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EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of
December 17, 1999, by and between INFORMATION ON DEMAND, INC., a Florida
corporation (the "Company"), and XXXXXX X. XXXXXX (hereinafter called the
"Executive").
R E C I T A L S
The Executive and the Company have agreed that the Executive shall be
employed by the Company pursuant to the terms and conditions hereinafter set
forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. Employment.
1.1 Employment and Term. The Company hereby agrees to employ the
Executive and the Executive hereby agrees to serve the Company on the terms and
conditions set forth herein.
1.2 Duties of Executive. During the term of this Agreement, the
Executive shall serve as Vice President and Chief Operating Officer of the
Company, and shall diligently perform all services as may be assigned to him by
the Board of Directors or the Chief Executive Officer of the Company,
consistent with Executive's position and experience, and shall exercise such
power and authority as may from time to time be delegated to him by the Board
or the Chief Executive Officer of the Company. The Executive shall devote his
full time and attention to the business and affairs of the Company, render such
services to the best of his ability, and use his best efforts to promote the
interests of the Company.
2. Term.
2.1 Initial Term. The initial term of this Agreement, and the
employment of the Executive hereunder, shall commence on January 1, 2000 (the
"Commencement Date") and shall expire on December 31, 2000, unless sooner
terminated in accordance with the terms and conditions hereof (the "Initial
Term").
2.2 Renewal Terms. At the end of the Initial Term, this
Agreement shall automatically renew for successive one year terms, subject to
earlier termination of this Agreement as provided herein.
2.3 Expiration Date. The date on which the term of this
Agreement shall expire (including the date on which any renewal term shall
expire), is sometimes referred to in this Agreement as the Expiration Date.
3. Compensation.
3.1 Base Salary. The Executive shall receive an initial base
salary at the annual rate of One Hundred Twenty Thousand Dollars ($120,000)
(the "Base Salary"), with such Base Salary payable in installments consistent
with the Company's normal payroll schedule, subject to applicable withholding
and other taxes. The Base Salary shall be reviewed, at least annually, for
merit increases and may, by action and in the discretion of the Board, be
increased at any time or from time to time.
3.2 Bonuses. During the term of this Agreement, beginning
January 1, 2000, the Executive shall be eligible to receive bonuses ("Incentive
Compensation") pursuant to the Information On Demand, Inc. Incentive
Compensation Bonus Program, as may be amended from time to time (the "Incentive
Compensation Plan") which shall
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in the aggregate be up to fifty percent (50%) of the Executive's Base Salary
based upon satisfaction of the individual and Company performance goals set in
accordance with the Incentive Compensation Plans. The goals and bonus will be
graduated in nature. Each period for which Incentive Compensation is payable
under the Incentive Compensation Plan is sometimes hereinafter referred to as a
Bonus Period.
4. Expense Reimbursement and Other Benefits.
4.1 Reimbursement of Expenses. During the term of Executive's
employment hereunder, upon the submission of proper substantiation by the
Executive, and subject to such rules and guidelines as the Company may from
time to time adopt, the Company shall reimburse the Executive for all
reasonable expenses actually paid or incurred by the Executive in the course of
and pursuant to the business of the Company. The Executive shall account to the
Company in writing for all expenses for which reimbursement is sought and shall
supply to the Company copies of all relevant invoices, receipts or other
evidence reasonably requested by the Company.
4.2 Compensation/Benefit Programs. During the term of this
Agreement, the Executive shall be entitled to participate in all medical,
dental, hospitalization, accidental death and dismemberment, disability, travel
and life insurance plans, and any and all other plans as are presently and
hereinafter offered by the Company to all of its executives, including savings,
retirement and deferred compensation plans.
4.3 Working Facilities. The Company shall furnish the Executive
with an office and such other facilities and services suitable to his position
and adequate for the performance of his duties hereunder. The Executive shall
be located at the Company's corporate/executive offices, presently at 0000
Xxxxxxxx Xxxx, Xxxxx X, Xxxxxxxx, Xxxxxxx 00000, during the Initial Term and
any Renewal Term of this Agreement.
4.4 Stock Options. The Executive shall be granted qualified
options (the "Stock Options") to purchase one hundred thousand (100,000) shares
of common stock (the "Common Stock") of the Company at a price per share of One
Dollar ($1.00), with the Common Stock subject to a vesting schedule of
Twenty-Five Thousand (25,000) shares as of each of the years ending 12/31/00,
12/31/01, 12/31/02 and 12/31/03, under (and therefore subject to all terms and
conditions of) the Company's 1999 Employee Incentive Compensation Plan as
amended, and any successor plan thereto (the "Executive Incentive Compensation
Plan") and all rules of regulation of the Securities and Exchange Commission
applicable to stock option plans then in effect.
