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EXHIBIT 10.26
EMPLOYMENT AGREEMENT
THIS AGREEMENT made and entered into this 12th day of March, 1999, to
be effective as of April 1, 1999, by and between IntraNet Solutions, Inc., a
Minnesota corporation (hereinafter referred to as "Company") and Xxxxx Xxxxxx,
residing at 0000 000xx Xxx. XX, Xxx Xxxx, Xxxxxxxxx 00000 (hereinafter referred
to as "Employee").
WITNESSETH:
WHEREAS, the Company desires to assure itself of the services of
Employee; and
WHEREAS, Employee desires to be employed by the Company.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto agree as follows:
1. Employment. The Company agrees to employ Employee and Employee agrees
to accept such employment upon the terms and conditions hereinafter set
forth.
2. Duties. Employee shall serve in an executive capacity as the Chief
Financial Officer, Treasurer and Secretary of the Company, performing
such services as the By Laws provide, and as the Company's Board of
Directors may, from time to time, determine. Additionally, Employee
shall become a member of the Company's Board of Directors, effective
April 1, 1999, to serve thereafter at the pleasure of the Company's
stockholders.
3. Terms. This Agreement shall be for a two (2) year period commencing on
the effective date first above written and terminating on March 30,
2001, subject, however, to prior termination as provided as Section 7
herein.
4. Base Salary. In consideration for the Employee's service under this
Agreement, the Company agrees to pay Employee an initial Base Salary at
a rate of One Hundred Twenty Five Thousand Dollars ($125,000).
Annually, Employee will receive an annual performance review and the
Base Salary may be increased at such time in the sole discretion of the
Chief Executive Officer and the Compensation Committee of the Company's
Board of Directors. The Base Salary shall be subject to any withholding
required by law and shall be payable in accordance with the normal
payroll practices of the Company.
5. Bonus. You will be eligible for an annual bonus of up to $40,000,
payable quarterly, dependent upon achievement of Company performance
and personal objectives as established by the Chief Executive Officer
and the Compensation Committee of the Company's Board of Directors from
time to time.
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6. Additional Benefits and Working Facilities.
(a) The Company shall furnish Employee with the equipment, office
space, secretarial support and such other items related to his
employment that Employee determines are necessary, useful, and
appropriate to him for the duties required by his employment.
(b) Following one month of employment, the Company shall provide
Employee health and dental insurance, 401K, and any other
benefits included in its corporate benefit program. In
addition, Employee shall have the benefit of such other
employee benefit plans that the Company may, from time to
time, establish and in which employee would be entitled to
participate pursuant to the terms thereof. COMPANY AT ITS SOLE
DISCRETION SHALL HAVE THE RIGHT TO CHANGE OR DISCONTINUE SUCH
PLANS.
(c) Employee shall be entitled to annual paid vacation accruing at
the rate of two weeks per year of employment and otherwise
consistent with the Company's existing vacation policy, and as
amended from time to time.
(d) In addition to Section 6(c) above, Employee shall accrue
personal days at the rate of six (6) personal days per year of
employment. Any personal days not used within one year
following accrual shall lapse.
(e) The Company shall reimburse Employee for all reasonable
expenses incurred by Employee in connection with the Company's
business, upon presentation of itemized statements therefor.
(f) The Company shall reimburse Employee up to $15,000 in moving
expenses if such move is made by Employee.
(g) As additional consideration for the Employee's services under
this Agreement, the Company agrees to grant Employee an
initial option grant to purchase 125,000 shares of the
Company's Common Stock at the fair market value on the date of
this Agreement, vesting ratably at the end of each of four
years from April 1, 1999, subject to all of the terms of the
Company's stock option plan, including accelerated vesting
upon change in control. Based upon the annual performance
review, additional option grants may be awarded at the sole
discretion of the Chief Executive Officer and Compensation
Committee of the Company's Board of Directors.
7. Events of Termination. This Agreement may be terminated as follows:
(a) On the expiration of the term set forth at Section 3 above;
(b) By mutual written agreement of the parties;
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(c) Upon Employee's death;
(d) Without notice, by the Company, for cause. "Cause" for
purposes hereof shall mean a determination by the Company's
Board of Directors that Employee has: (i) committed an illegal
or dishonest act that directly reflects upon his fitness to
act as Chief Financial Officer of the Company; (ii) breached
his fiduciary obligations to the Company; or (iii) refused or
is unable to perform his duties hereunder, other than as a
result of illness or disability, for a period of one hundred
twenty (120) days; or
(e) At the Company's option, without cause, (i) upon 30 days'
written notice to Employee provided the Employee receives 180
days' severance pay (Base Salary only), or (ii) with notice in
the event of a change in control of the Company (as defined in
the Company's stock option plan), provided Employee
immediately receives 180 days' severance pay (Base Salary
only).
