1
EXHIBIT 10.9
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made as of the
15th day of December 1999 between Xxxxxx Xxxxxxxxx, an individual resident of
the State of Connecticut ("Executive"), and eShare Technologies, Inc., a Georgia
corporation with its principal place of business located in Norcross, Georgia
(the "Company").
WHEREAS, the Company desires to employ Executive as the Chief Operating
Officer of the Company, and Executive desires to accept said employment from the
Company; and
WHEREAS, the Company and Executive have agreed upon the terms and
conditions of Executive's employment with the Company and the parties desire to
express the terms and conditions in this employment agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and accepted, the parties hereby
agree as follows:
1. EMPLOYMENT OF EXECUTIVE. The Company hereby employs Executive, and Executive
hereby accepts such employment from the Company, under the terms of this
Agreement, beginning on December 15, 1999 and continuing until terminated as
provided herein.
2. DUTIES. Executive shall be employed on a full-time basis, as the Chief
Operating Officer of the Company. Executive's responsibilities as Chief
Operating Officer of the Company shall be to take such action to involve himself
in the general overall and day to day management and operations of the Company
in a manner as the Chief Executive Officer or Board of Directors of the Company
(the "Board of Directors") from time to time deems appropriate under the
circumstances.
3. BASE SALARY. Executive's base salary for the period December 15, 1999 through
December 31, 1999 is $5,250. Commencing on the January 1, 2000 and thereafter
while Executive is employed by the Company, the Executive's base salary shall be
$21,000 per month (the "Base Salary"). Base Salary earned for the period
December 15, 1999 through December 31, 1999, will be paid directly to Executive
by the Company (less lawful withholding). Beginning with Base Salary earned
after January 1, 2000, the Base Salary shall be paid to Executive by the Company
(less lawful withholding) as earned in arrears in accordance with the Company's
regular payroll practice as in effect from time to time as follows:
$15,000 per month to Executive
$ 6,000 per month to Performance Leadership LLC
4. BONUS. Executive shall be eligible to receive, in addition to the Base
Salary, a performance bonus that may be awarded and paid as determined by the
Board of Directors.
5. BENEFITS AND OTHER COMPENSATION. Commencing on the Effective Date of this
Agreement and during the Term of this Agreement, the Company shall provide the
benefits described below.
(a) Management Stock Incentive Program. The Executive shall be eligible
to participate in the Company's stock option, stock purchase, or other stock
incentive plan generally available to senior managers of the Company and shall
be eligible for the grant of stock options, restricted stock and other awards
thereunder. Upon execution of this Agreement and approval of the Board of
Directors and subject to the terms of the Company's 1997 Stock Option Plan (the
"Stock Option Plan") and the terms of this Agreement, the Company shall grant to
Executive, 50,000 stock options (the "Employment Options"). The Employment
Options shall have four year straight line vesting. The Executive shall be
eligible to participate in the Change in Control agreement offered to other
members of the executive team.
Page 1
2
(b) Paid Time Off. Executive shall have the right to paid time off in
accordance with the policy of the Company.
(c) Insurance and Other Benefits. The Company shall make available to
Executive the opportunity to subscribe to insurance coverage (at Executive's
expense, covering 100% of the insurance premium) for Executive in accordance
with the terms of the Company's insurance plan, if any, as it exists from time
to time and shall provide Executive with coverage under all other employee
benefits plans, programs and policies which the Company maintains from time to
time for the benefit of its executive employees.
(d) Expenses. Executive shall be reimbursed monthly by the Company for
the ordinary and necessary business expenses incurred by him in the performance
of his duties for the Company; provided that Executive shall first document said
business expenses in the manner generally required by the Company under its
standard employee business expense reimbursement policies and procedures.
Company will provide the use of a local apartment near the Company headquarters
and reimburse Executive the actual cost of four coach class round trip tickets
per month between Executive's residence in Connecticut and Atlanta, Georgia, the
cost of which is not to exceed $1,500 per month. Executive will use all
reasonable efforts to purchase airline tickets in a manner so as to minimize the
cost, consistent with reasonable planning and good business practice.
Executive will be responsible for his living and other expenses while in the
metropolitan Atlanta area.
