EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made as of
December 12, 2005, by and between ARADYME CORPORATION, a Delaware corporation
(the "Company"), and XXXXX X. XXXXXXX (the "Executive").
Recitals
WHEREAS, the parties are entering into this Agreement in order to set
forth the terms and conditions under which the Executive shall be employed by
the Company;
WHEREAS, the Executive has and will acquire during the term of his
employment significant knowledge and experience in the Company's business and
intimate knowledge of its customers, processes, trade secrets, and/or other
business information, and the Company needs to protect its commercial goodwill
and other assets; and
WHEREAS, the parties acknowledge that this Agreement completely
supersedes the Executive Employment Agreement between the parties dated February
11, 2005 (the "Previous Agreement"), which is terminated as of the date of this
Agreement, and that it is necessary and in the best interests of the parties to
supersede and terminate the Previous Agreement for the short- and long-term
health and survival of the Company.
Agreement
NOW THEREFORE, in consideration of the foregoing, the agreements set
forth below, the parties' desire to preserve the value inherent in the Company
for their mutual benefit, and for other valuable consideration (the receipt of
which the Executive hereby acknowledges), the Executive, intending to be legally
bound hereby, agrees with the Company as follows:
1. Employment. The Company hereby agrees to employ the Executive and
the Executive hereby accepts employment on the terms and conditions set forth
herein.
2. At-Will Employment. Executive shall be employed on an at-will basis
and may be terminated with or without cause subject to the provisions of
sections 6 and 7 herein.
3. Position. During the Executive's employment with Company, the
Executive shall serve as Chief Executive Officer of the Company. The Executive
shall perform those duties generally required of persons in the position of
Chief Executive Officer, as well as such other duties, not inconsistent with
this Agreement, as the Company's Board of Directors (the "Board") may from time
to time direct.
4. Scope of Services. The Executive agrees to devote the Executive's
business time, attention, skills, and best efforts to the performance of the
Executive's duties hereunder and shall not, during the Executive's employment by
the Company, without the prior written approval of the Company's Board, be
employed by or otherwise engaged in any other business activity requiring any of
the Executive's time.
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5. Salary, Compensation, and Benefits.
5.1 Base Salary. During the Executive's employment, the
Company agrees to pay, and the Executive agrees to accept, as the
Executive's salary for all services to be rendered by the Executive
hereunder, a salary at an annual rate of $180,000 ("Base Salary"),
payable at the same time that the Company pays its employees generally.
The Base Salary is subject to periodic increases in the sole discretion
of the Board.
5.2 Incentives, Savings, and Retirement Plans. The Executive
shall be entitled to participate in all incentive, savings, and
retirement plans, policies, and programs made available by the Company
to executive-level employees generally ("Plans").
5.3 Fringe Benefits. During the Executive's employment with
the Company, the Executive shall be entitled to the benefits of such
group medical, travel and accident, short- and long-term disability,
and term life insurance, if any, as the Company shall make generally
available from time to time to executive-level employees.
5.4 Reimbursement. The Company shall reimburse the Executive
(or, in the Company's sole discretion, shall pay directly), upon
presentation of vouchers and other supporting documentation as the
Company may reasonably require, for reasonable out-of-pocket expenses
incurred by the Executive relating to the business or affairs of the
Company or the performance of the Executive's duties hereunder,
including reasonable expenses respecting entertainment, travel, and
similar items, provided that Executive shall have complied with the
Company's regular reimbursement procedures and practices generally
applicable from time to time to the Company's executive-level
employees.
5.5 Paid Time Off. In addition to statutory holidays, the
Executive shall be entitled to 28 days paid time off each calendar year
during the Executive's employment, accruing ratably each month, to be
taken in accordance with the procedures and practices generally
applicable from time to time to the Company's executive-level
employees.
5.6 Withholding. The Company may withhold from the Executive's
compensation all applicable amounts required by law.
