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EXHIBIT 10.9
EMPLOYMENT AGREEMENT
BY AND BETWEEN
COMPASS KNOWLEDGE HOLDINGS, INC.
AND
XXXXXX XXXXXX
THIS EMPLOYMENT AGREEMENT (the "Agreement") is executed on May
1, 2000 to be effective as of May 1, 2000 (the "Commencement Date") by and
between Compass Knowledge Holdings, Inc., a Florida corporation (the "Company"),
and Xxxxxx Xxxxxx ("Employee").
WHEREAS, the Company is engaged in the distributed learning
business and other related businesses (such activities, present and future,
being hereinafter referred to as the "Business"); and
WHEREAS, the Company and Employee desire to enter into this
Agreement to memorialize their oral understanding, to assure the Company of the
services of Employee for the benefit of the Company and to set forth the
respective rights and duties of the parties hereto.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants, terms and conditions set forth herein, the Company and
Employee agree as follows:
ARTICLE I
EMPLOYMENT
1.1 EMPLOYMENT AND TITLE. As of the Commencement Date, the
Company employs Employee, and Employee accepts such employment, as Vice
President of the Company, all upon the terms and conditions set forth herein.
1.2 DUTIES. During the Initial Term and any and all Renewal
Terms (as hereinafter defined) hereof, Employee shall faithfully perform his
duties in accordance with this Agreement and the Bylaws of the Company, serve
the Company faithfully and to the best of his ability and devote substantially
all of his business time and attention, knowledge, energy and skills to the
Company. Employee shall be responsible for such matters as assigned to him by
the Chief Executive Officer and/or President of the Company which initially
shall be the normal day-to-day management, operation and maintenance of the
business development operations and affairs of the Company in accordance with
the Company's annual business plan, budget and assigned duties. Subject to the
directions of and limitations imposed by the Chief Executive Officer and/or
President of the Company, the Employee shall be responsible for interpretation
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and executive implementation of the corporate policies for his assigned area(s)
which shall be the Company's business development operations and functions as
set by the Board of Directors, the Chief Executive Officer and/or President of
the Company, and shall perform all the duties and have and exercise all rights
and powers usually pertaining and attributable, by law, custom, or otherwise,
with respect thereto. Subject to the directions of and limitations imposed by
the Chief Executive Officer and/or President of the Company, the Employee shall
have the authority to effectuate all business matters with respect to his
responsibilities and to execute such legal instruments as may be necessary to
carry out his duties in the name of the Company and on its behalf. Employee
shall coordinate and supervise the activities of all employees of the Company
under his control, have the power to employ and terminate the employment of all
such subordinate officers, agents, clerks, and other employees and have the
authority to fix and change, from time to time, the compensation of all such
officers, agents, clerks and other employees.
1.3 LOCATION. The principal place of employment and the
location of Employee's principal office shall be in Ocoee, Florida; provided,
however, Employee shall, when requested by the Board of Directors, or may, if he
determines it to be reasonably necessary, temporarily perform outside of Ocoee,
Florida such services as are reasonably required for the proper execution of his
duties under this Agreement.
1.4 REPRESENTATIONS. Each party represents and warrants to the
other that he/it has full power and authority to enter into and perform this
Agreement and that his/its execution and performance of this Agreement shall not
constitute a default under or breach of any of the terms of any agreement to
which he/it is a party or under which he/it is bound. Each party represents that
no consent or approval of any third party is required for his/its execution,
delivery and performance of this Agreement or that all consents or approvals of
any third party required for his/its execution, delivery and performance of this
Agreement have been obtained.
ARTICLE II
TERM
2.1 TERM. The term of Employee's employment hereunder (the
"Term") shall commence as of the Commencement Date and shall continue through
the third anniversary of the Commencement Date (the "Scheduled Termination
Date") unless renewed or earlier terminated pursuant to the provisions of this
Agreement. Assuming all conditions of this Agreement have been satisfied and
there has been no breach of the Agreement during its initial term, Employee may
extend the term for an additional three year term at Employee's election
("Extended Term").
