1
Exhibit 10.8 - Employment Agreement
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
this 17th day of January, 1996, by and between QUEST SALES SOFTWARE, INC., a
Delaware corporation (the "Company"), and XXXXXXX X. XXXXXXXX, an individual
("Executive").
WITNESSETH:
WHEREAS, the Company desires to retain the services of Executive, and
Executive desires to be employed by the Company, on the terms and conditions of
this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the Company and Executive, intending
to be legally bound, hereby agree as follows:
1. Employment. The Company hereby employs Executive and Executive
accepts such employment, upon the terms and conditions of this Agreement.
2. Term. The term of Executive's employment hereunder shall commence on
the date hereof, and shall continue until the third (3rd) anniversary date of
the Agreement, unless this Agreement is earlier terminated by either party, or
extended in writing by mutual agreement of the parties.
3. Position and Duties.
3.1 Position. Executive's initial title shall be President and
Chief Executive Officer.
3.2 Duties. Executive shall perform such duties, which shall
be commensurate with his abilities, experience, and performance, as are
determined, from time to time, by Executive and the Board of Directors of the
Company exercising their reasonable, good faith judgment. Initially, Executive's
duties shall be those customarily performed by the President and Chief Executive
Officer of a software development company, and he shall report directly to the
Board of Directors of the Company.
3.3 No Conflicting Duties. During the term hereof, Executive
shall not serve as an officer, director, employee, consultant or advisor to any
other business without the prior written consent of the Company's Board of
Directors. Executive hereby confirms that he is under no contractual commitments
inconsistent with his obligations set forth in this Agreement, and
1
2
that during the term of this Agreement, he will not render or perform services,
or enter into any contract to do so, for any other corporation, firm, entity or
person which are inconsistent with the provisions of this Agreement.
4. Compensation.
4.1 Base Salary. As compensation for all services to be
rendered by Executive under this Agreement, the Company shall pay to Executive a
base salary at an annual rate of at least One Hundred Twenty Five Thousand
Dollars ($125,000) (the "Base Salary"), less required withholdings, which shall
be paid on a regular basis in accordance with the Company's normal payroll
procedures and policies. The amount of the Base Salary shall be reviewed
annually by the Board of Directors.
4.2 Company Bonus Plan. The Company may from time to time
establish a bonus plan for Company management. If such a plan is adopted,
Executive will be in the class of employees eligible to participate in such
plan. Such a plan is subject to approval of the Board of Directors.
4.3 Stock Options. The Board of Directors of the Company is
planning to adopt an incentive plan pursuant to which it may grant incentive
stock options to employees of the Company. Executive will be in the class of
employees eligible to participate in such plan.
4.4 Participation in Benefit Plans. Executive shall be
included to the extent eligible thereunder in any and all plans of the Company
providing general benefits for the Company's employees, including but not
limited to health and disability insurance, 401(k) plan, vacation, sick days,
and holidays. Executive's participation in any such plan or program shall be
subject to the provisions, rules and regulations applicable thereto.
4.5 Business Expenses. In accordance with the Company's
policies established from time to time, the Company will pay or reimburse
Executive for all reasonable and necessary (as determined by the Board)
out-of-pocket expenses incurred by him in the performance of his duties under
this Agreement, subject to the presentment of appropriate vouchers.
5. Compensation Upon the Termination of Executive's Employment
by the Company.
5.1 Termination upon Disability, for Cause, or Voluntary. In
the event that Executive's employment is terminated pursuant to Section 10.1
(Disability), 10.3 (for Cause), or 10.4 (Voluntary Resignation), then Executive
shall be entitled to receive Executive's then current Base Salary, pro rated
through the date his employment is terminated, but no other compensation of any
kind or amount.
2
3
5.2 Termination upon Death. In the event Executive's
employment is terminated pursuant to Section 10.2 (Death), Executive's
beneficiary or a beneficiary designated by Executive in writing to the Company,
or in the absence of such beneficiary, Executive's estate, shall be entitled to
receive Executive's then current Base Salary pro rated through the end of the
pay period in which his death occurs, but no other compensation of any kind or
amount.
5.3 Termination Without Cause or Resignation for Good Reason.
In the event Executive is terminated by the Company pursuant to Section 10.5
(without Cause) or resigns pursuant to 10.6 (for Good Reason), the Company shall
pay to Executive, as a severance allowance, his then current Base Salary, pro
rated on a monthly basis, for the six month period following the date of
termination, plus the pro rata portion of his Base Salary for accrued but unused
vacation days.
All payments required to be made by the Company to Executive pursuant
to this Section 5 shall be paid in the manner and at the times specified in
Section 4.1 hereof.
