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EMPLOYMENT AGREEMENT
THIS AGREEMENT made and entered into this 30th day of July, 1996, to be
effective as of August 1, 1996, by and between IntraNet Solutions, Inc., a
Minnesota corporation (hereinafter referred to as "Company") and Xxxxxx X.
Xxxxx, residing at 0000 Xxxxxxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxx (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 President and
Chief Executive Officer of the Company, performing such services as the Bylaws
provide, and as the Board of Directors of the Company may, from time to time,
determine.
3. Term. This Agreement shall be for a three (3) year period commencing on
the effective date first above written and terminating on July 30, 1999,
subject, however, to prior termination as provided as Section 7 herein.
4. Base Salary. In consideration for the Employee's services under this
Agreement, the Company agrees to pay the Employee an initial base salary at a
rate of one hundred fifty-five thousand Dollars ($155,000) for the first twelve
(12) months hereunder, with annual increases of 6% for each of the following
two twelve (12) month periods hereunder (the "Base Salary"). The Base Salary
shall be subject to any withholding required by law and shall be payable in
bi-weekly installments.
5. Fiscal Year End Bonus. Employee shall be eligible to receive an annual
fiscal year end bonus up to twenty-five percent (25%) of Employee's Base
Salary, as described above. Employees receiving such bonus shall be
discretionary based upon an evaluation conducted by and between Employee and
the Compensation Committee of the Board of Directors. Said annual review and
evaluation shall be conducted no later than April 30 of each fiscal year
hereunder. Any such discretionary bonus, if any, shall be payable in cash to
Employee and shall be due and payable, in full, no later than June 30 of each
fiscal year hereunder.
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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) 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 the terms thereof.
COMPANY AT ITS SOLE DISCRETION SHALL HAVE THE RIGHT TO CHANGE OR
DISCONTINUE SUCH PLANS.
(c) Employee shall be entitled to four (4) weeks of annual paid vacation
during the term of this Agreement.
(d) 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.
(e) The Company shall provide a mutually acceptable Company automobile
for Employee's business use.
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;
(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 President or Chief Executive
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 120 days written
notice to Employee; or (ii) with notice in the event of a change in
control during the term of this Agreement, provided that, in such event,
the Company shall then be obligated to pay to Employee, as mutually
agreed upon severance compensation the greater of: six months base
salary, as then in effect; or the balance of the compensation due and
owing to Employee for the remainder of the term of this contract.
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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 and for a period of twenty-four (24) months
thereafter 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);
(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, supplies, facility, or trade secret information of the
Company was used and which was developed entirely 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
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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.
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 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 twenty-four (24) 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 or distributes any products or services which have been
manufactured, produced, offered, sold or distributed by Company; or (b)
any other business which is competitive with any business currently or
hereafter conducted by Company; 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
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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) Employee will not, during the full term hereof, 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.
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:
Xxxxxx X. Xxxxx
0000 Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
(b) If to the Company, by first class mail, postage prepaid, return
receipt requested, addressed as follows:
Xx. Xxxxxxx X. Xxxxxxx, Chief Financial Officer
IntraNet Solutions, Inc.
0000 X. 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxx, XX 00000
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with a copy to:
Xxxx Xxxxx
Maslon, Edelman, Xxxxxx & Brand
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) 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.
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 though 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective the
date set forth above.
EMPLOYER: EMPLOYEE:
INTRANET SOLUTIONS, INC.
By /s/ Xxxxxxx Xxxxxxx /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Its Chief Financial Officer
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