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ARTICLE III
COMPENSATION
3.1 SALARY. As compensation for the services to be rendered by
Employee, the Company shall pay Employee, during the Term of this Agreement, an
annual base salary of not less than One Hundred Thirty Thousand Dollars
($130,000.00), which base salary shall accrue monthly (prorated for periods less
than a month) and shall be paid in equal bi-monthly installments, in arrears or
as the Employee and the Company otherwise agree. The base salary will be
reviewed annually, or, as appropriate, by the Chief Executive Officer and the
Compensation Committee. At any time the Salary may be increased for the
remaining portion of the term if so determined by the Chief Executive Officer
and the Compensation Committee of Employer after a review of Employee's
performance of his duties.
3.2 BONUSES. The Employer shall pay the Employee an annual
bonus (the "Annual Bonus") up to 80% of Employee's annual base salary as
determined by the Compensation Committee in accordance with the Company's Annual
Bonus Plan. The Annual Bonus, if any, shall be payable within ninety (90) days
after the end of the most recent fiscal year to which the Bonus relates.
3.3 NONQUALIFIED STOCK OPTIONS. The Company intends to grant
to Employee at some time in the future nonqualified options to acquire shares of
its common stock (the "Option Shares"). Such option shares shall be subject to
the terms and conditions established by the Compensation Committee of the
Company.
3.4 BENEFITS. Employee shall be entitled, during the Term
hereof, to the same medical, hospital, pension, profit sharing, dental and life
insurance coverage and benefits as are available to the Company's most senior
executive officers on the Commencement Date together with the following
additional benefits:
(a) An automobile allowance of $400.00 per month.
(b) The Company's normal vacation allowance for all employees
who are executive officers of the Company, but not less than three (3)
weeks annually, with the option to carry over unused vacation days.
(c) The Employee will be entitled to participate in any
benefit plan or program of the Employer which may currently be in
place or implemented in the future.
(d) During the Term, Employee will be entitled to receive, in
addition to and not in lieu of base salary, bonus or other
compensation, such as other benefits as Employer may provide for its
officers in the future.
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3.5 WITHHOLDING. Any and all amounts payable under this
Agreement, including, without limitation, amounts payable under this Article III
and Article VII, which are subject to withholding for such federal, state and
local taxes as the Company, in its reasonable judgment, determines to be
required pursuant to any applicable law, rule or regulation.
ARTICLE IV
WORKING FACILITIES, EXPENSES AND INSURANCE
4.1 WORKING FACILITIES AND EXPENSES. Employee shall be
furnished with an office at the principal executive offices of the Company, or
at such other location as agreed to by Employee and the Company, and other
working facilities and secretarial and other assistance suitable to his position
and reasonably required for the performance of his duties hereunder. The Company
shall reimburse Employee for moving expenses in an amount equal to $18,000.00
and all of Employee's reasonable expenses incurred while employed and performing
his duties under and in accordance with the terms and conditions of this
Agreement, subject to Employee's full and appropriate documentation, including,
without limitation, receipts for all such expenses in the manner required
pursuant to Company's policies and procedures and the Internal Revenue Code of
1986, as amended (the "Code") and applicable regulations as are in effect from
time to time.
4.2 INSURANCE. The Company may secure in its own name or
otherwise, and at its own expense, life, disability and other insurance covering
Employee or Employee and others, and Employee shall not have any right, title or
interest in or to such insurance other than as expressly provided herein.
Employee agrees to assist the Company in procuring such insurance by submitting
to the usual and customary medical and other examinations to be conducted by
such physicians(s) as the Company or such insurance company may designate and by
signing such applications and other written instruments as may be required by
any insurance company to which application is made for such insurance.
ARTICLE V
ILLNESS OR INCAPACITY
5.1 RIGHT TO TERMINATE. If, during the Term of this Agreement,
Employee shall be unable to perform in all material respects his duties
hereunder for a period exceeding six (6) consecutive months by reason of illness
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or incapacity, this Agreement may be terminated by the Company in its reasonable
discretion pursuant to Section 7.2 hereof.
5.2 RIGHT TO REPLACE. If Employee's illness or incapacity,
whether by physical or mental cause, renders him unable for a minimum period of
sixty (60) consecutive calendar days to carry out his duties and
responsibilities as set forth herein, the Company shall have the right to
designate a person to replace Employee temporarily in the capacity described in
Article I hereof; provided, however, that if Employee returns to work from such
illness or incapacity within the six (6) month period following his inability
due to such illness or incapacity, he shall be entitled to be reinstated in the
capacity described in Article I hereof with all rights, duties and privileges
attendant thereto.
