EXHIBIT 10.9
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "AGREEMENT"), entered into as
of June 8, 1999, 1999 (the "COMMENCEMENT DATE"), by XXXxxxx.xxx, Inc., a
Delaware corporation (the "COMPANY") and Xxxxxx Xxxxxxxx (the "EXECUTIVE").
1. TERM OF EMPLOYMENT: The term of employment of Executive by the
Company hereunder shall commence on the Commencement Date and shall
continue thereafter on the same terms and conditions until terminated
pursuant to Sections 6 or 7.
2. TITLE; DUTIES: The Executive shall serve as Chief Financial Officer
of the Company reporting to the President of the Company. Executive
shall perform those duties and responsibilities inherent in such
position including such duties and responsibilities as the President
shall assign. The Executive agrees to devote his full time and best
efforts, attention and energies to the business and interests of the
Company. Executive shall serve the Company faithfully and to the best
of his ability in such capacities, devoting his full business time,
attention, knowledge, energy and skills to such employment; provided,
however, the Company acknowledges that Executive may serve on the
board of directors of other companies with the prior approval of the
Chief Executive Officer. Executive shall travel as reasonably
required in connection with the performance of his duties hereunder.
3. COMPENSATION: The Company shall pay and Executive shall accept as
full consideration for the his services hereunder, compensation
consisting of the following:
3.1 BASE SALARY. $175,000 per year base salary. Base Salary is
payable in installments in accordance with the Company's normal
payroll practices, less such deductions or withholdings as are
required by law.
3.2 BONUS. At the sole discretion of the Compensation Committee
of the Board of Directors or the Board of Directors, annual
target bonus, if any, at the rate and in accordance with
criterion established by the Compensation Committee of the Board
of Directors or the Board of Directors.
3.3 EQUITY OPTION. Executive will be eligible to participate in the
company's stock option plan. Option grants, if any, will be
determined by the Compensation Committee of the Board of
Directors or the Board of Directors.
4. BENEFITS: Subject to all applicable eligibility requirements, and
legal limitations, Executive will be able to participate in any and
all 401(k), vacation, medical, dental, life and long-term disability
insurance and/or other benefit
plans which from time to time may be established for other employees
of the Company.
5. REIMBURSEMENT OF EXPENSES: The Company will reimburse Executive for
all reasonable travel, entertainment and other expenses incurred or
paid by the Executive in connection with, or related to, the
performance of his duties, responsibilities or services under this
Agreement subject to review by the Board or its compensation
committee, if applicable.
6. BENEFIT UPON TERMINATION OF EMPLOYMENT:
6.1 DISABILITY. In the event of the permanent disability (as
hereinafter defined) of Executive during the Employment Period,
the Company shall have the right, upon written notice to
Executive, to terminate Executive's employment hereunder,
effective upon the 30th calendar day following the giving of such
notice (or such later day as shall be specified in such notice).
Upon the effectiveness of such termination, (i) the Company shall
have no further obligations hereunder, except to pay and provide,
subject to applicable withholding, (A) all amounts of Base Salary
accrued, but unpaid, at the effective date of termination, and
(B) all reasonable unreimbursed business-related expenses and
(ii) Executive shall have no further obligations hereunder other
than those provided for in Sections 9 and 10 hereof. All amounts
payable to Executive pursuant to this Section 6.1 shall be
payable within 30 days following the effectiveness of the
termination of Executive's employment. For purposes of this
Agreement, "PERMANENT DISABILITY" shall be defined as any
physical or mental disability or incapacity which renders
Executive incapable in any material respect of performing the
services required of him in accordance with his obligations under
Section 2 for a period of 180 consecutive days, or for 180 days
in any 360 day period.
6.2 DEATH. In the event of the death of Executive during the
Employment Period, this Agreement shall automatically terminate
and the Company shall have no further obligations hereunder,
except to pay and provide to Executive's beneficiary or other
legal representative, subject to applicable withholding, (i) all
amounts of Base Salary accrued but unpaid, at the date of death,
and (ii) all reasonable unreimbursed business-related expenses.
