EMPLOYMENT AGREEMENT
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THIS Employment Agreement (the "Agreement"), effective this 29th day of
September, 1999, is made by and among XXXXXXXXXXX.XXX, INCORPORATED
("HomeSeekers"), a Nevada corporation, and XXXX X. XXXXXXX ("Employee").
WHEREAS, HomeSeekers, YMLS, Incorporated, a Nevada corporation ("Sub"),
Real Estate Information, Inc. a Kentucky corporation ("REI"), Employee, D. Xxxx
Xxxxxxx, and Xxxx Xxxxxxxx, Trustee of the Xxxxxxx Childrens' Trust, have
entered into that certain Agreement and Plan of Merger of even date herewith
(the "Merger Agreement");
WHEREAS, pursuant to the closing of the Merger Agreement, HomeSeekers
wishes to employ Employee as Executive Vice President of HomeSeekers' MLS
Division, with such other duties and responsibilities as HomeSeekers may
reasonably assign to Employee consistent with the nature and character of such
employment (the "Position");
WHEREAS, pursuant to the closing of the Agreement and Plan of Merger,
Employee wishes to accept such employment subject to the terms and conditions of
this Agreement;
NOW, THEREFORE, pursuant to the closing of the Agreement and Plan of
Merger, in consideration of such employment and other valuable consideration,
receipt of which is hereby acknowledged, HomeSeekers and Employee agree as
follows:
SECTION 1. EMPLOYMENT.
HomeSeekers hereby employs Employee, and Employee hereby accepts
employment, as Executive Vice President of HomeSeekers' MLS Division, with such
other duties and responsibilities as HomeSeekers may reasonably assign to
Employee consistent with the nature and character of such employment.
SECTION 2. TERM.
2.1 Term. The term of this Agreement shall be three years, beginning on
October 1, 1999 (the "Commencement Date").
2.2 Termination of Employment by Death. Employee's employment with
HomeSeekers shall terminate automatically upon Employee's death.
2.3 Termination of Employment by Disability. HomeSeekers shall have the
right to discharge Employee during any period in which Employee is disabled.
Employee shall be considered disabled if, based upon the results of a qualified
physician's examination, Employee is prevented, after reasonable accommodation
by HomeSeekers, from properly performing his duties due to a mental or physical
illness, sickness, or other condition for a period of ninety (90) days in any
twelve (12) month period.
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2.4 Termination of Employment for Cause. HomeSeekers shall have the
right to discharge Employee at any time for cause. For this purpose, "cause"
shall mean the occurrence of any of the following, while Employee is employed by
HomeSeekers:
(a) Employee willfully engages in any misconduct that
demonstratably and materially injures HomeSeekers or
any subsidiary of HomeSeekers, monetarily or
otherwise;
(b) Employee fails to perform any lawful directive or
duty consistent with the Position assigned to him by
HomeSeekers' Chief Executive Officer or his designee
for more than ten (10) days after being delivered a
written demand for performance that identifies such
failure;
(c) Employee is convicted in a final non-appealable
manner of, or pleads nolo contendere to, (i) any
criminal violation involving dishonesty, fraud, or
breach of trust; or (ii) any felony;
(d) Employee commits any material act of dishonesty,
fraud, misrepresentation or other act of moral
turpitude;
(e) Employee willfully or habitually neglects any of the
Employee's duties that he is required to perform
under the terms of this Agreement for a period of
more than ten (10) business days after being
delivered a written demand for performance that
identifies such failure;
(f) Employee engages in gross misconduct; or
(g) Employee knowingly violates any fiduciary duty owed
to HomeSeekers.
2.5 Termination of Employment for Any Other Reason. HomeSeekers may
terminate Employee's employment at any time upon thirty (30) days written notice
to Employee.
2.6 Obligations of Employee on Termination. Employee acknowledges and
agrees that all property, including keys, credit cards, books, manuals, records,
reports, notes, contracts, customer lists, confidential information, copies of
any of the foregoing and any equipment furnished to Employee by HomeSeekers,
belong to HomeSeekers and shall be promptly returned to HomeSeekers upon
termination of employment.
