employee, which amounts
shall be payable promptly upon receipt of reasonable written documentation
signed by the Employee itemizing such expenses in accordance with the Company's
purchasing, travel and entertainment policies.
Section 5. EARLY TERMINATION OF TERM; SEVERANCE PAYMENT. This
Employment Agreement shall terminate for "cause" prior to the date of
termination set forth in Section 1 above upon the first to occur of:
(a) the determination by the Chief Executive Officer in its
discretion reasonably applied that the Employee has become disabled and
shall not be able to continue his service to the Company;
(b) the Employee's death; or
(c) the Employment Agreement is terminated by the Company by
reason of the Employee's (i) fraud, misappropriation or embezzlement,
(ii) conviction of a felony or a gross misdemeanor, (iii) gross
negligence in the performance of his duties, (iv) willful misconduct,
(v) material breach of this Agreement or (vi) other act which can be
reasonably expected to cause substantial economic or reputational
injury to the Company.
Upon termination by the Company for any reason other than
"cause," Employee will be entitled to receive Employee's Base Salary
payable in equal bi-weekly payments in accordance with the Company's
payroll schedule over a maximum of 18 months, provided, however, that
payment of Employee's Base Salary will immediately terminate upon the
latter of six months following the termination of Employee's employment
or the date the Employee becomes employed by another entity (the
"Severance Period"), but in no event will the period of compensation
extend beyond the Term of this Agreement. For purposes of this Section
5, if Employee's duties and responsibilities with the Company are
significantly reduced by the Company without the prior written consent
of Employee, Employee may terminate his employment and receive his Base
Salary during the Severance Period. Upon termination for "cause" or
Employee voluntarily terminates his employment with the Company, all
payments otherwise due under this Employment Agreement shall terminate
and no future amounts, including bonuses, shall be owed to Employee.
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Section 6. RESTRICTIVE COVENANT. Employee expressly covenants and
agrees that at no time during the effective time of this Employment Agreement
and for a period of one year after termination of this Employment Agreement will
he for himself or on behalf of any other person, partnership, firm, association
or corporation in any territory in which the Company has an active business or
has plans, known to Employee, (1) open or operate a business which would be a
competitor of the Company, (2) act as an employee, agent, advisor or consultant
of any then existing competitor of the Company, (3) solicit or accept business
from any of the Company's competitors, unless authorized by the Company, (4)
divert any business from the Company by influencing or attempting to influence
any present customers or the Company or (5) attempt to attract any supplier away
from the Company or use its information regarding the Company's suppliers in any
way which would detrimentally affect the Company. Employee further covenants and
agrees that for one year following the termination of this Employment Agreement,
whether such termination is voluntary or involuntary, he will not for himself or
on behalf of any other person, partnership, firm, association or corporation in
any territory in which the Company has actively done business during the 12
months immediately prior to this Employment Agreement's termination (1) directly
or indirectly solicit or accept business from any of the Company's present
customers or customers it serviced in said territory within the last 12 months
of the effective term of this Employment Agreement, (2) divert any business from
the Company by influencing or attempting to influence any present customers of
the Company or (3) attempt to attract any supplier away from the Company or use
its information regarding the Company's suppliers in any way which would
detrimentally affect the Company.
During the term of this Agreement and for a period of one year
thereafter, Employee shall not, directly or indirectly, solicit, induce or
encourage any of the Company's employee(s) to terminate their employment with
the Company or to accept employment with any competitor, supplier or customer of
the Company, nor shall Employee cooperate with any others in doing or attempting
to do so.
By signing this Employment Agreement, Employee expressly
acknowledges that the territorial limitations, duration and scope of this
section are fair and reasonable. If this section 6 of the Employment Agreement
is found or held to be unreasonable by a court of competent jurisdiction,
Employee and the Company expressly agree that the maximum territorial
limitations, duration and scope reasonable under the circumstances shall be
substituted for the objectionable provisions. This section shall survive the
termination of the Employment Agreement.