5.3 RIGHTS PRIOR TO TERMINATION. Employee shall be entitled to
his full remuneration and benefits hereunder during such illness or incapacity
unless and until an election is made by the Company to terminate this Agreement
in accordance with the provisions of this Article.
5.4 DETERMINATION OF ILLNESS OR INCAPACITY. For purposes of
this Article V, the term "illness or incapacity" shall mean Employee's inability
to perform his duties hereunder substantially on a full-time basis due to
physical or mental illness as determined by a physician selected by the Company
and the Employee.
ARTICLE VI
CONFIDENTIALITY
6.1 CONFIDENTIALITY. During the Term of this Agreement and
thereafter, Employee shall not divulge, communicate, use to the detriment of the
Company, or for the benefit of any other business, firm, person, partnership or
corporation, or otherwise misuse, any "Confidential Information", pertaining to
the Company including, without limitation, all (i) data or trade secrets,
including secret processes, formulas or other technical data; (ii) production
methods; (iii) customer lists; (iv) personnel lists; (v) proprietary
information; (vi) financial or corporate records; (vii) operational, sales,
promotional and marketing methods and techniques; (viii) development ideas,
acquisition strategies and plans; (ix) financial information and records; (x)
"know-how" and methods of doing business; and (xi) computer programs, including
source codes and/or object codes and other proprietary, competition-sensitive or
technical information or secrets developed with or without the help of Employee.
Employee acknowledges that any such information or data he may have acquired was
received in confidence and by reason of his relationship to the Company.
Confidential Information, data or trade secrets shall not include any
information which: (a) at the time of disclosure is within the public domain;
(b) after disclosure becomes a part of the public domain or generally known
within the industry through no fault, act or failure to act, error, effort or
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breach of this Agreement by Employee; (c) is known to the recipient at the time
of disclosure; (d) is subsequently discovered by Employee independently of any
disclosure by the Company; (e) is required by order, statute or regulation, of
any governmental authority to be disclosed to any federal or state agency, court
or other body; or (f) is obtained from a third party who has acquired a legal
right to possess and disclose such information.
6.2 RECORDS. All documents, papers, materials, notes, books,
correspondence, drawings and other written and graphic records relating to the
Business of the Company which Employee shall prepare or use, or come into
contact with, shall be and remain the sole property of the Company and,
effective immediately upon the termination of the Employee's employment with the
Company for any reason, shall not be removed from the Company's premises without
the Company's prior written consent and any such documents, papers, materials,
notes, books, correspondence, drawings and other written and graphic records
upon request shall be returned to the Company.
ARTICLE VII
TERMINATION
7.1 TERMINATION FOR CAUSE. This Agreement and the employment
of Employee may be terminated by the Company "For Cause" under any one of the
following circumstances:
(a) Employee has committed any material act of fraud,
misappropriation or theft against the Company.
(b) Employee's default breach of any material provision of
this Agreement; provided, that Employee shall not be in default
hereunder unless (i) he shall have failed to cure such default or
breach within thirty (30) days of written notice thereof by the Company
to Employee or (ii) Employee shall have duly received notice of at
least three (3) prior instances of such breach or default (whether or
not cured by Employee).
(c) Employee engages in willful misconduct in the performance
of his duties hereunder; provided, that Employee shall not be in
default hereunder unless (i) he shall have failed to cure such default
or breach within fifteen (15) days of written notice thereof by the
Company to Employee, or (ii) Employee shall have duly received notice
of at least three (3) prior instances of such breach or default
(whether or not cured by Employee).
(d) At the election of the Employee.
A termination For Cause under this Section 7.1 shall be
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effective upon the date set forth in a written notice of termination delivered
to Employee.
7.2 TERMINATION WITHOUT CAUSE. This Agreement and the
employment of the Employee may be terminated "Without Cause" as follows:
(a) By mutual agreement of the parties hereto.
(b) At the election of the Company by its giving not less than
sixty (60) days prior written notice to Employee in the event of an
illness or incapacity described in Article 5.1.