8. Inventions.
(a) "Inventions," as used in this Section 8, means any
discoveries, improvements, and ideas (whether or not they are
in writing or reduced to practice) or works of authorship
(whether or not they can be patented or copyrighted) that the
Employee makes, authors, or conceives (either alone or with
others) and that:
(i) concern directly the Company's business or the
Company's present or demonstratably anticipated
future research or development;
(ii) result from any work that Employee performs for the
Company;
(iii) use the Company's equipment, supplies, facilities, or
trade secret information; or
(iv) the Employee develops during the time the Employee is
performing employment duties for the Company.
(b) Employee agrees that all inventions made by the Employee
during the term of this Agreement will be the Company's sole
and exclusive property. That Employee will, with respect to
any invention:
(i) keep current, accurate, and complete records, which
will belong to the Company and be kept and stored on
the Company's premises while the Employee is employed
by the Company;
(ii) promptly and fully disclose the existence and
describe the nature of the Invention to the Company
in writing (and without request);
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(iii) assign (and the Employee does hereby assign) to the
Company all of his rights to the Invention, any
applications he makes for patents or copyrights in
any country, and any patents or copyrights granted to
him in any country; and
(iv) acknowledge and deliver promptly to the Company any
written instruments, and perform any other acts
necessary in the Company's opinion to preserve
property rights in the Invention against forfeiture,
abandonment, or loss and to obtain and maintain
letters patent and/or copyrights on the invention and
to vest the entire right to title the Invention in
the Company.
The requirements of this subsection 8(b) do not apply to any
Invention for which no equipment or trade secret information
of the Company was used which was developed on the Employee's
own time and: (1) which does not relate directly to the
Company's business or to the Company's actual or demonstrably
anticipated research or development; or (2) which does not
result in any way from any work the Employee performed for the
Company. Except as previously disclosed to the Company in
writing, prior to the commencement of employment hereunder,
the Employee does not have and will not assert, any claims to
or rights under any discoveries, improvements, ideas or works
of authorship which are within the scope of the Company's
business. With respect to obligations performed by the
Employee under this subsection 8(b) following termination of
employment, the Company will pay the Employee reasonable
hourly compensation (consistent with the last Base Salary) and
will pay or reimburse all reasonable out-of-pocket expenses.
9. Confidential Information.
(a) "Confidential Information," as used in this Section 9, means
information that is not generally known and that is
proprietary. Any information, that the Employee reasonably
should consider Confidential Information, or the Company
designates as Confidential Information, will be presumed to be
Confidential Information (whether the Employee or others
originated it and regardless of how the Employee obtained it).
(b) Except as specifically permitted by the Company's Board of
Directors or by written Company policies, the Employee will
never, either during or after his employment by the Company,
use Confidential Information for any purpose other than the
business of the Company or disclose it to any person who is
not also an employee of the Company. When the Employee's
employment with the Company ends, the Employee will promptly
deliver to the Company all records and any compositions,
articles, devices, apparatus and other items that disclose,
describe, or embody Confidential Information including all
copies, reproductions and specimens of the Confidential
Information in the Employee's possession, regardless of who
prepared them and will promptly deliver any other property of
the Company in the Employee's possession, whether or not
Confidential Information.
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10. Conflicts of Interest. The Employee agrees that he will not, directly
or indirectly, transact business with the Company personally, or as
agent, owner, partner or shareholder of any other entity; provided,
however, that any such transaction may be entered into if knowingly
approved by all of the disinterested members of the Company's Board of
Directors.