Employee further covenants and agrees that during the time of
this Employment Agreement and for a period of five years after its termination
that he shall not disclose any Confidential Information (as hereinafter defined)
and (i) shall not permit any third party access to the Confidential Information,
(ii) shall use the same degree of care to protect the Confidential Information
as the Company uses to protect its Confidential Information and (iii) shall take
any other actions that are reasonable, necessary or appropriate to ensure the
continued confidentiality and protection of the Confidential Information. The
foregoing confidentiality obligation shall not apply to information that (i) is
or becomes part of the public domain other than as a result of a breach of this
agreement, or (ii) is required to be disclosed by law or regulation or pursuant
to an order by any court or tribunal of competent jurisdiction. "Confidential
Information" shall be
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defined as customer lists, trade secrets, business plans, financial reports and
any other information which would be detrimental to the Company if disclosed to
competitors or to any other third party.
Employee further agrees that the Company shall be entitled to
maintain proceedings in any court of competent jurisdiction in Nebraska, either
at law or in equity, for any breach of this Employment Agreement by Employee, to
seek injunctive relief, to enforce the specific performance of this Agreement
and/or to obtain damages for any breach thereof, and without regard to any or
all remedies sought by the Company, the prevailing party shall be entitled to
recover reasonable attorneys' fees incurred in enforcing this Employment
Agreement.
Section 7. RELOCATION. There is no expectation for the Employee to
relocate outside the Omaha, Nebraska area.
Section 8. OWNERSHIP OF PROPERTY. Employee agrees that all works of
authorship developed, authored, written, created or contributed to during the
term of this Agreement for the benefit of the Company, whether solely or jointly
with others, shall be considered works-made-for-hire. Employee agrees that such
works shall be the sole and exclusive property of the Company (or an appropriate
affiliate of the Company) 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 the
Company (or such other appropriate affiliate of the Company). Employee agrees
further that, in the event that any work is not considered to be
work-made-for-hire by operation of law, Employee will immediately, and without
further compensation, assign all of Employee's right, title and interest therein
to the Company (or any affiliate of the Company which it may designate). At the
request and expense of the Company, Employee agrees to perform in a timely
manner such further acts as may be necessary or desirable to transfer, defend or
perfect the Company's ownership of such work and all rights incident thereto.
Section 9. AMENDMENTS. No change, modification, waiver, discharge,
amendment or addition to this Employment Agreement shall be binding unless it is
in writing and signed by the Company and the Employee.
Section 10. ENTIRE AGREEMENT. This Employment Agreement contains the
entire understanding and agreement between the Company and the Employee and
supersedes any prior agreements between them pertaining to the Employee's
employment with the Company. There are no representations, warranties, promises,
covenants or understandings between the Company and the Employee with respect to
such employment other than those expressly set forth in this Employment
Agreement.
Section 11. GOVERNING LAW. This Employment Agreement shall be governed
by the substantive laws of the State of Nebraska.
Section 12. NONASSIGNABILITY; SUCCESSORS. The obligations of the
Employee under this Employment Agreement are not assignable by him. Except as
provided in the immediately
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preceding sentence, this Employment Agreement shall be binding upon and inure to
the benefit of the parties hereto and their successors.
Section 13. NOTICES. Any notice required to be given in writing by any
party to this Employment Agreement may be personally delivered or mailed by
registered or certified mail to the last known address of the party to be
notified. Any such notice personally delivered shall be effective upon delivery
and any such notice mailed shall be effective four business days after the date
of mailing, by registered or certified mail with postage prepaid to the last
known address of the party to be notified.
Section 14. SEVERABILITY. The invalidity or unenforceability of any
particular provision of this Employment Agreement shall not affect the other
provisions of this Employment Agreement, and this Employment Agreement shall be
construed in all respects as if such invalid or unenforceable provision were
omitted.
Section 15. HEADINGS. The section and other headings contained in this
Employment Agreement are for reference purposes only and shall not affect the
interpretation of this Employment Agreement.
Section 16. CONSTRUCTION. Whenever required by the context, references
to the singular shall include the plural, and the masculine gender shall include
the feminine gender.
IN WITNESS WHEREOF, the Company has caused this Employment Agreement to
be executed on its behalf and the Employee has signed his name hereto, effective
as of the date first written above.
infoUSA Inc.
By
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Printed Name
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Its
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Xxxxxx X. Xxxx, Employee
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