6. Termination by the Company. The following provisions shall govern
the termination of the Executive's employment by the Company during the term of
this Agreement:
6.1 Termination by the Company for Cause. The Company shall
have the right to terminate this Agreement "For Cause" (as such term is
hereinafter defined), effective upon notice of termination to the
Executive. As used herein, the term "For Cause" shall mean and be
limited to: (a) any felony conviction, (b) willful misconduct or gross
negligence in connection with the performance of the Executive's
duties, responsibilities, agreements, and covenants hereunder, which
shall continue for a period of 30 days after the receipt of notice from
the Company, (c) refusal to comply with reasonable rules, regulations,
policies, directions, and restrictions as may be established from time
to time by the Board, whereby such refusal continues for 30 days after
the receipt of notice from the Company, (d) any material breach by
Executive of this Agreement; (e) the actual or attempted appropriation
of a material business opportunity of the Company, including attempting
to secure or securing any personal profit in connection with any
transaction entered into on behalf of the Company without the Company's
prior written consent; (f) the actual or attempted misappropriation of
any of the Company's funds or property; or (g) repeated abuse
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(following at least one written warning from the Company) of alcohol or
other controlled substances or any illegal use of narcotics or other
controlled substances. In the event the Executive's employment is
terminated in accordance with this section 6.1, the Company shall pay
to the Executive all amounts accrued through the Termination Date, any
unreimbursed expenses incurred pursuant to section 5.4 of this
Agreement, and any other benefits specifically provided to the
Executive under any Plan.
6.2 Termination upon Death or Disability of the Executive.
This Agreement shall terminate immediately upon the Executive's death
or upon the disability of the Executive. In the event the Executive's
employment is terminated in accordance with this section 6.2, the
Company shall pay to the estate of the Executive or to the Executive,
as appropriate, all amounts accrued through the Termination Date, any
unreimbursed expenses incurred pursuant to section 5.4 of this
Agreement, and any other benefits specifically provided to the
Executive under any Plan.
6.3 Other Termination. In the event of any termination of this
Agreement by the Company other than in accordance with section 6.1 or
6.2, the Company shall provide to the Executive the Full Termination
Compensation as provided in section 13.3, provided that Executive
executes a full general release, in a form acceptable to the Company,
releasing all claims, known or unknown, that Executive may have against
the Company and any subsidiary or related entity, their officers,
directors, executives, and agents, arising out of or any way related to
Executive's employment or termination of employment with the Company.
7. Termination by the Executive. The following provisions shall govern
the termination of the Executive's employment by the Executive during the term
of this Agreement:
7.1 Termination upon Change of Control. Notwithstanding any
provision of this Agreement to the contrary, Executive may terminate
this Agreement by providing written notice of such termination to the
Company within 30 days after the occurrence of any of the following
events:
(a) the sale, lease, exchange, or other transfer in
one transaction or a series of transactions of all or
substantially all of the assets of the Company to a single
purchaser that is not a wholly-owned subsidiary of the Company
or to a group of associated purchasers;
(b) the sale, lease, exchange, or other disposition
to a single Person or group of Persons under common control in
one transaction or a series of related transactions resulting
in such Person or Persons owning, directly or indirectly,
greater than 50% of the combined voting power of the
outstanding voting equity securities;
(c) as a result of a merger, consolidation, sale of
all or substantially all of the assets of the Company, a
contested election, or any combination of the foregoing, the
Persons that were managers of the Company immediately prior
thereto shall cease to constitute a majority of the Board of
the Company or any successor to the Company;
(d) the decision by the Company to terminate its
business and liquidate its assets;
(e) the merger or consolidation of the Company in a
transaction in which the members of the Company immediately
prior to such merger or consolidation receive less than 50% of
the outstanding voting equity securities of the new or
continuing corporation; or
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(f) a person (within the meaning of Section 3(a)(9)
or Section 13(d)(3), as in effect on the date hereof, of the
Securities Exchange Act of 1934 (the "Exchange Act") shall
become the beneficial owner (within the meaning of Rule 13d-3
of the Exchange Act as in effect on the date hereof) of 50% or
more of the outstanding voting securities of the Company.
If, as a result of one of the foregoing events, the Company is not the
surviving entity, and subject to the rights of Executive to terminate
the Agreement as set forth above, the provisions of this Agreement
shall inure to the benefit of and be binding upon the surviving or
resulting entity. If as a result of the merger, consolidation, transfer
of assets, or other event listed above, the duties of Executive are
increased, then the compensation of Executive provided for by this
Agreement shall be reasonably adjusted upward to compensate for the
additional duties and responsibilities assumed. In the event that the
Executive's employment is terminated by the Executive as provided in
this section 7.1, the Company shall provide to the Executive the Full
Termination Compensation as provided in section13.3, provided that
Executive executes a full general release, in a form acceptable to the
Company, releasing all claims, known or unknown, that Executive may
have against the Company and any subsidiary or related entity, their
officers, directors, executives, and agents, arising out of or any way
related to Executive's employment or termination of employment with the
Company.