(c) Upon the removal of Employee from the office of Vice
President of the Company or in the event the Company fails to afford
Employee the power and authority generally commensurate with the
position of Vice President.
(d) Upon Employee's death.
A termination Without Cause under Section 7.2(b) hereof shall
be effective upon the date set forth in a written notice of termination
delivered in accordance with the notice provisions of such sections. A
termination Without Cause under Sections 7.2(a) or (d) shall be automatically
effective upon the date of mutual agreement or the date of death of the
Employee, as the case may be. A termination Without Cause under Section 7.2(c)
shall be automatically effective upon the date such event takes place.
7.3 EFFECT OF TERMINATION FOR CAUSE. If Employee's employment
is terminated "For Cause":
(a) Employee shall be entitled to accrued base salary under
Section 3.1 hereof through the date of termination.
(b) Employee shall be entitled to accrued bonuses under
Section 3.2 and benefits under Section 3.4 hereof through the date of
termination.
(c) Employee shall be entitled to reimbursement for expenses
accrued through the date of termination in accordance with the
provisions of Section 4.1 hereof.
(e) All unvested Option Shares which may be granted by the
Company under Section 3.3 hereof shall be forfeited.
(f) Except as provided in Article XI, this Agreement shall
thereupon terminate and cease to be of any further force or effect.
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7.4 EFFECT OF TERMINATION WITHOUT CAUSE. If Employee's
employment is terminated "Without Cause":
(a) Employee shall be entitled to (i) six (6) month's base
salary, or (ii) the base salary for the remaining Term of this
Agreement, if less than six (6) months.
(b) Employee shall be entitled to reimbursement for expenses
accrued through the date of termination in accordance with the
provisions of Section 4.1 hereof.
(c) Employee shall be entitled to receive all amounts of
additional bonuses under Section 3.2 hereof through the expiration of
the Term hereof, which amounts shall be paid upon termination.
(d) Employee shall be entitled to receive all benefits as
would have been awarded under Section 3.4 hereof through the expiration
of the Term hereof, which benefits shall be awarded as and when the
same would have been awarded under the Agreement had it not been
terminated.
(e) All unvested Option Shares actually granted by the Company
under Section 3.3 hereof shall immediately vest in full but shall
remain subject to all other provisions of the Company's Year 2000 Stock
Option Plan.
(f) Except as provided in Article XI, this Agreement shall
thereupon terminate and cease to be of any further force or effect.
ARTICLE VIII
NON-COMPETITION AND NON-INTERFERENCE
8.1 NON-COMPETITION. Employee agrees that during the Term of
this Agreement and, in the case of a termination "For Cause" for a period of one
(1) year thereafter, Employee will not, directly, indirectly, or as an agent on
behalf of or in conjunction with any person, firm, partnership, corporation or
other entity, own, manage, control, join, or participate in the ownership,
management, operation, or control of, or be financially interested in or advise,
lend money to, or be employed by or provide consulting services to, or be
connected in any manner with any person engaged in Business within the United
States of America which the Company is engaging in its Business or has immediate
plans to engage in its Business.
8.2 NON-INTERFERENCE. Employee agrees that during the Term of
this Agreement and, in the case of a termination "Not For Cause", for a period
of one (1) year thereafter, Employee will not, directly, indirectly or as an
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agent on behalf of or in conjunction with any person, firm, partnership,
corporation or other entity, induce or entice any employee of the Company to
leave such employment or cause anyone else to do so.
8.3 SEVERABILITY. If any covenant or provision contained in
Article VIII is determined to be void or unenforceable in whole or in part, it
shall not be deemed to affect or impair the validity of any other covenant or
provision. If, in any arbitral or judicial proceeding, a tribunal shall refuse
to enforce all of the separate covenants deemed included in this Article VIII,
then such unenforceable covenants shall be deemed eliminated from the provisions
hereof for the purpose of such proceedings to the extent necessary to permit the
remaining separate covenants to be enforced in such proceedings.