All amounts payable to Executive pursuant to this Section 6.2
shall be payable within 30 days following the date of death.
6.3 TERMINATION WITHOUT CAUSE. In the event of the termination of
Executive's employment by the Company without Cause (as defined
below) or upon the Executive's voluntary termination of his
employment for Good Reason (as defined below), (i) all amounts of
Base Salary
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accrued but unpaid on the date of termination shall be paid by
the Company within 30 days following the date of termination,
and (ii) an amount equal to Executive's Base Salary on the
date of termination for a period of twelve months shall be
paid by the Company in twelve equal installments.
6.4 CIRCUMSTANCES UNDER WHICH TERMINATION BENEFITS WOULD NOT BE PAID.
The Company shall only be obligated to pay the amounts of Base
Salary accrued but unpaid on the date of termination, and shall
not be obligated to pay Executive the termination benefits or
continue the option vesting described in subparagraphs 6.1
through 6.3 above if the Employment Period is terminated for
Cause or if Executive voluntarily terminates his employment other
than for Good Reason (as defined below). For purposes of this
Agreement, "CAUSE" shall be limited to:
(A) Willful failure by Executive to substantially perform his
duties hereunder, other than a failure resulting from his
complete or partial incapacity due to physical or mental
illness or impairment;
(B) A material and willful violation of a federal or state law
or regulation applicable to the business of the company or
that adversely affects the image of the Company;
(C) Commission of a willful act by Executive which constitutes
gross misconduct and is injurious to the Company; or
(D) A willful breach of a material provision of this Agreement.
6.5 CONSTRUCTIVE TERMINATION. Notwithstanding anything in this
Section 6 to the contrary, for purposes of this Agreement the
Employment Period will be deemed to have been terminated and
Executive will be deemed to have Good Reason for voluntary
termination of the Employment Period ("GOOD REASON"), if there
should occur:
(A) A material adverse change in Executive's position causing it
to be of materially less stature or responsibility without
Executive's written consent;
(B) A reduction, without Executive's written consent, in his
level of base compensation (including base salary and fringe
benefits); or
(C) A relocation of Executive's principal place of employment
outside the Chicago Area without Executive's consent.
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7. CHANGE IN CONTROL BENEFITS:
Should there occur a Change in Control (as defined below), then the
following provisions shall become applicable:
(A) During the period (if any) following a Change in Control
that Executive shall continue to remain employed, then the
terms and provisions of this Agreement shall continue in
full force and effect, and Option grants, if any, shall
continue to vest and become and remain exercisable in
accordance with the terms of the Option grant(s); or
(B) In the event of (i) a termination of the Executive's
employment by the Company or its successor other than for
Cause within six (6) months after a Change in Control or
(ii) Executive voluntarily terminates his employment for
Good Reason within six (6) months after a Change in Control
the Company shall pay to Executive an amount equal to 100%
of Executive's annual Base Salary.
For purposes of this Section 7, the term "CHANGE IN CONTROL" shall
mean:
(x) The sale, lease, conveyance, liquidation or other
disposition of all or substantially all of the
Company's assets as an entirety or substantially as an
entirety to any person, entity or group of persons
acting in concert.
(y) Any transaction or series of related transactions (as a
result of a tender offer, merger, consolidation or
otherwise) that results in any Person (as defined in
Section 13(h)(8)(E) under the Securities Exchange Act
of 1934) becoming the beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934),
directly or indirectly, of more than 50% of the
aggregate voting power of all classes of common equity
securities or membership interests, as the case may be,
of the Company, except if such Person is (A) a
subsidiary of the Company, (B) an employee stock
ownership plan for
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employees of the Company, (C) a company formed to
hold the Company's common equity securities or
membership interests, as the case may be, and whose
shareholders constituted, at the time such company
became such holding company, substantially all the
equity owners or shareholders of the Company, or (D)
HyperFeed or its affiliates.