7.2 Termination for Cause. The Executive shall have the right
to terminate this Agreement in the event of (a) the Company's
intentional breach of any covenant or term of this Agreement, but only
if the Company fails to cure such breach within 20 days following the
receipt of notice by Executive setting forth the conditions giving rise
to such breach; (b) an assignment to the Executive of any duties
inconsistent with, or a significant change in the nature or scope of,
the Executive's authorities or duties from those authorities and duties
held by the Executive as of the date hereof and as increased from time
to time; (c) the Company assigns Executive to perform his regular
services to a location more than 25 miles from the then-current
location to which Executive does not wish to relocate; or (d) the
failure by the Company to obtain the assumption of the commitment to
perform this Agreement by any successor corporation. In the event that
the Executive's employment is terminated by the Executive as provided
in this section 7.2, the Company shall provide to the Executive the
Full Termination Compensation as provided in section13.3, provided that
Executive executes a full general release, in a form acceptable to the
Company, releasing all claims, known or unknown, that Executive may
have against the Company and any subsidiary or related entity, their
officers, directors, executives, and agents, arising out of or any way
related to Executive's employment or termination of employment with the
Company.
7.3 Other Termination. In the event of any termination of this
Agreement by the Executive other than in accordance with section 7.1 or
7.2, the Company shall pay to the Executive all amounts accrued through
the Termination Date, any unreimbursed expenses incurred pursuant to
section 5.4 of this Agreement, and any other benefits specifically
provided to the Executive under any Plan.
8. Resignation upon Termination. The termination of this Agreement for
any reason shall also constitute the automatic resignation by the Executive from
all positions held in the Company or an affiliate of the Company, including any
position as a manager, director, officer, agent, trustee, or consultant of the
Company or any affiliate of the Company. Upon the request of the Company, the
Executive shall deliver to the Company such written confirmation of such
resignation as the Company may reasonably request.
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9. Noncompetition. While the Executive is an employee of the Company
and for a period ending one year following the Termination Date (the
"Noncompetition Period"), the Executive agrees that Executive will not, singly,
jointly, or as a partner, member, employee, agent, officer, director,
stockholder (except as a holder, for investment purposes only, of not more than
1% of the outstanding stock of any company listed on a national securities
exchange or actively traded in a national over-the-counter market), equity
holder, lender, consultant, independent contractor, or joint venturer of any
other Person, or in any other capacity, directly or beneficially, own, manage,
operate, join, control, participate in the ownership, management, operation or
control of, permit the use of his name by, work for, provide consulting,
financial or other assistance to, or be connected in any manner with a Competing
Business (as hereinafter defined) anywhere in the Protected Territory (as
hereinafter defined), without the prior written approval of the Board.
10. Nonsolicitation. During the Noncompetition Period, the Executive
agrees that Executive shall not: (a) employ, retain, engage (as an employee,
consultant, or independent contractor), or induce, or attempt to induce to be
employed, retained, or engaged, any Person that is or was during the
Noncompetition Period an employee, consultant, or independent contractor of the
Company; (b) induce or attempt to induce any Person that during the
Noncompetition Period as an employee, consultant, or independent contractor of
the Company to terminate his or her employment or other relationship with the
Company; or (c) induce or attempt to induce any Person that is a customer of the
Company or that otherwise is a contracting party with the Company during the
Noncompetition Period to terminate any written or oral agreement, understanding,
or other relationship with the Company.
11. Executive's Representations and Warranties. The Executive
represents and warrants that the Executive is not a party to any other
significant employment, noncompetition, or other agreement or restriction that
could interfere with the Executive's employment with the Company or the
Executive's or the Company's rights and obligations hereunder, without the prior
written approval of the Board, and that the Executive's acceptance of employment
with the Company and the performance of the Executive's duties hereunder will
not breach the provisions of any contract, agreement, or understanding to which
the Executive is party or any duty owed by the Executive to any other Person.
12. Indemnification. The Company shall indemnify the Executive and hold
the Executive harmless from liability for acts or decisions made by the
Executive while performing services for the Company to the greatest extent
permitted by applicable law. The Company shall use its best efforts to obtain
coverage for the Executive under any insurance policy now in force or hereafter
obtained during the term of this Agreement insuring officers and directors of
the Company against such liability. The Executive agrees to indemnify and to
hold the Company harmless from any and all damages, losses, claims, liabilities,
costs, or expenses arising from the Executive's acts or omissions in violation
of his duties under this Agreement that constitute fraud, gross negligence, or
willful and knowing violations of the terms of this Agreement.