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2.7 Obligations of HomeSeekers upon Termination. If Employee's
employment is terminated by HomeSeekers, this Agreement shall terminate as
provided by its terms and HomeSeekers' obligations to Employee under this
Agreement shall be limited to (i) the prorated payment of Employee's salary
through the date of termination to the extent not paid by then; (ii) the payment
of earned and accrued bonus or incentive payments due Employee, if any, at the
time of termination under any bonus or incentive plans in which Employee
participated prior to termination; and (iii) the payment of any reimbursable
business expenses that were incurred by Employee prior to termination in
accordance with HomeSeekers' policies and that were not reimbursed by
HomeSeekers at the time of the termination of this Agreement. As of the date of
termination of this Agreement, HomeSeekers' obligations to Employee under this
Agreement shall terminate and HomeSeekers will have no further obligation to pay
Employee or his estate, beneficiaries, or legal representatives any compensation
or any other amounts, except as otherwise provided by law.
2.8 Obligations of HomeSeekers upon Termination Other than for Cause.
If Employee's employment is terminated by HomeSeekers other than for cause, this
Agreement shall terminate as provided by its terms and HomeSeekers' obligations
to Employee under this Agreement shall be limited to (i) payment of a sum equal
to twelve (12) months base salary specified in Section 3.1 of this Agreement;
(ii) the payment of earned bonus or incentive payments due Employee, if any, at
the time of termination under any bonus or incentive plans in which Employee
participated prior to termination; (iii) the payment of any reimbursable
business expenses that were incurred by Employee prior to termination in
accordance with HomeSeekers' policies and that were not reimbursed by
HomeSeekers at the time of the termination of this Agreement; and (iv) stock
options granted to Employee pursuant to 3.4 hereunder shall immediately vest as
of the date of any such termination as though the date of termination had
occurred after the last day of the next succeeding date of this Agreement; e.g.,
if termination occurs during the second year of employment, all options that
would otherwise vest on the second anniversary of the Commencement Date will
immediately vest as of the date of termination (in addition to the previously
vested first year options). As of the date of termination of this Agreement, and
on payment of any sums due hereunder, HomeSeekers' obligations to Employee under
this Agreement shall terminate and HomeSeekers will have no further obligation
to pay Employee or his estate, beneficiaries, or legal representatives any
compensation or any other amounts, except as otherwise provided by law.
SECTION 3. COMPENSATION.
3.1 Base Salary. As compensation for services rendered under this
Agreement, Employee shall be entitled to receive a salary of One Hundred Ten
Thousand Dollars ($110,000) per year. Such salary shall be payable bi-weekly in
accordance with HomeSeekers' customary practices for peer employees. HomeSeekers
shall withhold and deduct from the salary all taxes required by federal and
state laws and any other authorized deductions. HomeSeekers will review
Employee's salary at least annually. HomeSeekers may in its sole discretion
increase Employee's base salary.
3.2 Commissions. Unless Employee's commission plan is changed or
modified pursuant to Section 3.2(e) of this Agreement, Employee shall be paid
sales commission on the following basis:
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(a) Employee shall be paid (i) Three Thousand Dollars ($3,000)
for his direct "up front" sales to new customers of MLS systems with a Net Sales
Price of up to Sixty Thousand Dollars ($60,000); (ii) Three Thousand Dollars
($3,000) plus ten percent (10%) of the portion of the Net Sales Price exceeding
$60,000 of his direct "up front" sales to new customers of MLS systems; (iii)
five percent (5%) of Net Sales Price of ongoing maintenance and other services
performed by HomeSeekers in connection with an MLS system directly sold by
Employee; and (iv) Twenty-five Cents ($0.25) for each active listing sent to
xxx.xxxxxxxxxxx.xxx from a real estate broker or other entity that has sent its
listings to xxx.xxxxxxxxxxx.xxx for the twelve (12) previous months. For purpose
of this Agreement, "Net Sales Price" shall mean HomeSeekers' actual invoice
price, exclusive of shipping charges and sales tax, if any, less customary trade
discounts actually granted to the purchaser of any of the above-described
products.