6. Confidential Information. Except as permitted or directed by the
Company's Board, Executive shall not during the term of his employment under
this Agreement or at any time thereafter divulge, furnish, disclose or make
accessible (other than in the ordinary course of the business of the Company) to
anyone for use in any way any confidential or secret knowledge or information of
the Company which Executive has acquired or become acquainted with or will
acquire or become acquainted with prior to the termination of the period of his
employment by the Company (including employment by the Company prior to the date
of this Agreement), whether developed by himself or by others, concerning any
trade secrets, confidential or secret designs, processes, formulae, software or
computer programs, plans, devices or material (whether or not patented or
patentable, copyrighted or copyrightable) directly or indirectly useful in any
aspect of the business of the Company, any confidential customer or supplier
lists of the Company, any strategic or financial plans, any confidential or
secret development or research work of the Company, or any other confidential,
secret or nonpublic aspects of the business of the Company. Executive
acknowledges that the above-described knowledge or information constitutes a
unique and valuable asset of the Company acquired at great time and expense by
the Company, and that any disclosure or other use of such knowledge or
information other than for the sole benefit of the Company would be wrongful and
would cause irreparable harm to the Company both during and after the term of
this Agreement, Executive will refrain from any acts or omissions that would
reduce the value of the use of such knowledge or information to the Company. The
foregoing obligations of confidentiality, however, shall not apply to any
knowledge or information which is now published or which subsequently becomes
generally publicly known, other than as a direct or indirect result of the
breach of this Agreement by Executive.
3
4
7. Patent and Related Matters.
7.1 Disclosure and Assignment. Executive will promptly
disclose in writing to the Company complete information concerning each and
every invention, discovery, improvement, device, design, apparatus, practice,
process, software or computer program, method or product, whether or not
patentable or copyrightable, made, developed, perfected, devised, conceived or
first reduced to practice by Executive, either solely or in collaboration with
others, during Executive's employment under this Agreement, or for the period in
which a covenant not to compete is in effect hereunder as to Executive, whether
or not during regular working hours, relating to the business, products or
practices of the Company (hereinafter referred to as the "Inventions").
Executive, to the extent that he has the legal right to do so, hereby
acknowledges that any and all of the Inventions are the property of the Company
and hereby assigns and agrees to assign to the property of the Company any and
all of Executive's right, title and interest in and to any and all of the
Inventions without further payment.
7.2 Future Inventions. As to any future Inventions made by
Executive which relate to the business, products or practices of the Company and
which are first conceived or reduced to practice during the term of this
Agreement, or for the period in which a covenant not to compete is in effect
hereunder as to Executive, but which are claimed for any reason to belong to an
entity or person other than the Company, Executive will promptly disclose the
same in writing to the Company and shall not disclose the same to others if the
Company, within twenty (20) days thereafter, shall claim ownership of such
Inventions under the terms of this Agreement.
7.3 Limitations of Sections 7.1 and 7.2. The provisions of
Sections 7.1 and 7.2 shall not apply to any Invention meeting the following
conditions (an "Excluded Invention"):
(a) such Invention was developed entirely on Executive's own
time; and
(b) such Invention was made without the use of any Company
equipment, supplies, facilities or trade secret information; and
(c) such Invention does not relate (i) to the business of the
Company which initially is the manufacture and sale of sales automation contact
management software, or (ii) to the Company's actual or demonstrably anticipated
research or development; and
(d) such Invention does not result from any work performed by
Executive for the Company; and
(e) Executive informs the Company in writing within one month
after commencing work on any Invention that is to be an Excluded Invention and
again informs the Company in writing that such Invention has been developed
within one (1) month of the date when development of such Invention is complete,
provided, however, that Executive shall have
4
5
no disclosure obligation under this subparagraph (e) from and after the time he
is no longer employed by the Company.
7.4 Assistance of Executive. Upon the request of the Company
and without further compensation therefor, but at no expense to Executive, and
whether during the term of this Agreement or thereafter, Executive will do all
lawful acts, including, but not limited to, the execution of papers and lawful
oaths and the giving of testimony, that in the opinion of the Company, its
successors and assigns, may be necessary or desirable in obtaining, sustaining,
reissuing, extending and enforcing United States and foreign Letters Patents,
including, but not limited to, design patents, on any and all of the Inventions,
and for perfecting, affirming and recording the Company's complete ownership and
title thereto, and to cooperate otherwise in all proceedings and matters
relating thereto.
7.5 Records. Executive will keep complete, accurate and
authentic accounts, notes, data and records of all of the Inventions in such
manner and form as is reasonably requested by the Company. Such accounts, notes,
data and records shall be the property of the Company, and, upon its request,
Executive will promptly surrender the same to it or, if not previously
surrendered upon its request or otherwise, Executive will surrender the same,
and all copies thereof, to the Company upon the conclusion of his employment.