4.5 Other Benefits. The Executive shall be entitled to five
weeks of vacation each calendar year during the term of this Agreement, to be
taken at such times as the Executive and the Company shall mutually determine
and provided that no vacation time shall materially interfere with the duties
required to be rendered by the Executive hereunder. During the calendar years
1999 and 2000, the Executive will use his best efforts to not be out of the
office on vacation for more than a full calendar week unless otherwise approved
in advance the Company's Chief Executive Officer. The Executive shall receive
such additional benefits, if any, as the Board shall from time to time
determine.
4.6 Relocation. The Executive shall receive up to $25,000 in
relocation expense allowance, including the cost of temporary housing until his
permanent residential relocation to the Maitland, Florida area. The Company
will pay vendors directly whenever applicable income tax law permits.
5. Termination.
5.1 Termination/Resignation. The Executive and the Company shall
each have the right at any time, upon sixty (60) days written notice to the
other party, to terminate the Executive's employment hereunder. Upon any
termination pursuant to this Section 5, the Company shall: (a) pay to the
Executive any unpaid Base Salary through
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the effective date of termination specified in such notice, (b) pay to the
Executive his accrued and declared but unpaid Incentive Compensation, if any,
for any Bonus Period ending on or before the termination of Executive's
employment with the Company, and (c) pay to the Executive (within forty-five
(45) days after the end of the Bonus Period in which such termination occurs) a
prorata portion (based upon the period ending on the date of termination of the
Executive's employment hereunder) of the Incentive Compensation, if any, for
the Bonus Period in which such termination occurs, as calculated pursuant to
the Incentive Compensation Plan; provided that the goals under the Incentive
Compensation Plan for each period used in the calculation of the Executive's
Incentive Compensation, shall be based on: (i) the portion of the Bonus Period
through the end of the Bonus Period in which such termination occurs and (ii)
unaudited financial information prepared in accordance with generally accepted
accounting principles, applied consistently with prior periods, as approved and
reviewed by the Board. The Company shall have no further liability hereunder
other than for reimbursement for reasonable business expenses incurred prior to
the date of termination, subject, however, to the provisions of Section 4.1.
Notwithstanding the above to the contrary, in the event of a "Change of
Control" as defined in Section 9 of the Company's 1999 Employees Incentive
Compensation Plan, the above stated sixty (60) day notice period shall
automatically change to twelve months (12) for any such written notice which
may be provided thereafter from the Company to the Executive.
5.2 Death. In the event of the death of the Executive during the
term of his employment hereunder, the Company shall (a) pay to the estate of
the deceased Executive any unpaid Base Salary through the Executive's date of
death, (b) pay to the estate of the deceased Executive his accrued and declared
but unpaid Incentive Compensation, if any, for any Bonus Period ending on or
before the Executive's date of death, (c) pay to the estate of the deceased
Executive (within forty-five (45) days after the end of the Bonus Period in
which his death occurs) a prorata portion (based upon the period ending on the
date of death) of the Incentive Compensation, if any, for the Bonus Period in
which his death occurs, as calculated pursuant to the terms of the Incentive
Compensation Plan; provided that, the goals under the Incentive Compensation
Plan for each period used in the calculation of the Executive's Incentive
Compensation shall be based on: (i) the portion of the Bonus Period through the
end of the Bonus Period in which the Executive's death occurs, and (ii)
unaudited financial information prepared in accordance with generally accepted
accounting principles, applied consistently with prior periods, as approved and
reviewed by the Board. The Company shall have no further liability hereunder
other than for reimbursement for reasonable business expenses incurred prior to
the date of the Executive's death, subject, however to the provisions of
Section 4.1.
6. Restrictive Covenants.
6.1 Non-competition. At all times while the Executive is
employed by the Company and for a two (2) year period after the termination of
the Executive's employment with the Company for any reason, the Executive shall
not, directly or indirectly, engage in or have any interest in any sole
proprietorship, partnership, corporation or business or any other person or
entity (whether as an employee, officer, director, partner, agent, security
holder, creditor, consultant or otherwise) that directly or indirectly (or
through any affiliated entity) engages in competition with the Company in the
United States, Canada or any foreign market where the Company markets and sells
software applications or its services (for this purpose, any business that
engages in the development and/or marketing of software applications in the
public sector marketplace shall be deemed to be in competition with the
Company); provided that such provision shall not apply to the Executive's
ownership of Common Stock of the Company or the acquisition by the Executive,
solely as an investment, of securities of any issuer that is registered under
Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, and
that are listed or admitted for trading on any United States national
securities exchange or that are quoted on the National Association of
Securities Dealers Automated Quotations System, or any similar system or
automated dissemination of quotations of securities prices in common use, so
long as the Executive does not control, acquire a controlling interest in or
become a member of a group which exercises direct or indirect control or, more
than five percent (5%) of any class of capital stock of such corporation.