(b) Employee's sales commission shall be deemed earned when
payment for the above-described products and services is received in full by
HomeSeekers from the customer.
(c) Sales commissions shall be paid to Employee within 20 days
of the end of each calendar month based on payments received by HomeSeekers from
customers during the preceding calendar month.
(d) Employee shall not be entitled to any commissions on
orders from customers who later cancel or refuse to accept delivery of such
orders. If a customer cancels a portion of an order, Employee's commission on
that order shall be reduced proportionately. In any such event, the amount of
commission previously paid to Employee on sales of the above-described products
that have since been returned or not accepted by a customer shall be deducted by
HomeSeekers from any commissions earned and due to Employee.
(e) HomeSeekers reserves the right to change or modify the
commission plan annually.
3.3 Bonus. In addition to the annual base salary set forth in paragraph
3.1 of this Agreement and the commissions set forth in paragraph 3.2 of this
Agreement, Employee shall be entitled to a quarterly target bonus that shall be
based on performance standards established by HomeSeekers President of the MLS
Division and that shall equal a maximum bonus opportunity of thirty-five percent
(35%) of the then current salary for the preceding quarter to the extent that
the Employee attains the maximum performance standards. The performance
standards applied to Employee shall be established no later than thirty (30)
days following the Commencement Date, and may include individual and corporate
objectives, as well as qualitative and quantitative standards.
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3.4 Stock Options. Pursuant to the HomeSeekers 1996 Stock Option Plan,
HomeSeekers shall grant Employee 50,000 common stock options on the Commencement
Date. Pursuant to the HomeSeekers 1996 Stock Option Plan, the per share price
required to exercise each stock option granted hereunder shall be the closing
bid price of the stock on the date of grant. One-third of the stock options
granted hereunder shall vest on the first anniversary of the Commencement Date,
provided that Employee remains employed by HomeSeekers. One-third of the stock
options granted hereunder shall vest on the second anniversary of the
Commencement Date, provided that Employee remains employed by HomeSeekers. The
remaining one-third of the stock options granted hereunder shall vest on the
third anniversary of the Commencement Date, provided that Employee remains
employed by HomeSeekers. Each stock option granted hereunder shall have a life
of three years after vesting.
SECTION 4. FRINGE BENEFITS.
4.1 Welfare Benefit Plans. As Employee becomes eligible, Employee may
participate in and shall receive benefits under welfare benefit plans, policies,
and programs, including medical, dental, disability, and life insurance plans
and programs made available by HomeSeekers to other peer employees of
HomeSeekers.
4.2 Retirement Plans. As Employee becomes eligible, Employee shall be
entitled to participate in all retirement plans, policies and programs made
available by HomeSeekers to other peer employees of HomeSeekers.
4.3 Business Expenses. HomeSeekers shall reimburse Employee for all
reasonable business-related expenses incurred by Employee in connection with his
employment with HomeSeekers, including entertainment, travel, meals, and lodging
in accordance with the policies, practices, and procedures in effect generally
with respect to other peer employees of HomeSeekers.
4.4 Changes by Company. HomeSeekers reserves the right to modify,
suspend, or discontinue any and all of the above-mentioned plans, practices,
policies, and programs at any time as long as such action is taken generally
with respect to all peer employees of HomeSeekers.
SECTION 5 EMPLOYEE OBLIGATION.
5.1 Duties of Employee. Employee, as Executive Vice President of
HomeSeekers MLS Division, shall perform such duties and responsibilities as
HomeSeekers may reasonably assign to Employee which are consistent with the
nature and the character of the Position in accordance with the best interest of
HomeSeekers, subject to the direction and authority of the President of MLS 2000
or his designee. The parties agree that during the performance of this
Agreement, Employee shall remain located in and operate from Cincinnati, Ohio
and Employer shall not require Employee to change his principal place of
residence or business location for any reason. Employee shall travel on
HomeSeekers business as is reasonably required in the discharge of his duties,
but shall generally not be required to travel in excess of one-third of the
time.
