EXHIBIT 10.29
XXXXXX XXXXXXX EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") dated as of January 18, 1996 is
made by and between Engineering Animation, Inc., an Iowa corporation
(hereinafter referred to as the "Company"), and Xxxxxx Xxxxxxx (hereinafter
referred to as the "Employee"), with reference to the following facts:
WHEREAS, the Company is engaged in the business of selling computer
animation products and services; and
WHEREAS, the Company desires to employ Employee on the terms and conditions
of this Agreement to render services to the Company in connection with the
Company's business operations; and
WHEREAS, Employee desires to be employed by the Company on the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties, intending to be
legally bound, do hereby agree as follows:
1. SERVICES. The Company employs Employee in a management position
supervising software development for the purpose of obtaining services from
Employee for the Company's business operations, and Employee agrees to perform
such services on the terms and conditions of this Agreement and services and
responsibilities indicated in the offer letter dated January 18, 1996. During
the term of this Agreement, Employee shall make Employee's services available
to the Company, at the Company's reasonable request at the Company's offices in
Ames, Iowa, and at the other locations as determined necessary by the Company.
Employee shall devote Employee's entire time, attention and best efforts to the
business of the Company.
2. TERM. The term of this Agreement shall commence as of the date first
above written and terminate one year hence unless renewed for another one year
term. This Agreement will terminate upon the occurrence of any of the
following events:
A. The Employee's death.
B. Mutual agreement of Employee and Company;
C. Disability of Employee that continues for more than three (3)
consecutive months but only if, in the Employee's attending physician's
opinion, the Employee will be disabled for an additional three (3) months.
D. The Company is dissolved, or adjudicated bankrupt.
E. Termination for cause as provided for in Section 8.
3. COMPENSATION FOR SERVICES.
A. The Company shall compensate Employee under ten-ns described in
the offer letter dated January 18, 1996. These terms may be modified by mutual
written agreement of the parties.
4. EMPLOYEE'S STATUS UNDER AGREEMENT. The parties agree and acknowledge
that Employee shall at all times act in the capacity of an employee under this
Agreement, and nothing in this Agreement shall be construed to create the
relationship of an independent contractor, partner, joint venture, or any other
relationship or status other than that of an employee. Nothing in this
Agreement shall prohibit the Employee from owning stock of the Company.
5. NON-COMPETITION Provision. The parties agree that Employee shall not
engage (either directly or indirectly) in competition with, or solicit any
client, account or location of, Company.
A. Employee acknowledges that Employee's services to be rendered to
Company in the aforesaid capacity are of a special and unusual character which
have a unique value to Company, the loss of which cannot adequately be
compensated by damages in an action at law. In view of (a) the unique value to
Company of the services of Employee for which Company has employed Employee;
and (b) the confidential information to be obtained by or disclosed to Employee
as an employee of Company; and as a material inducement to Company to employ
Employee and to pay to Employee the compensation for such services to be
rendered for Company by Employee (it being understood and agreed by the parties
hereto that such compensation shall also be paid and received in consideration
hereof), Employee covenants and agrees as follows:
(1) During Employee's employment by Company and for a period of one
(1) year after s/he ceases to be employed by Company, Employee shall not,
directly or indirectly, as principal or agent, or in any other capacity,
solicit or divert business from any client, account or location of Company.
(2) Employee agrees that during the term of this Agreement, and, for
a period of one (1) year after termination of this Agreement, s/he will not,
within the United States or Canada, directly or indirectly, as principal or
agent, or in any other capacity, own, manage, operate, participate in or be
employed by or otherwise be interested in, or connected in any manner with, any
person, firm, corporation or other enterprise which directly competes with the
business of the Company at the time of the termination of this Agreement.
Nothing herein contained shall be construed as denying Employee the right to
own publicly-traded securities of any such corporation to the extent of an
aggregate of 2% of the outstanding shares thereof.
(3) During Employee's employment by Company and for a period of
one (1) year after s/he ceases to be employed by Company, Employee shall
not, directly or indirectly, solicit for employment or employ any employee of
Company.
(4) Notwithstanding anything in this Agreement to the contrary, this
Agreement shall terminate and become null and void if the Employee's
employment with the Company is terminated pursuant to Section 2.D hereof.
B. Employee covenants and agrees that, if s/he violates any of
Employee's covenants or agreements under Section 5.A hereof, Company shall be
entitled to an accounting and repayment of all profits, compensation,
commissions, remuneration's or benefits which Employee directly or indirectly
has realized and/or may such remedy shall be in addition to and not in
limitation of any injunctive relief or other rights or remedies to which
Company is or may be entitled at law or in equity or under this Agreement.
C. (1) Employee has carefully read and considered the provisions of
Sections 5.A and 5.B hereof, and having done so, agrees that the restrictions
set forth in such paragraphs (including, but not limited to, the time period
of restriction and the geographical areas of restriction set forth in Section
5.A hereof) are fair and reasonable and are reasonably required for the
protection of the interests of Company, its officers, directors and other
employees.