11. Non-Competition Agreement. During the full term hereof, and on the
termination of Employee's employment for any reason, Employee shall
not, for a period of nine (9) months from the date of such termination:
(a) directly or indirectly, anywhere in the United States, own,
manage, operate or control, or participate in the ownership,
management, operation or control of, or be connected with, or
have any interest in, as a stockholder, director, officer,
employee, agent, advisor, consultant, partner, or otherwise:
(a) any "business" which manufactures, produces, sells,
markets or distributes any products or services that are being
manufactured, produced, marketed, sold or distributed by
Company as of the date of such termination; or (b) any other
business which is competitive with any business currently or
hereafter conducted by Company as of the date of such
termination; provided, however, that nothing contained herein
shall prohibit Employee from owning less than 3% of any class
of securities listed on a national securities exchange or
traded publicly in the over-the-counter market. Employee
acknowledges and agrees that the provisions of this Section
are both reasonable and valid in geographical and temporal
scope and in all other respects. If any of the provisions of
this Section are held to be unenforceable because of the
scope, duration or area of its applicability, the court making
such determination shall have the power to modify such scope,
duration or area or all of them, and such provision shall then
be applicable in such modified form.
(b) either directly or indirectly, alone or with others, solicit
or assist anyone else in the solicitation of, any of the
employees employed by Company at the time of Employee's
termination of employment with Company, to terminate their
employment with Company and to become employed by any business
enterprise with which the Employee may then be associated,
affiliated or connected.
Employee will, prior to accepting employment, consulting or similar
contract or agreement with any third party, inform that party of this
Agreement and provide that party with a copy of this Agreement.
12. No Adequate Remedy. Employee understands that if the Employee fails to
fulfill the Employee's obligations under Section 8, 9, 10 or 11 of this
Agreement, the damages to the Company would be very difficult to
determine. Therefore, in addition to any other rights or remedies
available to the Company at law, in equity, or by statute, the Employee
hereby consents to the specific enforcement of the provisions of those
Sections by the Company through an injunction or restraining order
issued by an appropriate court.
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13. Additional Documents. The parties shall each, without further
consideration, execute such additional documents as may be reasonably
required in order to carry out the purpose and intent of this Agreement
and to fulfill the obligation of the respective parties hereunder.
14. Waiver. Any waiver of any term or condition of this Agreement shall not
operate as a waiver of any other breach of such term or condition, or
of any other term or condition, nor shall any failure to enforce a
provision hereof operate as a waiver of such provision or of any other
provision hereof.
15. Notices. All communications with respect to this Agreement shall be
considered given if delivered or sent as follows:
(a) If to Employee, by first class certified mail, postage
prepaid, return receipt requested, addressed as follows:
Xxxxx Xxxxxx
0000 000xx Xxx. XX
Xxx Xxxx, XX 00000
(b) If to the Company, by first class mail, postage prepaid,
return receipt requested, addressed as follows:
Xx. Xxxxxx X. Xxxxx, Chief Executive Officer
IntraNet Solutions, Inc.
0000 Xxxxxxx Xxxx
Xxxx Xxxxxxx, XX 00000
With a copy to:
Xxxx Xxxxx
Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP
0000 Xxxxxxx Xxxxxx
00 X. 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
or mailed to such other address as the parties hereto may designate by
notice given in like manner. Notice shall be effective three (3)
calendar days after mailing or upon personal delivery.
16. Entire Agreement. This Agreement, together with all exhibits and
writings required or contemplated hereby, constitutes the entire
Agreement between the parties hereto with respect to the transaction
contemplated hereby and no party shall be liable or bound to another in
any manner by and warranties, representations, or guarantees, except as
specifically set forth herein.
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17. Modification, Amendments and Waivers. The parties hereto at any time
may, by written Agreement: (i) extend the time for the performance of
any of the obligations or other acts of the parties hereto; (ii) waive
any inaccuracies in the representations and warranties contained in
this Agreement or in any exhibit, schedule, letter, certificate, or
other instrument delivered pursuant hereto; (iii) waive compliance with
any of the covenants or agreements contained in this Agreement; or (iv)
make any other modifications of this Agreement. This Agreement shall
not be altered or otherwise amended except pursuant to an instrument in
writing executed by both parties hereto.
18. Severability. No finding or adjudication that any provision of this
Agreement is invalid or unenforceable shall affect the validity or
enforceability of the remaining provision herein, and this Agreement
shall be construed as through such invalid or unenforceable provisions
were omitted.
19. Miscellaneous.
(a) The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the parties hereto and the
respective legal representatives, successors, and assigns of
both of the parties hereto.
(b) This Agreement is made pursuant to and shall be construed
under the laws of the State of Minnesota.
(c) This Agreement shall be executed in two (2) counterparts, but
each of these counterparts shall, for all purposes, be deemed
to be an original, but both counterparts shall together
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
the date set forth above.
EMPLOYER: EMPLOYEE:
INTRANET SOLUTIONS, INC.
By s/ Xxxxxx X. Xxxxx s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Its CEO
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