7.6 Obligations, Restrictions and Limitations. Executive
understands that the Company may enter into agreements or arrangements with
agencies of the United States Government, and that the Company may be subject to
laws and regulations which impose obligations, restrictions and limitations on
it with respect to inventions and patents which may be acquired by it or which
may be conceived or developed by employees, consultants or other agents
rendering services to it. Executive agrees that he shall be bound by all such
obligations, restrictions and limitations applicable to any said invention
conceived or developed by him during the term of this Agreement and shall take
any and all further action which may be required to discharge such obligations
and to comply with such restrictions and limitations.
8. Ventures. If, during the term of this Agreement, Executive is
engaged in or associated with the planning or implementing of any project,
program or venture involving the Company and a third party or parties, all
rights in the project, program or venture shall belong to the Company and shall
constitute a corporate opportunity belonging exclusively to the Company. Except
as approved by the Company's Board of Directors, Executive shall not be entitled
to any interest in such project, program or venture or to any commission,
finder's fee or other compensation in connection therewith other than the salary
to be paid to Executive as provided ln this Agreement.
5
6
9. Non-Competition; Solicitation of Customers and Solicitation of
Employees.
9.1 Non-Competition.
(a) Executive agrees that, during the period of his employment
hereunder and for a period of twenty four (24) months following the termination
of his employment with the Company for any reason, he shall not, directly or
indirectly, engage in competition with the Company within any state in the
United States, or any country, in which the Company is then conducting its
business (the "Territory") in any manner or capacity (e.g., as a management
consultant, principal, partner, officer, director, stockholder or management
employee) in any phase of the Company's business as then being conducted.
(b) Ownership by Executive, as a passive investment, of less
than 2 1/2% of the outstanding shares of capital stock of any corporation listed
on a national securities exchange or publicly traded in the over-the-counter
market shall not constitute a breach of this Section 9.
(c) Executive further agrees that, during the term of this
Agreement and for twenty-four (24) months after its termination, he will not,
directly or indirectly, assist or encourage any other person in carrying out,
directly or indirectly, any activity that would be prohibited by the above
provisions of this Section 9 if such activity were carried out by Executive,
either directly or indirectly, and in particular Executive agrees that he will
not, directly or indirectly, induce any employee of the Company to carry out,
directly or indirectly, any such activity.
9.2 Agreement Not to Solicit Customers. Executive agrees that
during his employment by the Company hereunder and for the period in which a
covenant not to compete is in effect hereunder as to Executive, he will not,
either directly or indirectly, on his own behalf or in the service or on behalf
of others, solicit, divert or appropriate, or attempt to solicit, divert or
appropriate, to any competing business (i) any person or entity whose account
with the Company was sold or serviced by or under the supervision of Executive
during the year preceding the termination of such employment, or (ii) any person
or entity whose account with the Company has been directly solicited at least
twice by the Company within the eighteen (18) month period prior to the date of
termination of employment.
9.3 Agreement Not to Solicit Employees. Executive agrees that
during his employment by the Company hereunder and for the three (3) year period
following the termination of such employment for any reason, he will not, either
directly or indirectly, on his own behalf or in the service or on behalf of
others solicit, divert or hire away, or attempt to solicit, divert or hire away
any person then employed by the Company or then serving as a sales
representative of the Company.
6
7
10. Termination.
10.1 Disability. Executive's employment shall terminate upon
Executive's becoming totally or permanently disabled for a period of six (6)
months or more. For purposes of this Agreement, the term "totally or permanently
disabled" or "total or permanent disability" means Executive's inability on
account of sickness or accident, whether or not job-related, to engage in
regularly or to perform adequately his assigned duties under this Agreement. A
reasonable determination by the Board of Directors of the existence of a
disability shall be conclusive for all purposes hereunder. In making such
determination of disability, the Board of Directors may utilize such advice and
consultation as the Board of Directors deems appropriate, but there is no
requirement of procedure or formality associated with the making of a
determination of disability.
10.2 Death of Executive. Executive's employment shall
terminate immediately upon the death of Executive.
10.3 Termination for Cause. The Company may, upon the
affirmative vote of a majority of the members of the Board of Directors of the
Company (with Executive abstaining), taken at a meeting at which Executive is
given an opportunity to be heard, terminate Executive's employment at any time
for "Cause" (as hereinafter defined) immediately upon written notice to
Executive. Such written notice shall set forth with reasonable specificity the
Company's basis for such termination. As used herein, the term "Cause" shall
mean: (i) the Executive has committed a wrongful act of a material nature
against the Company (e.g., embezzlement or sexual harassment), or (ii) the
Executive has been negligent in carrying out any of his material duties as an
employee, so as to cause material harm to the Company or that is likely to cause
material harm to the Company or (iii) after receiving written notice, the
Executive continues to willfully or habitually refuse to follow the directions
given by the Board of Directors, or (iv) Executive has committed an act of fraud
or dishonesty or other acts of moral turpitude or has used illegal drugs or any
other illegal substance, or (v) the Executive has breached any material covenant
or obligation of any written agreement between the Executive and the Company.