(2) In the event that, notwithstanding the foregoing, any part
of the covenants set forth in Section 5.A hereof shall be held to be invalid
or unenforceable, the remaining parts thereof shall nevertheless continue to
be valid and enforceable as though the invalid or unenforceable parts had not
been included therein. In the event that any provision of Section 5.A hereof
relating to time period and/or areas of restriction shall be declared by a
court of competent jurisdiction to exceed the maximum time period or areas
such court deems reasonable and enforceable, said time period and/or areas or
restriction shall be deemed to become and thereafter be the maximum time
period and/or areas which such court deems reasonable and enforceable.
6. CONFIDENTIALITY. Employee acknowledges that, in and as a result of
Employee's employment hereunder, s/he will be making use of, acquiring and/or
adding to confidential information of a special and unique nature and value
relating to such matters as Company's trade secrets, systems, procedures,
manuals, confidential reports and lists of customers or clients, as well as the
nature of any other services rendered by Company, the equipment and methods
used and preferred by Company's customers or clients, and the fees paid by such
customers or clients. As a material inducement to Company to enter into this
Agreement and to pay to Employee the compensation referred to in Section 3
hereof, Employee covenants and agrees that s/he shall not, at any time during
or following the term of Employee's employment hereunder, directly or
indirectly, divulge or disclose any of such confidential information (which
shall not include any information available in the public domain or from third
parties) which has been obtained by or disclosed to Employee's as a result of
Employee's employment
by Company. In the event of a breach or threatened breach by the employee of
any of the provisions of this Section 6, Company, in addition to and not in
limitation of any other rights, remedies or damages available to Company at
law or in equity, shall be entitled to a permanent injunction in order to
prevent or to 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 her.
Notwithstanding this Section 6, nothing in this Agreement shall be construed
to prevent Employee from observing and complying with all laws, ordinances,
rules and regulations of the Federal, State, County and Municipal authorities
applicable to the business to be conducted by the Company.
7. DELIVERY OF MATERIALS. Employee agrees that upon the termination of
Employee's employment s/he will deliver to the Company all documents, papers,
materials and other property of the Company relating to its affairs which may
then be in Employee's possession or under Employee's control.
8. TERMINATION FOR CAUSE. Notwithstanding any other provision hereof,
Company may terminate Employee's employment under this Agreement at any time
for cause. Such termination shall be evidenced by written notice thereof to
the Employee, which notice shall specify the cause for termination. For
purposes hereof, the term "cause" shall include, without limitation, theft of
corporate property, a material breach of this Agreement, a material violation
of law, or unsatisfactory work performance.
9. REMEDIES OF THE COMPANY. Employee agrees that in the event of a
material breach by Employee of this Agreement, s/he shall thereby relinquish
all rights to any amounts payable under Section 3 hereof, but shall be required
to comply with the provisions of Sections 5, 6 and 7 hereof. Upon any such
breach, the Company shall be entitled, if it so elects, to institute and
prosecute proceedings at law or in equity to obtain damages with respect to
such breach or to enforce the specific performance of this Agreement by
Employee or to enjoin Employee from engaging in any activity in violation
thereof. Employee agrees that because Employee's services to the Company are
of such unique an extraordinary character, a suit at law may be an inadequate
remedy with respect to a breach by Employee of Sections 5, 6 and 7 hereof, and
that upon any such breach or threatened breach by Employee's of such Sections
the Company shall be entitled, in addition to any other lawful remedies that
may be available to it, to injunctive relief.
10. NOTICES. All notices under this Agreement shall be in writing and
shall be effective either (a) when delivered in person at the address set forth
below, or (b) three (3) business days after deposit in a sealed envelope in the
United States mail, postage prepaid, by registered or certified mail, return
receipt requested, addressed to the recipient as set forth below, whichever is
earlier.
All notices to the Company shall be sent to:
Xxxxx X. Xxxx, Esquire
Vice President and General Counsel
Engineering Animation, Inc.
ISU Research Park, Suite 300
0000 Xxxxx Xxxx Xxxxx
Xxxx, XX 00000
All notices to Employee shall be sent to the address of Employee last shown
on the records of the company.
Such addresses may be changed by notice given in accordance with this
Section.
11. SEVERABILITY. The provisions of this Agreement shall be deemed
severable, and the invalidity or unenforceability of the other provisions
hereof.
12. ASSIGNMENT. This Agreement may not be assigned by either party
without prior written consent of the other. Employee may not delegate
Employee's duties under this agreement to another without the Company's prior
written consent.
13. MISCELLANEOUS. This Agreement may not be changed nor can any
provision hereof be waived except by an instrument in writing duly signed by
the party to be charged, and for all purposes constitutes a separate and
independent agreement. This Agreement shall be interpreted, governed and
controlled by the laws of the State of Iowa. Any dispute based upon this
Agreement shall be resolved by action filed in Iowa District court in Story
County, Iowa. This Agreement shall continue in effect in the event of a merger
or sale of the Company into or to another entity or the transfer of
substantially all of the assets of the Company to another entity. The
provisions of Sections 5, 6, and 7 hereof shall survive any termination of this
Agreement (except that Section 5 shall not survive the termination of this
Agreement if such termination is a result of the liquidation and winding up of
the business of the Company).
14. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties, covenants of
undertakings, other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and
year first above written.
ENGINEERING ANIMATION, INC.
BY: /S/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Vice President Administration and General Counsel
EMPLOYEE
/S/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx
