EXHIBIT 10.9
EMERGENT INFORMATION TECHNOLOGIES, INC.
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of
November 13, 2001, by and between Emergent Information Technologies, Inc., a
California corporation (the "Company"), and Xxxxxx X. Xxxxxxx ("Employee"), with
reference to the following:
A. The Company desires to employ Employee on the terms and
conditions set forth herein;
B. Employee desires to perform services for the Company as an
employee of the Company on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration for the promises and obligations set
forth below, the Company and Employee agree as follows:
1. Employment and Term.
1.1. The Company agrees to employ, and Employee agrees to be employed
by the Company, on the terms and conditions described below (the "Employment").
1.2. This Agreement shall be effective as of October 1, 2001 (the
"Effective Date") and shall terminate on December 31, 2003 unless sooner
terminated pursuant to the terms set forth below.
2. Duties.
2.1. Employee agrees that during the Employment, Employee shall devote
his full-time efforts to his duties as an employee of the Company, now or in the
future assigned to Employee by the Company. From and after the Effective Date of
this Agreement, Employee shall serve as Group President and General Manager of
the Company.
3. Compensation.
3.1. As consideration for the performance of Employee's duties
hereunder and for adherence to the covenants in this Agreement, Employee shall
be entitled to the compensation set forth on Exhibit A attached hereto and
incorporated herein by this reference (the "Compensation").
3.2. Employee understands and acknowledges that, except as otherwise
set forth in this Agreement, the Compensation will constitute the full and
exclusive consideration to be received by Employee for all services performed by
Employee in
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connection with the Company's employment of Employee, and for the performance of
all his promises and obligations under this Agreement.
3.3. Aside from the Compensation, the Company may adopt, or continue
in force, benefit plans for the benefit of its employees or certain of its
employees which may include, but not be limited to, group life insurance,
medical insurance, etc. The Company may terminate any or all such plans at any
time and may choose not to adopt any additional or replacement plans. Employee's
rights under any benefit plans now in force or later adopted by the Company
shall be governed solely by the terms of such plans; provided, however, that in
no event shall Employee's rights under any such benefit plans be less than those
of any other executive officer of the Company.
4. Duty to Devote Full Time and Avoid Conflict of Interest. Employee agrees
that during the Employment he shall devote his full-time efforts to his duties
as an employee of the Company. Employee further agrees that during the
Employment he shall not, directly or indirectly, engage or participate in any
activities which are in conflict with the best interests of the Company.
5. Compliance with Rules and Regulations. Employee agrees to comply with
the Company's rules, regulations and practices as they may from time to time be
adopted or modified, so long as they are uniformly applied to all employees.
6. Non-competition, Non-recruitment and Non-solicitation by Employee.
6.1. Employee agrees that, during the Employment, Employee will not
engage in any activity competitive with or adverse to the Company's business or
welfare, whether alone, as a partner, or as an officer, director, employee or
shareholder of any other corporation and shall not otherwise undertake planning
for or the organization of any business activity competitive with the Company's
business or combine or conspire with other employees or representatives of the
Company for the purpose of organizing any such competitive business activity.
This prohibition shall not include ownership of less than five percent (5%) of
the outstanding stock by Employee in a publicly traded corporation.
6.2. During the Employment and for a period of two (2) years following
the termination of the Employment, Employee shall not, directly or indirectly,
induce, solicit or influence or attempt to induce, solicit or influence any
person who is engaged or employed by the Company (whether part-time or full-time
and whether as an officer, employee, consultant, agent or advisor), to terminate
his or her employment or other engagement with the Company. Employee further
agrees that, during the term of this Agreement and for two (2) years after
termination of the Employment, Employee will not in any manner seek to engage or
employ any individual who is employed or engaged by the Company, as an officer,
employee, consultant, agent or advisor for any person or entity other than the
Company.
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6.3 Employee agrees that during the Employment and for two (2) years
after termination of the Employment, Employee shall not, directly or indirectly,
personally, or on behalf of or in conjunction with any person or entity, divert
or take away any client or customer of the Company.