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6.2 Nondisclosure. The Executive shall not at any time divulge,
communicate, use to the detriment of the Company or for the benefit of any
other person or persons, or misuse in any way, any Confidential Information (as
hereinafter defined) pertaining to the business of the Company or hereafter
acquired by the Executive with respect to the business of the Company (which
shall include, but not be limited to, information concerning the Company's
financial condition, prospects, technology, customers, suppliers, sources of
leads and methods of doing business) shall be deemed a valuable, special and
unique asset of the Company that is received by the Executive in confidence and
as a fiduciary, and Executive shall remain a fiduciary to the Company with
respect to all of such information. For purposes of this Agreement,
"Confidential Information" means information disclosed to the Executive or
known by the Executive as a consequence of or through his employment by the
Company (including information conceived, originated, discovered or developed
by the Executive) prior to or after the date hereof, and not generally known,
about the Company or its business. Notwithstanding the foregoing, nothing
herein shall be deemed to restrict the Executive from disclosing Confidential
Information to the extent required by law.
6.3 Nonsolicitation of Employees and Clients. At all times while
the Executive is employed by the Company and for a two (2) year period after
the termination of the Executive's employment with the Company for any reason,
the Executive shall not, directly or indirectly, for himself or for any other
person, firm, corporation, partnership, association or other entity: (a) employ
or attempt to employ or enter into any contractual arrangement with any
employee or former employee of the Company, unless such employee or former
employee has not been employed by the Company for a period in excess of six (6)
months, and/or (b) call on or solicit any of the actual or targeted prospective
clients of the Company on behalf of any person or entity in connection with any
business competitive with the business of the Company, nor shall the Executive
make known the names and addresses of such clients or any information relating
in any manner to the Company's trade or business relationships with such
customers, other than in connection with the performance of Executive's duties
under this Agreement.
6.4 Ownership of Developments. All copyrights, patents, trade
secrets, or other intellectual property rights associated with any ideas,
concepts, techniques, inventions, processes, or works of authorship developed
or created by Executive during the course of performing work for the Company or
its clients (collectively, the "Work Product") shall belong exclusively to the
Company and shall, to the extent possible, be considered a work made by the
Executive for hire for the Company within the meaning of Title 17 of the United
States Code. To the extent the Work Product may not be considered work made by
the Executive for hire for the Company, the Executive agrees to assign, and
automatically assign at the time of creation of the Work Product, without any
requirement of further consideration, any right, title, or interest the
Executive may have in such Work Product. Upon the request of the Company, the
Executive shall take such further actions, including execution and delivery of
instruments of conveyance, as may be appropriate to give full and proper effect
to such assignment.
6.5 Books and Records. All books, records, and accounts relating
in any manner to the customers or clients of the Company, whether prepared by
the Executive or otherwise coming into the Executive's possession, shall be the
exclusive property of the Company and shall be returned immediately to the
Company on termination of the Executive's employment hereunder or on the
Company's request ion 6, the term "Company" also shall include any existing or
future subsidiaries of the Company that are operating during the time periods
described herein and any other entities that directly or indirectly, through
one or more intermediaries, control, are controlled by or are under common
control with the Company during the periods described herein.
6.7 Acknowledgment by Executive. The Executive acknowledges and
confirms that the length of the term of the provisions of this Section 6 and
the geographical restrictions contained in Section 6.1 are fair and reasonable
and not the result of overreaching, duress or coercion of any kind. The
Executive further acknowledges and confirms that his full, uninhibited and
faithful observance of each of the covenants contained in this Section 6 will
not cause his any undue hardship, financial or otherwise, and that enforcement
of each of the covenants contained herein will not impair his ability to obtain
employment commensurate with his abilities and on terms fully acceptable to him
or
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otherwise to obtain income required for the comfortable support of him and his
family and the satisfaction of the needs of his creditors. The Executive
acknowledges and confirms that his special knowledge of the business of the
Company is such as would cause the Company serious injury or loss if she were
to use such ability and knowledge to the benefit of a competitor or were to
compete with the Company in violation of the terms of this Section 6.