6. TERM; TERMINATION.
(a) This Agreement and the Executive's employment hereunder may be
terminated as follows:
(i) immediately, without any notice by or to either party
hereto, upon the death of the Executive;
(ii) immediately, by the Company for the Disability of the
Executive upon delivery by the Company to the Executive of a Notice of
Termination;
(iii) immediately by the Company for Cause which cause has not
been cured within ninety (90) days (except in such instance where the
Cause cannot reasonably be cured) upon delivery by the Company to the
Executive of a Notice of Termination;
(iv) upon ninety (90) days prior written notice by the Company
other than for Cause upon delivery by the Company to the Executive of a
Notice of Termination; or
(v) upon ninety (90) days prior written notice by the
Executive upon delivery by the Executive to the Company of a Notice of
Termination.
(b) If the Executive's employment with the Company shall be terminated
during the Term:
(i) by reason of the Executive's death, the Company shall pay
to the Executive's estate or legal representative within thirty (30)
days after the Termination Date, a lump sum cash payment equal to the
Executive's Accrued Compensation, and any outstanding Employment
Options granted to the Executive under the Stock Option Plan, to the
extent (and only to that extent) that such Employment Options would
have been exercisable by Executive on the Termination Date, shall be
exercisable by the Executive's legal representative. Such options must
be exercised by Executive's legal representative, if at all, within
thirty (30) days after the Termination Date, provided, however, that no
option shall be exercisable after its expiration;
(ii) by the Company for Disability, the Company shall pay to
the Executive or Executive's legal representative within thirty (30)
days after the Termination Date, a lump sum cash
Page 2
3
payment equal to the Executive's Accrued Compensation, and any
outstanding Employment Options granted to the Executive under
the Stock Option Plan, to the extent (and only to the extent)
that such Employment Options would have been exercisable by
Executive on the Termination Date, shall be exercisable by the
Executive or Executive's legal representative. Such options
must be exercised by Executive or his legal representative, if
at all, within thirty (30) days after the Termination Date,
provided, however, that no option shall be exercisable after
its expiration;
(iii) by the Company for Cause, the Company shall pay
to the Executive within thirty (30) days after the Termination
Date a lump sum cash payment equal to the Executive's Accrued
Compensation. All unvested Employment Options, or any other
options or similar rights whatsoever, shall be immediately
forfeited by Executive upon termination by the Company for
Cause;
(iv) by the Company other than for Cause, the Company
shall pay to the Executive within thirty (30) days after the
Termination Date a lump sum cash payment equal to the
Executive's Accrued Compensation plus one month's Base Salary
(not to exceed six months) for each two months worked. All
unvested Employment Options, or any other options or similar
rights whatsoever, shall be forfeited by Executive upon
termination by the Company other than for Cause.
Notwithstanding the foregoing, all such vested Employment
Options shall be exercisable for a period of thirty (30) days
following the Termination Date, after which they shall lapse
and be void if not exercised; provided, however, that no
option shall be exercisable after its expiration.
(v) in the event the Executive resigns from his
employment with the Company pursuant to Section 6(b)(v)
hereof, then the Company shall pay to the Executive within
thirty (30) days after the Termination date a lump sum cash
payment equal to the Executive's Accrued Compensation and all
unvested Employment Options, or any other options or similar
rights whatsoever, shall be forfeited by Executive upon his
resignation. Notwithstanding the foregoing, all such vested
Employment Options shall be exercisable for a period of thirty
(30) days following the Termination Date, after which they
shall lapse and be void if not exercised; provided, however,
that no options shall be exercisable after its expiration
date.
(d) The pay and benefits provided for in this Section 6 shall be in
lieu of any other severance pay to which the Executive may be entitled under any
Company severance plan, program, practice or arrangement. The Executive's
entitlement to any other compensation or benefits shall be determined in
accordance with the Company's employee benefit plans and other applicable
programs, policies and practices then in effect.
(e) The benefits paid or provided herein shall be the only benefits
paid to the Executive or his estate.
7. EXECUTIVE WORKS. Executive agrees that Executive will promptly disclose to
the Company all Executive Works (defined below). Executive hereby irrevocably
assigns to the Company all right, title and interest in and to any and all
Executive Works, created by Executive at any time prior to the Effective Date
and Executive will execute, without requiring the Company to provide any further
consideration therefor, such confirmatory assignments, instruments and documents
as the Company deems necessary or desirable in order to effect such assignment.
Executive further agrees that all Executive Works created by him during the
course of his employment by the Company are the sole property of the Company and
hereby assigns such Executive Works to the Company, and Executive will execute,
without requiring the Company to provide any further consideration therefor,
such confirmatory assignments, instruments and documents as the Company deems
necessary or desirable in order to effect such assignment. The term "Executive
Works" as used in this Agreement means any and all works of authorship,
inventions, discoveries, improvements, designs, techniques, and work product,
whether or not patentable, and in whatever form, which are created, made,
developed or reduced to practice or caused to be created, made, developed or
reduced to practice by Executive during the course of the Executive's employment
by the Company, whether created within or without the Company's facilities and
before, during or after normal business hours, including all worldwide
copyrights, trade secrets, patent rights, and all confidential, proprietary and
Page 3
4
property rights therein, and that relate in any way to the current or future
business of the Company or that result from any work performed by Executive for
the Company.
8. PRODUCTS, NOTES, RECORDS AND SOFTWARE. All memoranda, notes, records and
other documents and computer software made or compiled by Executive during the
course of Executive's employment by the Company or made available to him during
the course of his employment by the Company, including, without limitation, all
customer data, billing information, service data, and other technical material,
confidential information and trade secrets of the Company and its affiliates,
shall be the Company's property and Executive shall deliver all such material
(and all copies thereof) to the Company within three (3) days after any
termination of his employment with the Company.
9. NONDISCLOSURE. Executive acknowledges and agrees that during his employment
by the Company, he has had, or will have, access to trade secrets and other
confidential or proprietary information peculiar to the Company, the disclosure
or use of which would injure the Company. Therefore, Executive agrees that he
will not use, reveal, or divulge any such trade secrets if such use, revelation,
or divulgence would violate the Georgia Trade Secrets Act of 1990. In addition,
Executive agrees that during his employment by the Company and two (2) years
thereafter, he will not, directly or indirectly, use, reveal, or divulge any
such confidential information or proprietary information. However, Executive
shall not be required to keep confidential any trade secrets or confidential or
proprietary information of the Company, which is or becomes publicly available,
is independently developed by Executive outside of the scope of his employment
relationship with the Company, or is rightfully obtained from third parties.
10. NONCOMPETITION. During the course of his employment by the Company for a
period of two (2) years thereafter, Executive agrees that he shall not, within
the continental United States of America, engage in or render the services he
performs or performed for the Company to any entity (other than the Company)
engaged in a business which is directly competitive with the business of the
Company (the "Business").
11. NONSOLITATION.
(a) Customers. During his employment by the Company, Executive shall
not, directly or indirectly without the Company's prior written consent, contact
any customer of the Company, with whom executive, in the ordinary course of his
employment by the Company, had a material contact ("Customer") for business
purposes unrelated to furthering the Business of the Company. For a period of
two (2) years following any termination of employment of Executive, Executive
shall not, directly or indirectly, (i) contact, solicit, divert or take away,
any Customer for purposes of, or with respect to, selling a product or service
which competes with the Business of the Company, or (ii) take any affirmative
action in regard to establishing or continuing a relationship with a Customer
for purposes of making, or which directly or indirectly results in, a sale of a
product or service which competes with the Business of the Company.
(b) Employees. During the employment of the Executive and for a period
of two (2) years following any termination of employment of Executive, Executive
shall not, directly or indirectly, recruit or hire, or attempt to recruit or
hire, any other employees of the Company who were employed by the Company during
the two (2) year period prior to any termination of Executive's employment with
Company (or shorter period if Executive had not then been employed by Company
for two (2) years or who becomes an employee of the Company during the two (2)
year period following any termination of Executive's employment with the
Company.
12. REMEDY FOR BREACH. Executive agrees that remedies at law available to the
Company for any actual or threatened breach by Executive of any of the covenants
contained in Sections 7 through 11 of this Agreement would be inadequate and
that the Company shall be entitled to specific performance by Executive of the
covenants in such paragraphs or injunctive relief against activities in
violation of such paragraphs, or both, by temporary or permanent injunction or
other appropriate judicial remedy, writ or order, in addition to any damages and
legal expenses (including attorney's fees) which the Company may be legally
entitled to recover. Executive acknowledges and agrees that the covenants
contained in Sections 7 through 11 of this Agreement shall be construed as
agreements independent of any other provisions of this or any other contract
between the parties hereto, and that the existence of any claim or cause of
Page 4
5
action by Executive against the Company, whether predicated upon this or any
other contract, shall not constitute a defense to the enforcement by the Company
of said covenants.
13. SURVIVAL. The provisions of Sections 7 through 12 shall survive termination
of this Agreement.