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5.2 Services to HomeSeekers only. The Employee shall devote his
productive time, ability and attention during the normal working day to the
business of HomeSeekers during the term of this Agreement. The Employee shall
not directly or indirectly render any services of a business, commercial or
professional nature to any person or firm that is engaged in a business similar
to that of or in direct competition with the Employer without the prior written
consent of HomeSeekers.
5.3 Company Policies. Employee agrees to abide by the policies, rules,
regulations or usages applicable to Employee as established by HomeSeekers for
all employees from time to time and provided to Employee in writing, and to
perform the duties assigned to him faithfully and loyally.
5.4 Limitations on Authority. Employee shall comply with the policies
set forth in HomeSeekers' document entitled "Delegation of Spending Authority,"
and all amendments thereto. Notwithstanding any other provision in this
Agreement to the Contrary, Employee shall not take any of the following actions
on behalf of HomeSeekers or any of its subsidiaries without the express, written
prior approval of HomeSeekers' Chief Executive Officer:
(a) Borrow or obtain credit or execute any guarantee;
(b) Permit any customer of HomeSeekers to become indebted
to HomeSeekers outside of the ordinary course of
business;
(c) Purchase or cause the expenditure of funds for
capital equipment;
(d) Sell or transfer any capital asset of HomeSeekers;
(e) Execute any contract or make any commitment for the
purchase or sale of HomeSeekers' products outside of
the ordinary course of business;
(f) Execute any lease of real or personal property; and
(g) Issue or cause to be issued any public announcement
or press release with respect to HomeSeekers'
financial results.
SECTION 6. ACCESS TO CONFIDENTIAL INFORMATION; NONCOMPETE.
6.1 Covenant Not to Compete.
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(a) Employee acknowledges that HomeSeekers has created and
maintains Internet web sites at URL XxxxXxxxxxx.xxx and at URL XxxxXxx.xxx on
which it displays multiple listing data, real estate brokers and agents, and
provides related services. The above enumerated items are referred to in this
Agreement as the "Internet MLS Business Activities" of HomeSeekers and / or its
subsidiaries as of the date of this Agreement. Employee acknowledges that
HomeSeekers has established MLS 2000 for the purpose of providing, marketing,
and servicing Internet based MLS systems. Employee acknowledges that Employee
has been employed in a management capacity by REI, which is in the business of
providing, marketing, and servicing legacy and/or Internet based MLS systems.
Employee acknowledges that, by virtue of the closing of the Agreement and Plan
of Merger, REI has been merged into a subsidiary of HomeSeekers and has thereby
become a subsidiary of HomeSeekers, and that the confidential information,
customers, and other assets of REI have become the property of HomeSeekers and
its subsidiaries. Employee acknowledges that, in connection with the foregoing,
HomeSeekers and its subsidiaries have accumulated valuable Confidential
Information including, but not limited to, trade secrets, know-how, technology,
contracts, copyrights, trademarks, patents, software, products, proprietary
information, marketing plans, sources of supply, business strategies, customer
lists, prospects, source codes, object codes, and other intellectual property
and business records(the "Confidential Information"). "Confidential Information"
does not include: (i) any information in the public domain; or (ii) any
information received unsolicited from a third party under no obligation of
secrecy. Employee recognizes and acknowledges that all such Confidential
Information shall be and remain the property of HomeSeekers. Employee further
acknowledges that, as a key management employee, Employee will be involved, on a
high level, in the development, implementation and management of the business
strategies and plans of MLS 2000. By virtue of Employee's unique and sensitive
position and special background, employment of Employee by a competitor of
HomeSeekers represents a serious competitive danger to HomeSeekers, and the use
of Confidential Information about HomeSeekers' business, strategies and plans
can and would constitute a valuable competitive advantage over HomeSeekers.