10.4 Resignation. Executive's employment shall be terminated
on the earlier of the date that is three (3) months following the written
submission of Executive's resignation to the Board or the earlier date such
resignation is accepted by the Board.
10.5 Termination Without Cause. Upon the affirmative vote of a
majority of the members of the Board of Directors of the Company (with Executive
abstaining), taken at a meeting at which Executive is given an opportunity to be
heard, the Company may terminate Executive's employment without cause, effective
upon written notice to Executive. Termination "without cause" shall mean
termination of employment on any basis other than termination of Executive's
employment hereunder pursuant to Sections 10.1, 10.2, 10.3 or 10.4.
7
8
10.6 Resignation for Good Reason. Executive's employment shall
be terminated on the date he submits written notice to the Board of his
resignation for Good Reason. For purposes of this Agreement, Good Reason means a
breach by the Company of any material covenant or obligation of this Agreement
which has not been cured within thirty (30) days after written notice of such
noncompliance has been given by Executive to the Company.
10.7 Surrender of Records and Property. Upon termination of
his employment with the Company, Executive shall deliver promptly to the Company
all records, manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables, calculations or copies thereof, which are the
property of the Company and which relate in any way to the business, products,
practices or techniques of the Company, and all other property, trade secrets
and confidential information of the Company, including, but not limited to, all
documents which in whole or in part contain any trade secrets or confidential
information of the Company, which in any of these cases are in his possession or
under his control.
11. Assignment. This Agreement shall not be assignable, in whole or in
part, by either party without the written consent of the other party, except
that the Company may, without the consent of Executive, assign its rights and
obligations under this Agreement to any corporation, firm or other business
entity (i) with or into which the Company may merge or consolidate, or (ii) to
which the Company may sell or transfer all or substantially all of its assets or
of which 50% or more of the equity investment and of the voting control is
owned, directly or indirectly, by, or is under common ownership with, the
Company. Upon such assignment by the Company, the Company shall obtain the
assignees' written agreement enforceable by Executive to assume and perform,
from and after the date of such assignment, the terms, conditions, and
provisions imposed by this Agreement upon the Company. After any such assignment
by the Company and such written agreement by the Assignee, the Company shall be
discharged from all further liability hereunder and such assignee shall
thereafter be deemed to be the Company for the purposes of all provisions of
this Agreement including this Section 11.
12. Injunctive Relief. Executive agrees that it would be difficult to
compensate the Company fully for damages for any violation of the provisions of
this Agreement, including without limitation the provisions of Sections 6, 7, 9
and 10.6. Accordingly, Executive specifically agrees that the Company shall be
entitled to temporary and permanent injunctive relief to enforce the provisions
of this Agreement. This provision with respect to injunctive relief shall not,
however, diminish the right of the Company to claim and recover damages in
addition to injunctive relief.
13. Miscellaneous.
13.1 Governing Law. This Agreement is made under and shall be
governed by and construed in accordance with the laws of the State of Arizona.
8
9
13.2 Prior Agreements. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof and supersedes
all prior agreements and understanding with respect to such subject matter, and
the parties hereto have made no agreements, representations or warranties
relating to the subject matter of this Agreement which are not set forth herein.
13.3 Withholding Taxes. The Company may withhold from any
benefits payable under this Agreement all federal, state, city or other taxes as
shall be required pursuant to any law or governmental regulation or ruling.
13.4 Amendments. No amendment or modification of this
Agreement shall be deemed effective unless made in writing signed by the parties
hereto.
13.5 No Waiver. No term or condition of this Agreement shall
be deemed to have been waived nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
13.6 Severability. To the extent any provision of this
Agreement shall be invalid or unenforceable, it shall be considered deleted here
from and the remainder of such provision and of this Agreement shall be
unaffected and shall continue in full force and effect. In furtherance and not
in limitation of the foregoing, should the duration or geographical extent of,
or business activities covered by any provision of this Agreement be in excess
of that which is valid and enforceable under applicable law, then such provision
shall be construed to cover only that duration, extent or activities which may
validly and enforceably be covered. Executive acknowledges the uncertainty of
the law in this respect and expressly stipulates that this Agreement shall be
given the construction which renders its provisions valid and enforceable to the
maximum extent (not exceeding its express terms) possible under applicable law.
13.7 Survival. Sections 6, 7, 8, 9, 10.7, 11, 12 and 13 shall
survive termination of this Agreement.
9
10
IN WITNESS WHEREOF, the parties have executed and sealed this Agreement
as of the day and year set forth above.
QUEST SALES SOFTWARE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Its President
"COMPANY"
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
XXXXXXX X. XXXXXXXX
"EXECUTIVE"
10
