EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement"), effective this 3rd day of
April, 2000 (the "Commencement Date"), is made by and between XxxxXxxxxxx.xxx,
Incorporated, a Nevada corporation ("HomeSeekers"), and Xxxxxxx O'Day
("Employee")Employment Agreement
WHEREAS, HomeSeekers and its wholly owned subsidiary,
Xxxxxxxxxxxxxxx.xxx, Incorporated, a Nevada corporation ("Subsidiary"),
Information Solutions Group, Incorporated, a Colorado corporation ("ISG"), and
ISG's principal shareholders, including Employee, have entered into that certain
Agreement and Plan of Merger, dated April 3, 2000, whereby ISG has merged into
Subsidiary (the "Agreement and Plan of Merger");
WHEREAS, pursuant to the closing of the Agreement and Plan of Merger,
HomeSeekers wishes to employ Employee as Director of Forms Operations, with such
other duties and responsibilities as HomeSeekers may reasonably assign to
Employee consistent with the nature and character of such employment;
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 Director of Forms Operations.
SECTION 2. TERM.
2.1 Term. The term of this Agreement ("Term") shall be three years,
beginning on 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 considered by
HomeSeekers to be disabled. Employee shall be considered disabled if, based upon
the results of a qualified physician's examination, in the sole opinion of
HomeSeekers, 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 forty-five (45)
consecutive business days in any twelve (12) month period.
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April 3, 2000
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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 materially breaches this Agreement;
(b) Employee willfully performs any action or engages in
any misconduct which is materially injurious to
HomeSeekers or any affiliate of HomeSeekers,
monetarily or otherwise;
(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, willful misrepresentation or other act of
moral turpitude;
(e) Employee willfully or habitually neglects any of
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 fails to faithfully and loyally abide by the
policies, rules, regulations and usages applicable to
Employee, as established by HomeSeekers from time to
time, as long as such policies, rules, regulations
and usages are applicable to all similarly situated
employees of HomeSeekers; or
(g) Employee violates any material 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.
2.7 Obligations of HomeSeekers upon Termination. If Employee's
employment is terminated by HomeSeekers for cause, 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
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April 3, 2000
Page -3-
salary through the date of termination to the extent not paid by then; (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; 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.
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 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 3.3 hereunder that would otherwise vest
on the next anniversary of the Commencement Date shall immediately vest as of
the date of any such termination as though the date of termination had occurred
after the next anniversary of the Commencement Date; e.g., if termination occurs
during the second year of employment, all options granted hereunder that would
otherwise vest upon 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 Sixty-Eight
Thousand Dollars ($68,000) per year. Such salary shall be earned bi-weekly and
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. Increases will be granted
according to Employee's performance, annual review, and job classification as
described in the HomeSeekers' Policies and Procedures Manual then in effect.
Increases will have parity within job classifications.
3.2 Bonus. In addition to the annual base salary set forth in paragraph
3.1 of this Agreement, Employee shall be entitled to a quarterly target bonus
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April 3, 2000
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that shall be based on performance standards established by the Chief Executive
Officer of HomeSeekers or his designee 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 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.
3.3 Stock Options. Contingent upon approval by the shareholders of
HomeSeekers, pursuant to the HomeSeekers 1996 Stock Option Plan, HomeSeekers
shall grant Employee twenty-one thousand (21,000) 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. The Board of Directors will
recommend that the shareholders of HomeSeekers approve the grant of options
described herein.
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/her 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 other peer employees of HomeSeekers.
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April 3, 2000
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SECTION 5 EMPLOYEE OBLIGATION.
5.1 Duties and Position of Employee. Employee, as Director of Forms
Operations, shall perform duties in accordance with the best interest of
HomeSeekers, subject to the direction and authority of the Chief Executive
Officer of HomeSeekers or his designee, provided that Employee shall not be
required to accept any duties or responsibilities that are inconsistent with
Employee's position, status, duties, responsibilities. Employee shall follow all
lawful policies and procedures established by HomeSeekers' Board of Directors.
The parties agree that during the performance of this Agreement, Employee shall
remain located in and operate from Boulder, Colorado, and Employer shall not
require Employee to change its 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.
5.2 Services to HomeSeekers only. Employee shall devote its productive
time, ability and attention during the normal working day to the business of
HomeSeekers during the term of this Agreement. 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
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 from
time to time and provided to Employee, and to perform the duties assigned to
him, consistent with this Agreement, 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;
(c) Purchase or cause the expenditure of funds for
capital equipment;
(d) Sell or transfer any capital asset of HomeSeekers;
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April 3, 2000
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(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.
(a) Employee acknowledges that HomeSeekers is in the business
of developing, marketing, and servicing Internet based MLS systems, real estate
agent Internet web sites, and real estate magazines, agent and broker
productivity software, and real estate brokerage intranet systems. Employee
acknowledges that Employee has been employed in a management capacity by ISG,
which is in the business of selling and servicing real estate forms software
under the Formulator(R) brand. Employee acknowledges that, by virtue of the
closing of the Agreement and Plan of Merger, ISG 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 ISG 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"). 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 HomeSeekers. 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. 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
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April 3, 2000
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legal process, use or communicate or disclose any such Confidential Information
for as long as such Confidential Information remains confidential. Confidential
Information shall not include information which (a) becomes generally available
to the public other than as a result of a disclosure by Employee, (b) was
rightfully available to Employee on a non-confidential basis from a source other
than HomeSeekers or its subsidiaries (provided such source was not bound by a
confidentiality agreement with HomeSeekers or otherwise prohibited from
transmitting the information to Employee by a contractual, legal, or fiduciary
obligation), (c) is readily ascertainable by proper means, or (d) is required to
be disclosed by operation of law.
(c) In view of the foregoing, Employee covenants and agrees
that during the period of Employee's employment by HomeSeekers 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 in competition with HomeSeekers or any HomeSeekers
subsidiary;
(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 5% equity
interest in any enterprise) in any business entity engaged in business
activities which are in competition with 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 competition with HomeSeekers or any HomeSeekers
subsidiary;
(v) call upon any prospective acquisition candidate
of HomeSeekers or any HomeSeekers subsidiary, on 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
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April 3, 2000
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person, firm, partnership, corporation or business for any reason or purpose
which is competitive with 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 any of its products or services (the "Restricted Territory").
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 keep HomeSeekers
informed of the identification of Employee's employer and the nature of such
employment or of Employee's self-employment.
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 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 Restricted Territory, and, within such
territorial divisions, (b) one for each month to which the Member 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. 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.
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April 3, 2000
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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.
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):
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(a) if to HomeSeekers:
XxxxXxxxxxx.xxx, Incorporated
0000 Xxxxx XxXxxxxx Xxxx., Xxxxx 00
Xxxx, 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 Employee:
Xxxxxxx O'Day
0000 Xxxxxxx Xxxxx
Xxxx, XX 00000
Telephone: (000) 000-0000
with a copy to:
Xxxx X. Xxxxxx, Esq.
Grimshaw & Xxxxxxx, P.C.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 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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April 3, 2000
Page -11-
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
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
EMPLOYEE
/s/ Xxxxxxx O'Day
---------------------------------------
XXXXXXX O'DAY