(b) In view of the foregoing, Employee agrees to maintain as
secret and confidential all Confidential Information described in Section 6.1(a)
of this Agreement relating to HomeSeekers. During Employee's employment by
HomeSeekers and after the termination of Employee's employment, Employee shall
not, without prior written authorization and consent of HomeSeekers' Chief
Executive Officer, or as may otherwise be required by law or legal process, use
or communicate or disclose any such Confidential Information for as long as such
Confidential Information remains confidential.
(c) In view of the foregoing, Employee covenants and agrees
that during the period of Employee's employment and for a period of one (1) year
thereafter, Employee shall not directly or indirectly:
(i) entice, persuade, or induce any individual who
presently is, or at any time during the period of his employment hereunder was
an employee of HomeSeekers or any HomeSeekers subsidiary, to terminate or
refrain from renewing or extending his or her employment with HomeSeekers or any
HomeSeekers subsidiary or to become employed by or enter into a contractual
relationship with Employee or a business in which Employee is involved in
business activities which are directly in competition with the Internet MLS
Business Activities of HomeSeekers or any HomeSeekers subsidiary;
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(ii) engage or be engaged, in any capacity, directly
or indirectly, including but not limited as employee, agent, consultant,
partner, joint venturer, independent contractor, manager, executive, owner or
security holder (except as a passive investor holding less than a 1% equity
interest in any enterprise) in any business entity engaged in business
activities which are directly in competition with the Internet MLS Business
Activities of HomeSeekers or any HomeSeekers subsidiary;
(iii) call upon any person who is, at that time, an
employee of HomeSeekers or any HomeSeekers subsidiary in a management capacity
for the purpose or with the intent of enticing such employee away from or out of
the employ of HomeSeekers or any HomeSeekers subsidiary;
(iv) call upon any person or entity which is, at that
time, or which has been, within one (1) year prior to that time, a customer of
HomeSeekers or any HomeSeekers subsidiary for the purpose of soliciting or
selling products or services in direct competition with the Internet MLS
Business Activities of HomeSeekers or any HomeSeekers subsidiary;
(v) call upon any prospective acquisition candidate
of HomeSeekers or any HomeSeekers subsidiary known to Employee during his
employment by HomeSeekers, on the Employee's own behalf or on behalf of any
competitor.
(vi) disclose or contact customers, whether in
existence or proposed, of HomeSeekers or any HomeSeekers subsidiary to any
person, firm, partnership, corporation or business for any reason or purpose
which is directly competitive with the Internet MLS Business Activities of
HomeSeekers or any HomeSeekers subsidiary.
The geographic scope of this covenant not to compete shall be any market in
which HomeSeekers or any HomeSeekers subsidiary displays real estate listings or
markets multiple listing services.
6.2 Continuing Obligations. Subject to the limitations of Section
6.1(c), this entire Section 6 of this Agreement shall survive the termination or
expiration of this Agreement. Employee agrees that, for one (1) year following
his termination of employment with HomeSeekers, Employee shall inform
HomeSeekers of the identification of Employee's employer and the nature of such
employment or of Employee's self-employment.
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6.3 Injunctive Relief. The parties agree and acknowledge that the
restrictions contained in this Section are reasonable in scope and duration, and
are necessary to protect the Internet MLS Business Activities of HomeSeekers and
its subsidiaries. The parties intend that the covenants contained in this
Section shall be construed as a series of separate covenants, (a) one for each
country, county, city and state (or comparable political subdivision) in the
geographic scope set forth in Section 6.1 of this Agreement, and, within such
territorial divisions, (b) one for each month to which Employee is bound by such
covenants. Except for geographic coverage, each such separate covenant shall be
deemed identical in terms to the covenant contained in the preceding paragraphs.
If, in any judicial proceeding, a court shall refuse to enforce any of the
separate covenants (or any part thereof) deemed included in such paragraphs,
then such unenforceable covenant (or such part) shall be deemed eliminated from
this Agreement for the purpose of those proceedings to the extent necessary to
permit the remaining separate covenants (or portions thereof) to be enforced by
such court. It is the intent of the parties that the covenants set forth herein
be enforced to the maximum degree permitted by applicable law. In the event that
the provisions of this Section should ever be deemed to exceed the scope, time
or geographic limitations of applicable law regarding covenants not to compete,
then such provisions shall be reformed to the maximum scope, time or geographic
limitations, as the case may be, permitted by applicable laws. The parties
further agree and acknowledge that any breach of this Section will cause
irreparable injury to HomeSeekers and upon any breach or threatened breach of
any provision of this Section, HomeSeekers shall be entitled to injunctive
relief, specific performance or other equitable relief, without the necessity of
posting bond.