13. Definitions. Capitalized terms used in this Agreement but not
otherwise defined herein shall have the meanings hereby assigned to them as
follows:
13.1 "Competing Business." Competing Business shall mean any
one or more of the following: (a) any business that engages in
providing database services, including data migration; (b) any other
business in which the Company engages on or before the Termination
Date; or (c) any other business in which the Company develops an
intention to engage on or before the Termination Date and for which the
Company prepared an existing business plan or study on or before the
Termination Date or for which the Company commissioned a business plan
or study on or before the Termination Date.
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13.2 "Disability." The Executive shall be deemed to have a
disability for purposes of this Agreement either (a) if the Executive
is deemed disabled for purposes of any group or individual disability
policy paid for by the Company and at the time in effect, or (b) if, in
the good faith judgment of the Board, the Executive is substantially
unable to perform the Executive's duties under this Agreement for more
than 90 days, whether or not consecutive, in any 12-month period, by
reason of a physical or mental illness or injury.
13.3 "Full Termination Compensation." Full Term Compensation
shall mean:
(a) all amounts accrued to Executive through the
Termination Date, any unreimbursed expenses incurred pursuant
to section 5.4 of this Agreement, and any other benefits
specifically provided to the Executive under any Plan;
(b) an amount equal to six months initial Base
Salary, as provided in section 5.1; payable in a lump sum, or
over the period of six months on regular payroll periods, at
the sole election of the Executive;
(c) the accelerated vesting of all options granted to
Executive under the Company's stock option plans that, as of
the date of the Executive's termination or resignation, remain
unvested; and
(d) the continuation, at the Company's expense, of
group medical coverage under the same terms as in effect at
the Termination Date, or cash payout of the cost of equivalent
group medical coverage, at Executive's sole option, for six
months past the Termination Date or until the Executive
obtains alternate health insurance coverage, in addition to
any health insurance continuation obligation under the
Consolidated Omnibus Budget Reconciliation Act of 1985
(COBRA).
Notwithstanding any other provision of the Agreement, if it is
determined that the amounts payable to Executive as Full Termination
Compensation, when considered together with any other amounts payable
to Executive, cause such payments to be treated as excess parachute
payments within the meaning of Section 280G of the Internal Revenue
Code, the Company shall reduce the amount payable to Executive in Full
Termination Compensation (to the least extent possible) to an amount
that will not subject Executive to the imposition of tax under Section
4999 of the Internal Revenue Code.
13.4 "Person." The term "Person" shall mean an individual,
partnership, corporation, limited liability company, association,
trust, joint venture, unincorporated organization, and any government,
governmental department or agency, or political subdivision thereof.
13.5 "Protected Territory." Protected Territory shall mean the
United States of America and Canada.
13.6 "Termination Date." Termination Date shall mean the date
the Executive ceases to be employed by the Company.
14. Waivers and Amendments. The respective rights and obligations of
the Company and the Executive under this Agreement may be waived (either
generally or in a particular instance, either retroactively or prospectively,
and either for a specified period of time or indefinitely) or amended only with
the written consent of a duly authorized representative of the Company and the
Executive.
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15. Successors and Assigns. The provisions hereof shall inure to the
benefit of, and be binding upon, the Company's successors and assigns.
16. Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement of the parties with regard to the subjects hereof
and supersedes in their entirety all other or prior agreements, whether oral or
written, with respect thereto.
17. Notices. All demands, notices, requests, consents, and other
communications required or permitted under this Agreement shall be in writing
and shall be personally delivered or sent by facsimile machine (with a
confirmation copy sent by one of the other methods authorized in this section),
reputable commercial overnight delivery service (including Federal Express and
U.S. Postal Service overnight delivery service), or deposited with the U.S.
Postal Service mailed first class, registered or certified mail, postage
prepaid, as set forth below:
If to the Company, addressed to:
Aradyme Corporation
0000 Xxxxx Xxxxxxxx Xxx, Xxxxxxxx X
Xxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxxxx Xxxxxxx & Xxxxx, LLC
00 Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Executive, to the current address listed in the Company's
regular payroll records.
Notices shall be deemed given upon the earlier to occur of (a) receipt by the
party to whom such notice is directed; (b) if sent by facsimile machine, on the
day (other than a Saturday, Sunday, or legal holiday in the jurisdiction to
which such notice is directed) such notice is sent if sent (as evidenced by the
facsimile confirmed receipt) prior to 5:00 p.m. Mountain Time and, if sent after
5:00 p.m. Mountain Time, on the day (other than a Saturday, Sunday, or legal
holiday in the jurisdiction to which such notice is directed) after which such
notice is sent; (c) on the first business day (other than a Saturday, Sunday, or
legal holiday in the jurisdiction to which such notice is directed) following
the day the same is deposited with the commercial courier if sent by commercial
overnight delivery service; or (d) the fifth day (other than a Saturday, Sunday,
or legal holiday in the jurisdiction to which such notice is directed) following
deposit thereof with the U.S. Postal Service as aforesaid. Each party, by notice
duly given in accordance therewith, may specify a different address for the
giving of any notice hereunder.
18. Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the laws of Utah (without giving effect to any
conflicts or choice of laws provisions thereof that would cause the application
of the domestic substantive laws of any other jurisdiction).
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19. Consent to Jurisdiction and Venue.
19.1 Jurisdiction. Each of the parties hereto hereby consents
to the jurisdiction of all state and federal courts located in Salt
Lake City, Utah, as well as to the jurisdiction of all courts to which
an appeal may be taken from such courts, for the purpose of any suit,
action, or other proceeding arising out of, or in connection with, this
Agreement or any of the transactions contemplated hereby, including any
proceeding relating to ancillary measures in aid of arbitration,
provisional remedies, and interim relief, or any proceeding to enforce
any arbitral decision or award. Each party hereby expressly waives any
and all rights to bring any suit, action, or other proceeding in or
before any court or tribunal other than the courts described above and
covenants that it shall not seek in any manner to resolve any dispute
other than as set forth in this section, or to challenge or set aside
any decision, award, or judgment obtained in accordance with the
provisions hereof.
19.2 Venue. Each of the parties hereto hereby expressly waives
any and all objections it may have to venue, including the
inconvenience of such forum, in any of such courts. In addition, each
party consents to the service of process by personal service or any
manner in which notices may be delivered hereunder in accordance with
this Agreement.
20. Equitable Remedies. The parties hereto agree that irreparable harm
would occur in the event that any of the agreements and provisions of this
Agreement were not performed fully by the parties hereto in accordance with
their specific terms or conditions or were otherwise breached, and that money
damages are an inadequate remedy for breach of this Agreement because of the
difficulty of ascertaining and quantifying the amount of damage that will be
suffered by the parties hereto in the event that this Agreement is not performed
in accordance with its terms or conditions or is otherwise breached. It is
accordingly hereby agreed that the parties hereto shall be entitled to an
injunction or injunctions or other equitable relief to restrain, enjoin, and
prevent breaches of this Agreement by the other parties and to enforce
specifically such terms and provisions of this Agreement, such remedy being in
addition to, and not in lieu of, any other rights and remedies to which the
other parties are entitled to at law or in equity. The Company and the Executive
agree that the covenants set forth in this Agreement shall be enforced to the
fullest extent permitted by law. Accordingly if, in any judicial proceedings, a
court shall determine that such covenant is unenforceable for any reason,
including because it covers too extensive a geographical area or survives too
long a period of time, then the parties intend that such covenant shall be
deemed to cover only such maximum geographical area and maximum period of time,
if applicable, and/or shall otherwise be deemed to be limited in such manner as
will permit enforceability by such court. In the event that any one or more of
such covenants shall, either by itself or together with other covenants, be
adjudged to go beyond what is reasonable in all the circumstances for the
protection of the interests of the Company and its equity holders, but would be
adjudged reasonable if any particular covenant or covenants or parts thereof
were deleted, restricted, or limited in a particular manner, then the said
covenants shall apply with such deletions, restrictions, or limitations, as the
case may be. The Company and the Executive further agree that the covenants set
forth in this Agreement are reasonable in all circumstances for the protection
of the legitimate interests of the Company and its equity holders.
21. Waiver of Jury Trial. Each of the parties hereto hereby voluntarily
and irrevocably waives trial by jury in any action or other proceeding brought
in connection with this Agreement or any of the transactions contemplated
hereby.
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22. Survival. The provisions of sections 9, 10, 12, 18, 20, and 21
shall survive any termination of this Agreement.
23. Severability; Titles and Subtitles; Gender; Singular and Plural;
Counterparts; Facsimile.
23.1 Headings. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
23.2 Mutual Terms. The use of any gender in this Agreement
shall be deemed to include the other genders, and the use of the
singular in this Agreement shall be deemed to include the plural (and
vice versa), whenever appropriate.
23.3 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of
which together constitute one instrument. Counterpart signatures of
this Agreement (or applicable signature pages hereof) that are manually
signed and delivered by facsimile transmission shall be deemed to
constitute signed original counterparts hereof and shall bind the
parties signing and delivering in such manner.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above specified.
COMPANY: EXECUTIVE:
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ARADYME CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxxx
--------------------------------- --------------------------------
Name: Xxxxx X. Xxxxxxxx Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
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