14. INVALIDITY OF ANY PROVISION. It is the intention of the parties hereto that
Sections 7 through 12 of this Agreement shall be enforced to the fullest extent
permissible under the laws and public policies of each state and jurisdiction in
which such enforcement is sought, but that the unenforceability (or the
modification to confirm with such laws or public policies) of any provision
hereof shall not render unenforceable or impair the remainder of this Agreement
which shall be deemed amended to delete or modify, as necessary, the invalid or
unenforceable provisions. The parties further agree to alter the balance of this
Agreement in order to render the same valid and enforceable.
15. CHOICE OF LAW/VENUE. This Agreement is being executed in the State of
Georgia and shall be construed and enforced in accordance with the internal laws
of the State of Georgia, without giving effect to the conflicts laws of such
state. Any action arising out of or related to this Agreement shall be brought
in the Superior Court of Gwinnett County, Georgia or federal court in the
Northern District of Georgia.
16. WAIVER OF BREACH. The waiver by the Company of a breach of any provision of
this Agreement by Executive shall not operate or be construed as a waiver of any
subsequent breach by Executive.
17. SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon and shall inure to the benefit
of the Company, its Successors and Assigns, and the Company shall require any
Successors and Assigns to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required to
perform it if no such succession or assignment had taken place.
(b) Neither this Agreement nor any right or interest hereunder shall be
assignable or transferable by the Executive, his beneficiaries or legal
representatives, except by will or by the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal personal representative.
18. NOTICES. All deliveries, notices, consents, requests, demands and affidavits
and other communications hereunder shall be in writing and shall be deemed to
have been duly given or delivered if delivered personally or mailed by certified
mail, return receipt requested, with proper postage prepaid or if delivered by a
recognized courier service contracting for same day or next day delivery, as
follows:
Company: eShare Technologies, Inc.
0000 Xxxxxxxxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxxxxx Xxxxx, Chairman and Chief Executive Officer
Executive: Xxxxxx Xxxxxxxxx
000 Xxxx Xxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000-0000
Any of the parties may designate such other address by written notice
to the other parties hereto. Any item so mailed shall be deemed to have been
delivered on the third business day following the date on which it is mailed.
Any item delivered by recognized courier service shall be deemed to have been
delivered on the first business day following the date on which it is delivered
to such courier.
Page 5
6
19. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties. This Agreement may not be changed orally but only by an agreement in
writing signed by the party against whom enforcement of any waiver, changes,
modification, extension, or discharge is sought.
20. DEFINITIONS. For purposes of this Agreement, the following terms shall have
the following meanings:
(a) "Accrued compensation" shall mean an amount, including all amounts
earned or accrued through the Termination Date but not paid as of the
Termination Date including, (i) Base Salary of the Executive, (ii) reimbursement
for reasonable and necessary expenses incurred by the Executive on behalf of the
Company as of the Termination Date, and (iii) the performance bonus, if any,
approved by the Board of Directors.
(b) "Cause" shall mean in the context of termination of the Executive's
employment if it is a result of:
(i) any act that the Board of Directors reasonably
determines constitutes, on the part of the Executive, fraud,
dishonesty, gross malfeasance of duty, or conduct grossly
inappropriate to the Executive's office; or
(ii) indictment of the Executive of a felony; or
(iii) willful failure to follow the direct
instructions of the Chairman and/or Chief Executive Officer;
or
provided, however, that in the case of clause (i)
above, such conduct shall not constitute Cause unless (A)
there shall have been delivered to the Executive a written
notice setting forth with specificity the reasons that the
Board of Directors believes the Executive's conduct
constitutes the criteria set forth in clause (i), (B) the
Executive shall have been provided the opportunity to be heard
in person by the Board of Directors (with the assistance of
the Executive's counsel if the Executive so desires) and (C)
after such hearing, the termination for Cause is approved by a
resolution adopted in good faith by two-thirds of the members
of the Board of Directors.
(c) "Disability" shall mean a physical or mental infirmity which
materially impairs the Executive's ability to substantially perform any of the
essential functions of his job with the Company for a period of 180 consecutive
days, as determined by an independent physician selected with the approval of
both the Company and the Executive.
(d) "Effective Date" shall mean December 15, 1999.
(e) "Notice of Termination" shall mean a written notice of termination
from the Company or the Executive which specifies an effective date of
termination, indicates the specific termination provision in this Agreement
relied upon, and sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated.
(f) "Successors and Assigns" shall mean, for a corporation, a
corporation or other entity acquiring all or substantially all the assets and
business of the Company (including this Agreement), and for any individual as
the Executive, the estate, successors or heirs, and/or the legal representative
of the Executive, whether by operation of law or otherwise.