6.4 Other Remedies. The undertakings herein shall not be construed as
any limitation upon the remedies HomeSeekers might, in the absence of this
Agreement, have at law or in equity.
SECTION 7. GENERAL PROVISIONS.
7.1 Entire Agreement. This Agreement contains the entire understanding
of the parties in respect of its subject matter and supersedes all prior
agreements and understandings (oral or written) between or among the parties
with respect to such subject matter.
7.2 Waiver. This Agreement may not be modified, amended, supplemented,
canceled or discharged, except by written instrument executed by all parties.
The failure of any party to enforce any of the provisions of this Agreement
shall not be deemed a waiver of any provisions or of the right of the party
thereafter to enforce any provisions.
7.3 Assignment. This Agreement is personal to Employee and shall not be
assigned by Employee. Any such assignment shall be null and void.
7.4 Severability. In case any provision of this Agreement shall, for
any reason, be held to be invalid, unenforceable, or illegal, such provision
shall be severed from this Agreement, and such invalidity, unenforceable or
illegality shall not affect any other provisions of this Agreement.
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7.5 Counterparts; Facsimile. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument. Executed copies of this
Agreement of this Agreement may be delivered by facsimile, and delivery of
executed facsimile copies to the parties and their counsel shall be deemed to be
a delivery of a duplicate original and sufficient delivery to result in entry to
this Agreement by the transmitting party; provided, however, that within ten
(10) days thereafter a signed duplicate original shall be forwarded to the party
to whom a facsimile copy was forwarded.
7.6 Governing Law, Jurisdiction and Waiver of Venue. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Nevada regardless of the fact that any of the parties hereto may be or may
become a resident of a different country, state, or jurisdiction. Any suit or
action arising out of this Agreement shall be filed in a court of competent
jurisdiction within the County of Washoe, State of Nevada. The parties hereby
consent to the personal jurisdiction of such courts within Washoe County, State
of Nevada. The parties hereby waive any objections to venue in such courts
within Washoe County, State of Nevada.
7.7 Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered (and shall
be deemed delivered) by certified or registered mail (first class postage
pre-paid), guaranteed overnight delivery, or facsimile transmission if such
transmission is confirmed by delivery by certified or registered mail (first
class postage pre-paid) or guaranteed overnight delivery, to the following
addresses and facsimile numbers (or to such other addresses or facsimile numbers
which such party shall designate in writing to the other party):
(a) if to HomeSeekers:
XxxxXxxxxxx.xxx, Incorporated
0000 Xxxxx XxXxxxxx Xxxx., Xxxxx 00
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxx, Chairman/CEO
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx
000 Xxxxxxx Xxxx
Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to the Employee:
Xxxx X. Xxxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
Telephone: (000) 000-0000
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Facsimile:
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Cors & Xxxxxxx
000 X. Xxxx Xxxx Xxx, Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
7.8 Attorneys' Fees. In the event of any dispute between the parties
arising out of this Agreement, the prevailing party shall be entitled, in
addition to any other rights and remedies it may have, to recover its reasonable
attorney fees and costs.
7.9 Acknowledgment by Employee. Employee represents that he is
knowledgeable and sophisticated as to business matters, including the subject
matter of this Agreement, that he has read this Agreement, and that he
understands its terms. Employee acknowledges that prior to assenting to the
terms of this Agreement he has been given a reasonable time to review it, to
consult with counsel of his own choice, and to negotiate at arms length with
HomeSeekers as to its terms and contents.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
XXXXXXXXXXX.XXX, INCORPORATED,
a Nevada corporation
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: Chief Executive Officer
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EMPLOYEE:
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