In the event that the severance and other benefits provided to
Executive pursuant to Section 6 of this Agreement (i) constitute
"parachute payments" within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the "CODE") and (ii) but
for this Section 7, such severance and benefits would be subject to
the excise tax imposed by Section 4999 of the Code, then Executive's
severance benefits under this Section 7 shall be payable either:
(a) in full in twelve equal monthly installments, or
(b) as to such lesser amount which would result in no portion of such
severance and other benefits being subject to excise tax under
Section 4999 of the Code, whichever of the foregoing amounts,
taking into account the applicable federal, state and local
income taxes and the excise tax imposed by Section 4999, results
in the receipt by Executive on an after-tax basis, of the
greatest amount of severance benefits under this Agreement.
Unless the Company and Executive otherwise agree in writing, any
determination required under this Section 7 shall be made in writing
by independent public accountants agreed to by the Company and
Executive (the "ACCOUNTANTS"), whose determination shall be conclusive
and binding upon Executive and the Company for all purposes. For
purposes of making the calculations required by this Section 7, the
Accountants may make reasonable assumptions and approximations
concerning applicable taxes and may rely on reasonable, good faith
interpretations concerning the application of Sections 280G and 4999
of the Code. The Company and Executive shall furnish to the
Accountants such information and documents as the Accountants may
reasonably request in order to make a determination under this
Section 7. The Company shall bear all costs the Accountants may
reasonably incur in connection with any calculations contemplated by
this Section 7.
8. DISPUTE RESOLUTION: The Company and Executive agree that any dispute
regarding the interpretation or enforcement of this Agreement shall be
decided by confidential, final and binding arbitration conducted by
the American Arbitration Association ("AAA") under the then-existing
AAA rules, rather than by litigation in court, trial by jury,
administrative proceeding, or in any other forum.
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9. COOPERATION WITH THE COMPANY AFTER TERMINATION OF THE EMPLOYMENT:
Following termination of the Employment by Executive, Executive shall
fully cooperate with the Company in all matters relating to the
winding up of his pending work on behalf of the Company and the
orderly transfer of any such pending work to other employees of the
Company as may be designated by the Company.
10. CONFIDENTIALITY; RETURN OF PROPERTY; NONSOLICITATION:
(a) The Executive acknowledges that during the Employment he will
receive confidential information from the Company and
subsidiaries of the Company and the respective clients thereof
(each a "RELEVANT ENTITY"). Accordingly, the Executive agrees
that during the Employment and thereafter for a period of two
years, the Executive and his affiliates shall not, except in the
performance of his obligations to the Company hereunder or as may
otherwise be approved in advance by the Company, directly or
indirectly, disclose or use (except for the direct benefit of the
Company) any confidential information that he may learn or has
learned by reason of his association with any Relevant Entity.
Upon termination of employment, the Executive shall promptly
return to the Company any and all properties, records or papers
of any Relevant Entity, that may have been in his possession at
the time of termination, whether prepared by the Executive or
others, including, but not limited to, confidential information
and keys. For purposes of this Agreement, "confidential
information" includes all data, analyses, reports,
interpretations, forecasts, documents and information concerning
a Relevant Entity and its affairs, including, without limitation
with respect to clients, products, policies, procedures,
methodologies, trade secrets and other intellectual property,
systems, personnel, confidential reports, technical information,
financial information, business transactions, business plans,
prospects or opportunities, (i) that the Company reasonably
believes are confidential or (ii) the disclosure of which could
be injurious to a Relevant Entity or beneficial to competitors of
a Relevant Entity, but shall exclude any information that (x) the
Executive is required to disclose under any applicable laws,
regulations or directives of any government agency, tribunal or
authority having jurisdiction in the matter or under subpoena or
other process of law, (y) is or becomes publicly available prior
to the Executive's disclosure or use of the information in a
manner violative of the second sentence of this Section 10(a), or
(z) is rightfully received by Executive without restriction or
disclosure from a third party legally entitled to possess and to
disclose such information without restriction (other than
information that he may learn or has learned by reason of his
association with any
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Relevant Entity). For purposes of this Agreement, "affiliate"
means any entity that, directly or indirectly, is controlled
by, or under common control with, the Executive. For purposes
of this definition, the terms "controlled" and "under common
control with" means the possession, direct or indirect, of the
power to direct or cause the direction of the management and
policies of such person, whether through the ownership of
voting stock, by contract or otherwise.