7. Trade Secrets of the Company/Works and Property.
7.1 Employee acknowledges and understands that during the Employment,
Employee will have access to and will utilize and review information which
constitutes valuable, important and confidential trade secrets, as that term is
interpreted under the Uniform Trade Secrets Act (California Civil Code Section
3426 et seq.) and/or confidential and proprietary material and information of or
relating to the business of the Company necessary for the successful conduct of
the Company's business. This information includes, but is not limited to: (a)
listings of and data regarding the clients (past and current) of the Company
(collectively, the "Clients"); (b) information regarding potential customers and
clients; (c) data relating to the identity of the Clients of the Company; (d)
information regarding bidding, billing and pricing practices; (e) information
regarding the nature and type of services rendered to the Clients; (f) other
methodologies, computer programs, databases, processes, compilations of
information, results of proposals, job notes, reports and records, and (g)
information regarding the nature and type of software products sold to or under
development with any Client (all of which information is sometimes referred to
in this Agreement as the "Secrets"). The foregoing notwithstanding, the Secrets
shall not include information or data which is (i) in the public domain, (ii)
generally known in the information technology staffing services industry, (iii)
already known to Employee as of the date he began his employment with the
Company, or (iv) rightfully disclosed to Employee outside of the scope of his
employment with the Company by a third party not under a duty of confidentiality
to the Company. Employee understands further that the Secrets have been and will
be accumulated, by Employee and other personnel at the Company at considerable
expense to the Company (including but not limited to compensation paid to the
Company personnel dealing with the Secrets and the Clients), and that the
Company has and will continue to expend its resources in order to maintain
actively and vigorously the confidentiality of the Secrets, as such information
is extremely valuable to the Company, and well worth the expense of enforcement
and preservation of such confidentiality. Accordingly, Employee agrees as
follows:
(a) All of the Secrets shall be safeguarded and treated as
confidential by Employee.
(b) Any and all data, notes, letters, computer programs, email
records, reports, telephone records and all other written documentation
relating to the business of the Company (including but not limited to
the Secrets) that may be collected, compiled, written, reviewed or
conceived by Employee, whether set forth in tangible media or
intangible, from or by reason of services performed by Employee for the
Company shall become the sole and absolute property of the Company, and
Employee shall not assert or establish a claim for any statutory or
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common law right or any other possessory or proprietary right with
respect to any of the above.
(c) Employee shall hold the Secrets in strictest confidence
and shall not (i) disclose any Secrets to any person, corporation, firm,
or other entity, either during the Employment or afterward, or (ii) use
any Secrets in Employee's subsequent business or employment, without the
prior express written authorization of the Company; provided, however,
that Employee may disclose Secrets to the extent required to do so by a
subpoena lawfully issued in a judicial proceeding or arbitration.
(d) Employee shall not otherwise commit any act which shall
compromise the confidentiality of any Secrets, including but not limited
to making a copy of such property (whether electronic, paper or
otherwise) without the prior express written authorization of the
Company.
7.2 During the Employment, Employee shall disclose in writing, fully,
and on a timely basis, to the Company, any and all "Works and Property" (as such
term is herein defined) realized in connection with the performance of his
duties under this Agreement. Employee acknowledges and agrees that, during the
Employment any and all Works and Property shall constitute the sole and
exclusive property of the Company and Employee shall not have any rights thereto
and/or any interest therein. During the Employment, Employee shall assign,
transfer and convey to the Company, without further consideration, any and all
Works and Property in accordance with this Agreement. For purposes of this
Agreement, the term "Works and Property" shall mean any and all works and
property including, but not limited to, all intellectual properties, ideas,
inventions, concepts, products, improvements, innovations, discoveries,
developments, methods, formulas, techniques, software, know-how and writings
which are made, conceived, reduced to practice, developed, written, contributed
to or prepared by Employee whether or not patentable or copyrightable and
whether made solely by Employee or jointly with others. All Works and Properties
shall unconditionally be, become, and remain the sole and exclusive property of
the Company or any of its affiliates, successors, or assignees, as the case may
be. Employee will promptly execute, acknowledge and deliver all applications,
oaths, declarations and further documents and will provide such additional
assistance as the Company or its counsel may deem necessary or desirable to
evidence the Company's title to such Works and Property. This section does not
apply to Works and Property that qualifies as a non-assignable invention under
Section 2870 of the California Labor Code.