(g) "Termination Date" shall mean, in the case of the Executive's
death, his date of death, and in all other cases, the date specified in the
Notice of Termination.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EXECUTIVE: COMPANY:
ESHARE TECHNOLOGIES, INC.
Page 6
7
BY:
--------------------- -----------------------------
Xxxxxx Xxxxxxxxx Xxxxxxxxxx Xxxxx, Chairman and
Chief Executive Officer
8
AMENDMENT TO EMPLOYMENT AGREEMENT
This is an amendment ("Amendment") made effective the 14th day of January 2000
to the employment agreement ("Agreement") made and entered into the 15th day of
December 1999 by and between Xxxxxx Xxxxxxxxx and eShare Technologies, Inc.,
hereinafter referred to as the "Company".
In consideration of the mutual covenants and agreements contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and accepted, the parties hereby agree as follows:
1. Definitions. For purposes of this Amendment, the following definitions shall
apply. Any terms not defined in this Amendment but defined in the Agreement
shall have the meaning set forth therein. In the event of a conflict between the
Agreement and this Amendment, the definitions of this Amendment shall control
with respect to the matters contained herein.
A. "Change in Control" shall mean the occurrence during the Term of any
of the following events:
(i) An acquisition (other than directly from the Company) of any voting
securities of the Company (the "Voting Securities") by any "Person" (as
the term person is used for purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934 (the "1934 Act")) immediately after
which such Person has "Beneficial Ownership" (within the meaning of
Rule 13d-3 promulgated under the 0000 Xxx) of a majority or more of the
combined voting power of the Company's then outstanding Voting
Securities; provided, however, that in determining whether a Change in
Control has occurred, Voting Securities which are acquired in a
"Non-Control Acquisition" (as hereinafter defined) or the acquisition
of voting securities by a Person who, immediately prior to such
acquisition, had Beneficial Ownership of 20% or more of the combined
voting power of the Company's then outstanding voting securities shall
not constitute an acquisition which would cause a Change in Control. A
"Non-Control Acquisition" shall mean an acquisition by (1) an employee
benefit plan (or a trust forming a part thereof) maintained by (x) the
Company, or (y) any corporation or other Person of which a majority of
its voting power or its equity securities or equity interest is owned
directly or indirectly by the Company (a "Subsidiary"), (2) the Company
or any Subsidiary, or (3) any Person in connection with a "Non-Control
Transaction" (as hereinafter defined).
(ii) Approval by a majority of the stockholders of the Company of:
(A) A merger, consolidation or reorganization involving the
Company, unless
(1) the stockholders of the Company, immediately before such
merger, consolidation or reorganization, own, directly or
indirectly, immediately following such merger, consolidation
or reorganization, at least a majority of the combined voting
power of the outstanding voting securities of the corporation
resulting from such merger or consolidation or reorganization
(the "Surviving Corporation") in substantially the same
proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or
reorganization, and
(2) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing
for such merger, consolidation or reorganization constitute at
least majority of the members of the board of directors of the
Surviving Corporation.
(A transaction described in clauses (1) and (2) shall herein
be referred to as a "Non-Control Transaction."); or
9
(B) An agreement for the sale or other disposition of all or
substantially all of the assets of the Company to any Person
(other than a transfer to a Subsidiary).
Notwithstanding anything contained in this Amendment to the contrary,
if the Executive's employment is terminated within ninety (90) days
prior to a Change in Control and the Executive demonstrates that such
termination (A) was at the request of a third party who has indicated
an intention or taken steps reasonably calculated to effect a Change in
Control (a "Third Party"), or (B) otherwise occurred in connection
with, or in anticipation of, a Change in Control, then for all purposes
of this Amendment, the date of a Change in Control with respect to the
Executive shall mean the date immediately prior to the date of such
termination of the Executive's employment.
2. Vesting of Options. If a Change in Control of the Company occurs, 100% of all
options to purchase stock of the Company previously granted by the Company to
Executive which are not yet vested at the date of the Change in Control shall
immediate vest and be fully exercisable as of such date. However, no such
options shall vest after the last date of employment with the Company.
3. Except as modified by this Amendment, the terms of the Agreement shall remain
in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date first above written.
EXECUTIVE: COMPANY:
XXXXXX XXXXXXXXX ESHARE TECHNOLOGIES, INC.
By:
----------------------- ---------------------------------------
Xxxxxx Xxxxxxxxx Xxxxxxxxxx Xxxxx
Chairman and Chief Executive Officer