6.8 Reformation by Court. In the event that a court of competent
jurisdiction shall determine that any provision of this Section 6 is invalid or
more restrictive than permitted under the governing law of such jurisdiction,
then only as to enforcement of this Section 6 within the jurisdiction of such
court, such provision shall be interpreted and enforced as if it provided for
the maximum restriction permitted under such governing law.
6.9 Extension of Time. If the Company seeks injunctive relief
from such violation in any court, then the covenants set forth in this Section
6 shall be extended for a period of time equal to the shorter of: (i) the
pendency of such proceeding including all appeals by the Executive, or (ii) two
years.
6.10 Survival. The provisions of this Section 6 shall survive
the termination of this Agreement, as applicable.
7. Injunction. It is recognized and hereby acknowledged by the
parties hereto that a breach by the Executive of any of the covenants contained
in Section 6 of this Agreement will cause irreparable harm and damage to the
Company, the monetary amount of which may be virtually impossible to ascertain.
As a result, the Executive recognizes and hereby acknowledges that the Company
shall be entitled to an injunction from any court of competent jurisdiction
enjoining and restraining any violation of any or all of the covenants
contained in Section 6 of this Agreement by the Executive or any of his
affiliates, associates, partners or agents, either directly or indirectly, and
that such right to injunction shall be cumulative and in addition to whatever
other remedies the Company may possess.
8. Assignment. Neither party shall have the right to assign or
delegate its rights or obligations hereunder, or any portion thereof, to any
other person.
9. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida.
10. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and, upon
its effectiveness, shall supersede all prior agreements, understandings and
arrangements, both oral and written, between the Executive and the Company (or
any of its affiliates) with respect to such subject matter. This Agreement may
not be modified in any way unless by a written instrument signed by both the
Company and the Executive.
11. Notices. All notices required or permitted to be given hereunder
shall be in writing and shall be personally delivered by courier, sent by
registered or certified mail, return receipt requested or sent by confirmed
facsimile transmission addressed as set forth herein. Notices personally
delivered, sent by facsimile or sent by overnight courier shall be deemed given
on the date of delivery and notices mailed in accordance with the foregoing
shall be deemed given upon the earlier of receipt by the addressee, as
evidenced by the return receipt thereof, or three (3) days after deposit in the
U.S. Mail. Notice shall be sent: (a) if to the Company, addressed to 0000
Xxxxxxxx Xxxx, Xxxxx X, Xxxxxxxx, Xxxxxxx 00000, Attention: Chief Executive
Officer, with a copy of such notice addressed to X. X. Xxxxxx, Jr., Esq., 000-X
Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxx Xxxxx, XX 00000, and (b) if to the Executive,
to his address as reflected on the payroll records of the Company, or to such
other address as either party hereto may from time to time give notice of to
the other.
12. Benefits; Binding Effect. This Agreement shall be for the benefit
of and binding upon the parties
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hereto and their respective heirs, personal representatives, legal
representatives, successors and, where applicable, assigns, including, without
limitation, any successor to the Company, whether by merger, consolidation,
sale of stock, sale of assets or otherwise.
13. Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
part thereof, all of which are inserted conditionally on their being valid in
law, and, in the event that any one or more of the words, phrases, sentences,
clauses or sections contained in this Agreement shall be declared invalid, this
Agreement shall be construed as if such invalid word or words, phrase or
phrases, sentence or sentences, clause or clauses, or section or sections had
not been inserted. If such invalidity is caused by length of time or size of
area, or both, the otherwise invalid provision will be considered to be reduced
to a period or area which would cure such invalidity.
14. Waivers. The waiver by either party hereto of a breach or
violation of any term or provision of this Agreement shall not operate nor be
construed as a waiver of any subsequent breach or violation.
15. Damages. Nothing contained herein shall be construed to prevent
the Company or the Executive from seeking and recovering from the other damages
sustained by either or both of them as a result of its or his breach of any
term or provision of this Agreement. In the event that either party hereto
brings suit for the collection of any damages resulting from, or the injunction
of any action constituting, a breach of any of the terms or provisions of this
Agreement, then the party found to be at fault shall pay all reasonable court
costs his Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
16. No Third Party Beneficiary. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the Company, the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and assigns, any rights or
remedies under or by reason of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
COMPANY: EXECUTIVE:
Information On Demand, Inc.
By: /s/ O. F. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
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O. F. Xxxxx, Chief Executive Officer Xxxxxx X. Xxxxxx
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