8. Confidential Information of Clients. All ideas, concepts, information
and written material disclosed to Employee by the Company, or acquired from any
of the Clients, and all financial, accounting, statistical, personnel, and
business data and plans of the Clients, are and shall remain the sole and
exclusive property and proprietary information of the Company, or said Client,
and are disclosed in confidence by the Company or permitted to be acquired from
the Clients in reliance on Employee's agreement to maintain them in
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confidence and not to use or disclose them to any other person except in
furtherance of the Company's business.
9. Return of Information. At the time of the termination of the Employment
or upon request, Employee agrees to deliver promptly to the Company all notes,
books, electronic data (regardless of storage media), correspondence and other
written or graphical records (including all copies thereof) in Employee's
possession or under Employee's control relating to any business, work, the
Clients or any other aspect of the Company, whether or not they contain any
Secrets, including but not limited to each original and all copies of all or any
part thereof.
10. Cooperation. Employee agrees to cooperate in good faith with the Company
in connection with any defense, prosecution, or investigation by the Company
regarding any actual or potential litigation, administrative proceeding, or
other such procedures, in which the Company may be involved as a party or
non-party from time to time.
11. Remedies; Injunctive Relief. In the event of a breach or threatened
breach by Employee of any of the provisions of this Agreement, Employee agrees
that the Company, in addition to and not in limitation of any other rights,
remedies, or damages available to the Company at law or in equity, shall be
entitled to a preliminary and a permanent injunction in order to prevent or
restrain any such breach by Employee or by Employee's partners, agents,
representatives, servants, employers, employees, and/or any and all persons
directly or indirectly acting for or with Employee.
12. Termination of Employment.
12.1 The Employment may be terminated by the Company with "Cause" (as
defined below) at any time upon written notice. Except as otherwise agreed in
writing or as otherwise provided by this Agreement as due and payable (or as
required by law), upon termination of the Employment by the Company with Cause,
the Company shall have no further obligation to Employee under this Agreement by
way of compensation or otherwise, but Employee's obligations under Sections 6
through 10, inclusive, shall continue after said termination of Employment.
12.2 The Employment may be terminated at any time (i) by the Company
without Cause (as defined below) by giving Employee thirty (30) days' advance
written notice of such termination or (ii) by Employee for Good Reason (as
defined below) by giving the Company thirty (30) days' advance written notice of
such termination. In the event that the Company terminates the Employment
without Cause or Employee terminates the Employment for Good Reason, the Company
shall (i) pay to Employee, in accordance with the Company's customary payroll
practices, the base salary component of the Compensation, and (ii) provide the
same health and life insurance benefits, in each case until the earliest to
occur of (A) the last day of the term of this Agreement specified in Section 1.2
above, (B) the expiration of twelve (12) calendar months after the effective
date of such termination of the Employment, (C) the date upon which Employee
becomes employed on a full-time basis (including but not limited to
self-employment, but only if
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Employee holds himself out to the public as being a self-employed consultant or
other businessman), or (D) the date upon which Employee violates any of Sections
6 through 10, inclusive. In addition, the Company shall pay Employee the
pro-rated portion of any incentive compensation (as described in Exhibit A
attached hereto) to which Employee was entitled for the fiscal year or quarter,
as applicable, in which the Employment was terminated. If the Company's medical
and/or life insurance plans do not allow Employee's continued participation in
such plan or plans during the period described above, then the Company shall pay
to Employee, in monthly installments, from the date on which Employee's
participation in such medical and/or life insurance, as applicable, is
prohibited for the remainder of the time period described in the second sentence
of this Section 12.2, the monthly premium or premiums which had been payable by
the Company with respect to Employee for such discontinued medical and/or life
insurance, as applicable.