8.4 EQUITABLE RELIEF FOR VIOLATIONS. Employee agrees that the
provisions and restrictions contained in this Section are necessary to protect
the legitimate continuing interests of the Company, its parent company and their
subsidiaries and that any violation or breach of these provisions will result in
irreparable injury to the Company, its parent company and their subsidiaries for
which a remedy at law would be inadequate and that, in addition to any relief at
law which may be available to the Company, its parent company or their
subsidiaries for such violation or breach and regardless of any other provision
contained in this Agreement, the Company, its parent company and their
subsidiaries shall be entitled to injunctive and other equitable relief as a
court may grant after considering the intent of this Section.
ARTICLE IX
INDEMNIFICATION
9.1. INDEMNIFICATION. The Employer shall to the full extent
permitted by law indemnify, defend and hold harmless Employee from and against
any and all claims, demands, liabilities, damages, losses and expenses
(including reasonable attorney's fees, court costs and disbursements) arising
out of the performance by him of his duties hereunder except in the case of his
willful misconduct and will carry reasonable directors and officers' insurance.
ARTICLE X
MISCELLANEOUS
10.1 NO WAIVERS. The failure of either party to enforce any
provision of this Agreement shall not be construed as a waiver of any such
provision, nor prevent such party thereafter from enforcing such provision or
any other provision of this Agreement.
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10.2 NOTICES. Any notice to be given to the Company and
Employee under the terms of this Agreement may be delivered personally, by
telecopy, telex or other form of written electronic transmission, or by
registered or certified mail, postage prepaid, and shall be addressed as
follows:
IF TO THE COMPANY: 0000 Xxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
IF TO EMPLOYEE: 0000 Xxxxxxxxxx Xx.
Xxxxxxxxxxx, XX 00000
Either party may hereafter notify the other in writing of any change in
address. Any notice shall be deemed duly given (i) when personally delivered,
(ii) when telecopied, telexed or transmitted by other form of written electronic
transmission (upon confirmation of receipt) or (iii) on the third day after it
is mailed by registered or certified mail, postage prepaid, as provided herein.
10.3 SEVERABILITY. The provisions of this Agreement are
severable and if any provision of this Agreement shall be held to be invalid or
otherwise unenforceable, in whole or in part, the remainder of the provisions,
or enforceable parts thereof, shall not be affected thereby.
10.4 SUCCESSORS AND ASSIGNS. The rights and obligations of the
Company under this Agreement shall inure to the benefit of and be binding upon
the successors and assigns of the Company, including the survivor upon any
merger, consolidation, share exchange or combination of the Company with any
other entity. Employee shall not have the right to assign, delegate or otherwise
transfer any duty or obligation to be performed by him hereunder to any person
or entity.
10.5 ENTIRE AGREEMENT. This Agreement supersedes all prior and
contemporaneous agreements and understandings between the parties hereto, oral
or written, and may not be modified or terminated orally. No modification,
termination or attempted waiver shall be valid unless in writing, signed by the
party against whom such modification, termination or waiver is sought to be
enforced. This Agreement was the subject of negotiation by the parties hereto
and their counsel. The parties agree that no prior drafts of this Agreement
shall be admissible as evidence (whether in any arbitration or court of law) in
any proceeding which involves the interpretation of any provisions of this
Agreement.
10.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida without
reference to the conflict of law principles thereof.
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10.7 SECTION HEADINGS. The section headings contained herein
are for the purposes of convenience only and are not intended to define or limit
the contents of said sections.
10.8 FURTHER ASSURANCES. Each party hereto shall cooperate and
shall take such further action and shall execute and deliver such further
documents as may be reasonably requested by the other party in order to carry
out the provisions and purposes of this Agreement.
10.9 GENDER. Whenever the pronouns "he" or "his" are used
herein they shall also be deemed to mean "he" or "his" or "it" or "its" whenever
applicable. Words in the singular shall be read and construed as though in the
plural and words in the plural shall be read and construed as though in the
singular in all cases where they would so apply.
10.10 COUNTERPARTS. This Agreement may be executed in
counterparts, all of which taken together shall be deemed one original.
ARTICLE XI
SURVIVAL
11.1 SURVIVAL. The provisions of Articles VI, VII, VIII, and
X, of this Agreement shall survive the termination of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
Compass Knowledge Holdings, Inc.,
a Florida Corporation,
By:
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Title:
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EMPLOYEE
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Xxxxxx Xxxxxx
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