(b) For a period of one (1) year following the termination of
Executive's employment with the Company for any reason, he will
not, without the Company' express written consent, either on his
own behalf or on behalf of another, solicit employees of the
Company or any subsidiary of the Company for the purpose of
hiring them. General employment advertising shall not be deemed
to be a solicitation.
(c) During the course of Executive's employment and for a period of
one (1) year following the termination of Executive's employment
with the Company for any reason (the "Noncompetition Period"),
Executive shall not directly or indirectly, without the prior
written consent of the Company, (i) engage anywhere in the world
in (whether as an employee, agent, consultant, advisor,
independent contractor, proprietor, partner, officer, director or
otherwise), or have any ownership interest in (except for
ownership of five percent (5%) or less of any entity whose
securities have been registered under the Securities Act of 1933
or Section 12 of the Securities Exchange Act of 1934), or
participate in the financing, operation, management or control
of, any firm, partnership, corporation, limited liability
company, entity or business that directly competes with the
Company in the financial data information industry; or
(ii) approach, contact, solicit or interfere with the business of
the Company, the Company's subsidiaries or customers which are
presently existing, or which are existing on the date of
termination of Executive's employment with the Company, in
connection with a competing business purpose.
11. GENERAL:
11.1 INDEMNIFICATION. In the event Executive is made, or threatened
to be made, a party to any legal action or proceeding, whether
civil or criminal, by reason of the fact that Executive is or was
a director or officer of the Company or serves or served any
other corporation fifty percent (50%) or more owned or controlled
by the Company in any capacity at the Company's request,
Executive shall be indemnified by the Company, and the Company
shall pay Executive's related expenses when and as incurred,
all to the fullest extent permitted by law.
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11.2 WAIVER. Neither party shall, by mere lapse of time, without
giving notice or taking other action hereunder, be deemed to have
waived any breach by the other party of any of the provisions of
this Agreement. Further, the waiver by either party of a
particular breach of this Agreement by the other shall neither be
construed as, nor constitute a, continuing waiver of such breach
or of other breaches by the same or any other provision of this
Agreement.
11.3 SEVERABILITY. If for any reason a court of competent
jurisdiction or arbitrator finds any provision of this Agreement
to be unenforceable, the provision shall be deemed amended as
necessary to conform to applicable laws or regulations, or if it
cannot be so amended without materially altering the intention of
the parties, the remainder of the Agreement shall continue in
full force and effect as if the offending provision were not
contained herein.
11.4 NOTICES. All notices and other communications required or
permitted to be given under this Agreement shall be in writing
and shall be considered effective upon personal service or upon
transmission of a facsimile or the deposit with Federal Express
or in Express Mail and addressed to the Chairman of the Board of
the Company at its principal corporate address, and to Executive
at his most recent address shown on the Company's corporate
records, or at any other address which he may specify in any
appropriate notice to the Company.
11.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all
of which taken together constitutes one and the same instrument
and in making proof hereof it shall not be necessary to produce
or account for more than one such counterpart.
11.6 ENTIRE AGREEMENT. The parties hereto acknowledge that each has
read this Agreement, understands it, and agrees to be bound by
its terms. The parties further agree that this Agreement shall
constitute the complete and exclusive statement of the agreement
between the parties and supersedes all proposals (oral or
written), understandings, representations, conditions, covenants,
and all other communications between the parties relating to the
subject matter hereof.
11.7 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Illinois.
11.8 ASSIGNMENT AND SUCCESSORS. The Company shall have the right to
assign its rights and obligations under this Agreement to an
entity which acquires substantially all of the assets of the
Company, whether by merger or otherwise. The rights and
obligations of the
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Company under this Agreement shall inure to the benefit and
shall be binding upon the successors and assigns of the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
XXXXXXX.XXX, INC.,
a Delaware corporation
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
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Title: Chairman
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EXECUTIVE
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
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