12.3 [Intentionally left blank]
12.4 Employee may terminate the Employment without Good Reason at any
time by giving the Company thirty (30) days' advance written notice of such
termination. Upon Employee's termination of the Employment without Good Reason,
the Company shall have no further obligation to Employee under this Agreement by
way of compensation or otherwise (except for the obligations to (i) pay the base
salary component of the Compensation to which Employee may be entitled at the
time of such termination and (ii) provide the benefits required to be made
available under applicable law), but Employee's obligations under Sections 6
through 10, inclusive, shall continue after said termination of the Employment.
12.5 The Employment will terminate immediately upon Employee's death.
In such event, the Company shall (i) pay to Employee's estate, in accordance
with the Company's customary payroll practices, the base salary and any
dependents' health benefits, if applicable, components of the Compensation until
the earlier to occur of (A) the last day of the term of this Agreement specified
in Section 1.2 above or (B) the expiration of twelve (12) calendar months after
the effective date of such termination. Except for the payments expressly
provided in this Section 12.5, the Company shall have no further obligation to
Employee's estate under this Agreement by way of compensation or otherwise.
12.6 The Company may terminate the Employment at any time if Employee
becomes Disabled (as defined below) by giving Employee thirty (30) days' advance
written notice of such termination. In the event that the Company terminates the
Employment because Employee has become Disabled, the Company shall (i) pay to
Employee, in accordance with the Company's customary payroll practices, the base
salary component of the Compensation and (ii) provide the same health and life
insurance benefits, in each case until the earliest to occur of (A) the last day
of the term of this Agreement specified in Section 1.2 above, (B) the expiration
of twelve (12) calendar months after the effective date of such termination of
the Employment, (C) the date upon which Employee becomes employed on a full-time
basis (including but not limited to
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self-employment, but only if Employee holds herself out to the public as being a
self-employed consultant or other businesswoman), or (D) the date upon which
Employee violates any of Sections 6 through 10, inclusive. If the Company's
medical and/or life insurance plans do not allow Employee's continued
participation in such plan or plans during the period described above, then the
Company shall pay to Employee, in monthly installments, from the date on which
Employee's participation in such medical and/or life insurance, as applicable,
is prohibited for the remainder of the time period described in the second
sentence of this Section 12.6, the monthly premium or premiums which had been
payable by the Company with respect to Employee for such discontinued medical
and/or life insurance, as applicable.
12.7 As used in this Agreement, the following terms shall have the
meanings indicated:
(a) "Cause" shall mean an action or actions by Employee during
the Employment (including but not limited to inactions) including:
(i) refusal or failure to carry out any reasonable
direction from the Company;
(ii) a breach of the terms of this Agreement;
(iii) demonstrated negligence or misconduct in the
execution of his assigned duties;
(iv) habitual non-performance or incompetent performance
of his duties under this Agreement;
(v) conviction of a felony or other serious crime
involving moral turpitude;
(vi) engaging in fraud, embezzlement or other illegal
conduct;
(vii) a violation of any part of Sections 4 through 10,
inclusive;
(viii) imparting Trade Secrets as defined in Section 7 of
this Agreement to a third party, other than in the course of carrying
out Employee's duties;
(ix) failure or refusal to materially perform his duties
and responsibilities; or
(x) violation of any written policy or procedure of the
Company.
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(b) "Disabled" shall mean Employee's inability to perform the
essential functions of his job under this Agreement either with or
without reasonable accommodations, due to sickness, physical or mental
impairment or injury for a period of six (6) consecutive months or for
nine (9) months in any consecutive twelve (12) month period. In the
event Employee disputes the Company's determination that he is Disabled,
Employee shall give written notice of such dispute to the Company during
the thirty (30) day notice period prior to the proposed effective date
of such termination, and Employee and the Company shall thereupon each
select, within thirty (30) days of such notice from Employee, a
physician to evaluate whether Employee is Disabled. Such physicians
shall complete their evaluation and report to the Board of Directors
within thirty (30) days. If such physicians do not agree as to whether
Employee is Disabled, they shall promptly select a third physician to
further evaluate Employee, whose conclusion on such matter shall be
rendered within ten (10) days of his or her selection and shall be final
and binding on Employee and the Company.
(c) "Good Reason" shall mean any of the following:
(i) the assignment to Employee of duties inconsistent
with Employee's current position, duties, or responsibilities which is
sufficient to constitute a diminution of status with the Company;
(ii) a reduction by the Company in the base salary
component of the Compensation in effect on the date hereof or as the
same may be increased from time to time during the term of this
Agreement; and
(iii) any failure by the Company to obtain the assumption
of this Agreement by any successor or assign of the Company, if such
successor or assigns asserts the position that it is not bound by the
provisions hereof.
12.8 The rights and remedies provided in this Section 12 shall
constitute the exclusive rights and remedies available to Employee relating to
or arising from the termination of the Employment, including claims for breach
of contract.
12.9 No policies or procedures of the Company or benefits provided by
the Company, whether oral or written, express or implied, formal or informal,
are intended, nor shall they be construed to limit the right or ability of the
Company or Employee to terminate the Employment as set forth above. Except as
otherwise agreed in writing or as otherwise provided by this Agreement, upon
termination of the Employment, neither the Company nor Employee shall have any
further obligation to each other by way of compensation or otherwise.
12.10 The Company will undertake commercially reasonable efforts to
require any successor or assign (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company, to absolutely and unconditionally to assume and
agree to perform this Agreement in the
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same manner and to the same extent that the Company would be required to perform
this Agreement if no such succession or assignment had taken place. In any such
event, the term "the Company" as used in this Agreement shall mean any such
successor or assign which executes and delivers the assignment agreement
provided for in the immediately preceding sentence or which otherwise becomes
bound by the terms and provisions of this Agreement by operation of law.
13. Miscellaneous Provisions.
13.1 In the event that any of the provisions of this Agreement shall
be held to be invalid or unenforceable, then all other provisions shall
nevertheless continue to be valid and enforceable as though the invalid or
unenforceable parts had not been included in this Agreement. In the event that
any provision relating to the time period of any restriction imposed by this
Agreement shall be declared by a court of competent jurisdiction to exceed the
maximum time period which such court deems reasonable and enforceable, then the
time period of restriction deemed reasonable and enforceable by the court shall
become and shall thereafter be the maximum time period.
13.2 This Agreement shall be binding upon the heirs, executors,
administrators, and successors-in-interest of the parties hereto.
13.3 This Agreement shall be construed and enforced according to the
laws of the State of California, excluding its choice of law rules.
13.4 This Agreement supersedes all previous correspondence, promises,
representations, and agreements, if any, either written or oral, between the
Company and Employee. No provision of this Agreement may be modified except by a
writing signed by both the Company and Employee.
13.5 All notices, demands, requests, consents, approvals or other
communications (collectively "Notices") required or permitted to be given
hereunder or which are given with respect to this Agreement shall be in writing
and shall be personally served or deposited in the United States mail,
registered or certified, return receipt requested, postage prepaid, addressed as
set forth below, or such other address as such party shall have specified most
recently by written notice. Notices shall be deemed given on the date of service
if personally served. Notices mailed as provided herein shall be deemed given on
the third business day following the date so mailed:
To the Company: Emergent Information Technologies, Inc.
0000 XxxXxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attention: Chairman, Compensation Committee
Board of Directors
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with a copy to: Xxxxxxx & XxXxxxxx
000 Xxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxx X. Loss, Esq.
To Employee: Xxxxxx X. Xxxxxxx
_____________________
_____________________
with a copy to: _____________________
_____________________
_____________________
Attention:___________
13.6 Should any party institute any action or proceeding to enforce
this Agreement or any provision hereof, or for damages by reason of any alleged
breach of this Agreement or of any provision hereof, or for a declaration of
rights hereunder, the prevailing party in any such action or proceeding shall be
entitled to receive from the other party all costs and expenses, including
reasonable attorneys' fees, incurred by the prevailing party in connection with
such action or proceeding.
14. Survival. Notwithstanding any other provision of this Agreement, the
obligations of Employee pursuant to Sections 6, 7, 8, 9 and 10 of this Agreement
shall survive the termination of this Agreement.
15. Acknowledgment by Employee. Employee has carefully read and considered
the provisions of this Agreement and agrees that all of the above-stated
restrictions, obligations and promises are fair and reasonable and reasonably
required for the protection of the interests of the Company. Employee further
acknowledges that the goodwill and value of the Company is enhanced by these
provisions and that said enhancement is desired by Employee. Finally, Employee
indicates his acceptance of this Agreement by signing and returning the enclosed
copy of this Agreement where indicated below.
16. Counsel. The parties hereto have requested that counsel to the Company,
Xxxxxxx & XxXxxxxx, prepare this Agreement and acknowledge that in so doing that
such counsel is acting on behalf of the Company. Employee acknowledges that
Xxxxxxx & XxXxxxxx has previously served as and continues to serve as counsel to
the Company in other matters.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
EMERGENT INFORMATION TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Xxxxxx X. Xxxxx
Chairman, President and Chief Executive Officer
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------------------
Xxxxxx X. Xxxxxxx
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EXHIBIT A
COMPENSATION OF XXXXXX X. XXXXXXX
The following summarizes the compensation to which Xxxxxx X. Xxxxxxx
("Employee") shall be entitled under the terms of that certain Employment
Agreement dated November 13, 2001 by and between Emergent Information
Technologies, Inc. (the "Company") and Employee.
1. BASE SALARY. Employee's annual base salary from the Effective Date of
this Agreement until October 1, 2002 shall be $270,000 per year (the "Base
Salary"). On October 1, 2002, the Base Salary shall increase to $300,000. The
Base Salary shall be paid in accordance with the Company's standard payroll
policies for its executive officers.
2. INCENTIVE COMPENSATION. In addition to the Base Salary described above,
Employee will be eligible to receive incentive compensation the amount of which
shall be based upon the attainment by the Company or its subsidiaries of certain
financial performance targets established annually by the Board of Directors.
3. COMPLETION BONUS. If Employee remains employed as of September 30, 2003
and has submitted a satisfactory succession plan to the Board of Directors by no
later than August 1, 2003, Employee will be entitled to receive a one-time
completion bonus of $60,000 payable in a lump sum on September 30, 2003.
4. LEAVE CREDIT. During the Employment, and in addition to the Company
observed and posted holidays (normally 10 per year), Employee shall accrue paid
leave at a rate of 1.66 days per month (equaling a total of 20 days per year);
provided, however, that any such leave time, if not used, will be subject to the
Company's limitations on the maximum accrual; and, provided further, that
Employee shall use his best efforts to coordinate with the Chief Executive
Officer of the Company the dates upon which Employee shall use his aforesaid
leave time so as to minimize the negative impact upon the Company occasioned by
Employee's absence.
5. OTHER BENEFITS: Employee shall be entitled to participate in and receive
benefits under all profit-sharing plans, pension plans, group medical plans and
other benefit plans of the Company which the Company at any time maintains for
executive employees.
6. BUSINESS EXPENDITURES: Employee will be reimbursed on a monthly basis
for reasonable expenses incurred in connection with promoting and conducting the
business of the Company; provided, however, that (i) Employee shall present
reasonable documentation establishing the amount, date, place and essential
character of such expenditures, and (ii) any request for the reimbursement of
monthly expenditures totaling more than $4,000 must be approved by the Chief
Executive Officer and the Chief Financial Officer of the Company.
Exhibit A
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